APPEAL from the Circuit Court of Lake County; the Hon.
ALPHONSE WITT, Judge, presiding.
MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Henry Gillman was charged with the offense of contributing to the sexual delinquency of a minor. After a jury trial, the defendant was found guilty and sentenced to one year probation from which the defendant appeals.
The complaining witness, K.B., was nine years old at the time of the incident in question. She testified on the afternoon of June 17, 1978, she went over to Henry Gillman's house. She arrived there about 1:30 p.m. and stayed until shortly after 5 p.m. The Gillmans and K.B.'s families were neighbors, and K.B. was a friend of the Gillman children, Sue, aged 13, Helen, aged 10, and Caroline, aged 7. On June 17, 1978, K.B. came over to visit the Gillman children. She found that Mr. Gillman and his children were shocking for worms — which means that he was using an electrical rod he had devised which he stuck into the ground when it was soft, causing vibrations which made the worms come out of the ground. The children watched the ground just in front of the device and picked up the worms that came out of the ground.
On the day in question Mr. Gillman was wearing a shirt and cut-off shorts. Mr. Gillman, his daughters and K.B. were shocking for worms at the side of the Gillman garage, which was on the right side and to the back of the house. During the time that they were shocking K.B. was standing to Mr. Gillman's left and Helen and Caroline were next to K.B. on her left; Sue was to the right of Mr. Gillman.
A wire fence which was shorter in height than K.B. ran along the back of the Gillman garage; directly behind the fence was a neighbor's yard with a house to the left and a garage to the right. As the group shocked for worms they moved forward toward the direction of the fence. K.B. could see into the yard ahead of them from where the group was working but did not notice anyone in that yard. She was not sure whether a man was working in the yard but said that it was possible.
For most of the afternoon Mr. Gillman held the shocker while K.B., Caroline, Helen and Sue looked for worms. At one point Mr. Gillman asked K.B. if she would like to shock and she agreed. She held the handle of the shocker with her right hand and Mr. Gillman put his hand on top of hers. The handle of the shocker was approximately four inches long. When placed in the ground, the shocker would vibrate. K.B. believed that the first time she used the shocker it was in the ground for "at least three minutes."
K.B. testified that a short time after she and Mr. Gillman were shocking the first time, he took her hand off the shocker and pressed it against his pants. She stated that she could feel Mr. Gillman's body under his shorts and that it felt hard. The following exchange took place between K.B. and the prosecutor.
"Q. What part of his pants did he press it against?
A. Down like sort of by the legs, like in between them.
During this incident Sue was in front of K.B. and Mr. Gillman with her back towards them probably, looking on the ground for worms. K.B. thought Helen and Caroline were probably standing in front of her, but was not sure. She thought they were also looking in the ground for worms but did not know. When asked whether for the entire three minutes Sue ever turned around to look at K.B. and Mr. Gillman, K.B. replied "No, I know she didn't look up, but I ain't sure."
At about 3:30 or 4 p.m., Helen and Caroline left to go somewhere with their mother. Sue remained in the yard. After Helen and Caroline left, Mr. Gillman asked K.B. if she wanted to shock again and she agreed. When she reached out and held the pole, Mr. Gillman took her hand off the pole and pressed it against his pants again in the same place he had pressed it the first time. K.B. again felt Mr. Gillman's body under his shorts which felt hard.
Although K.B. stated on direct examination that about five minutes elapsed between the first and second incident, she subsequently stated on cross-examination that the second incident occurred about 15 minutes after Helen had left. When Mr. Gillman pressed K.B.'s hand against his shorts the first time she did not look at his shorts; rather, she testified, "At first, I was looking at the ground because I wasn't exactly sure what had happened or anything." She stated that she was looking at "the ground, Sue, the shocker," but that during the three minutes that Mr. Gillman had ...