APPEAL from the Circuit Court of Cook County; the Hon. DANIEL
WHITE, Judge, presiding.
MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:
Defendant, Eddie Robinson, was charged by information in the circuit court of Cook County with one count of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1) and two counts of indecent liberties with a child (sexual intercourse; lewd fondling or touching) (Ill. Rev. Stat. 1979, ch. 38, pars. 11-4(a)(1), 11-4(a)(3)). Following a jury trial, he was found guilty of one count of indecent liberties with a child (lewd fondling or touching) and not guilty on the remaining charges. He was sentenced to four years imprisonment. Defendant appeals and presents the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether it was error to admit the testimony of the seven-year-old complainant; and (3) whether it was error to allow the complainant and her mother to testify to a statement made by the complainant on the morning after the alleged incident.
Before trial, a hearing was held to ascertain the competence of the seven-year-old complainant (six at the time of the incident). In response to questioning by the court, she stated her name, where she attended school and the address where she lived with her mother. In response to the court's question as to the meaning of the oath, she responded, "You telling the truth." She also stated that people who don't tell the truth "get a punishment" and if she told her mother a lie she would have to stand in the corner. The witness knew who the judge was, but did not know what goes on in a courtroom. Over the objection of defendant's counsel, the trial court found her competent to testify.
At the trial, complainant testified that on March 22, 1978, defendant, who was her cousin, was baby-sitting for her younger sister and brothers. After being in school all day, she arrived home at around 2:30 to 3 p.m. with her older brother, Michael. She then watched television and did her homework. Defendant pushed her brother out into the hallway, locking him out. Defendant then pushed her onto the floor, slapped her and raised her dress.
To the next question, "Then what happened?" she was unresponsive. It was only after two recesses and numerous questions from the prosecutor that she responded, "Put his penis in my vagina." She testified that she was crying and screaming the whole time.
Although she was with her mother later that night, she did not tell her, nor did she tell anybody else that night. It was not until the morning that she told her mother what had happened. She identified the blood-stained slip she wore on the day of the alleged incident.
Michael, her brother, testified that he and his sister arrived home from school about 3 p.m. on the day in question. His cousin, the defendant, was present in the home, baby-sitting for his younger brothers and sister. Michael testified that he was in the hallway of the home after he was pushed outside by defendant. Michael said he was locked out when he heard screams from inside.
Complainant's mother testified that she had left the home around 10 a.m., after her niece, who was defendant's older sister, had left, and that she came home from grocery shopping at about 4 p.m. on the day of the alleged incident. The complainant was downstairs when she came home and helped her put away the groceries. During this time complainant said nothing of the alleged incident to her mother. Her daughter went to bed at 6 p.m., woke up around 8 p.m., ate dinner without saying anything, went back to bed 10 minutes later and was not seen by her mother until the following morning.
The mother further testified that when complainant came into her bedroom the next morning she was "walking bow-legged," had a bruise on the side of her face and acted nervous. She noticed that her daughter was wearing the same clothes as on the previous day. She then had a conversation with her daughter, had her lie down on the bed, took off her panties and found that there was blood in her vagina. The mother identified the slip which she had purchased for complainant and which had never been washed before. She also identified the blood stains on the slip as those she saw the day she examined her daughter.
Complainant's mother further testified that she took complainant to St. Bernard's Hospital. Dr. M.J. Fu conducted a physical examination of complainant on March 23, 1978. He testified that he found a bruise on her cheek which he concluded was a recent injury. He also found three small lacerations at the opening of the vagina. Further examination was not made because complainant became scared and refused to proceed with the examination. Dr. Fu further testified that the injuries occurred between eight to 16 hours before his examination and that the injuries he found were consistent with sexual penetration.
Officer Thompson testified that he arrested defendant on March 23, 1978, informed him of his rights and related to him the alleged facts of the previous day; defendant was supposedly a babysitter and his cousin alleged he had raped her. The officer testified that defendant stated that he had been at the house, but that he had not raped his cousin.
Defendant's older sister testified for the defense. She, with her baby, had been living in the household of complainant's mother at the time of the alleged incident. She testified that on the day of the alleged incident she never left the residence; complainant's mother left the residence around 1 p.m. to go shopping and returned at 4 p.m. with her groceries. Complainant was present while the groceries were being put away. Defendant first arrived during this time and asked complainant's mother for his money. There was an argument and defendant left after fifteen minutes.
Defendant argues that he was not proven guilty beyond a reasonable doubt because complainant's testimony was neither clear and convincing in nature nor was it corroborated. (See People v. McGrath (1963), 28 Ill.2d 132, 190 N.E.2d 746.) The duty of reviewing courts> in cases involving indecent liberties with a child has been stated in People v. Nunes (1964), 30 Ill.2d 143, 146, 195 N.E.2d 706:
"It is axiomatic that a charge of indecent liberties is an accusation easily made, hard to be proved, and harder to be defended by the party accused. (People v. Hinton, 14 Ill.2d 424.) In such cases reviewing courts> are especially charged with the duty of carefully examining the evidence, and while due weight must be given to the judgment of the jury as to the credibility of the witnesses, it is our duty to reverse the judgment if the evidence is not sufficient to remove all ...