APPEAL from the Circuit Court of Cook County; the Hon. AUBREY
F. KAPLAN, Judge, presiding.
JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:
Following a jury trial the defendant, Larry A. Greene, was convicted of two counts of indecent liberties with a child (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a)) and sentenced to a term of 12 years. The defendant was found not guilty of deviate sexual assault. (Ill. Rev. Stat. 1979, ch. 38, par. 11-3.) On appeal, the defendant contends (1) that the jury was improperly instructed; (2) that the trial court erred in failing to dismiss the venire; and (3) that the trial court imposed an excessive sentence in order to punish him for exercising his right to trial.
On January 25, 1978 at 9:30 p.m., the complainant, age 14, was standing on the corner of 43rd and Drexel Streets in Chicago. She was waiting for the traffic light to change so that she could continue her walk to Hyde Park to visit a friend. The complainant was wearing a suit coat, a pair of pants and a skull cap.
The complainant testified that while she was standing at the corner, the defendant bumped her left shoulder and placed something hard to her right side. The defendant pulled the complainant's cap over her eyes and grabbed her wrists with his left hand. While he continued to hold the hard object against her side, the defendant told the complainant to start walking and "to be a nice little girl and won't nothing happen." After a brief walk the defendant opened a car door, got into the car, and pulled the complainant into the front seat. The defendant drove the car while holding the complainant's shoulder as she lay crying on the front seat. After four or five minutes, the defendant stopped the car. The defendant removed one leg of the complainant's pants and her panties and put his mouth to her vagina. He subsequently put his finger into her vagina. While the complainant cried, the defendant pulled up her blouse and her bra and put his mouth to her breast. At this point the complainant heard someone slam a car door. She pulled off her cap and saw two policemen.
Officer Daniel Iosello of the Chicago Police Department testified that on January 25, 1978, he and his partner went to the vicinity of 4514 S. Drexel following a conversation with a citizen. Officer Iosello observed an automobile parked in a vacant lot with the motor running. He looked into the automobile and observed the defendant fondling the complainant. Iosello opened the door and announced that he was a police officer. He noticed that the complainant's cap covered her eyes and that she was crying. Officer Iosello searched the defendant and found an open pocket knife in his right coat pocket.
The defendant did not present any evidence at trial.
The defendant first argues that the trial court should have instructed the jury concerning an affirmative defense to the offense of indecent liberties with a child.
The Criminal Code of 1961 provides that "[a]ny person of the age of 17 years and upwards commits indecent liberties with a child when he or she performs or submits to any of the following acts with a child under the age of 16:
(1) Any act of sexual intercourse; or
(2) Any act of deviate sexual conduct; or
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both." (Ill. Rev. Stat. 1979, ch. 38, par. 11-4(a).)
An affirmative defense to the crime is that the accused reasonably believed that the child was of the age of 16 or upwards at the time of the act. Ill. Rev. Stat. 1979, ch. 38, par. 11-4(c).
An affirmative defense is raised when the defendant presents "some evidence thereon." (Ill. Rev. Stat. 1979, ch. 38, par. 3-2.) The defendant is entitled to an instruction on the affirmative defense even if the evidence he presents is very slight. People v. Brown (1971), 132 Ill. App.2d 875, 271 N.E.2d 395.
• 1 According to the defendant, the complainant's testimony that she was alone on the street at 9:30 p.m. dressed in a suit coat, pair of pants and a skull cap constituted the evidence necessary to require the issuance of an instruction on the affirmative defense. We disagree. Such testimony in no way can be construed as evidence ...