Appeal from the Circuit Court of Peoria County; the Hon.
Richard E. Eagleton, Judge, presiding.
JUSTICE BARRY DELIVERED THE OPINION OF THE COURT:
The defendant, Timothy A. Lambert, was charged and convicted of one count of indecent liberties with a child. The indictment charged that he "performed an act of deviate sexual conduct upon * * *, a child under the age of 16 years, in that he placed his mouth upon the sex organ of [the child] in violation of par. 11-4(a)(2)" of the Criminal Code of 1961. The defendant appeals his conviction on grounds that the State failed to prove the corpus delicti. We reverse.
The State presented the testimony of two witnesses. The first witness was Debbie Carlson, the mother of the victim. At the time in question, the defendant, who was 23 years old, was living as a permanent boarder with the Carlson family. The family consisted of: Mr. Carlson; a daughter; the victim, a four-year-old boy; and herself. Mrs. Carlson indicated that on May 26, 1982, the defendant accompanied the victim and his family to a movie. When they returned home, Mrs. Carlson gave the victim his pajamas. She then observed the victim go downstairs to the basement. She also observed the defendant go to the basement, where the defendant slept while living with the Carlsons. The victim slept in the basement with the defendant. Approximately two weeks later, Mrs. Carlson observed a pinkish color and swelling around the victim's rectum.
The second witness presented by the State was Peoria Police Officer Conrad Hlavacek. Officer Hlavacek testified that when he observed the victim on June 8, 1982, at Proctor Hospital, he noticed that the victim's anus had a light reddish cast to it, but that since he had no medical training he could not say that what he observed was unusual. The officer also testified to statements given by the defendant on June 8 and 9, 1982. The defendant admitted to Hlavacek that on the date in question, May 26, he went downstairs with the victim. The defendant also admitted to fondling the victim's penis and buttocks, sucking on the minor's penis, and rubbing his penis against the minor's buttocks. The defendant denied that he penetrated the victim's anus. (He was not charged with any offense involving the victim's anus.)
On cross-examination, Officer Hlavacek testified that he took two statements from the defendant prior to the statement testified to on direct examination. In both the earlier statements the defendant denied any sexual activity. According to the statement testified to there was no other sexual activity with the minor before or after the incident of May 26. Following Officer Hlavacek's testimony, the State rested.
The defendant presented no evidence. The jury found the defendant guilty of indecent liberties as charged, and the jury instructions were so limited. The defendant was sentenced to an eight-year term of imprisonment.
Specifically, the defendant was convicted of one count of indecent liberties "in that he placed his mouth upon the sex organ of the victim." On appeal, the defendant argues that the State failed to prove the corpus delicti of that offense.
The relationship between a defendant's confession and proof of the corpus delicti was set forth in People v. Willingham (1982), 89 Ill.2d 352, 432 N.E.2d 861. In Willingham, the Illinois Supreme Court, after stating:
"The corroboration requirement stems from an attempt to assure the truthfulness of the confession and recognizes that the reliability of a confession `may be suspect if it is extracted from one who is under the pressure of a police investigation * * *.'" 89 Ill.2d 352, 359, 432 N.E.2d 861,
cited to People v. Perfecto (1962), 26 Ill.2d 228, 186 N.E.2d 258, and stated:
"`"The true rule is that if there is evidence of corroborating circumstances which tend to prove the corpus delicti and correspond with the circumstances related in the confession, both the circumstances and the confession may be considered in determining whether the corpus delicti is sufficiently proved in a given case. * * *"'" 89 Ill.2d 352, 359, 432 N.E.2d 861.
Mr. Justice Thomas J. Moran speaking for the Willingham court then concluded that to establish the corpus delicti:
"[T]here must be some evidence, apart from the confession, demonstrating that a crime occurred. Once the required showing has been made, the circumstances along with the confession may be considered in determining whether the corpus delicti is sufficiently proved (as well as the guilt of the defendant)." (Emphasis added.) 89 Ill.2d 352, 360, 432 N.E.2d 861.
In the instant case, the only evidence of sexual activity introduced pertained to the child's presence in the basement and the light redness and, according to the victim's mother, some swelling around the child's rectum. While it is true that this evidence corresponds generally with the circumstances of the ...