Appeal from the Circuit Court of Cook County; the Hon. Earl
Strayhorn, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
Following a bench trial in which he was found guilty of taking indecent liberties with a child (Ill. Rev. Stat. 1981, ch. 38, pars. 11-4(a)(2), (a)(3)), defendant was sentenced to five years' imprisonment. He appeals, contending that his guilt was not established beyond a reasonable doubt.
We affirm, and pertinent to our disposition are the following:
The victim, D.J., a nine-year-old boy, testified that he lived with his mother, two sisters and his mother's boyfriend; that on March 30, 1983, he fell asleep on the couch in the living room after watching defendant do some card tricks; that his mother awakened him and sent him to bed at about 8 p.m.; that he went to his bedroom and lay down on his bed fully clothed and fell asleep on top of the covers. He woke up when the defendant came in, but fell back asleep. Defendant woke him up again and took his clothes off, including his underpants. Then defendant took off his own clothes and got into bed with him, holding him close to him with one hand on his mouth and the other around his waist. Defendant then tried to put his "thing" in his butt. For the next 15 minutes he felt the defendant's hard "thing" by his butt, and the defendant kissed him on the side of his jaw five times. He noticed alcohol on defendant's breath. After about 15 minutes, the defendant got up and went to the adjoining bed, which was 18 inches away, and fell asleep. D.J. further testified that when he became sure that the defendant was asleep, he got up and went to the bathroom. Then he went to his mother's bedroom, which was 15 feet away, and told her that the defendant took off his socks, shirt, pants and underpants and tried to put his "thing" in his butt. She told him to lie down, and, after she thought about it, she got up and went to the telephone across the street and called the police. There are no doors on D.J.'s bedroom or his mother's bedroom. He admitted that he made no attempt to stop the defendant's actions, nor did he object to defendant's undressing him, nor did he fight him off when the defendant attempted to put his "thing" into his butt. He admitted the defendant never threatened him. He also admitted he was angry with the defendant for his refusal to teach him a card trick.
D.J.'s mother substantially corroborated his testimony, adding that the defendant is a brother of her boyfriend and that he had just come in from Memphis to seek a job. She was in her bedroom with her boyfriend when D.J. came in and related the occurrence. She stated that it took several moments for her to awaken and understand the full meaning of what her son had said, then she called the police. She took D.J. to the hospital for examination. It was stipulated that there were no visible injuries to him.
Defendant testified on his own behalf that when he entered the bedroom and saw D.J. sleeping in his clothes he woke him and told him to take his clothes off; that D.J. took all but his underwear off and got under the covers; that he then undressed himself and went to sleep in the adjoining bed after he finished smoking his cigarette. He was later awakened by the police and denied doing anything. He admitted that he had three or four shots of whiskey that night.
Defendant contends now, as he did in the trial court, that he was not proved guilty beyond a reasonable doubt, and that the evidence was not clear and convincing nor sufficiently corroborated.
He urges this court to place itself in the position of reviewing the factfinder's determination of the credibility of the witnesses. He points to discrepancies in the testimony of D.J. and his mother and his own testimony. He maintains that D.J. first said that defendant stuck his "thing" in his butt, but later said he attempted to stick his "thing" in his butt. He further notes that D.J. did not cry out or struggle to avoid the act and that the medical report did not indicate any trauma from the purported act.
Our supreme court has held that force is not material to the offense of taking indecent liberties with a child and that acquiescence or failure to resist is no defense to such a charge. (See People v. Guertin (1930), 342 Ill. 99, 104, 173 N.E. 824.) Even consent by the victim is irrelevant (People v. Mullen (1980), 80 Ill. App.3d 369, 379, 399 N.E.2d 639), and anal penetration is not necessary to secure a conviction (People v. Oliver (1976), 38 Ill. App.3d 166, 170, 347 N.E.2d 865).
Defendant maintains that because the victim D.J.'s testimony was not clear and convincing nor sufficiently corroborated it was not sufficient to sustain his conviction.
We disagree with defendant's contention. It is well established that it is for the trier of fact to determine the credibility of witnesses and the weight to be given their testimony, and where the evidence is conflicting a court of review will not substitute its judgment for that of the trier of fact. People v. Akis (1976), 63 Ill.2d 296, 347 N.E.2d 733.
The trial court here observed that D.J. was a nine-year-old boy; that the defendant was a grown man; and that D.J. promptly told his mother of the defendant's conduct. Before permitting him to testify, the trial judge examined D.J. as to his understanding of the importance of the oath which he was asked to take and the obligation to tell the truth, and the judge concluded that he was competent. The trial court observed the demeanor and heard the testimony of all the witnesses, considered the forensic evidence, and concluded that the State's evidence was sufficient to prove defendant's guilt. Our review of the record does not disclose any basis to indicate that the trial court's evaluation was erroneous.
The cases relied upon by defendant are distinguishable. People v. Kolden (1962), 25 Ill.2d 327, 185 N.E.2d 170, involved a complainant who reported the indecent act the day after it allegedly happened but denied the act the same day; she testified that defendant touched her "privates," but admitted on cross-examination that she did not know what "privates" meant, nor did she know where defendant had placed his hand. In People v. Morgan (1977), 69 Ill.2d 200, 370 N.E.2d 1063, the complainant waited two days to report an alleged indecent act, told several inconsistent versions to different people at different times, and, according to her schoolteacher, had a history of telling wild stories. The court there concluded: "Where the complainant's testimony is substantially impeached by prior inconsistent statements and a history of fabrication, we will not sustain a conviction based on other testimony which is at best speculative." (69 Ill.2d 200, 208.) By contrast, D.J.'s testimony here was plausible, straightforward and consistent. A reading of this record which finds circumstances similar to Kolden or Morgan is, in our view, fanciful.
The judgment of the circuit court of Cook County is therefore affirmed. Pursuant to People v. Nicholls (1978), 71 Ill.2d 166, 374 N.E.2d 194, we grant the State's request that defendant be assessed $50 as costs for the State's defending this appeal and incorporate it as part of our judgment.
JUSTICE PINCHAM, dissenting:
It is the province of the trier of fact to determine the credibility of witnesses and to weigh the evidence. It is likewise the duty of this court to review the evidence, and, if it is improbable, unsatisfactory or insufficient to establish a defendant's guilt beyond a reasonable doubt, to reverse the conviction. A review of the evidence in this case reveals that it is improbable, unsatisfactory, unclear and unconvincing, uncorroborated and unsubstantiated and does not establish the defendant's guilt of indecent liberties with a child beyond a reasonable doubt. I therefore dissent. The complete pertinent testimony of the three trial witnesses follows.
D.J. testified on direct examination that he was nine years old, in the fourth grade and on March 13, 1983, he lived at 901 West 51st Street with his mother, father, two sisters and Horace Hunter, the defendant. On that evening he was asleep on the living room couch, and about 8 o'clock his mother woke him up, he went into his bedroom and went to sleep. He did not undress before he went to sleep. There were two beds in the bedroom, and Horace slept in one of them and he slept in the other. After he went to sleep, the next thing he remembered was that Horace came into the room and woke him up. He went back to sleep. He was still dressed. Horace woke him up a second time and took off his socks, shirt, pants and underpants. Horace was dressed at that time, and Horace then took off his own clothes:
"Q. When Horace took off his clothes what, if anything, did Horace do next?
A. He put his thing in my butt. He tried to.
Q. Now, were you in bed at the time that Horace took off your clothes?
Q. Did Horace, when he did that to you, get into your bed or did you get into his bed?
Q. And when you say Horace put his thing, tried to put his thing into your butt, what, if anything, did he do? How did he get into your bed to do that? Explain it to the Court.
A. He held my mouth and did like this and put his hand under my waist."
When Horace had his hand over D.J.'s mouth and his other hand over his stomach, he felt something at his butt. It felt like "his thing and it was hard." He was in that position 15 minutes. Horace kissed him five times on the jaw, and he noticed that Horace had liquor on his breath:
"Q. When Horace finished this 15 minutes that you are talking about, what, if anything, did Horace do?
Q. Is that the other bed in the room?
A. I waited until he went to sleep.
Q. When he fell asleep, what did you do?
A. Got up and went to the bathroom.
Q. After you went to the bathroom, where did you go?
His mother was in another room in the apartment and he told her that Horace took off his socks, pants, shirt, underwear and tried to put his thing in his "butt":
"Q. And what did your mother do after you ...