Appeal from the Circuit Court of Cook County; the Hon. Peter
N. Kamberos, Judge, presiding.
JUSTICE PINCHAM DELIVERED THE OPINION OF THE COURT:
Following a bench trial, defendant, Robert Mathis, was found guilty of contributing to the sexual delinquency of a child. (Ill. Rev. Stat. 1981, ch. 38, par. 11-5(a)(1).) He was sentenced to one year's probation, the first 30 days to be served in the Cook County House of Corrections. Mathis contends for reversal before this court that the evidence failed to prove his guilt beyond a reasonable doubt. We agree and reverse.
The State contended and presented evidence at the trial of this case that 29-year-old Robert Mathis had sexual intercourse with L.C., his 12-year-old stepdaughter, with force and against her will. If the evidence had in fact established beyond a reasonable doubt that the defendant committed the acts attributed to him by the victim, then the defendant was proved guilty of a multiplicity of felony sex offenses, i.e., rape, indecent liberties with a child, aggravated incest and sexual abuse of a child by a family member.
A male person of the age of 14 years and upwards who has sexual intercourse with a female, not his wife, by force and against her will commits rape, a Class X felony (Ill. Rev. Stat. 1981, ch. 38, par. 11-1(a)), the punishment for which is imprisonment in the penitentiary for a minimum mandatory period of not less than six years and not more than 30 years (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(3)). The extended-term provision of section 5-8-2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2(a)(2)) is inapplicable to the facts of this case.
Any person of the age of 17 years and upwards commits indecent liberties with a child when he performs with a child under the age of 16 any act of sexual intercourse or any lewd fondling or touching of the child with the intent to arouse or satisfy the sexual desires of either the child or the person or both. Indecent liberties with a child is a Class 1 felony. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-4(a)(1), 11-4(a)(3).) The punishment therefor is imprisonment for not less than four years and not more than 15 years. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(4).
When a male person has sexual intercourse with a person he knows to be his stepdaughter, he commits aggravated incest, a Class 2 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 11-10(a)(1).) The punishment for a Class 2 felony is imprisonment for not less than three years and not more than seven years. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(5).
Any male person who performs (1) any lewd fondling or touching of, or (2) any act of penetration of any object into the sex organs of his stepdaughter, under 18 years of age, with the intent to arouse his sexual desires, commits the offense of sexual abuse of a child by a family member, a Class 3 felony. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-11.1(a)(1), 11-11.1(a)(2).) The punishment for a Class 3 felony is imprisonment for not less than two years and not more than five years. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(6).
In the case before us, however, the defendant was not charged with rape, indecent liberties with a child, aggravated incest or sexual abuse of a child by a family member. Instead, the defendant was charged with a Class A misdemeanor offense of contributing to the sexual delinquency of a child. This offense provides that any person of the age of 14 years and upwards who performs any act of sexual intercourse or any lewd fondling or touching of a child under the age of 18 years with intent to arouse or satisfy either person's sexual desire contributes to the sexual delinquency of a child. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-5(a)(1), 11-5(a)(3).) The penalty for the offense of contributing to the sexual delinquency of a child is imprisonment for any term less than one year. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-3(a)(1).
The complaint in the case at bar alleged that on January 18, 1983, the defendant "committed the offense of contributing to the sexual delinquency of a child in that he, a person of the age of 14 years and upwards, performed an act of sexual intercourse with [L.C.], a person under the age of 18 years." The trial judge found the defendant guilty. The trial judge rejected the assistant State's Attorney's lenient recommendation of six months' imprisonment. Instead, the trial judge imposed the meager and more permissive punishment of probation for one year, the first 30 days thereof to be served in the custody of the Cook County Department of Corrections.
If the evidence was sufficient to establish beyond a reasonable doubt that this 29-year-old stepfather committed the act of sexual intercourse with his 12-year-old stepdaughter, by force and against her will, the defendant should have been prosecuted under the appropriate felony offenses and if found guilty, he should have been properly punished. If, on the other hand, the evidence failed to establish beyond a reasonable doubt that the defendant had sexual intercourse with his 12-year-old stepdaughter, by force and against her will, the defendant should have been found not guilty and discharged.
Before this court, the defendant unyieldingly argues that the evidence miserably failed to establish beyond a reasonable doubt his guilt of the commission of the offense of contributing to the sexual delinquency of a child. The evidence follows.
On January 18, 1983, L.C. was 12 years old and lived with her mother, two brothers, ages three and seven, and Robert Mathis, her stepfather. On that date, at about 9 p.m., L.C. was home with her mother, brothers and Mathis. She was alone in her room preparing for bed. As she was taking her pajamas out of the drawer, Mathis entered her room and told her not to go to bed. L.C. asked why, and Mathis responded, "Just don't go to bed."
L.C. then went into the bathroom, put on her pajamas and returned to her room to go to bed. Mathis entered her room with a long, brown, doubled extension cord. (L.C. indicated the length of the cord to the trial judge, who estimated the length to be "about two or three feet.") Mathis told L.C. to get out of bed and she asked, "Why get out the bed?" When Mathis threatened to hit her with the extension cord, she got out of the bed. Mathis ordered her to "Get in the front." L.C. went and sat down in the living room in the front of the apartment, where Mathis had turned up the volume of the radio and television. L.C. watched the television. Mathis went into the room L.C. described as "her mother's room," with drinks and reefers. L.C. then called her grandmother, Mary Covington.
Mathis returned to the living room and L.C. asked him, "Could I go to the bathroom?" She went to the bathroom and returned to the living room because Mathis was right behind her. Mathis said, "I don't want you to be like your aunties June and Evonia with babies." Mathis returned to the bedroom.
Mathis came back to the living room and closed the door to L.C.'s mother's room. Mathis began feeling on L.C.'s breasts, buttocks and in her vagina and told her to take off her clothes. L.C. said, "I don't want to take off my clothes." Mathis repeated, "Take off your clothes," and L.C. repeated that she did not want to take her clothes off. Mathis hit her on her breast with the extension cord. L.C. then "had to take off" her clothes, and Mathis again began feeling on her breasts, buttocks and vagina. Mathis told L.C. to go to the kitchen, and she asked why. Mathis told her, "Just go in the kitchen." She did not go, and Mathis hit her on her legs.
L.C. went into the kitchen and Mathis told her to lie down. L.C. testified that she did not want to lie down, but when Mathis hit her again, she did so. Mathis then told her to open her legs. L.C. refused until Mathis hit her again. Mathis took his pants off, lay on L.C. and inserted his penis into her vagina. It was painful, and she was moving around. Mathis told her to get up because "it was hurting." Mathis told her to go to her room, which she did not want to do, but Mathis hit her again and she did, in her pajamas.
Mathis had been married to L.C.'s mother for eight years, during which time he lived with them. L.C.'s mother and brothers were in the apartment when the incidents she described occurred. L.C. watched television in the living room when Mathis went into her mother's room, which is next to L.C.'s room.
L.C.'s grandmother and two aunts arrived while the incident was taking place. When Mathis went to answer the door, he told L.C. to put on her pajamas. Mathis opened the door and L.C.'s aunt Evonia and grandmother came to L.C.'s room. When the police arrived they took L.C. to Provident Hospital. While en route, L.C. and her grandmother talked to the police officers. L.C. was examined by a doctor at the hospital.
L.C.'s mother was in her bedroom during the entire incident with Mathis. L.C. did not talk to her mother at all that night. After the alleged act of intercourse, L.C. did not go and talk to her mother because, according to L.C., she was asleep, drunk and "high" and if L.C. said anything, "it would go in one ear and go out the other."
L.C. has not lived with her mother since this incident occurred. She has lived with her grandmother. L.C. did not have a good relationship with her mother. She testified that she would like to continue living with her grandmother. L.C. has wanted to live with her grandmother for a long time and her grandmother has also wanted L.C. to live with her. L.C.'s grandmother had even asked L.C.'s mother if L.C. could live with her instead of her mother.
"Q. You were going back to live with your mother on your birthday weren't you?
Q. When you went over to the house to see her?
A. She asked me and I told her if she moved out of the projects.
Q. Did you tell her that she had to do anything else?
A. I told her that I didn't want Robert Mathis to stay there.
Q. And then you would go back to live with her, right?
Q. If she moved out of the projects and stopped living with Robert Mathis?
Q. You told her that on your birthday, right?
L.C. had previously complained to her mother about Mathis. She had told her mother that she did not want to live with Mathis, but she did not know how many times she had told that to her mother.
L.C. had previously told lies. She knew that telling a lie sometimes helped her to get what she wanted. She had previously lied when she knew she should have told the truth, as she said that she was always supposed to do.
FURTHER REDIRECT EXAMINATION
"Q. What else did you tell your mother besides you didn't want to live with Robert? Did you tell her anything else that Robert had done to you in the past?
Q. How many times have you complained about Robert to your mother before?
A. At the time when he was raping me, three times, but I complained to her a lot.
Q. What was he doing to you before that?
A. He was doing the same thing he was doing on January 18th, he was feeling me.
Q. How many times was he feeling on you before January 18th, if you remember.
A. I don't know because he has raped me more than once.
Q. How many times before January 18th did you tell your mother that Robert ...