APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
512 N.E.2d 358, 159 Ill. App. 3d 164, 111 Ill. Dec. 242 1987.IL.1107
Appeal from the Circuit Court of Cook County; the Hon. Howard L. Fink, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. QUINLAN, P.J., and BUCKLEY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
On appeal, defendant contends that the evidence was insufficient to sustain the conviction, and that the trial court committed the following errors: (1) it admitted into evidence other alleged acts of indecent liberties with other children; (2) it allowed the State to amend the indictment the day before jury selection and denied defendant's motion for a continuance; and (3) it refused to instruct the jury on lesser included offenses. For the reasons that follow, we reverse and remand for further proceedings.
At the time of the offense in May of 1984, the complainant, A.L., who was seven years old, lived in Streamwood with her parents, her brother, M.L., 13 years old, and her sister, E.L., 11 years old. Defendant, who lived one house away from A.L., was 47 years old and lived with his wife and two sons, ages 15 and 18.
At trial, A.L. testified that on May 24, 1984, she went over to defendant's house after school at around 4 p.m. to play with his computer in his den. She alleged that defendant showed her a Hustler magazine while she was sitting on a stool in his den. He then squatted, pulled down his pants and placed his penis on the magazine, which was opened up to a certain page. He asked her if she wanted to fuck and have babies, to which she replied, "No." Defendant then began rubbing A.L.'s left thigh.
A.L. further testified that prior to the above incident, on other occasions defendant had shown her pictures similar to those in Hustler, had exposed himself to her and had touched her thigh about four or five times.
In addition, A.L. testified that on Saturday, May 26, 1984, two days after the incident in defendant's den, she went over to defendant's house with two friends who were brothers and were approximately ages 6 and 8. Defendant was in his garage, which was open. When A.L. asked defendant for the magazine she had seen previously, defendant gave her the Hustler magazine from two days earlier. The three children went back to A.L.'s house and the brothers looked through the magazine, which A.L. subsequently gave to her brother.
Defendant testified that one day in May 1984, A.L. came into his garage holding a Hustler magazine which had been on a bookshelf in his garage. A.L. said that she wanted it for her brother, but defendant took it away from her. Two days later, the same thing occurred. A.L. returned a third time, took the magazine and ran out of the garage with it. Defendant told her, "All right, but don't let your mother see it or I'll be in trouble."
M.L., A.L.'s brother, testified that sometime in May of 1984, A.L. gave him a Hustler magazine which he looked through and took with him to his grandparents' house in Chicago. He stayed with his grandparents for about one week to 10 days. When M.L. returned home he spoke to his parents about the magazine. They spoke to A.L. and the following day, notified the police.
M.L. also testified about sexual encounters he had with defendant beginning when M.L. was six years old and continuing until he was 12 or 13. In addition, three other neighborhood children, one of whom was A.L.'s sister, testified about similar experiences that they had with defendant over the years. Before trial, the court denied defendant's motions in limine to prevent those children from testifying as to those other acts. The court also denied defendant's renewed motions before each child testified.
On June 16, 1984, defendant was charged by a complaint with the misdemeanor of contributing to the sexual delinquency of a child for his alleged lewd fondling of A.L. on May 21, 1984. Defendant was arrested on June 19, 1984, at his home pursuant to the complaint. In a post-arrest statement to the police, ...