APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE THOMAS P. DURKIN, JUDGE PRESIDING.
Released for Publication July 14, 1994.
Cousins, Jr., Murray, Mcnulty
The opinion of the court was delivered by: Cousins
JUSTICE COUSINS, JR. delivered the opinion of the court:
Defendant, Robert Whitaker, was charged by indictment with sexually abusing an 11 year old boy, A.S., on or about March 31, 1991. Following a jury trial, defendant was convicted of aggravated criminal sexual abuse and sentenced to four years' imprisonment. On appeal, defendant argues that the trial court erred in instructing the jury that the State was not required to prove that he committed the offense charged on the date stated in the indictment.
The following evidence was adduced at trial. C.S. (Mrs. S.) testified that in March 1991, she and her husband lived in Round Lake Beach, Illinois, with their five children: A.S., E.S., M.S., Jy.S. and J.S. Defendant, who was a friend of the family, moved in with the S. family two to three years prior to the date of the charged offense. At the time, Mrs. S. worked two jobs and Mr. S. was in and out of a veteran's hospital. Since defendant frequently babysat for the children when Mr. and Mrs. S. were not at home, he did not pay room and board. Defendant took the children out to dinner, to Cub games and other outings. He also frequently took the children to his mother's home at 4938 N. Winthrop in Chicago on the weekends.
Mrs. S. testified that there were three bedrooms in the S. home. She and her husband slept in one room with their infant son, J.S. Her two daughters, E.S. and M.S., slept in a second room, and the remaining boys, A.S. and Jy.S., slept in the third room with defendant. According to the S. family, defendant and A.S. slept in one bed and Jy.S. slept in the other. Mrs. S. testified that they had initially intended for A.S. and Jy.S. to sleep in the same bed, but that pattern never developed.
In February of 1991, Mr. S. enrolled in a police academy in Texas and moved to Texas with his youngest son, J.S.; Mrs. S. and the other four children planned to join him in April. During the weekend of March 22-24, Mrs. S. was packing in anticipation of their move to Texas.
On Friday, March 22, 1991, Sue Peasly, a friend and neighbor, threw a going away party for the S. family. All of the members of the S. family who were still living in Round Lake Beach attended the party. After the party was over, the S. children went with defendant to his mother's home in Chicago. Mrs. S. and Ms. Peasly testified that all of the children left with defendant on Friday night, and that the two girls returned by train to Round Lake Beach on Saturday morning. However, A.S. testified that he and Jy.S. went to stay atdefendant's mother's house, but his sisters stayed home to help his mother pack. That weekend, defendant's brother John Nichols (John), John's girlfriend Darla Robinson (Dana), their two daughters, defendant's mother and her boyfriend all stayed at defendant's mother's home as well.
A.S. stated that on Saturday, March 23, 1991, he slept on a bed in the kitchen with defendant. He testified that defendant "started messing" with him. He explained that defendant "started rubbing [his] penis and [his] butt." A.S. stated that he was wearing pants and underpants at the time and defendant put his hand underneath both garments.
A.S. testified that this was not the first time that defendant had touched him in this manner. The first time it had happened, A.S. was eight years old, and defendant had lived at the S. residence for approximately one month. A.S. stated that throughout the following three years, defendant had touched him almost every night. He explained that he never told anyone because he was scared that defendant would do something to him. Several times when defendant was rubbing him, he tried to pull defendant's hand away and defendant slapped him in the face. Frequently, before defendant began touching him, defendant would promise to take him places and buy him things, such as Nintendo games.
On March 25, 1991, A.S. and Jy.S. were with defendant in his candy store when the police came and arrested defendant. (Defendant was arrested in connection with charges independent of the ones in the case at bar.) The officers took him and Jy.S. with them to the station. While he was there, A.S. spoke with Officers Peggy O'Conner and Dale Altman. At first, he told them nothing, but later he told them what had happened between him and defendant. He explained ...