*1 in trust took this remainder plaintiffs accomplish has this interest charitable purpose assignor, been divested. reasons the decision of
For the aforementioned affirmed. court the circuit court is reversed and appellate reversed; court circuit court Appellate affirmed. MR. took no in the considera- RYAN part JUSTICE tion or decision this case.
(No. 44203. ILLINOIS, OF OF Appellee, THE PEOPLE THE STATE MUELLER, v. RICHARD Appellant. Rehearing April 1973. denied
Opinion January 1973. filed *2 DAVIS, JJ., SCHAEFER and dissenting. GOLDSTEIN,
PAUL E. of by Chicago, appointed court, for appellant. SCOTT, General, WILLIAM of Attorney Spring- J.
field, HANRAHAN, and EDWARD V. of State’s Attorney, ZAGEL, General, B. Assistant Chicago (JAMES Attorney MAHONEY, ELMER C. KISSANE and TERENCE J. Assistant State’s of for the Attorneys, People. counsel), CHIEF delivered
MR. UNDERWOOD JUSTICE of the court: opinion court, circuit a bench trial in County Cook
Following sexual was convicted of deviate defendant Richard Mueller and. sentenced to concurrent terms of assault burglary to 10 and 1 to 5 years imprisonment Court for the First District Appellate respectively. leave to affirmed Ill. and we App. granted 2d (131 10), appeal. the State
Defendant failed prove argues crime element of force of deviate essential assault; that was certain received inadmis- testimony he his to counsel sible was denied hearsay; right an and that out-of-court identification procedure; during had no basis his in-court identification the prosecutrix confrontation. of a pretrial independent suggestive 19, 1967, sisters In Nancy early morning July in the their bedroom Lemke were Cindy asleep Avenue in Lemke home on South Chicago. Harding bed; also shared the lower bunk of double-bunk two girls in the children’s bedroom were an older brother sleeping sister on a on the bunk and a single younger separate upper hours, six years bed. Sometime Cindy, pre-dawn their the door of awoke and saw the defendant pass age, room; bedroom as he from the kitchen to the went dining seven, later, was A short while Nancy, aged asleep. defendant entered the and awakened children’s bedroom her, her then down fondled Nancy; pulled panties, an oral sex act her. The was defendant performed upon minutes; the bedroom for about ten the occurrence during was awake and in bed next to Nancy. Cindy sitting up left, After defendant went to the door Cindy their see if he bedroom and into the kitchen to peeked still there. saw that defendant had also They they gone; observed their father’s trousers on the kitchen floor and his wallet on the kitchen table. The back went lying girls *3 to later the incident to their when sleep, parents reporting arose at about seven o’clock. family
On the kitchen that entering morning girls’ parents discovered the outer rear to their home door standing window; as a kitchen that cash also found they open, had taken from that a been two wallets and wristwatch and electric shaver were After with Nancy missing. talking their summoned Shortly Cindy, parents police. after the Lemke returned with interviewing family, police defendant, who was at his residence several picked up doors identified him as the who had away. Nancy person entered the bedroom earlier that Both Nancy morning. defendant, were with whom called they Cindy acquainted “Dickie,” friends of his sister. and were Defend- younger 18, ant, then mother to had been by employed girls’ with them on occasions. babysit previous Defendant testified in his own behalf that he had been driven home from his as a his by job janitor employer,
Robert and that had arrived at his Velasquez, Harding Avenue residence between 5:00 and 5:30 A.M. He denied been Lemke home at time that having any morning. Defendant was convicted under section of the 3(a) 11 — Criminal 1967, Code of 1961 38, Rev. Stat. ch. (Ill. par. which 3(a)), provides: 11 — Assault, “Sec. 11—3. Any person Deviate (a) Sexual age who, of 14 upwards by force or force, threat compels any person of perform other any submit act of deviate sexual conduct commits deviate sexual assault.”
“Deviate sexual conduct” defined the preceding 38, section of the Criminal Code Rev. Stat. ch. (Ill. par. thusly: 2), 11 — “Sec. Deviate Sexual ‘Deviate 11—2. Conduct. sexual
conduct’, Article, purpose for the of any this means act of gratification involving organs person the sex of one and the mouth or anus of another.” Defendant there has been no intro- evidence argues force,” duced either “force or threat of tending prove the statute. To this contention the State required that because of the size responds great disparity physical between defendant and Lemke that threat age of force was in his actions. The State stresses that implicit consent, victim’s made her of age legally incapable the committee comments section citing accompanying “Thus, 11—3: from protection everyone aggression, children abuse their protection immaturity, from from affronts protection public open standards of behavior basis generally accepted provide the code in this area.” adopted framing provisions ch. (State’s par. p. emphasis.) (S.H.A., 369.) 11— However, a more these citation of comments complete are demonstrates addressed they generally *4 several Criminal Code sections with deviate sexual dealing conduct and not to section 11—3 in The particular. material out- immediately preceding passage quoted lines the scheme concerned with deviate sexual statutory to deviate sexual conduct “The three activity: approaches First, another are as follows: compelling generally is, a kind in a sexual as deviate act unique engage rape, as such is of criminal punishment and battery deserving a Second, child is similar conduct involving (sec. 3). 11— are other acts on the same likewise proscribed grounds 11—4 victimize immature which sexually (secs. Third, acts, acts sexual and certain deviate prelimi- 5). 11— have an thereto, in such a that they nary place performed immediate upon public general- disturbing impact are The comprehen- ly, proscribed (sec. 9).” (P. 369.) 11— various sive devised by plan legislature proscribe reserves to those forms of sexual conduct only aberrant force situations actual or threatened imposition involving for affirmative of a strict without penalty provision sections in clear contrast to those defense. This is affirmative either lessened particular providing penalty defenses, a nonviolent sections are based on which evidence this of the victimization presented young. nor of actual force threat case neither supports finding force; witness nor does testimony complaining In the establish the fear or coercion State. suggested by section 11—3 absence of a conviction under such proof, the conviction stand, cannot and we reverse accordingly for deviate assault. consid- conviction necessitates remaining burglary He
eration of defendant’s other error. allegations at asserts of certain trial which testimony complains defense cross-examination by On hearsay. prejudicial counsel, Lemke following Cindy responded ques- tion: Now, happened after top upstairs? floor what
“Q. A you Dickie did left? What do? My my up. up A. told dad got got I dad said, bedroom, ‘Maybe my in our dad Dickie was ”
we’ve been robbed.’ not no the answer may Counsel made motion to strike 3 Ill.2d v. now Henry complain. (People (1954), *5 194 Defendant contends that
614.) on following exchange direct examination counsel between the State and Lemke was likewise Nancy hearsay: this,
“Q. you your parents Did talk to about day? next
A. Yes.” no or motion to strike was made Again objection by defense and we will not consider whether it constitutes an inadmissible statement. hearsay
Defendant next that he entitled to was argues repre- sentation an he when by attorney Nancy’s brought 19, home on the by 1967. police July morning However, to counsel at attaches after right lineup only the initiation criminal adversary judicial proceedings. 682, 688, v. Illinois 2d 406 U.S. 32 L. Ed. Kirby (1972), 411, 417, 92 S. Ct. 1882. the defendant that
Finally, contends the in-court identification of him Lemke was a result of their by Nancy confrontation on the of his arrest. With this we morning cannot The Lemke were well with agree. girls acquainted defendant to the events of 19 and their prior July to observe him was substantial. Where the opportunity crime, identified is to a known witness person prior the identification that is not witness influenced by by any v. Robinson confrontation. People pretrial (1969), 375; Ill.2d v. Nelson 40 Ill.2d People (1968), 151. of conviction for is affirmed. judgment burglary
Reversed in part part. affirmed SCHAEFER, MR. dissenting: JUSTICE In order to find the defendant guilty any offenses with which he was it is charged, necessary believe a reasonable doubt that on a beyond early July outside,” it when “was not dark but was morning really the defendant used a small ladder “starting get light,” of a climb window into home through neighboring him, all of and that once whose members knew family, house, the father’s moved he walked inside through he kitchen where room to the from the trousers dining floor; into he then went on the them threw ten minutes and he remained for where children’s bedroom sat Cindy up while the sexual acts upon performed he left watched, when in the same bunk bed razor, as well and electric the father’s watch stole the mother. the father and the wallets of both from money is its improbability story inherently improbable, contradictions the existence serious underscored *6 witnesses. testimony prosecution’s never “done had testified that defendant Nancy occasions when before,” that on the to her anything her brother and for her and he had served as sitter baby in bed. sisters, he television while were they had watched brother, Robert: then asked about the defendant’s She was ever to you? Has Robert done anything “Q. Yes. A. What did Robert do to you?
Q. then the Well, I went to call them and A. And home, to the show. weren’t went they girls sister, in the home, Sue, was down he was his he a hold with her And had basement girlfriend. he And stretch between my says my pants legs. said, And I T are you your ‘Why covering legs?’ he me have a cold.’ And said ‘Let see your peach,’ it?’ said, he I feel I said and I no. Then ‘Can says no. And then did.” had her mother what Robert testified that she told
Nancy done so. done to her. But her mother denied that she had left, that after the defendant “I testified Nancy just me.’ hollered come down side and with ‘Cindy by my sleep She said all We fell and she did. But Cindy right, asleep.” she did testified that not back And go sleep. response she “Did back Nancy go sleep,” question, said, there because answered: “No. She ‘Stay Cindy, up, ” be house.’ somebody might “**'* asked, ever talked to When was have you Nancy mother your about what were here in you say going court?,” answered, she “Not all the time.” About how times would
“Q. many you say have talked you to her?
A. Ten.” mother asked, Nancy’s “Did ever talk to you them about what their would be in court?” testimony She “No, answered: I did not. I did let’s ask them once or say twice after it if shortly see come happened, would they with up right did not thing again, they change their story.” To see if would
“Q. they come with the up right story?
A. If were they with the coming up right thing. Now, did talk to
Q. you about ten times about her what here in testimony would be court?
A. No. I wouldn’t I did. It has been say - revealed in front of repeated?] [sic] [reviewed? her. But as far it, to her on no.” talking Even without considering testimony defendant’s and the employer members of the am defendant’s I family, not satisfied that the defendant was proved guilty beyond *7 a reasonable doubt of offense. any DAVIS,
MR. also dissenting. JUSTICE I dissent from the insofar majority as it opinion reverses the conviction for deviate sexual assault. The initial is whether the question facts outlined in the law, under the constitute “force or majority opinion, threat of force” under section of the Criminal 3(a) 11 — 1967, 38, Code. Ill. Rev. Stat. ch. par. 3(a). 11 —
I do not view the use of the word “force” statute to mean that there must actual or be necessarily Rather, violence. “force” includes the physical compulsion of other to act of submit any any person perform
197
is
the
conduct
submitting
where
person
deviate
thereto;
lack of consent.
it denotes
of consenting
incapable
in each
must be determined
such force is
Whether
present
involved.
of the
facts
the nature
(People
case by
particular
the
88,
In
case
victim
Ill.2d
this
v.
32
Smith
92.)
(1965),
child;
was
from
a
she
awakened
sleep
was
seven-year-old
as a
man,
whom she knew
a
18
of
years
young
age,
victim,
of the
tender
age
neighbor
baby-sitter.
been
fact
that
the defendant had
with the
coupled
a
and her
associated with the victim
family
neighbor
control
had
a
of
exercised
type
parental
baby-sitter,
her,
intimidation
establish force by
over
was sufficient to
victim consent.
and the
legal incapacity
296, a
2d
In
v.
84 Ill.
Riley
People
(1967),
App.
had
a man who was
been
seven-year-old
raped by
girl
friend
evidence indicated
family. The
her
defendant had been
cards with the
playing
prosecutrix,
then
sister and brother. The defendant
asked
prosecu
took her to
Instead,
him.
trix to
to the store with
go
house,
down,
asked
lie
and then had
another
her to
Later,
run
and the
intercourse
her.
she tried to
away
with
her
her. In
to defendant’s
defendant
and hit
answer
caught
not
the use of
the evidence did
establish
challenge
court,
300,
force, the
on
stated:
page
there must
“To affirm a
of forcible rape
finding
act of
be evidence that
intercourse
the will
forcibly
against
performed
Faulisi,
457,
25 Ill.2d
185
v.
prosecutrix. People
stated, without
N.E.2d
or otherwise
v.
4
consent
prosecutrix. People
Fryman,
was seven
Ill.2d
under 11—4 section of the Criminal Code Rev. Stat. (Ill. ch. entitled “Indecent Liberties with par. 4), 11 — Article Child.” 11 of the Criminal Code 1961 deals with sex offenses. The indicate Committee Comments legislature specifically sought protect young immature from sexual advances of older persons by found in 11—4 sections Section 11—4 11—5. language provides part: Any person age upwards
“(a) of the of 17 who performs any or submits to acts with a following age child under of 16 commits indecent liberties with a child:
(2) Any act of deviate sexual [*] [*] [*] conduct; or ***” As out are certain there pointed majority, affirmative defenses available under section which 11— are are: not available under section 11—3. They
“(b) It shall be an affirmative defense indecent liberties with a child that: reasonably
(1) The accused believed the child was of the upwards or age giving of 16 at the time of the act rise to charge; or prostitute; child is a (2) The previously child has been married.” (3) The It is conceded that the defendant in case was over this *9 the 17 the under the age witness complaining of 16 one 7. Not of the affirmative age years, namely defenses under available section 11—4 has any possible to this case. The be may which application penalty 3, under section section the under which the imposed 11— is less than that which be charge brought, may under section 11—4. Under these circumstances imposed the failure of the State the more to under prosecute statute would not be error. appropriate prejudicial Were the for force not “statutory” age requirements or there were that affirmative present, the any possibility defenses under available, section 11—4 I were would not then a conviction a force uphold without under showing the standards referred to in v. Faulisi People (1962), 2d Ill. 461.
I do not with the the that agree majority present scheme and statutory committee comments thereto com- mand that or actual threatened force mean must some- than the force thing greater as described in “statutory” v. Section People Riley. relating rape, requires 11— that the act be force her “by Section will.” against assault, to deviate sexual that relating requires 11— act be force or of force.” threat The committee “by comments to section 11—3 state that the section “is intended to state of the force generally equivalent requirement statute rape.” rape relating specif- ically force her provides “by phrase against will” includes: unconscious;
“(1) Where the female is or (2) Where mentally deranged the female is so or deficient she give cannot effective consent intercourse.”
I do not find foregoing statutory examples of actual or force violent which the suggestion majority Rather, seems to find necessary. statutory examples seem to me be in accord with the force “statutory” said, found in v. wherein it was “A People Riley, cannot seven-year-old be to understand expected girl act, to resist nature of the let alone will against possess in an act of a her friend of Force always parents. present female, intercourse between a seven-year-old incapable male.” and thirty-one-year-old consenting resisting, under Likewise, I believe that force was present the conviction I would affirm this case. circumstances deviate assault. (No. 45171.
OAK PARK LOAN ASSO FEDERAL SAVINGS AND *10 al., et
CIATION v. THE VILLAGE OF Appellants, PARK, OAK Appellee. May
Opinion January Rehearing denied 1973. filed 1973. GOLDENHERSH, UNDERWOOD, J., WARD, C.J., and J., dissenting.