People v. Morgan , 44 Ill. App. 3d 730 ( 1976 )

Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

Defendant, Donald Morgan, was charged by indictment filed in the circuit court of Perry County with the offense of indecent liberties with a child. Following a bench trial, the trial court found defendant guilty as charged and sentenced him to four to eight years imprisonment. Defendant appeals the judgment entered by the trial court.

Defendant first contends that he was not proved guilty beyond a reasonable doubt.

The prosecutrix was seven years old on Thursday, March 14,1974, the date of the alleged incident. At trial, she testified that during the evening on that date, defendant was at her home, drinking beer and talking with her mother and stepfather. At around 8:30, she dressed in a nightgown and went to bed. According to the prosecutrix, sometime thereafter, defendant came into her room and woke her up. He told her to get out of bed and she complied. He then asked her if she wanted to go out for a ride but she refused. She stated that defendant ordered her to walk into the living room and lie down on the floor; he then pulled down her underpants and kissed her in the vaginal area. On cross-examination, the prosecutrix stated that the first person she had told of the alleged incident was her grandmother, who was told of it two days after the alleged offense, on Saturday, March 16, 1974. She stated that she could not remember telling her schoolteacher. It was also brought out on cross-examination that at a preliminary hearing she had stated that she had not been wearing underpants on the night of the alleged incident.

The mother of the prosecutrix testified that on March 14, 1974, after supper, defendant visited her and her husband. They drank beer for an hour until defendant fell asleep on a couch. After putting her daughter to bed, unsuccessful attempts were made to awaken defendant. He was eventually left sleeping on the couch when the mother and her husband themselves went to sleep. The next morning, when the witness got up, she noted that defendant was gone. She awoke her daughter and sent her to school. The prosecutrix did not tell her of the incident. The stepfather of the prosecutrix gave essentially the same testimony as had his wife.

The prosecutrix visited her grandmother on the weekend of March 16-17, 1974. The grandmother testified at trial that while giving the prosecutrix a bath on Saturday evening (March 16, 2 days after the alleged offense), she noticed that the child’s vaginal area was red and irritated. The grandmother was not permitted to testify to what the child stated caused the redness. On Monday, March 18,1974, the prosecutrix was brought to a medical doctor for an examination; however, the doctor did not testify at trial, although he had testified at the preliminary hearing.

For the defense, Police Officer Michael Bragg testified that on March 23,1974, he was called to the mother and stepfather’s trailer home where he was told that on March 21, the prosecutrix had been molested by defendant. The stepfather then went to the police station where he signed a complaint alleging that the incident at issue took place on March 21 rather than on March 14.

The second grade teacher of the prosecutrix testified that sometime during March, 1974, the prosecutrix told her of the incident at issue. The witness stated that she was told by the child that an Allan Miller had attempted to have sexual intercourse with the prosecutrix but that the child had screamed for her mother and that the police had then been called. The teacher immediately informed her principal of the child’s story but had not contacted the police since; according to the child, they had already been contacted. The witness also testified to other conversations she had had with the prosecutrix. At one time the child had stated that her “real father was ground up like hamburger,” and on another occasion she told of her mother being missing and that she was going to find her. On cross-examination, the witness stated that although she did not think that the prosecutrix had lied to her, the stories were “pretty wild.”

The defendant then took the stand and denied being in the presence of the prosecutrix on or about March 14,1974, and specifically denied all the allegations made by the prosecutrix.

In rebuttal the prosecutrix testified denying that she had told her teacher that her father had been ground up like hamburger and she denied ever stating that Allan Miller had tried to do anything with her. She stated that she had rarely told her teacher about things that had happened at her home although she admitted telling the story of her mother being missing.

The cause was taken under advisement on September 24, 1974. On October 31, 1974, more than five weeks later, the court found the defendant guilty, after stating that:

“* #. # testimony of the little girl was quite definite, certain ° ° °. The Court further feels that there was corroborating evidence presented consisting of the physical appearance of the little girl on the Saturday evening following the Thursday night on which this is said to have happened * * *. The defendant testified in his own behalf, called no witnesses * 6

The charge of indecent liberties with a child is an accusation easily made, hard to prove, and even harder to disprove by the party accused. It is therefore well established that where a conviction for taking indecent liberties is based on the testimony of a child, the evidence must be corroborated or otherwise be clear and convincing in order to sustain a judgment of guilt. (People v. Nunes, 30 Ill. 2d 143, 195 N.E.2d 706; People v. McGrath, 28 Ill. 2d 132, 190 N.E.2d 746.) In addition to the child’s testimony, there was evidence that two days after the alleged offense, the grandmother first noticed that the child’s vaginal area was red and irritated. The trial court found that the child’s physical condition was evidence corroborating her testimony. However, we do not believe that this evidence serves to corroborate the testimony of the prosecutrix. It appears improbable that the alleged acts complained of by the prosecutrix might cause a persisting redness and irritation in the vaginal area. In addition we find no evidence in the record supporting such a conclusion. The physician who examined the prosecutrix after the condition was first noticed did not testify at trial. We note, however, his testimony at a preliminary hearing that the irritation could have resulted from a wide variety of causes involving any sort of friction. He also stated that the child’s vaginal area appeared to be practically normal. While there was testimony corroborating the child’s testimony that defendant was present in the trailer for some portion of the night in question, we find no evidence corroborating the child’s testimony of the alleged act itself.

The State argues that the child’s testimony was nonetheless clear and convincing. After a careful review of the record, we do not agree. Despite the propinquity of the living room where the offense allegedly took place and the parents’ bedroom, the child failed to cry out for her parents’ help. This circumstance was unexplained in the record. Of greater significance, the record shows no reason why the prosecutrix had not informed either her mother or grandmother of the alleged incident until two days after it occurred. The mother testified that on the morning following the alleged offense, her daughter had made no complaint to her and had not acted unusual. Under the circumstances of this case, this delay in complaining to her family appears entirely unreasonable. Also unexplained is the testimony of Police Officer Bragg that on March 23,1974, he was called to the trailer home of the prosecutrix and informed that the alleged offense had taken place on March 21 rather than March 14. Moreover, the testimony of the prosecutrix was discredited by the testimony of her second grade school teacher. She testified that the child had given her a different description of the incident and had named a different perpetrator of the crime. The teacher also testified to other stories the child had told her showing a propensity by the child to fabricate. The veracity and the credibility of the prosecutrix was clearly brought into serious question by this disinterested witness whose testimony remained unshaken during cross-examination.

Although the credibility of witnesses and the weight to be given their testimony is primarily a question for the trial court, a reviewing cotut is charged with a duty on a charge of indecent liberties to reverse the conviction when the evidence taken as a whole does not create an abiding conviction that the defendant is guilty of the crime charged. (People v. Thornton, 132 Ill. App. 2d 126, 268 N.E.2d 887; People v. Falk, 121 Ill. App. 2d 1, 257 N.E.2d 175.) In the case at bar, the record affirmatively indicates that the trial court did not remember or consider the crucial testimony of the schoolteacher and the testimony of the police officer. Five weeks after hearing the evidence, the court stated as part of its findings that the defendant “called no witnesses.” This circumstance in and of itself may have required a new trial. (People v. Bowie, 36 Ill. App. 3d 177, 343 N.E.2d 713.) However, since the evidence as a whole does not create an abiding conviction that defendant is guilty of the crime charged, we reverse the judgment of the circuit court of Perry County.

In light of our holding we need not consider the other issues raised by defendant.

Judgment reversed.

CARTER, P. J., concurs.