dissenting:
The facts in this case are clear and admit of only one conclusion; the defendant took indecent liberties with a four-year-old child. Casting aside euphemisms, the jury found that the defendant was a child molester. Yet the majority has gone out of its way to set him free. This result is both outrageous and indefensible. I dissent.
The defendant argues that his conviction must be reversed because his confession was not supported by sufficient independent proof of the corpus delicti. The majority accepts this argument and cites People v. Willingham (1982), 89 Ill. 2d 352, as the controlling case. I agree that Willingham controls, but I disagree with the majority’s application.
The rule announced in Willingham is succinctly stated:
“In summation, if *** independent evidence tends to prove that an offense occurred, then such evidence, if corroborative of the facts contained in the confession, may be considered along with the confession in establishing the corpus delicti. In such event, the independent evidence need not establish beyond a reasonable doubt that an offense did occur.” (89 Ill. 2d 352, 361.)
The independent evidence in this case consists of the testimony of Mrs. Carlson, the victim’s mother, and Officer Conrad Hlavacek. Mrs. Carlson testified that on the night of May 26, 1982, she had given her son his pajamas and observed him go downstairs to the basement to sleep. She also saw the defendant, who usually slept in the basement, follow the victim downstairs. Thirteen days later when Mrs. Carlson had occasion to examine her son, she noticed redness and swelling around the victim’s rectum. This prompted her to call the police. Officer Hlavacek, who later arrested the defendant, also noticed a reddish color around the victim’s rectum. This evidence was sufficient to compel Officer Hlavacek to pick up the defendant for questioning on the following day after which the defendant confessed to the crime.
To satisfy the Willingham test, this evidence need only tend to establish that an offense was committed. It need not be proven beyond a reasonable doubt nor even by a mere preponderance of the evidence.
The majority dismisses the evidence by arguing that the victim’s symptoms could have been caused by a number of things other than criminal conduct. However, when the supreme court requires only that the evidence tend to prove that a crime was committed, this circumstantial evidence cannot be so easily written off.
The evidence here tends to show that the defendant had anal contact with the victim. There was an opportunity for such contact when the victim went into the basement with his pajamas to sleep with the defendant. Less than two weeks later, the victim’s mother noticed some unusual discoloration and swelling around the victim’s rectum. A combination of these two events points to the conclusion that the child was sexually molested and the defendant was the perpetrator. This conclusion is not absolute, but the evidence certainly tends toward it and that is enough.
The second part of the Willingham test requires that the independent evidence corroborate the facts contained in the confession. The majority admits that the evidence in this case corresponds with the defendant’s confession wherein he admits that he rubbed his penis against the victim’s buttocks. Although the defendant denied penetrating the victim’s anus, surely the symptoms observed by Mrs. Carlson and Officer Hlavacek could have been caused by an attempt to do so.
The majority finds that the instant case is similar to the cases of People v. Lueder (1954), 3 Ill. 2d 487, and People v. Hougas (1968), 91 Ill. App. 2d 246. In my opinion, they are distinguishable.
In both cases, the defendants had been convicted of arson. The convictions were reversed because there was no evidence, apart from the defendants’ confessions and the burned buildings, which indicated that the defendants may have caused the fires.
Here, there is evidence tending to show that the victim was molested and evidence which tends to show that the defendant was responsible. Furthermore, this evidence corroborates the facts contained in the defendant’s confession. Cause and effect were adequately linked up. No so in the cases cited by the majority.
I find that the Willingham test has been satisfied. So did the judge and jury in the court below. But for the majority, it is not sufficient that after sleeping with the defendant, the victim’s body bore the marks of the defendant’s deviant activities nor is it sufficient that the defendant admitted molesting the child. The majority wants proof greater than that required by our supreme court. In doing so, the majority announces a rule which allows a pervert to molest a child anytime he pleases so long as it is in private and the child is too young to realize that he has been the victim of a criminal act and testify in court.
It is difficult to see how we can expect society to place its trust in a judicial system which repeatedly seizes upon the most trifling technicalities in order to put a confessed and convicted criminal back onto the streets. I cannot concur with this result.