People v. Kolton ( 2006 )

Docket No. 99221.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
MARIAN KOLTON, Appellant.
Opinion filed March 23, 2006.
JUSTICE McMORROW delivered the judgment of the court,
with opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald,
Kilbride, Garman, and Karmeier concurred in the judgment and
opinion.
OPINION
On May 23, 2000, defendant Marian Kolton was charged in
a single count indictment with predatory criminal sexual assault
of a child in violation of section 14.1(a)(1) of the Criminal Code
of 1961 (720 ILCS 5/12B14.1(a)(1) (West 2000)). The
indictment alleged:
Adefendant was 17 years of age or older and committed
an act of sexual penetration upon [C.S.], to wit: an
intrusion of Marian Kolton=s finger into [C.S.=s] vagina,
and [C.S.] was under thirteen years of age when the act
of sexual penetration was committed.@
Following a bench trial, the trial court found that the
Aintrusion@ necessary for an act of sexual penetration had not
been proven beyond a reasonable doubt, but that Athe lesser
included offense of aggravated criminal sexual abuse [720
ILCS 5/12B16(c)(1) (West 2000)] was proven beyond a
reasonable doubt.@ Defendant was convicted of aggravated
criminal sexual abuse and sentenced to 90 days= incarceration
plus 4 years= felony probation.
Defendant filed a posttrial motion for reconsideration.
Relying on this court=s decision in People v. Novak, 163 Ill. 2d
93 (1994), defendant argued that aggravated criminal sexual
abuse is not a lesser-included offense of predatory criminal
sexual assault and that the trial court erred by finding him guilty
of a crime which was not charged in the indictment.
Defendant=s motion was denied and defendant appealed. The
appellate court, with one justice dissenting, affirmed
defendant=s conviction. 347 Ill. App. 3d 142.
We granted defendant=s petition for leave to appeal (177 Ill.
2d R. 315), and now affirm the judgment of the appellate court.
BACKGROUND
At defendant=s bench trial, Rolling Meadows police officer
Jason Morrison testified that, on the morning of Sunday, April
30, 2000, he and his partner were on patrol when they noticed
a green minivan parked diagonally across three parking
spaces, in the nearly empty parking lot of the Continental
Towers Business Complex at 1701 Golf Road. The officers
exited their patrol car to investigate. They checked the minivan
and, seeing no one in or near it, they climbed the 10-foot
embankment that ran along the east side of the parking lot, to
check the wooded area at the top of the embankment. As the
officers approached the top of the embankment, they saw a
young girl, later identified as 12-year-old C.S., coming out of
the wooded area, followed by an older man, later identified as
49-year-old defendant.
When questioned, defendant initially told the officers that he
was C.S.=s grandfather and that they had been looking at trees.
Officer Morrison testified that he found this explanation
implausible because C.S. appeared to be Latino, while
defendant spoke with a heavy Polish accent. Upon further
questioning, defendant admitted that he was not C.S.=s
grandfather but, rather, the owner and landlord of the building
where C.S. lived with her family. Defendant told the officers
that he had gone to C.S.=s apartment that morning to make
repairs and found that he needed to purchase some doors.
Defendant said C.S. came with him to go to the store.
Defendant claimed that his wife had been with them, too, but
that she had left them in the parking lot so that they could look
at trees while she shopped. Officer Morrison noted, however,
that there were no stores anywhere near the parking lot.
Officer Morrison testified that he took C.S. down the
embankment, where he questioned her away from defendant.
At that time, C.S. revealed that defendant had offered to give
her money if she would let defendant Ahug@ her. Defendant was
then taken into custody and both defendant and C.S. were
transported to the police station. Later that day, C.S. was taken
to the Child Advocacy Center (CAC) for a victim sensitivity
interview and then to the hospital for a physical examination.
No one from the hospital or the CAC testified at trial.
The State=s second witness was Rolling Meadows Police
Detective Gadomski, who testified that, in the evening of April
30, 2000, he questioned defendant, who was being held in
custody at the Rolling Meadows police station. Defendant told
Detective Gadomski that he was the landlord of the building
where C.S. lived with her family, that he had been going to
Home Depot to buy doors for C.S.=s apartment, and that C.S.
had agreed to come along to help carry the doors. However,
defendant gave Detective Gadomski a different explanation for
why he was in the parking lot. Defendant claimed that he
became lost going to the Home Depot and that he parked his
vehicle in the parking lot and climbed the embankment to try to
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get his bearings. Detective Gadomski testified that he asked
defendant why he took a blanket with him and defendant
replied, AI don=t know, I=ve lost my mind.@ Later, defendant
claimed that he mistakenly took the blanket, thinking that it was
a box of cigars.
The State=s last witness was C.S., who testified that, on
April 30, 2000, defendant asked her to accompany him to the
Home Depot to help him carry doors he was going to purchase
for her mother=s apartment. C.S. also testified that, after
leaving her apartment, they did not go to the store. Instead,
they stopped in a parking lot. C.S. said she asked defendant to
take her home, but he told her to be patient and to come with
him up the embankment to look at trees. At the top of the
embankment, defendant put a blanket on the ground under the
trees and told her to sit down. C.S. said she sat on the blanket
Across-legged@ and defendant sat down next to her. She
testified that defendant began to hug her, but she told him to
stop. Defendant then offered her money to let him touch her,
but she said no. Nevertheless, defendant reached over, moved
her shorts and underwear to the side and put his finger into her
vagina. After he did this, C.S. got up and asked to go home.
C.S. said that, as they were leaving, she saw two police
officers coming up the embankment.
After hearing all of the evidence, the trial judge held that
C.S. was credible, but without any medical corroboration he
could not find beyond a reasonable doubt that sexual
penetration had taken place. The trial judge then found
defendant guilty of aggravated criminal sexual abuse as a
lesser-included offense of predatory criminal sexual assault. As
noted earlier, the appellate court affirmed defendant=s
conviction, with one justice dissenting.
ANALYSIS
A defendant in a criminal prosecution has a fundamental
due process right to notice of the charges brought against him.
People v. DiLorenzo, 169 Ill. 2d 318, 321 (1996). For this
reason, a defendant may not be convicted of an offense he has
not been charged with committing. People v. Baldwin, 199 Ill.
2d 1, 6 (2002); see also People v. Knaff, 196 Ill. 2d 460, 472
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(2001); People v. Jones, 149 Ill. 2d 288, 292 (1992). A
defendant may, however, be convicted of an uncharged
offense if it is a lesser-included offense of a crime expressly
charged in the charging instrument (Novak, 163 Ill. 2d at 105),
and the evidence adduced at trial rationally supports a
conviction on the lesser-included offense and an acquittal on
the greater offense (Novak, 163 Ill. 2d at108).
The first step when deciding whether a defendant has been
properly convicted of an uncharged offense is determining
whether the offense is Aincluded@ in the offense that was
charged. An Aincluded offense@ is defined by statute as an
offense which is established by proof of the same or less than
all of the facts or a less culpable mental state (or both), than
that which is required to establish the commission of the
offense charged. 720 ILCS 5/2B9(a) (West 2000). This
definition offers little guidance because it does not specify the
factors to be considered when deciding whether an uncharged
offense is lesser included. See Novak, 163 Ill. 2d at 105-06.
For this reason, courts have employed various approaches for
determining whether a particular offense is a lesser-included
offense of a charged crime. In Novak, we identified three main
approaches:(1) the abstract elements approach; (2) the
charging instrument approach; and (3) the factual or evidence
approach, also known as the Ainherent relationship@ approach.
Pursuant to the abstract elements approach, an offense is
lesser included only if all of the statutory elements of the lesser
offense are contained in the greater offense. This approach
was rejected as too formulaic and rigid. Novak, 163 Ill. 2d at
111. On the other hand, the Afactual@ or Aevidence@ approach,
which looks to the facts adduced at trial to determine whether
the proofs offered on the greater offense establish the lesser
offense, was determined to be too broad. With this approach,
neither the defendant nor the prosecution would have notice of
all possible lesser offenses until the close of all of the
evidence. Novak, 163 Ill. 2d at 110.
After weighing the relative advantages and disadvantages
of each approach, we concluded in Novak that A[t]he charging
instrument approach best serves the purposes of the lesser-
included offense doctrine.@ Novak, 163 Ill. 2d at 112-13. The
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charging instrument approach looks to the allegations in the
charging instrument to see whether the description of the
greater offense contains a Abroad foundation@ or Amain outline@
of the lesser offense. Because the charging instrument
provides the parties with a closed set of facts, both sides have
notice of all possible lesser-included offenses so that they can
plan their trial strategies accordingly. Novak, 163 Ill. 2d at 113.
Further, the charging instrument approach Atempers harsh
mechanical theory with the facts of a particular case,@ Aresults
in a broader range of possible lesser included offenses,@ and,
thus, Asupports the goal of more accurately conforming
punishment to the crime actually committed.@ Novak, 163 Ill. 2d
at 113.
If, using the charging instrument approach, it is determined
that a particular offense is a lesser-included offense of a
charged crime, the court must then examine the evidence
adduced at trial to decide whether the evidence rationally
supports a conviction on the lesser offense. Novak, 163 Ill. 2d
at 108. Accordingly, an inquiry into whether a defendant may
be convicted of an uncharged offense is a two-tiered process.
However, the second stepBexamining the evidence adduced at
trialBshould not be undertaken unless and until it is first
decided that the uncharged offense is a lesser-included
offense of a charged crime. People v. Baldwin, 199 Ill. 2d 1,
11-15 (2002). Whether a charged offense encompasses
another as a lesser-included offense is a question of law, which
this court reviews de novo. People v. Landwer, 166 Ill. 2d 475,
486 (1995).
In the case at bar, defendant=s single issue on appeal is
whether aggravated criminal sexual abuse is a lesser-included
offense of predatory criminal sexual assault of a child, the
offense charged in defendant=s indictment. The appellate court
answered this question in the affirmative, although one justice
dissented, based on our decision in People v. Novak, 163 Ill.
2d 93 (1994). Defendant now maintains, as did the dissenting
appellate justice, that Athe plain meaning of the statutes, the
statutory analysis in Novak, and the principle of stare decisis
mandate reversal@ of his conviction. In Novak, the defendant
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was charged with aggravated criminal sexual assault in an
indictment which alleged:
A >Chester M. Novak committed the offense of
aggravated criminal sexual assault in that he was
seventeen years of age or over and committed an act of
sexual penetration upon [the victim], to wit: contact
between Chester M. Novak=s penis and [the victim=s]
mouth and [the victim] was under thirteen years when
the act of sexual penetration was committed ***.@
Novak, 163 Ill. 2d at 114.
At defendant=s trial, a jury heard evidence that defendant, a
31-year-old man who coached boys= baseball, brought one of
the10-year-old boys he coached to his home on several
occasions and, under the pretense of improving the child=s
athletic skills, blindfolded the boy, tied the boy=s hands behind
his back, rubbed up against the boy, and inserted his penis into
the boy=s mouth. The jury found defendant guilty of the charged
offense. On appeal, however, the defendant contended that he
was denied a fair trial because the trial court refused his
tendered jury instruction on aggravated criminal sexual abuse
as a lesser included offense of aggravated criminal sexual
assault. The question on appeal was whether aggravated
criminal sexual abuse was a lesser included offense of
aggravated criminal sexual assault.
In Novak, this court unanimously determined that the
Acharging instrument@ approach should be employed to resolve
questions regarding whether an uncharged offense is a lesser
included offense of a charged offense. After adopting the
charging instrument approach, however, this court was split on
its proper application in the case before it. A majority of the
court held that Aaggravated criminal sexual abuse is not
available to defendant[ ] as a lesser included offense of
aggravated criminal sexual assault as charged in the
indictment.@ Novak, 163 Ill. 2d at 113-14. The majority
concluded Athe indictment against defendant does not describe
the foundation or main outline of aggravated criminal sexual
abuse@ because A[t]he indictment does not describe any
touching or fondling of the victim=s body parts for the purpose
of sexual gratification or arousal.@ (Emphasis added.) Novak,
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163 Ill. 2d at 114. The majority held that because the
indictment alleged aggravated criminal sexual assault, which
requires Aan act of sexual penetration,@ it could not be viewed
as having alleged aggravated criminal sexual abuse, which
requires Aan act of sexual conduct.@ The majority reasoned that
the statutory definition of Asexual penetration@ does not require
a showing that the act was done for sexual gratification or
arousal, whereas the statutory definition of Asexual conduct@
includes this element. Novak, 163 Ill. 2d at 115. Compare 720
ILCS 5/12B12(f) (West 2000) with 720 ILCS 5/12B12(e) (West
2000).
Three justices dissented, finding the majority=s application
of the charging instrument approach too narrow. Novak, 163 Ill.
2d at 121 (Nickels, J., dissenting, joined by Heiple and
McMorrow, JJ.). The dissent pointed out that, under the
charging instrument approach, the indictment need not
explicitly state all of the elements of the lesser offense, as long
as any missing element may reasonably be inferred from the
allegations contained in the indictment. The dissent then
looked to the indictment and held that the alleged contact
between the defendant=s penis and the victim=s mouth was
Atouching of a sexual nature,@ from which a court could
reasonably infer defendant=s motive of sexual gratification.
Novak, 163 Ill. 2d at 124 (Nickels, J., dissenting, joined by
Heiple and McMorrow, JJ.).
Of importance in Novak is the court=s unanimous adoption
of the Acharging instrument@ approach for deciding whether an
offense is a lesser-included offense of another. However, the
manner in which the majority applied the charging instrument
approach in that case has since been eroded and the majority
decision can no longer be sustained. Novak held that the
indictment did not contain the broad foundation or main outline
of aggravated criminal sexual abuse, despite the fact that the
indictment alleged an act which came within the purview of
Asexual conduct,@ i.e., touching (by the victim=s mouth) of a sex
organ of the accused. The basis for the court=s finding was the
fact that an element of the offense of criminal sexual abuse,
i.e., that the accused acted for the purpose of sexual
gratification or arousal, was missing because that language is
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not included in the statutory definition of Asexual penetration,@
which was alleged in the indictment. The court never
considered whether this element could be inferred.
A review of this court=s decisions since Novak reveals that
the absence of a statutory element will not prevent us from
finding that a charging instrument=s description contains a
Abroad foundation@ or Amain outline@ of the lesser offense.
People v. Jones, 207 Ill. 2d 122, 143-44 (2003) (Fitzgerald, J.,
specially concurring). It is now well settled that, under the
charging instrument approach, an offense may be deemed a
lesser-included offense even though every element of the
lesser offense is not explicitly contained in the indictment, as
long as the missing element can be reasonably inferred. See
Baldwin, 199 Ill. 2d at 8; People v. Hamilton, 179 Ill. 2d 319,
325 (1997); People v. Jones, 175 Ill. 2d 126, 135 (1997);
People v. Landwer, 166 Ill. 2d 475, 486 (1995).
In Landwer, the defendant was charged with solicitation of
murder for hire. We held that the charging instrument provided
the necessary main outline or broad foundation of the lesser
offense of solicitation to commit aggravated battery. The
indictment charged that defendant solicited others to Akill@
certain specified persons. Although the elements of aggravated
battery were not alleged, we found that the lesser offenseBthat
defendant solicited others for the purpose of causing great
bodily harm or permanent disfigurement to specified
individualsBwas implicit from the charge. Landwer, 166 Ill. 2d at
486-87.
In Jones, the defendant was charged with attempt
(aggravated criminal sexual abuse) based on an allegation that
defendant, Awith the intent to commit the offense of aggravated
criminal sexual abuse,@ took a substantial step towards the
commission of that offense A >in that he disrobed in the
presence of [the victim], who was at least 13 years of age but
under 17 years of age at the time, stimulated his [own] penis to
erection and requested [the victim] to masturbate him to
orgasm, for the purpose of the sexual gratification of the
defendant.= @ Jones, 175 Ill. 2d at 129. Reversing the appellate
court=s ruling, we found that the charging instrument set forth
the offense of public indecency based on lewd exposure,
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although the indictment did not allege that the purpose of the
exposure was defendant=s sexual gratification. 1 Jones, 175 Ill.
2d at 135-36.
In Hamilton, we held that the offense of theft was a lesser-
included offense of residential burglary even though the
indictment did not explicitly allege the elements of theft, i.e.,
that defendant obtained or exerted unauthorized control over
property of the owner with the intent to permanently deprive the
owner of the use or benefit of the property. The indictment
alleged that the defendant Aknowingly without authority entered
the dwelling place of [the victims] with the intent to commit
therein a theft.@ Hamilton, 179 Ill. 2d at 324. We held:
ABy alleging in the indictment that defendant entered the
Williamses= dwelling place with the intent to commit a
theft, the charging instrument necessarily [implies] that
defendant intended to obtain unauthorized control over
and deprive another of property. This intent can typically
be inferred, as it was in this case, only through showing
1
Having identified public indecency based on lewd exposure as a lesser
included offense, we examined evidence adduced at trial to decide whether
the evidence rationally supported a conviction on the lesser offense. We
found that the defendant was not entitled to an instruction on this offense
because the evidence did not show that the defendant exposed himself for
the purpose of sexual gratification. Thus, in the first stage, the necessary
purpose could reasonably be inferred because the indictment described, in a
broad way, the lesser offense. However, at the second stage, the necessary
purpose had to be supported by the evidence before defendant was entitled
to an instruction on (or could be convicted of ) the lesser offense.
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an actual taking of property.@ Hamilton, 179 Ill. 2d at
325.
Finally, in Baldwin, we considered whether aggravated
unlawful restraint was a lesser included offense of home
invasion. First, we noted that the offense of aggravated
unlawful restraint requires that the accused detain another
using a deadly weapon. 720 ILCS 5/10B3.1 (West 1998). We
then looked to the indictment, which alleged, in pertinent part,
that the defendant, Awhile armed with a butcher knife, used
force on [the victim].@ Baldwin, 199 Ill. 2d at 9. We concluded
that, because Aforce@ was not further described, it was not
reasonable to infer from this indictment that the Aforce@
defendant used was for the purpose of detaining the victim.
Baldwin, 199 Ill. 2d at 10. We noted, however, that, had the
description of the term Aforce@ in the charging instrument been
such that it could reasonably be inferred that the defendant had
Adetained@ the victim (for example, by stating in the indictment
that defendant used force, to wit: dragging the victim through
the house), then the failure to explicitly allege that the
defendant Adetained@ the victim would not preclude a finding
that unlawful restraint was a lesser-included offense. See
Baldwin, 199 Ill. 2d at 10-11. We suggested that any number of
offenses (such as aggravated kidnapping, armed robbery,
aggravated criminal sexual assault, or aggravated criminal
sexual abuse) might have been a lesser-included offense of
the charged offense of home invasion, Adepending on the
context of the allegations contained in the charging
instrument.@ Baldwin, 199 Ill. 2d at 11. Thus, in deciding that
the allegations in the indictment did not set forth a broad
foundation or main outline of the lesser offense, we provided a
greater insight into what it means to say that a charged offense
contains a Abroad foundation@ or Amain outline@ of a lesser
offense.
Based on the cases above, it is clear that, under the
charging instrument approach, whether a particular offense is
Alesser included@ is a decision which must be made on a case-
by-case basis using the factual description of the charged
offense in the indictment. A lesser offense will be Aincluded@ in
the charged offense if the factual description of the charged
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offense describes, in a broad way, the conduct necessary for
the commission of the lesser offense and any elements not
explicitly set forth in the indictment can reasonably be inferred.
In the case at bar, therefore, we must decide whether
defendant was properly convicted of aggravated criminal
sexual abuse as a lesser- included offense of predatory
criminal sexual assault of a child, as charged in defendant=s
indictment. We look first to the statutory definition of
aggravated criminal sexual abuse and determine whether the
facts alleged in defendant=s indictment contain a broad
foundation or main outline of this offense.
Aggravated criminal sexual abuse is defined in section
12B16 of the Criminal Code. 720 ILCS 5/12B16 (West 2000).
Generally, the offense is committed if the accused commits
criminal sexual abuse and certain aggravating circumstances
exist. However, the offense also includes acts of sexual
conduct or sexual penetration committed under certain
specified circumstances. See 720 ILCS 5/12B16(b), (c), (d), (e),
(f) (West 2000). In the case at bar, the trial court found
defendant guilty of aggravated criminal sexual abuse in
violation of section 12B16(c)(1)(i), which provides:
AThe accused commits aggravated criminal sexual
abuse if:
(1) the accused was 17 years of age or over and
(i) commits an act of sexual conduct with a victim
who was under 13 years of age when the act was
committed ***.@
Defendant=s indictment alleged that defendant committed
predatory criminal sexual assault and
Awas 17 years of age or older and committed an act of
sexual penetration upon [C.S.], to wit: an intrusion of
Marian Kolton=s finger into [C.S.=s] vagina, and [C.S.]
was under thirteen years of age when the act of sexual
penetration was committed.@
Since the ages of the accused and the victim are the same
for both aggravated criminal sexual abuse and the charged
offense, the only question is whether the allegation of A >sexual
penetration= *** to wit: an intrusion of [defendant=s] finger into
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[C.S.=s] vagina@ provides a broad foundation or main outline of
the offense of aggravated criminal sexual abuse, which
requires an act of Asexual conduct.@ We answer this question in
the affirmative.
The terms Asexual penetration@ and Asexual conduct@ are
defined in subsections (e) and (f) of section 12B12 of the
Criminal Code (720 ILCS 5/12B12 (West 2000)). Subsection (e)
provides:
A >Sexual conduct= means any intentional or knowing
touching or fondling by the victim or the accused, either
directly or through clothing, of the sex organs, anus or
breast of the victim or the accused, or any part of the
body of a child under 13 years of age, or any transfer or
transmission of semen by the accused upon any part of
the clothed or unclothed body of the victim, for the
purpose of sexual gratification or arousal of the victim or
the accused.@ 720 ILCS 5/12B12(e) (West 2000).
Subsection (f) provides:
A >Sexual penetration= means any contact, however
slight, between the sex organ or anus of one person by
an object, the sex organ, mouth or anus of another
person, or any intrusion, however slight, of any part of
the body of one person or of any animal or object into
the sex organ or anus of another person, including but
not limited to cunnilingus, fellatio or anal penetration.
Evidence of emission of semen is not required to prove
sexual penetration.@ 720 ILCS 5/12B12(f) (West 2000).
Both Asexual conduct@ and Asexual penetration@ describe
intentional acts of a sexual nature. People v. Terrell, 132 Ill. 2d
178, 209 (1989). ASexual conduct@ is defined as certain
Atouching@ done for the purpose of sexual gratification or
arousal. The type of touching alleged in defendant=s indictment,
i.e., an intrusion of [defendant=s] finger into [C.S.=s] vagina,@
clearly falls within the definition of Asexual conduct.@ In addition,
although it is not explicitly alleged in the indictment that
defendant acted for the purpose of sexual gratification or
arousal, we find that this purpose may reasonably be inferred.
We find it reasonable to infer the statutory element Afor the
purpose of sexual gratification or arousal@ primarily because
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Asexual penetration@ was alleged in defendant=s indictment and
the type of conduct described in the definition of Asexual
penetration@ is inherently sexual in nature and permits such an
inference to be drawn. We acknowledge that it is the
legislature=s province to define offenses (Terrell, 132 Ill. 2d at
216), and we do not dispute that the statutory definition of
Asexual penetration@ criminalizes certain sexual activity,
whether its purpose is for sexual gratification or some other
unlawful purpose. Nevertheless, we recognize here that acts of
Asexual penetration@ are inherently sexual in nature, and,
because of their inherently sexual nature, the acts described in
the definition of Asexual penetration@ can be neither
unintentional nor inadvertent. See Terrell, 132 Ill. 2d at 210-11.
For this reason, when defining Asexual penetration,@ it was not
necessary for the legislature to explicitly state that the acts
must be done intentionally or knowingly and Afor the purpose of
sexual gratification or arousal.@ ASexual conduct,@ on the other
hand, can include the simple act of touching, either directly or
through clothing, Aany part of the body of a child under 13
years of age.@ Such touching is not inherently sexual and might
occur accidentally or inadvertently. Terrell, 132 Ill. 2d at 210.
Thus, to state a criminal sexual offense, it was necessary for
the legislature, when defining acts of Asexual conduct,@ to
explicitly state that the touching be intentional or knowing and
Afor the purpose of sexual gratification or arousal of the victim
or the accused.@ See Terrell, 132 Ill. 2d at 210.
While it might also be possible, based on allegations
contained in an indictment, that it would not be reasonable to
infer that acts of Asexual penetration@ were done for the
purpose of sexual gratification, that is not the case here. We
conclude, therefore, that in a case, such as the one at bar,
where the indictment alleges Asexual penetration@ and does not
explicitly allege that the acts were done for the purpose of
sexual gratification or arousal, this fact will not prevent us from
inferring such a purpose. When Asexual penetration@ is alleged,
it is possible to infer that the acts were done with the purpose
of sexual gratification or arousal.
We find it particularly appropriate to allow for such an
inference to be drawn in instances such as this because the
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elementBthat a defendant acted Afor the purpose of sexual
gratification@Bis something that is typically inferred from the
circumstances used to prove the alleged act. See Hamilton,
179 Ill. 2d at 325. Moreover, the overriding constitutional
concern when determining whether an offense is lesser
included is the sufficiency of the notice to the defendant. See
DiLorenzo, 169 Ill. 2d at 321 (defendant=s have a due process
right to notice of the charges brought against them). In cases
such as this, where a defendant is charged with predatory
sexual assault of a child based on certain acts of sexual
penetration, the defendant clearly has reasonable notice that
such a charge might encompass the lesser offense of criminal
sexual abuse.
In sum, we find that the indictment in the case at bar
contains the main outline or broad foundation of the offense of
aggravated criminal sexual abuse. The indictment alleged an
intrusion of defendant=s finger into C.S.=s vagina, which is a
type of touching encompassed within the definition of Asexual
conduct.@ Although defendant=s indictment did not specify that
the acts attributed to defendant were done Afor the purpose of
sexual gratification,@ this purpose could reasonably be inferred.
Thus, we conclude that aggravated criminal sexual abuse is a
lesser-included offense of predatory criminal sexual assault as
alleged in defendant=s indictment. Having reached this
conclusion, we proceed to the second stepBexamining the
evidence adduced at trial to decide whether the evidence
rationally supports a conviction on the lesser offense.
As noted earlier, the trial court found defendant guilty of the
offense of aggravated criminal sexual abuse in violation of
section 12B16(c)(1)(i), which provides:
Athe accused was 17 years of age or over and (i)
commits an act of sexual conduct with a victim who was
under the age of 13 years of age when the act was
committed ***.@ 720 ILCS 5/12B16(c)(1)(i) (West 2000).
In the case at bar, it was established at trial that, at the time
of the incident, C.S. was 12 years old and defendant was 49
years old. In addition, C.S. testified that defendant brought her
to a secluded spot and told her to sit on a blanket. While she
was sitting on the blanket Across-legged,@ defendant sat down
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next to her, tried to hug her, and then offered to give her
money if she would allow him to Atouch@ her. Despite C.S.=s
refusal, defendant pushed her shorts and underwear to the
side and then placed his finger in her vagina.
We find from the above evidence a sufficient basis for a
conviction on the offense of aggravated criminal sexual abuse.
C.S.=s testimony established that defendant touched or fondled
her vaginal area. Whether defendant achieved penetration is
irrelevant. In addition, the inference that defendant acted for
the purpose of sexual gratification or arousal is supported by
the evidence. C.S.=s testimony that defendant wanted to Ahug@
her and offered her money to allow him to touch her, as well as
the false statements and differing explanations defendant gave
police for his being in a secluded area with C.S., strongly
establish that defendant touched C.S. intentionally and for the
purpose of defendant=s sexual gratification or arousal.
Accordingly, we affirm defendant=s conviction for aggravated
criminal sexual abuse.
CONCLUSION
The appellate court held that aggravated criminal sexual
abuse is a lesser-included offense of predatory criminal sexual
assault of a child, as that offense was alleged in defendant=s
indictment. We affirm that judgment and defendant=s
conviction.
Affirmed.
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