People v. Jones
Annotate this Case
NOTICE: Under Supreme Court Rule 367 a party has 21 days after the filing of the opinion
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 80367--Agenda 11--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LONNIE H.
JONES, Appellant.
Opinion filed January 30, 1997.
JUSTICE HARRISON delivered the opinion of the court:
Following a jury trial in the circuit court of Douglas County,
defendant, Lonnie H. Jones, was convicted of attempt (aggravated
criminal sexual abuse) (720 ILCS 5/8--4, 12--16(d) (West 1992)) and
sentenced to a prison term of five years. The appellate court, in
a divided opinion, affirmed. 276 Ill. App. 3d 1006. We allowed
defendant's petition for leave to appeal (155 Ill. 2d R. 315).
A criminal information, filed January 25, 1994, charged
defendant with attempt (aggravated criminal sexual abuse). The
information alleged that, with the intent to commit the offense of
aggravated criminal sexual abuse, defendant "performed a
substantial step toward the commission of that offense, in that he
disrobed in the presence of [D.R.], 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 said [D.R.] to masturbate him
to orgasm, for the purpose of the sexual gratification of the
defendant; and that said defendant was at least 5 years older than
[D.R.]."
At trial, the complainant, D.R., testified that he was born on
January 18, 1977, and was 16 years and 10 months old on November
12, 1993. Around 7 p.m. that evening, he went to Chad William's
apartment in Newman for a party, after receiving an invitation from
Williams and another friend, Matt Hutcherson. Defendant, whom D.R.
had never met before, was at the apartment when the three arrived.
The four men spent the evening drinking beer, with defendant
purchasing an additional supply at some point.
Williams and Hutcherson had either fallen asleep or passed out
in the living room by 11:45 p.m., and defendant went into the
bedroom. D.R. testified that he could not sleep, so about 11:57
p.m. he knocked on the bedroom door, went in and began talking with
defendant. After a while, defendant got undressed and sat naked on
the floor with his back against the bed. The two continued talking,
with D.R. sitting on the floor next to a wall, and then defendant
asked if he could masturbate D.R. Defendant also asked D.R. to
masturbate him. These requests made D.R. fearful, so he replied
"No," and started to leave the bedroom. D.R. testified that, at
this point, defendant told him not to tell anyone about the
incident "or otherwise he'd get me, and if he couldn't, he had
somebody that would." D.R. then went into the living room and lay
down next to his friend Williams, but did not leave the apartment
because he was afraid defendant would come after him.
Under cross-examination, D.R. admitted that defendant had
never touched him and that he had been free to leave at any time.
D.R. stated that, out of embarrassment, he did not report the
incident to anyone for several months. Eventually, he spoke to
Police Chief Russell Stephens, but forgot to mention one of
defendant's two requests for sexual conduct. D.R. denied telling
Stephens that defendant came out of the bedroom and took his
clothes off in the living room, but admitted telling Stephens that
defendant was masturbating himself when he talked to D.R. D.R. then
conceded that in his April 15, 1994, statement to State's Attorney
Richard Broch, he said he had not been looking at defendant and
could not tell whether or not defendant was touching himself or his
penis.
City of Newman Police Chief Russell Stephens testified for the
defense that he interviewed D.R. on January 21, 1994. D.R. told him
that he was spending the night with Williams and Hutcherson in the
apartment when defendant arrived. D.R. further stated that
defendant approached him in the room where Williams and Hutcherson
were sleeping, took off his clothes, obtained an erection, and
asked D.R. to masturbate him. Stephens testified that D.R. gave no
indication in his statement that defendant had threatened him. For
the State, Stephens testified as to his opinion, based on his
experience as a police officer, that defendant was 28 or 29 years
old as of November 1993, and estimated that defendant was at least
10 years older than D.R.
Before this court, defendant challenges the sufficiency of the
evidence supporting his conviction and contends that he did not
receive a fair trial because the trial court: (1) erroneously
refused his tendered jury instruction on the affirmative defense
that he had a reasonable belief the complainant was 17 years of age
or older; (2) erroneously refused his tendered instruction on the
lesser included offense of public indecency based on lewd exposure;
and (3) gave a misleading instruction on the definition of sexual
conduct. We believe the affirmative defense instruction issue to be
dispositive.
At trial, defense counsel tendered, and the trial court
refused, the following instruction:
"It is a defense to the charge of aggravated
criminal sexual abuse that the defendant reasonably
believed [D.R.] to be 17 years of age or older." See
Illinois Pattern Jury Instructions, Criminal, No. 11.64
(3d ed. 1992).
This instruction is based on section 12--17(b) of the Criminal Code
of 1961 (720 ILCS 5/12--17(b) (West 1992)), which operates as an
affirmative defense. See People v. Cora, 238 Ill. App. 3d 492, 499-
500 (1992); People v. Brown, 171 Ill. App. 3d 391, 397-98 (1988).
The appellate court majority below affirmed the trial court's
decision, stating: "On this record, we cannot say that the evidence
presented by the State fairly raised the issue of the affirmative
defense so as to require the trial judge to instruct the jury in
this regard." 276 Ill. App. 3d at 1009. We agree with the appellate
court dissent that defendant's instruction should have been given
to the jury to consider and that it was reversible error to prevent
defendant from presenting this defense by means of the tendered
instruction. 276 Ill. App. 3d at 1011-13 (Cook, P.J., dissenting).
A defendant is entitled to an instruction on his theory of the
case if there is some foundation for the instruction in the
evidence, and if there is such evidence, it is an abuse of
discretion for the trial court to refuse to so instruct the jury.
People v. Crane, 145 Ill. 2d 520, 526 (1991). Very slight evidence
upon a given theory of a case will justify the giving of an
instruction. People v. Bratcher, 63 Ill. 2d 534, 540 (1976); see
also People v. Moore, 250 Ill. App. 3d 906, 915 (1993); People v.
Lyda, 190 Ill. App. 3d 540, 544 (1989). As the appellate court
dissent noted: "In deciding whether to instruct on a certain
theory, the court's role is to determine whether there is some
evidence supporting that theory; it is not the court's role to
weigh the evidence." 276 Ill. App. 3d at 1012 (Cook, P.J.,
dissenting); see also Lyda, 190 Ill. App. 3d at 544.
In order to avail himself of the affirmative defense at issue,
a defendant is required to produce some evidence at trial to
demonstrate the existence of a reasonable belief that the victim
was 17 years of age or older. See People v. Kite, 153 Ill. 2d 40,
44-45 (1992); Cora, 238 Ill. App. 3d at 500. However, the defendant
will be excused from presenting any evidence where the evidence
presented by the State raises the issue of the affirmative defense.
See Cora, 238 Ill. App. 3d at 500; 720 ILCS 5/3--2(a) (West 1992).
In essence, unless the evidence before the trial court is so clear
and convincing as to permit the court to find as a matter of law
that there is no affirmative defense, the issue of whether a
defendant should be relieved of criminal liability by reason of his
affirmative defense must be determined by the jury with proper
instruction as to the applicable law. See Lyda, 190 Ill. App. 3d at
545.
In the case at bar, the State's evidence alone was sufficient
to raise the issue of defendant's reasonable belief that D.R. was
17 years of age or older. At the time of the offense, D.R. was 16
years and 10 months old, and defendant did not know D.R. prior to
the incident. Further, D.R. was consuming alcohol, an activity
restricted to adults, when defendant met him, and D.R. was
apparently free to stay overnight at his friend's apartment.
Additionally, the jury saw D.R. testify and was able to observe his
appearance and demeanor so as to determine whether there was a
reasonable doubt that defendant believed D.R. to be 17 years old.
The appellate court majority's reliance on People v. Lemons,
229 Ill. App. 3d 645 (1992), for its holding is misplaced. As the
dissent noted:
"The Lemons defendant did not appeal any failure to
instruct, but argued the State failed to prove beyond a
reasonable doubt his belief as to the victim's age. The
appellate court held a rational trier of fact could have
found against defendant on that issue (a holding
unavailable in the present case because the trier of fact
was not instructed on the issue), but went on in dicta to
indicate the evidence was not sufficient to impose on the
State the burden of proving that defendant's belief was
unreasonable." 276 Ill. App. 3d at 1012 (Cook, P.J.,
dissenting).
Lemons is also distinguishable on its facts, where the victim was
only 14 and there was evidence that the defendant was told the
victim's age before the offense occurred. See Lemons, 229 Ill. App.
3d at 652.
As earlier stated, defendant was not required to testify or
offer any evidence making his reasonable belief of the victim's age
an issue. The circumstantial evidence presented by the State was
sufficient to raise the affirmative defense. Indeed, mental states
are not commonly proved by direct evidence, but are more often
inferred from the character of a defendant's acts and the
circumstances surrounding the commission of the offense. People v.
Terrell, 132 Ill. 2d 178, 204 (1989); see also People v. Summers,
202 Ill. App. 3d 1, 10 (1990).
We conclude that defendant was entitled to the benefit of the
affirmative defense as shown by the evidence in the record. The
State then would have to prove beyond a reasonable doubt that
defendant did not reasonably believe the victim to be 17 years of
age or over. 720 ILCS 5/3--2(b) (West 1992). Ultimately, it was for
the jury to determine whether defendant had a reasonable belief
that the victim had attained the age of 17 years. Absent
defendant's tendered instruction, the jury lacked the necessary
tools to analyze the evidence fully and to reach a verdict based on
those facts. See Lyda, 190 Ill. App. 3d at 546. The resulting
denial of due process requires that defendant be granted a new
trial.
Defendant also contends that the evidence was insufficient to
sustain his conviction for attempt (aggravated criminal sexual
abuse), and this question must be decided in order to remove the
risk of subjecting defendant to double jeopardy. People v. Taylor,
76 Ill. 2d 289, 309 (1979). Defendant argues that the offense of
aggravated criminal sexual abuse requires an act of sexual conduct
with the victim (720 ILCS 12--16(d) (West 1992)), and that the mere
request for sexual conduct with the victim does not constitute a
"substantial step" towards the commission of that offense necessary
to establish attempt (720 ILCS 5/8--4(a) (West 1992)). However,
D.R. testified that defendant "[got] completely undressed" and then
requested that they engage in acts of mutual masturbation. After
careful consideration, we agree with the appellate court that this
act of exposure, when added to the request for sexual conduct, was
sufficient to constitute a substantial step notwithstanding the
lack of any actual contact between defendant and the victim. 276
Ill. App. 3d at 1008-09, citing People v. Brewer, 118 Ill. App. 3d
189 (1983). We therefore believe the evidence at trial was
sufficient for the jury to conclude that defendant was guilty
beyond a reasonable doubt, but note that this is not a finding that
would be binding on retrial. Taylor, 76 Ill. 2d at 309-10.
Finally, we consider defendant's arguments regarding other
alleged erroneous instructions, to prevent these questions from
arising on retrial. Defendant contends that the trial court erred
in refusing his tendered instruction on the lesser included offense
of public indecency based on lewd exposure (720 ILCS 5/11--9(a)(2)
(West 1992)). The appellate court concluded that public indecency
based on lewd exposure was not an included offense of attempt
(aggravated criminal sexual abuse). 276 Ill. App. 3d at 1011.
In People v. Novak, 163 Ill. 2d 93 (1994), we reaffirmed our
preference for the charging instrument approach in identifying
lesser included offenses. Under this approach, an offense is deemed
to be a lesser included offense if it is described by the charging
instrument. Novak, 163 Ill. 2d at 107. At a minimum, the instrument
charging the greater offense must " `set out the main outline of
the lesser offense.' " Novak, 163 Ill. 2d at 107, quoting People v.
Bryant, 113 Ill. 2d 497, 505 (1986). Contrary to the appellate
court's holding, we find that the lesser included offense at issue
was adequately described by the charging instrument. It is clear
from the language of the information, as set forth above, that the
"main outline" of the offense of public indecency based on lewd
exposure can be found therein. See 720 ILCS 5/11--9 (West 1992).
However, "[t]he identification of a lesser included offense does
not automatically give rise to a correlative right to have the jury
instructed on the lesser offense." Novak, 163 Ill. 2d at 108.
Before a defendant is entitled to a lesser included offense
instruction, the trial court must examine the evidence presented
and determine if it would "permit a jury rationally to find the
defendant guilty of the lesser included offense and acquit him or
her of the greater offense." Novak, 163 Ill. 2d at 108. In the case
at bar, there was no evidence presented, by either the State or
defense, that the defendant's act of exposure was "done with intent
to arouse or to satisfy the sexual desire of the [defendant]." 720
ILCS 5/11--9(a)(2) (West 1992). Rather, the evidence showed that
defendant disrobed in the hope of achieving sexual gratification
through sexual conduct with D.R. Thus, the trial court did not err
in refusing to give the lesser included offense instruction,
because the jury could not have rationally convicted defendant of
public indecency based on lewd exposure where it was not
established that that act was done with the intent to arouse or
satisfy defendant's sexual desire. See People v. Harris, 205 Ill.
App. 3d 873, 876 (1990).
Defendant also contends that the trial court erred when it
gave a misleading and incorrect instruction on the definition of
sexual conduct. For the reasons stated by the appellate court (276
Ill App. 3d at 1010), we agree with defendant and trust that this
error will not be repeated on retrial.
For the foregoing reasons, the judgments of the circuit and
appellate courts are reversed and this cause is remanded for a new
trial consistent with the views expressed herein.
Reversed and remanded.
JUSTICE McMORROW, dissenting:
I respectfully dissent because I believe that defendant's
conviction should be reversed outright. In my opinion, the State
failed to prove, and cannot prove, under the facts in this case,
that defendant committed the crime of attempted aggravated criminal
sexual abuse. The facts in the case at bar do not constitute
attempted aggravated criminal sexual abuse, and therefore defendant
should not be subjected to another trial. Scrutiny of the record
and study of the pertinent case law reveal that the State failed to
carry its burden of proving that defendant committed a criminal
attempt by taking the requisite "substantial step" toward
perpetrating aggravated criminal sexual abuse. If the proof of any
element of the charged crime is lacking or deficient, defendant is
entitled to acquittal as a matter of law. To retry him under such
circumstances would violate the constitutional prohibition against
double jeopardy. Therefore, I dissent from my colleagues' decision
to remand this cause for new trial.
The majority reverses the appellate court's affirmance of the
conviction, based on one issue of trial error, and remands for new
trial. The majority concludes that defendant was entitled to a jury
instruction on the affirmative defense that he reasonably believed
that the victim was 17 years of age or older. Defendant did not
testify to what age he believed D.R. to be, nor did defense counsel
introduce any evidence to show that defendant believed the victim
to be older than he actually was. However, the opinion cites to
cases which permit a defendant to tender an affirmative defense
instruction even if defendant presents no affirmative evidence, as
long as there is evidence in the record which supports an inference
in favor of such a defense. In this case the actual or apparent age
of the complaining witness is important. The fact that D.R. was
only two months less than 17 years of age and that he was allowed
to stay out all night and drink alcohol warrants the giving of an
instruction to the jury to decide whether defendant had a
reasonable belief that D.R. was not under age.
Notwithstanding my agreement with the conclusion of the
majority that defendant's affirmative defense instruction should
have been given, I believe there are more cogent reasons why
defendant's conviction should be reversed. First and foremost, the
majority opinion does not address the question of whether the
State's evidence against defendant duly proved the elements of the
crime charged; it simply announces that the evidence is sufficient.
However, the case at bar involves a fundamental question of whether
the crime for which defendant was convicted can be proved under the
facts of the case. The question is not whether the evidence
establishes that defendant disrobed in front of D.R. and invited
mutual masturbation. The defendant does not argue that the evidence
failed to prove those facts, and the record contains sufficient
evidence to establish them. Rather, the question is whether such
conduct constitutes the crime of attempted aggravated criminal
sexual abuse. Because I believe it does not, based on case law,
logic, and the facts of this case, I cannot agree with that portion
of the opinion which summarily affirms the appellate court's ruling
on the sufficiency of the evidence, and orders defendant to be
tried again. This is not a minor objection to the majority's
opinion, because the conclusion that defendant did not commit the
crime of attempted aggravated criminal sexual abuse should result
in the outright reversal of the conviction and not a remand for
retrial. If any element of the crime charged is not proved or is
deficient, requiring a defendant to be retried would violate his
constitutional right against double jeopardy.
In large part, the majority's ruling that the evidence is
sufficient stems from its failure to analyze the legal requirements
of the crime of attempt and the underlying sexual offense.
Therefore, it is necessary to examine both the legal elements of
the offense with which defendant was charged and the evidence
adduced at trial to prove the elements.
I
The Illinois Criminal Code of 1961 provides that "[a] person
commits an attempt when, with intent to commit a specific offense,
he does any act which constitutes a substantial step toward the
commission of that offense." (Emphasis added.) 720 ILCS 5/8--4(a)
(West 1992). The scienter of attempted crimes is the specific
intent to commit a particular offense. See, e.g., People v. Harris,
72 Ill. 2d 16, 27-28 (1978); People v. Trinkle, 68 Ill. 2d 198, 203
(1977); People v. Viser, 62 Ill. 2d 568, 581 (1975). In addition to
the requisite intent to commit a particular offense, a criminal
attempt requires the taking of a substantial step toward committing
the underlying offense. The defendant must, either by conduct or
words or both, have actually begun to commit the crime or plainly
manifested the intent to commit the underlying crime. Mere
preparation for engaging in the proscribed act does not suffice.
E.g., People v. Smith, 148 Ill. 2d 454, 459 (1992); People v.
Terrell, 99 Ill. 2d 427, 436 (1984). To obtain a conviction under
the Illinois attempt statute, the prosecution's evidence must
demonstrate that defendant came within " `dangerous proximity to
success[ful]' " completion of the crime. See United States v.
Davis, 16 F.3d 212, 218 (7th Cir. 1994); People v. Smith, 148 Ill. 2d at 460 (and cases cited).
In the case at bar, one of the issues raised by defendant is
whether his conduct reasonably can be found to constitute a
substantial step toward committing the type of sexual contact
prohibited by the aggravated criminal sexual abuse statute. The
State argues that defendant's act of undressing was not a lesser
offense consisting of lewd exposure but instead constituted
"preparation" for having sexual contact with D.R. As previously
noted, however, mere preparation does not satisfy the requirement
that a "substantial step" toward commission of the crime must be
established in order to prove a defendant guilty of the inchoate
crime of attempt. The record establishes that, with the exception
of defendant's oral inquiry to D.R., nothing else happened after
defendant disrobed. He and D.R. remained seated on the floor
talking. Defendant did not make any move toward D.R. that could be
interpreted as the commencement of a sexual crime against him.
Defendant did not reach toward D.R., did not touch his clothing or
his body, restrain him, or engage in any conduct which would
exhibit the specific intent to engage in prohibited sexual conduct
with D.R. In my opinion, defendant did not take a substantial step
toward perpetrating attempted aggravated criminal sexual abuse.
The majority concludes that defendant's invitation for sexual
conduct constitutes the necessary substantial step. However, the
majority opinion offers no independent analysis beyond professing
"careful consideration" of the issue. Slip op. at 6. The elements
of aggravated criminal sexual abuse are not analyzed in the
majority opinion, nor is pertinent case law discussed or
distinguished. As more fully explained below, the majority's
acceptance of the State's theory that defendant's passive
invitation for sexual conduct sustains its burden of proving
defendant guilty of the charged offense does not withstand
analysis.
II
The relevant provision of the aggravated criminal sexual abuse
statute applicable to the case at bar is section 12--16(d), which
criminalizes a defendant's "sexual conduct with a victim who was at
least 13 years of age but under 17 years of age and the accused was
at least 5 years older than the victim." 720 ILCS 5/12--16(d) (West
1992). The essential provision of the criminal sexual abuse statute
requires proof that the defendant engaged in "sexual conduct" with
the victim. "Sexual conduct" is defined as "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, *** for the purpose of sexual
gratification or arousal of the victim or the accused." (Emphasis
added.) 720 ILCS 5/12--12(e) (West 1992).
Case law holds that the elements of aggravated criminal sexual
abuse require touching between the accused and the victim. In
People v. Gann, 141 Ill. App. 3d 34 (1986), after reviewing the
definition of sexual conduct, the appellate court concluded that
the defendant's self-stimulation in the presence of a minor did not
violate the aggravated criminal sexual abuse statute because there
was no sexual touching between the minor and the accused.
Therefore, the appellate court reversed the defendant's conviction
of aggravated criminal sexual abuse and remanded for further
proceedings, noting that defendant's behavior was already addressed
in the lewd exposure subsection of the public indecency statute.
In People v. Deal, 185 Ill. App. 3d 332 (1989), the court
relied on Gann and held that a count charging aggravated criminal
sexual abuse for defendant's fondling himself in front of the minor
for purposes of arousal did not state an offense. In People v.
Harris, 205 Ill. App. 3d 873 (1990), the court held that absent
physical contact between perpetrator and victim, a charge of public
indecency based on sexual conduct failed to state an offense.
Although the evidence that defendant masturbated in the presence of
juvenile males would have supported a public indecency charge based
on lewd exposure, the Harris court noted that the State did not
charge defendant with that offense.
Gann, Deal, and Harris establish that a defendant who publicly
exposes himself in a lewd manner or fondles himself in front of
minors is not guilty of aggravated criminal sexual abuse, if he
does not engage in direct sexual touching or fondling of the
victims. None of these cases suggest that the defendants could
have been prosecuted for attempted aggravated criminal sexual abuse
based on the theory that their exposure and masturbation, without
more, constituted the requisite substantial step toward engaging in
sexual conduct with the minors. In the case at bar, it is
uncontested that defendant did not touch D.R., make any move toward
him, or coerce D.R. into engaging in masturbation with him.
Defendant's nudity or exposure by itself was not criminal in
nature. Therefore, the question becomes whether the sole additional
factor of defendant's verbal invitation to D.R. to engage in sexual
conduct can satisfy the "substantial step" requirement of criminal
attempt in the case at bar.
In considering the above question, it should be noted that
defendant's solicitation for sexual conduct with D.R. did not
violate any Illinois criminal statute. Indecent solicitation of a
child prohibits persons older than 17 from soliciting a "child
under the age of 13 to do any act, which if done would be
aggravated criminal sexual assault, criminal sexual assault,
aggravated criminal sexual abuse or criminal sexual abuse."
(Emphasis added.) 720 ILCS 5/11--6 (West 1992). In the case at bar,
defendant's solicitation for sexual conduct with D.R. did not
constitute solicitation of a child because D.R. was not a child
under the age of 13.
In People v. Nash, 183 Ill. App. 3d 924 (1989), the reviewing
court affirmed a conviction for indecent solicitation of a child.
It is significant that the defendant in Nash (as the defendant in
the case at bar) had also been indicted for attempted aggravated
criminal sexual abuse. The trial court directed a verdict in favor
of defendant on the attempt charge. The facts revealed that a
school custodian placed a note in the locker of a 10-year-old,
requesting that the two of them see each other naked and touch each
other. The effect of the directed verdict is to hold that such
conduct did not constitute a substantial step toward committing
aggravated criminal sexual abuse as a matter of law.
Consistent with the Nash court's disposition of the attempted
aggravated criminal sexual abuse charge, other cases also
illustrate that when a conviction for an attempted sexual offense
is sustained, the evidence revealed that the defendants had
actually engaged in physical conduct signalling the forceful
commencement of a sexual act, rather than merely a passive request
for sexual conduct. For example, in People v. Sutton, 252 Ill. App.
3d 172 (1993), the defendant was convicted of crimes, including
attempted aggravated criminal sexual abuse, based on evidence that
the defendant punched, choked, lay on top of, and threatened the
physically handicapped victim while beginning to remove her
clothing and his own clothing. The court held that defendant's "act
of touching the victim's body with his constituted a substantial
step toward committing sexual conduct." Sutton, 252 Ill. App. 3d at
187. In People v. Traufler, 152 Ill. App. 3d 987 (1987), the court
affirmed a conviction for attempted aggravated criminal sexual
assault, where the evidence of defendant's specific intent to rape
the victim and his substantial step toward perpetrating such
offense included throwing the victim against the wall, telling her
in essence that he wanted to rape her, and beginning to remove her
clothing. See also People v. Bridgewater, 259 Ill. App. 3d 344
(1994).
In contrast to the active and forcible conduct evidenced in
Sutton, Traufler, and Bridgewater, in the case at bar defendant's
request for sexual conduct was unaccompanied by even a suggestion
of coercion or physical force. There is a qualitative difference
between a passive request for sex and the actual commencement of a
sexual crime, manifested by the use of force by a defendant. My
research reveals no case comparable to the one at bar in which a
defendant was convicted of attempted aggravated criminal sexual
abuse based on disrobing in front of a minor or solicitating such
minor, without any physical manifestation that the defendant, with
the requisite intent, had begun forcing himself sexually on the
victim.
In the instant case, defendant could not have been found
guilty of a completed offense of aggravated criminal sexual abuse
under Illinois law because there was no physical contact between
the complainant and defendant. Nor is there sufficient evidence
from which to infer that defendant's nudity and mere verbal request
for sexual contact, without more, legally constitutes an attempt to
commit aggravated criminal sexual abuse. At most, the evidence
demonstrates defendant's hope or desire to engage in sexual
conduct, which is not, to my knowledge, criminal. According to the
facts reported, defendant made no move toward D.R. and in no way
attempted, physically or verbally, to begin touching D.R. or coerce
sexual conduct with him. Defendant's undressing cannot reasonably
be construed as attempted aggravated criminal sexual abuse.
Otherwise, whenever a person removes clothing in the presence of
another he or she could be prosecuted for attempted criminal sexual
abuse.
To summarize, under Illinois' statutory scheme of sexual
offenses, defendant could not be convicted of the offense of
aggravated criminal sexual abuse because there was no sexual
contact between him and D.R. Defendant could not be convicted of
solicitation of a child, because D.R. was older than 13 years of
age. Furthermore, defendant's act of disrobing in a nonpublic place
is not a criminal offense. Notwithstanding the noncriminal nature
of both acts--defendant's undressing and his solicitation of sexual
conduct with D.R.--the majority holds that in combination the acts
give birth to a felony: attempted aggravated criminal sexual abuse.
The alchemy behind such transformation is in no way explained in
the majority decision.
In a single paragraph of its opinion, the majority in the
instant case dispenses with defendant's argument that the evidence
did not sustain his conviction for attempted aggravated criminal
sexual abuse. Without any discussion of cases involving attempts to
commit aggravated criminal sexual offenses, the majority announces,
"After careful consideration, we agree with the appellate
court that this act of exposure, when added to the
request for sexual conduct, was sufficient to constitute
a substantial step notwithstanding the lack of any actual
contact between defendant and the victim. 276 Ill. App.
3d at 1008-09, citing People v. Brewer, 118 Ill. App. 3d
189 (1983). We therefore believe the evidence at trial
was sufficient for the jury to conclude that defendant
was guilty beyond a reasonable doubt ***." Slip op. at 6.
The appellate court's reliance on Brewer and this court's
apparent approval of that case is difficult to understand because
Brewer involved different statutory offenses as well as children
who were under the age of 13. In Brewer, the defendant had exposed
himself to a six-year-old and a seven-year-old in a public park,
offering them $5 to perform fellatio on him. The defendant was
convicted of attempted indecent liberties with a child and indecent
solicitation. One of the issues the defendant raised on appeal was
whether his conviction for indecent solicitation should be vacated,
either because it was based on the same acts as the conviction for
attempted indecent liberties or because solicitation was a lesser
included offense of attempted indecent liberties. Without extended
analysis or case citation, the Brewer court agreed with defendant
that the solicitation conviction should be vacated because,
"[w]hile it [was] clear that separate acts were committed by the
defendant, it is equally clear that the act of exposure alone
without the request for fellatio would not have established the
offense of attempt (indecent liberties) as a matter of law."
Brewer, 118 Ill. App. 3d at 198.
Although the Brewer court's quoted language could be
interpreted as implying that it was defendant's request for
fellatio, apart from or in addition to his public display, which
satisfied the substantial step requirement of attempted indecent
liberties, the defendant in Brewer had not challenged the propriety
of the attempt charge and the court was not faced with the issue
which is presented in the case at bar. Moreover, the offense of
indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par.
11--4) is not the same offense as aggravated criminal sexual abuse
and has been held to have substantially different elements. See,
e.g., People v. Demeron, 153 Ill. App. 3d 440, 448-49 (1987)
(holding that newly enacted statutory scheme of sexual offenses
substantially changed nature of indecent liberties offense). The
victims in Brewer were young children, the solicitation of which
was, and continues to be, proscribed by law, while in the instant
case, defendant's solicitation of D.R., who was over the age of 13,
is not a crime. Accordingly, whatever relevance the majority in the
instant case perceives that Brewer has to the case at bar remains
unexplained and obscure.
In the case at bar, defendant was sentenced to five years in
prison for conduct that is not criminal under Illinois' existing
scheme of sexual offenses. He did not commit the predicate criminal
sexual conduct because there was no sexual "touching or fondling"
between him and D.R. Taking off one's clothes in a private bedroom
is not a crime, even if done during a conversation with a 16-year-
old. Soliciting sexual conduct with a minor over the age of 13 is
not a crime. Mere desire for sexual conduct is not the equivalent
of specific intent to force such conduct upon another. Mere
preparation for or anticipation of sexual conduct is not the
substantial step required under Illinois attempt law. Under the
majority's holding today, a crime nonetheless emerges out of the
mists. I cannot join in this result, nor can I condone this court's
requiring defendant to undergo a second trial and perhaps again be
sentenced to a lengthy prison term. It is the duty of the reviewing
court to ensure that no person accused of a crime is convicted if
reliable evidentiary support for the conviction is lacking. The
test is whether, after viewing the evidence in light most favorable
to the prosecution, any rational fact finder could have found the
essential elements of the offense beyond a reasonable doubt. E.g.,
People v. Schott, 145 Ill. 2d 188, 203 (1991). Applying this
standard, I conclude that defendant's conviction cannot be
sustained.
The majority acknowledges that the jury received erroneous
instructions and directs that such instructions not be given upon
retrial. However, the majority does not acknowledge that its
resolution of this case unfairly gives the State another chance to
convict defendant of a serious felony based on insufficient
evidence of any criminal conduct. The jury heard brief testimony
describing defendant's nude solicitation of a minor who was almost
17 years old. Despite the fact that defendant's nude solicitation
of D.R. was not criminal under Illinois law, the jury was
hopelessly misinstructed on the proper elements of attempted
aggravated criminal sexual abuse. The jury was also offered a
confusing public indecency instruction that lacked evidentiary
support. Under these erroneous instructions, as long as the jury
believed that defendant made a nude solicitation for sex, the only
verdict it could reach was that defendant was guilty of attempted
aggravated criminal sexual abuse. No legitimate purpose is served
in remanding this case for another trial. Defendant's conduct may
be viewed as offensive, but he should not be subjected to further
felony prosecution and risk a significant prison term based on
nonexisting evidence of criminal guilt.
For the foregoing reasons, I dissent.
to request a rehearing. Also, opinions are subject to modification, correction or withdrawal at
anytime prior to issuance of the mandate by the Clerk of the Court. Therefore, because the
following slip opinion is being made available prior to the Court's final action in this matter,
it cannot be considered the final decision of the Court. The official copy of the following
opinion will be published by the Supreme Court's Reporter of Decisions in the Official
Reports advance sheets following final action by the Court.
Docket No. 80367--Agenda 11--September 1996.
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. LONNIE H.
JONES, Appellant.
Opinion filed January 30, 1997.
JUSTICE HARRISON delivered the opinion of the court:
Following a jury trial in the circuit court of Douglas County,
defendant, Lonnie H. Jones, was convicted of attempt (aggravated
criminal sexual abuse) (720 ILCS 5/8--4, 12--16(d) (West 1992)) and
sentenced to a prison term of five years. The appellate court, in
a divided opinion, affirmed. 276 Ill. App. 3d 1006. We allowed
defendant's petition for leave to appeal (155 Ill. 2d R. 315).
A criminal information, filed January 25, 1994, charged
defendant with attempt (aggravated criminal sexual abuse). The
information alleged that, with the intent to commit the offense of
aggravated criminal sexual abuse, defendant "performed a
substantial step toward the commission of that offense, in that he
disrobed in the presence of [D.R.], 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 said [D.R.] to masturbate him
to orgasm, for the purpose of the sexual gratification of the
defendant; and that said defendant was at least 5 years older than
[D.R.]."
At trial, the complainant, D.R., testified that he was born on
January 18, 1977, and was 16 years and 10 months old on November
12, 1993. Around 7 p.m. that evening, he went to Chad William's
apartment in Newman for a party, after receiving an invitation from
Williams and another friend, Matt Hutcherson. Defendant, whom D.R.
had never met before, was at the apartment when the three arrived.
The four men spent the evening drinking beer, with defendant
purchasing an additional supply at some point.
Williams and Hutcherson had either fallen asleep or passed out
in the living room by 11:45 p.m., and defendant went into the
bedroom. D.R. testified that he could not sleep, so about 11:57
p.m. he knocked on the bedroom door, went in and began talking with
defendant. After a while, defendant got undressed and sat naked on
the floor with his back against the bed. The two continued talking,
with D.R. sitting on the floor next to a wall, and then defendant
asked if he could masturbate D.R. Defendant also asked D.R. to
masturbate him. These requests made D.R. fearful, so he replied
"No," and started to leave the bedroom. D.R. testified that, at
this point, defendant told him not to tell anyone about the
incident "or otherwise he'd get me, and if he couldn't, he had
somebody that would." D.R. then went into the living room and lay
down next to his friend Williams, but did not leave the apartment
because he was afraid defendant would come after him.
Under cross-examination, D.R. admitted that defendant had
never touched him and that he had been free to leave at any time.
D.R. stated that, out of embarrassment, he did not report the
incident to anyone for several months. Eventually, he spoke to
Police Chief Russell Stephens, but forgot to mention one of
defendant's two requests for sexual conduct. D.R. denied telling
Stephens that defendant came out of the bedroom and took his
clothes off in the living room, but admitted telling Stephens that
defendant was masturbating himself when he talked to D.R. D.R. then
conceded that in his April 15, 1994, statement to State's Attorney
Richard Broch, he said he had not been looking at defendant and
could not tell whether or not defendant was touching himself or his
penis.
City of Newman Police Chief Russell Stephens testified for the
defense that he interviewed D.R. on January 21, 1994. D.R. told him
that he was spending the night with Williams and Hutcherson in the
apartment when defendant arrived. D.R. further stated that
defendant approached him in the room where Williams and Hutcherson
were sleeping, took off his clothes, obtained an erection, and
asked D.R. to masturbate him. Stephens testified that D.R. gave no
indication in his statement that defendant had threatened him. For
the State, Stephens testified as to his opinion, based on his
experience as a police officer, that defendant was 28 or 29 years
old as of November 1993, and estimated that defendant was at least
10 years older than D.R.
Before this court, defendant challenges the sufficiency of the
evidence supporting his conviction and contends that he did not
receive a fair trial because the trial court: (1) erroneously
refused his tendered jury instruction on the affirmative defense
that he had a reasonable belief the complainant was 17 years of age
or older; (2) erroneously refused his tendered instruction on the
lesser included offense of public indecency based on lewd exposure;
and (3) gave a misleading instruction on the definition of sexual
conduct. We believe the affirmative defense instruction issue to be
dispositive.
At trial, defense counsel tendered, and the trial court
refused, the following instruction:
"It is a defense to the charge of aggravated
criminal sexual abuse that the defendant reasonably
believed [D.R.] to be 17 years of age or older." See
Illinois Pattern Jury Instructions, Criminal, No. 11.64
(3d ed. 1992).
This instruction is based on section 12--17(b) of the Criminal Code
of 1961 (720 ILCS 5/12--17(b) (West 1992)), which operates as an
affirmative defense. See People v. Cora, 238 Ill. App. 3d 492, 499-
500 (1992); People v. Brown, 171 Ill. App. 3d 391, 397-98 (1988).
The appellate court majority below affirmed the trial court's
decision, stating: "On this record, we cannot say that the evidence
presented by the State fairly raised the issue of the affirmative
defense so as to require the trial judge to instruct the jury in
this regard." 276 Ill. App. 3d at 1009. We agree with the appellate
court dissent that defendant's instruction should have been given
to the jury to consider and that it was reversible error to prevent
defendant from presenting this defense by means of the tendered
instruction. 276 Ill. App. 3d at 1011-13 (Cook, P.J., dissenting).
A defendant is entitled to an instruction on his theory of the
case if there is some foundation for the instruction in the
evidence, and if there is such evidence, it is an abuse of
discretion for the trial court to refuse to so instruct the jury.
People v. Crane, 145 Ill. 2d 520, 526 (1991). Very slight evidence
upon a given theory of a case will justify the giving of an
instruction. People v. Bratcher, 63 Ill. 2d 534, 540 (1976); see
also People v. Moore, 250 Ill. App. 3d 906, 915 (1993); People v.
Lyda, 190 Ill. App. 3d 540, 544 (1989). As the appellate court
dissent noted: "In deciding whether to instruct on a certain
theory, the court's role is to determine whether there is some
evidence supporting that theory; it is not the court's role to
weigh the evidence." 276 Ill. App. 3d at 1012 (Cook, P.J.,
dissenting); see also Lyda, 190 Ill. App. 3d at 544.
In order to avail himself of the affirmative defense at issue,
a defendant is required to produce some evidence at trial to
demonstrate the existence of a reasonable belief that the victim
was 17 years of age or older. See People v. Kite, 153 Ill. 2d 40,
44-45 (1992); Cora, 238 Ill. App. 3d at 500. However, the defendant
will be excused from presenting any evidence where the evidence
presented by the State raises the issue of the affirmative defense.
See Cora, 238 Ill. App. 3d at 500; 720 ILCS 5/3--2(a) (West 1992).
In essence, unless the evidence before the trial court is so clear
and convincing as to permit the court to find as a matter of law
that there is no affirmative defense, the issue of whether a
defendant should be relieved of criminal liability by reason of his
affirmative defense must be determined by the jury with proper
instruction as to the applicable law. See Lyda, 190 Ill. App. 3d at
545.
In the case at bar, the State's evidence alone was sufficient
to raise the issue of defendant's reasonable belief that D.R. was
17 years of age or older. At the time of the offense, D.R. was 16
years and 10 months old, and defendant did not know D.R. prior to
the incident. Further, D.R. was consuming alcohol, an activity
restricted to adults, when defendant met him, and D.R. was
apparently free to stay overnight at his friend's apartment.
Additionally, the jury saw D.R. testify and was able to observe his
appearance and demeanor so as to determine whether there was a
reasonable doubt that defendant believed D.R. to be 17 years old.
The appellate court majority's reliance on People v. Lemons,
229 Ill. App. 3d 645 (1992), for its holding is misplaced. As the
dissent noted:
"The Lemons defendant did not appeal any failure to
instruct, but argued the State failed to prove beyond a
reasonable doubt his belief as to the victim's age. The
appellate court held a rational trier of fact could have
found against defendant on that issue (a holding
unavailable in the present case because the trier of fact
was not instructed on the issue), but went on in dicta to
indicate the evidence was not sufficient to impose on the
State the burden of proving that defendant's belief was
unreasonable." 276 Ill. App. 3d at 1012 (Cook, P.J.,
dissenting).
Lemons is also distinguishable on its facts, where the victim was
only 14 and there was evidence that the defendant was told the
victim's age before the offense occurred. See Lemons, 229 Ill. App.
3d at 652.
As earlier stated, defendant was not required to testify or
offer any evidence making his reasonable belief of the victim's age
an issue. The circumstantial evidence presented by the State was
sufficient to raise the affirmative defense. Indeed, mental states
are not commonly proved by direct evidence, but are more often
inferred from the character of a defendant's acts and the
circumstances surrounding the commission of the offense. People v.
Terrell, 132 Ill. 2d 178, 204 (1989); see also People v. Summers,
202 Ill. App. 3d 1, 10 (1990).
We conclude that defendant was entitled to the benefit of the
affirmative defense as shown by the evidence in the record. The
State then would have to prove beyond a reasonable doubt that
defendant did not reasonably believe the victim to be 17 years of
age or over. 720 ILCS 5/3--2(b) (West 1992). Ultimately, it was for
the jury to determine whether defendant had a reasonable belief
that the victim had attained the age of 17 years. Absent
defendant's tendered instruction, the jury lacked the necessary
tools to analyze the evidence fully and to reach a verdict based on
those facts. See Lyda, 190 Ill. App. 3d at 546. The resulting
denial of due process requires that defendant be granted a new
trial.
Defendant also contends that the evidence was insufficient to
sustain his conviction for attempt (aggravated criminal sexual
abuse), and this question must be decided in order to remove the
risk of subjecting defendant to double jeopardy. People v. Taylor,
76 Ill. 2d 289, 309 (1979). Defendant argues that the offense of
aggravated criminal sexual abuse requires an act of sexual conduct
with the victim (720 ILCS 12--16(d) (West 1992)), and that the mere
request for sexual conduct with the victim does not constitute a
"substantial step" towards the commission of that offense necessary
to establish attempt (720 ILCS 5/8--4(a) (West 1992)). However,
D.R. testified that defendant "[got] completely undressed" and then
requested that they engage in acts of mutual masturbation. After
careful consideration, we agree with the appellate court that this
act of exposure, when added to the request for sexual conduct, was
sufficient to constitute a substantial step notwithstanding the
lack of any actual contact between defendant and the victim. 276
Ill. App. 3d at 1008-09, citing People v. Brewer, 118 Ill. App. 3d
189 (1983). We therefore believe the evidence at trial was
sufficient for the jury to conclude that defendant was guilty
beyond a reasonable doubt, but note that this is not a finding that
would be binding on retrial. Taylor, 76 Ill. 2d at 309-10.
Finally, we consider defendant's arguments regarding other
alleged erroneous instructions, to prevent these questions from
arising on retrial. Defendant contends that the trial court erred
in refusing his tendered instruction on the lesser included offense
of public indecency based on lewd exposure (720 ILCS 5/11--9(a)(2)
(West 1992)). The appellate court concluded that public indecency
based on lewd exposure was not an included offense of attempt
(aggravated criminal sexual abuse). 276 Ill. App. 3d at 1011.
In People v. Novak, 163 Ill. 2d 93 (1994), we reaffirmed our
preference for the charging instrument approach in identifying
lesser included offenses. Under this approach, an offense is deemed
to be a lesser included offense if it is described by the charging
instrument. Novak, 163 Ill. 2d at 107. At a minimum, the instrument
charging the greater offense must " `set out the main outline of
the lesser offense.' " Novak, 163 Ill. 2d at 107, quoting People v.
Bryant, 113 Ill. 2d 497, 505 (1986). Contrary to the appellate
court's holding, we find that the lesser included offense at issue
was adequately described by the charging instrument. It is clear
from the language of the information, as set forth above, that the
"main outline" of the offense of public indecency based on lewd
exposure can be found therein. See 720 ILCS 5/11--9 (West 1992).
However, "[t]he identification of a lesser included offense does
not automatically give rise to a correlative right to have the jury
instructed on the lesser offense." Novak, 163 Ill. 2d at 108.
Before a defendant is entitled to a lesser included offense
instruction, the trial court must examine the evidence presented
and determine if it would "permit a jury rationally to find the
defendant guilty of the lesser included offense and acquit him or
her of the greater offense." Novak, 163 Ill. 2d at 108. In the case
at bar, there was no evidence presented, by either the State or
defense, that the defendant's act of exposure was "done with intent
to arouse or to satisfy the sexual desire of the [defendant]." 720
ILCS 5/11--9(a)(2) (West 1992). Rather, the evidence showed that
defendant disrobed in the hope of achieving sexual gratification
through sexual conduct with D.R. Thus, the trial court did not err
in refusing to give the lesser included offense instruction,
because the jury could not have rationally convicted defendant of
public indecency based on lewd exposure where it was not
established that that act was done with the intent to arouse or
satisfy defendant's sexual desire. See People v. Harris, 205 Ill.
App. 3d 873, 876 (1990).
Defendant also contends that the trial court erred when it
gave a misleading and incorrect instruction on the definition of
sexual conduct. For the reasons stated by the appellate court (276
Ill App. 3d at 1010), we agree with defendant and trust that this
error will not be repeated on retrial.
For the foregoing reasons, the judgments of the circuit and
appellate courts are reversed and this cause is remanded for a new
trial consistent with the views expressed herein.
Reversed and remanded.
JUSTICE McMORROW, dissenting:
I respectfully dissent because I believe that defendant's
conviction should be reversed outright. In my opinion, the State
failed to prove, and cannot prove, under the facts in this case,
that defendant committed the crime of attempted aggravated criminal
sexual abuse. The facts in the case at bar do not constitute
attempted aggravated criminal sexual abuse, and therefore defendant
should not be subjected to another trial. Scrutiny of the record
and study of the pertinent case law reveal that the State failed to
carry its burden of proving that defendant committed a criminal
attempt by taking the requisite "substantial step" toward
perpetrating aggravated criminal sexual abuse. If the proof of any
element of the charged crime is lacking or deficient, defendant is
entitled to acquittal as a matter of law. To retry him under such
circumstances would violate the constitutional prohibition against
double jeopardy. Therefore, I dissent from my colleagues' decision
to remand this cause for new trial.
The majority reverses the appellate court's affirmance of the
conviction, based on one issue of trial error, and remands for new
trial. The majority concludes that defendant was entitled to a jury
instruction on the affirmative defense that he reasonably believed
that the victim was 17 years of age or older. Defendant did not
testify to what age he believed D.R. to be, nor did defense counsel
introduce any evidence to show that defendant believed the victim
to be older than he actually was. However, the opinion cites to
cases which permit a defendant to tender an affirmative defense
instruction even if defendant presents no affirmative evidence, as
long as there is evidence in the record which supports an inference
in favor of such a defense. In this case the actual or apparent age
of the complaining witness is important. The fact that D.R. was
only two months less than 17 years of age and that he was allowed
to stay out all night and drink alcohol warrants the giving of an
instruction to the jury to decide whether defendant had a
reasonable belief that D.R. was not under age.
Notwithstanding my agreement with the conclusion of the
majority that defendant's affirmative defense instruction should
have been given, I believe there are more cogent reasons why
defendant's conviction should be reversed. First and foremost, the
majority opinion does not address the question of whether the
State's evidence against defendant duly proved the elements of the
crime charged; it simply announces that the evidence is sufficient.
However, the case at bar involves a fundamental question of whether
the crime for which defendant was convicted can be proved under the
facts of the case. The question is not whether the evidence
establishes that defendant disrobed in front of D.R. and invited
mutual masturbation. The defendant does not argue that the evidence
failed to prove those facts, and the record contains sufficient
evidence to establish them. Rather, the question is whether such
conduct constitutes the crime of attempted aggravated criminal
sexual abuse. Because I believe it does not, based on case law,
logic, and the facts of this case, I cannot agree with that portion
of the opinion which summarily affirms the appellate court's ruling
on the sufficiency of the evidence, and orders defendant to be
tried again. This is not a minor objection to the majority's
opinion, because the conclusion that defendant did not commit the
crime of attempted aggravated criminal sexual abuse should result
in the outright reversal of the conviction and not a remand for
retrial. If any element of the crime charged is not proved or is
deficient, requiring a defendant to be retried would violate his
constitutional right against double jeopardy.
In large part, the majority's ruling that the evidence is
sufficient stems from its failure to analyze the legal requirements
of the crime of attempt and the underlying sexual offense.
Therefore, it is necessary to examine both the legal elements of
the offense with which defendant was charged and the evidence
adduced at trial to prove the elements.
I
The Illinois Criminal Code of 1961 provides that "[a] person
commits an attempt when, with intent to commit a specific offense,
he does any act which constitutes a substantial step toward the
commission of that offense." (Emphasis added.) 720 ILCS 5/8--4(a)
(West 1992). The scienter of attempted crimes is the specific
intent to commit a particular offense. See, e.g., People v. Harris,
72 Ill. 2d 16, 27-28 (1978); People v. Trinkle, 68 Ill. 2d 198, 203
(1977); People v. Viser, 62 Ill. 2d 568, 581 (1975). In addition to
the requisite intent to commit a particular offense, a criminal
attempt requires the taking of a substantial step toward committing
the underlying offense. The defendant must, either by conduct or
words or both, have actually begun to commit the crime or plainly
manifested the intent to commit the underlying crime. Mere
preparation for engaging in the proscribed act does not suffice.
E.g., People v. Smith, 148 Ill. 2d 454, 459 (1992); People v.
Terrell, 99 Ill. 2d 427, 436 (1984). To obtain a conviction under
the Illinois attempt statute, the prosecution's evidence must
demonstrate that defendant came within " `dangerous proximity to
success[ful]' " completion of the crime. See United States v.
Davis, 16 F.3d 212, 218 (7th Cir. 1994); People v. Smith, 148 Ill. 2d at 460 (and cases cited).
In the case at bar, one of the issues raised by defendant is
whether his conduct reasonably can be found to constitute a
substantial step toward committing the type of sexual contact
prohibited by the aggravated criminal sexual abuse statute. The
State argues that defendant's act of undressing was not a lesser
offense consisting of lewd exposure but instead constituted
"preparation" for having sexual contact with D.R. As previously
noted, however, mere preparation does not satisfy the requirement
that a "substantial step" toward commission of the crime must be
established in order to prove a defendant guilty of the inchoate
crime of attempt. The record establishes that, with the exception
of defendant's oral inquiry to D.R., nothing else happened after
defendant disrobed. He and D.R. remained seated on the floor
talking. Defendant did not make any move toward D.R. that could be
interpreted as the commencement of a sexual crime against him.
Defendant did not reach toward D.R., did not touch his clothing or
his body, restrain him, or engage in any conduct which would
exhibit the specific intent to engage in prohibited sexual conduct
with D.R. In my opinion, defendant did not take a substantial step
toward perpetrating attempted aggravated criminal sexual abuse.
The majority concludes that defendant's invitation for sexual
conduct constitutes the necessary substantial step. However, the
majority opinion offers no independent analysis beyond professing
"careful consideration" of the issue. Slip op. at 6. The elements
of aggravated criminal sexual abuse are not analyzed in the
majority opinion, nor is pertinent case law discussed or
distinguished. As more fully explained below, the majority's
acceptance of the State's theory that defendant's passive
invitation for sexual conduct sustains its burden of proving
defendant guilty of the charged offense does not withstand
analysis.
II
The relevant provision of the aggravated criminal sexual abuse
statute applicable to the case at bar is section 12--16(d), which
criminalizes a defendant's "sexual conduct with a victim who was at
least 13 years of age but under 17 years of age and the accused was
at least 5 years older than the victim." 720 ILCS 5/12--16(d) (West
1992). The essential provision of the criminal sexual abuse statute
requires proof that the defendant engaged in "sexual conduct" with
the victim. "Sexual conduct" is defined as "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, *** for the purpose of sexual
gratification or arousal of the victim or the accused." (Emphasis
added.) 720 ILCS 5/12--12(e) (West 1992).
Case law holds that the elements of aggravated criminal sexual
abuse require touching between the accused and the victim. In
People v. Gann, 141 Ill. App. 3d 34 (1986), after reviewing the
definition of sexual conduct, the appellate court concluded that
the defendant's self-stimulation in the presence of a minor did not
violate the aggravated criminal sexual abuse statute because there
was no sexual touching between the minor and the accused.
Therefore, the appellate court reversed the defendant's conviction
of aggravated criminal sexual abuse and remanded for further
proceedings, noting that defendant's behavior was already addressed
in the lewd exposure subsection of the public indecency statute.
In People v. Deal, 185 Ill. App. 3d 332 (1989), the court
relied on Gann and held that a count charging aggravated criminal
sexual abuse for defendant's fondling himself in front of the minor
for purposes of arousal did not state an offense. In People v.
Harris, 205 Ill. App. 3d 873 (1990), the court held that absent
physical contact between perpetrator and victim, a charge of public
indecency based on sexual conduct failed to state an offense.
Although the evidence that defendant masturbated in the presence of
juvenile males would have supported a public indecency charge based
on lewd exposure, the Harris court noted that the State did not
charge defendant with that offense.
Gann, Deal, and Harris establish that a defendant who publicly
exposes himself in a lewd manner or fondles himself in front of
minors is not guilty of aggravated criminal sexual abuse, if he
does not engage in direct sexual touching or fondling of the
victims. None of these cases suggest that the defendants could
have been prosecuted for attempted aggravated criminal sexual abuse
based on the theory that their exposure and masturbation, without
more, constituted the requisite substantial step toward engaging in
sexual conduct with the minors. In the case at bar, it is
uncontested that defendant did not touch D.R., make any move toward
him, or coerce D.R. into engaging in masturbation with him.
Defendant's nudity or exposure by itself was not criminal in
nature. Therefore, the question becomes whether the sole additional
factor of defendant's verbal invitation to D.R. to engage in sexual
conduct can satisfy the "substantial step" requirement of criminal
attempt in the case at bar.
In considering the above question, it should be noted that
defendant's solicitation for sexual conduct with D.R. did not
violate any Illinois criminal statute. Indecent solicitation of a
child prohibits persons older than 17 from soliciting a "child
under the age of 13 to do any act, which if done would be
aggravated criminal sexual assault, criminal sexual assault,
aggravated criminal sexual abuse or criminal sexual abuse."
(Emphasis added.) 720 ILCS 5/11--6 (West 1992). In the case at bar,
defendant's solicitation for sexual conduct with D.R. did not
constitute solicitation of a child because D.R. was not a child
under the age of 13.
In People v. Nash, 183 Ill. App. 3d 924 (1989), the reviewing
court affirmed a conviction for indecent solicitation of a child.
It is significant that the defendant in Nash (as the defendant in
the case at bar) had also been indicted for attempted aggravated
criminal sexual abuse. The trial court directed a verdict in favor
of defendant on the attempt charge. The facts revealed that a
school custodian placed a note in the locker of a 10-year-old,
requesting that the two of them see each other naked and touch each
other. The effect of the directed verdict is to hold that such
conduct did not constitute a substantial step toward committing
aggravated criminal sexual abuse as a matter of law.
Consistent with the Nash court's disposition of the attempted
aggravated criminal sexual abuse charge, other cases also
illustrate that when a conviction for an attempted sexual offense
is sustained, the evidence revealed that the defendants had
actually engaged in physical conduct signalling the forceful
commencement of a sexual act, rather than merely a passive request
for sexual conduct. For example, in People v. Sutton, 252 Ill. App.
3d 172 (1993), the defendant was convicted of crimes, including
attempted aggravated criminal sexual abuse, based on evidence that
the defendant punched, choked, lay on top of, and threatened the
physically handicapped victim while beginning to remove her
clothing and his own clothing. The court held that defendant's "act
of touching the victim's body with his constituted a substantial
step toward committing sexual conduct." Sutton, 252 Ill. App. 3d at
187. In People v. Traufler, 152 Ill. App. 3d 987 (1987), the court
affirmed a conviction for attempted aggravated criminal sexual
assault, where the evidence of defendant's specific intent to rape
the victim and his substantial step toward perpetrating such
offense included throwing the victim against the wall, telling her
in essence that he wanted to rape her, and beginning to remove her
clothing. See also People v. Bridgewater, 259 Ill. App. 3d 344
(1994).
In contrast to the active and forcible conduct evidenced in
Sutton, Traufler, and Bridgewater, in the case at bar defendant's
request for sexual conduct was unaccompanied by even a suggestion
of coercion or physical force. There is a qualitative difference
between a passive request for sex and the actual commencement of a
sexual crime, manifested by the use of force by a defendant. My
research reveals no case comparable to the one at bar in which a
defendant was convicted of attempted aggravated criminal sexual
abuse based on disrobing in front of a minor or solicitating such
minor, without any physical manifestation that the defendant, with
the requisite intent, had begun forcing himself sexually on the
victim.
In the instant case, defendant could not have been found
guilty of a completed offense of aggravated criminal sexual abuse
under Illinois law because there was no physical contact between
the complainant and defendant. Nor is there sufficient evidence
from which to infer that defendant's nudity and mere verbal request
for sexual contact, without more, legally constitutes an attempt to
commit aggravated criminal sexual abuse. At most, the evidence
demonstrates defendant's hope or desire to engage in sexual
conduct, which is not, to my knowledge, criminal. According to the
facts reported, defendant made no move toward D.R. and in no way
attempted, physically or verbally, to begin touching D.R. or coerce
sexual conduct with him. Defendant's undressing cannot reasonably
be construed as attempted aggravated criminal sexual abuse.
Otherwise, whenever a person removes clothing in the presence of
another he or she could be prosecuted for attempted criminal sexual
abuse.
To summarize, under Illinois' statutory scheme of sexual
offenses, defendant could not be convicted of the offense of
aggravated criminal sexual abuse because there was no sexual
contact between him and D.R. Defendant could not be convicted of
solicitation of a child, because D.R. was older than 13 years of
age. Furthermore, defendant's act of disrobing in a nonpublic place
is not a criminal offense. Notwithstanding the noncriminal nature
of both acts--defendant's undressing and his solicitation of sexual
conduct with D.R.--the majority holds that in combination the acts
give birth to a felony: attempted aggravated criminal sexual abuse.
The alchemy behind such transformation is in no way explained in
the majority decision.
In a single paragraph of its opinion, the majority in the
instant case dispenses with defendant's argument that the evidence
did not sustain his conviction for attempted aggravated criminal
sexual abuse. Without any discussion of cases involving attempts to
commit aggravated criminal sexual offenses, the majority announces,
"After careful consideration, we agree with the appellate
court that this act of exposure, when added to the
request for sexual conduct, was sufficient to constitute
a substantial step notwithstanding the lack of any actual
contact between defendant and the victim. 276 Ill. App.
3d at 1008-09, citing People v. Brewer, 118 Ill. App. 3d
189 (1983). We therefore believe the evidence at trial
was sufficient for the jury to conclude that defendant
was guilty beyond a reasonable doubt ***." Slip op. at 6.
The appellate court's reliance on Brewer and this court's
apparent approval of that case is difficult to understand because
Brewer involved different statutory offenses as well as children
who were under the age of 13. In Brewer, the defendant had exposed
himself to a six-year-old and a seven-year-old in a public park,
offering them $5 to perform fellatio on him. The defendant was
convicted of attempted indecent liberties with a child and indecent
solicitation. One of the issues the defendant raised on appeal was
whether his conviction for indecent solicitation should be vacated,
either because it was based on the same acts as the conviction for
attempted indecent liberties or because solicitation was a lesser
included offense of attempted indecent liberties. Without extended
analysis or case citation, the Brewer court agreed with defendant
that the solicitation conviction should be vacated because,
"[w]hile it [was] clear that separate acts were committed by the
defendant, it is equally clear that the act of exposure alone
without the request for fellatio would not have established the
offense of attempt (indecent liberties) as a matter of law."
Brewer, 118 Ill. App. 3d at 198.
Although the Brewer court's quoted language could be
interpreted as implying that it was defendant's request for
fellatio, apart from or in addition to his public display, which
satisfied the substantial step requirement of attempted indecent
liberties, the defendant in Brewer had not challenged the propriety
of the attempt charge and the court was not faced with the issue
which is presented in the case at bar. Moreover, the offense of
indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par.
11--4) is not the same offense as aggravated criminal sexual abuse
and has been held to have substantially different elements. See,
e.g., People v. Demeron, 153 Ill. App. 3d 440, 448-49 (1987)
(holding that newly enacted statutory scheme of sexual offenses
substantially changed nature of indecent liberties offense). The
victims in Brewer were young children, the solicitation of which
was, and continues to be, proscribed by law, while in the instant
case, defendant's solicitation of D.R., who was over the age of 13,
is not a crime. Accordingly, whatever relevance the majority in the
instant case perceives that Brewer has to the case at bar remains
unexplained and obscure.
In the case at bar, defendant was sentenced to five years in
prison for conduct that is not criminal under Illinois' existing
scheme of sexual offenses. He did not commit the predicate criminal
sexual conduct because there was no sexual "touching or fondling"
between him and D.R. Taking off one's clothes in a private bedroom
is not a crime, even if done during a conversation with a 16-year-
old. Soliciting sexual conduct with a minor over the age of 13 is
not a crime. Mere desire for sexual conduct is not the equivalent
of specific intent to force such conduct upon another. Mere
preparation for or anticipation of sexual conduct is not the
substantial step required under Illinois attempt law. Under the
majority's holding today, a crime nonetheless emerges out of the
mists. I cannot join in this result, nor can I condone this court's
requiring defendant to undergo a second trial and perhaps again be
sentenced to a lengthy prison term. It is the duty of the reviewing
court to ensure that no person accused of a crime is convicted if
reliable evidentiary support for the conviction is lacking. The
test is whether, after viewing the evidence in light most favorable
to the prosecution, any rational fact finder could have found the
essential elements of the offense beyond a reasonable doubt. E.g.,
People v. Schott, 145 Ill. 2d 188, 203 (1991). Applying this
standard, I conclude that defendant's conviction cannot be
sustained.
The majority acknowledges that the jury received erroneous
instructions and directs that such instructions not be given upon
retrial. However, the majority does not acknowledge that its
resolution of this case unfairly gives the State another chance to
convict defendant of a serious felony based on insufficient
evidence of any criminal conduct. The jury heard brief testimony
describing defendant's nude solicitation of a minor who was almost
17 years old. Despite the fact that defendant's nude solicitation
of D.R. was not criminal under Illinois law, the jury was
hopelessly misinstructed on the proper elements of attempted
aggravated criminal sexual abuse. The jury was also offered a
confusing public indecency instruction that lacked evidentiary
support. Under these erroneous instructions, as long as the jury
believed that defendant made a nude solicitation for sex, the only
verdict it could reach was that defendant was guilty of attempted
aggravated criminal sexual abuse. No legitimate purpose is served
in remanding this case for another trial. Defendant's conduct may
be viewed as offensive, but he should not be subjected to further
felony prosecution and risk a significant prison term based on
nonexisting evidence of criminal guilt.
For the foregoing reasons, I dissent.
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