THIRD DIVISION
September 27, 2000

No. 1-99-3882

The State's witness in this bench trial told a grisly story of being sexually assaulted by the defendant, Edward Finn. Finndenied the charges, contending that whatever happened betweenthem was consensual.

The defendant went to trial charged with armed robbery,aggravated criminal sexual assault, two counts of attemptaggravated criminal sexual assault, and aggravated unlawfulrestraint.

The aggravated criminal sexual assault charge fell at theclose of the State's case. After closing arguments, the trialjudge found Finn not guilty of all the remaining charges in theindictment. The judge then found Finn guilty of two unchargedoffenses of criminal sexual abuse, misdemeanors. He did so underthe impression that criminal sexual abuse is a lesser includedoffense of attempt aggravated criminal sexual assault. Wereverse.

FACTS

The issues in this case do not require a detailed account ofthe evidence.

On December 19, 1997, the complainant, a lingerie model at aChicago Heights bar called the Squeeze Inn, agreed to join Finnfor a driving tour of holiday decorations in Westchester. Finneventually parked on a residential street. They got out of hiscar. At this point, the complainant's account of events differsfrom Finn's account.

She testified Finn threatened her with a steak knife, ledher to a nearby wooded area, took money from the blazer she wore,pulled down her pants and pantyhose, tied her to a tree with herbelt, fondled her vagina, and unsuccessfully "tried to enter" hervagina and her anus with his unerect penis. According to thecomplainant, Finn then pushed her to her knees, ordered her toperform oral sex, and ejaculated on her blazer.

Finn testified he accompanied the complainant to a nearbywooded area "to make love." When she said she had no condom,Finn refused to have sex with her. She began to perform oral sexon Finn. Finn announced he was ready to ejaculate, and sheremoved his penis from her mouth.

DECISION

The defendant contends and the State forthrightly concedescriminal sexual abuse is not a lesser included offense of attemptaggravated criminal sexual assault. The concession is driven byour Supreme Court's decision in People v. Novak, 163 Ill. 2d 93,643 N.E.2d 762 (1994).

In Novak, the court recognized "no person can be convicted  of an offense that he or she has not been charged withcommitting." Novak, 163 Ill. 2d at 105. At the same time, "adefendant may be convicted of an offense not expressly includedin the charging instrument if that offense is a lesser includedoffense of the crime expressly charged." Novak, 163 Ill. 2d at105.

The court adopted the "charging instrument" method fordetermining whether an offense is lesser included. That is, welook to the facts alleged in the charging instrument. Then wedetermine whether the lesser included offense is described bythat charging instrument. If it is not, that's the end of theinquiry--no lesser included offense. In Novak, the court,using that approach, held aggravated criminal sexual abuse wasnot a lesser included offense of aggravated criminal sexualassault, the charged offense. Novak, 163 Ill. 2d at 113-14.

In the case before us, the attempt aggravated criminalsexual assault counts did not describe the touching, fondling, ortransfer of semen that fit the definition of "sexual conduct"that is essential to a charge of criminal sexual abuse. See 720ILCS 5/12-12(e); 720 ILCS 5/12-15(a) (West 1998).

In his post-trial motion, Finn relied on Novak to persuadethe trial judge criminal sexual abuse was not a lesser includedoffense of anything charged in the indictment. For some reason,the trial judge declined to follow Novak. He sentenced Finn to10 months in jail and revoked his bond.

We agree with and accept the State's concession that thetrial judge erred in convicting Finn of criminal sexual abuse. But the State does not let go. The State asks us to use SupremeCourt Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)) to find thedefendant guilty of yet another offense--attempt criminal sexualabuse.

The State contends its proposed reduced charge really is alesser included offense of attempt aggravated criminal sexualassault. Because we do not believe there is anything left toreduce from, we decline the State's request.

Rule 615(b)(3) provides:

"(b) Powers of the Reviewing Court. On appeal thereviewing court may:

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(3) reduce the degree of the offense of whichappellant was convicted." (Emphasis added.) 134 Ill.2d R. 615(b)(3).

The operative words are "of which appellant was convicted." This appellant was not convicted of attempt aggravated criminalsexual assault, the charged offense relied on by the State tosupport its request for reduction. The trial judge expresslyfound the defendant not guilty of that charge. Of course, if thetrial judge had found the defendant guilty of an appropriatelesser included offense, it still would have been an acquittal ofthe greater charge. See 720 ILCS 5/3-4(a) (West 1998); People v.McCutcheon, 68 Ill. 2d 101, 106, 368 N.E.2d 886 (1977).

True, we have the authority to reduce charges when a lesser included offense is available, an evidentiary weakness exists, and the trial judge expresses dissatisfaction with imposing themandatory sentence. People v. Hooker, 249 Ill. App. 3d 394, 403,618 N.E.2d 1074 (1993); People v. Williams, 222 Ill. App. 3d 129,138-39, 582 N.E.2d 1158 (1991).

Even where the required elements are available, our powermust be "exercised with caution and circumspection." People v.Jackson, 181 Ill. App. 3d 1048, 1051, 537 N.E.2d 1054 (1989); seealso People v. Jones, 286 Ill. App. 3d 777, 676 N.E.2d 1335(1997). For example, in People v. Mata, 243 Ill. App. 3d 365,611 N.E.2d 1235 (1993), the court reversed a residential burglaryconviction for a failure of proof, then rejected the State'srequest that it find the defendant guilty of the uncharged lesserincluded offense of burglary. Mata, 243 Ill. App. 3d at 374. The court said:

"The problems and potential for abuse are obvious. Agreement with the contention of the State can allowthe State to charge and argue only a greater offense,and upon failure of proof, obtain conviction in theappellate court of the lesser offense. No reduction isappropriate in this case." (Emphasis added.) Mata,243 Ill. App. 3d at 374.

There is no need for us to determine whether attemptcriminal sexual abuse is a lesser included offense of attemptaggravated criminal sexual assault. We know of no rule ordecision that authorizes us to reduce the degree of the offense adefendant has been acquitted of, even if we were so inclined. The defendant's convictions of criminal sexual abuse arereversed.

CONCLUSION

For the reasons stated, we reverse the defendant'sconvictions of criminal sexual abuse. There is nothing toremand.

Reversed.

Hall, P.J., and Cerda, J., concur.