1-02-0767

FOURTH DIVISION
MARCH 11, 2004

JUSTICE HARTMAN delivered the opinion of the court:

Having been charged with predatory criminal sexual assault,following a bench trial, defendant Marion Kolton was found guilty ofa lesser-included offense, aggravated criminal sexual abuse. He wassentenced to 90 days' imprisonment and four years' probation. Onappeal, defendant questions whether the circuit court erred in (1) finding him guilty of an uncharged offense, (2) prohibiting him fromquestioning the complainant regarding an incident involving a differentindividual, and (3) finding him guilty beyond a reasonable doubt. Defendant's conviction and sentence are affirmed for the reasons whichfollow.

Prior to trial, defendant moved in limine, seeking to cross-examine the complainant, C.S., and present evidence concerning otherallegations of sexual misconduct made by her. The circuit court denieddefendant's motion.

At trial, Rolling Meadows Police Officer Jason Morrison testifiedthat on April 30, 2000, he and his partner, Officer Frederick Dobs,were on patrol at about 11:40 a.m. They passed a business plazaparking lot in Rolling Meadows. Morrison observed a green minivanparked diagonally across three parking spaces near an embankmentabutting the parking lot. The embankment was a 10 to 12 foot grassypatch, beyond which was an area containing trees and bushes. About tenminutes later, when Morrison again passed by the parking lot, he sawthe van still parked improperly and decided to investigate.

Officers Morrison and Dobs climbed the embankment and saw C.S.,10 or 15 feet away, who appeared to be about age 12, emerging from thenearby bushes while buttoning up her blouse. Morrison also observed aman, defendant, who appeared to be 50 years-old, walking behind C.S.holding a blanket. Morrison asked why they were there. Defendantstated he and his granddaughter had been looking at trees. C.S.agreed. Morrison noticed C.S. was darker in complexion than defendant,and spoke with a Latino accent, but defendant spoke with a thick Polishaccent. The officers separated them and conversed with eachindependently.

Defendant stated he was the landlord in the building where C.S.lived and they were on their way to pick up parts to make repairs inher apartment. He claimed his wife had driven them to the area so theycould look at trees, but she left to go shopping. Officer Morrisontestified there were no retail shopping areas nearby. Further,defendant possessed the keys to the van.

On cross-examination, Officer Morrison testified that when he sawC.S., she was not crying, defendant was not touching her, and herclothes appeared not to have been ripped or torn. He stated he spokein both English and Spanish to C.S., who told him initially that sheand defendant had been looking at trees. She then told him defendantwalked her towards the embankment, laid down a blanket and offered her$15 if she would "hug" him. When defendant tried to hug her, she askedhim not to touch her and they stood up to leave. C.S. did not tellMorrison that defendant touched any part of her body, that he tried torestrain her or force her to do anything.

On redirect-examination, Officer Morrison stated that C.S. toldhim she was afraid to talk to him for fear that defendant would evicther and her mother from the apartment building. In Spanish, she toldMorrison defendant asked her to accompany him to pick up repairsupplies, but on their way to the store, he told her they were going tostop and look at trees, ignoring her requests to go home.

Rolling Meadows Detective Gadomski also testified for the State. On April 30, 2000, he and his partner, Investigator John Sircher, hadbeen briefed by Officers Morrison and Dobs and was present duringC.S.'s sensitivity interview at the Children's Advocacy Center. C.S.and her mother later were taken to the Northwest Community Hospital. Gadomski then returned to the police station where he and Sircherinterviewed defendant. He advised defendant of his rights, speaking tohim in English after defendant expressed no need for a Polishinterpreter. Defendant told Gadomski he owned the building in whichC.S.'s family resided, and that he was to repair their door. He askedC.S. to accompany him to Home Depot. On the way, he became lost andpulled over. He climbed the embankment in the parking lot, but couldnot ascertain his location due to the trees in the area. Upon beingasked about carrying the blanket, defendant responded initially that hedid not know and had lost his mind. He then stated that he thought hehad been holding a box of cigars, not a blanket. Defendant did nottell Gadomski he was in the area to look at trees.

On cross-examination, Detective Gadomski testified that theblanket, as well as C.S.'s clothing, had been examined for semen andpubic hair; neither were discovered. Semen stains were found on C.S.'sunderwear; however, testing revealed they were not secreted bydefendant.

C.S. testified for the State. She was age 12 at the time of theincident. Defendant was her family's landlord; she identified him assuch in court. C.S. recounted that on the day at issue defendant toldher he was going fix doors in her apartment and asked her to accompanyhim to the store to help him carry a door, as he had a back problem. Instead, defendant drove her to a place with bushes. Defendant refusedto take her home despite her requests. He told her to come with him tolook at trees and brought along a blanket. He told her to sit on theblanket. Then, defendant "tried to hug [her] and touched [her]." Heoffered her money if she allowed him to touch her, but she refused. Defendant moved her shorts and underwear to the side. Then he touchedher vagina for a while. Defendant then put his finger inside hervagina. She asked him to drive her home. As they emerged from thebushes, they saw two police officers. Upon hearing defendant tellpolice he was her grandfather, C.S. told them defendant was hergrandfather, her name was Angela Lopez and that they had been lookingat trees. C.S. admitted later that she lied and did not tell policeabout defendant touching her due to her fear that defendant would dosomething to her mother as he was their landlord. She also stated thatshe spoke to defendant in English and they had no difficultyunderstanding each other.

On cross-examination, C.S. testified that when she and defendantwere sitting on the blanket, her legs were crossed and he sat on herleft side with his shoulder touching hers. Using his right hand,defendant pulled her shorts and underwear to the side. Defendant didnot take off her clothing or present his penis. As he touched hervagina, C.S. asked to leave. Defendant told her to wait. C.S. did notcry out when touched and only after three requests to leave did theyget up from the blanket. C.S. was upset at defendant for attempting tohug her. She testified that she informed the officer, who drove her tothe police station, that defendant touched her; she could not remembertelling him that defendant put his finger inside her vagina. At thepolice station, she told no one defendant touched her vagina. Shestated defendant actually offered her money to touch her, not to hugher. She admitted she told the woman who interviewed her at the Centershe lied to police because she was "afraid to be smooching." C.S.stated "smooching" is kissing and hugging. Defendant previously toldher that he would do something to her mother and she was afraid that ifshe told police he would fulfill that threat. On re-directexamination, C.S. stated the buttons on the shirt she wore while withdefendant would come undone by themselves.

The State rested, and the defense presented no evidence. Thecircuit court found C.S. credible and her testimony corroborated byvirtue of her having been taken to a secluded area and defendant havingtaken a blanket to that place. The court also determined the State didnot corroborate defendant's penetration of C.S.'s vagina, and entereda finding of guilt on aggravated criminal sexual abuse, which the courtfound to be a lesser-included offense of predatory criminal sexualassault because "it contains all of the elements of the predatoryexcept for the actual insertion or the actual penetration of thevagina." Defendant was sentenced as noted earlier in this opinion. The court denied defendant's motions to reconsider and for new trial. Defendant timely appeals.

Defendant first contends the circuit court erred in convicting himof a crime for which he was not charged, aggravated criminal sexualabuse (720 ILCS 5/12-16 (West 2000)) which, he argues, is not a lesser-included offense of predatory criminal sexual assault (720 ILCS 5/12-14.1 (2000)).⁽¹⁾

One cannot be convicted of an offense for which he has not beencharged, but may be convicted of an offense not expressly included inthe charging instrument where the offense is a lesser- included offenseof the crime charged. People v. Novak, 163 Ill. 2d 93, 105, 643 N.E.2d762 (1994) (Novak). In determining whether a particular offense is alesser-included offense, the Illinois Supreme Court has held that theproper analysis is the "charging instrument" approach. Novak, 163 Ill.2d at 114. As very recently asserted by Justice Thomas Fitzgerald ina special concurrence, the two-tiered "charging instrument" approach"permits courts to recognize the existence of a lesser-included offenseeven if the charging instrument does not expressly allege all of theelements of the lesser crime, but only implies the elements." Peoplev. Jones, 207 Ill. 2d 122, 143, 797 N.E.2d 640 (2003) (Fitzgerald, J.,specially concurring).

In People v. DeWeese, 298 Ill. App. 3d 4, 698 N.E.2d 554 (1998)(DeWeese), defendant was charged with committing an act of sexualpenetration "to wit: contact between numerous cologne bottles,[defendant's] finger and [victim's] vagina by the threat of force ***." The DeWeese court determined the "'threat of force' language and thearea of [victim's] body touched by defendant implicitly connotes thatdefendant touched [victim's] vagina not by mistake, inadvertence, orfor medical reasons, but instead for the purpose of his sexualgratification or arousal." DeWeese, 298 Ill. App. 3d at 11.

Here, defendant was charged not with mere penetration, but with"sexual" penetration of the victim's vagina with his finger, whichcommon sense dictates is no less likely done for the purpose of sexualgratification than is "sexual" penetration of the victim's vaginaaccompanied by the "threat of force." Contact between defendant'sfinger and the victim's vagina is touching of a sexual nature andimplies sufficiently that defendant was motivated by sexualgratification. See Novak, 163 Ill. 2d at 124 (Nickles, J.,dissenting). Intent to arouse or satisfy sexual desires may beestablished by circumstantial evidence, which the trier of fact mayconsider in inferring defendant's intent from his conduct. People v.Balle, 234 Ill. App. 3d 804, 813, 601 N.E.2d 788 (1992); see alsoPeople v. Allensworth, 235 Ill. App. 3d 185, 189, 600 N.E.2d 1197(1992); People v. Hubbard, 264 Ill. App. 3d 188, 196, 636 N.E.2d 1095(1994).

The primary concern, as noted by the supreme court in People v.DiLorenzo, 169 Ill. 2d 318, 323, 662 N.E.2d 412 (1996) (DiLorenzo), isthat the "indictment apprised defendant of the precise offense chargedwith enough specificity to prepare his defense and allow pleading aresulting conviction as a bar to future prosecution arising out of thesame conduct." Under the present circumstances, it is unnecessary topredicate the existence of gratification or arousal upon the presenceof language indicating a "threat of force." Defendant was charged withthe "sexual penetration" and "intrusion" of his finger into C.S.'svagina. Such language alone is sufficient to imply sexualgratification since that element is inherently incorporated into theconduct as charged. The proposition that the term "sexual conduct"sufficiently implies purposeful sexual gratification, but "sexualpenetration" does not, challenges both logic and reason. Underthe first tier of the "charging instrument" approach, the elements ofthe lesser offense are contained within the greater offense as charged. Defendant was apprised of the precise offense charged with enoughspecificity to prepare his defense and to assert his conviction as adefense for purposes of double jeopardy. It is not necessary that thecharging instrument expressly allege all the elements of the lesseroffense; nor is it required that the lesser offense be a theoretical orpractical necessity of the greater crime. People v. Hamilton, 179 Ill.2d 319, 325, 688 N.E.2d 1166 (1997). It is sufficient if the languageof the charging instrument implicitly contains the elements of thelesser- included offense. DeWeese, 298 Ill. App. 3d at 10. In thecase sub judice, the charging instrument stated that defendant was 17years of age or older; and he committed an act of sexual penetrationwith C.S., who was under 13 years of age when defendant placed hisfinger in her vagina. Clearly, the charging instrument contained a"main outline" of aggravated criminal sexual abuse, as the elements ofthat offense are implicit in the greater offense as charged.

For support, defendant relies upon Novak, where defendant wascharged with aggravated criminal sexual assault and claimed prejudicebecause the jury was not instructed as to the lesser- includeduncharged offense of aggravated criminal sexual abuse. Novak, 163 Ill.2d at 105. In holding that defendant was not entitled to the juryinstruction, the court found the indictment insufficient for failure todescribe accurately the sexual conduct at issue, and for omittinglanguage indicating purposeful sexual gratification. Novak, 163 Ill.2d at 114-15.⁽²⁾

As earlier explained, subsequent to Novak, in DiLorenzo, 169 Ill.2d at 323-25, the supreme court upheld defendant's conviction where anindictment charging criminal sexual abuse failed to state explicitlythat sexual conduct was done for the purpose of sexual gratification orarousal.⁽³⁾ In harmony with DiLorenzo, therefore, aggravated criminalsexual abuse can be considered a lesser-included offense of predatorycriminal sexual assault, even when sexual gratification was not spelledout with greater particularity in the indictment. To sustain theconviction for aggravated criminal sexual abuse, the prosecution wasnot required to present any direct evidence showing the act wascommitted "for the purpose of sexual arousal." In re A.P. and S.P.,283 Ill. App. 3d 395, 398, 669 N.E.2d 1273 (1996) (In re A.P.).

As required under the second tier of the "charging instrumentapproach," the trier of fact must consider evidence adduced at trial toconsider whether defendant can be found guilty of the lesser offense,but acquitted of the greater offense. People v. Landwer, 166 Ill. 2d475, 486, 655 N.E.2d 848 (1995). In the instant case, the evidence attrial supports the circuit court's finding. The record reveals thatdefendant lured a 12 year-old girl into a secluded area under the guiseof going shopping, needing her help due to a back problem. C.S. askeddefendant repeatedly to take her home, but he refused. Instead he tookher to an area with bushes, brought a blanket with him, set it on theground, offered C.S. money for a "hug," moved aside her shorts andunderpants, and touched her vagina with his finger. C.S. testifiedthat defendant inserted his finger into her vagina. Defendant lied topolice, stating that C.S. was his granddaughter, that they were justlooking at trees, and his wife had dropped them off at that location tolook at trees and departed. Defendant possessed the keys to the van. Defendant later told police that he was on his way to Home Depot and,despite his earlier claims that his wife was driving, said that hepulled over because he did not know where he was. When police askedhim why he was carrying the blanket, he said he had no idea why and had"lost his mind." He claimed later he thought he was carrying a cigarbox and not a blanket.

Defendant was C.S.'s landlord and she was afraid he would evicther family or do something to her mother if she told the truth, becausedefendant previously made such threats to her. The circuit judge foundC.S. to be a credible witness and stated that he did "not believe fora moment" that defendant took C.S. to the area to look at trees.

The charged offense of predatory criminal sexual assault, in thiscase, contains the "broad foundation" and "main outline" of the lesser-included offense of aggravated criminal sexual abuse.

Defendant next maintains that the circuit court erred in applyingthe Illinois "rape shield" statute to preclude him from cross-examiningC.S. about another sexual assault, one committed by her godfather.

The prior sexual activity or reputation of the alleged victim orcorroborating witness in a sexual assault case is inadmissible underthe "rape shield" statute, except (1) as evidence concerning the pastsexual conduct between the alleged victim and the accused, when offeredto show consent,⁽⁴⁾ or (2) when "constitutionally required to beadmitted." 725 ILCS 5/115-7 (West 2000). Pursuant to theconfrontation clause in the Sixth Amendment, defendant has a right tocross-examine a witness in order to show motive or bias or otherfactors, which might influence testimony. People v. Davis, 337 Ill.App. 3d 977, 984, 787 N.E.2d 212 (2003). The scope of cross-examination and the admissibility of evidence are within the discretionof the circuit court and will not be disturbed on review, absent aclear abuse of discretion. Davis, 337 Ill. App. 3d at 313. Evidencemay be excluded when its relevancy is so speculative that it is oflittle probative value. Davis, 337 Ill. App. 3d at 313.

Defendant contends the circuit court erred in denying his motionin limine and preventing him from cross-examining the victim aboutprevious sexual abuse by her godfather. The record shows C.S.'sgodfather sexually abused her within several days prior to defendant'scharged conduct. Although defendant alleges C.S. had a motive toaccuse him falsely of abusing her in order to protect her godfather,there is no evidence in the record to substantiate that claim. Instead, the evidence demonstrates the godfather's abuse was discoveredonly after C.S. had accused defendant of abuse. At the time C.S.accused defendant, no one claimed her godfather abused her. There wasalso no evidence that C.S. was implicating defendant in order todeflect attention away from her godfather, nor was there evidence tosuggest that C.S. had any desire to protect her godfather or had amotive to accuse defendant falsely.

Defendant's assertion that People v. Gray, 209 Ill. App. 3d 407,568 N.E.2d 219 (1991), supports his contention is without foundation. In Gray, defendant claimed the victim's fear of telling her mother thatshe became pregnant by a man other than defendant led her to accusedefendant falsely of raping her. Defendant's request that he bepermitted to cross-examine her regarding this fear was denied. Thecircuit court asked for an offer of proof regarding the victim'sstatements that the charges against defendant were not true and thatshe had a motivation to lie. Outside the jury's presence, defensecounsel questioned the victim, who testified that she told another girlthat she believed she had been impregnated by someone other thandefendant, and that if her mother saw her with that person she would bepunished. Offers of proof were also made through two other witnesses,who testified the victim was fabricating charges against defendant outof fear that she became pregnant by a different man. Gray, 209 Ill.App. 3d at 412-13. The appellate court found error in the circuitcourt's refusal to allow defendant to cross-examine the complainant,finding that her protection under the "rape shield" statute wassuperseded because the proffered impeachment was both relevant andbased upon an initial showing of the complainant's motive to testifyfalsely in charging defendant. Gray, 209 Ill. App. 3d at 416-17. Therefore, in Gray, there was specific evidence of the falsity of theallegations.

Unlike Gray, here there is no testimony whatsoever that C.S. wasattempting to protect her godfather by falsely implicating defendant. The circuit court did not abuse its discretion in refusing to allowdefendant to cross-examine C.S. about the abuse by her godfather.

Defendant maintains that the State did not prove beyond areasonable doubt that he was guilty of aggravated criminal sexualabuse. In reviewing the sufficiency of the evidence, the relevantquestion is whether, considering the evidence in the light mostfavorable to the State, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. People v.Cox, 195 Ill. 2d 378, 387, 748 N.E.2d 166 (2001). It is the trier offact's responsibility to determine the witnesses' credibility and theweight to be given their testimony. People v. Ortiz, 196 Ill. 2d 236,258, 752 N.E.2d 410 (2001). Although determinations made by the trierof fact are not conclusive, they are entitled to great deference, anda conviction will be overturned only where the evidence is sounreasonable, improbable or unsatisfactory as to justify a reasonabledoubt of defendant's guilt. Ortiz, 196 Ill. 2d at 259.

Defendant contends specifically that C.S.'s testimony wasincredible and her allegations hard to follow. The record is to thecontrary. Defendant's own behavior and statements corroborated C.S.'stestimony that he had abused her. Defendant admittedly took C.S. to aprivate area "to look at trees," he blatantly lied to police, and wasseen with C.S. emerging from the bushes. At the time of the incident,C.S. was age 12 and defendant age 49. He coaxed C.S. into accompanyinghim to the secluded area and, against her repeated protestations, toldher to sit on the blanket where he both touched and fondled her vagina. She told defendant to take her home, but he did not.

The circuit court was in the best position to determine thecredibility of the witnesses and specifically found C.S. to becredible. The testimony of a single witness, if positive and thewitness credible, is sufficient to convict a defendant. People v.Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365 (1999). The court alsofound defendant's testimony incredulous, stating it did "not believefor a moment" that he brought C.S. to the area merely to look at trees,as he claimed. The court believed defendant's answers to policequestioning showed his intent to hide something. The court'scredibility assessments were well-founded and no basis exists uponwhich to disturb them.

Defendant further claims the State failed to prove an essentialelement of aggravated criminal sexual abuse, because the State did notprove he acted for the purpose of sexual gratification or arousal. This issue has been addressed in Point I, where it is noted that theIllinois Supreme Court found in DiLorenzo that it is not necessary foran indictment charging criminal sexual abuse to state explicitly thatsexual conduct was performed for the purpose of sexual gratification orarousal. Additionally, whether the acts were done for the purpose ofsexual arousal can be inferred from the sexual conduct itself, as shownhere. In re A.P., 283 Ill. App. 3d at 398.

Defendant lastly contends that the State failed to prove he wasover 17 years of age, another element of the offense. Defendant's dateof birth is stated in the indictment as well as elsewhere in therecord. He was born May 18, 1952. The record shows he was 49 years ofage at the time of the trial. Further, there was testimony from theinvestigating officers that they saw a 12 year-old girl with an olderman, defendant, and that he claimed to be her grandfather. Defendantwas not younger than age 17.

The evidence in this case was not so "unreasonable orunsatisfactory" as to justify a reasonable doubt of defendant's guilt.

For the reasons set forth above, the judgment of the circuit courtof Cook County is affirmed.

Affirmed.

GREIMAN, J., concurs.

THEIS, J., dissents.
 

JUSTICE THEIS, dissenting;

In People v. Novak, the Illinois supreme court was presented withthe precise issue raised in this case: whether aggravated criminalsexual abuse is a lesser-included offense of aggravated criminal sexualassault. The court concluded it was not. People v. Novak, 163 Ill. 2d93, 115, 643 N.E.2d 762, 773 (1994). The State attempts to distinguishNovak based on the fact that the defendant in Novak had been chargedwith aggravated criminal sexual assault and not predatory criminalsexual assault. This difference, however, does not affect ouranalysis, as the version of the aggravated criminal assault statuteused to charge the defendant in Novak contains the same elements of thepredatory criminal sexual assault of a child statute with whichdefendant here was charged. See 720 ILCS 5/12-14(b)(1) (West 1994) and720 ILCS 5/12-14.1(a)(1) (West 2000). Because we are bound by theprinciple of stare decisis, this court is without authority to overruleor modify the decisions of the Supreme Court, and therefore, I wouldreverse. King v. Northern Indiana Commuter Transportation Dist., 337Ill. App. 3d 52, 55, 785 N.E.2d 35, 38 (2003).

In Novak, the defendant, who had been charged with aggravatedcriminal sexual assault, appealed the trial court's refusal to tenderjury instructions on aggravated criminal sexual abuse. Novak, 163 Ill.2d at 105, 643 N.E.2d at 768-69. The Illinois supreme court held thatthe trial court's refusal to do so had not been error because thelanguage of the charging instrument in question did not set out theoutline for aggravated criminal sexual abuse. Novak, 163 Ill. 2d at115, 643 N.E.2d at 773. The court reasoned that the offense withwhich the defendant had been charged, aggravated criminal sexualassault, was based on sexual penetration which carried an impliedmental state of intent, as opposed to the intent of sexualgratification that is necessary for the sexual conduct element ofaggravated criminal sexual abuse. Novak, 163 Ill. 2d at 115, 643N.E.2d at 773. In finding that the charging instrument before it,which charged the defendant with aggravated criminal sexual assault anddescribed an act of "sexual penetration," did not describe aggravatedcriminal sexual abuse, the Novak court reasoned that "sexualpenetration," which refers to aggravated criminal sexual assault, andacts of "sexual conduct," which refers to aggravated sexual abuse, aredifferent types of conduct. Novak, 163 Ill. 2d at 114-15, 643 N.E.2dat 773.

The majority rejects this analysis, finding that "common sensedictates" that sexual penetration sufficiently implies the intent ofsexual gratification. While the terms "sexual penetration" and "sexualconduct" may convey a common understanding, we must focus our inquiryon the statutory definitions of these terms and are not at liberty toapply the "common understanding" of a particular term where thelegislature has defined it in a limited and specific manner. Here, inthe statutory definition of sexual conduct, the legislature hasincluded the element of "for the purpose of sexual gratification orarousal." We are required to apply this definition as written evenwhere it does not reflect our common understanding of the term.

To support their holding, my colleagues cite from Justice Nickles'dissent in Novak. However, the majority opinion in Novak rejected hisview, and we are bound to follow the majority. Additionally, themajority here relies upon People v. Allensworth and People v. Balle,both of which are cases that the court in Novak distinguished. Novak,163 Ill. 2d at 114-15, 643 N.E.2d at 773, citing People v. Allensworth,235 Ill. App. 3d 185, 600 N.E.2d 1197 (1992) and People v. Balle, 234Ill. App. 3d 804, 601 N.E.2d 788 (1992). In those cases the use of thephrase "sexual conduct" was held to be sufficient to inform a defendantwho had been charged with aggravated criminal sexual abuse of thecharge against him. Allensworth, 235 Ill. App. 3d at 188-89, 600N.E.2d at 1199; Balle, 234 Ill. App. 3d at 811-13, 601 N.E.2d at 793-94. Thereafter, in People v. Di Lorenzo, the defendant, who had beencharged with aggravated criminal sexual abuse, argued that hisindictment was fatally deficient for failing to state that the allegedsexual conduct was for the purpose of sexual gratification. People v.DiLorenzo, 169 Ill. 2d 318, 321, 662 N.E.2d 412, 413 (1996). Thesupreme court, again citing Allensworth and Balle, held that theindictment in question, which alleged that defendant had committed anact of "sexual conduct" and provided citation to the relevant statutoryprovision, apprised the defendant of the charge against him with enoughspecificity to prepare his defense.⁽⁵⁾ DiLorenzo, 169 Ill. 2d at 323-24,662 N.E.2d at 414.

Unlike Allensworth, Balle, and DiLorenzo, the defendants inNovak and in this case were charged with aggravated or predatorycriminal sexual assault and their indictments made no allegation of"sexual conduct" so as to trigger any notice of the charge of criminalsexual abuse.

I believe the recent case, People v. DeWeese, 298 Ill. App. 3d 4,10, 698 N.E.2d 554, 558 (1998), sheds light on this matter. InDeWeese, this court discussed Novak and DiLorenzo and held thataggravated criminal sexual abuse can be found as a lesser-includedoffense of aggravated criminal sexual assault⁽⁶⁾ even where the indictmentomits language describing defendant's touching or fondling of thevictim for purposes of sexual gratification or arousal. DeWeese, 298Ill. App. 3d at 10, 698 N.E.2d at 558. The court noted that the focusof its inquiry was whether the language of the indictment in questionimplicitly contained the element of touching for the purpose of sexualgratification so as to set forth the main outline of aggravatedcriminal sexual abuse. DeWeese, 298 Ill. App. 3d at 10, 698 N.E.2d at558. The court found that because the indictment at issue allegedcontact between the defendant's finger and the victim's vagina, andthat the defendant had used the threat of force to initiate thiscontact, this combined language implicitly connoted that the defendanttouched the victim for the purpose of his sexual gratification andarousal and not by mistake or inadvertence. DeWeese, 298 Ill. App. 3dat 10-11, 698 N.E.2d at 558. Therefore, the court found that theindictment contained the main outline of aggravated criminal sexualabuse. DeWeese, 298 Ill. App. 3d at 10-11, 698 N.E.2d at 558.

Unlike the indictment in DeWeese, the indictment in this case doesnot contain the additional allegation of the threat of use of force, orany language from which the implication of the element of a purpose ofsexual gratification or arousal could arise, and therefore DeWeese isinapposite. The language used in the charging instrument against thedefendant here reads as follows:

"[O]n or about April 30, 2000, at and withinthe County of Cook,

Marian Kolton committed the offense ofpredatory criminal sexual assault of a child inthat he was seventeen years of age or over andcommitted an act of sexual penetration upon[C.S.], to wit: an intrusion of Marian Kolton'sfinger into [C.S.'s] vagina, and [C.S.] was underthirteen years of age when the act of sexualpenetration was committed in violation of Chapter720, Act 5, Section 12-14.1(a)(1), of theIllinois Compiled Statutes 1992, as amended, andcontrary to the Statute, and against the peaceand dignity of the same People of the State ofIllinois."

The language in this indictment is nearly identical to theindictment in Novak:

"Chester M. Novak committed the offense ofaggravated criminal sexual assault in that he wasseventeen years of age or over and committed anact of sexual penetration upon (the victim), towit: contact between Chester M. Novak's penis and(the victim's) mouth and the victim was underthirteen years when the act of sexual penetrationwas committed, in violation of [Ill. Rev. Stat.1989, ch. 38,par.12-14(b)(1)]."

It is the duty of this court to follow the decisions of oursupreme court. Schusse v. Pace Suburban Bus Division of the RegionalTransportation Authority, 334 Ill. App. 3d 960, 970, 779 N.E.2d 259,267 (2002). As such, because the Illinois supreme court held that theindictment in Novak, a functional equivalent of the indictment in thecase at bar, did not describe the foundation or main outline ofaggravated criminal sexual abuse, we are bound to conclude that theindictment here does not describe the foundation or main outline ofaggravated criminal sexual abuse. I would reverse.

For the reasons stated, I respectfully dissent.

1. The statute identifying predatory criminal sexual assaultprovides, in pertinent part:

"(a) The accused commits a predatory criminalsexual assault of a child if:

(1) the accused was 17 years of age orover and commits an act of sexual penetrationwith a victim who was under 13 years of agewhen the act was committed." 720 ILCS 5/12-14.1(a)(1) (West 2000).

The statute recognizing aggravated criminal sexual abuse (720 ILCS5/12-16(c)(1) (West 2000) provides, in pertinent part:

"the accused commits aggravated criminal sexualabuse if the accused was 17 years of age orover and (i) commits an act of sexual conductwith a victim who was under thirteen years ofage when the act was committed."

Sexual conduct is defined by statute (720 ILCS 5/12-12(e) (West2000), in pertinent part, as "any intentional or knowing touching orfondling by the victims or the accused, either directly or throughclothing, of the sex organs *** of the victim or the accused, or anypart of the body of a child under 13 years of age, *** for thepurpose of sexual gratification or arousal of the victim or theaccused."

2. In Lemons v. O'Sullivan, the Seventh Circuit wrote, "[a]lthoughthe court [in Novak, 163 Ill. 2d 93, 643 N.E.2d 762 (1994)]characterized as erroneous defendant's contention (citingAllensworth[, 235 Ill. App. 3d 185, 189, 600 N.E.2d 1197 (1992)])that a charge of aggravated sexual abuse need not specifically allegethat the sexual gratification or arousal was for the purpose ofsexual gratification or arousal, the opinion recited with seemingapproval the holdings of Allensworth and Balle[, 234 Ill. App. 3d804, 813, 601 N.E.2d 788 (1992)] that 'the words "sexual conduct"were alone sufficient to inform the defendant with reasonablecertainty of the charges against him.' It is our judgment that theSupreme Court of Illinois would not reverse a conviction for sexualabuse based upon an indictment like [defendant's] because it failedto include the statutory language concerning purpose." 54 F. 3d 357,363 n.5 (7th Cir. 1995).

3. Although the DiLorenzo court declined to entertain the issue ofwhether the indictment was required to aver that the conduct was "forthe purpose of sexual gratification," or was required to define"sexual conduct," in upholding defendant's conviction, it wasapparent that defendant was aware that he was being tried for an actof sexual conduct with the victim. 169 Ill. 2d at 323-24.

4. There is no question here but that C.S., age 12 at the time ofthe first and second incidents, was legally incapable of consent. See 720 ILCS 5/12-14.1(a)(1); 720 ILCS 5/12-15(b),(c)(1),(d) (West2000).

5. The majority also refers to Lemons v. O'Sullivan, a case inwhich the defendant challenged his conviction for aggravated sexualabuse because the indictment charged "sexual conduct," but not theintent of sexual gratification. Lemons v. O'Sullivan, 54 F. 3d 357,362-63 (7^th Cir. 1995). DiLorenzo had not yet been decided, and thehabeus corpus petition alleged the indictment did not provided fairnotice of the charge. The 7^th circuit analyzed Novak and correctlypredicted the result in DiLorenzo. Lemons, 54 F. 3d at 363 n. 5. This, however, does not support the conclusion that where a defendantis charged with predatory criminal sexual assault and where theindictment does not charge the defendant with "sexual conduct," thata conviction for aggravated criminal sexual abuse is proper.

6. I note that the version of the aggravated criminal sexualassault statute relied on to charge the defendant in DeWeese containsthe same elements of the predatory criminal sexual assault of a childstatute with which defendant here was charged. See 720 ILCS 5/12-14(b)(1) (West 1994) and 720 ILCS 5/12-14.1(a)(1) (West 2000).