The State charged defendant, Emmanuel J. Boose, withresidential burglary (720 ILCS 5/19--3(a) (West 2000)). Theinformation alleged that he knowingly and without authority enteredMarilyn Nelson's dwelling with the intent to commit criminal sexualassault (720 ILCS 5/12--13(a) (West 2000)). Following a benchtrial, the court found him guilty and sentenced him to five years'imprisonment. Defendant appeals, arguing that (1) the State didnot prove him guilty beyond a reasonable doubt; and (2) the courterred in failing to conduct the proper balancing test beforeallowing the State to use his convictions to impeach him. We agreethat the State did not establish defendant's guilt beyond areasonable doubt, and we therefore reverse his conviction andsentence.

Defendant challenges the sufficiency of the evidence on twobases. First, he alleges that the victim's identification of himwas not reliable. Second, he argues that the State did not provebeyond a reasonable doubt that the perpetrator entered theresidence with the intent to commit criminal sexual assault. Weagree with defendant's second contention and thus summarize onlythe evidence relevant to that issue.

On September 6, 1999, Marilyn Nelson went to sleep on thesecond floor of her residence. Nelson's three daughters slept withher in her bed, and her two sons slept in the room across the hall. Nelson slept in shorts and a T-shirt. At 3:58 a.m., Nelson awokewhen she felt someone touch her thigh. She noticed a man in herbedroom. Nelson described the touch as lasting for "a quicksecond" on the inner part of her mid-thigh, underneath her shorts. Nelson immediately jumped up and screamed, and the man fled downthe stairs.

Nelson called the police and described the intruder and hisclothing. The police found defendant near Nelson's residence. Shortly thereafter, the police conducted a showup, and Nelsonidentified defendant as the intruder.

The State charged defendant with residential burglary, a Class1 felony, alleging that he "knowingly and without authority,entered the dwelling place of Marilyn Nelson *** with the intent tocommit criminal sexual assault." The parties presented anegotiated plea agreement in which defendant would plead guilty tomisdemeanor battery and be sentenced to time served. The Stateexplained to the trial court that it was offering the agreementbecause its case was weak. The assistant State's Attorney told thecourt that the initial charge was misdemeanor criminal trespass,but it was later upped to a felony. The following colloquyoccurred:

"MS. FITZGERALD [Assistant State's Attorney]: [Nelson]remembers what happened, but she's going to have an IDproblem. In and of that itself, Judge, you go to theunderlying offense of proving that you broke into a house forpurposes of sexual assault? How am I going to prove why hewent there just for [sic] the rubbing of a leg? I have nofondling --

THE COURT: I don't know about that.

MS. FITZGERALD: That's the underlying offense. That hebroke in with the purpose not to commit a theft, but thepurpose to commit therein a criminal sexual assault.

MR. SIMMONS [Assistant Public Defender]: Involvingpenetration.

MS. FITZGERALD: And I have him touching a leg."

The court stated that it would accept the plea agreement ifNelson approved, but no other discussion of the plea agreementappears in the record, and the case was transferred to anotherjudge for trial. When the court found defendant guilty, it did notmention the intent issue. However, when it earlier denieddefendant's motion for a directed finding, the court stated that itwas "obvious" that the perpetrator's intent was to commit a sexualassault.

In reviewing the sufficiency of the evidence to support acriminal conviction, our inquiry is whether, after viewing theevidence in the light most favorable to the prosecution, anyrational trier of fact could have found the elements of the crimebeyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261(1985). A residential burglary conviction requires proof that thedefendant knowingly and without authority entered the dwellingplace of another with the intent to commit therein a felony ortheft. 720 ILCS 5/19--3(a) (West 2000). Here, the State alleged,and thus was required to prove, that defendant entered Nelson'sresidence with the intent to commit criminal sexual assault. Forthe purposes of this analysis, we will assume that Nelson'sidentification of defendant was reliable and that he did break intoher house.

The leading case on this issue is People v. Toolate, 101 Ill.2d 301 (1984). In that case, the defendant broke into a woman'shome at 3 a.m. She and her two daughters were asleep in anupstairs bedroom. She awoke when she felt someone pull on her leftside. Upon getting out of bed, she noticed that the lamp next tothe bed had been unplugged. She turned on the bathroom and bedroomlights and noticed the defendant standing in her bedroom. Shesaid, "I knew somebody else was in there with us." 101 Ill. 2d at303. The defendant replied, "That makes two of us that know thatnow, doesn't it?" 101 Ill. 2d at 303. The woman told the man toget out of her apartment, and the man replied, "I'm going, I'mgoing, I'm gone," and fled. 101 Ill. 2d at 303. The evidenceshowed that, in addition to unplugging the bedside lamp, thedefendant had moved furniture to form an enclosure around the bed. 101 Ill. 2d at 304.

The defendant was convicted of residential burglary,predicated on the intent to commit rape. The Criminal Code of 1961defined rape as sexual intercourse with a female not one's wife byforce and against her will. Ill. Rev. Stat. 1981, ch. 38, par. 11--1(a). The supreme court reversed the defendant's conviction,holding that the State had not proved beyond a reasonable doubtthat the defendant intended to use force against or have sexualintercourse with the victim. The court noted that the defendantdid not use any force against the victim or engage in any sexualcontact. The court also noted that the defendant's behavior wasinconsistent with that of a would-be rapist in that he did notattempt to hide his identity, did not attempt to restrain thevictim, and left willingly when she told him to leave. Toolate,101 Ill. 2d at 305-06.

The Toolate court reviewed cases in which courts had upheldconvictions of residential burglary predicated on the intent tocommit rape. In People v. Tackett, 91 Ill. App. 3d 410, 411-12(1980), the defendant wrestled the sleeping victim to the floor,did not stop when she asked him to, and attempted to unbutton hershirt while holding one hand over her mouth. In People v. Clerk,68 Ill. App. 3d 1021, 1025 (1979), the defendant was partiallymasked and held a knife to the victim's throat. He ordered her tobe quiet and to lie on the floor. He unbuckled his belt andunzipped his pants, but fled when he heard noises upstairs.

Toolate contrasted those cases with People v. Matthews, 44Ill. App. 3d 342 (1976). In that case, the complaining witnessknew the defendant because he had been in her home previously torepair her clothes dryer. On the date in question, he entered her home through an open door and said, "I want to fuck you." Matthews, 44 Ill. App. 3d at 343. He then suggested that she callthe police. The woman went to a neighbor's house to call thepolice, and the defendant did not try to stop her. She returnedwith a neighbor and found the defendant naked from the waist down. The appellate court reversed the defendant's conviction ofresidential burglary with the intent to commit rape, noting that,although the defendant expressed a desire to have sex with thevictim, there was no evidence that he intended to do so by force. He did not attempt to touch her, and he even suggested that shecall the police. He did not try to stop her when she went to doso. Matthews, 44 Ill. App. 3d at 343-44.

The Toolate court determined that the case before it was morelike Matthews than Tackett or Clerk because there was no evidencethat the defendant intended to use force. The supreme court heldthat the State's case was even weaker than in Matthews becausethere was no evidence that the defendant intended to have sex withthe victim. Toolate, 101 Ill. 2d at 307. The court stated thatthe defendant's strange and unexplained behavior--such as forminga furniture barricade around the bed--was not proof beyond areasonable doubt that he entered the residence intending to commitrape. Toolate, 101 Ill. 2d at 305-06.

Since Toolate was issued, the appellate court has twice upheldconvictions of residential burglary predicated on the intent tocommit criminal sexual assault. In People v. Maggette, 311 Ill.App. 3d 388, 391 (2000), the victim awoke to find the defendantsucking her breast and caressing her vagina. He was also using herhand to rub his penis. In upholding his conviction, the courtnoted that the victim had previously rejected advances by thedefendant, he was not permitted to enter the home, and he knew thatshe was alone and intoxicated. Maggette, 311 Ill. App. 3d at 398-99.

In People v. Cunningham, 265 Ill. App. 3d 3, 6 (1994), thedefendant, who worked for the victim's husband, made scores ofobscene calls to the victim when her husband was not home. In mostof the calls, the defendant merely expressed a desire to engage insexual acts with the victim. In one, however, he threatened, "'I'm going to f--- you're a--.' " Cunningham, 265 Ill. App. 3d at6. The defendant broke into the victim's house at 5 a.m., shortlyafter her husband left for work. This court upheld the defendant'sconviction. We noted that the evidence showed that the defendanthad repeatedly expressed a desire to have sex with the victim andthat he knew that the victim would be unreceptive. Further, theevidence showed that the defendant had been watching the house andbroke in right after the victim's husband had left. We held thata rational jury could infer beyond a reasonable doubt that thedefendant entered with the intent to commit criminal sexualassault. Cunningham, 265 Ill. App. 3d at 7.

Here, we must conclude that a rational trier of fact could notfind beyond a reasonable doubt that defendant entered Nelson'sresidence with the intent to commit criminal sexual assault. Defendant broke into Nelson's house between 3 and 4 a.m. and thusclearly did commit a crime. Further, a rational trier of factcould conclude that defendant entered the residence with a criminalintent. In Toolate, however, the supreme court held that the mereact of breaking and entering could not be used to infer an intentto commit a felony. Otherwise, the statute's requirement ofspecific intent to commit a felony would be meaningless. The courtstated that it would not "indulge in the hopelessly circularreasoning that the entry must be accompanied by an intent whichstands proven by the entry itself." Toolate, 101 Ill. 2d at 308.

The question thus becomes whether defendant's briefly rubbingthe inside of Nelson's thigh while she slept proved beyond areasonable doubt that he entered with the intent to commit criminalsexual assault. We hold that it did not. The facts here are notsimilar to those in which courts have upheld residential burglaryconvictions based on the intent to commit rape or criminal sexualassault. Defendant never expressed a desire to have sex withNelson, used no force against her, did not threaten her in any way,and did not touch her genitals. Further, as in Toolate,defendant's actions were somewhat inconsistent with those of awould-be rapist. Defendant made no attempt to hide his identityand fled the house the moment the victim woke up. These do notseem like the actions of someone who entered the residence with thespecific intent to commit a criminal sexual assault.

The touch defendant used here--rubbing the inside of Nelson'sthigh--was perhaps more sexual than the pull on the victim's leftside in Toolate. On the other hand, defendant here did not builda furniture barricade around the bed or unplug the bedside light asdid the defendant in Toolate. Regardless, defendant's actions weresimply not sufficient for a rational trier of fact to concludebeyond a reasonable doubt that defendant entered with the intent tocommit an act of sexual penetration by the use or threat of force(see 720 ILCS 5/12--13(a)(1) (West 2000)).

The State argues that criminal sexual assault (720 ILCS 5/12--13(a) (West 2000)) is not the same as rape and thus Toolate doesnot control. According to the State, the rape statute requiredproof of sexual intercourse by force and against the complainant'swill (see Ill. Rev. Stat. 1981, ch. 38, par. 11--1(a)), whilecriminal sexual assault can be committed in four different ways,three of which do not require the use of force (see 720 ILCS 5/12--13(a) (West 2000)). The State concedes that two of these (720 ILCS5/12--13(a)(3), (a)(4) (West 2000)) are inapplicable. The Stateposits, however, that defendant could have been found guilty ofentering with the intent to commit criminal sexual assault undersubsection 12--13(a)(2) (720 ILCS 5/12--13(a)(2) (West 2000)),which is defined as the accused committing "an act of sexualpenetration [when] the accused knew that the victim was unable tounderstand the nature of the act or was unable to give knowingconsent." According to the State, the trial court could haveproperly found that defendant intended to have sexual intercoursewith Nelson while she was asleep.

There are numerous problems with the State's argument. First,its statutory argument is simply incorrect. Although the rapestatute required a showing that the act of sexual intercourse was by force and against the victim's will, the statute specificallyexplained that sex was "by force and against [the victim's] will"if the victim was unconscious. See Ill. Rev. Stat. 1981, ch. 38,par. 11--1(a)(1). Thus, contrary to the State's assertion, sexwith a sleeping person would have been rape without any additionalshowing of force or threatened force.

The second problem with the State's argument is that the Statenever argued this theory in the trial court. If anything, theState's argument suggests that the charging instrument may havebeen defective in that defendant was never given proper notice ofthe precise charge against him. Neither in the charging instrumentnor at trial did the State ever specify what type of criminalsexual assault defendant intended to commit. Essentially, theState is suggesting that it can charge defendant with entering withthe intent to commit criminal sexual assault and not state untilthe cause is on appeal what type of criminal sexual assault it isalleging. Defendant, however, has not challenged the charginginstrument.

The most fundamental problem with the State's argument is thatthe evidence is simply insufficient to support this theory. Justas it was insufficient to show an intent to commit an act of sexualpenetration by the use or threat of force, proof that defendantrubbed Nelson's thigh is simply not sufficient to show beyond areasonable doubt that he entered her residence with the intent tocommit an act of sexual penetration on a sleeping person.

We emphasize that we are not saying that defendant committed no crime when he entered Nelson's residence. Instead of chargingdefendant with crimes that it probably could have proved (e.g.,battery, criminal trespass to a residence), however, the Stateelected to charge defendant with a crime of which there simply wasnot sufficient evidence. The State acknowledged at a pretrialconference that it did not believe it had sufficient evidence toconvict defendant of residential burglary, yet it decided toproceed with that charge.

Accordingly, we have no choice but to reverse defendant'sconviction of residential burglary, the only crime with which hewas charged.

Reversed.

McLAREN and BYRNE, JJ., concur.