Appeal from the Circuit Court of Cook County; the Hon. Gino L.
DiVito, Judge, presiding.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:
Rehearing denied October 7, 1986.
After a bench trial, the trial court found defendant Craig Lewis not guilty on 17 counts of a 20-count indictment, but guilty on one count of aggravated criminal sexual abuse. The court found that the three counts of aggravated criminal sexual abuse merged into one, and therefore it entered no finding regarding two of the counts. The court sentenced defendant to four years' probation. On appeal, defendant contends: (1) the counts on which he was convicted were void; (2) the State failed to prove that any crime occurred; (3) the State failed to prove the crimes alleged in the counts; and (4) the trial court erroneously admitted hearsay into evidence.
The grand jury charged in count 12 of the indictment that:
"[O]n or about September 23, 1984 at and within the county of Cook Craig Martin Lewis committed the offense of aggravated criminal sexual abuse in that he, a person 17 years of age or over, committed an act of sexual conduct, to wit: sexual intercourse with [O.S.], a person under 13 years of age, in violation of chapter 38, section 12-16-C(1) of the Illinois Revised Statutes 1983 as amended * * *." (Emphasis omitted.)
The other two counts of aggravated criminal sexual abuse, counts 13 and 14, have the same words, except the phrase "sexual intercourse" is replaced with "anal intercourse" and "oral copulation."
• 1 Defendant contends that the three counts are void because each specifies an act of "sexual penetration," and not an act of "sexual conduct," as defined in the Criminal Code of 1961 (Ill. Rev. Stat., 1984 Supp., ch. 38, pars. 12-12(e), (f)). The State argues that the terms "sexual intercourse," "anal intercourse," and "oral copulation" are mere surplusage which the trial court properly disregarded. Surplusage is defined as "immaterial matters, or matters which may be omitted from an indictment without rendering it insufficient or doing damage to the material averments." People v. Figgers (1962), 23 Ill.2d 516, 519, 179 N.E.2d 626.
• 2 If the phrase "to wit: sexual intercourse" is omitted from the indictment, the indictment essentially tracks the language of the statute defendant allegedly violated. That statute reads:
"(c) The accused commits aggravated criminal sexual abuse if:
(1) the accused was 17 years of age or over and commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed." (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-16(c)(1).)
As our supreme court has stated: "It is sufficient to allege an offense in the language of a statute if the words so far particularize the offense that by their use alone an accused is informed with reasonable certainty of the precise offense with which he is charged." (People v. Abrams (1971), 48 Ill.2d 446, 459, 271 N.E.2d 37.) Illinois courts have found that the term "lewd fondling," used in an indictment, informs a defendant with sufficient specificity of the crime with which he is charged (People v. Bradley (1984), 128 Ill. App.3d 372, 378, 470 N.E.2d 1121); similarly, an indictment which alleged that defendant committed an "indecent act" was found sufficient (People v. Johnson (1946), 392 Ill. 409, 411, 64 N.E.2d 878).
• 3 The Criminal Code of 1961 defines "sexual conduct" 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, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused." (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 12-12(e).) The fact that the word "or" is used several times in the statutory definition does not, in and of itself, render the term "sexual conduct" imprecise. (People v. Bradley (1984), 128 Ill. App.3d 372, 378, 470 N.E.2d 1121.) Applying the statutory definition of sexual conduct, we find that section 12-16(c)(1) of the Criminal Code of 1961 essentially provides that any touching of a child under 13 years of age, for the purpose of sexual arousal, constitutes sexual conduct. We find that the words "sexual conduct," standing alone in counts 12, 13 and 14, without the phrases "to wit: sexual intercourse," "to wit: anal intercourse," and "to wit: oral copulation," were sufficiently specific to inform defendant with reasonable certainty of the offense with which he was charged. Therefore, those phrases may be omitted from counts 12, 13 and 14 without rendering them insufficient. People v. Figgers (1962), 23 Ill.2d 516, 179 N.E.2d 626.
Defendant claims that these phrases cannot be regarded as mere surplusage because each specifies a crime distinct from aggravated criminal sexual abuse. Defendant relies principally on People v. Abrams (1971), 48 Ill.2d 446, 271 N.E.2d 37, and People v. Heard (1970), 47 Ill.2d 501, 266 N.E.2d 340. In Abrams, defendant was charged with assaulting police officers, in that she "did without lawful authority strike the officer(s) about the arms and body." (People v. Abrams (1971), 48 Ill.2d 446, 459, 271 N.E.2d 37.) Our supreme court stated: "If there has been any touching or other form of physical contact with the victim, a battery has been committed and not an assault * * *." (48 Ill.2d 446, 459-60, 271 N.E.2d 37.) In Heard the court found a complaint for gambling void because it employed several disjunctives between disparate acts. "The use of the disjunctive under these circumstances causes uncertainty and conjecture as to which of the alternatives the accused is charged with committing." People v. Heard (1970), 47 Ill.2d 501, 505, 266 N.E.2d 340.
We find that the instant case is more nearly parallel to People v. Simpkins (1971), 48 Ill.2d 106, 268 N.E.2d 386. Defendants in Simpkins were charged by complaint with disturbing the peace. The complaints tracked the language of the statute, except that in the complaints the phrase "by firing a revolver" was added. (48 Ill.2d 106, 110, 268 N.E.2d 386.) Our supreme court stated that "[t]he particular means by which each defendant participated in the creation of the disturbance was not critical, and the fact that none of the individual defendants had fired a revolver was immaterial." (48 Ill.2d 106, 111, 268 N.E.2d 386.) In Simpkins, unlike Abrams, the court found that without the offending language, the complaints adequately charged defendants with crimes. Similarly, in the instant case, the indictments adequately stated charges of aggravated criminal sexual abuse, but for the inclusion of the phrases, "to wit: sexual intercourse," "to wit: anal intercourse," and "to wit: oral copulation." The inclusion of the phrases did not mislead defendant in the formulation of his defense, and his defense, if successful, ...