APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
505 N.E.2d 21, 152 Ill. App. 3d 987, 105 Ill. Dec. 895 1987.IL.226
Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
The defendant, George Nelson William Traufler, was found guilty by a Champaign County jury of the offense of attempt (criminal sexual assault) (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4, 12-13) and sentenced to a term of seven years' imprisonment. He appeals, arguing it was error for the trial court to refuse to instruct the jury on the offense of criminal sexual abuse, alleging it is an included offense of attempt (criminal sexual assault).
The evidence shows that on March 8, 1986, the victim was doing her laundry in the apartment building's small laundry room. The defendant peered in the door and asked in graphic terms if she would engage in cunnilingus with him and then stated that he wished to engage in sexual intercourse with her. After telling the defendant to leave, the victim attempted to close the door. The defendant pushed the victim against the wall, grabbing one of her breasts and attempting to pull off her sweatshirt and pants. The victim fought the defendant off by scratching his eyes. The defendant was apprehended a short time later by the police.
The State argues defendant waived this allegation of error by not tendering an appropriate jury instruction. Defendant did object to State's instruction No. 5 but did not tender one consistent with his objection.
The colloquy, at the time of the instruction conference, was as follows:
"THE COURT: No objection, People's 4 is given. People tender their instruction No. 5, which is IPI 2.01.
MR. DEDMAN: I object, and my objection is as follows: Even though she dismisses Count II, I think Count II is a lesser included of this charge, and they should be instructed as to a lesser included offense.
MS. HIRSCH: The Count II was criminal sexual abuse, and in that case it was alleged that he grabbed her breasts. And I argue it's not a lesser included, it's a different crime.
THE COURT: I agree with the state. It's not a lesser included of attempted criminal sexual assault, and so the objection is overruled, and People's 5 is given. All right. People ...