APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
533 N.E.2d 94, 178 Ill. App. 3d 301, 127 Ill. Dec. 476 1988.IL.1889
Appeal from the Circuit Court of Cook County; the Hon. John J. Mannion, Judge, presiding.
JUSTICE McNAMARA delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA
Defendant, Tyrone Finley, was charged with aggravated criminal sexual assault, residential burglary, armed violence, criminal sexual assault, and unlawful restraint. Following a bench trial, defendant was convicted of aggravated criminal sexual abuse and subsequently was sentenced to three years' felony probation, with periodic imprisonment for the first six months. Defendant appeals, alleging that aggravated criminal sexual abuse is not a lesser included offense of aggravated criminal sexual assault and the conviction for aggravated criminal sexual abuse is legally inconsistent with the acquittal for aggravated criminal sexual assault; the prosecution did not prove beyond a reasonable doubt that the victim was not the spouse of defendant at the time of the offense; defendant was not proved guilty beyond a reasonable doubt of aggravated criminal sexual abuse; and defendant was denied a fair trial by the admission of the victim's prior consistent statement.
The victim testified that on December 8, 1985, at approximately 6:10 p.m., she returned to her home and was about to enter when defendant came up behind her, told her to open the door, and followed her into the house. Once inside, defendant ordered the victim's daughter to go upstairs. The victim's daughter testified that defendant was behind her mother with a gun and that he said he would hurt her mother if she did not go upstairs.
Defendant ordered the victim to go down to the basement. At the bottom of the stairs defendant told her to undress. She ran for the telephone but defendant pulled it from her hand and broke it. At that time, she saw a gun in defendant's hand. Defendant told her he wanted to have oral sex with her and then tore off her panties. Defendant pulled down his trousers and the victim performed oral sex on him while he held the gun to her head. About this time, the victim's son came home and proceeded to the basement. He saw defendant with his trousers down and with a gun in his pocket. The victim's son testified that defendant's hand was on the gun. Defendant told him to go upstairs; defendant said he was "taking care of some business." Defendant then had vaginal intercourse with the victim. She testified that she would not have had intercourse with defendant if the gun had not been there.
At some point during the evening, the telephone rang. The victim's daughter answered and told the caller, Reverend Flowers, that defendant was at the house and there was trouble. Reverend Flowers called the police. The police came to the house between 11:30 p.m. and 1 a.m. At defendant's direction, the victim told the police that everything was fine; defendant stood behind her with a gun. After the police left, defendant and the victim returned to the basement. With the gun close by, defendant again had vaginal intercourse with the victim. Defendant left between 6:30 and 7 a.m. Before leaving, he told the victim he would kill her. She did not call the police at that time because she believed defendant's threat. Later that day, however, she did call the police and they instructed her to come in to the police station. The victim went to the police station the next morning and signed a complaint for aggravated assault. The following day, defendant was arrested and charged with aggravated criminal sexual assault. The victim signed a complaint for aggravated criminal sexual assault the day after defendant was charged.
Defendant first contends his conviction for aggravated criminal sexual abuse must be reversed because aggravated criminal sexual abuse is not a lesser included offense of aggravated criminal sexual assault.
Defendant argues that the "intentional or knowing" language of the sexual conduct requirement for aggravated criminal sexual abuse constitutes a mens rea requirement which does not exist for aggravated criminal sexual assault. The sexual penetration requirement for criminal sexual assault does not specifically provide a mens rea requirement. (Ill. Rev. Stat. 1985, ch. 38, par. 12-12(f).) Section 4-3(b) of the Criminal Code of 1961 provides:
"If the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4-4, 4-5 or 4-6 is applicable." (Ill. Rev. Stat. 1985, ch. 38, par. 4-3(b).)
Sections 4-4, 4-5 and 4-6 define, respectively, intent, knowledge, and recklessness. (Ill. Rev. Stat. 1985, ch. 38, pars. 4-4, 4-5, 4-6.) Any of these mental states is applicable to a criminal statute when no mental state is prescribed. (People v. Whitlow (1982), 89 Ill. 2d 322, 433 N.E.2d 629, cert. denied sub nom. Gibson v. United States (1982), 459 U.S. 830, 74 L. Ed. 2d 285, 103 S. Ct. 305.) Thus, one may be convicted of criminal sexual assault while acting knowingly, intentionally, or recklessly. One may not be convicted, however, of criminal sexual abuse while acting recklessly. Defendant argues, therefore, that criminal sexual abuse cannot be a lesser included offense of criminal sexual assault.
We held in People v. Smith (1987), 152 Ill. App. 3d 589, 504 N.E.2d 850, that aggravated criminal sexual abuse is a lesser included offense of aggravated criminal sexual assault. We adhere to that finding and we believe that ...