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03/08/89 the People of the State of v. Thomas James Nibbio

March 8, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

THOMAS JAMES NIBBIO, DEFENDANT-APPELLANT

SECTION 12-12(E) (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 12-12(E)) DEFINES "SEXUAL CONDUCT" AS USED IN SECTION 12-15(B)(1) AS FOLLOWS:



APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT

536 N.E.2d 113, 180 Ill. App. 3d 513, 129 Ill. Dec. 429 1989.IL.285

Appeal from the Circuit Court of Madison County; the Hon. Paul Riley, Judge, presiding.

APPELLATE Judges:

JUSTICE LEWIS delivered the opinion of the court. RARICK and CHAPMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LEWIS

The defendant, Thomas Nibbio, was charged by a second amended information in two counts, each alleging the offense of criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12-15(b)(1)). At the close of the evidence in a bench trial on February 23, 1987, the defendant moved as to each count for a directed verdict of not guilty on the ground that the information failed to state and charge an offense. The trial court did not rule on either motion for directed verdict but found the 29-year-old defendant guilty of both counts. After ruling that section 12-15(b)(1) of the Criminal Code of 1961 is not referred to or covered by section 12-15(c) (Ill. Rev. Stat. 1985, ch. 38, par. 12-15(c)) insofar as it deals with enhancement of the penalty for the offense of criminal sexual abuse, the trial court sentenced the defendant to serve 364 days as to each of the two counts, the sentences to run concurrently with one another as well as "with any other sentence given in Pinellas County, Florida, if any." Defendant appeals, raising no issue with respect to the sufficiency of the evidence but challenging the sufficiency of each count of the pleadings to charge an offense. The trial court's ruling concerning enhancement of the penalty pursuant to section 12-15(c) is not a subject of this appeal.

Both offenses involve the same 15-year-old male victim, who was attending a soccer clinic conducted by the defendant. The offenses occurred on July 28 or 29, 1986. The first count alleged that the defendant "knowingly committed an act of sexual conduct" with the victim in that the defendant "fondled the buttocks" of the victim; the second count alleged that the defendant "knowingly committed an act of sexual conduct" with the victim in that the defendant "touched his sex organ to the back" of the victim.

Section 12 -- 15(b)(1) provides in pertinent part:

"(b) The accused commits criminal sexual abuse if:

(1) the accused was 17 years of age or over and commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 16 years of age when the act was committed . . .." (Ill. Rev. Stat. 1985, ch. 38, par. 12-15(b)(1).)

"Sec. 12 -- 12. Definitions. For the purpose of Sections 12 -- 13 through 12 -- 18 of this Code, the terms used in these Sections shall have the following meanings ascribed to them:

(e) 'Sexual conduct' means 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."

The defendant contends concerning both counts of the second amended information that the legislature in its definition of "sexual conduct" has made a clear distinction between victims under 13 years of age and victims 13 years of age or over. By virtue of this distinction, he says, "sexual conduct" involving a victim of the age of 13 and over requires intentional touching or fondling of certain parts of the body, namely, the sex organs, the anus, or the breast, whereas "sexual conduct" involving a victim under the age of 13 years includes the touching or fondling of "any part of the body."

Thus, he argues with regard to count I, fondling the buttocks of a person who is at least 13 years of age, as the second amended information alleges, is not conduct proscribed by section 12 -- 15(b)(1). Count I of the ...


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