Appeal from the Circuit Court of Cook County. Honorable John Morrissey, Judge Presiding.
Buckley, O'connor, Jr., Manning
The opinion of the court was delivered by: Buckley
JUSTICE BUCKLEY delivered the opinion of the court:
Following a jury trial, defendant Vernon Watson was convicted of attempted aggravated criminal sexual assault and robbery. He was sentenced to an extended term of 30 years for attempted aggravated criminal sexual assault and seven years for robbery, the terms to run consecutively. Defendant appeals his convictions and sentences. We affirm his conviction and sentence for robbery, reverse his conviction and vacate his sentence for attempted aggravated criminal sexual assault and remand this cause for a new trial on the sex offense charge.
Prior to jury selection, defendant requested that the circuit court ask each venireperson what his or her feelings are with regard to a black defendant being charged with the attempted aggravated criminal sexual assault of a white woman. In denying the request, the circuit court reasoned that the proposed question would unnecessarily interject race into the trial. Thereafter, the parties proceeded to pick a jury and the trial began.
On the second day of trial, the circuit court discovered that certain jurors had read newspaper articles about the defendant. One of those articles contained information which was inadmissible at trial. That article referred to defendant as a "paroled rapist" and further mentioned his previous arrest for sexual assault. The circuit court voir dired each juror separately concerning newspaper articles featuring defendant. Throughout the questioning, defendant moved to strike certain jurors from their service. After questioning the jurors, the circuit court excused juror Levin because he had read the article containing defendant's background information "in full". The court, however, refused to excuse any of the other jurors. The remaining motions to strike various jurors were denied, as was defendant's motion for a mistrial.
The complainant was the first witness to testify at trial. She stated that on September 13, 1989, she was living in the Beverly area of Chicago and had left her home at 6:05 a.m. to catch the train at the 95th Street station. En route, she noticed a man walking in the opposite direction on the other side of the street. The man crossed over to her side of the street and approached. The complainant testified that she got a good look at her assailant's uncovered face before he grabbed her coat. Defendant then threatened to kill her if she either said anything or ran. He put his hand on her shoulder and forced her to walk down an alley with him. Once in the alley, defendant demanded her jewelry. She gave him her earrings, engagement and wedding rings, watch and a pin. Defendant then demanded money. He took all her money, about $4, credit cards and a Casio personal computer. He also searched her purse and briefcase. Next, defendant commanded her to take off her clothes. When the complainant asked why, defendant responded that it was for his "protection." Slowly, complainant began to remove her clothing. Defendant demanded that she "hurry up." When she attempted to remove her bra, defendant unhooked it. He cupped her left breast in his hand. Then, as she started to remove her skirt, defendant put his hands on her waistband. When defendant did that, complainant fled. She ran to a nearby house, pounded on the door and was admitted by Mrs. Halliday. Halliday called complainant's husband. After arriving at Halliday's house, the husband called the police. The police came 15 minutes later and the complainant related her story to them.
Several hours later, that same morning, the police came to complainant's house and showed her five photos. She chose defendant's photo as the one which depicted her assailant, but commented that the man in the photo looked too young. That photo of defendant had been taken 14 years earlier. Later, that same day, the police returned to her house with another group of five photos. Again, complainant chose defendant's photo as the one which looked like her assailant. Two days later, she went to the police station and picked defendant out of a lineup. After several police detectives corroborated complainant's identification of defendant, the State rested its case.
Since defendant did not present any witnesses to testify on his behalf, the parties proceeded to the instruction conference. Defendant tendered an instruction on the lesser offense of criminal sexual abuse. The circuit court refused to give the jury that instruction. After receiving the instructions and deliberating, the jury found defendant guilty of attempted aggravated criminal sexual assault and robbery. The circuit court sentenced him to a 30-year extended term for attempted aggravated criminal sexual assault and seven years for robbery, the terms to run consecutively. Defendant appeals.
Defendant's first argument on appeal is that the circuit court erred in refusing to instruct the jury on the offense of criminal sexual abuse. Defendant correctly asserts that criminal sexual abuse is a lesser-included offense of attempted aggravated criminal sexual assault. (See People v. Smith (1987), 152 Ill. App. 3d 589, 504 N.E.2d 850, 105 Ill. Dec. 565.) A person commits criminal sexual abuse when he "commits an act of sexual conduct by the use of force or threat of force." (Ill. Rev. Stat. 1991, ch. 38, par. 12-15(a)(1) (now 720 ILCS 5/12-15(a)(1) (West 1992)).) "Sexual conduct" is defined as "any intentional or knowing touching or fondling by * * * the accused, either directly or through clothing, of the sex organs, anus or breast of the victim * * * for the purpose of sexual gratification or arousal of * * * the accused." Ill. Rev. Stat. 1989, ch. 38, par. 12-12(e) (now 720 ILCS 5/12-12(e) (West 1992)).
A defendant who is charged with a single offense can be convicted of another uncharged offense if the latter is a lesser-included offense of the charged crime. (People v. Schmidt (1988), 126 Ill. 2d 179, 533 N.E.2d 898, 127 Ill. Dec. 816.) A crime is a lesser-included offense if the charging instrument together with the evidence introduced at trial, sets out the main outline of the lesser offense. (People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, 101 Ill. Dec. 825.) The indictment charging defendant with forcing complainant to remove her blouse and bra and then, touching her breast, adequately sets out the conduct requirement of criminal sexual abuse. Furthermore, it is not necessary for the charging document to expressly allege all the elements of the lesser offense; it is sufficient if it implicitly sets out the required mental state of knowledge. (People v. Jones (1992), 149 Ill. 2d 288, 595 N.E.2d 1071, 172 Ill. Dec. 401.) In the instant case, the indictment implies the mental state required for a criminal sexual abuse, intent or knowledge. (See People v. Terrell (1989), 132 Ill. 2d 178, 547 N.E.2d 145, 138 Ill. Dec. 176.) In the case at bar, the indictment alleges that defendant touched complainant's breast through the use of threat or force, thereby adequately setting forth that the touching was done intentionally or knowingly.
Although criminal sexual abuse has the additional element that the touching be done for sexual gratification or arousal, the Illinois Supreme Court has opined that such an element is inherent in the definition of "sexual penetration", which was part of defendant's indictment. The supreme court reasoned that the legislature required the element of sexual gratification in order to negate the possibility that the touching which is part of the offense, was not done accidentally or unintentionally. (Terrell, 132 Ill. 2d at 210, 547 N.E.2d at 159.) Since "sexual penetration" was part of defendant's indictment, the criminal sexual abuse element of "sexual gratification" was adequately alleged.
We agree with defendant that the charging instrument in this case sufficiently outlined the offense of criminal sexual abuse and that there was ample evidence of that crime to warrant giving the instruction for this lesser-included offense of attempted aggravated criminal sexual assault. Because the evidence at defendant's trial would have permitted the jury to rationally find him guilty of the lesser offense and acquit him of the greater (see People v. Cramer (1981), 85 Ill. 2d 92, 421 N.E.2d 189, 51 Ill. Dec. 681), we reverse defendant's conviction of attempted aggravated sexual assault, vacate his sentence based thereon and remand this cause for a new trial on the sex offense.
Defendant's second issue on appeal is that the indictment against him failed to allege a substantial step toward the commission of attempted aggravated criminal sexual assault, and therefore, subjects him to further prosecution based on the same conduct, which would be double jeopardy. Defendant has waived this issue for review because he failed to object to the language of the indictment at any time during the trial. It is well-settled law that in order to preserve an issue for appeal, a defendant must make a timely ...