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September 13, 1994


Appeal from the Circuit Court of Cook County. The Honorable Howard T. Savage, Judge Presiding.

Released for Publication October 14, 1994.

DiVito, Scariano, McCormick

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

Following a jury trial, defendant Gregory Kozlowski was convicted of aggravated criminal sexual abuse and sentenced to a seven-year prison term. He contends on appeal that his trial counsel's reliance on a defense that was not an available defense to the crime charged denied him the effective assistance of counsel. He maintains that because of this strategy, the prosecution's case was not subjected to meaningful adversarial testing, and that he is therefore entitled to a new trial without having to establish a reasonable probability that counsel's incompetence affected the outcome of the trial. Defendant also contends that the circuit court erred in failing to instruct the jury on an essential element of the crime charged. For reasons that follow, we reverse and remand for a new trial.

The 30-year-old defendant was charged with committing acts of oral copulation upon the 15-year-old complainant, who worked in defendant's flower shop. The charge was based on section 12-16(d) of the Criminal Code of 1961, which provides that, "the accused commits aggravated criminal sexual abuse if he or she commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 17 years of age and the accused was at least five years older than the victim." (Ill. Rev. Stat. 1991, ch. 38, par. 12-16(d), now codified at 720 ILCS 5/12-16(d) (West 1992).) The statute does not require, and the indictment did not allege, the use of force or threat of force. See People v. Campos (1987), 155 Ill. App. 3d 348, 360, 507 N.E.2d 1342, 108 Ill. Dec. 1.

In opening statement, defense counsel told the jury that, through cross-examination of the State's witnesses, defendant would set out a defense or defenses to the charge, and would testify to corroborate the defense.

Complainant testified that he was born on November 9, 1974, and was 15 years old when he began work in defendant's flower shop in May 1990. He and defendant occasionally drank beer after work, and defendant often talked about homosexual sex. At one point, defendant pushed complainant against a flower cooler and kissed him. Complainant became angry and left. However, on three subsequent occasions, complainant allowed defendant to perform acts of oral sex upon him. Complainant told his parents about the sexual activity after he began counseling sessions with a social worker.

After the direct examination of complainant, the court asked defense counsel in chambers whether his failure to object to certain questions was attributable to his trial strategy. Counsel asked the court which questions he thought were objectionable. The court responded that it did not intend to interfere, but wanted to be surethat "this was the way you wanted to try the case." Counsel then stated that if there was something to which he wanted to object, he would have done so.

On cross-examination, defense counsel asked complainant whether he consented to the acts of oral copulation. Complainant responded that he did consent, and that defendant did not use or threaten to use force.

Complainant's mother testified that his behavior at home changed for the worse after he began working for defendant, and that she sent him to counseling sessions in August 1990. Approximately four months later, he told her about the sexual activity with defendant. Defense counsel did not object to this testimony.

Chicago police officer Kathleen Argentino testified that defendant was arrested in a hotel room in the company of a teenage boy who had run away from home. Defense counsel did not object to this testimony.

The circuit court then initiated the following exchange with defense counsel in chambers:

"The Court: I find it very difficult to sit out there and witness what's happening before me in what's said to be a trial. I have heard what I believe to be inadmissible hearsay, and I have heard evidence of another crime which has no connection so far ...

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