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December 12, 1995


Appeal from Circuit Court of Douglas County. No. 94CF04. Honorable Frank W. Lincoln, Judge Presiding.

Released for Publication December 12, 1995. Petition for Leave to Appeal Allowed April 3, 1996. As Corrected July 30, 1996.

Justices: Honorable Frederick S. Green, J., Honorable Rita B. Garman, J., Concurring, Honorable Robert W. Cook, P.j., Dissenting

The opinion of the court was delivered by: Green

The Honorable Justice GREEN delivered the opinion of the court:

Defendant was convicted of one count of attempt (aggravated criminal sexual abuse) (720 ILCS 5/8-4, 12-16(d) (West 1992)) and sentenced to five years' imprisonment. On appeal, defendant contends (1) a mere request for sexual conduct in the absence of physical contact with the victim does not constitute a substantial step toward commission of the offense, (2) the evidence established the affirmative defense that defendant reasonably believed the victim was 17 years of age or older and the court erred in refusing to give an instruction on the affirmative defense, and (3) the trial court erred in giving an incorrect instruction on the definition of sexual conduct and refusing an instruction on public indecency.

On November 12, 1993, the victim, D.R., who was 16 years and 10 months old, was invited by Chad Williams and Matt Hutcherson to a party at Williams' apartment in Newman. The three arrived at the apartment at approximately 7 p.m. Defendant, whom the victim had never before met, was present. The four men spent the evening drinking beer, which was apparently purchased by defendant.

By 11:45 p.m., Williams and Hutcherson had either fallen asleep or passed out on the living room floor. D.R. testified that he was not sleepy and decided to talk to defendant, who was located in a bedroom in the apartment. Defendant was seated on the floor next to the bed while D.R. sat on the floor next to a wall.

D.R. testified that after talking for a while, the defendant began undressing and asked if defendant could masturbate D.R. At the time of the request, defendant was completely undressed. D.R. also testified that defendant asked him if D.R. could masturbate defendant. D.R.'s response was one of fear, shock, and paranoia. He stated he responded negatively to the request and left the bedroom. D.R. remained in the apartment, however, and laid down in the living room next to one of his friends to sleep. As D.R. was leaving the bedroom, defendant told him not to tell anybody what had happened "or otherwise he'd get me, and if he couldn't, he had somebody that would."

The victim conceded that defendant never touched him and did not bother him anymore after the initial request and refusal. D.R. did not report the incident to anyone for several months out of embarrassment. D.R. also conceded that defendant did not block the doorway to the bedroom and he was free to leave at any time. There was also testimony that, in the opinion of a witness, defendant was 28 or 29 years of age and was least 10 years older than the victim.

Defendant's initial argument is that the mere request for sexual conduct with a victim does not constitute an attempt to commit sexual conduct. Defendant argues that a substantial step toward commission of the offense requires some physical contact with the victim. Defendant cites a number of cases in which physical contact between defendant and the victim was deemed sufficient to establish the offense of attempt (aggravated criminal sexual abuse). The problem with defendant's argument, however, is that cases which find that some physical contact, albeit not sexual, is sufficient to constitute attempt (aggravated criminal sexual abuse) say nothing about whether conduct which does not involve actual contact with the victim may also be sufficient to constitute a substantial step toward commission of the offense.

The State cites People v. Brewer (1983), 118 Ill. App. 3d 189, 454 N.E.2d 1023, 73 Ill. Dec. 774, for the proposition that actual contact need not occur for the offense of attempt to be completed. We agree. In Brewer, defendant was convicted of attempt (indecent liberties with a child) and indecent solicitation. The evidence showed that defendant, while exposing his genitals to a minor, asked the child to perform an act of fellatio. In rejecting defendant's claim on appeal that he could not be convicted for both attempt and indecent solicitation because they were based on the same act, the court stated:

"The State correctly points out that separate acts were committed by the defendant in the commission of each offense, i.e., indecent solicitation occurred when the defendant asked the child to perform an act of fellatio, while the offense of attempt (indecent liberties with a child) occurred when the defendant took a 'substantial step' [citation] towards the commission of the offense by unzipping his pants and exposing his penis to the victim." Brewer, 118 Ill. App. 3d at 198, 454 N.E.2d at 1030-31.

Despite defendant's argument that the fact that the elements of the former indecent liberties statute are not identical to those of the present offense and the language of the former statute is "amorphous" regarding whether the proscribed touching must be between the perpetrator and the child, we conclude Brewer stands for the proposition that exposure plus a request for sexual conduct can be sufficient to constitute a substantial step notwithstanding the lack of any actual contact between a defendant and the victim.

Defendant's further reliance on the case of People v. Gann (1986), 141 Ill. App. 3d 34, 489 N.E.2d 924, 95 Ill. Dec. 362, is also misplaced. In Gann, defendant was charged with aggravated criminal sexual abuse and public indecency. The only evidence indicated defendant masturbated in the presence of a victim under the age of 13. In reversing the conviction for aggravated criminal sexual abuse, the court interpreted the statute to require some sort of contact between the victim and the accused. There being no contact, there could not have been a conviction. Gann is clearly distinguishable because defendant was not charged with attempt but rather with the actual commission of the offense. Thus, Gann is a completely accurate statement of the law and can be harmonized ...

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