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02/15/96 PEOPLE STATE ILLINOIS v. JAMES DILORENZO

February 15, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
JAMES DILORENZO, APPELLANT.



Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Joe Vespa, Judge, presiding.

The Honorable Justice Freeman delivered the opinion of the court:

The opinion of the court was delivered by: Freeman

The Honorable Justice FREEMAN delivered the opinion of the court:

Defendant, James DiLorenzo, appeals from a judgment of the appellate court finding that the indictment under which defendant was charged was not unconstitutionally defective.

BACKGROUND

Defendant was charged by indictment with criminal sexual assault, aggravated criminal sexual assault and aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38, pars. 12-13(a)(1), 12-14(b)(1), 12-16(c)(1)(i)) of eight-year-old C.R. Following a bench trial in the circuit court of Peoria County, defendant was found guilty of aggravated criminal sexual abuse and was sentenced to an extended term of 14 years' imprisonment.

Defendant appealed, asserting, inter alia, a constitutional deficiency in the indictment. The appellate court affirmed defendant's conviction and sentence (No. 3-93-0894 (unpublished order under Supreme Court Rule 23)).

We subsequently granted defendant's petition for leave to appeal (see 145 Ill. 2d R. 315) and now affirm the appellate court.

On appeal to this court, as in the appellate court, defendant urges that reversal of his aggravated criminal sexual abuse conviction is required. He again contends that the indictment was fatally defective in that the aggravated criminal sexual abuse charge failed to explicitly state that the alleged "sexual conduct" with C.R. was "for the purpose of sexual gratification or arousal of the victim or the accused," and also that the indictment failed to set forth with particularity the allegedly wrongful acts that constituted "sexual conduct."

ARGUMENT(S)

A defendant has a fundamental right, under both the Federal Constitution (U.S. Const., amend. VI) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, ยง 8), to be informed of the "nature and cause" of criminal accusations made against him. ( People v. Meyers (1994), 158 Ill. 2d 46, 51, 196 Ill. Dec. 646, 630 N.E.2d 811.) The "nature and cause" of a criminal accusation refers to the crime committed, not the manner in which it was committed.

The failure to charge an offense is the kind of defect which implicates due process concerns. Such a defect may, therefore be attacked at any time. See Ill. Rev. Stat. 1991, ch. 38, par. 114-1(b); see also 725 ILCS Ann. 5/114-1, Committee Comments-1963, at 529 (Smith-Hurd 1992).

When the sufficiency of the charging instrument is attacked in a pretrial motion, the standard of review is to determine whether the instrument strictly complies with the requirements of section 111-3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1991, ch. 38, par. 111-3(a)). ( Meyers, 158 Ill. 2d at 51.) Contrarily, when, as here, the sufficiency of a charging instrument is attacked for the first time on appeal, the standard of review is more liberal. In such a case, it is sufficient that the indictment apprised the accused of the precise offense charged with enough specificity to (1) allow preparation of his defense and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. People v. Thingvold (1991), 145 Ill. 2d 441, 448, 164 Ill. Dec. 877, 584 N.E.2d 89; People v. Rege (1976), 64 Ill. 2d 473, 478, 1 Ill. Dec. 349, 356 N.E.2d 537; People v. Gilmore (1976), 63 Ill. 2d 23, 29, 344 N.E.2d 456; People v. Pujoue (1975), 61 Ill. 2d 335 339, 335 N.E.2d 437. See also Ill. Rev. Stat. 1991, ch. 38, par. 116-2 (motions in arrest of judgment attacking charging instrument on ground that it does not charge an offense are subjected to same two-pronged test).

Defendant was charged by indictment with aggravated criminal sexual abuse. The indictment was in writing, specifically named the alleged committed offense, and provided citation to the relevant statutory provision, date of the offense, county of its occurrence and the defendant's name. Further, the indictment, in the words of the statute, ...


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