Appeal from the Circuit Court of Stephenson County. No. 93--CF--422. Honorable Richard E. DeMoss, Judge, Presiding.
As Corrected October 29, 1996. Released for Publication December 5, 1996.
The Honorable Justice Hutchinson delivered the opinion of the court. Geiger and Rathje, JJ., concur.
The opinion of the court was delivered by: Hutchinson
The Honorable Justice HUTCHINSON delivered the opinion of the court:
The State appeals from the order of the circuit court of Stephenson County granting the motion of the defendant, John A. Goebel, to dismiss an amended information filed against him on January 9, 1995. The State's motion to reconsider was denied, and this timely appeal was filed. We reverse and remand.
The State petitioned this court for leave to supply us with additional authority; we granted the State's petition. On appeal to this court, the State raises one issue: whether reversal of the trial court's dismissal order is required, based on the authority of People v. DiLorenzo, 169 Ill. 2d 318, 214 Ill. Dec. 846, 662 N.E.2d 412 (1996). The State contends that the allegations in the amended information were sufficient to state the offense of aggravated criminal sexual abuse. We agree with the State.
Defendant was charged by information with the offense of criminal sexual assault. The information was later amended to charge defendant with committing the offense of aggravated criminal sexual abuse. The amended information alleged:
"[Defendant], on or about the 10th day of November 1992 at and within Stephenson County, Illinois did commit the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in violation of Chapter 38, Illinois Revised Statutes *** Section 12--16(b) in that said defendant, [a family member] of [D.R.], knowingly committed an act of sexual conduct with [D.R.], who was under 18 years of age when the act was committed, in that said defendant rubbed his penis against the buttocks of [D.R.]." (Emphasis in original.)
Section 12--16(b) of the Criminal Code of 1961 reads in pertinent part:
"The accused commits aggravated criminal sexual abuse if he or she commits an act of sexual conduct with a victim who was under 18 years of age when the act was committed and the accused was a family member." 720 ILCS Ann. 5/12--16(b) (Smith-Hurd Supp. 1996).
The Criminal Code of 1961 defines "sexual conduct" in pertinent part as "any intentional or knowing touching or fondling by *** the accused *** of the sex organs *** of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996).
Defendant was tried before a jury on January 10-12, 1995. The State's first witness was the victim, D.R. D.R. testified to the events occurring on or about November 8 and 9, 1992, in which she, defendant, and her sister, Tonya, were at the residence of defendant and his wife, Darcy. D.R. testified that the three of them, D.R., Tonya, and defendant, were painting the kitchen, and, by the end of the evening, D.R. had paint in her hair and clothes. She testified that she went upstairs to take a bath, but, because the paint was still in her hair, she called to her sister for assistance. Defendant, instead, went upstairs into the bathroom and suggested she go to the basement and shower the paint out of her hair. D.R. testified that, upon exiting from the shower in the basement, defendant had come down the stairs, led her towards a workout bench, and, with her back facing him, exposed his penis to her. He then "started rubbing his penis up and down on [her] butt." D.R. also testified that defendant told her that she was too beautiful for her own good.
D.R. testified that another incident occurred at defendant's residence after a funeral sometime at the end of June 1992. She testified that she and defendant went downstairs to talk, but that defendant started rubbing her back and put his hand down her pants. She testified that defendant took off D.R.'s pants, kissed her breasts, put his finger in her vagina, and then put his mouth on her vagina. Defendant then exposed his penis to her, ejaculated, and instructed D.R. to taste the semen.
According to D.R.'s testimony, another incident took place at defendant's residence around October 1992. D.R. testified that she and defendant were in the living room and she had been getting him beers from the refrigerator when he told her to go upstairs "so Darcy won't get suspicious." She testified that they went upstairs and defendant turned on the television. Defendant then ...