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January 30, 1997


The Honorable Justice Harrison delivered the opinion of the court. Justice McMORROW, dissenting.

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

Following a jury trial in the circuit court of Douglas County, defendant, Lonnie H. Jones, was convicted of attempt (aggravated criminal sexual abuse) (720 ILCS 5/8-4, 12-16(d) (West 1992)) and sentenced to a prison term of five years. The appellate court, in a divided opinion, affirmed. 276 Ill. App. 3d 1006, 659 N.E.2d 415, 213 Ill. Dec. 499. We allowed defendant's petition for leave to appeal (155 Ill. 2d R. 315).

A criminal information, filed January 25, 1994, charged defendant with attempt (aggravated criminal sexual abuse). The information alleged that, with the intent to commit the offense of aggravated criminal sexual abuse, defendant "performed a substantial step toward the commission of that offense, in that he disrobed in the presence of [D.R.], who was at least 13 years of age but under 17 years of age at the time, stimulated his [own] penis to erection and requested the said [D.R.] to masturbate him to orgasm, for the purpose of the sexual gratification of the defendant; and that said defendant was at least 5 years older than [D.R.]."

At trial, the complainant, D.R., testified that he was born on January 18, 1977, and was 16 years and 10 months old on November 12, 1993. Around 7 p.m. that evening, he went to Chad William's apartment in Newman for a party, after receiving an invitation from Williams and another friend, Matt Hutcherson. Defendant, whom D.R. had never met before, was at the apartment when the three arrived. The four men spent the evening drinking beer, with defendant purchasing an additional supply at some point.

Williams and Hutcherson had either fallen asleep or passed out in the living room by 11:45 p.m., and defendant went into the bedroom. D.R. testified that he could not sleep, so about 11:57 p.m. he knocked on the bedroom door, went in and began talking with defendant. After a while, defendant got undressed and sat naked on the floor with his back against the bed. The two continued talking, with D.R. sitting on the floor next to a wall, and then defendant asked if he could masturbate D.R. Defendant also asked D.R. to masturbate him. These requests made D.R. fearful, so he replied "No," and started to leave the bedroom. D.R. testified that, at this point, defendant told him not to tell anyone about the incident "or otherwise he'd get me, and if he couldn't, he had somebody that would." D.R. then went into the living room and lay down next to his friend Williams, but did not leave the apartment because he was afraid defendant would come after him.

Under cross-examination, D.R. admitted that defendant had never touched him and that he had been free to leave at any time. D.R. stated that, out of embarrassment, he did not report the incident to anyone for several months. Eventually, he spoke to Police Chief Russell Stephens, but forgot to mention one of defendant's two requests for sexual conduct. D.R. denied telling Stephens that defendant came out of the bedroom and took his clothes off in the living room, but admitted telling Stephens that defendant was masturbating himself when he talked to D.R. D.R. then conceded that in his April 15, 1994, statement to State's Attorney Richard Broch, he said he had not been looking at defendant and could not tell whether or not defendant was touching himself or his penis.

City of Newman Police Chief Russell Stephens testified for the defense that he interviewed D.R. on January 21, 1994. D.R. told him that he was spending the night with Williams and Hutcherson in the apartment when defendant arrived. D.R. further stated that defendant approached him in the room where Williams and Hutcherson were sleeping, took off his clothes, obtained an erection, and asked D.R. to masturbate him. Stephens testified that D.R. gave no indication in his statement that defendant had threatened him. For the State, Stephens testified as to his opinion, based on his experience as a police officer, that defendant was 28 or 29 years old as of November 1993, and estimated that defendant was at least 10 years older than D.R.

Before this court, defendant challenges the sufficiency of the evidence supporting his conviction and contends that he did not receive a fair trial because the trial court: (1) erroneously refused his tendered jury instruction on the affirmative defense that he had a reasonable belief the complainant was 17 years of age or older; (2) erroneously refused his tendered instruction on the lesser included offense of public indecency based on lewd exposure; and (3) gave a misleading instruction on the definition of sexual conduct. We believe the affirmative defense instruction issue to be dispositive.

At trial, defense counsel tendered, and the trial court refused, the following instruction:

"It is a defense to the charge of aggravated criminal sexual abuse that the defendant reasonably believed [D.R.] to be 17 years of age or older." See Illinois Pattern Jury Instructions, Criminal, No. 11.64 (3d ed. 1992).

This instruction is based on section 12-17(b) of the Criminal Code of 1961 (720 ILCS 5/12-17(b) (West 1992)), which operates as an affirmative defense. See People v. Cora, 238 Ill. App. 3d 492, 499-500, 179 Ill. Dec. 623, 606 N.E.2d 455 (1992); People v. Brown, 171 Ill. App. 3d 391, 397-98, 121 Ill. Dec. 518, 525 N.E.2d 576 (1988). The appellate court majority below affirmed the trial court's decision, stating: "On this record, we cannot say that the evidence presented by the State fairly raised the issue of the affirmative defense so as to require the trial judge to instruct the jury in this regard." 276 Ill. App. 3d at 1009. We agree with the appellate court dissent that defendant's instruction should have been given to the jury to consider and that it was reversible error to prevent defendant from presenting this defense by means of the tendered instruction. 276 Ill. App. 3d at 1011-13 (Cook, P.J., dissenting).

A defendant is entitled to an instruction on his theory of the case if there is some foundation for the instruction in the evidence, and if there is such evidence, it is an abuse of discretion for the trial court to refuse to so instruct the jury. People v. Crane, 145 Ill. 2d 520, 526, 165 Ill. Dec. 703, 585 N.E.2d 99 (1991). Very slight evidence upon a given theory of a case will justify the giving of an instruction. People v. Bratcher, 63 Ill. 2d 534, 540, 349 N.E.2d 31 (1976); see also People v. Moore, 250 Ill. App. 3d 906, 915, 189 Ill. Dec. 615, 620 N.E.2d 583 (1993); People v. Lyda, 190 Ill. App. 3d 540, 544, 137 Ill. Dec. 405, 546 N.E.2d 29 (1989). As the appellate court dissent noted: "In deciding whether to instruct on a certain theory, the court's role is to determine whether there is some evidence supporting that theory; it is not the court's role to weigh the evidence." 276 Ill. App. 3d at 1012 (Cook, P.J., dissenting); see also Lyda, 190 Ill. App. 3d at 544.

In order to avail himself of the affirmative defense at issue, a defendant is required to produce some evidence at trial to demonstrate the existence of a reasonable belief that the victim was 17 years of age or older. See People v. Kite, 153 Ill. 2d 40, 44-45, 178 Ill. Dec. 769, 605 N.E.2d 563 (1992); Cora, 238 Ill. App. 3d at 500. However, the defendant will be excused from presenting any evidence where the evidence presented by the State raises the issue of the affirmative defense. See Cora, 238 Ill. App. 3d at 500; 720 ILCS 5/3-2(a) (West 1992). In essence, unless the evidence before the trial court is so clear and convincing as to permit the court to find as a matter of law that there is no affirmative defense, the issue of whether a defendant should be relieved of criminal liability by reason of his affirmative defense must be determined by the jury with proper instruction as to the applicable law. See Lyda, 190 Ill. App. 3d at 545.

In the case at bar, the State's evidence alone was sufficient to raise the issue of defendant's reasonable belief that D.R. was 17 years of age or older. At the time of the offense, D.R. was 16 years and 10 months old, and defendant did not know D.R. prior to the incident. Further, D.R. was consuming alcohol, an activity restricted to adults, when defendant met him, and D.R. was apparently free to stay overnight at his friend's apartment. Additionally, the jury saw D.R. testify and was able to observe his appearance and demeanor so as to determine whether there was a reasonable doubt that defendant believed D.R. to be 17 years old.

The appellate court majority's reliance on People v. Lemons, 229 Ill. App. 3d 645, 171 Ill. Dec. 220, 593 N.E.2d 1040 (1992), for its ...

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