Appeal from the Circuit Court of Du Page County. No. 96--CF--1701 Honorable Thomas E. Callum, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Following a jury trial, defendant, James P. Poulos, was found guilty of one count of criminal sexual assault (720 ILCS 5/12--13(a)(2) (West 1996)) and two counts of criminal trespass to a residence (720 ILCS 5/19--4(a) (West 1996)). The trial court sentenced defendant to concurrent periods of incarceration of 10 years for the criminal sexual assault and 365 days for the 2 counts of criminal trespass to a residence (which the trial court deemed merged). Defendant appeals only from his conviction of criminal sexual assault and contends that the trial court erred when it refused to instruct the jury on the offense of battery, touching of an insulting or provoking nature (720 ILCS 5/12--3 (West 1996)), as a lesser included offense of criminal sexual assault. We affirm.
Defendant was charged by a three-count indictment. Count I alleged that defendant committed residential burglary (720 ILCS 5/19--3 (West 1996)) with the intent to commit theft when he entered the dwelling place of W.S. with the intent to commit a theft therein. Count II alleged that defendant committed residential burglary (720 ILCS 5/19--3 (West 1996)) with the intent to commit criminal sexual assault when he entered the dwelling place of W.S. with the intent to commit criminal sexual assault therein. Count III alleged that defendant committed criminal sexual assault (720 ILCS 5/12--13(a)(2) (West 1996)) when he knowingly committed an act of sexual penetration with W.S. by placing his finger in her vagina.
W.S.'s testimony at trial included the following. At about 11:45 p.m. on June 27, 1996, W.S. returned home from work. She was 31 years old and lived by herself in a duplex ranch in Naperville. After she got home, W.S. had a glass of wine and watched television. She went to bed around 1 a.m.
Because it was a warm night, W.S. opened her bedroom window. There was a screen on the window. The blinds were drawn. W.S.'s bed was located near the window. She was wearing a white cotton nightgown that extended to mid-thigh. She was not wearing underclothes. A quilt or duvet covered her. A nightlight that was located below the window was on. W.S. soon fell into a sound sleep.
W.S. was asked to tell the jury the next thing she awoke to. She responded "I was laying [sic] on my side and I was asleep, and I felt something that was in my vagina." As she awakened, W.S. realized that "there was something penetrating inside of my vagina, and then it went from there to caressing the outside."
W.S. then rolled over and observed a man in her bedroom. She did not know the man. The man was stroking his penis. At that point, the man was not touching W.S.'s vagina. W.S. screamed and the man ran out of her house. At trial, W.S. identified defendant as the man who was in her bedroom.
It was subsequently determined that the screen had been removed from W.S.'s bedroom window and that W.S.'s wallet was missing from her dresser. W.S. told the investigating police officers that someone had inserted fingers into her vagina.
At trial, the State's Attorney asked W.S. "is there any question in your mind that [defendant] in fact placed his finger in your vagina that early morning?" W.S. responded "No, there is no question in my mind."
The State called Brian Cunningham to testify at trial. Cunningham testified that he is a detective with the Naperville police department and that he participated in the investigation of the incident in W.S.'s home. Based on a match of latent fingerprints found in W.S.'s home with defendant's fingerprints, Cunningham arrested defendant. After arresting defendant, Cunningham conducted an interview with defendant that occurred in several segments over a period of more than three hours.
In the initial part of the interview, defendant told Cunningham that he lived in an apartment complex near W.S.'s home. Defendant also told Cunningham that on the night of the incident he had trouble sleeping so he went for a walk around the lake behind W.S.'s home. Defendant had seen W.S. on prior occasions and found her to be attractive. As defendant approached W.S.'s home, he had "an uncontrollable urge to look closer."
Defendant also told Cunningham that he then looked through W.S.'s bedroom window and saw her lying naked on her bed. Defendant got sexually aroused and started playing with himself. Defendant felt an urge to get a closer look at W.S. Defendant removed the screen from W.S.'s bedroom window and climbed through the window into her bedroom.
After entering W.S.'s bedroom, defendant first walked through the house to make sure nobody else was home. Defendant then returned to W.S.'s bedroom, stood at the foot of her bed, and masturbated. When W.S. woke up and screamed, defendant ran from the house. Defendant ...