APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. 98 Cr 15466 HONORABLE FRANCIS GOLNIEWICZ, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Wolfson
The State's witness in this bench trial told a grisly story of being sexually assaulted by the defendant, Edward Finn. Finn denied the charges, contending that whatever happened between them was consensual.
The defendant went to trial charged with armed robbery, aggravated criminal sexual assault, two counts of attempt aggravated criminal sexual assault, and aggravated unlawful restraint.
The aggravated criminal sexual assault charge fell at the close of the State's case. After closing arguments, the trial judge found Finn not guilty of all the remaining charges in the indictment. The judge then found Finn guilty of two uncharged offenses of criminal sexual abuse, misdemeanors. He did so under the impression that criminal sexual abuse is a lesser included offense of attempt aggravated criminal sexual assault. We reverse.
The issues in this case do not require a detailed account of the evidence.
On December 19, 1997, the complainant, a lingerie model at a Chicago Heights bar called the Squeeze Inn, agreed to join Finn for a driving tour of holiday decorations in Westchester. Finn eventually parked on a residential street. They got out of his car. At this point, the complainant's account of events differs from Finn's account.
She testified Finn threatened her with a steak knife, led her to a nearby wooded area, took money from the blazer she wore, pulled down her pants and pantyhose, tied her to a tree with her belt, fondled her vagina, and unsuccessfully "tried to enter" her vagina and her anus with his unerect penis. According to the complainant, Finn then pushed her to her knees, ordered her to perform oral sex, and ejaculated on her blazer.
Finn testified he accompanied the complainant to a nearby wooded area "to make love." When she said she had no condom, Finn refused to have sex with her. She began to perform oral sex on Finn. Finn announced he was ready to ejaculate, and she removed his penis from her mouth.
The defendant contends and the State forthrightly concedes criminal sexual abuse is not a lesser included offense of attempt aggravated criminal sexual assault. The concession is driven by our Supreme Court's decision in People v. Novak, 163 Ill. 2d 93, 643 N.E.2d 762 (1994).
In Novak, the court recognized "no person can be convicted of an offense that he or she has not been charged with committing." Novak, 163 Ill. 2d at 105. At the same time, "a defendant may be convicted of an offense not expressly included in the charging instrument if that offense is a lesser included offense of the crime expressly charged." Novak, 163 Ill. 2d at 105.
The court adopted the "charging instrument" method for determining whether an offense is lesser included. That is, we look to the facts alleged in the charging instrument. Then we determine whether the lesser included offense is described by that charging instrument. If it is not, that's the end of the inquiry--no lesser included offense. In Novak, the court, using that approach, held aggravated criminal sexual abuse was not a lesser included offense of aggravated criminal sexual assault, the charged offense. Novak, 163 Ill. 2d at 113-14.
In the case before us, the attempt aggravated criminal sexual assault counts did not describe the touching, fondling, or transfer of semen that fit the definition of "sexual conduct" that is essential to a charge of criminal sexual ...