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People v. Kolton

March 11, 2004


[6] Appeal from the Circuit Court of Cook County No. 01 CR 7279 Honorable Thomas Fecarotta, Judge Presiding.

[7] The opinion of the court was delivered by: Justice Hartman

[8]  Having been charged with predatory criminal sexual assault, following a bench trial, defendant Marion Kolton was found guilty of a lesser-included offense, aggravated criminal sexual abuse. He was sentenced to 90 days' imprisonment and four years' probation. On appeal, defendant questions whether the circuit court erred in (1) finding him guilty of an uncharged offense, (2) prohibiting him from questioning the complainant regarding an incident involving a different individual, and (3) finding him guilty beyond a reasonable doubt. Defendant's conviction and sentence are affirmed for the reasons which follow.

[9]  Prior to trial, defendant moved in limine, seeking to cross-examine the complainant, C.S., and present evidence concerning other allegations of sexual misconduct made by her. The circuit court denied defendant's motion.

[10]   At trial, Rolling Meadows Police Officer Jason Morrison testified that on April 30, 2000, he and his partner, Officer Frederick Dobs, were on patrol at about 11:40 a.m. They passed a business plaza parking lot in Rolling Meadows. Morrison observed a green minivan parked diagonally across three parking spaces near an embankment abutting the parking lot. The embankment was a 10 to 12 foot grassy patch, beyond which was an area containing trees and bushes. About ten minutes later, when Morrison again passed by the parking lot, he saw the van still parked improperly and decided to investigate.

[11]   Officers Morrison and Dobs climbed the embankment and saw C.S., 10 or 15 feet away, who appeared to be about age 12, emerging from the nearby bushes while buttoning up her blouse. Morrison also observed a man, defendant, who appeared to be 50 years-old, walking behind C.S. holding a blanket. Morrison asked why they were there. Defendant stated he and his granddaughter had been looking at trees. C.S. agreed. Morrison noticed C.S. was darker in complexion than defendant, and spoke with a Latino accent, but defendant spoke with a thick Polish accent. The officers separated them and conversed with each independently.

[12]   Defendant stated he was the landlord in the building where C.S. lived and they were on their way to pick up parts to make repairs in her apartment. He claimed his wife had driven them to the area so they could look at trees, but she left to go shopping. Officer Morrison testified there were no retail shopping areas nearby. Further, defendant possessed the keys to the van.

[13]   On cross-examination, Officer Morrison testified that when he saw C.S., she was not crying, defendant was not touching her, and her clothes appeared not to have been ripped or torn. He stated he spoke in both English and Spanish to C.S., who told him initially that she and defendant had been looking at trees. She then told him defendant walked her towards the embankment, laid down a blanket and offered her $15 if she would "hug" him. When defendant tried to hug her, she asked him not to touch her and they stood up to leave. C.S. did not tell Morrison that defendant touched any part of her body, that he tried to restrain her or force her to do anything.

[14]   On redirect-examination, Officer Morrison stated that C.S. told him she was afraid to talk to him for fear that defendant would evict her and her mother from the apartment building. In Spanish, she told Morrison defendant asked her to accompany him to pick up repair supplies, but on their way to the store, he told her they were going to stop and look at trees, ignoring her requests to go home.

[15]   Rolling Meadows Detective Gadomski also testified for the State. On April 30, 2000, he and his partner, Investigator John Sircher, had been briefed by Officers Morrison and Dobs and was present during C.S.'s sensitivity interview at the Children's Advocacy Center. C.S. and her mother later were taken to the Northwest Community Hospital. Gadomski then returned to the police station where he and Sircher interviewed defendant. He advised defendant of his rights, speaking to him in English after defendant expressed no need for a Polish interpreter. Defendant told Gadomski he owned the building in which C.S.'s family resided, and that he was to repair their door. He asked C.S. to accompany him to Home Depot. On the way, he became lost and pulled over. He climbed the embankment in the parking lot, but could not ascertain his location due to the trees in the area. Upon being asked about carrying the blanket, defendant responded initially that he did not know and had lost his mind. He then stated that he thought he had been holding a box of cigars, not a blanket. Defendant did not tell Gadomski he was in the area to look at trees.

[16]   On cross-examination, Detective Gadomski testified that the blanket, as well as C.S.'s clothing, had been examined for semen and pubic hair; neither were discovered. Semen stains were found on C.S.'s underwear; however, testing revealed they were not secreted by defendant.

[17]   C.S. testified for the State. She was age 12 at the time of the incident. Defendant was her family's landlord; she identified him as such in court. C.S. recounted that on the day at issue defendant told her he was going fix doors in her apartment and asked her to accompany him to the store to help him carry a door, as he had a back problem. Instead, defendant drove her to a place with bushes. Defendant refused to take her home despite her requests. He told her to come with him to look at trees and brought along a blanket. He told her to sit on the blanket. Then, defendant "tried to hug [her] and touched [her]." He offered her money if she allowed him to touch her, but she refused. Defendant moved her shorts and underwear to the side. Then he touched her vagina for a while. Defendant then put his finger inside her vagina. She asked him to drive her home. As they emerged from the bushes, they saw two police officers. Upon hearing defendant tell police he was her grandfather, C.S. told them defendant was her grandfather, her name was Angela Lopez and that they had been looking at trees. C.S. admitted later that she lied and did not tell police about defendant touching her due to her fear that defendant would do something to her mother as he was their landlord. She also stated that she spoke to defendant in English and they had no difficulty understanding each other.

[18]   On cross-examination, C.S. testified that when she and defendant were sitting on the blanket, her legs were crossed and he sat on her left side with his shoulder touching hers. Using his right hand, defendant pulled her shorts and underwear to the side. Defendant did not take off her clothing or present his penis. As he touched her vagina, C.S. asked to leave. Defendant told her to wait. C.S. did not cry out when touched and only after three requests to leave did they get up from the blanket. C.S. was upset at defendant for attempting to hug her. She testified that she informed the officer, who drove her to the police station, that defendant touched her; she could not remember telling him that defendant put his finger inside her vagina. At the police station, she told no one defendant touched her vagina. She stated defendant actually offered her money to touch her, not to hug her. She admitted she told the woman who interviewed her at the Center she lied to police because she was "afraid to be smooching." C.S. stated "smooching" is kissing and hugging. Defendant previously told her that he would do something to her mother and she was afraid that if she told police he would fulfill that threat. On re-direct examination, C.S. stated the buttons on the shirt she wore while with defendant would come undone by themselves.

[19]   The State rested, and the defense presented no evidence. The circuit court found C.S. credible and her testimony corroborated by virtue of her having been taken to a secluded area and defendant having taken a blanket to that place. The court also determined the State did not corroborate defendant's penetration of C.S.'s vagina, and entered a finding of guilt on aggravated criminal sexual abuse, which the court found to be a lesser-included offense of predatory criminal sexual assault because "it contains all of the elements of the predatory except for the actual insertion or the actual penetration of the vagina." Defendant was sentenced as noted earlier in this opinion. The court denied defendant's motions to reconsider and for new trial. Defendant timely appeals.

[20]   I.

[21]   Defendant first contends the circuit court erred in convicting him of a crime for which he was not charged, aggravated criminal sexual abuse (720 ILCS 5/12-16 (West 2000)) which, he argues, is not a lesser-included offense of predatory criminal sexual assault (720 ILCS 5/ 12-14.1 (2000)). *fn1

[22]   One cannot be convicted of an offense for which he has not been charged, but may be convicted of an offense not expressly included in the charging instrument where the offense is a lesser- included offense of the crime charged. People v. Novak, 163 Ill. 2d 93, 105, 643 N.E.2d 762 (1994) (Novak). In determining whether a particular offense is a lesser-included offense, the Illinois Supreme Court has held that the proper analysis is the "charging instrument" approach. Novak, 163 Ill. 2d at 114. As very recently asserted by Justice Thomas Fitzgerald in a special concurrence, the two-tiered "charging instrument" approach "permits courts to recognize the existence of a lesser-included offense even if the charging instrument does not ...

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