Appeal from Circuit Court of McLean County No. 09CF16 Honorable Charles G. Reynard, Judge Presiding.
The opinion of the court was delivered by: Justice Turner
Illinois Court of Appeals, District 4
JUSTICE TURNER delivered the judgment of the court, with opinion. Justice Pope concurred in the judgment and opinion.
Justice Steigmann dissented, with opinion.
¶ 1 In January 2009, a grand jury indicted defendant, Terry Lloyd, with seven counts of criminal sexual assault under section 12-13(a)(2) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/12-13(a)(2) (West 2008)). Following a July 2009 trial, a jury found defendant guilty of all seven counts. Defendant filed a motion for a new trial. At a joint November 2009 hearing, the McLean County circuit court denied defendant's posttrial motion and sentenced him to an aggregate 44 years in prison. Defendant filed a motion to reconsider his sentence, which the court denied in January 2010.
¶ 2 Defendant appeals his conviction, asserting (1) the State's evidence is insufficient to prove beyond a reasonable doubt defendant knew the victim, P.V., was unable to understand the nature of the charged act or give knowing consent to those acts, and (2) his convictions on four of the seven counts must be vacated where the acts pleaded in those counts do not constitute "sexual penetration" as defined for the jury. We affirm in part, reverse in part, and remand the cause with directions.
¶ 4 A. The State's Charges
¶ 5 The grand jury's seven indictments all asserted defendant committed criminal sexual assault under section 12-13(a)(2) of the Criminal Code (720 ILCS 5/12-13(a)(2) (West 2008)), which is violated when a person "commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent." The indictments alleged the acts were committed between September 1, 2008, and January 7, 2009, and stated P.V. was both "unable to understand the nature of the act or give knowing consent." Additionally, counts I, III, V, and VII alleged the penetration involved defendant's hand and P.V.'s vagina; and counts II, IV, and VI alleged the penetration involved defendant's mouth and P.V.'s vagina.
¶ 7 The State presented the following evidence in support of its charges at defendant's July 2009 trial.
¶ 8 P.V., born February 28, 1995, testified that, when she was 13 years old, she and her mother returned home to find defendant's van parked in their driveway. Defendant was in the van with P.V.'s aunt, Brenda Phelps. P.V. had known defendant her whole life as he was a long-time family friend. P.V. got into the van and sat behind Brenda. Shortly thereafter, defendant reclined his seat and began rubbing P.V.'s leg and "private part." P.V. moved defendant's hand once, but when he put his hand back on her leg, she decided to "just let it be." Brenda then exited the van. (Brenda acknowledged during her testimony that she had a conviction for "permitting the sexual abuse of a minor" in McLean County case No. 97-CF-448.)
¶ 9 Defendant told P.V. she was "beautiful" and "sexy." P.V. responded by laughing, thinking defendant was joking. Defendant resumed rubbing P.V.'s leg and rubbing her "private part" over her underwear. Defendant then placed his hand into P.V.'s underwear. He touched the part of her private area that "has the hole" and moved his finger up and down in that area. Defendant stopped touching her when she said "[s]omebody's coming" after a light came on in the house.
¶ 10 A week or two later, defendant was at P.V.'s house, and P.V. asked Brenda and defendant if she could listen to music in defendant's van. Defendant gave her the keys to the van, and she alone went out to the van. Shortly thereafter, defendant came out and joined P.V. in the van. Defendant asked P.V. whether she enjoyed herself the "last time" and told her that she was beautiful. Defendant then began touching P.V.'s leg and clothing above what P.V. described as her "private." Defendant then told P.V. that she had "too much clothes on." P.V., thinking defendant wanted to do "the same thing that he did the last time," walked into the house, changed clothes, and returned to the van. Defendant did not have to ask P.V. to take off her clothes because P.V. "already kinda [sic] knew what [she] was supposed to do." P.V. explained the reason she returned to the van, as follows:
"[W]ell, in a sense, I was scared, but then, like, I didn't really--I don't know. I kind of thought it was, like, right at the time, because, like, I don't really talk or hang around people that are my age. I usually hang out with my sister's friends, and my sister's 16 now, but she was 15 at the time. They're always talking about, like, the stuff that they've done and stuff, and so I just kind of figured that maybe that's what they were talking about, so I kind of--I guess in a way, I went along with it 'cause I thought that I was supposed to do, like, the same thing, because I didn't really, like, express it, I guess, in a way."
¶ 11 P.V. moved to the back of the van and pulled her sweatpants down. Defendant began rubbing her "private part on top of [her] underwear." After that, he placed his hand under her underwear and "put his fingers inside of [her] private." At first, it was just one finger, but later it was two fingers. Defendant moved his hand under P.V.'s sports bra and then asked P.V. if he could "taste it." P.V. responded, " 'I don't know,' " but then "agreed to it." Defendant put his tongue on P.V.'s vagina. Defendant's cellular telephone rang, and defendant stopped. Before P.V. got out of the van, defendant told her not to tell anyone. He also said "he'd get, like, 45 to life years." P.V. promised that she would not tell because she did not "want to get anybody in trouble."
¶ 12 Approximately two weeks later, P.V. was again listening to music in defendant's van when defendant came out to join her. Defendant asked P.V. if she "wanted to do it again." P.V. initially said no. However, defendant persisted and P.V. eventually agreed, telling defendant it was going to be the last time. Defendant began rubbing P.V.'s leg. Because P.V. was in a seat that could be seen through the window, she moved to the rear row of seats in the van. P.V. helped defendant pull her pants down. Defendant "put his fingers in [her] private, and then he had put his tongue on my private." When defendant asked P.V. if she had ever " 'kissed a dick,' " P.V. responded she had not and did not want to. Defendant's cellular telephone rang, and she got out of the van.
¶ 13 That same day, defendant called P.V. on her cellular telephone. He began the conversation by asking where she was, if anyone was around, and whether she could talk. Defendant then asked why she was acting weird around him. A few days later, defendant was at her house. After he left, defendant called P.V. on her cellular telephone to ask why she was acting weird again. Defendant again had started the conversation by asking where she was and if she could talk.
¶ 14 About a week later, defendant stopped at P.V.'s house, and Brenda asked defendant to take P.V. to the gas station to buy some potato chips. P.V. got into defendant's van. Defendant drove away but did not go directly to the gas station. Instead, he drove out of town for what "felt like 30 minutes." When defendant stopped the van, he told P.V. to get into the back of the van. Defendant pulled P.V.'s pants down and began rubbing her "private" and performing oral sex on her. Defendant put two of his fingers "inside of [her] private" and stated it "seemed like [she] could take *** good dick, or big dick."
¶ 15 After that defendant asked P.V. "if he could put his private inside of [hers]." Concerned that defendant was actually going to try to penetrate her with his penis, P.V. told defendant she did not want him to do that. Defendant then proceeded to perform oral sex on P.V. for another 10 minutes. At that point, P.V. told defendant she wanted defendant to stop, explaining Brenda would wonder where they were. Defendant stopped, and they drove to the gas station before returning to P.V.'s home.
¶ 16 A few days later, P.V. told her sister about what defendant had done. The next day, P.V. told her mother, who contacted the police.
¶ 17 On cross-examination, P.V. testified she had attended sexual-education classes since sixth grade, where she received information about "good touches" and "bad touches." P.V. "wanted to have the experience, just not with [defendant]."
¶ 18 Detective Michael Burns testified he met with P.V. at her mother's request. After speaking to P.V., Burns met with defendant, whose birth date is February 28, 1966 (making him 42 years old at the time of the offenses). Defendant told Burns he listened to music in the van with P.V. but denied ever being alone with P.V. in the van or anywhere else. Defendant also denied ever calling P.V. on her cellular telephone. However, telephone records admitted into evidence at trial showed someone using defendant's cellular telephone had called P.V.'s cellular telephone twice.
¶ 19 Brenda testified she lived with P.V. and P.V.'s mother, Brenda's sister, when defendant was taking advantage of P.V. At the time of trial, Brenda was married to defendant's half-brother. Brenda recalled several occasions in which defendant had been alone with P.V., including the time P.V. left with defendant to retrieve the potato chips from the gas station. Defendant and P.V. were gone "longer than what [she] expected [them] to be."
¶ 20 Defendant chose not to present any evidence in his defense.
¶ 21 After the case went to deliberations, the jury asked the following two questions:
"(1) Does contact with the sex organ through clothing constitute sexual penetration?
(2) How much of the body (the pubic area) is considered part of the sex organ[?]"
In response to the questions, the trial court gave the jury the following remarks:
"In response to Question #1, be advised you have the instructions of law concerning the definition of sexual penetration. No further definition can be provided to you.
In response to Question #2, you are further instructed: The female 'sex organ' is not limited to the vagina but also includes the labia majora and labia minora, the outer and inner folds of skin of the external genital organs."
The court also gave some citations for its answer to the second question.
¶ 22 C. The Jury's Verdict and Defendant's Sentence
¶ 23 On the aforementioned evidence, the jury convicted defendant of all seven counts of criminal sexual assault. In November 2009, the trial court sentenced defendant to (1) five years in prison on counts I and II, (2) six years in prison on counts III and IV, (3) seven years in prison on counts V and VI, and (4) eight years in prison on count VII. The court ordered all of the sentences to be served consecutively, for an aggregate sentence of 44 years in prison. Defendant filed a motion to reconsider his sentence, which the court denied on January 5, 2010.
¶ 24 On February 1, 2010, defendant filed a notice of appeal in compliance with Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009). Thus, this court has jurisdiction under Illinois Supreme Court Rule 603 (eff. July 1, 1971).
¶ 26 A. Sufficiency of the Evidence
¶ 27 Defendant first asserts the State failed to present any evidence establishing defendant knew P.V. was unable to understand the nature of the charged acts or give knowing consent to those acts as required by section 12-13(a)(2) of the Criminal Code. The State argues P.V. was unable to understand the nature ...