The opinion of the court was delivered by: Justice Garman
JUSTICE GARMAN delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and opinion.
Justice Theis dissented, with opinion.
¶ 1 Defendant, Reginald Kennebrew, was convicted of two counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2008)), and one count of aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1)(i) (West 2008)). The appellate court vacated defendant's conviction on count I (predatory criminal sexual assault) due to insufficient evidence. People v. Kennebrew, No. 2-09-0754 (2011) (unpublished order under Supreme Court Rule 23). The State filed a petition for leave to appeal to this court. We denied the petition, but entered a supervisory order directing the appellate court to vacate its order and consider whether the evidence on count I was sufficient to sustain a conviction of the uncharged crime of aggravated criminal sexual abuse.
¶ 2 Upon remand, and pursuant to Supreme Court Rule 615(b)(3), the appellate court found the evidence to be sufficient to sustain a conviction of the uncharged crime of aggravated criminal sexual abuse. We granted defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010). For the following reasons, we affirm the judgment of the appellate court.
¶ 4 Defendant was charged by indictment with two counts of predatory criminal sexual assault of a child and one count of aggravated criminal sexual abuse. The charges regarded defendant's conduct with D.C., his stepdaughter, who was nine years old at the time of the acts. Count I charged defendant with predatory criminal sexual assault and alleged that defendant "knowingly committed an act of sexual penetration *** in that the defendant placed his penis in D.C.'s anus." Count II also charged defendant with predatory criminal sexual assault and alleged that defendant placed his finger in D.C.'s vagina. Count III charged defendant with aggravated criminal sexual abuse and alleged that defendant touched D.C.'s buttocks with his hand for the purpose of sexual gratification.
¶ 5 At trial, testimony was presented by D.C., D.C.'s cousin Aaliyah, who was 13 at the time, D.C.'s stepmother Cierra Franklin-Cole, child forensic interviewer Marisol Tischman, and Lori Thompson, a registered nurse who had examined D.C. The State first called D.C. to the stand and Assistant State's Attorney Kate Kurtz began questioning D.C. D.C.'s testimony was at times contradictory. After answering Kurtz's preliminary questions, D.C. identified her "private" as the part that no one should touch and stated that her private was used to go to the bathroom. D.C. responded "no" when asked if anyone had touched her on a part of her body that no one should touch.
¶ 6 Kurtz then began questioning D.C. regarding conversations she had had with Aaliyah, Cierra, and Tischman. First, Kurtz asked D.C. if she remembered talking to Tischman when she visited the Carrie Lynn Children's Center. D.C. said yes, but then denied telling Tischman that someone had touched her on a part of her body that no one should touch. In later testimony, D.C. stated that she could not remember what she and Tischman discussed at the Center. Kurtz showed D.C. pictures she had used during her meeting with Tischman. D.C. testified that she remembered using the pictures and identified the circles she had made on the pictures. While looking at the pictures, D.C. testified that she had circled the "loosey and butt" on the picture of a girl and that "loosey" is the same word she uses for "private." When shown the picture of a boy, D.C. stated that she had circled "[t]he parts that no one should touch" and identified these parts as the "butt" and "thing." Kurtz then showed D.C. a picture she drew while at the Center. D.C. testified that it was a picture of her lying on her mother's bed while defendant put lotion on her. When questioned further, D.C. stated that defendant used his hand to put lotion on her private and butt, but said "no" when asked if defendant touched her butt with any other part of his body.
¶ 7 When Kurtz asked D.C. about a conversation she had with her cousin Aaliyah, D.C. admitted to telling Aaliyah that someone touched her on a part of her body that should not be touched, but testified that she did not remember what she told Aaliyah. Kurtz then questioned D.C. about what she had told her stepmother, Cierra. D.C. testified that she told Cierra that someone had touched her in a place that should not be touched, but upon further questioning, D.C. could not recall who she told Cierra had touched her. After this testimony, the court granted the State's request to have the witness be treated as hostile.
¶ 8 The State then called Aaliyah to the stand. Aaliyah testified regarding a conversation she had with D.C. while the two were spending the night together at Aaliyah's house. Aaliyah stated that D.C. told her that defendant used his "private part" to touch her "privacy." Aaliyah also told the court that she asked D.C. if it hurt and D.C. told her "sometimes."
¶ 9 Cierra was called to testify next regarding her conversation with D.C. According to Cierra, Aaliyah had informed Cierra about D.C.'s comments, and Cierra pulled D.C. aside while the family was out to dinner. Cierra asked D.C. where defendant had touched her, and D.C. told Cierra that defendant rubbed his penis up and down D.C.'s bottom when he put lotion on her. D.C. also told Cierra that it "tickled" when his penis was on her bottom.
¶ 10 Lori Thompson next testified regarding the physical examination she performed on D.C. at the Center. Thompson told the court that during her examination of D.C. she observed a hymenal cleft and some redness. Thompson stated that her findings were consistent with sexual abuse, but acknowledged other possible causes such as masturbation. Thompson found no abnormalities of the anus.
¶ 11 Finally, the State called Tischman to testify about her meeting with D.C. at the Center. The court allowed the State to play a videotape for the jury of Tischman's interview of D.C. at the Center. During the interview, Tischman showed D.C. the pictures of the boy and girl about which D.C. had testified earlier. Consistent with D.C.'s earlier testimony, during the video D.C. identified the "loosey" and "butt" on the girl doll and the "butt" and "thing" on the boy doll as the places "that shouldn't be touched." Tischman then asked D.C. if anyone had touched her on her loosey or butt, and D.C. said yes, that "her little sister's dad" (the defendant) had touched her. D.C. then said that he touched "right there" while pointing to the area she labeled the "butt" on the girl doll. Later during the interview, D.C. said that "he used his thing" to touch the inside of her butt. Tischman asked D.C. to point to his "thing" on the picture and D.C. pointed to the penis area of the doll. D.C. said it felt "not good" and that his "thing" felt "wet and mushy." D.C. also stated that his "thing" never touched her "loosey" or anywhere else on her body.
¶ 12 The court read the jury instructions. As to count I, the jury was instructed to determine whether defendant was guilty of predatory criminal sexual assault of a child when he placed his penis in the anus of D.C. The State did not provide, and the defendant did not request, an instruction on count I for the offense of aggravated criminal sexual abuse.
¶ 13 The jury convicted defendant on all three counts, and defendant appealed his conviction for count I. The appellate court reversed defendant's conviction on count I due to a finding of insufficient evidence. The State filed a petition for leave to appeal to this court arguing that the appellate court erred in finding insufficient evidence and, in the alternative, that the conviction on count I should be reduced to a conviction for the lesser-included offense of aggravated criminal sexual abuse. We denied the petition, but entered a supervisory order directing the appellate court to consider whether the evidence was sufficient to sustain a conviction on the lesser-included offense of aggravated criminal sexual abuse.
¶ 14 On remand, the appellate court considered whether aggravated criminal sexual abuse was a lesser-included offense of predatory criminal sexual assault. The appellate court determined that the charging instrument approach was the proper test to use in determining whether an uncharged offense is a lesser-included offense of a charged offense. Applying this approach, the appellate court concluded that aggravated criminal sexual abuse was a lesser-included offense of predatory criminal sexual assault. Finally, the appellate court found the evidence sufficient to uphold a conviction of aggravated criminal sexual abuse and remanded to the trial court for sentencing. 2012 IL App (2d) 090754-U.
¶ 16 Defendant argues that the State forfeited its argument that
Kennebrew's conviction should be reduced to aggravated criminal sexual abuse because the State failed to charge defendant with this offense, request a jury instruction on this offense, or raise this argument on appeal in the appellate court. Additionally, defendant challenges the appellate court's reduction of defendant's conviction to aggravated criminal sexual abuse. Defendant argues that the court should apply the abstract elements approach in this case. Under this approach, defendant maintains that aggravated criminal sexual abuse is not a lesser-included offense of predatory criminal sexual assault because aggravated criminal sexual abuse requires an additional showing that the act was done for sexual gratification or arousal. Defendant further contends that his due process rights were violated, as he was not given notice of the charge of aggravated criminal sexual abuse and was not given an opportunity to present a defense on this offense at trial.
¶ 17 The State, however, argues that forfeiture does not apply because the issue was fully briefed and decided by the appellate court in response to this court's supervisory order. Additionally, the State notes that as the prevailing party at trial, it may raise any argument in support of the judgment on appeal. Regarding the merits of the case, the State maintains that the charging instrument approach applies, and notes that under this approach this court has previously held that aggravated criminal sexual abuse is a lesser-included offense of predatory criminal sexual assault. Finally, the State rejects defendant's argument regarding due process, as the indictment in this case gave defendant notice of the potential for a conviction on the lesser offense of aggravated criminal sexual abuse.
¶ 18 Whether an offense is a lesser-included offense of a charged crime is an issue of law that we review de novo. People v. ...