The opinion of the court was delivered by: Justice Theis
JUSTICE THEIS delivered the judgment of the court, with opinion.
Justices Freeman, Garman, and Burke concurred in the judgment and opinion.
Justice Thomas specially concurred, with opinion, joined by Chief Justice Kilbride and Justice Karmeier.
¶ 1 Following a jury trial in the circuit court of McLean County, defendant, Terry Lloyd, was convicted of seven counts of criminal sexual assault under section 12-13(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-13(a)(2) (West 2008)).*fn1 Defendant appealed contending that the State failed to present sufficient evidence to support his convictions. A divided appellate court rejected this claim, affirmed six of his convictions, and reversed and remanded the remaining conviction for a new trial on other grounds. 2011 IL App (4th) 100094, ¶¶ 37, 45. For the reasons that follow, we affirm in part, and reverse in part, the judgment of the appellate court and conclude that all seven of defendant's convictions must be reversed. The evidence of the victim's age, and defendant's knowledge of that age, alone, was insufficient to prove that defendant knew the victim was unable to understand the nature of the sex acts or give knowing consent as required to sustain his convictions as charged.
¶ 3 On January 9, 2009, the State charged defendant with seven counts of criminal sexual assault pursuant to section 12-13(a)(2) of the Code. The indictments alleged that between September 1, 2008, and January 7, 2009, defendant committed seven acts of vaginal penetration, with his hand or mouth, upon P.V., who was a minor under the age of 17. It was further alleged that at the time of the acts, defendant knew that P.V. was unable to understand the nature of the sex acts or give knowing consent to them.
¶ 4 The following evidence was adduced at defendant's jury trial.
P.V. was 13 years old at the time of the incidents and lived with her mother, older sister, and her aunt, Brenda, among other relatives. Defendant had been a family friend whom P.V. had known almost her entire life. Brenda had previously dated defendant and, at the time of trial, was married to defendant's half-brother.
¶ 5 P.V. testified that when she was younger, she had enjoyed spending time with defendant. They would listen to music together, make jokes, and do "normal stuff." Around September 2008, defendant hugged P.V. in a way that made her feel uncomfortable. He lifted her up in the air and when bringing her back down slid his hand across her buttocks. Defendant then asked her for another hug and when she complied, he again lifted her up and touched her buttocks for a few seconds.
¶ 6 Approximately one or two weeks later, P.V. returned home with her mother following a basketball game. She noticed defendant's van parked in the driveway and that defendant and her aunt, Brenda, were inside the van. She entered the vehicle and sat behind her aunt, who was in the front passenger seat. P.V. was wearing a basketball jersey tucked into her shorts and had sweatpants over the shorts. At some point while defendant and Brenda were talking, defendant reached back from the driver's seat, which was reclined, and placed his hand on her knee. He rubbed her knee and then slowly moved his hand up her leg two or three inches. Defendant later placed his hand in P.V.'s sweatpants and began rubbing her "private" over her shorts. She testified that she was kind of scared and felt weird. Brenda subsequently got out of the van. Defendant then told P.V. that she was beautiful and sexy. She felt awkward and laughed because she thought he was joking. Defendant then rubbed her thigh and pulled her sweatpants down a little. At defendant's request, she untucked her basketball jersey and he rubbed her "private part" on top of her underwear. Defendant then placed his hand in her underwear, touched the part of her private area that "has the hole," and moved his finger up and down in that area. When P.V. saw a light go on in the house, she told defendant that someone was coming. Defendant stopped touching her, and she put her pants back on.
¶ 7 A second incident occurred approximately one or two weeks later when defendant was again visiting P.V.'s aunt. P.V. got into defendant's van to listen to music, and he joined her a few minutes later. He sat in the driver's seat and asked her whether she had enjoyed herself the last time. He told her that she was beautiful and that he wanted her to be "his girl." He began touching her leg and then her "private" in a circular motion over her clothes. Defendant told her that she had too much clothing on so she walked into the house and changed. She returned to the van in sweatpants, an undershirt, and a sweatshirt. P.V. changed because she thought that defendant wanted to do the same thing that he did the last time. Defendant did not tell her what to take off. P.V. testified that she "already kinda knew what [she] was supposed to do."
¶ 8 After she returned to the van, defendant told her to sit in the back passenger-side seat. P.V. complied and she pulled down her sweatpants. Defendant began rubbing her "private part" on top of her underwear. He then placed his hand inside her underwear and "put his fingers inside of [her] private." Defendant asked P.V. if he could "taste it." P.V. initially said "I don't know," but eventually agreed to his request. Defendant then placed his tongue on P.V.'s vagina. Before P.V. got out of the van, defendant told her not to tell anyone and that "he would get like, 45 to life years." She promised not to tell anyone. When asked what made her decide to go back to the van after changing her clothes, P.V. responded that although she was scared, she thought that was what she was supposed to do. She further testified that her older sister and her sister's friends had talked about the "stuff that they ha[d] done." P.V. testified that she thought that she was supposed to do the same thing.
¶ 9 A third incident occurred about two weeks later when defendant was visiting P.V.'s mother and Brenda. P.V. got into defendant's van again to listen to music. Defendant walked out of the house shortly thereafter and got into the van. After some small talk, he asked her if she wanted to do it again. She initially said no, but after defendant asked her a third time, almost begging, she agreed. She told him that it was going to be the last time. P.V. testified that she felt stupid for not "sticking with what [she] was saying." Defendant began rubbing her leg and she helped defendant pull down her pants. Defendant inserted his fingers into her vagina and performed oral sex for approximately five minutes. She testified that she hoped something would happen or that someone would come out. Defendant then asked her if she had ever "kissed a dick before." She responded that she had not. Defendant asked her if she wanted to try, and she declined. She pulled her pants up and got out of the van. Defendant again asked her not to tell anyone and told her that she makes him nervous. She agreed not to say anything because she did not want to get anyone in trouble. Later that evening, defendant called her for the first time and asked her why she was acting weird around him. She responded that she did not know and ended the conversation.
¶ 10 A fourth incident occurred less than a week later when Brenda told defendant to take P.V. to the gas station to purchase potato chips. P.V. got into defendant's van and thought the two of them were headed to one of the nearby stations. Instead, defendant drove for what "felt like 30 minutes" and parked the van in a secluded location. He then instructed P.V. to get in the back of the van. Once there, he pulled down her pants and began rubbing her "private" over her underwear. He then pulled down her underwear and began rubbing her vagina. He inserted his fingers into her vagina and stated that it seemed like she could take "good dick" or "big dick." Defendant twice asked her if he could put his "private" inside her, and she told him that he could not. After defendant performed oral sex for about 10 minutes, P.V. told him that her aunt would wonder where they had gone. She told defendant that she wanted to stop, and he complied. During the subsequent drive to the gas station, defendant asked her not to tell anyone. A few days later, P.V. decided to tell her older sister about what defendant had done, and then P.V. told her mother.
¶ 11 On cross-examination, P.V. testified that she had received education on "good touches" and "bad touches" since sixth grade. P.V. testified that she did not report defendant's behavior earlier because she wanted him to do what he did the first time and thought it was supposed to happen that way, based upon what her friends had told her. She also did not want to damage her family's relationship with defendant. She further testified that she "wanted to have the experience, just not with [defendant]."
¶ 12 Brenda testified that she had known defendant since 1992 and had dated him at one time. Between September 2008 and January 2009, defendant visited her house approximately once a week. She recalled some occasions when P.V. and defendant were alone together, including a time when defendant and P.V. went to a store and were gone longer than expected.
¶ 13 Michael Burns, a detective with the Bloomington Police department, testified that he interviewed defendant after meeting with P.V. Burns learned during the interview that defendant was born on February 28, 1966. Defendant admitted to Burns that he listened to music with P.V. in the van, but denied ever being alone with her in the van or anywhere else. He also denied ever calling P.V. on her cell phone. Telephone records were admitted into evidence at trial which indicated that someone using defendant's home phone had called P.V.'s cell phone on two occasions.
¶ 14 Defendant did not present any evidence at trial.
¶ 15 Consistent with Illinois Pattern Jury Instructions, Criminal, No. 11.56 (4th ed. 2000) (hereinafter, IPI Criminal 4th), the jury was instructed that to sustain the charge of criminal sexual assault the State must prove, in pertinent part, the following: "First: That the defendant committed an act of sexual penetration upon [P.V.]; and Second: That the defendant knew that [P.V.] was unable to understand the nature of the act or give knowing consent to the act. ***."
¶ 16 The jury convicted defendant of all seven counts of criminal sexual assault. The trial court subsequently sentenced him to an aggregate term of 44 years' imprisonment.
¶ 17 On appeal, defendant argued that his convictions must be reversed because the State failed to present sufficient evidence to establish that he knew P.V. was unable to understand the nature of the charged acts or give knowing consent to those acts, as required to sustain his convictions under section 12-13(a)(2) of the Code. 2011 IL App (4th) 100094, ¶ 27. The appellate court, over a dissent, affirmed his convictions on six counts of criminal sexual assault. Id. ¶ 47. The appellate court reversed his conviction on the one remaining count and remanded for a new trial after concluding that a jury instruction was incomplete and could have influenced the jury's determination on that count alone. 2011 IL App (4th) 100094, ¶ 45. The appellate majority ultimately held that "section 12-13(a)(2) requires the State to prove the defendant knew the person was unable to consent, not simply the victim's age." Id. ¶ 33. The appellate majority also concluded the legislature did not intend to exclude the inability to consent based on age as a means of showing defendant committed criminal sexual assault. Id. ¶ 33. The appellate majority emphasized that "[c]ontrary to any suggestion by the State, the mere fact P.V. was 13 alone is insufficient to prove 'the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.' " Id. ¶ 34 (quoting 720 ILCS 5/12-13(a)(2) (West 2008)).
¶ 18 The appellate majority concluded, however, that the State presented sufficient evidence to prove defendant knew P.V. was unable to consent because he had known the victim her entire life, had the same birthdate as hers, and, therefore, would have known that she was in her early teens, which was "well below the age of consent." Id. The appellate majority also relied upon evidence that defendant told P.V. after the second incident that she could not tell anyone because he would get "45 to life" and told her again after the third and fourth incidents that she could not tell anyone. Id. ¶ 35. The appellate majority found such actions indicate that defendant had knowledge she could not consent to the activities in which they were engaging. Id. The appellate majority also ...