Appeal from Circuit Court of Ford County No. 11CF59 Honorable Stephen R. Pacey, Judge Presiding.
Justices Appleton and Pope concurred in the judgment and opinion.
JUSTICE, HOLDER WHITE
¶ 1 In June 2011, the State charged defendant, Ronald H. Kirkland, by information with two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2010)) against his two stepdaughters, S.C. and B.C., both of whom were under the age of 17. The case proceeded to jury trial in January 2012. Following deliberations, the jury returned guilty verdict forms for both victims. The guilty verdict as to S.C. contained no errors. The guilty verdict form with regard to B.C., however, stated the offense as "criminal sexual abuse, " without the word "aggravated" preceding it. The parties did not bring the error to the trial court's attention. The court entered judgment against defendant for both counts of aggravated criminal sexual abuse and sentenced defendant to five years in the Illinois Department of Corrections (DOC) on each count with the sentences to run concurrently. Additionally, the court ordered defendant to pay a $25 Crime Stoppers fee.
¶ 2 On appeal, defendant asserts (1) the jury wrongfully convicted him of the uncharged offense of criminal sexual abuse as to B.C., (2) if the verdict as to B.C. stands, defendant should be sentenced only for the offense of criminal sexual abuse, and (3) the trial court erred in imposing a Crime Stoppers fee. We affirm in part the trial court's judgment and remand with directions to vacate the Crime Stoppers fee.
¶ 3 I. BACKGROUND
¶ 4 In June 2011, the State charged defendant by information with two counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2010)) against his two stepdaughters, S.C. and B.C., both of whom were under the age of 17. The case proceeded to jury trial in January 2012.
¶ 5 At trial, both victims testified defendant, over the course of a year, would take them individually into his bedroom, shut the door, and have them remove their clothes. He would then proceed to rub his hands over their nude bodies, including their breasts and vaginal areas. B.C. testified defendant typically rubbed her body with vitamin E oil to "prevent stretch marks." C.K., a friend of S.C., testified she observed defendant on several occasions enter his bedroom with B.C. and close the door. S.C. also confided in C.K. about defendant touching S.C. inappropriately. J.C., the teenage brother of S.C. and B.C., testified he observed defendant take S.C. and B.C. into the bedroom and lock the door. On one occasion, J.C. entered the bedroom to find defendant rubbing "something" on B.C.'s legs while she laid on the bed.
¶ 6 Sheree Foley, a caseworker from the Department of Children and Family Services (DCFS), testified defendant admitted rubbing the girls' backs and rubbing B.C.'s body with vitamin E oil to prevent stretch marks. Defendant also admitted rubbing oil on the sides of B.C.'s breasts to prevent stretch marks on her breasts. He denied, however, making contact of a sexual nature with their breasts or vaginal areas. According to Foley, defendant said he received no sexual gratification or arousal from touching the girls. Defendant did not testify.
¶ 7 Following the presentation of evidence, the jury received a copy of the jury instructions from the trial court. The instructions included the definition of and issues related to aggravated criminal sexual abuse against both B.C. and S.C. The jury also received four verdict forms; a not guilty form and guilty form of verdict for each victim. Initially, the State provided erroneous verdict forms that provided two forms of guilty for S.C. and two forms of not guilty for B.C. Those initial verdict forms also contained a second error the parties failed to bring to the trial court's attention—the verdict forms as to B.C. stated the offense as "criminal sexual abuse, " not as "aggravated criminal sexual abuse." After the verdict forms were corrected to provide a "guilty" and "not guilty" verdict form as to both B.C. and S.C, those forms were sent back to the jury room. The "corrected" instructions, however, continued to name criminal sexual abuse as the offense pertaining to B.C. The record does not reveal which party made the corrections to the verdict forms or whether the parties had the opportunity to review the corrected verdict forms before the court delivered them to the jury.
¶ 8 Following deliberations, the jury signed the guilty verdict forms as to both S.C. and B.C. However, the verdict form as to B.C. read, "We, the jury, find the defendant [g]uilty of [c]riminal [s]exual [a]buse with regard to [B.C.], " rather than aggravated criminal sexual abuse, as charged in the information. Neither party brought the erroneous verdict to the court's attention.
¶ 9 In February 2012, defendant filed a posttrial motion challenging the sufficiency of the evidence, which the trial court denied. Defendant did not challenge the inaccurate verdict form in his posttrial motion. Following a March 2012 sentencing hearing, the court sentenced defendant to five years in DOC on each count of aggravated criminal sexual abuse, a Class 2 felony, with the sentences to run concurrently. The court also imposed a $25 Crime Stoppers fee. Later that month, defendant filed a motion to reconsider sentence, which the court denied. That motion did not challenge the verdict form as to B.C.
¶ 10 This appeal ...