2021 IL App (1st) 191218-U
Ill. App. Ct.2021Background:
- Defendant Asa Smith, a plumber, visited his mother‑in‑law S.G.’s home on July 11, 2017; S.G. reported he assaulted her during the visit.
- S.G. testified Smith grabbed her from behind, pinned her to a couch, removed her underwear, his hand contacted/entered her vagina, and he licked her breasts; she escaped and ran outside.
- S.G. was examined at the hospital; a nipple swab matched Smith’s DNA and a vaginal swab matched Smith’s Y‑STR haplotype.
- Smith testified the sexual encounters were consensual and alleged a longstanding sexual relationship with S.G.; he denied forcible conduct.
- In a bench trial the court convicted Smith of aggravated criminal sexual assault (victim 60+), aggravated criminal sexual abuse, and attempted aggravated criminal sexual assault; he received an aggregate 12‑year sentence.
- On appeal Smith argued insufficient evidence of penetration, insufficient evidence for attempted forcible oral sex, and sentencing error/excessiveness.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for aggravated criminal sexual assault (penetration) | Victim testimony that defendant’s hand/fingers contacted her vagina plus vaginal DNA matching defendant supports intrusion/penetration | Touching the outside of the vagina does not prove "sexual penetration"; DNA could transfer from external contact | Affirmed — testimony + vaginal DNA supported a reasonable inference of intrusion, satisfying sexual penetration element |
| Sufficiency for aggravated criminal sexual abuse (licking breasts by force) | Victim testified defendant licked her breasts while restraining her; corroborated by other evidence | Claimed consensual conduct; did not challenge this conviction on appeal | Affirmed — trier of fact credited victim; evidence supports aggravated sexual abuse |
| Sufficiency for attempted aggravated criminal sexual assault (exposed penis and demanded oral sex) | Defendant’s prior forcible conduct, pursuit, exposure, and command to perform oral sex constitute intent and a substantial step under force/threat definition | Argued lack of specific intent to force oral sex and that he abandoned attempt when victim said no | Affirmed — facts permitted inference of intent and substantial step; abandonment not established |
| Sentencing: use of victim’s age and excessiveness of sentence | Court reasonably considered facts and aggravation; sentence within statutory range and not based solely on victim age | Age is an element of offense; consideration of that factor at sentencing was improper and sentence (8 yrs on Class X) excessive | Affirmed — no plain error; court did not clearly rely on age alone, considered totality of abuse; sentence within range and not an abuse of discretion |
Key Cases Cited
- People v. Maggette, 195 Ill. 2d 336 (interpreting the contact and intrusion clauses of "sexual penetration")
- People v. Lofton, 303 Ill. App. 3d 501 (mere touching/rubbing with a hand or finger does not by itself prove penetration)
- People v. Hillier, 392 Ill. App. 3d 66 (victim testimony placing a finger in the vagina can support a finding of penetration)
- People v. Hillier, 237 Ill. 2d 539 (plain‑error forfeiture standard for sentencing claims)
- People v. Gonzalez, 239 Ill. 2d 471 (standard for reviewing sufficiency of the evidence)
- People v. Phelps, 211 Ill. 2d 1 (element of offense cannot also be used as an aggravating sentencing factor)
- People v. Barbour, 106 Ill. App. 3d 993 (issue of force or threat of force is a credibility determination for the trier of fact)
- People v. Montefolka, 287 Ill. App. 3d 199 (specific intent for sexual assault may be inferred from circumstances; distinguishes voluntary abandonment)
- People v. Patterson, 217 Ill. 2d 407 (trial court has broad sentencing discretion)
- Strickland v. Washington, 466 U.S. 668 (standard for ineffective assistance of counsel)
- People v. Saldivar, 113 Ill. 2d 256 (trial court may consider factors inherent in the offense when assessing severity)