*1 “to question gentlemen resolve the mind [his] of whether this gained could have in his wallet illegally forget this card and about *** you using it. If are frequency, the card that it seems to me you have to be aware that in possession I am using of and this fraudulent card.”
Thus, the trial judge’s question response was raised in to defendant’s argument forgot he had the card in his wallet and was not prompted by inquiry defense counsel’s into the purpose for which he used the card. Consequently, defendant’s ineffective assistance of argument counsel must fail.
Accordingly, for the foregoing reasons, we affirm defendant’s conviction, vacate his sentence and remand for resentencing consistent our opinion.
Affirmed in part; vacated and part. remanded in QUINN, EJ., HARTMAN, J, concur.
THE OF PEOPLE THE ILLINOIS, STATE OF Plaintiff-Appellee, v. KOLTON,
MARIAN Defendant-Appellant. (4th Division) First District No. 1 — 02—0767 Opinion filed March *2 (Thomas Associates, Chicago Breen, Thomas M. Breen & M. Todd S. Pugh, Marotta, counsel), and Gina T. appellant. (Renee Devine, Attorney, Richard A. Chicago Goldfarb, State’s James Fitzgerald, Reilly, Attorneys, counsel), and Eve Assistant State’s for the People. JUSTICE HARTMAN delivered the opinion of the court: Having been charged predatory assault, fol- lowing trial, a bench defendant Marian Kolton was guilty found of a offense, lesser-included aggravated criminal sexual abuse. He was *3 days’ sentenced to 90 imprisonment years’ and 4 probation. ap- On (1) peal, questions defendant whether the circuit court erred in find- (2) him ing guilty uncharged offense, of an prohibiting him from questioning complainant an regarding involving incident a differ- (3) individual, ent and finding guilty beyond him a reasonable doubt. Defendant’s conviction and sentence are for the affirmed reasons that follow. trial, limine,
Prior to defendant moved in seeking to cross-examine complainant, C.S., present concerning and evidence allega- other tions of sexual by misconduct made her. The circuit court denied defendant’s motion. trial, Rolling police
At Meadows officer Jason Morrison testified 30, 2000, April Dobs, that on he and his partner, Officer Frederick patrol They passed park- were on at about 11:40 a.m. plaza a business lot ing Rolling green parked in Meadows. Morrison observed a minivan diagonally parking across three near an spaces abutting embankment parking grassy patch, lot. embankment was 10- to 12-foot containing which an area beyond trees and bushes. About 10 later, again passed by lot, minutes when Morrison he parking saw parked the van still and decided to improperly investigate. and saw the embankment climbed Morrison and Dobs
Officers 12, emerging to be about C.S., away, appeared or 15 feet who also her blouse. Morrison buttoning up nearby while from the bushes old, walking man, defendant, to be 50 appeared who observed why they there. were holding a blanket. Morrison asked behind looking at trees. had been granddaughter he and his Defendant stated than complexion was darker agreed. Morrison noticed C.S. C.S. defendant, accent, spoke with but defendant with a Latino spoke and conversed separated The officers them a thick Polish accent. independently. each where C.S. building in the stated he was the landlord
Defendant parts repairs to to make they way pick up their lived and were on to the so driven them area He claimed his wife had apartment. her trees, go shopping. left Officer Morrison they look at but she could Further, nearby. no areas shopping there were retail testified to the keys defendant van. possessed cross-examination, testified that he saw
On Officer Morrison when C.S., her, touching was not and her crying, she was not spoke not to have been or torn. He stated he appeared ripped clothes initially him that she Spanish C.S., who told English both then him defendant looking and defendant had been trees. She told embankment, laid down a blanket and offered walked her toward her, “hug” hug if she her she would him. When defendant tried $15 they up him not touch her and to leave. C.S. did not tell asked stood any that he part body, Morrison that defendant touched of her tried to anything. restrain her or force her to do examination, told
On redirect Officer Morrison stated that C.S. him talk to him for fear that defendant would evict she was afraid to building. Spanish, her from In she told apartment and her mother up accompany pick repair her to him to Morrison defendant asked way store, they going he told her supplies, but on their to the were trees, ignoring home. stop requests go and look at also testified the State. Rolling Meadows Detective Gadomski Sircher, Investigator On he and his John had April partner, dur- present been briefed Officers Morrison and Dobs and was ing Advocacy Center. C.S. sensitivity C.S.’s interview at the Children’s Community and her were taken to the Northwest mother later station, he and Hospital. police then returned to the where Gadomski *4 rights, of his He defendant Sircher interviewed defendant. advised need for a English expressed in no speaking to him after defendant building owned the in interpreter. Polish Defendant told Gadomski he He repair he to their door. family which C.S.’s resided and that was he accompany Depot. way, him Home On the became asked C.S. to to pulled lost and over. He climbed the in parking lot, embankment but could not ascertain his location due to the Upon trees the area. being carrying blanket, asked about defendant responded initially that he did not know and had lost his mind. He then stated that he thought he had holding been a box of cigars, not a blanket. Defendant did not tell Gadomski he to the area look at trees. cross-examination,
On Detective Gadomski testified that blanket, as well as clothing, C.S.’s had been examined for semen and hair; pubic neither was discovered. Semen stains were found on C.S.’s underwear; however, testing they revealed were not secreted defendant.
C.S. testified for the State. She 12 at the time of the incident. him landlord; Defendant was her family’s she identified as such in court. C.S. recounted that day on the at issue defendant told going her apartment he was fix doors in her and asked her to ac- company him help door, to the him carry store a as he had a back Instead, problem. defendant a place drove her to with bushes. Defendant refused to her despite requests. take home her He told her to come brought with him look at trees along and blanket. He told Then, her to sit on the hug blanket. defendant [her] “tried and money [her].” He her, touched offered her if she allowed him to touch but she refused. Defendant moved her shorts underwear to the vagina side. Then he touched her put for while. then his Defendant finger inside her She him vagina. asked to drive her they home. As emerged bushes, from the they saw two police Upon hearing officers. police grandfather, defendant tell her C.S. told them defendant grandfather, was her her Angela name was Lopez they and that had looking been at trees. admitted later that lied and tell she did not police touching about defendant her due to her fear that defendant do something would to her mother as he was their landlord. She also spoke English stated that she they defendant had no dif- ficulty understanding each other. cross-examination,
On C.S. testified that when she and defendant blanket, on sitting legs were her were crossed and he sat on her touching hand, left side his shoulder Using right hers. his pulled defendant her and underwear to the Defendant did shorts side. clothing penis. not take off her As present his he touched vagina, cry C.S. asked leave. Defendant told her to C.S. did not wait. requests get out when touched and after three did only they to leave up upset attempting from the blanket. C.S. was at defendant for hug officer, her. She that she informed the who her to testified drove station, her; police that defendant touched she could not remember telling put vagina. him that his inside her At the finger
147 She vagina. her touched no one defendant station, she told police her, hug not to money to touch offered her actually stated her at the who interviewed she told the woman her. She admitted smooching.” “afraid to be because was police she lied to she Center kissing hugging. previously Defendant “smooching” is stated she was afraid something to her mother and he would do told her that On redirect examina- fulfill that threat. police if he would she told she wore while tion, on the shirt C.S. stated buttons by undone themselves. defendant would come no The circuit rested, presented evidence. The State defense of testimony by virtue and her corroborated court found C.S. credible having taken a a area and defendant having been taken to secluded did not cor- determined the State place. to that The court also blanket vagina, finding and entered a of C.S.’s penetration roborate defendant’s abuse, the court found to which guilt aggravated of on criminal because of criminal sexual assault predatory be a lesser-included offense predatory except for the actual “it contains all of the elements vagina.” was penetration or the actual Defendant insertion The earlier in this court denied defendant’s opinion. sentenced as noted timely appeals. motions to reconsider and for new trial. Defendant I convicting him contends the circuit court erred
Defendant first criminal sexual charged, aggravated a crime which he was not (West 2000)) (720 which, is not a argues, abuse ILCS he 5/12 —16 (720 ILCS predatory offense of criminal sexual assault lesser-included (2000)).* 5/12 —14.1 One be convicted of an offense for which has cannot charged, expressly be convicted of an offense not may been but identifying predatory provides, assault 1The statute part: pertinent
“(a) of a predatory commits a criminal sexual assault accused child if: (1) years age or an act of the accused was 17 over and commits years age penetration was under 13 victim who (West 14.1(a)(1)
when the act committed.” 720 ILCS 5/12 — 2000). (720 recognizing ILCS aggravated The statute criminal sexual abuse 5/12— 16(c)(1) (West 2000)) pertinent provides, part: if the ac- “The abuse accused commits '*'** (i) years act of sexual age cused or over and commits an act when the conduct with a victim who was under committed.”
included in the charging instrument where the offense is a lesser-
included offense of the crime charged. People Novak,
v.
(1994) (Novak).
105,
In People
49,
v.
298 Ill. App. 3d
Here,
charged,
penetration,
defendant was
not with mere
but
penetration
vagina
with “sexual”
the
finger,
of
victim’s
with his
which
common sense
is no
likely
dictates
less
done for the
of
purpose
sexual
gratification than is
penetration
“sexual”
of the
vagina
victim’s
ac
companied by the “threat of force.” Contact between defendant’s
finger
vagina
and the
touching
victim’s
is
of a sexual nature and
implies sufficiently
gratifica
that defendant
by
was motivated
Novak,
(Nickles, J.,
tion. See
Sexual conduct is defined statute ILCS 5/12 — pertinent part, “any knowing touching fondling by or as intentional or accused, directly clothing, organs or of through victims either or the sex *** accused, any body part of or of the a child under the victim or of ***** years age, or of purpose gratification of for the of sexual arousal the victim or the accused.” People concern, supreme court as noted primary The (1996) (DiLorenzo), 318, 323, 662 N.E.2d DiLorenzo, Ill. 2d
v. precise offense defendant of the apprised is that the “indictment plead his defense and allow charged enough specificity prepare with arising out resulting prosecution as a bar to future ing conviction circumstances, it is unneces present the same conduct.” Under the gratification upon or sary predicate the existence of arousal Defendant was indicating a “threat of force.” presence language finger penetration” and “intrusion” his with the “sexual charged imply is vagina. language alone sufficient into C.S.’s Such into the inherently incorporated element gratification since that is “sexual conduct” the term charged. proposition conduct as gratification, but “sexual sufficiently implies purposeful not, challenges logic and reason. penetration” does both approach, “charging tier of the instrument” Under first greater of the are contained within the offense elements lesser offense offense charged. apprised precise as Defendant was of the his and to his convic- enough specificity prepare defense assert necessary is purposes jeopardy. tion as a defense for of double It all the of the charging expressly allege that the instrument elements offense; required is that the lesser offense be theoretical lesser nor it Hamilton, practical necessity greater or crime. if language It is sufficient contains the of the lesser- charging implicitly instrument elements DeWeese, judice, included at 10. In the case sub offense. age years instrument stated that defendant was C.S., penetration act who older, and he committed an of sexual finger in placed his was under when *7 a outline” vagina. Clearly, charging the instrument contained “main abuse, offense aggravated criminal sexual as the elements of that greater charged. as implicit are the offense Novak, upon where defendant was support, For defendant relies and claimed aggravated criminal sexual assault with jury the instructed as to the lesser- prejudice because was criminal sexual abuse. No- uncharged aggravated included offense of vak, to 2d In defendant was not entitled holding 163 Ill. at 105. that for instruction, the the indictment insufficient jury the court found issue, and for accurately to conduct at failure describe the sexual Novak, omitting indicating purposeful gratification. sexual language 163 Ill. 114-15.2 2d at wrote, “[a]lthough O’Sullivan, the Circuit
2In Lemons v. Seventh Novak, 762,] as erroneous 2d characterized [in court Ill. Novak, As explained, subsequent DiLorenzo, earlier to 323-25, 2d at supreme court upheld defendant’s conviction where an indictment to explicitly abuse failed state that sexual conduct was done for the purpose gratification of sexual or *3 harmony DiLorenzo, therefore, arousal.* In with aggravated criminal sexual abuse can be considered a of predatory lesser-included offense assault, criminal gratification even when sexual spelled was not greater out with particularity in the indictment. To sustain the convic aggravated abuse, tion for prosecution was not required present any showing direct evidence the act was commit ted “for the purpose of In A.P., sexual arousal.” re App. (1996) (In A.P.). 395, 398, 669 N.E.2d re required As under “charging the second tier of the ap- instrument proach,” the trier of fact must consider evidence adduced at trial to guilty offense, consider whether be defendant can found of the lesser but acquitted greater Landwer, offense. 166 Ill. 2d case, In the instant the evidence at trial supports finding. circuit court’s record reveals that 12-year-old defendant lured a girl into a guise secluded area under the needing of going shopping, due a help problem. to back C.S. asked defendant repeatedly home, to take her but he refused. Instead he bushes, took her an area brought him, a blanket with it set on ground, offered money “hug,” for moved aside her shorts underpants, vagina finger. and touched her his C.S. testified finger that defendant inserted his vagina. into her Defendant lied to police, stating granddaughter, they that C.S. his just was that were looking trees, at and his had dropped wife them off at that location to 189]) (citing Allensworth[, defendant’s contention charge aggravated specifically allege sexual abuse need not that the sexual purpose gratification arousal, opinion conduct was for the of sexual or seeming holdings Balle[, approval recited with Allensworth 813] 3d at ‘the conduct” were words “sexual alone sufficient certainty against inform the defendant charges with reasonable him.’ It judgment is our Supreme that the Court Illinois would not a convic reverse upon tion for sexual abuse based an indictment like [defendant’s] statutory concerning because language it failed include the purpose.” (7th 1995). O’Sullivan, Lemons v. F.3d 363 n.5 Cir. 3Although the DiLorenzo court declined to entertain the issue of whether required the indictment “for purpose was aver that conduct was gratification,” conduct,” required upholding “sexual define conviction, apparent defendant’s it was that defendant aware that he DiLorenzo, being tried an act of sexual conduct with the victim. 169 Ill. 2d at 323-24. *8 to van. keys possessed the Defendant departed.
look at trees and Depot Home way he on his to police Defendant later told he driving, said that and, claims that his wife was despite his earlier asked police he was. When he did not know where pulled over because why and blanket, said he had no idea he why carrying him he was thought carrying he his mind.” He claimed later had “lost not a cigar box and blanket. he would evict landlord and she was afraid
Defendant was C.S.’s truth, if because mother she told something or her family her do judge circuit found to her. The made such threats previously defendant for a that he did “not believe a credible witness and stated be to the area look at trees. defendant took C.S. moment” that assault, in this predatory The offense of charged of the case, and “main outline” the “broad foundation” contains criminal sexual abuse. lesser-included offense
II applying next the circuit court erred in Defendant maintains that cross-examining him “rape preclude the Illinois shield” from statute assault, by godfather. one committed her C.S. about another sexual prior activity alleged The or victim or reputation under corroborating a sexual case is inadmissible witness assault (1) statute, concerning past shield” as evidence “rape except accused, of alleged sexual conduct victim when between (2) consent,4 “constitutionally required fered to show or when to be 2000). (West admitted.” 725 ILCS Pursuant to the confronta 5/115—7 amendment, right has a to cross- tion clause in the sixth defendant or other factors examine witness order show motive bias Davis, might testimony. People App. which influence of cross-examination and the scope admissibility of evidence are within the discretion the circuit court review, and will not disturbed on a clear abuse discretion. be absent Davis, may be excluded when its 3d at 984. Evidence Davis, probative value. relevancy speculative is so that it is of little denying court erred in his mo Defendant contends circuit cross-examining him the victim preventing tion limine and from previous godfather. her The record shows C.S.’s about sexual abuse godfather days prior to defendant’s sexually abused her several within motive to ac- alleges C.S. had a Although conduct. C.S., question 12 at the time of first
4There is no here but incidents, incapable of 720 ILCS legally and second consent. See 5/12— (West 2000). (d) 16(b), (c)(1), 14.1(a)(1), 12— falsely abusing cuse him her in protect godfather, order there is no evidence in the Instead, record to substantiate that claim. godfather’s evidence demonstrates the only abuse was discovered after *9 C.S. had accused defendant of abuse. At the time C.S. accused defendant, one godfather no claimed her abused her. There was also no evidence that C.S. implicating was defendant in order to deflect at- tention away godfather, from her nor was there evidence suggest to that any protect C.S. had desire to godfather her or a had motive to falsely. accuse defendant
Defendant’s
People Gray,
assertion that
v.
3d
(1991),
Unlike testimony here there is no whatsoever that C.S. was attempting godfather falsely her protect by implicating defendant. The circuit court did not refusing abuse its discretion in to allow by cross-examine C.S. about abuse her godfather.
Ill beyond Defendant maintains a prove the State did not reasonable doubt that he guilty reviewing sufficiency evidence, ques
abuse. In of the the relevant whether, is considering light tion the evidence most favorable to State, the essential ele any rational trier fact could have found beyond People Cox, ments of crime reasonable doubt. (2001). responsibil- is trier of fact’s 378, 387, It 2d ity weight given to be credibility and the to determine witnesses’ Ortiz, N.E.2d testimony. People v. their fact are not made the trier of determinations Although deference, will great and a conviction conclusive, are entitled to they unreasonable, improbable is so only where the evidence be overturned guilt. doubt of defendant’s justify as to a reasonable unsatisfactory Ortiz, Ill. 2d at 259. testimony was specifically that C.S.’s
Defendant contends The record is to the allegations hard to follow. and her incredible corroborated C.S.’s contrary. Defendant’s own behavior statements admittedly C.S. to abused her. Defendant took testimony that he had trees,” blatantly lied and was police, look at he private area “to incident, At time of the emerging seen with C.S. from the bushes. accompany into age 12 and defendant 49. He coaxed C.S. and, against repeated protestations, him the her ing secluded area he her told her on the blanket where both touched and fondled to sit home, vagina. She told defendant to take but did not. the cred- position circuit court was in the best to determine
ibility be credible. The specifically of the witnesses and found C.S. to witness, credible, is testimony single of a if and the witness positive Smith, 532, 541, sufficient Ill. 2d to convict a defendant. v. (1999). testimony also found defendant’s The court incredulous, stating brought that he it did “not believe for moment” trees, merely to the look as he claimed. The court area at his intent police questioning believed defendant’s answers showed something. credibility to hide The court’s assessments were well founded upon and no basis exists which to disturb them. prove
Defendant further the an essential ele claims State failed to aggravated abuse, ment of not criminal sexual because the State did prove gratification he acted for of or arousal. This purpose the sexual I, it that point issue has been addressed in where is noted the Illinois necessary Court found in DiLorenzo it for an Supreme is explicitly that indictment criminal sexual abuse to state gratification of sexual performed purpose conduct was purpose or arousal. were done for the Additionally, whether acts itself, as shown sexual arousal can be inferred from the sexual conduct In A.P., here. re 3d at 398. prove lastly contends the State failed to he was
Defendant age, element of the offense. Defendant’s date years over another is stated in the indictment as as elsewhere in the record. birth well 18, age May He was born 1952. The record shows he was Further, testimony from the time of trial. there was investigating they officers that a 12-year-old girl saw with an older man, defendant, and that grandfather. he claimed to be her Defendant not younger than
The evidence in this case was not so “unreasonable or unsatisfac- tory” justify as to a reasonable doubt of guilt. defendant’s
For the reasons above, judgment set forth of the circuit court County Cook is affirmed. Affirmed.
GREIMAN, J., concurs. THEIS,
JUSTICE dissenting; People Novak, In v. Supreme Illinois presented Court was with precise issue raised in this aggravated case: whether criminal sexual abuse is a aggravated lesser-included offense of criminal sexual assault. The court it People Novak, concluded was not. v. 163 Ill. 2d (1994). 762, 643 N.E.2d attempts distinguish State Novak based on the fact that the defendant charged Novak had been aggravated criminal sexual predatory assault and not criminal difference, however, assault. This does not our analysis, affect as the aggravated version of the criminal charge assault statute used to the defendant in Novak contains the same elements of the predatory of a assault child statute with which defendant here 14(b)(1) (West charged. 1994); See 720 ILCS 720 ILCS 5/12 — 14.1(a)(1) (West 2000). principle Because we are bound 5/12 — decisis, stare this court is authority modify without to overrule court, supreme therefore, decisions I King would reverse. Northern District, Indiana Commuter Transportation 55, 35, Novak, defendant,
In
who had
been
assault,
appealed
the trial court’s refusal
to tender
jury
on aggravated
Novak,
instructions
criminal sexual abuse.
2d at
155
it,
charged the defendant
before
which
instrument
an act of
and described
criminal
sexual assault
aggravated
with
sexual
aggravated
did
criminal
penetration,”
not describe
“sexual
abuse,
penetration,” which
Novak court reasoned that “sexual
assault, and acts of “sexual
sexual
aggravated criminal
refers to
abuse,
types
are different
sexual
conduct,”
aggravated
which refers
114-15,
Novak,
Ill.
at
The this implies intent of sexual sufficiently penetration that sexual dictates” penetra- Ill. at 148. While the terms “sexual gratification. App. 3d understanding, may convey a common we tion” and “sexual conduct” terms and statutory on the definitions these inquiry must focus our understanding” a particular “common liberty apply are not at legislature specific defined it in a limited and man- term where the has Here, conduct,” legislature statutory ner. in the definition of “sexual gratification “for purpose has included the element of sexual where required apply are this definition as written even arousal.” We understanding it does not reflect our common of the term. my colleagues
To
from
Nickles’
support
holding,
their
cite
Justice
However,
majority
rejected
in
his
opinion
dissent in Novak.
Novak
view,
majority. Additionally,
majority
and we are bound to follow the
Balle,
which
upon People
People
here relies
v. Allensworth and
v.
both of
Novak,
are
that the
in
163 Ill. 2d at
distinguished.
cases
court Novak
114-15,
773,
Allensworth,
citing People
App.
643 N.E.2d at
v.
(1992),
Balle,
804,
People
App.
I
case,
DeWeese,
believe the recent
4,
App.
9-10,
298 Ill.
3d
554,
(1998),
698 N.E.2d
light
DeWeese,
sheds
on this matter. In
this
court discussed Novak and
and
aggravated
DiLorenzo
held that
criminal
sexual abuse can be
a
found as
lesser-included
of aggravated
offense
****6
criminal sexual assault* even where the indictment
language
omits
describing
touching
fondling
defendant’s
or
of the
purposes
victim for
of
gratification
DeWeese,
or
App.
9-10,
arousal.
at
N.E.2d at 558. The court noted that the
of
inquiry
focus
its
was whether
language
of
question implicitly
the indictment
contained the ele
ment of touching
gratification
for the purpose of sexual
so
toas
set
the main
aggravated
forth
outline of
DeWeese,
criminal sexual abuse.
10,
6I note that the of the version criminal sexual assault statute charge on DeWeese contains relied the defendant in the same elements of predatory sexual assault of child statute which defendant (West 14(b)(1) 1994); charged. here was 720 ILCS 720 ILCS See 5/12— 5/12 — 2000). 14.1(a)(1) (West arise, is DeWeese could and therefore gratification or arousal against instrument language used in inapposite. here reads as follows: Cook, County within April “[0]n or about predatory offense of Marian committed the Kolton years age or over and of a child in that he was seventeen assault [C.S.], to wit: an penetration upon an act of sexual committed [C.S.] vagina, and finger [C.S.’s] into intrusion of Marian Kolton’s penetration act of was under thirteen when *13 720, 5, 12— Chapter Act Section committed in violation amended, 14.1(a)(1), 1992, and Compiled as of the Illinois Statutes Statute, against of the contrary peace dignity and same of the State of Illinois.” nearly identical the indict- language this indictment is
inment Novak: “ ‘Chester M. Novak committed the offense years in that he was or over and assault seventeen victim], penetration upon [the
committed an act of sexual wit: penis victim’s] mouth [the contact between Chester M. Novak’s and the victim under thirteen when the act 1989, penetration committed, in ch. [111. violation of Rev.Stat. ” 14(b)(1)].’ Novak, at par. 12— supreme It is duty this court to follow decisions our Regional court. Schusse v. Pace Suburban Bus Division Transportation Authority, such, As held Supreme because Illinois Court Novak, equivalent
indictment in a functional of the indictment in the bar, ag- case did not describe the foundation main outline of abuse, gravated we bound to conclude that are indictment does not describe the foundation or main outline of here I aggravated criminal sexual abuse. would reverse.
n For stated, I respectfully the reasons dissent.