*1 encroach it. Given that Consumer Fraud Act upon legal damages rights, claims for create no new the Gen- not, intended, eral Assembly preclude could even if it so I, of article operation section 13. JUSTICE joins partial McMORROW concur- partial rence and dissent.
(No. 75279. THE PEOPLE OF THE STATE OF ILLINOIS, Appel-
lee, NOVAK, Appellant. CHESTER
Opinion September Rehearing denied filed 1994. December 1994. *3 J., HEIPLE, dissenting. McMORROW, JJ„
NICKELS, J„ joined by HEIPLE and also dissenting.
Eugene Chicago, appellant. O’Malley, of for Burris, General, Attorney Springfield, Roland of (Terence O’Malley, Attorney, Chicago Jack of M. State’s Madsen, General, Attorney Chicago, Assistant Goldfarb, Renee G. Peter Fisher and Veronica X. Cal- deron, counsel), Attorneys, Assistant State’s for the People. opinion
JUSTICE FREEMAN delivered the of the court:
Following a in the circuit court of Cook defendant, Novak, County, Chester was convicted of (Ill. criminal sexual assault. Rev. Stat. 14(b)(1).) ch. par. Defendant was sentenced to a 12— prison term of 11 years, by mandatory followed supervised period release three years. appellate (242 court affirmed. We allowed petition appeal defendant’s for leave Ill. 2d R. 315(a)), and now affirm the appellate court.
BACKGROUND The appellate court recited the trial testimony length. We need not detail it here. The State’s case was essentially that in the summer of defendant was a 31-year-old baseball He boys’ coach. coached four occasions, baseball teams. On several defendant lured J.R.H., case, 10-year-old in this to defendant’s victim living quarters. accomplished Defendant this under the skills, pretenses improving the victim’s baseball *5 performing research for a book or a thesis for master’s rooms, degree. On these occasions defendant’s defen- victim, dant at various times blindfolded the the tied back, victim, victim’s hands behind his choked the against victim, rubbed and inserted his penis into the victim’s mouth. 242 App. Ill. 3d at 842-47.
The essentially defense case was only defendant applied various sets of strength flexibility muscle and exercises on the victim’s neck and shoulders. Defendant tying However, denied the victim’s hands. defendant did place victim’s arms behind his back and restrict movements, arm victim’s so the arms would not interfere training Also, with the program. during some of these exercises, defendant’s waist came into contact with the 847-49.) victim. 3d at Defendant did tell players perform victim and other on his teams not to partner. these exercises other any with Defendant was they concerned could hurt if they themselves performed these partners. exercises with untrained We will pertinent refer to additional facts as they relate to the three defendant issues raises before this court.
DISCUSSION he a fair Defendant contends did not receive (1) judge: erroneously lay because the trial allowed opinion testify beyond scope witnesses to to matters (2) personal knowledge; erroneously of their refused defendant’s tendered instruction on criminal sexual abuse as a lesser offense of included (3) assault; aggravated criminal sexual used errone- concerning Jury ous Illinois Pattern Instructions other- by crimes evidence and out-of-court statements child-victim to his mother.
I. Opinion Testimony only applied The defense case was that defendant exercises strength flexibility various sets of muscle neck and shoulders. Defendant testified to the victim’s in the literature of these exercises were endorsed field, into Sev- some of which he admitted evidence. strengthening neck publications eral of these described that defendant claimed to use. Defendant also exercises admitted into evidence an article that recommended teaching The use of a blindfold as an aid in baseball. improve teaches a his or her player blindfold how directing to sense exact player baseball skills body movements. called and Michael State Thomas Milanovich concerning
Lenti as rebuttal al- evidence defendant’s leged training objected, contending Defendant methods. they experts were not the field of athletic *6 training. The State responded that the witnesses were being as experts, lay called but rather as witnesses strength "who in familiarity training have the field of exercising.” After proof the State’s offer of for each witness, judge the trial testify. allowed the witnesses to graduated
Milanovich from the University of Wis- consin in study 1975. His minor field of He was health. took courses in anatomy, physiology, and kinesiology, study which is the of mechanical and anatomical principles in relation to human movement. Milanovich played professional in early football the late 1970s and In opened 1980s. he a gymnasium patrons whose professional included children and He athletes. had been a personal trainer for a professional few baseball players. kept He current in techniques with the latest strength training through in the literature the field and attending seminars.
Milanovich testified that he would not train a 10- to 13-year-old using blindfold, child a tying the child’s back, hands behind the applying pressure to the child’s In opinion, strengthen- neck. Milanovich’s neck ing exercises are used for contact sports, such as football. Neck muscle strength throwing is not related to Also, baseball. he preferred parents to include training children rather than to exclude them. gave
Milanovich also his on opinion the literature presented. that defendant In opinion, Milanovich’s publications that discussed neck exercises pertained to sports contact such as publications football. The did not have anything strengthening to do with the arm for throwing Also, a baseball. the article that discussed blindfolding did so in the training hearing- context of impaired children.
Michael Lenti was a trainer at a during health club college. played He professional years baseball for 21h and semiprofessional years. baseball for nine At the trial, play time of he continued semiprofessional baseball, and served as an assistant athletics director at DePaul University charge of the facilities and the recreation intermurals.
Lenti described the exercises he used for developing his opinion, throwing arm. his the muscles used for arm, back, shoulders, chest, are those in the legs. Lenti opined having further there was no benefit Rather, a strong strong neck in baseball. too or overde- veloped a neck would be "a hindrance more than a help.” training He had never attended a session where blindfolded, the trainee was or where the trainee’s arms were tied behind his or her Lenti trains children back. occasionally; he has never worked on their necks or ad- *7 parents vised not to attend. gave
Lenti also his on the literature that de- opinion fendant In Lenti’s the presented. opinion, publications on neck exercises involved football and not baseball. The neck exercises described therein were isometric baseball, strength, exercises for which is not needed for flexibility, and not for which is needed. Lenti had never any of exercises for anyone done or seen else do these blindfolding was the on article opinion, In his baseball. disagreed children. He training handicapped at directed should technique the author’s conclusion with nonhandicapped players. applied to be his contention appeal, repeats On defendant was inadmissible. Milanovich and Lenti testimony the of scope of witness beyond lay the He claims that it was their challenges qualifica- He also testimony. opinion prej- was argues testimony He the experts. tions as the believe it could have led udicial because training program. alleged his defendant lied about admis- upheld judge’s The court the appellate testimony. Although and sion of Milanovich’s Lenti’s opinion lay was admitted as witness testimony legal referred to the testimony, appellate court expert testimony. principles pertaining appellate The testimony Milanov- court did discuss whether the of not lay ich and either as witness Lenti was admissible Rather, the court opinion testimony expert testimony. required if rebuttal concluded that even the State’s testimony, prejudiced by defendant expert was testimony, Lenti’s admission of Milanovich’s regardless of its label. 242 Ill. 3d 861-62. agree court’s conclusion appellate We with admission Milanovich’s and Lenti’s upholding the However, testimony. we do for a different reason. so question reviewing before a court correctness result court and not reached the lower reasoning which that result was upon correctness of York 29 Ill. (People reached. 2d Therefore, reviewing court, we can sustain the deci as a reason, any appropriate sion of a court for lower those regardless whether the lower court relied on court’s grounds regardless lower whether reasoning 142 Ill. Morgan was correct. (People 457-58.) a trial court’s Specifically, "[w]here *8 102 ground, proper
admission of evidence is on some it will though gave wrong not be disturbed even the court (1981), People App. v. 155, reasons.” Church Ill. 102 3d (1988), People Thompkins 166; accord 401, 121 Ill. 2d 428. initially testimony
We conclude that the of Milano- lay opinion vich and was Lenti inadmissible as witness testimony. Illinois courts refer to Rule 701 of the Federal considering admissibility lay Rules of Evidence (M. opinion testimony. Cleary Graham, witness & Gra- (5th § 701.1, ham’s Handbook Illinois Evidence at 482 1990).) provides ed. Rule that if a witness is not testifying expert, opinion testimony as an or his her (a) opinions limited to those or inferences that are (b) rationally perception on based of the witness and helpful understanding to a clear of the testi- witness’ mony or the of a determination fact in R. issue. Fed. quoted Freeding-Skokie Service, Evid. Roll-Off Inc. v. Hamilton 2d 222. Lay opinion testimony witness is admissible where adequately presented the facts could not otherwise be or way described to the fact finder in such a as to enable opinion intelligent the fact finder form to an or reach an may Lay opinions conclusion. witnesses relate their or they conclusions on what observed it because is some- physical person’s times difficult to describe a mental or reputation, condition, character or or emotions things acts; manifest her his or that occur and can including speed, appearance, observed, odor, flavor, be (9th 1982), temperature. United States v. Skeet Cir. 985; 665 F.2d accord v. Burton 6 Ill. 879, 886; Gard, 1 S. Evidence Illinois Manual (2d 1979). § 7:03 ed. lay testimony opinion
The limitation that be witness rationally perception on based the witness’ reflects general requirement personal that a witness must have testify (Joy it. knowledge of matter Manufactur (3d 1982), Industries, Inc. Cir. Sola Co. v. Basic ing Graham, 602; 104, 111; R. Evid. M. accord Fed. F.2d Evidence Handbook Illinois Cleary & Graham’s (5th 1990).) be testimony must 701.1, at 482 ed. § own from the witness’ perceived concrete facts based on (10th 1979), Collectramatic, Cir. Inc. (Randolph senses. *9 on Evi 844, 847-48; Strong, McCormick F.2d J. (4th 1992); Gard, Illinois 11, at 46 ed. 1 S. dence n.22 § (2d 1979).) knowl Manual ed. Personal 7:02 Evidence § an a fact based on the statement edge of cannot be (9th (United 1986), 789 F.2d v. Cir. other. States Owens 754.) 750, essentially that the requires The limitation evidence fact finder receive the best available —first knowledge. knowledge rather than second-hand hand (10th 1423, 1985), States v. Cir. 777 F.2d United Hoffner 1425; Co., 697 111. Joy Manufacturing F.2d at case, testimony and present In the the of Milanovich beyond lay opinion scope Lenti went the witness These evi- testimony. witnesses were called for rebuttal alleged concerning training dence methods. defendant’s However, see these witnesses did not defendant adminis- else. any anyone ter of these exercises to the victim or knowledge to base They upon lacked first-hand which opinion testimony. their
Rather, conclu and Lenti based their Milanovich knowledge included sions on second-hand (Amer (see C. & Co. presented literature defendant Itoh (E.D. 1989), F. ica), v. V La. Inc. Hans Leonhardt M/ 515), 514, responses hypothetical their Supp. or sought expert prosecutor asked questions (see strength training White opinion subject on (5th 979). 1991), 972, lay Cir. As 950 F.2d Walker witnesses, on opinions their could not been based have sen facts from their own they perceived concrete Rather, only to their could amount opinions ses. at 1426. Hoffner, See 777 F.2d speculative conclusions. The record shows that defendant challenged qualifications of Milanovich and Lenti expert as wit However, nesses. we testimony conclude that of Mil anovich Lenti and was admissible as expert testimony. An permitted individual will be to testify as an expert if that person’s experience qualifications and afford him or knowledge her is laypersons, not common to where such testimony will aid the fact in reaching finder its (People v. Jordan (1984), conclusion. 103 Ill. 2d 208.) expertise assigned The indicia of is not an level of Rather, qualifications. academic the test is whether expert knowledge experience has beyond the average citizen that would assist evaluating (People Coleman evidence. App. 205 Ill. 3d 584.) expert gain may knowledge his or her through practical experience rather than scientific study, training, or research. There is no precise require ment as how acquires expert experience. skill (People v. Oberlander 109 Ill.
Regardless specialized how knowledge acquired, through education, whether training, experience, or a *10 each, of possesses combination if the witness such knowl Coleman, edge, may he or she as an testify expert. 205 Ill. at 584. establishing
The of qualifications burden the of an expert is proponent witness on the the expert’s of testimony. determination a whether witness qualifies an expert as is within sound discretion of Jordan, trial court. 103 2d at 208. case, present Milanovich and met Lenti these qualifications. Through education, training, experience, or a each, combination possessed these witnesses knowledge average that not common citizen. Further, knowledge jury reaching this aided the in its conclusion. We cannot that court say abused its in admitting testimony. discretion Offense Lesser Included
II. errone- judge the trial next contends Defendant aggra- on instruction jury his tendered refused ously he was He asserts sexual abuse. criminal vated crim- aggravated on instructed to have entitled a lesser offense is because that abuse inal sexual assault. criminal sexual offense of included is neces- legal principles the pertinent A review on arguments parties’ better understand sary to that he of an offense can be convicted person No appeal. However, committing. charged with or she has not been expressly not of an offense may a be convicted defendant instrument if is a that offense charging in the included charged. expressly offense of the crime lesser included 292; 288, People 149 Ill. 2d v. Jones Ill. 2d 300. Lewis a de- a tool for included offense is valuable A lesser a de- generally. For fendant, society a prosecutor, included offense fendant, an instruction on a lesser jury. to the If the option an third provides important something, guilty that defendant was jury believes offense had been charged whether but uncertain offense, of the lesser might it convict defendant proved, greater him of the offense. acquit rather than convict or (and cases (1986), 113 Ill. 2d People Bryant therein). cited automatically may prosecutor,
For a defendant ele- prove if fails to an essential go free the evidence greater society, punishment offense. For ment of the more may it on a criminal conform imposes Note, The actually the crime committed. accurately to Pennsylvania: Included Doctrine Lesser Offense Uncertainty Courts, 84 Dick. L. Rev. in the (1979). an the Criminal Code of 1961 defines
Section 2—9 of "[ijs an part as offense pertinent included offense *11 than all of the by proof of the same or less established 106 (or
facts or a less culpable mental both), state than that which is required to establish the commission of the charged.” offense 1989, 9(a). Ill. Rev. 38, Stat. par. ch. 2— Unfortunately, the statutory definition does not specify what source to examine in deciding whether particular offense is a lesser included offense of another. general Three approaches (1) have been identified: (2) abstract statutory definition of greater crime; greater crime alleged as it is charging in the instrument; (3) greater or crime as its necessary elements are Bryant, proved at 503, trial. 113 Ill. 2d at quoting People Mays (1982), 251, 255; 91 Ill. 2d People Wys 103 273, Ill. App. 3d 275-77. test,
The first the "abstract approach, elements” generally described as the strictest. (E.g., Ettinger, Search a Reasoned Approach to the Lesser Included Offense, 50 (1984); Brook. L. Rev. Koenig, Many-Headed Hydra Lesser Included A Her Offenses: culean Task Courts, the Michigan 1975 Det. C.L. for 44.) Rev. Under approach, the abstract statutory greater elements of the offense are compared with those of the alleged lesser offense. "If all of the elements of the lesser offense are included greater within the the lesser does not any have element not included in greater, the lesser is deemed to be a lesser included Wys, offense.” App. Ill. 3d at 275-76.
The abstract elements approach does not look to the facts of a crime charged as either in the particular charging proved instrument Rather, at trial. the test solely considers theoretical or practical impossibility. 197; Brook. L. Rev. at 84 Dick. n.26; L. Rev. at 129 1975 Det. C.L. Thus, Rev. at it must be "impossible greater to commit offense without necessarily committing the lesser v. Delk offense.” 1041. test,
The second the "charging instrument” ap- *12 the- "cognate” or "pleadings” the known as also proach, "interme- lenient” or as a "more described has been ory, 203.) (50 197, This L. Rev. at Brook. standard. diate” charging alleged in the the facts looks to approach included offense. a lesser identifying instrument to be a lesser an is deemed offense approach, Under this charging by the if it is described included offense 3d at 276. Wys, App. 103 Ill. instrument. require not does charging approach instrument "nec- theoretically practically a or
the lesser crime to be Rather, the lesser greater crime. essary” part of the extent greater relate to the to only crime need (84 Dick. the lesser. charging instrument describes 127-28.) must a broad The "lesser offense have L. Rev. at or charging greater,” in the instrument foundation main of the lesser offense.” at least "set out the outline 2d at 505. Bryant, 113 Ill. test, the "factual” "evidence”
The third "most as the "broadest” or has been described approach, 205.) 197, at This Brook. L. Rev. approach. lenient” at trial on the to the facts adduced approach looks charged. 103 Ill. 3d at 276. Wys, offense relation- also as the "inherent This test is known ship” approach. only Not must the evidence adduced greater establish the lesser proof of the offense offense, also, exist relationship” but an "inherent must words, greater between the and lesser offenses. In other relate to the greater and lesser offenses must re- They of the same interests. must be so protection crimes, general proof in the of those lated that nature though invariably, necessarily, the lesser offense is showing as of the commission presented part of 96, Dace 104 Ill. 2d greater offense. (D.C. 1971), 100, Cir. quoting United States v. Whitaker 314, 447 F.2d 319. identified, a
Once lesser included offense 108
question remains whether the jury should be instructed on the lesser offense. The identification of a lesser included offense does not automatically give rise right correlative have the instructed on the lesser offense. (Wys, 103 Ill. App. Rather, 3d at an "independent prerequisite” must be giving met for the (Schmuck of a lesser included offense instruction United States n.8, 489 U.S. 103 L. Ed. 2d n.8, n.8), S. Ct. regardless of the approach used in identifying the lesser included offense. This independent prerequisite an involves examination of the evidence presented at trial.
A defendant is entitled to a lesser included offense instruction if only permit evidence would a jury *13 rationally to find the defendant guilty of the lesser included offense and acquit him or greater her of the (Keeble v. United States offense. (1973), 205, 412 U.S. 208, 844, 1995.) 847, 36 L. Ed. 1993, 2d 93 S. Ct. A lesser included offense instruction proper where, is not on the presented trial, evidence the factual issues to be by resolved the jury are the same as to both the lesser greater offenses. A lesser included offense instruc- tion proper is only charged greater where the offense requires jury to a disputed find factual element required is not for conviction of the lesser included offense. Sansone v. United States (1965), 343, 380 U.S. 349-50, 882, 13 888, L. Ed. 2d 1004, 1009; 85 S. Ct. see People v. Cramer (1981), 92, 85 Ill. 2d 98-100. evidentiary requirement
This usually satisfied the presentation of conflicting testimony on the element that distinguishes greater offense from the lesser However, offense. where the testimony is not conflicting, this requirement may be if satisfied the conclusion as to may the lesser offense fairly be inferred from the evi- (United (7th States v. Medina dence presented. Cir. 1985), 755 F.2d The amount of evidence nec- i.e., tends requirement, meet this factual essary to greater, offense rather than the has prove the lesser "some,” "slight,” "very as or "any,” been described slight.” Ill. People Upton (and therein); cases cited Willis App. 3d 490-91. case,
In the present appellate upheld court judge’s proffered refusal of defendant’s instruction Using on aggravated criminal sexual abuse. the abstract approach, appellate elements court held that aggravated criminal sexual abuse is not a lesser included aggravated offense of criminal sexual assault. 242 Ill. App. 3d at 860-61. charging
Defendant contends that this court uses approach identifying instrument lesser included of- argues fenses. Defendant approach, under this even under the abstract approach, elements criminal sexual abuse is a lesser included offense of aggravated criminal sexual assault. The State responds that the abuse offense is not included within the assault offense.
Further, urges State this court to adopt abstract approach elements in identifying lesser in- cluded offenses. responds Defendant the State argument waived this on appeal. At the instruction conference, the State objected to proffered defendant’s aggravated criminal sexual abuse instruction on the grounds that the record lacked evidence support *14 instruction. argues Defendant since the State objected basis, on this evidentiary the State could not argument raise this new before this court.
However, the appellee State is the before this court. An appellee may any argument raise supported or basis by the record to show the judgment, correctness of a though even the appellee had not previously advanced argument. such an v. P.H. (People 145 Ill. 2d 220.) Therefore, argument we will address the State’s adopt approach. that we the abstract elements problem This is a difficult issue. The of applying challenged lesser included offense doctrine "has (Brown justice effective administration for centuries.” (Fla. 1968), State accord Fuller v. 377, 380; 206 So. (D.C. 1228.) United States 1967), Cir. 407 F.2d Each identify of the three used to lesser approaches included advantages disadvantages. offenses has both begin relationship approach. We with the inherent The lesser included offense is identified from evi- dence of what defendant did. The main actually advan- tage flexibility. of this is its This approach approach goes goal accurately conforming furthest toward the punishment actually to the crime committed. 50 Brook. L. Rev. at 208.
However, flexibility relationship the inherent A approach disadvantage. is also its It is too broad. cannot be identified until lesser included offense Thus, close of the evidence. both the defendant and the prosecution lack advance notice of lesser offenses. The litigate all parties prepare possible would have offenses, than all preparing possible lesser or risk less offenses, Blair, only charged offense. lesser Constitutional Limitations on the Lesser Included Doctrine, 21 Am. Crim. L. Rev. 449-50 Offense (1984).
Further,
an inherent
relation
requirement
charged greater
ship between the lesser and
offenses
208.) Also,
necessarily subjective.
Brook. L. Rev. at
basis,
it is
approach operates
case-by-case
since this
on
general governing
to formulate
"very nearly impossible
included offenses.
on the identification of lesser
principles”
(D
ace,
rejected
court
104 Ill. 2d at
This
in Dace and we continue to do so.
approach
approach.
examine the abstract
elements
We next
*15
Proponents
approach
of this
assert
it offers the
certainty
predictability
most
in
lesser
identifying
promotes
judicial
included offenses. This approach
economy
requires only
because it
a textual comparison
particular
of criminal statutes. The facts of a
case are
An appellate
identify
irrelevant.
court can
a lesser
reviewing
included offense without
the entire eviden
tiary
modification,
statutory
single
record. Absent
a
judicial interpretation
categorize
suffices to
the relation
ship
any
between
two criminal offenses for all subse
Thus,
quent cases.
both
in subsequent prosecutions
sides
are notified as to what lesser included offenses are avail
able and can plan
strategies
their
accordingly.
(Schmuck
705, 720-21,
v. United States
489 U.S.
734, 749,
1443, 1453;
103 L. Ed. 2d
109 S. Ct.
50 Brook.
201.)
L. Rev. at
We note that Federal courts use this
Schmuck,
approach.
489 U.S. at
at
L. Ed. 2d
746,
This
of the abstract elements
approach
precisely
is
disadvantage.
inherently
its
It is
inflexible. "Judicial economy”
nothing
has
to do with
purpose
the doctrine: to conform
accurately
more
(84
punishment
actually
to the crime
committed.
Dick.
126.)
L. Rev. at
Since the abstract
approach
elements
expressly rejects reference to the facts of a particular
case, this approach
adequately
goal.
does not
serve this
202;
The
instrument
Certainly,
approach
lished.
the abstract elements
is also
(See
Schmuck,
719-20,
at
well established.
489 U.S.
1452; People
v. Rain
748-49,
L. Ed. 2d
109 S. Ct. at
at
374,
However,
bolt
(1977),
App.
"[a]t
52 Ill.
3d
*** might
cognate
of a
common law a
convict
a
offense
the same character
but of
less
the words
the indictment were wide
enough
nature
if
added.) 11(2)
an
(Emphasis
to cover
such
offence.”
1029,
Hailsham,
England
at 859
Halsbury’s
par.
Laws of
(4th
Brown,
1990);
ed.
see
We note the from approach courts used the abstract elements Illinois 1981, rejected this court early cases until when charging adopted approach abstract elements (1981), v. Cramer Ill. People approach in instrument Krueger v. (1988), App. 176 Ill. 3d (People 2d 92. 1054, 1056; (1983), v. Cashen 628; App. 112 Ill. People 276.) This observation Wys, 103 Ill. 3d at well charging approach instrument was incorrect. The e.g., People Cramer. See, long recognized in Illinois before Gilday v. 334-36; People (1940), v. Lewis 375 Ill. (1874), Earll 11, 21-22; 351 Ill. 329, 332-33. best serves the charging approach instrument
The purposes lesser included offense doctrine. This approach tempers theory harsh mechanical with the particular facts of a charging case. The instrument in a approach range possible results broader lesser offenses, allegations included based on the in the charging supports goal instrument. This of more accurately conforming punishment actually the crime Further, charging committed. since the instrument facts, to the provides parties closed set of both sides have notice of all possible lesser included offenses and can plan strategies accordingly. their trial 50 Brook. L. 204; 129; see, Rev. at 84 Dick. e.g., People L. Rev. Lyons 26 Ill. App. 3d 198-99. instrument charging approach has been criti- granting
cized for too much prosecu- discretion to the tion. Critics note that specific decision of which charges bring charging in a instrument is almost entirely within the prosecutor. discretion of the Since approach looks alleged charging to the facts in the instrument, critics reason that the prosecution can limit the availability of lesser included offenses how it *17 drafts the instrument. 50 Brook. L. at Rev. 204.
This criticism is not well founded. It is settled "that Attorney, State’s as a member of the executive government, branch of is vested with exclusive discre tion in the management initiation and of a criminal prosecution. [Citations.] That discretion includes the de all, cision prosecute whether as well as to choose which of several charges brought.” shall be (People ex 45-46.) (1983), 41, rel. Daley Moran 94 Ill. 2d A defen dant right does not have the to choose his or her prose punishment. cution or charging ap instrument proach is consistent with principles. these People (1982), 785, 789-90; Barkenlau App. 105 Ill. 3d Wys, App. Ill. 3d at 278-79. case,
In present using charging instrument aggravated criminal sexual approach, we conclude as a lesser included abuse is not available to defendants charged criminal sexual assault as aggravated offense of Defendant was indicted as follows: in the indictment. aggravated of M. Novak committed the offense "Chester years he was of criminal sexual assault in that seventeen penetration age over and committed an act of sexual or victim], M. upon to wit: contact between Chester No- [the was penis victim’s] [the victim] mouth and [the vak’s years penetration thirteen when the act of sexual under 1989, 38, committed, in of Stat. ch. [Ill. was violation Rev. 14(b)(1)].” par. 12— aggravated criminal sexual
An accused commits (i) years age of or over and abuse if "the accused was a was an conduct with victim who commits act of sexual (Ill. age of when the act was committed.” years under 13 16(c)(l)(i).) 1989, 38, Sexual par. ch. Rev. Stat. 12— means, "any intentional or pertinent part, conduct *** accused, fondling either knowing touching or *** body clothing, any part of of the directly through or age, purpose for the sexual years of a child under 13 38, ch. arousal ***.” Ill. Rev. Stat. gratification or 12(e). par. 12— against defendant the indictment
We conclude main outline of the foundation or does not describe does abuse. The indictment aggravated criminal sexual fondling the victim’s touching or any not describe gratification purpose of sexual body parts for arousal. 3d v. Allensworth App. 235 Ill. People
Citing charge aggravated contends defendant allege that specifically abuse need criminal sexual purpose of sexual conduct was for the sexual is erroneous. arousal. This contention gratification or v. Baile Allensworth crimi- charged with defendant was each committing sexual and accused of nal sexual abuse *18 conduct. The court each case held that the words "sexual conduct” were alone sufficient to inform the de fendant with certainty charge against reasonable of the Allensworth, 188-89; Balle, him. 235 Ill. App. 3d at 3d at 811-13. case, present charged defendant was with aggravated criminal sexual assault. The indictment describes an act penetration,” of "sexual specifically that contact occurred between penis defendant’s the victim’s mouth. penetration Sexual aggra- refers to (Ill. vated criminal 1989, sexual assault. Rev. Stat. ch. 14(b)(1).) 38, 12(f), pars. This was not an act of 12— 12— conduct,” "sexual which refers to aggravated criminal sexual 38, abuse. Ill. Rev. 12(e), Stat. ch. pars. 12— 16(c)(l)(i). 12—
These two types of conduct are different. Offenses based on sexual penetration require contact between organ the sex person of one organ, mouth, and the sex or anus of another person, with an implied mental state intent, knowledge, However, or recklessness. offenses based on sexual require touching conduct fondling for the purpose of sexual gratification or arousal. (People Terrell 209-11; Ill. 2d People Bur 222-24.) meister 147 Ill. App. The indictment present case does not aggra describe vated criminal sexual abuse. uphold We the trial judge’s refusal to instruct jury on criminal sexual abuse.
III. Pattern Instructions lastly Defendant contends that judge the trial used erroneous Illinois Pattern Jury concerning Instructions other-crimes evidence and out-of-court statements the child-victim to his mother. purpose jury provide instructions is to to the legal the correct principles applicable to the evi-
dence, so that the jury may reach a correct conclusion *19 v. Gam-
according (People to the law and the evidence. 81-82.) cases, (1948), In where Ill. criminal bony an applicable contain Jury Illinois Pattern Instructions to the facts giving due consideration instruction used, law, be the IPI instruction is to governing accurately it determines does unless the court 451(a).) determining In Ill. 2d R. state the law. instructions, reviewing will consider court adequacy they whole to ascertain if all the instructions as a (1981), Housby cover the law. fully fairly People (1957), 433-34; 11 Ill. 2d v. Stevens People 84 Ill. 2d 21, 29. Evidence
Other-Crimes testimony of three other presented The State presented Defendant other-crimes evidence. children as judge The trial of his acts. an innocent construction Illinois objection gave to the over defendant’s (2d Criminal, Instructions, No. 3.14 ed. Jury Pattern 1981) (hereinafter which, 2d), modified for IPI Criminal case, stated: this the defendant has has been received
"Evidence charged in the other than that been involved offenses solely on the has been received indictment. This evidence method of operandi[,] of defendant’s modus issue may considered acting!,] This evidence be and his intent. only purpose for which it was by you for the limited received.” instruction misstates this
Defendant contends an presents when a defendant argues He the law. in a sex offense his or her acts construction of innocent child-victim, of crimes committed evidence case with a guilty prove used to children cannot be against other knowledge or intent. following princi- settled ignores
This contention ples: if crimes is inadmissible
"Generally, of other evidence propensity the defendant’s merely to establish relevant commission [Citation.] crime. Evidence commit however, admissible, evidence crimes is when such other intent, identity, prove operandi, modus is relevant fact, motive, [Citations.] mistake. or absence of held of other offenses is admissible court has that evidence to show the any purpose other than if it is relevant for Mc- (People v. propensity [Citations.]” to commit crime. 96 Ill. 2d Kibbins with to sex cases apply equally offense principles These See, v. Soler e.g., People child victims. (1991), 216 Ill. 183, 202-03; Jendras
App. 3d 149, 158-60. App. 3d fairly applicable
IPI Criminal 2d No. 3.14 reflects giving of this no error law in this case. We find instruction. *20 Statements
Out-of-Court told testified that the victim The victim’s mother judge gave him. The trial her that defendant molested objection IPI Criminal 2d jury to the over defendant’s case, 1989), which, modified for this (Supp. No. 11.67 stated: you victim] that made [the
"You have before evidence concerning charged his to mother the offense statements you the in case. It is for to determine whether this so, weight be were and if what should statements made determination, making given to the statements. In that victim], age maturity you [the the should consider statements, under the nature of the and the circumstances which the statements were made.” this misstates Defendant contends that instruction the law. Defendant views the victim’s out-of-court his in- merely statements as corroborates hearsay testimony. asserts that the instruction court Defendant hearsay jury’s not limit the consideration of these does that purpose. statements to of the reject this contention. Section 115— 10
We statutory is a Code of Criminal Procedure that he hearsay exception testify that allows a child to complained or she of a sexual act to another. stat- ute testify also allows others to out-of-court state- ments made the any child that describe act that is an (Ill. element of the offense child. perpetrated upon 10(a).) Rev. par. Stat. ch. The statute 115 — requires giving of an IPI instruction found at Crimi- 1989) (now nal (Supp. 2d No. 11.67 IPI found at Crimi- (3d 1992)), nal 3d 11.66 if No. ed. such statements are admitted.
Pursuing argument, this defendant contends section 115 —10 is unconstitutional. Defendant asserts the courts how a only power have to decide jury points be instructed. He out section should 10(c) requires court in a that a trial instruct 115 — particular way. Thus, reasons, defendant the statute judicial an power by unconstitutional exercise legislature. argument, as reject
We did the court. appellate 851-54.) 3d at appellate addition to the reasoning, that a legislature court’s we note State has power prescribe existing new and alter rules of v. Orange evidence. 121 Ill. 2d 381. 1989) IPI (Supp. fairly Criminal 2d No. 11.67 reflects error applicable law this case. We find no giving of this instruction. reasons, of the foregoing judgment
For is affirmed. appellate court
Affirmed. *21 HEIPLE, dissenting: JUSTICE sponte sua majority’s to The decision declare that lay witnesses who to inappropriately testified their is, opinions expert simply, were witnesses quite wrong. The State did seek to these men not have argue experts, they declared did not to this court fact, were de and, in experts testimony offered their facto closely balanced opinion testimony. this lay as witness evidence, conflicting very diametrically case with well have may these witnesses damaging testimony of jury’s ultimate decision deciding in the been the factor respectfully I dissent. to therefore convict. witnesses, called, Thomas Mi- as rebuttal
The State purpose expressing for the of and Michael Lenti lanovich methods of as to whether defendant’s opinions their was a sound and correct method training young athletes objected, arguing Defendant training of baseball players. testify experts. were as qualified that the men not by this affirma- responded objection The State stating calling people are not these as tively "we background. calling with an We are expert witnesses in the familiarity as who have field simply people them training asked, strength and exercise.” The trial court clarification, coming experts?” not in as "Specifically for responded, "Correct.” The State these men were Despite State’s concession being they called as were allowed to: state experts, training techniques; their review the documents that give their upon; defendant testified he had relied opinions developing that defendant’s theories of sound; give young players arms of baseball were not opinions. the reasons for their majority holds that these testimo- appropriately lay testimony. as opinion nies were inadmissible witness adopted Federal Rule of Evidence Under Service, Freeding-Skokie court in Inc. Hamil- Roll-Off 217, 222, lay opinion 108 Ill. witness’ ton or are testimony opinions is limited to inferences and which rationally perceptions based on his are testimony understanding helpful to the trier’s a fact in issue. The witnesses at its determination disputes issue did not their with defendant’s base his techniques ap- from their first-hand impressions proaches, readings but rather their of the literature on *22 through offered prosecutor’s defendant and the hypo- questions subject thetical on of strength training. the offering opinions These methods of expressly are experts, reserved for the majority properly and rules that the testimonies not be any could admitted in other way. majority’s reasoning
The is "[tjhrough that educa- tion, training, experience, each, or a combination possessed these witnesses knowledge that is common average Further, to the knowledge citizen. this aided reaching the jury in its conclusion.” at words, In other the majority necessary restates the expert’s elements to demonstrate an qualification and then them declares met. case, State, reason, the instant for whatever
chose demonstrating not to undertake the burden of its qualifications experts. may witnesses’ as One reason so, given have been that it would have been unable do only marginal knowledge either witness had of training. baseball Because were not witnesses experts, offered as did not opportu- defendant have the nity purpose to cross-examine the witnesses for the their challenging experts. certification as it that Finally, cannot be said defendant did not prejudice. physical suffer There no was evidence this case, jury reaching and the had substantial difficulty Almost verdict. four hours after it retired to deliber ate, judge stating hung. it sent a note to the was it stating Two it hours after sent another note it hung. was still Still elapsed, another hours which 21/z again time it jury stating sent a third note was hung. judge discussing sequestration The hopelessly was with jury counsel at the time the third note was and, respond, sent he could reached its before verdict. evidence, jury’s there was physical
Because no credibility solely on based was verdict the final experts were State’s so-called The witnesses. trial, their testimonies in the testify two witnesses to discredit they served lengthy, detailed were im- of these prejudice evidence. the defendant’s compel and should manifest proper testimonies *23 conviction. reverse defendant’s court to the disagree I with departure, of point a second As refusing an instruc- no error that there was majority I therefore abuse. sexual aggravated criminal tion on dissent, persuasively he where Nickels’ Justice join of discretion. an abuse that this was demonstrates I dissent. respectfully dissenting: NICKELS, also
JUSTICE of the majority’s application the disagree I with to bar defendant’s doctrine included offense lesser criminal sexual jury instruction of requested abuse. of thorough in a discussion engages majority
The to determine used separate approaches three an- offense of a lesser included one offense is whether "charging ultimately It concludes other. to be used. approach proper is the approach instrument” with it is consistent this conclusion because agree I with (1986), 113 Ill. Bryant People decisions in this court’s I 2d 288. dis- 149 Ill. v. Jones of that application narrow agree majority’s with the instant case. approach to the attempted was convicted of Bryant',
In the defendant jury a trial, requested burglary. At the defendant damage to of criminal lesser offense on the instruction appeal, On judge refused. property, but to a not entitled that defendant was argued State a allege did not because the indictment instruction required Knowledge was state. "knowing” mental charged offense the lesser included mental state for Bryant. The language court examined the of the indict- ment found "implicitly” indictment knowledge. contained the mental (Bryant, state of 505.) Thus, Ill. 2d at the lesser offense instruction should given. have been Jones, charged by the defendant was information robbery. trial,
with armed After a bench the judge found guilty defendant was not armed robbery of but guilty information, was The language theft. great extent, a language tracked of the armed robbery statute. This court noted that the statutory def- required inition an theft intent to permanently deprive a victim his property. statutory defini- robbery tion of armed did not contain that element. Thus, appellate panels some court had concluded that theft was lesser included offense of armed robbery.
This implicitly court held the information al- leged theft, although the did not expressly indictment allege an deprive. intent permanently The court found that adequately alleged the information the nec- essary conduct and elements *24 for the offense of theft. that, The court attempts stated when an individual armed robbery, common sense dictates that he acted with permanently deprive the intent the victim of property. the cases,
In both court a mental inferred state from language charging addition, the of the instrument. this court the both greater examined elements of the and necessary lesser offenses. This was because the greater indictment recited the of the elements offense and the sought court to determine whether the indict- Thus, ment alleged the elements of the lesser offense. extent, an charging and the instrument abstract approaches overlap, elements and a court must examine greater the the lesser elements of both offenses. in nearly The statutes involved the instant case are
123 assault sexual criminal aggravated Both identical. sexual certain require abuse sexual criminal aggravated Aggra- and the victim. perpetrator between contact be the contact requires that abuse sexual vated criminal (Ill. gratification.” sexual of purpose "for the initiated 12(e).) aggravated The 1989, 38, par. ch. Stat. Rev. 12— include does not statute assault sexual criminal in court appellate The language. gratification sexual criminal aggravated concluded therefore this case aggra- of included offense not a lesser abuse is sexual giving purpose For the sexual assault. vated criminal court instruction, I believe the included offense a lesser the offense reasonably infer may purpose "for the was committed sexual assault criminal gratification.” of sexual is to jury instruction giving lesser purpose trial. third at option an jury important with
provide 105.) "[Wjhere jury suspects Ill. 2d at offense, but one guilty of some plainly defendant is doubt, in in remains charged offense the elements of instruction, will jury a lesser offense the absence of stan- to the reasonable-doubt likely give fail to full effect of conviction.” dard, resolving doubts in favor its (Schmuck States v. United (Emphasis original.) 734, n.9, S. n.9, 747 109 705, 103 L. Ed. 2d U.S. States n.9, citing v. United Keeble Ct. 1993; see also 93 S. Ct. U.S. 36 L. Ed. 2d should not be Defendant 113 Ill. 2d Bryant, alleged simply because denied an instruction set out assault was not aggravated criminal sexual Further- gratification. in terms of sexual the indictment charge, support the lesser more, if does not the evidence given. not be instruction should have panels appellate also that several I note sexual abuse aggravated criminal whether considered *25 criminal sexual aggravated of a included offense lesser assault. Most have that aggravated concluded criminal sexual is a e.g., People (See, abuse lesser included offense. (1992), Bell v. Patel 631; 234 Ill. App. People (1991), 3d Finley (1988), 688; 213 Ill. 3d People App. 178 Ill. App. People v. Smith 301; (1987), 3d 589; 152 Ill. 3d App. v. Creamer 64; 143 Ill. App. 3d but see 218.) People v. Burmeister 147 Ill. App. 3d These courts found only have the difference between the two aggravated offenses is that criminal sexual assault Creamer, requires showing See, a e.g., penetration. Ill. at 70. case, majority the instant the applies ap- the in Bryant proach stated too narrowly. majority The in language concludes indictment instant case does not contain the foundation main outline for offense of criminal sexual (163 506.) 114; Bryant, 113 Ill. 2d at abuse. 2d at The charges indictment case that defendant "commit- ted an penetration upon victim], act sexual [the wit: penis contact between [defendant’s] [the majority mouth ***.” victim’s] concludes that did performance any indictment act describe purpose gratification. for the of sexual between Contact penis touching defendant’s and the mouth victim’s is a sexual nature. The reasonably court can infer de- gratifica- fendant was motivated desire by a for sexual tion. identified,
Once a lesser included is a court offense next examines presented evidence at if a determine lesser included offense instruction is (163 107-08.) appropriate. Ill. 2d An instruction is appropriate "if permit jury evidence would rationally guilty to find the defendant of the lesser greater included him or acquit offense and her of the proper offense.” Ill. 2d at An instruction greater requires where the offense to find a *26 required for is not element disputed factual pre- Ill. 2d at evidence lesser offense. a supported have in this case could sented criminal charge the lesser conviction for sexual abuse. Jones, examined this court Bryant and was the lesser offense whether
indictment to determine reasonably could be indictment implicit In the language in the indictment. from the inferred too this approach case, majority applies instant offense instruction. a lesser included narrowly and bars was reasons, I believe defendant foregoing For the aggravated criminal instruction on entitled a lesser did not sexual abuse. Because defendant receive instruction, be re- the cause should included offense court for a new trial. remanded the trial versed join JUSTICES HEIPLE and McMORROW dissent.
(No. 75976. al., PEORIA CINDY McCUEN et THE Appellees, DISTRICT, Appellant. PARK Opinion September Rehearing denied filed 1994. December 1994.