People v. Novak

JUSTICE NICKELS, also dissenting:

I disagree with the majority’s application of the lesser included offense doctrine to bar defendant’s requested jury instruction of aggravated criminal sexual abuse.

The majority engages in a thorough discussion of the three separate approaches used to determine whether one offense is a lesser included offense of another. It ultimately concludes that the "charging instrument” approach is the proper approach to be used. I agree with this conclusion because it is consistent with this court’s decisions in People v. Bryant (1986), 113 Ill. 2d 497 , and People v. Jones (1992), 149 Ill. 2d 288 . I disagree with the majority’s narrow application of that approach to the instant case.

In Bryant', the defendant was convicted of attempted burglary. At trial, the defendant requested a jury instruction on the lesser offense of criminal damage to property, but the trial judge refused. On appeal, the State argued that defendant was not entitled to a jury instruction because the indictment did not allege a "knowing” mental state. Knowledge was the required mental state for the lesser included offense charged in Bryant. The court examined the language of the indictment and found that the indictment "implicitly” contained the mental state of knowledge. (Bryant, 113 Ill. 2d at 505 .) Thus, the lesser offense instruction should have been given.

In Jones, the defendant was charged by information with armed robbery. After a bench trial, the judge found that the defendant was not guilty of armed robbery but was guilty of theft. The language of the information, to a great extent, tracked the language of the armed robbery statute. This court noted that the statutory definition of theft required an intent to permanently deprive a victim of his property. The statutory definition of armed robbery did not contain that element. Thus, some appellate court panels had concluded that theft was not a lesser included offense of armed robbery.

This court held that the information implicitly alleged theft, although the indictment did not expressly allege an intent to permanently deprive. The court found that the information adequately alleged the necessary conduct and elements for the offense of theft. The court stated that, when an individual attempts armed robbery, common sense dictates that he acted with the intent to permanently deprive the victim of the property.

In both cases, this court inferred a mental state from the language of the charging instrument. In addition, this court examined the elements of both the greater and lesser offenses. This was necessary because the indictment recited the elements of the greater offense and the court sought to determine whether the indictment alleged the elements of the lesser offense. Thus, to an extent, the charging instrument and abstract elements approaches overlap, and a court must examine the elements of both the greater and lesser offenses.

The statutes involved in the instant case are nearly identical. Both aggravated criminal sexual assault and aggravated criminal sexual abuse require certain sexual contact between the perpetrator and the victim. Aggravated criminal sexual abuse requires that the contact be initiated "for the purpose of sexual gratification.” (Ill. Rev. Stat. 1989, ch. 38, par. 12 — 12(e).) The aggravated criminal sexual assault statute does not include the sexual gratification language. The appellate court in this case therefore concluded that aggravated criminal sexual abuse is not a lesser included offense of aggravated criminal sexual assault. For the purpose of giving a lesser included offense instruction, I believe the court may reasonably infer that the offense of aggravated criminal sexual assault was committed "for the purpose of sexual gratification.”

The purpose of giving a lesser jury instruction is to provide the jury with an important third option at trial. (163 Ill. 2d at 105.) "[Wjhere the jury suspects that the defendant is plainly guilty of some offense, but one of the elements of the charged offense remains in doubt, in the absence of a lesser offense instruction, the jury will likely fail to give full effect to the reasonable-doubt standard, resolving its doubts in favor of conviction.” (Emphasis in original.) (Schmuck v. United States (1989), 489 U.S. 705 , 717 n.9, 103 L. Ed. 2d 734 , 747 n.9, 109 S. Ct. 1443 , 1451 n.9, citing Keeble v. United States (1973), 412 U.S. 205 , 36 L. Ed. 2d 844 , 93 S. Ct. 1993 ; see also Bryant, 113 Ill. 2d at 502 .) Defendant should not be denied an instruction simply because the alleged aggravated criminal sexual assault was not set out in the indictment in terms of sexual gratification. Furthermore, if the evidence does not support the lesser charge, the jury instruction should not be given.

I note also that several appellate panels have considered whether aggravated criminal sexual abuse is a lesser included offense of aggravated criminal sexual assault. Most have concluded that aggravated criminal sexual abuse is a lesser included offense. (See, e.g., People v. Bell (1992), 234 Ill. App. 3d 631 ; People v. Patel (1991), 213 Ill. App. 3d 688 ; People v. Finley (1988), 178 Ill. App. 3d 301 ; People v. Smith (1987), 152 Ill. App. 3d 589 ; People v. Creamer (1986), 143 Ill. App. 3d 64 ; but see People v. Burmeister (1986), 147 Ill. App. 3d 218 .) These courts have found that the only difference between the two offenses is that aggravated criminal sexual assault requires a showing of penetration. See, e.g., Creamer, 143 Ill. App. 3d at 70 .

In the instant case, the majority applies the approach stated in Bryant too narrowly. The majority concludes that the language in the indictment in the instant case does not contain the foundation or main outline for the offense of aggravated criminal sexual abuse. (163 Ill. 2d at 114; Bryant, 113 Ill. 2d at 506 .) The indictment in this case charges that defendant "committed an act of sexual penetration upon [the victim], to wit: contact between [defendant’s] penis and [the victim’s] mouth ***.” The majority concludes that the indictment did not describe the performance of any act for the purpose of sexual gratification. Contact between defendant’s penis and the victim’s mouth is touching of a sexual nature. The court can reasonably infer that defendant was motivated by a desire for sexual gratification.

Once a lesser included offense is identified, a court next examines the evidence presented at trial to determine if a lesser included offense instruction is appropriate. (163 Ill. 2d at 107-08.) An instruction is appropriate "if the evidence would permit a jury rationally to find the defendant guilty of the lesser included offense and acquit him or her of the greater offense.” (163 Ill. 2d at 108.) An instruction is proper where the greater offense requires the jury to find a disputed factual element that is not required for the lesser offense. (163 Ill. 2d at 108.) The evidence presented at trial in this case could have supported a conviction for the lesser charge of aggravated criminal sexual abuse.

In Bryant and Jones, this court examined the indictment to determine whether the lesser offense was implicit in the indictment and could be reasonably inferred from the language in the indictment. In the instant case, the majority applies this approach too narrowly and bars a lesser included offense instruction. For the foregoing reasons, I believe defendant was entitled to a jury instruction on aggravated criminal sexual abuse. Because defendant did not receive a lesser included offense instruction, the cause should be reversed and remanded to the trial court for a new trial.

JUSTICES HEIPLE and McMORROW join in this dissent.