{ "id": 3598158, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARIAN KOLTON, Appellant", "name_abbreviation": "People v. Kolton", "decision_date": "2006-03-23", "docket_number": "No. 99221", "first_page": "353", "last_page": "372", "citations": [ { "type": "official", "cite": "219 Ill. 2d 353" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "132 Ill. 2d 178", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5589174 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "209" }, { "page": "216" }, { "page": "210-11" }, { "page": "210" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/132/0178-01" ] }, { "cite": "175 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295771 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "135" }, { "page": "129" }, { "page": "135-36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0126-01" ] }, { "cite": "179 Ill. 2d 319", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 801345 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "325" }, { "page": "324" }, { "page": "325" }, { "page": "325" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/179/0319-01" ] }, { "cite": "207 Ill. 2d 122", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974986 ], "year": 2003, "pin_cites": [ { "page": "143-44", "parenthetical": "Fitzgerald, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/207/0122-01" ] }, { "cite": "166 Ill. 2d 475", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 198908 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "486" }, { "page": "486" }, { "page": "486-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/166/0475-01" ] }, { "cite": "149 Ill. 2d 288", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5599993 ], "year": 1992, "pin_cites": [ { "page": "292" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/149/0288-01" ] }, { "cite": "196 Ill. 2d 460", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 351279 ], "year": 2001, "pin_cites": [ { "page": "472" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/196/0460-01" ] }, { "cite": "199 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 58914 ], "weight": 7, "year": 2002, "pin_cites": [ { "page": "6" }, { "page": "11-15" }, { "page": "8" }, { "page": "9" }, { "page": "10" }, { "page": "10-11" }, { "page": "11" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/199/0001-01" ] }, { "cite": "169 Ill. 2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909169 ], "weight": 2, "year": 1996, "pin_cites": [ { "page": "321" }, { "page": "321", "parenthetical": "defendants have a due process right to notice of the charges brought against them" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0318-01" ] }, { "cite": "347 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3948621 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/347/0142-01" ] }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "weight": 17, "year": 1994, "pin_cites": [ { "page": "105" }, { "page": "108" }, { "page": "105-06" }, { "page": "111" }, { "page": "110" }, { "page": "112-13" }, { "page": "113" }, { "page": "113" }, { "page": "108" }, { "page": "114" }, { "page": "113-14" }, { "page": "114" }, { "page": "115" }, { "page": "121", "parenthetical": "Nickels, J., dissenting, joined by Heiple and McMorrow, JJ." }, { "page": "124", "parenthetical": "Nickels, J., dissenting, joined by Heiple and McMorrow, JJ." } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] } ], "analysis": { "cardinality": 1027, "char_count": 32999, "ocr_confidence": 0.814, "pagerank": { "raw": 2.903507901935627e-07, "percentile": 0.8452481206433271 }, "sha256": "7138e955a501ae3405eff934cb4387a69324f9da7a02ac571e70adc1f941eb60", "simhash": "1:b3f2d7066f473e10", "word_count": 5368 }, "last_updated": "2023-07-14T21:47:08.841300+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARIAN KOLTON, Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the judgment of the court, with opinion.\nChief Justice Thomas and Justices Freeman, Fitzgerald, Kilbride, Garman, and Karmeier concurred in the judgment and opinion.\nOPINION\nOn May 23, 2000, defendant Marian Kolton was charged in a single count indictment with predatory criminal sexual assault of a child in violation of section 14.1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12\u2014 14.1(a)(1) (West 2000)). The indictment alleged:\n\u201cdefendant was 17 years of age or older and committed an act of sexual penetration upon [C.S.], to wit: an intrusion of Marian Kolton\u2019s finger into [C.S.\u2019s] vagina, and [C.S.] was under thirteen years of age when the act of sexual penetration was committed.\u201d\nFollowing a bench trial, the trial court found that the \u201cintrusion\u201d necessary for an act of sexual penetration had not been proven beyond a reasonable doubt, but that \u201cthe lesser included offense of aggravated criminal sexual abuse [720 ILCS 5/12\u201416(c)(1) (West 2000)] was proven beyond a reasonable doubt.\u201d Defendant was convicted of aggravated criminal sexual abuse and sentenced to 90 days\u2019 incarceration plus 4 years\u2019 felony probation.\nDefendant filed a posttrial motion for reconsideration. Relying on this court\u2019s decision in People v. Novak, 163 Ill. 2d 93 (1994), defendant argued that aggravated criminal sexual abuse is not a lesser-included offense of predatory criminal sexual assault and that the trial court erred by finding him guilty of a crime which was not charged in the indictment. Defendant\u2019s motion was denied and defendant appealed. The appellate court, with one justice dissenting, affirmed defendant\u2019s conviction. 347 Ill. App. 3d 142.\nWe granted defendant\u2019s petition for leave to appeal (177 Ill. 2d R. 315), and now affirm the judgment of the appellate court.\nBACKGROUND\nAt defendant\u2019s bench trial, Rolling Meadows police officer Jason Morrison testified that, on the morning of Sunday, April 30, 2000, he and his partner were on patrol when they noticed a green minivan parked diagonally across three parking spaces, in the nearly empty parking lot of the Continental Towers Business Complex at 1701 Golf Road. The officers exited their patrol car to investigate. They checked the minivan and, seeing no one in or near it, they climbed the 10-foot embankment that ran along the east side of the parking lot, to check the wooded area at the top of the embankment. As the officers approached the top of the embankment, they saw a young girl, later identified as 12-year-old C.S., coming out of the wooded area, followed by an older man, later identified as the 49-year-old defendant.\nWhen questioned, defendant initially told the officers that he was C.S.\u2019s grandfather and that they had been looking at trees. Officer Morrison testified that he found this explanation implausible because C.S. appeared to be Latino, while defendant spoke with a heavy Polish accent. Upon further questioning, defendant admitted that he was not C.S.\u2019s grandfather but, rather, the owner and landlord of the building where C.S. lived with her family. Defendant told the officers that he had gone to C.S.\u2019s apartment that morning to make repairs and found that he needed to purchase some doors. Defendant said C.S. came with him to go to the store. Defendant claimed that his wife had been with them, too, but that she had left them in the parking lot so that they could look at trees while she shopped. Officer Morrison noted, however, that there were no stores anywhere near the parking lot.\nOfficer Morrison testified that he took C.S. down the embankment, where he questioned her away from defendant. At that time, C.S. revealed that defendant had offered to give her money if she would let defendant \u201chug\u201d her. Defendant was then taken into custody and both defendant and C.S. were transported to the police station. Later that day, C.S. was taken to the Child Advocacy Center (CAC) for a victim sensitivity interview and then to the hospital for a physical examination. No one from the hospital or the CAC testified at trial.\nThe State\u2019s second witness was Rolling Meadows Police Detective Gadomski, who testified that, in the evening of April 30, 2000, he questioned defendant, who was being held in custody at the Rolling Meadows police station. Defendant told Detective Gadomski that he was the landlord of the building where C.S. lived with her family, that he had been going to Home Depot to buy doors for C.S.\u2019s apartment, and that C.S. had agreed to come along to help carry the doors. However, defendant gave Detective Gadomski a different explanation for why he was in the parking lot. Defendant claimed that he became lost going to the Home Depot and that he parked his vehicle in the parking lot and climbed the embankment to try to get his bearings. Detective Gadomski testified that he asked defendant why he took a blanket with him and defendant replied, \u201cI don\u2019t know, I\u2019ve' lost my mind.\u201d Later, defendant claimed that he mistakenly took the blanket, thinking that it was a box of cigars.\nThe State\u2019s last witness was C.S., who testified that, on April 30, 2000, defendant asked her to accompany him to the Home Depot to help him carry doors he was going to purchase for her mother\u2019s apartment. C.S. also testified that, after leaving her apartment, they did not go to the store. Instead, they stopped in a parking lot. C.S. said she asked defendant to take her home, but he told her to be patient and to come with him up the embankment to look at trees. At the top of the embankment, defendant put a blanket on the ground under the trees and told her to sit down. C.S. said she sat on the blanket \u201ccross-legged\u201d and defendant sat down next to her. She testified that defendant began to hug her, but she told him to stop. Defendant then offered her money to let him touch her, but she said no. Nevertheless, defendant reached over, moved her shorts and underwear to the side and put his finger into her vagina. After he did this, C.S. got up and asked to go home. C.S. said that, as they were leaving, she saw two police officers coming up the embankment.\nAfter hearing all of the evidence, the trial judge held that C.S. was credible, but without any medical corroboration he could not find beyond a reasonable doubt that sexual penetration had taken place. The trial judge then found defendant guilty of aggravated criminal sexual abuse as a lesser-included offense of predatory criminal sexual assault. As noted earlier, the appellate court affirmed defendant\u2019s conviction, with one justice dissenting.\nANALYSIS\nA defendant in a criminal prosecution has a fundamental due process right to notice of the charges brought against him. People v. DiLorenzo, 169 Ill. 2d 318, 321 (1996). For this reason, a defendant may not be convicted of an offense he has not been charged with committing. People v. Baldwin, 199 Ill. 2d 1, 6 (2002); see also People v. Knaff, 196 Ill. 2d 460, 472 (2001); People v. Jones, 149 Ill. 2d 288, 292 (1992). A defendant may, however, be convicted of an uncharged offense if it is a lesser-included offense of a crime expressly charged in the charging instrument (Novak, 163 Ill. 2d at 105), and the evidence adduced at trial rationally supports a conviction on the lesser-included offense and an acquittal on the greater offense (Novak, 163 Ill. 2d at 108).\nThe first step when deciding whether a defendant has been properly convicted of an uncharged offense is determining whether the offense is \u201cincluded\u201d in the offense that was charged. An \u201cincluded offense\u201d is defined by statute as an offense which is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged. 720 ILCS 5/2\u20149(a) (West 2000). This definition offers little guidance because it does not specify the factors to be considered when deciding whether an uncharged offense is lesser included. See Novak, 163 Ill. 2d at 105-06. For this reason, courts have employed various approaches for determining whether a particular offense is a lesser-included offense of a charged crime. In Novak, we identified three main approaches: (1) the abstract elements approach; (2) the charging instrument approach; and (3) the factual or evidence approach, also known as the \u201cinherent relationship\u201d approach.\nPursuant to the abstract elements approach, an offense is lesser included only if all of the statutory elements of the lesser offense are contained in the greater offense. This approach was rejected as too formulaic and rigid. Novak, 163 Ill. 2d at 111. On the other hand, the \u201cfactual\u201d or \u201cevidence\u201d approach, which looks to the facts adduced at trial to determine whether the proofs offered on the greater offense establish the lesser offense, was determined to be too broad. With this approach, neither the defendant nor the prosecution would have notice of all possible lesser offenses until the close of all of the evidence. Novak, 163 Ill. 2d at 110.\nAfter weighing the relative advantages and disadvantages of each approach, we concluded in Novak that \u201c[t]he charging instrument approach best serves the purposes of the lesser-included offense doctrine.\u201d Novak, 163 Ill. 2d at 112-13. The charging instrument approach looks to the allegations in the charging instrument to see whether the description of the greater offense contains a \u201cbroad foundation\u201d or \u201cmain outline\u201d of the lesser offense. Because the charging instrument provides the parties with a closed set of facts, both sides have notice of all possible lesser-included offenses so that they can plan their trial strategies accordingly. Novak, 163 Ill. 2d at 113. Further, the charging instrument approach \u201ctempers harsh mechanical theory with the facts of a particular case,\u201d \u201cresults in a broader range of possible lesser included offenses,\u201d and, thus, \u201csupports the goal of more accurately conforming punishment to the crime actually committed.\u201d Novak, 163 Ill. 2d at 113.\nIf, using the charging instrument approach, it is determined that a particular offense is a lesser-included offense of a charged crime, the court must then examine the evidence adduced at trial to decide whether the evidence rationally supports a conviction on the lesser offense. Novak, 163 Ill. 2d at 108. Accordingly, an inquiry into whether a defendant may be convicted of an uncharged offense is a two-tiered process. However, the second step\u2014examining the evidence adduced at trial\u2014 should not be undertaken unless and until it is first decided that the uncharged offense is a lesser-included offense of a charged crime. People v. Baldwin, 199 Ill. 2d 1, 11-15 (2002). Whether a charged offense encompasses another as a lesser-included offense is a question of law, which this court reviews de novo. People v. Landwer, 166 Ill. 2d 475, 486 (1995).\nIn the case at bar, defendant\u2019s single issue on appeal is whether aggravated criminal sexual abuse is a lesser-included offense of predatory criminal sexual assault of a child, the offense charged in defendant\u2019s indictment. The appellate court answered this question in the affirmative, although one justice dissented, based on our decision in People v. Novak, 163 Ill. 2d 93 (1994). Defendant now maintains, as did the dissenting appellate justice, that \u201cthe plain meaning of the statutes, the statutory analysis in Novak, and the principle of stare decisis mandate reversal\u201d of his conviction. In Novak, the defendant was charged with aggravated criminal sexual assault in an indictment which alleged:\n\u201cChester M. Novak committed the offense of aggravated criminal sexual assault in that he was seventeen years of age or over and committed an act of sexual penetration upon [the victim], to wit: contact between Chester M. Novak\u2019s penis and [the victim\u2019s] mouth and [the victim] was under thirteen years when the act of sexual penetration was committed ***.\u201d Novak, 163 Ill. 2d at 114.\nAt defendant\u2019s trial, a jury heard evidence that defendant, a 31-year-old man who coached boys\u2019 baseball, brought one of the 10-year-old boys he coached to his home on several occasions and, under the pretense of improving the child\u2019s athletic skills, blindfolded the boy, tied the boy\u2019s hands behind his back, rubbed up against the boy, and inserted his penis into the boy\u2019s mouth. The jury found defendant guilty of the charged offense. On appeal, however, the defendant contended that he was denied a fair trial because the trial court refused his tendered jury instruction on aggravated criminal sexual abuse as a lesser included offense of aggravated criminal sexual assault. The question on appeal was whether aggravated criminal sexual abuse was a lesser included offense of aggravated criminal sexual assault.\nIn Novak, this court unanimously determined that the \u201ccharging instrument\u201d approach should be employed to resolve questions regarding whether an uncharged offense is a lesser included offense of a charged offense. After adopting the charging instrument approach, however, this court was split on its proper application in the case before it. A majority of the court held that \u201caggravated criminal sexual abuse is not available to defendant[ ] as a lesser included offense of aggravated criminal sexual assault as charged in the indictment.\u201d Novak, 163 Ill. 2d at 113-14. The majority concluded \u201cthe indictment against defendant does not describe the foundation or main outline of aggravated criminal sexual abuse\u201d because \u201c[t]he indictment does not describe any touching or fondling of the victim\u2019s body parts for the purpose of sexual gratification or arousal.\u201d (Emphasis added.) Novak, 163 Ill. 2d at 114. The majority held that because the indictment alleged aggravated criminal sexual assault, which requires \u201can act of sexual penetration,\u201d it could not be viewed as having alleged aggravated criminal sexual abuse, which requires \u201can act of sexual conduct.\u201d The majority reasoned that the statutory definition of \u201csexual penetration\u201d does not require a showing that the act was done for sexual gratification or arousal, whereas the statutory definition of \u201csexual conduct\u201d includes this element. Novak, 163 Ill. 2d at 115. Compare 720 ILCS 5/12\u201412(f) (West 2000) with 720 ILCS 5/12\u201412(e) (West 2000).\nThree justices dissented, finding the majority\u2019s application of the charging instrument approach too narrow. Novak, 163 Ill. 2d at 121 (Nickels, J., dissenting, joined by Heiple and McMorrow, JJ.). The dissent pointed out that, under the charging instrument approach, the indictment need not explicitly state all of the elements of the lesser offense, as long as any missing element may reasonably be inferred from the allegations contained in the indictment. The dissent then looked to the indictment and held that the alleged contact between the defendant\u2019s penis and the victim\u2019s mouth was \u201ctouching of a sexual nature,\u201d from which a court could reasonably infer defendant\u2019s motive of sexual gratification. Novak, 163 Ill. 2d at 124 (Nickels, J., dissenting, joined by Heiple and McMorrow, JJ.).\nOf importance in Novak is the court\u2019s unanimous adoption of the \u201ccharging instrument\u201d approach for deciding whether an offense is a lesser-included offense of another. However, the manner in which the majority applied the charging instrument approach in that case has since been eroded and the majority decision can no longer be sustained. Novak held that the indictment did not contain the broad foundation or main outline of aggravated criminal sexual abuse, despite the fact that the indictment alleged an act which came within the purview of \u201csexual conduct,\u201d i.e., touching (by the victim\u2019s mouth) of a sex organ of the accused. The basis for the court\u2019s finding was the fact that an element of the offense of criminal sexual abuse, i.e., that the accused acted for the purpose of sexual gratification or arousal, was missing because that language is not included in the statutory definition of \u201csexual penetration,\u201d which was alleged in the indictment. The court never considered whether this element could be inferred.\nA review of this court\u2019s decisions since Novak reveals that the absence of a statutory element will not prevent us from finding that a charging instrument\u2019s description contains a \u201cbroad foundation\u201d or \u201cmain outline\u201d of the lesser offense. People v. Jones, 207 Ill. 2d 122, 143-44 (2003) (Fitzgerald, J., specially concurring). It is now well settled that, under the charging instrument approach, an offense may be deemed a lesser-included offense even though every element of the lesser offense is not explicitly contained in the indictment, as long as the missing element can be reasonably inferred. See Baldwin, 199 Ill. 2d at 8; People v. Hamilton, 179 Ill. 2d 319, 325 (1997); People v. Jones, 175 Ill. 2d 126, 135 (1997); People v. Landwer, 166 Ill. 2d 475, 486 (1995).\nIn Landwer, the defendant was charged with solicitation of murder for hire. We held that the charging instrument provided the necessary main outline or broad foundation of the lesser offense of solicitation to commit aggravated battery. The indictment charged that defendant solicited others to \u201ckill\u201d certain specified persons. Although the elements of aggravated battery were not alleged, we found that the lesser offense\u2014that defendant solicited others for the purpose of causing great bodily harm or permanent disfigurement to specified individuals\u2014was implicit from the charge. Landwer, 166 Ill. 2d at 486-87.\nIn Jones, the defendant was charged with attempt (aggravated criminal sexual abuse) based on an allegation that defendant, \u201cwith the intent to commit the offense of aggravated criminal sexual abuse,\u201d took a substantial step towards the commission of that offense \u201c \u2018in that he disrobed in the presence of [the victim], who was at least 13 years of age but under 17 years of age at the time, stimulated his [own] penis to erection and requested [the victim] to masturbate him to orgasm, for the purpose of the sexual gratification of the defendant.\u2019 \u201d Jones, 175 Ill. 2d at 129. Reversing the appellate court\u2019s ruling, we found that the charging instrument set forth the offense of public indecency based on lewd exposure, although the indictment did not allege that the purpose of the exposure was defendant\u2019s sexual gratification. Jones, 175 Ill. 2d at 135-36.\nIn Hamilton, we held that the offense of theft was a lesser-included offense of residential burglary even though the indictment did not explicitly allege the elements of theft, i.e., that defendant obtained or exerted unauthorized control over property of the owner with the intent to permanently deprive the owner of the use or benefit of the property. The indictment alleged that the defendant \u201cknowingly without authority entered the dwelling place of [the victims] with the intent to commit therein a theft.\u201d Hamilton, 179 Ill. 2d at 324. We held:\n\u201cBy alleging in the indictment that defendant entered the Williamses\u2019 dwelling place with the intent to commit a theft, the charging instrument necessarily [implies] that defendant intended to obtain unauthorized control over and deprive another of property. This intent can typically be inferred, as it was in this case, only through showing an actual taking of property.\u201d Hamilton, 179 Ill. 2d at 325.\nFinally, in Baldwin, we considered whether aggravated unlawful restraint was a lesser-included offense of home invasion. First, we noted that the offense of aggravated unlawful restraint requires that the accused detain another using a deadly weapon. 720 ILCS 5/10\u2014 3.1 (West 1998). We then looked to the indictment, which alleged, in pertinent part, that the defendant, \u201cwhile armed with a butcher knife, used force on [the victim].\u201d Baldwin, 199 Ill. 2d at 9. We concluded that, because \u201cforce\u201d was not further described, it was not reasonable to infer from this indictment that the \u201cforce\u201d defendant used was for the purpose of detaining the victim. Baldwin, 199 Ill. 2d at 10. We noted, however, that, had the description of the term \u201cforce\u201d in the charging instrument been such that it could reasonably be inferred that the defendant had \u201cdetained\u201d the victim (for example, by stating in the indictment that defendant used force, to wit: dragging the victim through the house), then the failure to explicitly allege that the defendant \u201cdetained\u201d the victim would not preclude a finding that unlawful restraint was a lesser-included offense. See Baldwin, 199 Ill. 2d at 10-11. We suggested that any number of offenses (such as aggravated kidnapping, armed robbery, aggravated criminal sexual assault, or aggravated criminal sexual abuse) might have been a lesser-included offense of the charged offense of home invasion, \u201cdepending on the context of the allegations contained in the charging instrument.\u201d Baldwin, 199 Ill. 2d at 11. Thus, in deciding that the allegations in the indictment did not set forth a broad foundation or main outline of the lesser offense, we provided a greater insight into what it means to say that a charged offense contains a \u201cbroad foundation\u201d or \u201cmain outline\u201d of a lesser offense.\nBased on the cases above, it is clear that, under the charging instrument approach, whether a particular offense is \u201clesser included\u201d is a decision which must be made on a case-by-case basis using the factual description of the charged offense in the indictment. A lesser offense will be \u201cincluded\u201d in the charged offense if the factual description of the charged offense describes, in a broad way, the conduct necessary for the commission of the lesser offense and any elements not explicitly set forth in the indictment can reasonably be inferred.\nIn the case at bar, therefore, we must decide whether defendant was properly convicted of aggravated criminal sexual abuse as a lesser-included offense of predatory criminal sexual assault of a child, as charged in defendant\u2019s indictment. We look first to the statutory definition of aggravated criminal sexual abuse and determine whether the facts alleged in defendant\u2019s indictment contain a broad foundation or main outline of this offense.\nAggravated criminal sexual abuse is defined in section 12\u201416 of the Criminal Code. 720 ILCS 5/12\u201416 (West 2000). Generally, the offense is committed if the accused commits criminal sexual abuse and certain aggravating circumstances exist. However, the offense also includes acts of sexual conduct or sexual penetration committed under certain specified circumstances. See 720 ILCS 5/12\u201416(b), (c), (d), (e), (f) (West 2000). In the case at bar, the trial court found defendant guilty of aggravated criminal sexual abuse in violation of section 12\u201416(c)(l)(i), which provides:\n\u201cThe accused commits aggravated criminal sexual abuse if:\n(1) the accused was 17 years of age or over and (i) commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed\nDefendant\u2019s indictment alleged that defendant committed predatory criminal sexual assault and\n\u201cwas 17 years of age or older and committed an act of sexual penetration upon [C.S.], to wit: an intrusion of Marian Kolton\u2019s finger into [C.S.\u2019s] vagina, and [C.S.] was under thirteen years of age when the act of sexual penetration was committed.\u201d\nSince the ages of the accused and the victim are the same for both aggravated criminal sexual abuse and the charged offense, the only question is whether the allegation of \u201c \u2018sexual penetration\u2019 *** to wit: an intrusion of [defendant\u2019s] finger into [C.S.\u2019s] vagina\u201d provides a broad foundation or main outline of the offense of aggravated criminal sexual abuse, which requires an act of \u201csexual conduct.\u201d We answer this question in the affirmative.\nThe terms \u201csexual penetration\u201d and \u201csexual conduct\u201d are defined in subsections (e) and (f) of section 12\u201412 of the Criminal Code (720 ILCS 5/12\u201412 (West 2000)). Subsection (e) provides:\n\u201c \u2018Sexual conduct\u2019 means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, or any transfer or transmission of semen by the accused upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or the accused.\u201d 720 ILCS 5/12\u201412(e) (West 2000).\nSubsection (f) provides:\n\u201c \u2018Sexual penetration\u2019 means any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.\u201d 720 ILCS 5/12\u201412(f) West 2000).\nBoth \u201csexual conduct\u201d and \u201csexual penetration\u201d describe intentional acts of a sexual nature. People v. Terrell, 132 Ill. 2d 178, 209 (1989). \u201cSexual conduct\u201d is defined as certain \u201ctouching\u201d done for the purpose of sexual gratification or arousal. The type of touching alleged in defendant\u2019s indictment, i.e., an \u201cintrusion of [defendant\u2019s] finger into [C.S.\u2019s] vagina,\u201d clearly falls within the definition of \u201csexual conduct.\u201d In addition, although it is not explicitly alleged in the indictment that defendant acted for the purpose of sexual gratification or arousal, we find that this purpose may reasonably be inferred.\nWe find it reasonable to infer the statutory element \u201cfor the purpose of sexual gratification or arousal\u201d primarily because \u201csexual penetration\u201d was alleged in defendant\u2019s indictment and the type of conduct described in the definition of \u201csexual penetration\u201d is inherently sexual in nature and permits such an inference to be drawn. We acknowledge that it is the legislature\u2019s province to define offenses (Terrell, 132 Ill. 2d at 216), and we do not dispute that the statutory definition of \u201csexual penetration\u201d criminalizes certain sexual activity, whether its purpose is for sexual gratification or some other unlawful purpose. Nevertheless, we recognize here that acts of \u201csexual penetration\u201d are inherently sexual in nature, and, because of their inherently sexual nature, the acts described in the definition of \u201csexual penetration\u201d can be neither unintentional nor inadvertent. See Terrell, 132 Ill. 2d at 210-11. For this reason, when defining \u201csexual penetration,\u201d it was not necessary for the legislature to explicitly state that the acts must be done intentionally or knowingly and \u201cfor the purpose of sexual gratification or arousal.\u201d \u201cSexual conduct,\u201d on the other hand, can include the simple act of touching, either directly or through clothing, \u201cany part of the body of a child under 13 years of age.\u201d Such touching is not inherently sexual and might occur accidentally or inadvertently. Terrell, 132 Ill. 2d at 210. Thus, to state a criminal sexual offense, it was necessary for the legislature, when defining acts of \u201csexual conduct,\u201d to explicitly state that the touching be intentional or knowing and \u201cfor the purpose of sexual gratification or arousal of the victim or the accused.\u201d See Terrell, 132 Ill. 2d at 210.\nWhile it might also be possible, based on allegations contained in an indictment, that it would not be reasonable to infer that acts of \u201csexual penetration\u201d were done for the purpose of sexual gratification, that is not the case here. We conclude, therefore, that in a case, such as the one at bar, where the indictment alleges \u201csexual penetration\u201d and does not explicitly allege that the acts were done for the purpose of sexual gratification or arousal, this fact will not prevent us from inferring such a purpose. When \u201csexual penetration\u201d is alleged, it is possible to infer that the acts were done with the purpose of sexual gratification or arousal.\nWe find it particularly appropriate to allow for such an inference to be drawn in instances such as this because the element\u2014that a defendant acted \u201cfor the purpose of sexual gratification\u201d\u2014is something that is typically inferred from the circumstances used to prove the alleged act. See Hamilton, 179 Ill. 2d at 325. Moreover, the overriding constitutional concern when determining whether an offense is lesser included is the sufficiency of the notice to the defendant. See DiLorenzo, 169 Ill. 2d at 321 (defendants have a due process right to notice of the charges brought against them). In cases such as this, where a defendant is charged with predatory sexual assault of a child based on certain acts of sexual penetration, the defendant clearly has reasonable notice that such a charge might encompass the lesser offense of criminal sexual abuse.\nIn sum, we find that the indictment in the case at bar contains the main outline or broad foundation of the offense of aggravated criminal sexual abuse. The indictment alleged an intrusion of defendant\u2019s finger into C.S.\u2019s vagina, which is a type of touching encompassed within the definition of \u201csexual conduct.\u201d Although defendant\u2019s indictment did not specify that the acts attributed to defendant were done \u201cfor the purpose of sexual gratification,\u201d this purpose could reasonably be inferred. Thus, we conclude that aggravated criminal sexual abuse is a lesser-included offense of predatory criminal sexual assault as alleged in defendant\u2019s indictment. Having reached this conclusion, we proceed to the second step\u2014 examining the evidence adduced at trial to decide whether the evidence rationally supports a conviction on the lesser offense.\nAs noted earlier, the trial court found defendant guilty of the offense of aggravated criminal sexual abuse in violation of section 12\u201416(c)(l)(i), which provides:\n\u201cthe accused was 17 years of age or over and (i) commits an act of sexual conduct with a victim who was under 13 years of age when the act was committed ***.\u201d 720 ILCS 5/12\u201416(c)(l)(i) (West 2000).\nIn the case at bar, it was established at trial that, at the time of the incident, C.S. was 12 years old and defendant was 49 years old. In addition, C.S. testified that defendant brought her to a secluded spot and told her to sit on a blanket. While she was sitting on the blanket \u201ccross-legged,\u201d defendant sat down next to her, tried to hug her, and then offered to give her money if she would allow him to \u201ctouch\u201d her. Despite C.S.\u2019s refusal, defendant pushed her shorts and underwear to the side and then placed his finger in her vagina.\nWe find from the above evidence a sufficient basis for a conviction on the offense of aggravated criminal sexual abuse. C.S.\u2019s testimony established that defendant touched or fondled her vaginal area. Whether defendant achieved penetration is irrelevant. In addition, the inference that defendant acted for the purpose of sexual gratification or arousal is supported by the evidence. C.S.\u2019s testimony that defendant wanted to \u201chug\u201d her and offered her money to allow him to touch her, as well as the false statements and differing explanations defendant gave police for his being in a secluded area with C.S., strongly establish that defendant touched C.S. intentionally and for the purpose of defendant\u2019s sexual gratification or arousal. Accordingly, we affirm defendant\u2019s conviction for aggravated criminal sexual abuse.\nCONCLUSION\nThe appellate court held that aggravated criminal sexual abuse is a lesser-included offense of predatory criminal sexual assault of a child, as that offense was alleged in defendant\u2019s indictment. We affirm that judgment and defendant\u2019s conviction.\nAffirmed.\nhaving identified public indecency based on lewd exposure as a lesser-included offense, we examined evidence adduced at trial to decide whether the evidence rationally supported a conviction on the lesser offense. We found that the defendant was not entitled to an instruction on this offense because the evidence did not show that the defendant exposed himself for the purpose of sexual gratification. Thus, in the first stage, the necessary purpose could reasonably be inferred because the indictment described, in \u00e1 broad way, the lesser offense. However, at the second stage, the necessary purpose had to be supported by the evidence before defendant was entitled to an instruction on (or could be convicted of) the lesser offense.", "type": "majority", "author": "JUSTICE McMORROW" } ], "attorneys": [ "Michael J. Eelletier, Deputy Defender, and Eaul Rathburn, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant, and Marian Kolton, of Ullin, appellant pro se.", "Lisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (Linda D. Woloshin, Assistant Attorney General, of Chicago, and James E. Fitzgerald, Annette Collins, Veronica Calderon Malavia and Eve Reilly, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "(No. 99221\nTHE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. MARIAN KOLTON, Appellant.\nOpinion filed March 23, 2006.\nRehearing denied May 22, 2006.\nMichael J. Eelletier, Deputy Defender, and Eaul Rathburn, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellant, and Marian Kolton, of Ullin, appellant pro se.\nLisa Madigan, Attorney General, of Springfield, and Richard A. Devine, State\u2019s Attorney, of Chicago (Linda D. Woloshin, Assistant Attorney General, of Chicago, and James E. Fitzgerald, Annette Collins, Veronica Calderon Malavia and Eve Reilly, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0353-01", "first_page_order": 363, "last_page_order": 382 }