{ "id": 2615708, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS JAMES NIBBIO, Defendant-Appellant", "name_abbreviation": "People v. Nibbio", "decision_date": "1989-03-08", "docket_number": "No. 5-87-0315", "first_page": "513", "last_page": "519", "citations": [ { "type": "official", "cite": "180 Ill. App. 3d 513" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "125 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 S. Ct. 895", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "99 L. Ed. 1285", "category": "reporters:federal", "reporter": "L. Ed.", "opinion_index": 0 }, { "cite": "349 U.S. 963", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11370404, 11370468, 11370633, 11370185, 11370123, 11370700, 11370319, 11370546, 11370044 ], "opinion_index": 0, "case_paths": [ "/us/349/0963-05", "/us/349/0963-06", "/us/349/0963-08", "/us/349/0963-03", "/us/349/0963-02", "/us/349/0963-09", "/us/349/0963-04", "/us/349/0963-07", "/us/349/0963-01" ] }, { "cite": "125 N.E .2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1955, "opinion_index": 0 }, { "cite": "5 Ill. 2d 384", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2704003 ], "weight": 2, "year": 1955, "opinion_index": 0, "case_paths": [ "/ill-2d/5/0384-01" ] }, { "cite": "145 N.E. 391", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "314 Ill. 140", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5132304 ], "opinion_index": 0, "case_paths": [ "/ill/314/0140-01" ] }, { "cite": "466 N.E .2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "466 N.E.2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "125 Ill. App. 3d 665", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3631804 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/125/0665-01" ] }, { "cite": "94 N.E.2d 359", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "406 Ill. 490", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2635307 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill/406/0490-01" ] }, { "cite": "497 N.E.2d 1212", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "147 Ill. App. 3d 218", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3604197 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/147/0218-01" ] }, { "cite": "1983 Ill. Laws 7251", "category": "laws:leg_session", "reporter": "Ill. Laws", "opinion_index": 0 }, { "cite": "515 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "49" } ], "opinion_index": 0 }, { "cite": "118 Ill. 2d 263", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3188213 ], "weight": 3, "pin_cites": [ { "page": "271" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/118/0263-01" ] }, { "cite": "489 N.E.2d 924", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "141 Ill. App. 3d 34", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3496755 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/141/0034-01" ] } ], "analysis": { "cardinality": 620, "char_count": 15511, "ocr_confidence": 0.785, "pagerank": { "raw": 1.9007472695175454e-07, "percentile": 0.7302487519542645 }, "sha256": "bf6a6ab8647ac271348fdff09d4ca1ae4631cc799d2410379685c5d3336eeddc", "simhash": "1:a007451ed50f97d8", "word_count": 2695 }, "last_updated": "2023-07-14T16:06:12.370658+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS JAMES NIBBIO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LEWIS\ndelivered the opinion of the court:\nThe defendant, Thomas Nibbio, was charged by a second amended information in two counts, each alleging the offense of criminal sexual abuse (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 15(b)(1)). At the close of the evidence in a bench trial on February 23, 1987, the defendant moved as to each count for a directed verdict of not guilty on the ground that the information failed to state and charge an offense. The trial court did not rule on either motion for directed verdict but found the 29-year-old defendant guilty of both counts. After ruling that section 12 \u2014 15(bXl) of the Criminal Code of 1961 is not referred to or covered by section 12 \u2014 15(c) (Ill. Rev. Stat. 1985, ch. 38, par. 12\u2014 15(c)) insofar as it deals with enhancement of the penalty for the offense of criminal sexual abuse, the trial court sentenced the defendant to serve 364 days as to each of the two counts, the sentences to run concurrently with one another as well as \u201cwith any other sentence given in Pinellas County, Florida, if any.\u201d Defendant appeals, raising no issue with respect to the sufficiency of the evidence but challenging the sufficiency of each count of the pleadings to charge an offense. The trial court\u2019s ruling concerning enhancement of the penalty pursuant to section 12 \u2014 15(c) is not a subject of this appeal.\nBoth offenses involve the same 15-year-old male victim, who was attending a soccer clinic conducted by the defendant. The offenses occurred on July 28 or 29, 1986. The first count alleged that the defendant \u201cknowingly committed an act of sexual conduct\u201d with the victim in that the defendant \u201cfondled the buttocks\u201d of the victim; the second count alleged that the defendant \u201cknowingly committed an act of sexual conduct\u201d with the victim in that the defendant \u201ctouched his sex organ to the back\u201d of the victim.\nSection 12 \u2014 15(bXl) provides in pertinent part:\n\u201c(b) The accused commits criminal sexual abuse if:\n(1) the accused was 17 years of age or over and commits an act of sexual penetration or sexual conduct with a victim who was at least 13 years of age but under 16 years of age when the act was committed ***.\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 15(b)(1).)\nSection 12 \u2014 12(e) (Ill. Rev. Stat. 1985, ch. 38, par. 12 \u2014 12(e)) defines \u201csexual conduct\u201d as used in section 12 \u2014 15(b)(1) as follows:\n\u201cSec. 12 \u2014 12. Definitions. For the purpose of Sections 12 \u2014 13 through 12 \u2014 18 of this Code, the terms used in these Sections shall have the following meanings ascribed to them:\n(e) \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, for the purpose of sexual gratification or arousal of the victim or the accused.\u201d\nThe defendant contends concerning both counts of the second amended information that the legislature in its definition of \u201csexual conduct\u201d has made a clear distinction between victims under 13 years of age and victims 13 years of age or over. By virtue of this distinction, he says, \u201csexual conduct\u201d involving a victim of the age of 13 and over requires intentional touching or fondling of certain parts of the body, namely, the sex organs, the anus, or the breast, whereas \u201csexual conduct\u201d involving a victim under the age of 13 years includes the touching or fondling of \u201cany part of the body.\u201d\nThus, he argues with regard to count I, fondling the buttocks of a person who is at least 13 years of age, as the second amended information alleges, is not conduct proscribed by section 12 \u2014 15(b)(1). Count I of the second amended information states that the defendant who\n\u201cwas seventeen (17) years of age or older, knowingly committed an act of sexual conduct with [a boy], who was at least thirteen (13) years of age but under sixteen (16) years of age when the act was committed, in that he fondled the buttocks of [the boy], for the purpose of sexual gratification or arousal of the defendant, and the defendant had been previously convicted of the offense of three counts of Unnatural and Lascivious Act, pursuant to the provisions of a similar statute in the State of Florida for an offense involving sexual abuse or sexual assault that is substantially equivalent to or more serious than the sexual abuse prohibited by Illinois Revised Statutes, Chapter 38, Section 12 \u2014 15, in violation of Illinois Revised Statutes, Chapter 38, Section 12 \u2014 15(bXl).\u201d\nDefendant asserts that \u201c[b]y failing to list any of the three necessary body parts, Count I of the [second amended] information failed to charge a crime and the conviction for that count must be reversed.\u201d\nThe State argues that, although section 12 \u2014 12(e) does not expressly include \u201cbuttocks,\u201d in view of the \u201csexual association\u201d of buttocks, under \u201cany commonsense reading of the statute\u201d the fondling of the buttocks of a child 13 years of age or older is prohibited. Further, the State stresses the intent of the legislature to prohibit such conduct in light of the \u201cprevious child molestation statute,\u201d which defined the offense of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 4(a)) and prohibited \u201c[a]ny lewd fondling or touching\u201d (Ill. Rev. Stat. 1983, ch. 38, par. 11 \u2014 4(aX3)). The purpose of the recodification of the sex offenses, the State says, was \u201cto consolidate all of the sexual offenses into one act, not to decriminalize certain types of sexual conduct.\u201d The parties have cited us to no case law addressing the precise question raised here, and our research has disclosed none.\nIt is fundamental that in interpreting a statute words are to be given their plain meaning whenever possible. (People v. Gann (1986), 141 Ill. App. 3d 34, 489 N.E.2d 924.) It is, likewise, fundamental that in construing a statute a court is to ascertain and to give effect to the legislative intent. (People v. Haywood (1987), 118 Ill. 2d 263, 515 N.E.2d 45.) Although penal statutes are to be strictly construed in favor of the accused, they must not be so rigidly construed as to defeat the intent of the legislature. Haywood, 118 Ill. 2d 263, 515 N.E.2d 45.\nThe offenses of which defendant was convicted were created by Public Act 83 \u2014 1067 (1983 Ill. Laws 7251). (People v. Burmeister (1986), 147 Ill. App. 3d 218, 497 N.E.2d 1212.) In Haywood our supreme court stated the central purpose of the bill effecting these and other changes in the statutes addressing the sexual offenses:\n\u201cThe Criminal Sexual Assault Act (Pub. Act 83 \u2014 1067, amended by Pub. Act 83 \u2014 1117), repealed eight of the statutes which had defined sex offenses in sections 11 \u2014 1 through 11\u2014 11.1 of the Criminal Code. The sponsors of the Act repeatedly stated that the central purpose of the bill was to recodify the sexual offenses into a comprehensive statute with uniform statutory elements that would criminalize all sexual assaults without distinguishing between the sex of the offender or the victim and the type of sexual act proscribed. (83d 111. Gen. Assem., House Proceedings, May 10, 1983, at 162-63.)\u201d (Haywood, 118 Ill. 2d at 271, 515 N.E.2d at 49.)\nWe note that Senate amendment No. 4, adopted on June 23, 1983, amended House Bill 606 (83d Ill. Gen. Assem., House Bill 606, 1983 Sess.), which became effective on July 1, 1984 (Pub. Act 83 \u2014 1067), and amended, inter alia, the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 1 \u2014 1 et seq.). Among other things, Senate amendment No. 4 amended section 12 \u2014 12 of the Criminal Code of 1961 in the definition of \u201csexual conduct\u201d by \u201cinserting immediately after \u2018breast of the victim or the accused.\u2019 the following: \u2018or any part of the body of a child under IS years of age.\u2019 \u201d (Emphasis in original.) (Pub. Act 83 \u2014 1067.) Senator Netsch, who offered Senate amendment No. 4, stated in doing so that the amendment\n\u201cwas prepared largely in response to some particular points that were raised during our subcommittee hearings and subsequently by the office of the Peoria State\u2019s Attorney\u2019s Office. It buttons up one of the gaps with respect to the age crimes. It responds to a concern that they had having to do with the lewd fondling of children ***.\u201d (83d Ill. Gen. Assem., Senate Proceedings, June 23,1983, at 7-8 (Part 1).)\nIn view of the plain meaning of the words of section 12 \u2014 12(e) defining \u201csexual conduct\u201d and the amendment accomplished by Senate amendment No. 4, we conclude that the legislature intended the distinction advanced by the defendant, that is, that \u201csexual conduct\u201d involving a victim of the age of 13 and over requires intentional touching or fondling of certain parts of the body, namely, the sex organs, the anus, or the breast, whereas \u201csexual conduct\u201d involving a victim under the age of 13 years includes the touching or fondling of \u201cany part of the body,\u201d in all cases for the purpose of sexual gratification or arousal of the victim or the accused.\nIn the present case the victim was over the age of 13. The information alleged in count I that the defendant had committed an act of sexual conduct in that he \u201cfondled the buttocks\u201d of the victim. Inasmuch as we do not believe \u201cbuttocks\u201d may be deemed to be a part of either \u201cthe sex organs\u201d or the \u201canus,\u201d we agree with the defendant that count I of the information failed to charge the offense of criminal sexual abuse. A judgment of conviction entered upon an information that does not charge an offense is void for lack of jurisdiction of the subject matter and may be attacked at any time. (People v. Edge (1950), 406 Ill. 490, 94 N.E.2d 359.) Inasmuch as count I failed to charge the offense of criminal sexual abuse, the judgment of guilt and sentence entered as to count I of the second amended information is hereby reversed.\nWith respect to count II the defendant contends, likewise, that, because the victim was over the age of 13, \u201cthe defendant must have touched the victim\u2019s sex organs, anus or breasts to violate the statute\u201d; thus, touching the back of a victim who is at least 13 years of age, as the second amended information alleges, is not, he says, conduct proscribed by section 12 \u2014 15(b)(1). Count II of the second amended information states that the defendant, who\n\u201cwas seventeen (17) years of age or older, knowingly committed an act of sexual conduct with [a boy], who was at least thirteen (13) years of age but under sixteen (16) years of age when the act was committed, in that he touched his sex organ to the back of [the boy], for the purpose of sexual gratification arousal of the defendant, and the defendant had been previously convicted of the offense of three counts of Unnatural and Lascivious Act, pursuant to the provisions of a similar statute in the State of Florida for an offense involving sexual abuse or sexual assault that is substantially equivalent to or more serious than the sexual abuse prohibited by Illinois Revised Statutes, Chapter 38, Section 12 \u2014 15.\u201d\nSection 12 \u2014 12(e) refers expressly to the \u201ctouching\u201d by either \u201cthe victim or the accused\u201d of the sex organs, anus or breast of either \u201cthe victim or the accused.\u201d Hence, the defendant\u2019s argument that to have violated the statute he must have touched the sex organs, anus or breast of a victim who has attained the age of 13 or more is not well taken.\nDefendant argues further with regard to count II that since the sex organ referred to in that count is that of the defendant, the victim must have touched the defendant\u2019s sex organ knowingly to satisfy the requirements of the definition of \u201csexual conduct\u201d as set forth in section 12 \u2014 12(e); inasmuch as count II fails to allege that the victim knowingly touched the defendant\u2019s sex organ, that count is, in his view, fatally defective.\nTo give a court jurisdiction in a criminal case, it is essential that the indictment or information charge the accused with a crime. (Edge, 406 Ill. 490, 94 N.E.2d 359.) A charge is sufficient to withstand a motion to dismiss or a motion in arrest of judgment if the indictment or information sufficiently states the necessary elements of the offense so that by the language used the defendant is apprised with reasonable certainty of the precise offense of which he is charged. (People v. Thompson (1984), 125 Ill. App. 3d 665, 466 N.E.2d 380.) Section 111\u2014 3 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111 \u2014 3), which sets forth the requirements for the form of a charge, was drawn pursuant to due process principles; the purpose of the requirements of section 111 \u2014 3 is to make certain that the accused is adequately informed of the nature and elements of the offense charged against him so that he may prepare his defense and protect himself from double jeopardy by subsequent prosecution for the same offense. (Thompson, 125 Ill. App. 3d 665, 466 N.E .2d 380.) An indictment or information charging an offense defined by statute should be as fully descriptive of the offense as is the language of the statute and should allege every substantial element of the offense as defined by the statute. (People v. Barnes (1924), 314 Ill. 140, 145 N.E. 391.) The charging instrument must allege all facts necessary to constitute the crime charged. (People v. Vraniak (1955), 5 Ill. 2d 384, 125 N.E .2d 513, cert. denied (1955), 349 U.S. 963, 99 L. Ed. 1285, 75 S. Ct. 895.) Where the statutory definition of a crime includes the intent with which the act is committed as an element of the offense, the intent must be alleged. (Edge, 406 Ill. 490, 94 N.E.2d 359.) However, where the statute is silent as to intent, no intent need be averred in the charging instrument. Vraniak, 5 Ill. 2d 384, 125 N.E.2d 513.\nIn the present case the defendant was charged with the offense of criminal sexual abuse in violation of section 12 \u2014 15(b)(1). In defining criminal sexual abuse, section 12 \u2014 15(b)(1) does not include intent as an element of the crime. Section 12 \u2014 12(e) merely defines \u201csexual conduct\u201d as that term is used in section 12 \u2014 15(b)(1); hence, it was not necessary, as the defendant maintains, for the State to have alleged the mental state of the victim in the information charging a violation of section 12 \u2014 15(bXl). The information is as fully descriptive of the offense as is the language of section 12 \u2014 15(b)(1) and alleges every substantial and material element of the offense as defined therein. More it need not do. The information alleged that the defendant \u201cknowingly committed an act of sexual conduct\u201d and set forth the necessary elements of the offense so that the defendant was unquestionably apprised with reasonable certainty of the precise offense of which he was charged and could prepare his defense. We conclude that count II of the second amended information was sufficient to charge the offense of criminal sexual abuse pursuant to section 12\u2014 15(bXl) and that the trial court properly entered judgment and sentence as to that count of the information.\nAffirmed in part; reversed in part.\nRARICK and CHAPMAN, JJ., concur.", "type": "majority", "author": "JUSTICE LEWIS" } ], "attorneys": [ "Robert H. Rice, of Rice Law Offices, of Belleville, for appellant.", "Dick Allen, State\u2019s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. THOMAS JAMES NIBBIO, Defendant-Appellant.\nFifth District\nNo. 5-87-0315\nOpinion filed March 8, 1989.\nRobert H. Rice, of Rice Law Offices, of Belleville, for appellant.\nDick Allen, State\u2019s Attorney, of Edwardsville (Kenneth R. Boyle, Stephen E. Norris, and Raymond F. Buckley, Jr., all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0513-01", "first_page_order": 535, "last_page_order": 541 }