{ "id": 2492841, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GARY D. SATTERFIELD, Defendant-Appellant", "name_abbreviation": "People v. Satterfield", "decision_date": "1990-04-12", "docket_number": "No. 2\u201488\u20140189", "first_page": "1087", "last_page": "1101", "citations": [ { "type": "official", "cite": "195 Ill. App. 3d 1087" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "188 Ill. App. 3d 251", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2693660 ], "pin_cites": [ { "page": "257-59" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0251-01" ] }, { "cite": "136 Ill. App. 3d 863", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3566217 ], "year": 1989, "pin_cites": [ { "page": "866-67" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0863-01" ] }, { "cite": "145 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535066 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0873-01" ] }, { "cite": "104 Ill. 2d 340", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146320 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/104/0340-01" ] }, { "cite": "119 Ill. 2d 29", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3192526 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-2d/119/0029-01" ] }, { "cite": "65 Ill. 2d 332", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435803 ], "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0332-01" ] }, { "cite": "95 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3111895 ], "year": 1976, "pin_cites": [ { "page": "439" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/95/0435-01" ] }, { "cite": "109 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5450952 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/109/0847-01" ] }, { "cite": "171 Ill. App. 3d 548", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3616551 ], "pin_cites": [ { "page": "559-61" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0548-01" ] }, { "cite": "117 Ill. App. 3d 221", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481266 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0221-01" ] }, { "cite": "134 Ill. App. 3d 262", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3636697 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/134/0262-01" ] }, { "cite": "81 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3227898 ], "year": 1979, "pin_cites": [ { "page": "301" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/81/0297-01" ] }, { "cite": "85 Ill. App. 3d 304", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3193029 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0304-01" ] }, { "cite": "117 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3481774 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/117/0363-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] }, { "cite": "131 Ill. App. 3d 562", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3437716 ], "pin_cites": [ { "page": "564" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0562-01" ] }, { "cite": "37 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2714601 ], "weight": 2, "pin_cites": [ { "page": "774" }, { "page": "774" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0772-01" ] } ], "analysis": { "cardinality": 1122, "char_count": 31110, "ocr_confidence": 0.769, "pagerank": { "raw": 9.645508977957821e-08, "percentile": 0.5278805829992405 }, "sha256": "2c2e495db7d79313ba9868f6b1352acbbf6cedb762e9be119886829a5728391f", "simhash": "1:baaf93e4e20b8059", "word_count": 5424 }, "last_updated": "2023-07-14T21:36:46.192333+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. GARY D. SATTERFIELD, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nThe defendant, Gary Satterfield, was charged by an amended information in the circuit court of Ogle County with the offense of criminal sexual abuse (enhanced to a Class 2 felony due to a prior conviction of the sexual assault offense of rape) (Ill. Rev. Stat. 1985, ch. 38, par. 12\u201415(a)(1)) and with the offense of aggravated battery (battery occurred in a \u201cpublic place of accommodation\u201d) (Ill. Rev. Stat. 1985, ch. 38, par. 12\u20144(b)(8)). He was convicted of both offenses after a jury trial and was sentenced to the Department of Corrections for two five-year concurrent terms of imprisonment.\nAs to his aggravated battery conviction, he contends on appeal that the prosecution failed to prove beyond a reasonable doubt that his conscious objective or purpose was to accomplish insulting or provoking physical contact with the victim. As to his criminal sexual abuse conviction, he contends the prosecution failed to prove the essential elements of force, intent, and his prior felony conviction and, further, there was a fatal variance between the charging instrument and the proof at trial.\nThe evidence presented at trial showed that about 9:30 a.m. on Tuesday, July 28, 1987, the defendant arrived at the home of his friend, Carl Beightol. According to Beightol, the defendant had an open can of beer with him and, in Beightol\u2019s opinion, the defendant \u201cwasn\u2019t feeling no [sic] pain at all.\u201d The defendant wanted to go to the Polo Veterinary Clinic to find out what to do for a dog he had seen that morning in the yard of a home. The dog was tethered by a leash and its neck was rubbed raw. Beightol had some things to do at the house, so they did not drive to the clinic until afternoon.\nBeightol parked his pickup truck in the veterinary parking lot. The defendant got out and walked toward the clinic door. Beightol then saw the defendant walk to the passenger side of another car, which was parked one space away and to the right of Beightol\u2019s car. There were two women in the car, an older woman (Ester Nichols), the driver, and a younger woman (the complainant), to whom the defendant was talking. According to Beightol, the defendant had opened the passenger side door and was talking to the complainant. Beightol testified the defendant \u201cleaned over and he grabbed her [the complainant], put his hand under her jaw like this, and shook her head.\u201d Beightol estimated the defendant shook the complainant\u2019s head three or four times.\nBeightol stated it was raining, and with the windows rolled up, he did not hear any part of the defendant\u2019s conversation with the complainant. The defendant then got back into Beightol\u2019s truck and advised him he wanted to go to Mick\u2019s, a bar in Polo. On cross-examination, Beightol affirmed that he saw no conduct other than the defendant hold the complainant\u2019s head under her chin and shake her head.\nEster Nichols, the complainant\u2019s foster mother, testified she took the complainant, age 15, to the Polo Veterinary Clinic to get treatment for the complainant\u2019s dog, which had been struck by a moving vehicle. Nichols described her daughter as \u201ccrying really hard.\u201d Nichols testified her daughter left the car to see if the clinic was open; as she returned to the car, the defendant followed her.\nAccording to Nichols, the defendant\n\u201cleaned in the car and put his left arm around [the complainant\u2019s] shoulders and he shook her neck real hard with his right hand, and then he said, well, I\u2019m sorry I did that but I could have done this, so then he touched her breasts with his hand three or four times with his fingers.\u201d\nNichols proceeded to start the car and tried to back away \u201cbut it didn\u2019t seem like he would get away, because he still had the door part open.\u201d Eventually, the defendant backed away, and the complainant rolled up the window and locked the door.\nOn cross-examination, Nichols reiterated that the defendant seized the complainant by the throat and shook her, and, with three fingers, he \u201cpoked\u201d or \u201cjabbed\u201d complainant\u2019s left breast three or four times. Nichols related that she had seen the defendant before but did not recognize him until he mentioned his name. She knew his name; he had been to her house to visit one of her sons.\nThe complainant described the incident as follows:\n\u201cI got out of the car and I went up to the door to go and see if the vet was there, but nobody was in there, and I was crying because my dog had gotten hit, and so I turned around and I went towards the car, and the man got out of the truck, and he come [sic] like I was \u2014 I had gotten back in the car when I noticed he was standing at the door, and he was mumbling and I couldn\u2019t make out what he was mumbling, and he comes [sic] toward the car and he kept on talking, and then he like opens the door, and he put his arm around me, his left arm around my shoulders and he was looking at the dog and he was saying things like, well, your dog has no soul, and don\u2019t worry about it. Just go home and give it some pain killers and he\u2019ll be okay, and I was like really scared, and that, then he said, well, just don\u2019t worry about it, and he took his right arm and he grabbed like the skin of my neck and he shook it like this, and I was really scared, and he says, don\u2019t cry, just don\u2019t worry about it, and he says, he says, well, I could have done this, and then he poked my breast right here, somewhere, it was down lower.\u201d\nThe complainant testified the defendant used two or three fingertips of his right hand in touching her breast. She related that she was very frightened while he was poking her: \u201cI couldn\u2019t do anything. He was in the door and I had a dog on my lap and my mom was sitting next to me.\u201d\nOn cross-examination, the complainant testified she was frightened \u201cbecause my dog was bleeding and because I had never seen this man before, and I didn\u2019t know what to do.\u201d When the defendant asked what happened to her \u201clittle doggie,\u201d she told him her dog had been struck by a van, and he put his arm around her shoulder. She did not say anything to him about that because she was frightened and did not know what to do. She stated she thought \u201cwhat he was meaning to do is to comfort me by putting his arm around my shoulder.\u201d Complainant demonstrated her lack of approval toward defendant\u2019s gesture by \u201ctightening up\u201d because there was no place to which she could move. She stated the defendant grabbed the skin underneath her chin with his fingers and thumb of his right hand and shook it three or four times \u201cjust enough to \u2014 he was, I think, I believe, he was trying to, you know, like when you try to slap somebody when they are crying for something.\u201d Complainant testified further that \u201c[a]t that moment, I was not sure what he was trying to do. I had thought that maybe he was trying to help me after that, days after that.\u201d\nThe complainant estimated that the entire incident lasted five or six minutes. She did not tell the defendant to go away but instead advised him, \u201c[wje\u2019re leaving now, excuse me, good bye.\u201d The mother started the car and pulled away; the defendant made no effort to hold her.\nDefense counsel moved for a directed verdict, arguing as to the sexual abuse charge that no force or threat of force was shown and that \u201cpoking\u201d was not sexual conduct. As to the aggravated battery charge, he argued the clinic parking lot was not a public place of accommodation and the testimony was not clear as to whether the touching constituted a battery. Following the prosecutor\u2019s argument, the court denied the defendant\u2019s motion as to the aggravated battery, and, early the next day, it also denied his motion as to the criminal sexual abuse charge.\nThe defendant\u2019s case consisted of a stipulation and his own testimony. He stipulated that Al Beightol, Carl Beightol\u2019s father, would testify that he had knowledge of the dog that the defendant was concerned with trying to help.\nIn his own behalf, defendant testified he got out of Beightol\u2019s pickup truck and walked to the clinic door to determine the office hours. The complainant, carrying a box, was there also. She was crying and appeared to be emotionally upset. The defendant opened the front passenger door to Nichols\u2019 car so the complainant could get in. He recognized Nichols, who was the mother of one of his friends. He testified:\n\u201cI was trying to calm down the girl, and I asked what was the matter, and she said that her doggie was going to have to get put to sleep, and I told her it wasn\u2019t, you know, it wasn\u2019t the end of the world, and she could get another doggie, or something, and then I told her that dogs and animals don\u2019t have a soul and spirit, and its in the Bible, it\u2019s not crazy. God breathed life into man, not animals\u2019 soul and spirit rather.\u201d (Emphasis in original.)\nHe believed he probably put his hand on complainant\u2019s shoulder; she did not squirm or make any motion when he did that. He asked to see the complainant\u2019s dog, which she had in a box on her lap, the dog covered by a blanket. The defendant saw no blood on the dog or other injury He advised her to call the veterinarian\u2019s residence. He looked at the dog, and it whined at him. The defendant told the complainant, \u201cthe doggie didn\u2019t want to die, just take the doggie home and love it, and, you know, it will probably get better.\u201d\nThe defendant testified he thought Mrs. Nichols said something then, he did not remember what, but he believed he said in response:\n\u201c[Tjhat I was only trying to help, and then, because I kind of sometimes have a snide remark or smart remark *** to say * * *\n* * *\nI said if I was trying to do something wrong, that I might play with her breasts, or something, and then with my left hand, because I was leaning over inside the car, because it was raining, and I was getting wet, in my trying to help, since I was leaning over in front of her, I touched her on the upper chest, right here, \"with my left hand, because it was the closest to her, and my hand now, for sure, wasn\u2019t on her shoulder, or around her. I touched her with the side of my left hand, and after that, she didn\u2019t cry anymore. She straightened up. I guess I accomplished what I was trying to accomplish all along, was to calm her down, because she didn\u2019t need to be that upset over an animal or something. Sure, you get upset, but you can\u2019t stay that way. You can\u2019t cope.\u201d\nAfter he touched the complainant, she stopped crying and did not cry anymore. Neither she nor her mother gave him any signals that what he was doing was not right. The defendant testified the chin-touching incident occurred on his return to the car after he volunteered to check the office hours posted on the door. Both women indicated they wanted him to check the hours. When he returned to the car, the door was shut and the complainant rolled down her window. He told the women there was supposed to be someone at the clinic until 5 p.m. and that they should call the vet\u2019s house and give the dog some crushed aspirin mixed in its food. As he was telling this to the women, he placed his hand on top of the complainant\u2019s head. In trying to get her attention, he lifted her head up with his right hand under her chin. He did not remember shaking her, \u201cbut, you know, I may have done a little something like that. *** It was just something to \u2014 meant to get [her] attention and help calm [her] down.\u201d Through the whole five-minute incident, there was no indication by Nichols or the complainant that he was bothering them. Finally, the defendant admitted that he had prior felony convictions.\nOn cross-examination, the defendant maintained he meant no harm to the complainant; he was merely trying to comfort her and be a good person. He stated he was not intoxicated at the time of the incident, but admitted he had four or five beers prior to it. He stated he leaned into the car only in order to shelter himself from the rain. He denied he touched the complainant\u2019s breast but, rather, touched her upper chest with the side of his hand. When asked why he would do that when the complainant was crying because her dog was dying, the defendant replied, it \u201c[straightened her up. She didn\u2019t cry any more.\u201d On re-cross-examination, the defendant testified that he was 35 years old.\nEster Nichols testified in rebuttal in part that the defendant took hold of the complainant\u2019s chin and neck and shook her head before he went to the door of the clinic to check the hours.\nFollowing deliberations, the jury returned with guilty verdicts on both charges, and judgment was entered on the verdicts. Following a presentence investigation and a psychiatric evaluation, the defendant was sentenced as noted above. The court denied the defendant\u2019s subsequent post-trial motions raising the issues of whether the parking lot was a public place of accommodation and whether sexual conduct occurred.\nThe defendant first contends his conviction of aggravated battery must be reversed because the evidence was insufficient to show the requisite intent and the nature of the conduct. The information charged the defendant with aggravated battery in that he\n\u201cwithout legal justification and while [the complainant] was at the Polo Veterinarian Clinic, a public place of accommodation, knowingly made physical contact of an insulting or provoking nature with [the complainant] in that he grabbed [the complainant] by the throat, with his hand.\u201d (Emphasis added.)\nSee Ill. Rev. Stat. 1985, ch. 38, par. 12\u20144(b)(8).\nDefendant argues the evidence leaves considerable doubt about whether his actions constituted contact of an insulting or provoking nature as opposed to merely a well-intentioned effort to comfort the complainant in light of the circumstances of her dog\u2019s injury. Although he acknowledges he did not know the complainant, he argues he was acting as a \u201cgood Samaritan\u201d for Nichols, whom he did know. He points to the fact neither the complainant nor her mother made a verbal or affirmative physical objection to his conduct as being supportive of his contention that he lacked the specific intent required to sustain a conviction of battery.\nThe defendant correctly notes that battery is a specific intent crime. (People v. Hayes (1976), 37 Ill. App. 3d 772, 774.) That is, the contact must be made intentionally or knowingly (Ill. Rev. Stat. 1985, ch. 38, par. 12\u20143(a); Hayes, 37 Ill. App. 3d at 774); the defendant must know what he is doing before his conduct will be considered an offense. (People v. Weir (1985), 131 Ill. App. 3d 562, 564.) \u201cA person knows, or acts knowingly or with knowledge of *** [t]he result of his conduct, described by the statute defining the offense, when he is consciously aware that such result is practically certain to be caused by his conduct.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 4\u20145(b).) When the sufficiency of the evidence is challenged, it is not the function of the reviewing court to retry the defendant. The relevant question is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements beyond a reasonable doubt. People v. Collins (1985), 106 Ill. 2d 237.\nViewing the evidence in the light most favorable to the State, we conclude the defendant knowingly made contact of an insulting or provoking nature with the complainant. Despite his alleged good intentions, the defendant quite clearly made objectionable physical contact with a young woman he admitted he did not know. Nichols and the complainant testified his initial contact was his left arm around the complainant\u2019s shoulders and the shaking of her head by grasping her neck. The defendant testified his initial contact was a hand on her shoulder and that it was only later that he lifted up her chin and may have done something like shake her head in order to get her attention and calm her down. Whatever the sequence of events \u2014 a question for the jury to resolve along with the witnesses\u2019 credibility \u2014 the evidence refutes his contention he received no affirmative signal that his initial contact with the complainant was objectionable. Nichols and the complainant each testified and the defendant admitted that he stated: \u201cWell, I could have done this\u201d and he then proceeded to make contact of an even more insulting and provoking nature by poking or jabbing at the complainant\u2019s left breast. (Emphasis added.) Defendant\u2019s statement clearly suggests he knew he already had done something objectionable. During the defendant\u2019s contact with the complainant, she testified she was frightened and could not move away from him because she was boxed in, so she \u201ctightened up.\u201d Also, Nichols testified she was trying to back out of the parking space- away from the defendant, but that the car door was open.\nAlthough the contact made with the complainant\u2019s neck in the instant cause did not have the sexual overtones of the contact which occurred in People v. Margiolas (1983), 117 Ill. App. 3d 363, People v. Siler (1980), 85 Ill. App. 3d 304, or People v. Hamilton (1980), 81 Ill. App. 3d 297, 301, contact which is insulting or provoking in nature is not limited to sexually oriented contact but includes the slightest intentional or knowing unlawful touching. (Ill. Ann. Stat., ch. 38, par. 12\u20143, Committee Comments, at 439 (Smith-Hurd 1979).) The defendant and the complainant here were complete strangers to each other. Yet, because he was acquainted with the son of the other woman in the car with the complainant, the defendant took it upon himself to \u201ccomfort\u201d the complainant by making physical contact with her before he knew who she was or even what was causing her to cry. His own characterization of his conduct as \u201cofficious\u201d \u2014 although astute \u2014 is, nonetheless, an understatement. \u201cOfficious\u201d is defined as \u201cobjectionably forward in offering one\u2019s unrequested and unwanted services, help or advice.\u201d (The Random House Dictionary of the English Language 1000 (1983).) The defendant\u2019s conduct \u2014 emboldened, no doubt, but not excused, by the four or five beers he had consumed \u2014 went beyond officious, right into criminal. We conclude his conviction of aggravated battery was supported by sufficient evidence.\nThe defendant next contends the State failed to prove his guilt beyond a reasonable doubt of the offense of criminal sexual abuse in that it failed to prove the requisite elements of force and intent and, further, there was a fatal variance between the information filed and the proof at trial.\nThe amended information charged the defendant violated section 12 \u2014 15(a)(1) of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, par. 12\u201415(a)(1)) in that he\n\u201ccommitted an act of sexual conduct with [the complainant] in that [he], by the use of force knowingly touched the breast of [the complainant] for the purpose of the sexual arousal of [himself] or [the complainant]; after [he] had previously been con- ' victed of the sexual assault offense of rape in the 15th Judicial Circuit of the State of Illinois in Ogle County, court file number 78\u2014DF\u201478.\u201d\nAs to the element of force, defendant argues neither the complainant nor her mother testified to any conduct of his intervening between the shaking of the complainant\u2019s neck or head and the touching of her breast. The statute defines force, however, to include overcoming the victim by the use of physical restraint or confinement. (Ill. Rev. Stat. 1985, ch. 38, par. 12\u201412(d)(2).) Here, the complainant testified there was nowhere she could move in order to avoid the defendant\u2019s advances. She virtually was pinned in the car and, thus, was physically confined within the meaning of the statute.\nAs to intent, the statute defines an act of \u201csexual conduct\u201d in pertinent part as \u201cany intentional or knowing touching *** by the *** accused *** of the *** breast of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused.\u201d (Ill. Rev. Stat. 1987, ch. 38, par. 12\u201412(e).) The defendant argues his touching of the complainant\u2019s breast three or four times in the context of the instant cause was not for the purpose of sexual gratification or arousal of the victim or himself. Rather, \u201che merely wanted to make the point that his act of shaking complainant\u2019s head was not meant to be alarming.\u201d\nThe defendant\u2019s own explanation of the point he wished to make to the complainant\u2019s mother, Mrs. Nichols, reveals the wolf in sheep\u2019s clothing: \u201cWell, if I was trying to do something wrong, [then] I might play with her breasts or something.\u201d The defendant\u2019s subsequent unnecessary illustration of his point by engaging in the act which he himself described as \u201cwrong\u201d betrayed an ulterior intent to obtain a measure, however slight, of sexual gratification.\nAccordingly, we conclude the State\u2019s evidence proved his guilt beyond a reasonable doubt of the offense of criminal sexual abuse.\nThe question of the variance between the information and the proof at trial arises by virtue of the fact the jury received the defin\u00edtional and issues instructions relating to subsection (b)(1) of section 12 \u2014 15 of the Code (relating to the certain ages of the accused and the victim), rather than subsection (a)(1) (used force or threat of force) as charged in the information. Subsection (b)(1) provided:\n\u201cThe 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\u201415(b)(1).)\nIn contrast, subsection (a)(1) provided:\n\u201cThe accused commits criminal sexual abuse if he or she:\n(1) commits an act of sexual conduct by the use of force or threat of force.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 12\u201415(a)(1).\nPursuant to People\u2019s instructions Nos. 13 and 14 (Illinois Pattern Jury Instructions, Criminal, Nos. 11.36, 11.37 (2d ed. Supp. 1987)) (IPI Criminal 2d (Supp. 1987)), the jury was instructed, in pertinent part:\n\u201cA person commits the offense of Criminal Sexual Abuse when he was 17 years of age or older and commits and [sic] act of 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 People\u2019s Instruction No. 13.\n\u201cTo sustain the charge of Criminal Sexual Abuse, the State must prove the following propositions:\nFirst: That the defendant committed an act of sexual conduct with [the complainant]; and\nSecond: That the defendant was 17 years of age or older; and\nThird: That [the complainant] was at least 13 years of age but under 16 years of age when the act was committed.\u201d People\u2019s Instruction No. 14.\nThe defendant did not object to these instructions and did not tender any of his own. He did not object to withdrawal of People\u2019s instruction No. 10, which defined the term \u201cforce,\u201d to wit, \u201cthe term \u2018force or threat of force\u2019 means the use of force or violence, or the threat of force or violence when the accused has overcome the victim by use of physical confinement.\u201d (See IPI Criminal 2d No. 11.63 (Supp. 1987).) The defendant also did not raise the instructional issue in either of his post-trial motions, and he raises the issue of variance for the first time in this court.\nThe record shows the defendant argued the absence of force during his motion for a directed verdict after the close of the State\u2019s case, but his motion for a directed verdict was not renewed at the close of all the evidence, and he did not argue the absence of force during closing argument. Rather, he stated during closing argument: \u201cThere\u2019s no doubt about the ages of the people involved here, and so that\u2019s pretty easy. I think you can decide that very easily.\u201d Thus, it is clear that defendant not only did not object to the erroneous instruction, he did not offer a correct issues instruction, and he acquiesced in the withdrawal of the definitional instruction of force. Finally, he conceded the irrefutability of the ages of the accused and the victim.\nIt is axiomatic that a defendant may not complain of error which he invited or in which he acquiesced. (People v. White (1985), 134 Ill. App. 3d 262; People v. Benka (1983), 117 Ill. App. 3d 221.) The defendant has not challenged the competency of his trial counsel, nor has he argued that the plain-error doctrine should be applied to preserve the issue. (See generally People v. Berryman (1988), 171 Ill. App. 3d 548, 559-61.) Consequently, we conclude he has waived this issue.\nBriefly, on the merits, however, the record shows no fatal variance between the information and the proof at trial. The defendant relies on People v. Veile (1982), 109 Ill. App. 3d 847, in support of his contention. In Veile, the defendant was convicted by a jury upon an information charging aggravated battery causing bodily harm to a police officer. (Ill. Rev. Stat. 1979, ch. 38, pars. 12\u20144(b)(6), 12\u20143(a).) On appeal, the defendant claimed the State failed to prove any bodily injury. The court agreed, and it rejected the State\u2019s alternate argument that any variance between the charge of bodily harm as opposed to merely insulting touching could not have misled the defendant since she maintained that she did not hit the officer at all. The court noted the State elected to charge the defendant with aggravated battery causing bodily harm and was bound by the information upon which it proceeded to trial. Inasmuch as the court was not called upon to render any opinion as to whether the actions of the defendant constituted a touching of an insulting or provoking nature, it did not s.o decide.\nThe defendant here knew what he was charged with and, unlike Veile, the evidence was sufficient to convict him of that charge. As the State argues, there is no variance here between the information and the proof at trial which showed force by physical confinement as discussed above. That there was also positive, direct evidence of the ages of the victim and the accused, which the defendant conceded during closing argument and the jury was instructed as to those elements without objection by the defendant, does not negate the proof of force shown in the record. To require a reversal, the variance between the proof and the charge \u201c \u2018must be material and of such character as to mislead the accused in making his defense or expose him to double jeopardy.\u2019 \u201d (People v. Bohm (1983), 95 Ill. 2d 435, 439, quoting People v. Johnson (1976), 65 Ill. 2d 332, 337.) The defendant was neither misled in his defense nor exposed to double jeopardy.\nThe defendant\u2019s final contention is that the State failed to prove his guilt of the offense of criminal sexual abuse, where evidence of his prior sexual offense conviction \u2014 an essential element of its case \u2014 was not presented to the trier of fact, the jury. Section 12\u2014 15(d) of the Code provides that criminal sexual abuse is a Class A misdemeanor but:\n\u201cA second or subsequent conviction for a violation of subsection (a) of this Section is a Class 2 felony. For purposes of this Section, it is a second or subsequent conviction if the accused has at any time been convicted under this Section or under any similar statute of this State or any other state for any offense involving sexual abuse or sexual assault that is substantially equivalent to or more serious than the sexual abuse prohibited under this Section.\u201d\nThe State argues the defendant should be estopped from asserting this error, and we agree. The State concedes that, at the time the defendant was tried, a prior offense used to enhance the level of a subsequent conviction was an element of the subsequent offense which was to be pleaded in the charging instrument and proved at trial. (People v. Hicks (1987), 119 Ill. 2d 29; People v. Palmer (1984), 104 Ill. 2d 340.) However, it contends a defendant may be estopped from challenging on appeal the failure of the State to prove the prior conviction at trial where he agrees to or invites the error. People v. Hall (1986), 145 Ill. App. 3d 873; see also People v. Roberts (1985), 136 Ill. App. 3d 863, 866-67. But cf. People v. Nolan (1989), 188 Ill. App. 3d 251, 257-59 (where the court found the defendant was not estopped from claiming error in the exclusion of the evidence of his prior theft conviction pursuant to his motion in limine where the evidence of such conviction was otherwise excludable on the basis that conviction was invalid in that he did not knowingly waive his right to counsel, and where none of the parties in the instant cause were aware that the evidence of the prior theft needed to be presented to the jury).\nIt is clear from the instant record that the defendant concurred in the plan to withhold from the jury the certified copy of his 1978 conviction of rape in Ogle County. The certified copy of the conviction was offered and accepted into evidence, although not shown to the jury, and the defendant testified at the trial that he had prior felony convictions, although the nature of those convictions was not specified. Counsel and the court were all aware that proof of the prior conviction was an element of the offense to be proved, yet all concurred in not specifying to the jury the nature of the defendant\u2019s prior felony conviction of rape.\nUnder these circumstances, we conclude that defendant is estopped from asserting it was error for the court to do exactly that which he agreed it should do.\nFor the reasons above, the judgment of the circuit court of Ogle County is affirmed.\nAffirmed.\nREINHARD and WOODWARD, JJ., concur.\nCompare now with Public Act 86\u2014964, amending section 111\u20143 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1987, ch. 38, par. 111\u20143), effective July 1, 1990, by adding, inter alia, subsection (c) as follows: \u201cWhen the State seeks an enhanced sentence because of a prior conviction, the charge shall also state the intention to seek an enhanced sentence and shall state such prior conviction so as to give notice to the defendant. However, the fact of such prior conviction and the State\u2019s intention to seek an enhanced sentence are not elements of the offense and may not be disclosed to the jury during trial unless otherwise permitted by issues properly raised during such trial. For the purposes of this Section, \u2018enchanced sentence\u2019 means a sentence which is increased by a prior conviction from one classification of offense to another higher level classification of offense set forth in Section 5 \u2014 5\u20141 of the \u2018Unified Code of Corrections,\u2019 approved July 26, 1972, as amended; it does not include an increase in the sentence applied within the same level of classification of offense.\u201d (Emphasis added.)", "type": "majority", "author": "PRESIDING JUSTICE UNVERZAGT" } ], "attorneys": [ "G. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Dennis Schumacher, State\u2019s Attorney, of Oregon, and Frank Weiss, of Chicago (William L. Browers, 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. GARY D. SATTERFIELD, Defendant-Appellant.\nSecond District\nNo. 2\u201488\u20140189\nOpinion filed April 12, 1990.\nRehearing denied May 4, 1990.\nG. Joseph Weller and Manuel S. Serritos, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nDennis Schumacher, State\u2019s Attorney, of Oregon, and Frank Weiss, of Chicago (William L. Browers, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "1087-01", "first_page_order": 1109, "last_page_order": 1123 }