{ "id": 415351, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SHAVUN M. HAWKINS, Defendant-Appellant", "name_abbreviation": "People v. Hawkins", "decision_date": "2000-01-26", "docket_number": "No. 5\u201497\u20140811", "first_page": "418", "last_page": "432", "citations": [ { "type": "official", "cite": "311 Ill. App. 3d 418" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "677 N.E.2d 935", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "175 Ill. 2d 435", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295830 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/ill-2d/175/0435-01" ] }, { "cite": "593 N.E.2d 1040", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "229 Ill. App. 3d 645", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5216268 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/229/0645-01" ] }, { "cite": "386 N.E.2d 630", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "pin_cites": [ { "page": "635", "parenthetical": "conviction of burglary with intent to commit rape is not legally inconsistent with acquittal on attempt (rape) charge where defendant did not take a substantial step toward committing rape" } ], "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 1021", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3307309 ], "year": 1979, "pin_cites": [ { "page": "1029", "parenthetical": "conviction of burglary with intent to commit rape is not legally inconsistent with acquittal on attempt (rape) charge where defendant did not take a substantial step toward committing rape" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/1021-01" ] }, { "cite": "676 N.E.2d 646", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1997, "pin_cites": [ { "page": "648" }, { "page": "650" } ], "opinion_index": 0 }, { "cite": "175 Ill. 2d 126", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 295771 ], "weight": 3, "year": 1997, "pin_cites": [ { "page": "129-30" }, { "page": "134" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/175/0126-01" ] }, { "cite": "525 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1988, "pin_cites": [ { "page": "254" }, { "page": "254" } ], "opinion_index": 0 }, { "cite": "171 Ill. App. 3d 297", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3617754 ], "weight": 3, "year": 1988, "pin_cites": [ { "page": "298" }, { "page": "298-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/171/0297-01" ] }, { "cite": "411 N.E.2d 586", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "89 Ill. App. 3d 145", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5542224 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0145-01" ] }, { "cite": "166 N.E.2d 91", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1960, "opinion_index": 0 }, { "cite": "19 Ill. 2d 151", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2745549 ], "year": 1960, "opinion_index": 0, "case_paths": [ "/ill-2d/19/0151-01" ] }, { "cite": "442 N.E.2d 605", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "pin_cites": [ { "parenthetical": "conviction for attempt (rape) affirmed where evidence showed the accused fondled the victim's vagina, conduct which, under today's statute, would constitute a criminal sexual assault, rather than attempt" } ], "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 345", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2995712 ], "year": 1982, "pin_cites": [ { "parenthetical": "conviction for attempt (rape) affirmed where evidence showed the accused fondled the victim's vagina, conduct which, under today's statute, would constitute a criminal sexual assault, rather than attempt" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0345-01" ] }, { "cite": "92 Wis. 2d 656", "category": "reporters:state", "reporter": "Wis. 2d", "case_ids": [ 8673885 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "666", "parenthetical": "holding that even a \"slight act\" can be a substantial step if it is taken in furtherance of an attempted crime and renders a voluntary termination of the accused's course of action improbable" }, { "page": "646", "parenthetical": "holding that even a \"slight act\" can be a substantial step if it is taken in furtherance of an attempted crime and renders a voluntary termination of the accused's course of action improbable" } ], "opinion_index": 0, "case_paths": [ "/wis-2d/92/0656-01" ] }, { "cite": "325 N.W.2d 400", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10676005 ], "year": 1982, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/nw2d/325/0400-01" ] }, { "cite": "137 N.E.2d 386", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "pin_cites": [ { "page": "389" } ], "opinion_index": 0 }, { "cite": "9 Ill. 2d 198", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320635 ], "year": 1956, "pin_cites": [ { "page": "203" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0198-01" ] }, { "cite": "575 N.E.2d 954", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "pin_cites": [ { "page": "961" } ], "opinion_index": 0 }, { "cite": "216 Ill. App. 3d 578", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5290442 ], "year": 1991, "pin_cites": [ { "page": "589" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/216/0578-01" ] }, { "cite": "708 N.E.2d 391", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1998, "pin_cites": [ { "page": "397-98" } ], "opinion_index": 0 }, { "cite": "303 Ill. App. 3d 338", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 511415 ], "year": 1998, "pin_cites": [ { "page": "347-48" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/303/0338-01" ] }, { "cite": "678 N.E.2d 1049", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 8, "year": 1997, "pin_cites": [ { "page": "1051" }, { "page": "1057" }, { "page": "1055" }, { "page": "1058-59", "parenthetical": "Theis, J., dissenting" }, { "page": "1057" }, { "page": "1057" } ], "opinion_index": 0 }, { "cite": "287 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520966 ], "weight": 8, "year": 1997, "pin_cites": [ { "page": "202" }, { "page": "211" }, { "page": "209" }, { "page": "213" }, { "page": "211" }, { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0199-01" ] }, { "cite": "426 N.E.2d 535", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "pin_cites": [ { "page": "539" } ], "opinion_index": 0 }, { "cite": "85 Ill. 2d 281", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469875 ], "year": 1981, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0281-01" ] }, { "cite": "589 N.E.2d 144", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "146" }, { "page": "146" } ], "opinion_index": 0 }, { "cite": "225 Ill. App. 3d 1044", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5247458 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "1046" }, { "page": "1046" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/225/1044-01" ] }, { "cite": "593 N.E.2d 533", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1992, "pin_cites": [ { "page": "535" }, { "page": "535" } ], "opinion_index": 0 }, { "cite": "148 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283080 ], "weight": 3, "year": 1992, "pin_cites": [ { "page": "459" }, { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0454-01" ] }, { "cite": "459 N.E.2d 1337", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1984, "pin_cites": [ { "page": "1340" }, { "page": "1340" }, { "page": "1340" }, { "page": "1341-42" } ], "opinion_index": 0 }, { "cite": "99 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163414 ], "weight": 4, "year": 1984, "pin_cites": [ { "page": "433" }, { "page": "433" }, { "page": "432" }, { "page": "435-36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0427-01" ] }, { "cite": "625 N.E.2d 780", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "pin_cites": [ { "page": "783" } ], "opinion_index": 0 }, { "cite": "253 Ill. App. 3d 1048", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5423191 ], "year": 1993, "pin_cites": [ { "page": "1050" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/253/1048-01" ] }, { "cite": "582 N.E.2d 690", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "year": 1991, "pin_cites": [ { "page": "697" }, { "page": "697" }, { "page": "696" } ], "opinion_index": 0 }, { "cite": "145 Ill. 2d 188", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5596168 ], "weight": 3, "year": 1991, "pin_cites": [ { "page": "203" }, { "page": "203" }, { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/145/0188-01" ] } ], "analysis": { "cardinality": 1292, "char_count": 34194, "ocr_confidence": 0.768, "pagerank": { "raw": 1.2655094563593208e-07, "percentile": 0.6134838363163257 }, "sha256": "b96c3d18e9358366b192c86d28bfc8a41320f7963fb94270a9e8be63f100fe9d", "simhash": "1:30ac6bd1677d8f0f", "word_count": 5774 }, "last_updated": "2023-07-14T20:30:26.081874+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. SHAVUN M. HAWKINS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE MYERSCOUGH\ndelivered the opinion of the court:\nAfter a bench trial in July 1997, defendant, Shavun M. Hawkins, was convicted of criminal sexual assault (720 ILCS 5/12 \u2014 13(a)(2) (West 1996)), attempt (criminal sexual assault) (720 ILCS 5/8 \u2014 4(a), 12 \u2014 13(a)(2) (West 1996)), and residential burglary (720 ILCS 5/19 \u2014 3 (West 1996)). The trial court sentenced him to concurrent four-year terms for the sexual assault and residential burglary and three years for the attempt (criminal sexual assault). The truth-in-sentencing provision of section 3 \u2014 6\u20143(a)(2)(ii) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3 \u2014 6\u20143(a)(2)(ii) (West 1996)) was applied to the sentence for criminal sexual assault, and defendant was also fined $110 under the sexual-assault-fines statute (730 ILCS 5/5 \u2014 9\u2014 1.7(b)(1) (West 1996)). On appeal, defendant claims (1) he was not proved guilty of attempt (criminal sexual assault) beyond a reasonable doubt; (2) if his first argument succeeds, his burglary conviction, predicated on the attempt (criminal sexual assault) must also be reversed; (3) the truth-in-sentencing statute is unconstitutional; and (4) he is entitled to credit against the $110 sexual-assault fine for time spent in custody. We affirm and remand with directions.\nI. BACKGROUND\nB.H. testified she was a student at Eastern Illinois University (Eastern) in May 1996 and was living in a house at 1528 Fourth Street in Charleston with two of her sorority sisters, Dorothy and Rachel. Rachel\u2019s bedroom was in the basement, while B.H. and Dorothy each had a bedroom on the second floor. A sheet hung across the doorway to B.H.\u2019s room because the upstairs bedrooms had no doors. The front door to the house did not have a working lock.\nAccording to B.H.\u2019s testimony, on May 30, 1996, B.H. and her roommates went to Mother\u2019s Bar, where she had three vodka and cranberry juice drinks. B.H. was also taking Claritin D, an allergy medication, which caused her to feel \u201cshaky and groggy.\u201d She last took the medication at 6 or 7 p.m. B.H. and her roommates socialized with other university students at the bar until it closed at 1 a.m. When they got home, B.H. immediately fell asleep on the couch in the living room on the main floor of the house.\nB.H.\u2019s roommates testified to what happened while B.H. slept. An impromptu \u201cafter bars\u201d party commenced shortly after they got home, with 15 to 20 people in attendance. Scott, Rachel\u2019s boyfriend (and a bartender at Mother\u2019s), testified he arrived after 2 a.m. He testified three black men were in attendance; two of them he knew, and one\u2014 later identified as defendant \u2014 he did not know. The party broke up at about 3 a.m.\nB.H. testified she woke up at approximately 3:30 a.m. and was alone in the living room, where the lights were still on. She was unaware that a party had occurred or that one had been planned. After using the bathroom and pouring a glass of lemonade, she went upstairs. On the way to her bedroom, she peeked into Dorothy\u2019s room and saw that she was not there. B.H. took some aspirin, went to her room, and got into bed without changing out of her sundress. She fell asleep immediately.\nB.H. woke again at 4 or 4:15 a.m. to find defendant on top of her, kissing her on the mouth and having intercourse with her. When she realized what was happening she told him to \u201cget the f___off of me\u201d and pushed him away. He asked her if she was \u201csure.\u201d She rolled to the floor and got up. Her dress had been pulled up and her underpants were around her feet. Defendant\u2019s pants were around his ankles. No lights were on in the room, but ambient light came in from the hallway and streetlights that shined through the window. B.H. ran across the hall to Dorothy\u2019s room, turned on the light and tried to wake Dorothy. While B.H. was screaming to wake Dorothy, defendant stood at the doorway for approximately 15 seconds, then went downstairs. B.H. was able to see defendant more clearly at this point, as the lights were on. Scott and Rachel then came upstairs and tried to comfort B.H. B.H. did not tell them what happened, but started screaming again when she saw that defendant had come upstairs behind Scott and Rachel. Scott then escorted defendant out.\nOn B.H.\u2019s request, Rachel, Dorothy, and Scott took B.H. to her best friend\u2019s apartment. There, B.H. revealed what had happened and one of her friends called the police. An officer arrived and took a description of defendant from B.H. B.H. was then taken to a hospital.\nS.G. was also a student at Eastern Illinois University. In May 1996, she was living in a townhouse at 950 Edgar, No. 7, in Charleston. S.G. and Kristin both had bedrooms in the basement, and Kristin had to walk through S.G.\u2019s bedroom to get to her own. Three other people, including Jennifer and Bonnie, also lived in the house, occupying the upstairs bedrooms. The front door to the house was commonly left unlocked because friends of the residents frequently came and went.\nS.G. testified she did homework until about 11:30 p.m. on May 30, 1996, then went to Mother\u2019s Bar. After she returned home, she did more schoolwork before retiring between 2 and 2:30 a.m. Kristin was not home at the time. S.G. slept in a single bed, positioned against a wall.\nAt approximately 5 a.m., S.G. heard someone (later identified as defendant) coming downstairs. She assumed it was Kristin. S.G. then heard what sounded like someone bumping into things and feeling around in the dark. She thought perhaps Kristin was drunk. Then defendant bumped the edge of S.G.\u2019s bed, leaned against it, and felt along the top of the bed with his hands. At one point, he grabbed S.G.\u2019s foot underneath the covers. Defendant then went to the light switch and turned it on and off again rapidly. The light flashed so quickly S.G. was not able to see anything. S.G. then felt defendant sit on the side of the bed and heard his shoelaces being untied and his shoes hitting the floor. He started to get under the covers when S.G. asked what was \u201cgoing on.\u201d Defendant leaned over, put his arm on her shoulder and said \u201cwhat\u2019s the matter baby, I came to kick it with you.\u201d S.G. sprung out of bed and turned on the light. She saw defendant, still sitting on the bed, wearing black pants and a white shirt, but with his shoes off. She asked him who he was and what he was doing there. He said his name was Shavun and someone had sent him to the house. S.G. did not understand what defendant said, so she asked him again. This time he said Kristin had sent him. S.G. went upstairs, screaming.\nS.G. woke Jennifer first, then they both went into Bonnie\u2019s room, closed the door, and called the police. From inside the room they heard defendant leave the house. When Officer Dave Chambers arrived, S.G. described defendant as a black male, 5 feet 10 or 11 inches tall, weighing about 185 pounds, with a muscular build, short hair, wearing black pants arid a long-sleeve white pullover shirt. S.G. had no recollection of having seen defendant before.\nOfficer Chambers testified he was dispatched to S.G.\u2019s address at 5:12 a.m. After S.G. described defendant to Chambers, he remembered he had seen a man who fit the description when on his way to S.G.\u2019s address. He had seen a black male riding a bicycle, wearing black pants, with a white shirt draped over his shoulder. He was 5 feet 11 inches to 6 feet tall. Chambers estimated the distance between B.H. and S.G.\u2019s addresses as roughly one mile.\nTwo days after these incidents B.H., S.G., and Scott picked defendant out of a photo lineup at the police station. Defendant was subsequently arrested and charged with two counts of criminal sexual assault of B.H. (count I under subsection (a)(2) of the statute, alleging defendant committed an act of sexual penetration on B.H., knowing she was unable to consent, and count II under subsection (a)(1), alleging defendant committed an act of sexual penetration on B.H. by force); and one count of attempt (criminal sexual assault) of S.G. and one count of residential burglary of S.G.\u2019s residence. The trial judge found defendant guilty of all charges but criminal sexual assault of B.H. as drafted in count II (by force). This appeal followed.\nII. ANALYSIS\nA. Sufficiency of Evidence To Prove Defendant Committed a \u201cSubstantial Step\u201d Toward Criminal Sexual Assault\nDefendant contends he was not proved guilty of attempt (criminal sexual assault) of S.G. beyond a reasonable doubt because, as a matter of law, his acts did not constitute a substantial step toward commission of a criminal sexual assault. On review, we consider the evidence in the light most favorable to the prosecution and will affirm a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Schott, 145 Ill. 2d 188, 203, 582 N.E.2d 690, 697 (1991). Criminal convictions will not be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant\u2019s guilt. Schott, 145 Ill. 2d at 203, 582 N.E.2d at 697. Whether the uncontested facts constitute a substantial step under the applicable statute is a question of law requiring a de novo standard of review. People v. Garriott, 253 Ill. App. 3d 1048, 1050, 625 N.E.2d 780, 783 (1993).\n\u201cA person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.\u201d 720 ILCS 5/8 \u2014 4(a) (West 1996). Determining when mere preparation to commit an offense ends, and perpetration of an offense begins, is one of the most \u201ctroublesome\u201d areas in the law of inchoate offenses. People v. Terrell, 99 Ill. 2d 427, 433, 459 N.E.2d 1337, 1340 (1984). Thus, what constitutes a substantial step is determined by the facts and circumstances of each particular case. People v. Smith, 148 Ill. 2d 454, 459, 593 N.E.2d 533, 535 (1992). Although the accused need not have completed the \u201clast proximate act\u201d to actual commission of a crime, mere preparation is not enough. Terrell, 99 Ill. 2d at 433, 459 N.E.2d at 1340. A substantial step should put the accused in a \u201cdangerous proximity to success.\u201d People v. Morissette, 225 Ill. App. 3d 1044, 1046, 589 N.E.2d 144, 146 (1992).\nThe crime of attempt is complete upon the completion of a substantial step (with the requisite intent), and subsequent abandonment of the criminal purpose is no defense. People v. Myers, 85 Ill. 2d 281, 290, 426 N.E.2d 535, 539 (1981). Likewise, it is no defense to an attempt charge that because of a misapprehension of circumstances it would have been impossible for the accused to commit the offense attempted. 720 ILCS 5/8 \u2014 4(b) (West 1996); Terrell, 99 Ill. 2d at 432, 459 N.E.2d at 1340.\nIllinois courts have relied on the Model Penal Code for guidance in determining whether an accused has taken a substantial step toward commission of a crime. See Terrell, 99 Ill. 2d at 435-36, 459 N.E.2d at 1341-42. Under the Model Penal Code, an attempt has occurred when a person, acting with the required intent, \u201cpurposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime.\u201d Model Penal Code \u00a7 5.01(l)(c), at 296 (1985). The Model Penal Code lists types of conduct that shall not, as a matter of law, be held insufficient to support an attempt conviction, so long as the act is strongly corroborative of the actor\u2019s criminal purpose. The list includes the following:\n\u201c(a) lying in wait, searching for[,] or following the contemplated victim of the crime;\n(b) enticing or seeking to entice the contemplated victim of the crime to go to the place contemplated for its commission;\n(c) reconnoitering the place contemplated for the commission of the crime;\n(d) unlawful entry of a structure, vehicle!,] or enclosure in which it is contemplated that the crime will be committed.\u201d Model Penal Code \u00a7 5.01(2), at 296.\nThis list manifests the Model Penal Code\u2019s emphasis on the nature of steps taken, rather than on what remains to be done to commit a crime. As noted in the comments to section 5.01, \u201c[t]hat further major steps must be taken before the crime can be completed does not preclude a finding that the steps already undertaken are substantial.\u201d Model Penal Code \u00a7 5.01, Comment 6(a), at 329.\n1. \u201cForced Penetration\u201c\nDefendant contends that conviction of attempt (criminal sexual assault) requires proof, beyond a reasonable doubt, defendant took a substantial step toward forced penetration, and cites section 12\u2014 13(a)(1) of the Criminal Code of 1961 (Code) (720 ILCS 5/12 \u2014 13(a)(1) (West 1996)) and People v. Montefolka, 287 Ill. App. 3d 199, 678 N.E.2d 1049 (1997). We first note that defendant\u2019s attempt (criminal sexual assault) indictment did not charge defendant with attempt (criminal sexual assault) under section 12 \u2014 13(a)(1). The indictment contains only a general citation to sections 12 \u2014 13 and 8 \u2014 4(a) of the Code. When an indictment does not specify a statutory subsection, the defendant may be found guilty under any subsection. See People v. Kyles, 303 Ill. App. 3d 338, 347-48, 708 N.E.2d 391, 397-98 (1998). Section 12 \u2014 13(a) sets forth two alternative types of conduct, any one of which will constitute a criminal sexual assault:\n\u201c(a) The accused commits criminal sexual assault if he or she:\n(1) commits an act of sexual penetration by the use of force or threat of force; or\n(2) commits an act of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent[.]\u201d 720 ILCS 5/12 \u2014 13(a) (West 1996).\nWhile under subsection (a)(1) defendant\u2019s conviction would require a substantial step toward \u201cforced\u201d penetration, under subsection (a)(2), an attempt would require that defendant took a substantial step toward sexual penetration while the victim was unable to give knowing consent.\nFor his assault on B.H., defendant was convicted of criminal sexual assault as defined in section 12 \u2014 13(a)(2) of the Code. Defendant was acquitted on the second count, in which he was charged under section 12 \u2014 13(a)(1).\nWhile arguably defendant may have committed an act of sexual penetration by the use of force on B.H. (\u201cforce\u201d meaning \u201cstrength or power of any degree that is exercised without justification or contrary to law upon a person or thing\u201d (Webster\u2019s Third New International Dictionary 887 (1986)), the trial court found otherwise, and the propriety of that decision is not before us.\nThe State\u2019s attempt (criminal sexual assault) case was built on the inference that defendant intended to commit an assault on S.G. identical to that committed against his first victim, B.H. Therefore, the State need not prove defendant committed a substantial step toward \u201cforced\u201d penetration, in the traditional sense, but that he committed a substantial step toward committing an act of sexual penetration while the victim was unable to give knowing consent. Our conclusion on this point renders Montefolka and the cases cited therein inapposite to a substantial-step analysis, as the courts in each of those cases required proof of a substantial step toward forced penetration, with a traditional view of the meaning of the word \u201cforce\u201d in mind. Those cases will be discussed in greater detail below.\n2. \u201cSexual Penetration\u201c\nTo determine whether defendant took a substantial step toward an act of sexual penetration with S.G. while she was asleep and unable to give knowing consent, we first turn to the statutory definition of \u201csexual penetration\u201d:\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.\u201d 720 ILCS 5/12 \u2014 12(f) (West 1996).\nSee People v. Velasco, 216 Ill. App. 3d 578, 589, 575 N.E.2d 954, 961 (1991). \u201cSexual penetration\u201d and \u201csexual intercourse\u201d are not synonymous. A substantial step toward sexual penetration does not require a substantial step toward sexual intercourse, but a substantial step toward any one of the myriad forms of contact included in the statutory definition. For example, sexual penetration can occur through hand to genital contact no matter how slight the vaginal intrusion.\nThis broad definition of sexual penetration is particularly relevant to a substantial-step analysis as one is sooner in a \u201cdangerous proximity to success\u201d (Morissette, 225 Ill. App. 3d at 1046, 589 N.E.2d at 146) under the statutory definition.\n3. Defendant Took Substantial Step Toward Committing Criminal\nSexual Assault\nAfter careful consideration of the facts and circumstances of this case, the applicable statutes, precedent, and the Model Penal Code, we conclude that the evidence was sufficient to permit the trier of fact, here the judge, to conclude that defendant took a substantial step toward committing criminal sexual assault against S.G. The conduct at issue includes the following. Defendant had just been escorted out of B.H.\u2019s house, where he had intercourse with B.H. while she slept. He unlawfully entered S.G.\u2019s residence and proceeded to her bedroom. After fumbling around in the dark, defendant grabbed S.G.\u2019s foot. He turned the light switch on and off. Defendant then sat on the edge of S.G.\u2019s bed and removed his shoes. He started to get under the covers until he was interrupted by S.G.\u2019s urgent request for an explanation. Defendant then put his arm on S.G.\u2019s shoulder and told her he was there to \u201ckick it\u201d with her. Defendant did not leave until S.G. went upstairs screaming.\nWith these facts in evidence, the judge could reasonably conclude that defendant had crossed the line where preparation ends and actual execution of a criminal act begins. That defendant was merely preparing to commit a criminal sexual assault would be a reasonable conclusion had he been interrupted while looking for S.G.\u2019s house (see Smith, 148 Ill. 2d 454, 593 N.E.2d 533 (reversing attempt (robbery) conviction where defendant was arrested while driving a stolen cab in search of the jewelry store he intended to rob)); or upon entering the residence, in the absence of additional evidence corroborating his intent to commit a sexual assault. However, defendant\u2019s acts, specifically, sitting on S.G.\u2019s bed, taking off his shoes, crawling between the sheets, and announcing his sexual objective to \u201ckick it\u201d with her, were not only corroborative of his intent, but brought him within a \u201cdangerous proximity of success\u201d as well. Depending on what S.G. was wearing at the time (a fact not in the record), defendant may have been dangerously close to achieving sexual penetration as defined in section 12\u2014 12(f) of the Code.\nAn attempt crime is one \u201cthat falls short of completion through means other than the defendant\u2019s voluntary relenting.\u201d People v. Dogoda, 9 Ill. 2d 198, 203, 137 N.E.2d 386, 389 (1956). Defendant\u2019s \u201cattempt\u201d ended when S.G. stopped it by removing herself from the situation, not by defendant\u2019s volition. The trier of fact could reasonably conclude that, when defendant got into bed with S.G., he was past the point where he was likely to experience a change of heart. See Fryer v. State, 325 N.W.2d 400, 406 (Iowa 1982); Hamiel v. State, 92 Wis. 2d 656, 666, 285 N.W.2d 639, 646 (1979) (holding that even a \u201cslight act\u201d can be a substantial step if it is taken in furtherance of an attempted crime and renders a voluntary termination of the accused\u2019s course of action improbable).\nDefendant calls our attention to all the actions he did not take, in an attempt to persuade us that his conduct did not amount to a substantial step. Defendant points out that he did not take off any of his clothes but his shoes; he did not touch or fondle S.G.\u2019s genitals or breasts; he did not act \u201caggressively\u201d toward S.G.; he did not demand that she remove her clothes; and he did not demand sexual contact. We are not persuaded. Defendant\u2019s conduct did amount to a substantial step toward the commission of a sexual assault. Defendant does not have to remove his clothing, remove S.G.\u2019s clothing, act \u201caggressively,\u201d or \u201cdemand\u201d sexual contact to commit criminal sexual assault under section 12 \u2014 13(a)(2).\nMoreover, had defendant actually \u201cfondled\u201d S.G.\u2019s genitals, he would have committed the offense itself and an attempt conviction would not now be before us.\nWe emphasize that our holding here, that defendant\u2019s conduct constitutes a substantial step toward criminal sexual assault under section 12 \u2014 13(a)(2) of the Code, is limited to the facts of this case and does not preclude a finding that similar or identical conduct constitutes a substantial step toward criminal sexual assault under any other subsection of section 12 \u2014 13 of the Code.\n4. Montefolka Distinguished\nDefendant relies upon Montefolka, 287 Ill. App. 3d 199, 678 N.E.2d 1049, and the cases cited therein. In Montefolka, the victim was awakened in the night by her whining dog. When she went downstairs to check on the dog, she discovered the defendant inside the house. She ran for the door but defendant grabbed her. He wrestled her to the floor and, while holding her in a \u201cchoke hold,\u201d twice ordered her to take off her underpants. The victim refused and eventually, through conversation, was able to calm the defendant and he left the house with some cash. Montefolka, 287 Ill. App. 3d at 202, 678 N.E.2d at 1051. The First District Appellate Court reversed the defendant\u2019s attempt (criminal sexual assault) conviction, finding he had not taken a substantial step toward the forced act of penetration. Montefolka, 287 Ill. App. 3d at 211, 678 N.E.2d at 1057.\nMontefolka is inapplicable here not only because the defendant there was charged with attempted aggravated criminal sexual assault, but also because the case is factually distinguishable from the case at hand. Defendant took more steps clearly indicative of an intent to commit a sexual assault than did the defendant in Montefolka. Defendant entered S.G.\u2019s home and bedroom as she slept, he located S.G. in the bed, removed his shoes, got into bed under the covers with her, put his arm around her, and told her that he had come to \u201ckick it\u201d with her.\nMoreover, we also disagree with the Montefolka court\u2019s conclusion as well as its reasoning. The court emphasized that actions the defendant did not take to support its finding that the acts he did take did not constitute a substantial step. The court points out that the defendant made no overt act toward the victim\u2019s genitals, did not use force to remove her clothing, did not expose himself, and did not touch, caress, or fondle any part of the victim\u2019s body. Montefolka, 287 Ill. App. 3d at 209, 678 N.E.2d at 1055.\nWe find this emphasis on what the defendant did not do to be an inappropriate test for determining whether a substantial step was taken. Moreover, such a test is inconsistent with the Model Penal Code. A substantial step can be the very first step beyond mere preparation. That more steps could conceivably have been taken before actual commission of a crime does not render that first step insubstantial. Model Penal Code \u00a7 5.01, Comment 6(a), at 329. In Montefolka, the attempt crime was committed and completed when the defendant had the victim in a \u201cchoke hold\u201d and ordered her to remove her panties. Surely, breaking into the victim\u2019s home, chasing the victim, knocking her to the ground, holding her in a choke hold, and telling her to remove her underpants constitutes the use of force in an attempt to commit a sexual penetration. The victim was fortunate in that she was able to talk the defendant out of any further assault, but her calm head and good fortune do not negate the defendant\u2019s criminal conduct.\nAs Justice Theis points out in her dissent, the Montefolka court lost sight of the statutory definition of \u201cpenetration.\u201d Montefolka, 287 Ill. App. 3d at 213, 678 N.E.2d at 1058-59 (Theis, J., dissenting). As in the case at bar, the defendant in Montefolka would not have to expose himself to commit an act of penetration, nor would he have to fondle or caress the victim; yet, the court held that the defendant\u2019s failure to commit these acts destroyed the State\u2019s attempt case. The Montefolka court held, in essence, that when a man breaks into a home, holds a woman down on the floor, and orders her to remove her underwear, he is merely preparing to commit a sexual assault. We find this to be logically unsound and a dangerous precedent.\nIn our view, the Montefolka court also relied too heavily on precedent to settle an issue that is properly determined on the unique facts and circumstances of each case. See Smith, 148 Ill. 2d at 459, 593 N.E.2d at 535. The Montefolka court found that those cases affirming attempt convictions were based on conduct far more \u201covert and violent\u201d than the conduct of the defendant (Montefolka, 287 Ill. App. 3d at 211, 678 N.E.2d at 1057; see also People v. Kleba, 110 Ill. App. 3d 345, 442 N.E.2d 605 (1982) (conviction for attempt (rape) affirmed where evidence showed the accused fondled the victim\u2019s vagina, conduct which, under today\u2019s statute, would constitute a criminal sexual assault, rather than attempt)) \u2014 again focusing on the negative, i.e., what that defendant did not do \u2014 and deemed itself \u201c[1]united by the thrust of these cases.\u201d Montefolka, 287 Ill. App. 3d at 211, 678 N.E.2d at 1057. That convictions were affirmed where the acts committed were overtly sexual and/or violent has no bearing on whether lesser acts will constitute a substantial step under a different set of circumstances, and the trial court in this case was clearly correct in convicting under section 12 \u2014 13(a)(2) where no force or threat of force was required. 720 ILCS 5/12 \u2014 13(a)(2) (West 1996).\nMoreover, the cases reversing attempt convictions cited by the Montefolka court are either obsolete or otherwise distinguishable from the case at bar. Both People v. Bush, 19 Ill. 2d 151, 166 N.E.2d 91 (1960), and People v. Pitts, 89 Ill. App. 3d 145, 411 N.E.2d 586 (1980), were decided prior to the enactment of our current sexual assault statutes, and at a time when testimony of victims of sexual assault had to be either \u201cclear and convincing or substantially corroborated,\u201d for the charge to be deemed proved beyond a reasonable doubt and the conviction sustained. See Schott, 145 Ill. 2d at 202, 582 N.E.2d at 696.\nPeople v. Rayfield, 171 Ill. App. 3d 297, 525 N.E.2d 253 (1988), reversed an attempt (criminal sexual assault) conviction because the State failed to prove the accused acted with the required intent. In Rayfield, the 15-year-old defendant entered the victim\u2019s apartment uninvited and asked the victim if she had any work for him. She said she did not, but continued to converse with the defendant. The victim testified that she was frightened by defendant because of his size and race and that she felt sorry for him because he was poor and attended a school for \u201cslow learners.\u201d Rayfield, 171 Ill. App. 3d at 298, 525 N.E.2d at 254. At one point the defendant held the victim and, despite her protestations, attempted to carry her toward the bedroom. The victim was able to talk defendant out of any further assault and engaged him in conversation once again. Before he left her apartment, defendant asked the victim if she would show him her vagina. Rayfield, 171 Ill. App. 3d at 298-99, 525 N.E.2d at 254.\nThe issue before the Rayfield court was defendant\u2019s intent, not whether he had taken a substantial step. The court, however, misstated the requirements for an attempt (criminal sexual assault) conviction. The Rayfield court stated that an attempt (criminal sexual assault) conviction requires evidence of the intent to have \u201cintercourse\u201d not \u201csexual penetration,\u201d as defined by statute. Rayfield was decided four years after the enactment of current sexual assault laws, which define \u201csexual penetration\u201d as \u201ccontact, however slight [with] the sex organ\u201d (720 ILCS 5/12 \u2014 12(f) (West 1996)). We are not bound to follow cases in which the law has been misapplied.\nRather, People v. Jones, 175 Ill. 2d 126, 676 N.E.2d 646 (1997), cited by defendant and the Montefolka court, supports our conclusion in this case. In Jones, the defendant was charged with attempt (aggravated criminal sexual abuse). Defendant, an adult male, while completely undressed and alone in a room with the 16-year-old male victim, asked the boy if he would masturbate defendant and if the boy would allow defendant to masturbate him. The boy declined and left the room. Jones, 175 Ill. 2d at 129-30, 676 N.E.2d at 648. The court held that the defendant\u2019s act of exposure, coupled with the request for sexual conduct, constituted a substantial step, notwithstanding the lack of any actual contact between the defendant and the victim. Jones, 175 Ill. 2d at 134, 676 N.E.2d at 650. A conviction for sexual abuse requires \u201csexual conduct,\u201d which, as defined by statute, requires actual contact, although such contact can be made through clothing. 720 ILCS 5/12 \u2014 16(d), 12 \u2014 12(e) (West 1996).\nIn Jones, the defendant made no overt move toward sexual contact with the victim. He did not attempt to grab the victim or reach out to touch him in any way. Nevertheless, the court found defendant\u2019s conduct was not \u201cmere preparation\u201d but a substantial step toward commission of criminal sexual abuse. The court\u2019s conclusion is consistent with the Model Penal Code approach, which focuses on the steps already taken, regardless of what remains to be done. The defendants in both Jones and the case at bar were interrupted by the acts of their potential victims. We hold, consistent with Jones, that when a substantial step has already been taken and the perpetrator\u2019s intent is clear, abandonment of the criminal purpose upon the resistance of the potential victim does not render those steps already taken insubstantial.\nB. Sufficiency of Evidence To Sustain Burglary Conviction\nDefendant further contends reversal of his attempt conviction requires his burglary conviction be reversed as well. Although we need not reach this issue in light of our decision to affirm defendant\u2019s attempt (criminal sexual assault) conviction, we nevertheless take this opportunity to address defendant\u2019s argument. Residential burglary requires entry of the dwelling place of another with the intent to commit therein a felony or theft. 720 ILCS 5/19 \u2014 3(a) (West 1996). Defendant\u2019s burglary conviction was predicated on his intent to commit a sexual assault against S.G. On appeal defendant argues the attempt (criminal sexual assault) conviction must be reversed because defendant\u2019s acts did not amount to a substantial step. Intent and a substantial step are two separate and distinct elements of an attempt crime. Defendant\u2019s burglary conviction must be affirmed if the State proved defendant entered S.G.\u2019s residence with the intent to perform sexual penetration on S.G. while she was unable to give consent\u2014 which it did \u2014 regardless of whether defendant took a substantial step toward such act. See People v. Clerk, 68 Ill. App. 3d 1021, 1029, 386 N.E.2d 630, 635 (1979) (conviction of burglary with intent to commit rape is not legally inconsistent with acquittal on attempt (rape) charge where defendant did not take a substantial step toward committing rape).\nC. Truth in Sentencing\nThe material in this Section is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).\nD. Credit Against Fine\nDefendant finally contends that he is entitled to credit against the $110 fine imposed by the trial court. Pursuant to section 110 \u2014 14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110 \u2014 14 (West 1996)), any person incarcerated on a bailable offense who does not supply bail and against whom a fine is levied on conviction of such offense is allowed a credit of $5 for each day incarcerated. Defendant was incarcerated for 86 days. The State concedes under People v. Lemons, 229 Ill. App. 3d 645, 593 N.E.2d 1040 (1992), and People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997), that defendant is entitled to full credit against the fine.\nThe prosecutor here asked for imposition of \u201ccourt costs and $100 sexual assault fine that is mandated by statute, [sjection 5 \u2014 9\u2014 1.7 of the Unified Code.\u201d Section 5 \u2014 9\u20141.7 has not been amended to preclude any reduction in the fine for time served either before or after sentencing (730 ILCS 5/5 \u2014 9\u20141.7 (West 1996)) as have other statutory provisions (725 ILCS 240/10(b), (c) (West 1996); 730 ILCS 5/5\u2014 9 \u2014 1(c) (West 1996)). Accordingly, defendant is entitled to a $5-per-day credit against the sexual assault fine. However, the remaining $10 is authorized (\u201cthere shall be added to each fine imposed upon conviction\u201d) and is not subject to crediting (\u201c[s]uch additional penalty shall not be considered a part of the fine for purposes of any reduction made in the fine for time served either before or after sentencing\u201d). 725 ILCS 240/10(b) (West 1996).\nIII. CONCLUSION\nFor the foregoing reasons defendant\u2019s conviction is affirmed and the cause remanded for issuance of an amended judgment of sentence (1) stating he is entitled to computation of day-for-day good-time credit under section 3 \u2014 6\u20143 of the Unified Code prior to enactment of truth in sentencing (730 ILCS 5/3 \u2014 6\u20143 (West 1994)) and (2) showing the fine imposed has been reduced to $10.\nAffirmed; cause remanded with directions.\nSTEIGMANN and KNECHT, JJ, concur.", "type": "majority", "author": "JUSTICE MYERSCOUGH" } ], "attorneys": [ "Daniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "C. Steve Ferguson, State\u2019s Attorney, of Charleston (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, 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. SHAVUN M. HAWKINS, Defendant-Appellant.\nFourth District\nNo. 5\u201497\u20140811\nOpinion filed January 26, 2000.\nDaniel M. Kirwan and E. Joyce Randolph, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nC. Steve Ferguson, State\u2019s Attorney, of Charleston (Norbert J. Goetten, Robert J. Biderman, and Perry L. Miller, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0418-01", "first_page_order": 436, "last_page_order": 450 }