{ "id": 4265775, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY GRATHLER, Defendant-Appellant", "name_abbreviation": "People v. Grathler", "decision_date": "2006-10-10", "docket_number": "No. 5\u201405\u20140063", "first_page": "802", "last_page": "813", "citations": [ { "type": "official", "cite": "368 Ill. App. 3d 802" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "321 Ill. App. 3d 13", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 132390 ], "weight": 4, "year": 2001, "pin_cites": [ { "page": "24-25" }, { "page": "24, 25" }, { "page": "25" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/321/0013-01" ] }, { "cite": "318 Ill. App. 3d 46", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 279460 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "54" }, { "page": "49, 54-55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/318/0046-01" ] }, { "cite": "305 Ill. App. 3d 211", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1208107 ], "weight": 5, "year": 1999, "pin_cites": [ { "page": "215-16" }, { "page": "221" }, { "page": "222" }, { "page": "224" }, { "page": "224" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/305/0211-01" ] }, { "cite": "287 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 520966 ], "weight": 4, "year": 1997, "pin_cites": [ { "page": "207-11" }, { "page": "209" }, { "page": "212, 213", "parenthetical": "Theis, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/287/0199-01" ] }, { "cite": "364 Ill. App. 3d 320", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4262695 ], "year": 2006, "pin_cites": [ { "page": "334" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/364/0320-01" ] }, { "cite": "99 Ill. 2d 427", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3163414 ], "year": 1984, "pin_cites": [ { "page": "435-36" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/99/0427-01" ] }, { "cite": "148 Ill. 2d 454", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283080 ], "year": 1992, "pin_cites": [ { "page": "459" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0454-01" ] }, { "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": "311 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415351 ], "weight": 7, "year": 2000, "pin_cites": [ { "page": "427" }, { "page": "426, 424" }, { "page": "424" }, { "page": "424" }, { "page": "429" }, { "page": "428" }, { "page": "431" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0418-01" ] }, { "cite": "101 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160607 ], "year": 1984, "pin_cites": [ { "page": "303, 305, 306" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0301-01" ] }, { "cite": "211 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451179 ], "year": 2004, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0150-01" ] }, { "cite": "165 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 483560 ], "year": 1995, "pin_cites": [ { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/165/0305-01" ] }, { "cite": "155 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466252 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "882" }, { "page": "883" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/155/0878-01" ] }, { "cite": "104 Ill. 2d 8", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3146647 ], "year": 1984, "pin_cites": [ { "page": "13" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0008-01" ] }, { "cite": "344 Ill. App. 3d 929", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3778188 ], "year": 2003, "pin_cites": [ { "page": "936" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/344/0929-01" ] }, { "cite": "294 Ill. App. 3d 334", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 35417 ], "year": 1998, "pin_cites": [ { "page": "337" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/294/0334-01" ] }, { "cite": "195 Ill. 2d 336", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725359 ], "weight": 2, "year": 2001, "pin_cites": [ { "page": "353" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0336-01" ] }, { "cite": "384 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "weight": 3, "year": 1966, "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] } ], "analysis": { "cardinality": 1144, "char_count": 28350, "ocr_confidence": 0.762, "pagerank": { "raw": 6.596175094282256e-08, "percentile": 0.4033856800145491 }, "sha256": "f2a8330dddd87f8fc9714ef1063f09b6770585fe970ce3a90c81f0e5bb5ef075", "simhash": "1:bb98f51d631d8471", "word_count": 4720 }, "last_updated": "2023-07-14T20:06:43.500571+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. JERRY GRATHLER, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HOPKINS delivered\nthe opinion of the court:\nOn appeal from his convictions for residential burglary (720 ILCS 5/19 \u2014 3(a) (West 2004)) and attempted aggravated criminal sexual assault (720 ILCS 5/8 \u2014 4(a), 12 \u2014 14(a)(4) (West 2004)), the defendant, Jerry Grathler, argues that the State failed to prove his guilt beyond a reasonable doubt. We affirm.\nBACKGROUND\nOn July 9, 2004, the defendant was arrested and charged with one count of residential burglary (720 ILCS 5/19 \u2014 3(a) (West 2004)) and one count of attempted aggravated criminal sexual assault (720 ILCS 5/8 \u2014 4(a), 12 \u2014 14(a)(4) (West 2004)). The residential burglary charge alleged that the defendant had unlawfully entered C.E\u2019s home \u201cwith the intent to commit therein an aggravated criminal sexual assault\u201d; the attempt charge alleged that the criminal sexual assault was aggravated because it had been attempted \u201cduring the commission of a residential burglary.\u201d See 720 ILCS 5/12 \u2014 14(a)(4) (West 2004). On December 14, 2004, the cause proceeded to a bench trial, where the following evidence was adduced.\nC.F. testified that she lived alone in a small house in Carrier Mills and was an experienced social worker with specialized training in matters related to violent crime and law enforcement. On July 9, 2004, at approximately 1 a.m., C.F. was awakened in her bed by the barking of her two small dogs. When she was unable to silence the dogs, she walked into the hallway of her home and saw \u201ca very large figure\u201d in her kitchen. Startled, C.F. let out \u201ckind of a yelp.\u201d The figure then approached C.F., and she saw that it was the defendant. C.F. testified that she \u201cimmediately recognized\u201d the defendant because he grew up in her grandparents\u2019 neighborhood.\nThe defendant was wearing a sweatshirt from C.F.\u2019s basement and \u201ccarpenter jeans with no socks and no shoes.\u201d The defendant was holding a thin rope and a long leather purse strap, and he came at C.F., grabbing at her hands. Employing tactics learned during the course of her career, C.F. kept her hands above her chest, referred to the defendant by his first name, and tried to \u201cmake a connection\u201d with him and \u201cact like everything was okay.\u201d As the defendant grabbed her and tried to pull her near, C.F. \u201ckept pulling away and saying no.\u201d C.F. then backed into her living room, where the defendant followed her, lunged down onto one of her two couches, and repeatedly tried \u201cto pull [her] on top of him.\u201d The defendant grabbed at C.F.\u2019s waist and \u201cbuttocks area\u201d while trying to force her down. C.F. was wearing a nightgown, and she feared that the defendant was going to sexually assault her. As she struggled, C.F. continued to talk to the defendant and convince him that he did not \u201cwant to do this.\u201d C.F. eventually managed to sit herself down on the couch across from the couch where the defendant was sitting. C.F. testified that a coffee table stood between the couches, and she wanted to engage the defendant in further conversation from a safe distance, in a nonthreatening manner.\nC.F. testified that the defendant had an odor of alcohol about him but was \u201cfocused\u201d and \u201cable to answer questions\u201d and \u201cseemed to be thoughtful.\u201d When C.F. asked the defendant if he was \u201con something,\u201d he indicated that he was not. When C.F. asked the defendant why he was there, the defendant said that \u201che had seen [her] around and he found [her] sexually attractive\u201d and that \u201che thought, well \u2014 \u201d; the defendant then mumbled something indiscernible, and C.F. immediately diverted the conversation \u201cto something else.\u201d When C.F. asked the defendant if anyone was with him, he advised that he was alone, and after announcing her intention to do so, C.F. quickly grabbed her robe from her nearby bedroom and covered herself with it. She then returned to the couch and continued to converse with the defendant. As the defendant spoke with C.F., he fidgeted with the rope in his hands, \u201cmaintaining off and on eye contact.\u201d At one point, C.F. falsely claimed that her \u201cex-husband should be by any time.\u201d The defendant apologized several times and indicated that he was probably \u201cgoing to be in trouble.\u201d Meanwhile, one of C.F.\u2019s dogs had jumped onto her bed and was barking because it was unable or afraid to get down by itself. When C.F. noticed that the barking was \u201cdistracting\u201d and \u201cbothering\u201d the defendant, she used the dog as an excuse to return to her bedroom, stating that she \u201cbetter get that dog because if it falls off the bed it\u2019s going to hurt itself.\u201d Continuing her conversation with the defendant as she moved, C.F. went into her bedroom, grabbed the dog off the bed, took the bedroom telephone off the hook, and dialed 9-1-1. She then returned to the living room carrying the dog. Soon thereafter, C.F. claimed that she saw a car in front of her house and acted as if the car might be her ex-husband\u2019s. She then walked to the front door, opened it, and saw a police car outside. At that point, she told the defendant that the police were there and she \u201cran out the door.\u201d\nOfficer Mike Stover of the Carrier Mills police department testified that, on July 9, 2004, at approximately 1:50 a.m., he responded to an \u201copen line\u201d 9-1-1 call from C.F.\u2019s residence in Carrier Mills. When Officer Stover drove by, he saw C.F. standing at the door talking to someone. When Officer Stover subsequently parked his patrol car in front of the house, C.F. exited the house looking frightened and hurried toward him. After C.F. recounted what had occurred, Officer Stover searched her home, but the defendant was gone.\nOfficer Stover\u2019s investigation revealed that the defendant had entered C.F.\u2019s home through a basement window. The window\u2019s screen had been removed, and the window itself had been pried and pushed open. The rope that the defendant had been holding, which was tied \u201clike a slipknot,\u201d was found on the floor in front of the couch where the defendant had been sitting. The leather purse strap that the-defendant had been holding was found on the floor of the kitchen. In the basement, a leather purse with its straps cut off was found in an area where \u201ca lot of the stuff had been moved.\u201d A television cable wire had been pulled from somewhere and was also \u201cout of place.\u201d A black string attached to a silver ring was found near a table where a pair of size 14, black, laced tennis shoes was also discovered. A white T-shirt tied in a knot was found lying on top of C.F.\u2019s washing machine. C.F. testified that the tennis shoes and T-shirt were not hers and had not previously been in her basement.\nWhen Officer Steven Sloan arrived to assist Officer Stover, they canvassed C.F.\u2019s neighborhood looking for the defendant. The defendant\u2019s car was found parked a few blocks away from C.F.\u2019s house, and early into the search, someone was observed approaching and then running away from the car.' At approximately 4:30 a.m., the defendant was apprehended at his grandmother\u2019s house, where he was found asleep on her porch. When arrested, the defendant stated that \u201call [he had] done was open the window.\u201d After later waiving his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966)) at the Saline County jail, the defendant claimed that he did not remember anything. When subsequently advised of the charges against him, he stated that, after consuming eight or nine beers and some methamphetamine, he entered C.F.\u2019s home so that he could get something to drink. The defendant claimed that, when C.F. confronted him, she started screaming and he grabbed hold of her hands. The defendant said that \u201che was wrong for being there\u201d and that he exited out the back door when the police arrived. The defendant acknowledged that he was sexually attracted to C.F.\nDefense witness Mary Johnson testified that, on July 8, 2004, she lived in Carrier Mills with her son Danny Sherfield. Sometime between 7 p.m. and 8 p.m. that evening, the defendant stopped by to visit Danny. Johnson stated that the defendant had a 12-pack of beer with him and \u201cwas already drunk.\u201d The defendant and Danny hung out on Johnson\u2019s front porch drinking beer until 11:30 p.m., at which point Johnson ordered Danny to bed because he had to work the next morning. Johnson told the defendant that he could either sleep at her place or leave. The defendant indicated that he was going to stay at his grandmother\u2019s house and then drove off. On July 9, at approximately 2 a.m., Officer Sloan came to Johnson\u2019s door looking for the defendant; Officer Sloan had seen the defendant\u2019s car in front of Johnson\u2019s house the night before.\nThe defendant testified that, on the evening of July 8, he picked up a 12-pack of beer, drank 3 or 4 of the beers, and went to visit his friend Danny Sherfield. The defendant stated that, while visiting Danny, he finished the 12-pack and then drank several of Danny\u2019s beers. The defendant recalled leaving but could not remember what he did after that. The next thing he remembered was waking up in a basement \u201c[b]y a rope strangling [him].\u201d The defendant then proceeded upstairs, where he encountered C.F. When C.F. yelled, he became confused and grabbed her hands. The defendant claimed that he apologized and that he then stumbled to a couch where he and C.E conversed. The defendant claimed that he \u201cwas blacking in and out\u201d but denied making any kind of sexual advances toward C.F. Other than when he initially grabbed at C.F.\u2019s hands, he did not remember grabbing or pulling her at any other time. The defendant testified that he \u201c[k]ind of\u201d remembered C.F. from high school, but \u201c[s]he was a couple of years older.\u201d The defendant could not recall how he had entered C.F.\u2019s home. The defendant explained that he ultimately ended up asleep on the back porch of his grandmother\u2019s house, which was about six blocks away, but did not know how he got there. The defendant denied cutting the strap off the purse found in the basement and claimed that he did not know from where the rope or the black string with the ring had come. The defendant indicated that his statements to the police were the false results of coercion, but he admitted taking methamphetamine on July 7. The defendant testified that methamphetamine \u201cput[s] [him] out of [his] state of mind.\u201d The defendant further testified that he did not know if the shoes and shirt found in C.F.\u2019s basement belonged to him, but he acknowledged that he wore size 13 shoes and that, when arrested, he was not wearing any shoes. The defendant maintained that he had not entered C.F.\u2019s home \u201cwith the specific intent to do anything wrong.\u201d\nNoting that the defendant conveniently remembered some things but not others, the trial court described the defendant\u2019s assertion that he \u201cperiodically blacked out\u201d as \u201csomewhat curious.\u201d The court further observed that the defendant\u2019s \u201cphysical conduct\u201d was inconsistent -with \u201cthe level of his claimed impairment.\u201d By contrast, the trial court found that C.F. was not only \u201cvery credible\u201d but also one of the most \u201cimpressive\u201d witnesses that it had ever seen. The trial court stated that it was \u201cconfident that her recollections were accurate.\u201d The trial court found the defendant guilty on both counts and later imposed concurrent six-year prison sentences. The present appeal followed.\nANALYSIS\nThe defendant\u2019s sole contention on appeal is that his convictions for residential burglary (720 ILCS 5/19 \u2014 3(a) (West 2004)) and attempted aggravated criminal sexual assault (720 ILCS 5/8 \u2014 4(a), 12\u2014 14(a)(4) (West 2004)) must be reversed because the State failed to prove his guilt beyond a reasonable doubt.\n\u201cA reviewing court will not set aside a criminal conviction on grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant\u2019s guilt. When considering the sufficiency of the evidence, it is not the function of a reviewing court to retry the defendant. Rather, the relevant question is whether, after reviewing all of the evidence in the light most favorable to the prosecution, any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime.\u201d People v. Maggette, 195 Ill. 2d 336, 353 (2001).\nWhen establishing the essential elements of a crime beyond a reasonable doubt, \u201c[t]he State is not required to exclude every reasonable hypothesis of innocence.\u201d People v. Rush, 294 Ill. App. 3d 334, 337 (1998).\nResidential Burglary\nThe defendant first argues that his residential burglary conviction must be reversed because the State failed to prove that he entered C.F.\u2019s home with the intent to commit criminal sexual assault.\nThe parties agree that, to prove its residential burglary charge, the State was required to prove that the defendant unlawfully entered C.F.\u2019s home with the intent to commit an act of criminal sexual assault. The State was therefore required to prove that the defendant entered with the intent to commit \u201can act of sexual penetration by the use of force or threat of force.\u201d 720 ILCS 5/12 \u2014 13(a)(1) (West 2004). \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 2004). \u201cWhether the requisite intent existed is a question for the trier of fact, whose determination will not be disturbed on review unless a reasonable doubt exists as to the defendant\u2019s guilt.\u201d Maggette, 195 Ill. 2d at 354.\n\u201c[I]ntent may be inferred by surrounding circumstances and may be proved by circumstantial evidence.\u201d People v. Taylor, 344 Ill. App. 3d 929, 936 (2003). \u201cIn a burglary case, the relevant surrounding circumstances include the time, place[,] and manner of entry into the premises, the defendant\u2019s activity within the premises, and any alternative explanations offered for his presence.\u201d People v. Richardson, 104 Ill. 2d 8, 13 (1984). \u201cCircumstantial evidence is the proof of certain facts and circumstances from which the [trier of fact] may infer other connected facts which usually and reasonably follow according to the common experience of mankind.\u201d Hartness v. Ruzich, 155 Ill. App. 3d 878, 882 (1987). \u201cThe sole limitation on the use of circumstantial evidence is that the inferences drawn therefrom must be reasonable.\u201d Ruzich, 155 Ill. App. 3d at 883.\nHere, viewing the evidence adduced at the trial in the light most favorable to the State, we conclude that it was reasonable for the trial court to find that the defendant entered C.F.\u2019s home with the intent to commit an act of criminal sexual assault. A rational trier of fact could find that, emboldened by the effects of alcohol and methamphetamine, the defendant surreptitiously broke into C.F.\u2019s basement in the middle of the night, when C.F. would likely be asleep and vulnerable upstairs in her bed. Once inside C.F.\u2019s home, the defendant rummaged through her basement in search of items that he could use as bindings, possibly abandoning the notion to use his T-shirt and shoestrings for that purpose. When the defendant proceeded upstairs, he was holding a thin rope tied \u201clike a slipknot\u201d and a long purse strap, both of which could have been used to bind C.F.\u2019s hands or otherwise physically restrain her. When confronted, the defendant set upon C.F., ignoring her resistance and pleas of \u201cno.\u201d The defendant made repeated attempts to seize C.F.\u2019s hands and, when seated on the couch, \u201cto pull [her] on top of him.\u201d The defendant grabbed at C.F.\u2019s waist and \u201cbuttocks area.\u201d The defendant stated that he was there because \u201che had seen [C.F.] around and he found [her] sexually attractive\u201d and \u201che thought, well \u2014 .\u201d The defendant\u2019s flight from the police could be construed as demonstrating his consciousness of guilt (see People v. Lewis, 165 Ill. 2d 305, 349 (1995)), as could his varying statements to the police (see People v. Milka, 211 Ill. 2d 150, 181 (2004)) and his apologies to C.F.\nAlthough at the trial the defendant offered extreme intoxication as an alternative explanation for his actions and presence, the trial court found that the defendant\u2019s testimony was not credible. As the State suggests on appeal, the trial court could have reasonably concluded that the defendant\u2019s conduct \u201cspoke loudly about what his intentions were.\u201d Accordingly, we will not disturb the trial court\u2019s determination that the defendant entered C.F.\u2019s home with the intent to commit an act of sexual penetration by the use or threat of force. Cf. People v. Toolate, 101 Ill. 2d 301, 303, 305, 306 (1984) (reversing the defendant\u2019s conviction for \u201cresidential burglary with intent to commit rape\u201d where the defendant\u2019s conduct was \u201cinconsistent with those of a would-be rapist\u201d and failed to support \u201cthe inference that he entered the [victim\u2019s] apartment with an intent to have sexual intercourse with [the victim] by force and against her will\u201d).\nAttempted Aggravated Criminal Sexual Assault\nTo prove its attempted aggravated criminal sexual assault charge, the State was required to prove that, with the intent to commit criminal sexual assault, the defendant did \u201cany act which constitutes a substantial step toward the commission of that offense\u201d (720 ILCS 5/8 \u2014 4(a) (West 2004)) and did so during the course of a residential burglary (720 ILCS 5/12 \u2014 14(a)(4) (West 2004)).\n\u201cAn attempt crime is one \u2018that falls short of completion through means other than the defendant\u2019s voluntary relenting.\u2019 \u201d People v. Hawkins, 311 Ill. App. 3d 418, 427 (2000), quoting People v. Dogoda, 9 Ill. 2d 198, 203 (1956). An attempt is committed when a defendant crosses \u201cthe line where preparation ends and actual execution of a criminal act begins,\u201d and \u201csubsequent abandonment of the criminal purpose is no defense.\u201d Hawkins, 311 Ill. App. 3d at 426, 424. \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 2004). \u201cPrecisely what is a substantial step must be determined by evaluating the facts and circumstances of each particular case.\u201d People v. Smith, 148 Ill. 2d 454, 459 (1992).\n\u201cIllinois 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.\u201d Hawkins, 311 Ill. App. 3d at 424; see also People v. Terrell, 99 Ill. 2d 427, 435-36 (1984). Under section 5.01(l)(c) of the Model Penal Code, an attempt to commit a crime occurs when an individual with the requisite intent performs any act \u201cconstituting a substantial step in a course of conduct planned to culminate in his commission of the crime.\u201d Model Penal Code \u00a75.01(l)(c), at 296 (1985). Section 5.01(2) of the Model Penal Code provides:\n\u201cWithout negativing the sufficiency of other conduct, the following, if strongly corroborative of the actor\u2019s criminal purpose, shall not be held insufficient as a matter of law:\n(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;\n(e) possession of materials to be employed in the commission of the crime, that are specially designed for such unlawful use or that can serve no lawful purpose of the actor under the circumstances;\n(f) possession, collection!,] or fabrication of materials to be employed in the commission of the crime, at or near the place contemplated for its commission, if such possession, collection!,] or fabrication serves no lawful purpose of the actor under the circumstances;\n(g) soliciting an innocent agent to engage in conduct constituting an element of the crime.\u201d Model Penal Code \u00a75.01(2), at 296 (1985).\nAs this list demonstrates, \u201c[t]he approach of the Model Penal Code is to concentrate on the steps a defendant has taken toward the commission of the crime rather than on what steps remain.\u201d People v. Jiles, 364 Ill. App. 3d 320, 334 (2006); see also Hawkins, 311 Ill. App. 3d at 424.\nCiting People v. Montefolka, 287 Ill. App. 3d 199 (1997), the defendant argues that his attempted aggravated criminal sexual assault conviction must be reversed because the State failed to prove that he took a substantial step toward the commission of a criminal sexual assault. In Montefolka, stating that \u201c[a] defendant cannot be convicted of attempted aggravated criminal sexual assault absent evidence that he had taken a substantial step toward completion of the forced act of penetration,\u201d the sixth division of the First District Appellate Court held that evidence that the defendant struggled with the victim and twice told her to remove her underwear was insufficient to sustain the defendant\u2019s conviction for the offense. Montefolka, 287 Ill. App. 3d at 207-11. When considering the sufficiency of the evidence, the Montefolka court noted, inter alia, that the defendant \u201cmade no overt act toward [the victim\u2019s] genitals, did not use force to remove her clothing, nor did he expose himself.\u201d Montefolka, 287 Ill. App. 3d at 209. Justice Theis dissented \u201cfrom the majority\u2019s determination that the State failed to prove beyond a reasonable doubt that defendant\u2019s conduct was a substantial step toward the act of sexual assault\u201d and maintained, inter alia, that the cases upon which the majority relied were \u201cantiquated\u201d and \u201centirely inapposite.\u201d Montefolka, 287 Ill. App. 3d at 212, 213 (Theis, J., dissenting).\nMontefolka\u2019s attempted aggravated criminal sexual assault holding has since been criticized and called into doubt.\nIn People v. Cosby, 305 Ill. App. 3d 211, 215-16 (1999), the defendant demanded sex from the victim, beat and shot her during an ensuing struggle, and then fled. On appeal from his various convictions, the defendant relied on Montefolka when arguing that his attempted aggravated criminal sexual assault conviction could not stand \u201cbecause there was no showing that he removed his clothing or that of the victim or made any genital contact with her.\u201d Cosby, 305 Ill. App. 3d at 221. After distinguishing Montefolka on its facts, the second division of the First District Appellate Court stated, \u201c[Ejven if Montefolka was not factually distinguishable, we would respectfully decline to follow it.\u201d Cosby, 305 Ill. App. 3d at 222. Agreeing with Justice Theis\u2019s assessment that the majority\u2019s holding in Montefolka was derived from outmoded law, the Cosby court held that, in light of the evidence that the defendant intended to have sex with the victim, his \u201cattack on the victim constituted a substantial step toward the commission of the offense of aggravated criminal sexual assault.\u201d Cosby, 305 Ill. App. 3d at 224.\nIn People v. Hawkins, 311 Ill. App. 3d 418, 429 (2000), when affirming the defendant\u2019s attempted criminal sexual assault conviction, the Fourth District Appellate Court described Montefolka\u2019s attempted aggravated criminal sexual assault holding as \u201clogically unsound and a dangerous precedent.\u201d The Hawkins court stated: \u201cWe find [the Montefolka majority\u2019s] 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.\u201d (Emphasis in original.) Hawkins, 311 Ill. App. 3d at 428.\nIn People v. Scott, 318 Ill. App. 3d 46, 54 (2000), the Second District Appellate Court noted that \u201cMontefolka may not be good law.\u201d After discussing Hawkins, the Scott court determined that the defendant had taken \u201ca substantial step\u201d toward committing the offense of predatory criminal sexual assault of a child by first arranging to meet with who he thought was a 12-year-old boy ostensibly willing to engage in acts of sexual penetration (thereby satisfying factor (b) of section 5.01(2) of the Model Penal Code) and then driving to the agreed-upon location at the agreed-upon time. Scott, 318 Ill. App. 3d at 49, 54-55.\nFinally, in People v. Childress, 321 Ill. App. 3d 13 (2001), the second division of the First District Appellate Court again rejected a claim that, in accordance with Montefolka, a defendant\u2019s attempted aggravated criminal sexual assault conviction had to be reversed because \u201chis acts did not constitute a substantial step toward commission of \u2018an act of sexual penetration.\u2019 \u201d Childress, 321 Ill. App. 3d at 24-25, quoting 720 ILCS 5/12 \u2014 13(a)(1) (West 1998). After finding Montefolka \u201cfactually distinguishable,\u201d the Childress court noted that, in Cosby, it had \u201cexpressly declined to follow Montefolka.\u201d Childress, 321 Ill. App. 3d at 24, 25. The Childress court further deemed Hawkins \u201cinstructive\u201d on the issue of whether the defendant had taken a substantial step toward the commission of a criminal sexual assault. Childress, 321 Ill. App. 3d at 25.\nWe believe that Montefolka has been rightly rejected since its inception, and we decline the defendant\u2019s invitation to follow it. We further conclude that the evidence adduced at the defendant\u2019s trial was sufficient to support the trial court\u2019s finding that, with the intent to commit criminal sexual assault, the defendant took a substantial step toward the commission of that offense.\nThe defendant\u2019s conduct in the present case was strongly corroborative of his criminal purpose and exemplified two of the factors set forth in section 5.01(2) of the Model Penal Code \u2014 factors (d) and (f). As previously noted, the defendant broke into C.F.\u2019s basement in the middle of the night, when C.F. would likely be asleep and vulnerable. The defendant therefore satisfied factor (d) by gaining unlawful entry into the structure where the crime would be committed. Once inside, the defendant rummaged through C.F.\u2019s basement in search of items that he could use as bindings, and when he appeared upstairs, he was holding a rope tied \u201clike a slipknot\u201d and a long leather strap that was cut from a purse; both the rope and the strap could have been used to bind C.F.\u2019s hands or otherwise physically restrain her. Thus, once inside the place contemplated for the crime\u2019s commission, the defendant collected, fabricated, or possessed materials to be employed in the crime\u2019s commission, and the possession, collection, or fabrication of the materials served no lawful purpose under the circumstances; the defendant\u2019s conduct therefore satisfied factor (f). In light of the evidence supporting the inference that the defendant entered C.F.\u2019s home with the intent to commit an act of sexual penetration, the defendant\u2019s struggling with C.F. also constituted a substantial step toward the commission of a criminal sexual assault. See People v. Cosby, 305 Ill. App. 3d 211, 224 (1999). Where, as here, \u201ca 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.\u201d Hawkins, 311 Ill. App. 3d at 431. Under the circumstances, it would be inappropriate to reverse the defendant\u2019s conviction for attempted aggravated criminal sexual assault.\nCONCLUSION\nFor the foregoing reasons, we affirm the trial court\u2019s judgment finding the defendant guilty of residential burglary and attempted aggravated criminal sexual assault.\nAffirmed.\nSPOMER, PJ, and GOLDENHERSH, J., concur.", "type": "majority", "author": "JUSTICE HOPKINS delivered" } ], "attorneys": [ "Daniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "David Nelson, State\u2019s Attorney, of Harrisburg (Norbert J. Goetten, Stephen E. Norris, and Patrick D. Daly, 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. JERRY GRATHLER, Defendant-Appellant.\nFifth District\nNo. 5\u201405\u20140063\nOpinion filed October 10, 2006.\nDaniel M. Kirwan and Rita K. Peterson, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nDavid Nelson, State\u2019s Attorney, of Harrisburg (Norbert J. Goetten, Stephen E. Norris, and Patrick D. Daly, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0802-01", "first_page_order": 820, "last_page_order": 831 }