{ "id": 4272987, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DELGADO, Defendant-Appellant", "name_abbreviation": "People v. Delgado", "decision_date": "2007-09-07", "docket_number": "No. 1-05-1592", "first_page": "307", "last_page": "322", "citations": [ { "type": "official", "cite": "376 Ill. App. 3d 307" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "91 Ill. App. 3d 1095", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3148954 ], "year": 1980, "pin_cites": [ { "page": "1101" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/1095-01" ] }, { "cite": "295 Ill. App. 3d 405", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 45704 ], "year": 1998, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/295/0405-01" ] }, { "cite": "146 Ill. 2d 109", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5597409 ], "year": 1991, "pin_cites": [ { "page": "136", "parenthetical": "an error in a jury instruction is harmless if it is demonstrated that the result of the trial would not have been different had the jury been properly instructed" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/146/0109-01" ] }, { "cite": "145 Ill. App. 3d 626", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3535572 ], "year": 1986, "pin_cites": [ { "page": "646" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/145/0626-01" ] }, { "cite": "87 Ill. 2d 216", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3030605 ], "year": 1981, "pin_cites": [ { "page": "222-23", "parenthetical": "finding plain error where jury instructions incompletely defined offense of deceptive practice" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/87/0216-01" ] }, { "cite": "326 Ill. App. 3d 76", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1281369 ], "year": 2001, "pin_cites": [ { "page": "86", "parenthetical": "finding plain error where jury instructed with outdated pattern instruction that incompletely defined the offense of harassment of a witness" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/326/0076-01" ] }, { "cite": "192 Ill. App. 3d 387", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506336 ], "year": 1989, "pin_cites": [ { "page": "393-94", "parenthetical": "term \"stolen motor vehicle\" was readily understood and not in need of further definition via instruction" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0387-01" ] }, { "cite": "334 Ill. App. 3d 882", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 521925 ], "year": 2002, "pin_cites": [ { "page": "890", "parenthetical": "no error where trial court did not define \"conceal\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/334/0882-01" ] }, { "cite": "343 Ill. App. 3d 1168", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3719110 ], "year": 2003, "pin_cites": [ { "page": "1180", "parenthetical": "instruction was not necessary to define \"robbery\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/343/1168-01" ] }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "115-16" }, { "page": "115" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] }, { "cite": "331 Ill. App. 3d 279", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1209138 ], "year": 2002, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/331/0279-01" ] }, { "cite": "74 Ill. 2d 35", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2993897 ], "weight": 4, "year": 1978, "pin_cites": [ { "page": "41" }, { "page": "41", "parenthetical": "finding reversible error for failure to properly define \"obscenity\" in jury instructions" }, { "page": "41", "parenthetical": "where instruction error is in a definition essential to the jury's assessment of defendant's guilt or innocence, it is reversible error, and requires a new trial" }, { "page": "41" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0035-01" ] }, { "cite": "181 Ill. 2d 297", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 821396 ], "year": 1998, "pin_cites": [ { "page": "318" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/181/0297-01" ] }, { "cite": "91 Ill. 2d 536", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3091828 ], "year": 1982, "pin_cites": [ { "page": "543" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0536-01" ] }, { "cite": "72 Ill. 2d 124", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5444213 ], "year": 1978, "pin_cites": [ { "page": "129" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0124-01" ] }, { "cite": "225 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5704197 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "565" }, { "page": "565" }, { "page": "565" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/225/0551-01" ] }, { "cite": "215 Ill. 2d 167", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 4060336 ], "weight": 9, "year": 2005, "pin_cites": [ { "page": "175", "parenthetical": "and cases cited therein" }, { "page": "175-76" }, { "page": "186-87" }, { "page": "186" }, { "page": "186-87" }, { "page": "187-88" }, { "page": "187-88" }, { "page": "193" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/215/0167-01" ] }, { "cite": "123 Ill. 2d 184", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550970 ], "year": 1988, "pin_cites": [ { "page": "196-200" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/123/0184-01" ] }, { "cite": "76 Ill. 2d 289", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2982988 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "309" }, { "page": "309" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0289-01" ] }, { "cite": "233 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5195942 ], "year": 1992, "pin_cites": [ { "page": "527" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/233/0517-01" ] }, { "cite": "117 Ill. 2d 317", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545304 ], "year": 1987, "pin_cites": [ { "page": "356" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/117/0317-01" ] }, { "cite": "185 Ill. 2d 532", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 121990 ], "weight": 2, "year": 1999, "pin_cites": [ { "page": "541" }, { "page": "545" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/185/0532-01" ] }, { "cite": "195 Ill. App. 3d 673", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2495243 ], "year": 1990, "pin_cites": [ { "page": "675" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/195/0673-01" ] }, { "cite": "212 Ill. 2d 274", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2444253 ], "weight": 3, "year": 2004, "pin_cites": [ { "page": "279" }, { "page": "280" }, { "page": "280" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/212/0274-01" ] }, { "cite": "202 Ill. 2d 189", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442057 ], "year": 2002, "pin_cites": [ { "page": "217" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0189-01" ] }, { "cite": "443 U.S. 307", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6182418 ], "weight": 3, "year": 1979, "pin_cites": [ { "page": "319" }, { "page": "573" }, { "page": "2788-89" } ], "opinion_index": 0, "case_paths": [ "/us/443/0307-01" ] }, { "cite": "368 Ill. App. 3d 985", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4266459 ], "weight": 2, "year": 2006, "opinion_index": 0, "case_paths": [ "/ill-app-3d/368/0985-01" ] }, { "cite": "223 Ill. 2d 645", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 2, "year": 2007, "opinion_index": 0 } ], "analysis": { "cardinality": 1187, "char_count": 40031, "ocr_confidence": 0.782, "pagerank": { "raw": 5.891726166979012e-08, "percentile": 0.3688929354568548 }, "sha256": "1348f5b32315c5983e0303ecca9b8295f66e0f680f079917ea01fcd62b96326d", "simhash": "1:9574f558f7ee8e02", "word_count": 6660 }, "last_updated": "2023-07-14T14:46:29.545992+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. ROBERT DELGADO, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019HARA FROSSARD\ndelivered the opinion of the court:\nRobert Delgado was convicted of aggravated criminal sexual abuse after a jury trial and sentenced to four years in prison. Delgado raises four issues on appeal: The first two directly challenge his conviction. Delgado argues the State failed to prove him guilty beyond a reasonable doubt and the court failed to instruct the jury on the definition of \u201csexual conduct.\u201d Delgado\u2019s final two arguments challenge the fines he was ordered to pay as part of his sentence.\nThe Illinois Supreme Court has entered a supervisory order (People v. Delgado, 223 Ill. 2d 645 (2007)) directing this court to vacate our previous opinion (People v. Delgado, 368 Ill. App. 3d 985 (2006)) and reconsider our judgment under a plain error analysis.\nBACKGROUND\nDefendant was charged with criminal sexual assault, aggravated criminal sexual abuse, criminal sexual abuse, and unlawful restraint. The State before trial entered a nolle prosequi on all of the charges except criminal sexual assault and aggravated criminal sexual abuse. The jury found defendant not guilty of criminal sexual assault, but guilty of aggravated criminal sexual abuse.\nAt trial, the State presented two witnesses to testify against defendant: the victim, J.L., and Detective Michael Tardi. J.L. testified that in September 2002, when she was in sixth grade, she began going to her mother\u2019s car at night to use the CB radio. J.L. used the handle \u201cSweetie,\u201d and she often spoke to a man whose handle was \u201cNo. 1 Asshole.\u201d J.L. was 13 years old at the time, but when No. 1 Asshole asked her age, she lied and said she was 16.\nJ.L. testified that on the night of October 4, 2002, she spoke briefly to No. 1 Asshole, then gave him her telephone number and asked him to call her in five minutes. Around 10 p.m., he called and they arranged to meet later that night at a public park a few blocks from J.L.\u2019s home. J.L. asked her mother if she could go out, but her mother said no. Contrary to her mother\u2019s wishes, J.L. left the house and went to the park around 11:30 p.m.\nShortly after she arrived, a man pulled up on a bicycle. J.L. identified the man in court as the defendant. The man asked if she was J.L., she asked if he was No. 1 Asshole, and they both said yes. Defendant asked J.L. whether she had a boyfriend and whether she was a virgin, and J.L. answered yes to both questions. Defendant then asked J.L. if she wanted to \u201cdo it,\u201d which she understood to mean have sex, and she said no.\nDefendant provided marijuana which they both shared. He began rubbing J.L.\u2019s back and kissing her neck, but she asked him to stop and he did. J.L. testified that she began to feel uncomfortable and tried to leave, but defendant grabbed her arm and told her he was not ready to leave yet. She sat down and they resumed talking for 10 to 20 minutes. Defendant began rubbing J.L.\u2019s back and kissing her neck again, and he asked her again if she wanted to \u201cdo it.\u201d Once again, she said no.\nAt that point, J.L. testified, \u201csomehow we ended up on the ground,\u201d with defendant on top of her. J.L. testified that defendant pinned her wrists above her head with one hand, while using his other hand to unzip her jeans and pull them down. She also testified that he put his other hand over her mouth. Defendant unzipped his pants, and inserted his penis into her vagina. After 5 to 10 minutes, J.L. testified that she felt \u201csomething warm\u201d on her stomach, which defendant wiped off. She testified that she did not see defendant ejaculate, and she did not see what he used to wipe her stomach.\nOn cross-examination, J.L. said she tried to scream but defendant\u2019s hand was covering her mouth. When asked how defendant could have pinned her arms above her head and pulled down her pants, with his hand over her mouth, J.L. said he removed his hand from her mouth to undress her for, \u201clike, two seconds,\u201d then put his hand back over her mouth.\nAfter the incident, J.L. pulled up her pants, saw that it was 2 a.m. and left. When she returned home, her mother was furious and told her that she had called the police and that they had been to the home earlier. When the police officer returned later that night, J.L. told him defendant did not touch her. Three days later, however, on October 8, 2002, J.L. told the police and her mother that she had been raped.\nThe police asked J.L. to use the CB radio again to contact defendant, but he was unavailable. Eventually she was successful in setting up the meeting. J.L. did not go to the meeting, but the police did and arrested defendant. The following day she identified defendant in a lineup.\nJ.L. went to MacNeal Hospital on October 9, 2002, for a medical examination. She testified that she waited nine hours but was not examined. She returned the following day and was examined. Results of the examination were normal and neither confirmed nor excluded the possibility that J.L. had been assaulted. J.L. had no bruises, marks or scratches on her body after the incident and her clothes were not stained or torn.\nDetective Tardi also testified for the State, and he confirmed J.L.\u2019s account of their attempts to contact defendant via the CB radio. On October 9, after J.L. had set up a meeting, police saw a man riding a bicycle in the meeting area at the appointed time. The man, identified in court as defendant, matched the description J.L. had earlier given to police. Officers approached and arrested him.\nThe parties stipulated to the ages of J.L. (13) and Delgado (26) at the time of the incident. The defense did not present any evidence at trial.\nThe jury found defendant not guilty of criminal sexual assault but guilty of aggravated criminal sexual abuse. The trial court sentenced defendant to 4 years in prison, found he was entitled to 363 days of sentencing credit, and assessed fines, costs and fees totaling $719.\nANALYSIS\nI\nDefendant\u2019s first contention on appeal is that the State failed to prove him guilty beyond a reasonable doubt because there was no physical evidence of any sexual conduct and the complainant\u2019s inconsistent and improbable testimony was overshadowed by her motive to lie.\nWhen reviewing a conviction to determine whether the prosecution has satisfied the reasonable doubt standard, the court must determine \u201cwhether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.\u201d (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2788-89 (1979). The Jackson standard applies in all criminal cases, regardless of the nature of the evidence. People v. Pollock, 202 Ill. 2d 189, 217 (2002). \u201cIn conducting this inquiry, the reviewing court must not retry the defendant.\u201d People v. Cunningham, 212 Ill. 2d 274, 279 (2004). Rather, the reviewing court must examine the record, keeping in mind that it was the trier of fact who saw and heard the witness. Cunningham, 212 Ill. 2d at 280. Testimony may be found insufficient under the Jackson standard only where it is clear from the record that no reasonable person could accept it beyond a reasonable doubt. Cunningham, 212 Ill. 2d at 280.\nDefendant relies on People v. Ford, 195 Ill. App. 3d 673, 675 (1990), for the proposition that the testimony of a single witness is not sufficient to support a conviction if the testimony is either vague or doubtful; however, Ford dealt narrowly with identification of an accused, not with witness testimony generally. In People v. Smith, 185 Ill. 2d 532, 541 (1999), the court recognized that the testimony of a single witness, if credible, is sufficient to convict. Moreover, it is well settled that a lack of physical evidence does not establish that a sexual assault did not occur. People v. Shum, 117 Ill. 2d 317, 356 (1987).\nWhere a conviction is based upon testimony that is \u201cimprobable, unconvincing and contrary to human experience,\u201d however, the conviction must be reversed. People v. Vasquez, 233 Ill. App. 3d 517, 527 (1992). In Smith, the Illinois Supreme Court reversed a murder conviction where the only witness to link the defendant to the crime was contradicted at trial by other witnesses and was repeatedly impeached by inconsistent statements made five months before trial. Smith, 185 Ill. 2d at 545.\nIn the instant case, there are several inconsistencies in the complainant\u2019s testimony, including her failure to recall how she and defendant ended up on the ground and her inability to recall what the defendant used to wipe off her stomach. There was no physical evidence corroborating the sexual assault because J.L. waited for three days before she told the police defendant sexually assaulted her. Moreover, she was not medically examined until six days after the assault. J.L. had no bruises, marks or scratches on her body, her clothes were not stained or torn and the medical examination neither confirmed nor excluded the sexual assault.\nDefendant argues that the complainant had a motive to lie, as she was no longer in trouble with her mother once she said that she had been sexually assaulted. Defendant further claims that the lack of physical evidence raises a reasonable doubt as to his guilt.\nInconsistencies in the complainant\u2019s recollection of the incident \u2014 as well as her failure to call for help \u2014 are not necessarily contrary to human experience. J.L. was a 13-year-old, 4-foot-9-inch girl, whereas defendant was 26 years old and stood 5 feet 11 inches. The assault occurred late at night in a deserted park and J.L. testified she was crying and scared. Although J.L. testified on cross-examination that she was no longer in trouble when she told her mother she had been raped, she also testified that, prior to telling her mother what had happened, she was scared: \u201cI was scared. Because I didn\u2019t know what he was going to do. And, I didn\u2019t know what my mother was going to do, so I just kept quiet.\u201d Thus, the delay by J.L. in reporting the incident was explained by her fear that it would only aggravate her problems with her mother.\nFinally, the lack of physical evidence is consistent with the fact that J.L. waited several days before going to the hospital to have an examination. We are mindful that defendant\u2019s conviction rested solely on the testimony of the complainant and her testimony was inconsistent on some points. We are also mindful that the jury found defendant not guilty of criminal sexual assault, despite the fact that J.L. testified defendant committed an act of sexual penetration. The evidence in this case is closely balanced. However, viewed as a whole the testimony of J.L. was not so improbable, unconvincing or contrary to human experience that we can say, as a matter of law, no reasonable jury could have found the defendant guilty beyond a reasonable doubt of aggravated criminal sexual abuse. We find the evidence was sufficient to convict defendant beyond a reasonable doubt, thereby precluding any double jeopardy claim on remand. People v. Taylor, 76 Ill. 2d 289, 309 (1979).\nII\nIn the alternative, defendant seeks a new trial. He contends the trial court, by not giving any instruction defining \u201csexual conduct,\u201d failed to properly instruct the jury on a key element of the crime of aggravated criminal sexual abuse, thereby depriving defendant of a fair trial.\nWhether the trial court failed to properly instruct the jury is a question of law subject to de novo review. People v. Reddick, 123 Ill. 2d 184, 196-200 (1988). The State responds the defendant\u2019s claim is waived and contends omission of the jury instruction was not plain error because it did not create a serious risk that jurors wrongly convicted the defendant. The Illinois Supreme Court directed this court in a supervisory order (People v. Delgado, 223 Ill. 2d 645 (2007)) to vacate our previous opinion (People v. Delgado, 368 Ill. App. 3d 985 (2006)) and reconsider under a plain error analysis.\nThe Illinois Supreme Court addressed the issue of plain error in the context of jury instruction in People v. Herron, 215 Ill. 2d 167 (2005). We find Herron instructive. The court in Herron recognized when a defendant does not object to a jury instruction or offer an alternative instruction at trial and does not raise the instruction issue in a posttrial motion, then generally he forfeits review of jury instruction error. People v. Herron, 215 Ill. 2d 167, 175 (2005) (and cases cited therein). After recognizing the above general rule of forfeiture, the Illinois Supreme Court in Herron discussed plain error exceptions to the general forfeiture rule as follows:\n\u201cSupreme Court Rule 451(c), however, provides that \u2018substantial defects\u2019 in criminal jury instructions \u2018are not waived by failure to make timely objections thereto if the interests of justice require.\u2019 177 Ill. 2d R. 451(c). Rule 451(c) crafts a limited exception to the general rule to correct \u2018grave errors\u2019 and errors in cases \u2018so factually close that fundamental fairness requires that the jury be properly instructed.\u2019 [Citations.] Rule 451(c) is coextensive with the \u2018plain error\u2019 clause of Supreme Court Rule 615(a), and we construe these rules \u2018identically.\u2019 [Citation.] Rule 615(a) provides: \u2018Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded. Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u2019 134 Ill. 2d R. 615(a).\u201d Herron, 215 Ill. 2d at 175-76.\nThe court in Herron noted that the plain error doctrine allows review of a forfeited error affecting substantial rights under certain circumstances and concluded as follows:\n\u201c[T]he plain-error doctrine bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved error when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of the evidence. In the first instance, the defendant must prove \u2018prejudicial error.\u2019 That is, the defendant must show both that there was plain error and that the evidence was so closely balanced that the error alone severely threatened to tip the scales of justice against him. The State, of course, can respond by arguing that the evidence was not closely balanced, but rather strongly weighted against the defendant. In the second instance, the defendant must prove there was plain error and that the error was so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process. [Citation.] Prejudice to the defendant is presumed because of the importance of the right involved, \u2018regardless of the strength of the evidence.\u2019 (Emphasis in original.) [Citation.] In both instances, the burden of persuasion remains with the defendant.\u201d Herron, 215 Ill. 2d at 186-87.\nThe Herron court went on to note that, \u201c[i]n Illinois, the closely balanced evidence prong of the plain-error test guards against errors that could lead to the conviction of an innocent person [citation], while the substantial rights prong guards against errors that erode the integrity of the judicial process and undermine the fairness of the defendant\u2019s trial [citations].\u201d Herron, 215 Ill. 2d at 186.\nThe Illinois Supreme Court recently in People v. Piatkowski, 225 Ill. 2d 551 (2007), applied the principles articulated in Herron regarding the plain error doctrine where the error involved jury instructions. The court in Piatkowski noted:\n\u201c[T]he plain-error doctrine allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant\u2019s trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence.\u201d Piatkowski, 225 Ill. 2d at 565, citing Herron, 215 Ill. 2d at 186-87.\nThe court in Piatkowski also noted that the word \u201cplain\u201d is not used as a term of art, but is synonymous with \u201cclear\u201d and \u201cobvious,\u201d and defendant is not required to satisfy the plain error test before determining whether the evidence in the case is closely balanced. Piatkowski, 225 Ill. 2d at 565.\nApplying the plain error test as articulated in Herron and reiterated in Piatkowski, we first determine whether error occurred. Specifically, did the trial court, by not giving any instruction defining \u201csexual conduct,\u201d fail to properly instruct the jury on a key element of the crime of aggravated criminal sexual abuse?\nIn Illinois, the burden of preparing jury instructions is primarily on the parties (People v. Underwood, 72 Ill. 2d 124, 129 (1978)), and the failure to offer an instruction or an objection to an instruction at trial will usually waive the issue on review (People v. Huckstead, 91 Ill. 2d 536, 543 (1982); 155 Ill. 2d R. 366). However, in a criminal case the trial court is responsible for fully instructing the jury on the elements of the offense, the burden of proof and the presumption of innocence. People v. Williams, 181 Ill. 2d 297, 318 (1998). Where the instruction error was in a definition essential to the jury\u2019s assessment of the defendant\u2019s guilt or innocence, however, it is reversible error, and the defendant is entitled to a new trial. People v. Stromblad, 74 Ill. 2d 35, 41 (1978).\n\u201cThe purpose of jury instructions is to provide the jury with correct legal principals [to] apply to the evidence, thus enabling the jury to reach a proper conclusion based on the applicable law and the evidence presented.\u201d People v. Jackson, 331 Ill. App. 3d 279, 290 (2002), citing People v. Novak, 163 Ill. 2d 93, 115-16 (1994). As recognized by the court in Herron: \u201cThe function of jury instructions is to convey to the jury the law that applies to the evidence presented. [Citation.] Jury instructions should not be misleading or confusing [citation], but their correctness depends upon not whether defense counsel can imagine a problematic meaning, but whether ordinary persons acting as jurors would fail to understand them [citation].\u201d Herron, 215 Ill. 2d 167, 187-88 (2005).\nWe are mindful that where a word or phrase is self-defining or commonly understood, the trial court\u2019s failure to define the term during jury instructions is not reversible error. See, e.g., People v. Edwards, 343 Ill. App. 3d 1168, 1180 (2003) (instruction was not necessary to define \u201crobbery\u201d); People v. Manning, 334 Ill. App. 3d 882, 890 (2002) (no error where trial court did not define \u201cconceal\u201d); People v. Bradley, 192 Ill. App. 3d 387, 393-94 (1989) (term \u201cstolen motor vehicle\u201d was readily understood and not in need of further definition via instruction). But \u201c[w]henever Illinois Pattern Jury Instructions, Criminal (4th ed. 2000) (IPI Criminal 4th), contains an instruction applicable in a criminal case, giving due consideration to the facts and the governing law, and the court determines that the jury should be instructed on the subject, the IPI Criminal 4th instruction shall be used, unless the court determines that it does not accurately state the law.\u201d (Emphasis added.) 210 Ill. 2d R. 451(a).\nIn the instant case, defendant was tried on one count of criminal sexual assault and one count of aggravated criminal sexual abuse. Under Illinois law, a person can commit criminal sexual assault and aggravated criminal sexual abuse in a variety of ways. The two propositions of law which guide the instant case are as follows: First, an accused is guilty of criminal sexual assault when he \u201ccommits an act of sexual penetration by the use of force or threat of force.\u201d (Emphasis added.) 720 ILCS 5/12 \u2014 13(a)(1) (West 2004). Second, an accused is guilty of aggravated criminal sexual abuse when he \u201ccommits an act of sexual conduct with a victim who was at least 13 years of age but under 17 years of age when the act was committed and the accused used force or threat of force to commit the act.\u201d 720 ILCS 5/12\u2014 16(c)(1)(ii) (West 2004).\nThe Illinois Criminal Code of 1961 further defines \u201csexual conduct\u201d as:\n\u201c[A]ny intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, or any transfer or transmission of semen by the accused upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or the accused.\u201d 720 ILCS 5/12 \u2014 12(e) (West 2004).\nAlthough the jury was instructed on the definitions of criminal sexual assault and aggravated criminal sexual abuse, it was not instructed on the legal definition of \u201csexual conduct.\u201d As previously noted, the jury in the instant case found defendant not guilty of criminal sexual assault, which was correctly defined by the jury instructions as an act of sexual penetration by use of force or threat of force. However, the jury found defendant guilty of aggravated criminal sexual abuse, but had no instruction defining sexual conduct as charged in the indictment as defendant\u2019s transmission of semen onto J.L.\u2019s body.\nThe defendant was charged with aggravated criminal sexual abuse as follows:\n\u201cRobert Delgado committed the offense of aggravated criminal sexual abuse in that he, being at least 5 years older than [J.L.], committed an act of sexual conduct upon [J.L.], to wit: Robert Delgado\u2019s transmission of semen onto [J.L.\u2019s] stomach, for the purpose of sexual gratification or arousal of Robert Delgado, and [J.L.] was a person at least thirteen years of age but under seventeen years of age when the act was committed in violation of Chapter 720, Act 5, Section 12 \u2014 16(d) of the Illinois [C]ompiled Statutes 1992.\u201d\nAs reflected by the language of the indictment, defendant was charged with aggravated criminal sexual abuse in that he committed an act of sexual conduct by the transmission of semen onto J.L.\u2019s stomach. While that conduct, transmission of semen, is included in the Criminal Code\u2019s definition of \u201csexual conduct\u201d under section 12 \u2014 12(e) (720 ILCS 5/12 \u2014 12(e) (West 2004)), it is not included in the Illinois Pattern Jury Instruction that defines \u201csexual conduct\u201d or in any of the jury instructions given to the jury in the instant case. IPI Criminal 4th No. 11.65D states:\n\u201cThe term \u2018sexual conduct\u2019 means any intentional or knowing touching or fondling by [(the victim) (the accused)], either directly or through the clothing, of [(the sex organ) (anus) (breast)] of [(the victim) (the accused)] [any part of the body of a child under 13 years of age], for the purpose of sexual gratification or arousal of the victim or the accused.\u201d\nAs reflected by the above Illinois Pattern Jury Instruction, nowhere is transmission of semen included in the instruction\u2019s definition of sexual conduct. The pattern instruction fails to correctly state the law as applied to the facts of the instant case in which the State charged defendant with committing an act of sexual conduct upon J.L. by the transmission of semen onto J.L.\u2019s stomach. The jury in the instant case received no instruction defining sexual conduct despite the fact that such conduct is defined, albeit incompletely, in the Illinois Pattern Jury Instructions (IPI Criminal 4th No. 11.65D). Moreover, despite the fact that transmission of semen is included in the Criminal Code\u2019s definition of sexual conduct and in the indictment in the instant case, the jury received no instruction defining sexual conduct as transmission of semen by defendant onto the body of J.L.\nWe reject the State\u2019s argument that the term \u201csexual conduct\u201d is self-defining. Rather, the error in the instruction went to a fundamental issue that prevented the jury from properly determining if the defendant was guilty of the crime charged. The jury in the instant case did not receive a definition of a critical element of the offense. See Stromblad, 74 Ill. 2d at 41 (finding reversible error for failure to properly define \u201cobscenity\u201d in jury instructions). As such, the jury instructions were misleading or confusing, causing ordinary persons acting as jurors in the instant case to fail to understand them. See Herron, 215 Ill. 2d at 187-88. (\u201cThe function of jury instructions is to convey to the jury the law that applies to the evidence presented. [Citation.] Jury instructions should not be misleading or confusing [citation], but their correctness depends upon not whether defense counsel can imagine a problematic meaning, but whether ordinary persons acting as jurors would fail to understand them [citation]\u201d).\nThe Illinois Supreme Court has recognized that \u201csexual conduct\u201d is a specific type of conduct different from \u201csexual penetration,\u201d which requires contact between one person\u2019s sex organ and another person\u2019s sex organ, mouth, or anus. People v. Novak, 163 Ill. 2d 93, 115 (1994). \u201cSexual conduct\u201d as defined by the Criminal Code (720 ILCS 5/12\u2014 12(e) (West 2004)) requires the touching or fondling of specific parts of the body or the transfer of semen onto another person\u2019s body. We note the authors of the pattern jury instructions chose to include the definition of \u201csexual conduct\u201d in the instructions. However, the definition provided in the pattern jury instructions was incomplete and omitted the statutory language contained in the Criminal Code including \u201cthe transfer of semen onto another person\u2019s body\u201d as \u201csexual conduct.\u201d 720 ILCS 5/12 \u2014 12(e) (West 2004). Although the definition is incomplete as it appears in the pattern jury instruction, the choice to include the definition of \u201csexual conduct\u201d in the instructions further undermines the State\u2019s argument that the term is self-defining and demonstrates recognition by those who authored the instruction of the need to define \u201csexual conduct.\u201d\nIn the instant case, the jury was given no definition of \u201csexual conduct.\u201d Without the complete and accurate definition of \u201csexual conduct\u201d the instructions given were ambiguous and misleading. For the reasons previously discussed, the failure to properly define \u201csexual conduct\u201d was clear and obvious error.\nDetermining that the failure to give the jury any instruction defining \u201csexual conduct\u201d was a clear and obvious error, we must next determine whether defendant met his burden to show the error was prejudicial. Herron, 215 Ill. 2d at 193. Specifically, did defendant show the evidence presented by the State against defendant rendered the evidence \u201cclosely balanced\u201d? Whether the evidence is closely balanced is a question separate and distinct from whether the evidence is sufficient to sustain a conviction on review against a reasonable doubt challenge. For the reasons previously discussed, we find the evidence sufficient to convict for reasonable doubt purposes. However, at this point in our analysis the issue under the plain error review is whether the evidence is closely balanced.\nAs to whether the evidence is closely balanced, we begin by noting there were several inconsistencies in J.L.\u2019s testimony. She failed to recall how she and defendant ended up on the ground and she was unable to recall what defendant used to wipe off her stomach. Moreover, J.L. originally told police defendant did not touch her, but changed her story three days later and complained of sexual assault. She was not medically examined until six days after the assault. There was no physical evidence corroborating her version of what happened and no physical evidence of any sexual conduct. Further, as pointed out by defendant, J.L. arguably had a motive to he, as she was no longer in trouble with her mother once she said that she had been sexually assaulted. J.L. had left the house without her mother knowing and without her mother\u2019s permission. Her mother was angry with her and called the police. She admitted at trial that she was in trouble with her mother and admitted that the trouble ended when after three days she told her mother she had been raped.\nThe jury found the defendant not guilty of criminal sexual assault, but guilty of aggravated criminal sexual abuse. The instruction error occurred in the context of a definition essential to the jury\u2019s assessment of guilt or innocence of the charge of aggravated criminal sexual abuse. Moreover, the error was serious and denied defendant a substantial right, and thus a fair trial. See People v. Stromblad, 74 Ill. 2d 35, 41 (1978) (where instruction error is in a definition essential to the jury\u2019s assessment of defendant\u2019s guilt or innocence, it is reversible error, and requires a new trial); People v. Hurtado-Rodriguez, 326 Ill. App. 3d 76, 86 (2001) (finding plain error where jury instructed with outdated pattern instruction that incompletely defined the offense of harassment of a witness); People v. Ogunsola, 87 Ill. 2d 216, 222-23 (1981) (finding plain error where jury instructions incompletely defined offense of deceptive practice). We believe the defendant has met his burden to show that the evidence was so closely balanced that the error threatened to tip the scales of justice against defendant. See Piatkowski, 225 Ill. 2d at 565.\nThe State contends the error was harmless beyond a reasonable doubt. In the instant case, the jury, without a definition of \u201csexual conduct,\u201d was not properly informed as to what under the law constituted sexual conduct. The jury could have interpreted \u201csexual conduct\u201d to include any conduct that was sexual in nature. However, defendant was not charged with any conduct that was sexual in nature; rather, he was charged with sexual conduct by transfer of semen onto the body of J.L. Specifically the language of the indictment provided as follows:\n\u201cRobert Delgado committed the offense of aggravated criminal sexual abuse in that he, being at least 5 years older than [J.L.], committed an act of sexual conduct upon [J.L.], to wit: Robert Delgado\u2019s transmission of semen onto [J.L.\u2019s] stomach, for the purpose of sexual gratification or arousal of Robert Delgado, and [J.L.] was a person at least thirteen years of age but under seventeen years of age when the act was committed in violation of Chapter 720, Act 5, Section 12 \u2014 16(d) of the Illinois [C]ompiled Statutes 1992.\u201d\nAs previously noted, the crime of aggravated criminal sexual abuse occurs when a person commits an act of sexual conduct, which, under the Criminal Code, requires the touching or fondling of specific parts of the body or the transfer of semen onto another person\u2019s body. 720 ILCS 5/12 \u2014 12(e) (West 2004). In the instant case, the sexual conduct defendant was charged with required the State to prove transmission of semen by defendant onto J.L.\u2019s body. However, the record reflects there was no physical evidence of such transmission and no physical evidence corroborating the sexual assault, which J.L. did not report for three days. The only evidence of the transmission of semen was J.L.\u2019s testimony, which, as previously noted, was at times inconsistent and was rejected by the jury in the context of the sexual penetration charge. J.L. testified she felt \u201csomething warm\u201d on her stomach, but she also testified she did not see defendant ejaculate and did not see what he used to wipe her stomach.\nThe jury, after considering all the evidence including the testimony of J.L., found the defendant not guilty of criminal sexual assault but guilty of aggravated criminal sexual abuse. That verdict reflects that the jury found the State failed to prove defendant guilty beyond a reasonable doubt of criminal sexual assault despite the testimony of J.L. that defendant committed an act of sexual penetration. The jury was instructed that in order to sustain the charge of criminal sexual assault, the State had to prove defendant committed an act of sexual penetration. Following that instruction the jury found the State failed to prove sexual penetration. It is presumed on appeal that the jury followed the trial court\u2019s instructions. People v. Jackson, 145 Ill. App. 3d 626, 646 (1986).\nHowever, the jury was never instructed the State had to prove transmission of semen by defendant onto the body of J.L. in order to sustain the charge of aggravated criminal sexual abuse. We reject the State\u2019s argument that the instruction error was harmless beyond a reasonable doubt. Considering the closely balanced evidence, we cannot conclude the result of the trial would not have been different had the jury been properly instructed. People v. Johnson, 146 Ill. 2d 109, 136 (1991) (an error in a jury instruction is harmless if it is demonstrated that the result of the trial would not have been different had the jury been properly instructed).\nThe record in the instant case, with the instructions that failed to accurately define sexual conduct, reflects the jury could have concluded any conduct sexual in nature was in fact sexual abuse. Considering the closely balanced evidence, without the accurate instruction defining sexual conduct, we cannot conclude the jury did not find defendant guilty of aggravated criminal sexual abuse simply because conduct of some type of a sexual nature occurred between J.L. and defendant. However, defendant was not charged with conduct of some type of a sexual nature; rather, he was charged with sexual conduct by transmission of semen onto J.L.\u2019s stomach. The State was not required to prove conduct of some type of sexual nature occurred between defendant and J.L. Rather, to sustain the charge of aggravated criminal sexual abuse, as charged in the instant case, the State was required to prove beyond a reasonable doubt the transmission of semen by defendant onto J.L.\u2019s body. The jury was not so instructed. The jury was never instructed that in order to find the defendant guilty beyond a reasonable doubt of aggravated criminal sexual abuse, the State was required to prove transmission of semen by defendant onto J.L.\u2019s body.\nWe are mindful that \u201c|j]ury instructions will not amount to harmless error if they incorrectly advise the jury as to an essential element of the crime.\u201d People v. Smith, 295 Ill. App. 3d 405, 411 (1998), citing Stromblad, 74 Ill. 2d at 41. \u201cSexual conduct\u201d is an essential element of the crime of aggravated criminal sexual abuse. The jury was not correctly instructed as to the meaning of sexual conduct as charged against defendant in the instant case. Giving due consideration to the facts and the applicable law, we find that fundamental fairness requires that the jury be properly instructed. For the reasons previously discussed, we reject the State\u2019s harmless error argument. Upon retrial, based on the factual context together with the charging documents and consistent with the Criminal Code definition of sexual conduct, the jury should receive an instruction tailored to the factual context of the instant case defining sexual conduct using the language from IPI Criminal 4th No. 11.65D with the added language including transmission of semen as follows:\n\u201cThe term \u2018sexual conduct\u2019 means any intentional or knowing touching or fondling by [(the victim) (the accused)], either directly or through the clothing, of [(the sex organ) (anus) (breast)] of [(the victim) (the accused)] [any part of the body of a child under 13 years of age], or any transfer or transmission of semen by the accused upon any part of the clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the victim or the accused.\u201d\nAn instruction based on the factual context of the instant case using the applicable language from the above instruction will more completely and accurately reflect \u201csexual conduct\u201d as defined under Illinois law by section 12 \u2014 12(e) (720 ILCS 5/12 \u2014 12(e) (West 2004)) and as charged in the instant case.\nFor the reasons previously discussed, the defendant satisfied his burden of proving the plain error exception to the general forfeiture rule. The failure to instruct the jury with an accurate and complete definition of sexual conduct was a clear and obvious error and the evidence was so closely balanced that the error threatened to tip the scales of justice against defendant. Moreover, regardless of the closeness of the evidence, the error undermined the fairness of defendant\u2019s trial and challenged the integrity of the judicial process. Accordingly, we reverse the judgment of the circuit court and remand for proceedings consistent with this opinion.\nIll\nDefendant\u2019s third contention on appeal is that he is entitled to a $5-per-day credit against his fines for the time he spent in custody awaiting trial. Although the legislature amended the statute that provides for the $5-per-day credit prior to defendant\u2019s sentencing, defendant argues that he can elect to be sentenced under either the law in effect on the date of the offense or the law in effect on the date of sentencing.\nUnder Illinois law, \u201c[a]ny person incarcerated on a bailable offense *** and against whom a fine is levied on conviction of such offense shall be allowed a credit of $5 for each day so incarcerated ***. However, in no case shall the amount so allowed or credited exceed the amount of the fine.\u201d 725 ILCS 5/110 \u2014 14(a) (West 2004). Subsection (b), which became effective July 9, 2004, provides that the $5-per-day credit is not available to a defendant who is incarcerated for sexual assault, as that term is defined in section 5 \u2014 9\u20141.7 of the Unified Code of Corrections (730 ILCS 5/5 \u2014 9\u20141.7 (West 2004)). Section 5 \u2014 9\u20141.7 defines \u201csexual assault\u201d broadly to include, inter alia, aggravated criminal sexual abuse. 730 ILCS 5/5 \u2014 9\u20141.7 (West 2004).\nWe recognize that \u201cwhere a defendant has been charged with an offense which was amended subsequent to the commission of the offense, but prior to sentencing, he may elect to be sentenced under the law in effect at the time of the offense or the law in effect at the time of the sentencing.\u201d People v. Sias, 91 Ill. App. 3d 1095, 1101 (1980).\nIn the instant case, the law in effect on the date of the offense provided that defendant was entitled to a $5-per-day credit against any fines assessed upon conviction for the offense. Defendant ultimately spent 363 days incarcerated while awaiting trial. Under the law in effect on the date of the offense, the defendant is entitled to credit up to $1,815 toward any fine assessed, provided that the credit does not exceed the fine. Defendant was fined a total of $719; accordingly, he is entitled to credit for the entire sum.\nIV\nFinally, defendant claims the trial court erred when it imposed a $20 penalty for the Violent Crime Victims Assistance Fund and asks this court to vacate the penalty. The State agrees that the fine was improperly imposed. Accordingly, the $20 penalty is vacated.\nCONCLUSION\nFor the reasons previously discussed, we order defendant\u2019s mittimus be amended to reflect a $5-per-day credit against his fines. We further order defendant\u2019s mittimus to be amended to vacate the $20 fine to the Violent Crime Victims Assistance Fund. We reverse defendant\u2019s conviction for aggravated criminal sexual abuse. We remand for retrial consistent with this opinion. There is no double jeopardy problem because the record reflects sufficient evidence proving defendant guilty beyond a reasonable doubt. People v. Taylor, 76 Ill. 2d 289, 309 (1979).\nReversed and remanded.\nTULLY and O\u2019BRIEN, JJ., concur.", "type": "majority", "author": "JUSTICE O\u2019HARA FROSSARD" } ], "attorneys": [ "Michael J. Pelletier and Christopher Kopacz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Tasha-Marie Kelly, and Jackie Thursby-Elvekrog, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT DELGADO, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 05\u20141592\nOpinion filed September 7, 2007.\nMichael J. Pelletier and Christopher Kopacz, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (James E. Fitzgerald, Tasha-Marie Kelly, and Jackie Thursby-Elvekrog, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0307-01", "first_page_order": 325, "last_page_order": 340 }