                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Lloyd, 2011 IL App (4th) 100094




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    TERRY LLOYD, Defendant-Appellant.



District & No.             Fourth District
                           Docket No. 4-10-0094


Argued                     June 7, 2011
Filed                      November 16, 2011


Held                       Defendant’s conviction and sentence on the first count of an indictment
(Note: This syllabus       charging seven counts of criminal sexual assault was reversed on the
constitutes no part of     ground that the evidence of intrusion was not clear and the cause was
the opinion of the court   remanded for a new trial on that count, but the convictions on the six
but has been prepared      other counts were affirmed where the evidence was sufficient to prove
by the Reporter of         beyond a reasonable doubt that defendant knew the 13-year-old victim
Decisions for the          was unable to give consent to defendant’s conduct.
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of McLean County, No. 09-CF-16; the
Review                     Hon. Charles G. Reynard, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded with directions.
Counsel on                  Michael J. Pelletier, Karen Munoz, and Ryan R. Wilson (argued), all of
Appeal                      State Appellate Defender’s Office, of Springfield, for appellant.

                            William A. Yoder, State’s Attorney of Bloomington (Patrick Delfino,
                            Robert J. Biderman and Luke McNeill (argued), all of State’s Attorneys
                            Appellate Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE TURNER delivered the judgment of the court, with opinion.
                            Justice Pope concurred in the judgment and opinion.
                            Justice Steigmann dissented, with opinion.




                                              OPINION

¶1          In January 2009, a grand jury indicted defendant, Terry Lloyd, with seven counts of
        criminal sexual assault under section 12-13(a)(2) of the Criminal Code of 1961 (Criminal
        Code) (720 ILCS 5/12-13(a)(2) (West 2008)). Following a July 2009 trial, a jury found
        defendant guilty of all seven counts. Defendant filed a motion for a new trial. At a joint
        November 2009 hearing, the McLean County circuit court denied defendant’s posttrial
        motion and sentenced him to an aggregate 44 years in prison. Defendant filed a motion to
        reconsider his sentence, which the court denied in January 2010.
¶2          Defendant appeals his conviction, asserting (1) the State’s evidence is insufficient to
        prove beyond a reasonable doubt defendant knew the victim, P.V., was unable to understand
        the nature of the charged act or give knowing consent to those acts, and (2) his convictions
        on four of the seven counts must be vacated where the acts pleaded in those counts do not
        constitute “sexual penetration” as defined for the jury. We affirm in part, reverse in part, and
        remand the cause with directions.

¶3                                      I. BACKGROUND
¶4                                     A. The State’s Charges
¶5          The grand jury’s seven indictments all asserted defendant committed criminal sexual
        assault under section 12-13(a)(2) of the Criminal Code (720 ILCS 5/12-13(a)(2) (West
        2008)), which is violated when a person “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.” The indictments alleged the acts were committed between
        September 1, 2008, and January 7, 2009, and stated P.V. was both “unable to understand the
        nature of the act or give knowing consent.” Additionally, counts I, III, V, and VII alleged the
        penetration involved defendant’s hand and P.V.’s vagina; and counts II, IV, and VI alleged

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       the penetration involved defendant’s mouth and P.V.’s vagina.

¶6                                        B. Trial Evidence
¶7         The State presented the following evidence in support of its charges at defendant’s July
       2009 trial.
¶8         P.V., born February 28, 1995, testified that, when she was 13 years old, she and her
       mother returned home to find defendant’s van parked in their driveway. Defendant was in
       the van with P.V.’s aunt, Brenda Phelps. P.V. had known defendant her whole life as he was
       a long-time family friend. P.V. got into the van and sat behind Brenda. Shortly thereafter,
       defendant reclined his seat and began rubbing P.V.’s leg and “private part.” P.V. moved
       defendant’s hand once, but when he put his hand back on her leg, she decided to “just let it
       be.” Brenda then exited the van. (Brenda acknowledged during her testimony that she had
       a conviction for “permitting the sexual abuse of a minor” in McLean County case No. 97-CF-
       448.)
¶9         Defendant told P.V. she was “beautiful” and “sexy.” P.V. responded by laughing,
       thinking defendant was joking. Defendant resumed rubbing P.V.’s leg and rubbing her
       “private part” over her underwear. Defendant then placed his hand into P.V.’s underwear.
       He touched the part of her private area that “has the hole” and moved his finger up and down
       in that area. Defendant stopped touching her when she said “[s]omebody’s coming” after a
       light came on in the house.
¶ 10       A week or two later, defendant was at P.V.’s house, and P.V. asked Brenda and
       defendant if she could listen to music in defendant’s van. Defendant gave her the keys to the
       van, and she alone went out to the van. Shortly thereafter, defendant came out and joined
       P.V. in the van. Defendant asked P.V. whether she enjoyed herself the “last time” and told
       her that she was beautiful. Defendant then began touching P.V.’s leg and clothing above
       what P.V. described as her “private.” Defendant then told P.V. that she had “too much
       clothes on.” P.V., thinking defendant wanted to do “the same thing that he did the last time,”
       walked into the house, changed clothes, and returned to the van. Defendant did not have to
       ask P.V. to take off her clothes because P.V. “already kinda [sic] knew what [she] was
       supposed to do.” P.V. explained the reason she returned to the van, as follows:
           “[W]ell, in a sense, I was scared, but then, like, I didn’t really–I don’t know. I kind of
           thought it was, like, right at the time, because, like, I don’t really talk or hang around
           people that are my age. I usually hang out with my sister’s friends, and my sister’s 16
           now, but she was 15 at the time. They’re always talking about, like, the stuff that they’ve
           done and stuff, and so I just kind of figured that maybe that’s what they were talking
           about, so I kind of–I guess in a way, I went along with it ‘cause I thought that I was
           supposed to do, like, the same thing, because I didn’t really, like, express it, I guess, in
           a way.”
¶ 11       P.V. moved to the back of the van and pulled her sweatpants down. Defendant began
       rubbing her “private part on top of [her] underwear.” After that, he placed his hand under her
       underwear and “put his fingers inside of [her] private.” At first, it was just one finger, but
       later it was two fingers. Defendant moved his hand under P.V.’s sports bra and then asked

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       P.V. if he could “taste it.” P.V. responded, “ ‘I don’t know,’ ” but then “agreed to it.”
       Defendant put his tongue on P.V.’s vagina. Defendant’s cellular telephone rang, and
       defendant stopped. Before P.V. got out of the van, defendant told her not to tell anyone. He
       also said “he’d get, like, 45 to life years.” P.V. promised that she would not tell because she
       did not “want to get anybody in trouble.”
¶ 12       Approximately two weeks later, P.V. was again listening to music in defendant’s van
       when defendant came out to join her. Defendant asked P.V. if she “wanted to do it again.”
       P.V. initially said no. However, defendant persisted and P.V. eventually agreed, telling
       defendant it was going to be the last time. Defendant began rubbing P.V.’s leg. Because P.V.
       was in a seat that could be seen through the window, she moved to the rear row of seats in
       the van. P.V. helped defendant pull her pants down. Defendant “put his fingers in [her]
       private, and then he had put his tongue on my private.” When defendant asked P.V. if she
       had ever “ ‘kissed a dick,’ ” P.V. responded she had not and did not want to. Defendant’s
       cellular telephone rang, and she got out of the van.
¶ 13       That same day, defendant called P.V. on her cellular telephone. He began the
       conversation by asking where she was, if anyone was around, and whether she could talk.
       Defendant then asked why she was acting weird around him. A few days later, defendant was
       at her house. After he left, defendant called P.V. on her cellular telephone to ask why she was
       acting weird again. Defendant again had started the conversation by asking where she was
       and if she could talk.
¶ 14       About a week later, defendant stopped at P.V.’s house, and Brenda asked defendant to
       take P.V. to the gas station to buy some potato chips. P.V. got into defendant’s van.
       Defendant drove away but did not go directly to the gas station. Instead, he drove out of town
       for what “felt like 30 minutes.” When defendant stopped the van, he told P.V. to get into the
       back of the van. Defendant pulled P.V.’s pants down and began rubbing her “private” and
       performing oral sex on her. Defendant put two of his fingers “inside of [her] private” and
       stated it “seemed like [she] could take *** good dick, or big dick.”
¶ 15       After that defendant asked P.V. “if he could put his private inside of [hers].” Concerned
       that defendant was actually going to try to penetrate her with his penis, P.V. told defendant
       she did not want him to do that. Defendant then proceeded to perform oral sex on P.V. for
       another 10 minutes. At that point, P.V. told defendant she wanted defendant to stop,
       explaining Brenda would wonder where they were. Defendant stopped, and they drove to the
       gas station before returning to P.V.’s home.
¶ 16       A few days later, P.V. told her sister about what defendant had done. The next day, P.V.
       told her mother, who contacted the police.
¶ 17       On cross-examination, P.V. testified she had attended sexual-education classes since
       sixth grade, where she received information about “good touches” and “bad touches.” P.V.
       “wanted to have the experience, just not with [defendant].”
¶ 18       Detective Michael Burns testified he met with P.V. at her mother’s request. After
       speaking to P.V., Burns met with defendant, whose birth date is February 28, 1966 (making
       him 42 years old at the time of the offenses). Defendant told Burns he listened to music in
       the van with P.V. but denied ever being alone with P.V. in the van or anywhere else.

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       Defendant also denied ever calling P.V. on her cellular telephone. However, telephone
       records admitted into evidence at trial showed someone using defendant’s cellular telephone
       had called P.V.’s cellular telephone twice.
¶ 19       Brenda testified she lived with P.V. and P.V.’s mother, Brenda’s sister, when defendant
       was taking advantage of P.V. At the time of trial, Brenda was married to defendant’s half-
       brother. Brenda recalled several occasions in which defendant had been alone with P.V.,
       including the time P.V. left with defendant to retrieve the potato chips from the gas station.
       Defendant and P.V. were gone “longer than what [she] expected [them] to be.”
¶ 20       Defendant chose not to present any evidence in his defense.
¶ 21       After the case went to deliberations, the jury asked the following two questions:
               “(1) Does contact with the sex organ through clothing constitute sexual penetration?
               (2) How much of the body (the pubic area) is considered part of the sex organ[?]”
       In response to the questions, the trial court gave the jury the following remarks:
               “In response to Question #1, be advised you have the instructions of law concerning
           the definition of sexual penetration. No further definition can be provided to you.
               In response to Question #2, you are further instructed: The female ‘sex organ’ is not
           limited to the vagina but also includes the labia majora and labia minora, the outer and
           inner folds of skin of the external genital organs.”
       The court also gave some citations for its answer to the second question.

¶ 22                     C. The Jury’s Verdict and Defendant’s Sentence
¶ 23       On the aforementioned evidence, the jury convicted defendant of all seven counts of
       criminal sexual assault. In November 2009, the trial court sentenced defendant to (1) five
       years in prison on counts I and II, (2) six years in prison on counts III and IV, (3) seven years
       in prison on counts V and VI, and (4) eight years in prison on count VII. The court ordered
       all of the sentences to be served consecutively, for an aggregate sentence of 44 years in
       prison. Defendant filed a motion to reconsider his sentence, which the court denied on
       January 5, 2010.
¶ 24       On February 1, 2010, defendant filed a notice of appeal in compliance with Illinois
       Supreme Court Rule 606 (eff. Mar. 20, 2009). Thus, this court has jurisdiction under Illinois
       Supreme Court Rule 603 (eff. July 1, 1971).

¶ 25                                       II. ANALYSIS
¶ 26                              A. Sufficiency of the Evidence
¶ 27       Defendant first asserts the State failed to present any evidence establishing defendant
       knew P.V. was unable to understand the nature of the charged acts or give knowing consent
       to those acts as required by section 12-13(a)(2) of the Criminal Code. The State argues P.V.
       was unable to understand the nature of the charges and give knowing consent due to her
       youth and defendant knew that.
¶ 28       When presented with a challenge to the sufficiency of the evidence, a reviewing court’s

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       function is not to retry the defendant. People v. Givens, 237 Ill. 2d 311, 334, 934 N.E.2d 470,
       484 (2010). Rather, we consider “ ‘whether, 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.’ ” (Emphasis in original.) People v. Davison, 233
       Ill. 2d 30, 43, 906 N.E.2d 545, 553 (2009) (quoting Jackson v. Virginia, 443 U.S. 307, 319
       (1979)). Under that standard, a reviewing court must draw all reasonable inferences from the
       record in the prosecution’s favor. Davison, 233 Ill. 2d at 43, 906 N.E.2d at 553. Additionally,
       we note a reviewing court will not overturn a criminal conviction “unless the evidence is so
       improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.”
       Givens, 237 Ill. 2d at 334, 934 N.E.2d at 484.
¶ 29        Here, the grand jury charged defendant with criminal sexual assault under section 12-
       13(a)(2) of the Criminal Code, which states, in pertinent part, as follows:
                “(a) The accused commits criminal sexual assault if he or she:
                    ***
                    (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[.]” 720 ILCS 5/12-13(a)(2) (West 2008).
       In People v. Whitten, 269 Ill. App. 3d 1037, 1042-43, 647 N.E.2d 1062, 1066 (1995), the
       Fifth District explained the “accused knew that the victim was unable to understand the
       nature of the act or was unable to give knowing consent” language of section 12-13(a)(2) that
       is at issue in this appeal. The Whitten court stated the following:
            “The crime of criminal sexual assault is committed by the wrongful act of the accused,
            not the inability of the victim. There is nothing in the phrase ‘unable to give knowing
            consent’ that indicates that this phrase should be limited to those situations where a
            victim’s ability to understand is in question. The legislature clearly indicated in section
            12-13(a)(2) that there are two different ways to commit the crime; the first, of course, is
            to knowingly have sexual relations with someone who is unable to understand the nature
            of the act, while the second method is to knowingly have sexual relations with someone
            who, for any reason, is unable to give knowing consent. Courts should not automatically
            intertwine these two ways to violate the statute, so that we are left with only one type of
            victim, the severely developmentally disabled person. We should, therefore, consider all
            the evidence before the jury, including the accused’s perspective as to what he knew and
            when he knew it, in assessing the question of complainant’s consent.” (Emphasis added.)
            Whitten, 269 Ill. App. 3d at 1042-43, 647 N.E.2d at 1066.
¶ 30        Defendant cites the Second District’s People v. Fisher, 281 Ill. App. 3d 395, 403, 667
       N.E.2d 142, 147 (1996), where that court stated section 12-13(a)(2) “applies to situations
       where an otherwise normally competent person is rendered temporarily unable to give
       knowing consent.” Similarly, the dissent asserts section 12-13(a)(2) is limited to the victim’s
       inability to consent based on a mental condition. Infra ¶ 57. We disagree this section is
       limited to only those situations. Section 12-13(a)(2) places no limitation on the reason for
       the victim’s inability to understand the act or give knowing consent. If the legislature
       intended to limit the reasons to temporary conditions or mental conditions, it would have so

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       noted. It is not our job to create limitations. See People v. Woodard, 175 Ill. 2d 435, 443, 677
       N.E.2d 935, 939 (1997) (“Where an enactment is clear and unambiguous, the court is not free
       to depart from the plain language and meaning of the statute by reading into it exceptions,
       limitations, or conditions that the legislature did not express ***.”). As Justice Scalia has
       stated, “The only sure indication of what Congress intended is what Congress enacted ***.”
       Zuni Public School District No. 89 v. Department of Education, 550 U.S. 81, 122 (2007)
       (Scalia, J., dissenting, joined by Roberts, C.J., and Thomas, J.).
¶ 31       In this case, the issue on appeal can be addressed under the second method of proving the
       offense, “knowingly have sexual relations with someone who, for any reason, is unable to
       give knowing consent.” (Emphasis added.) Whitten, 269 Ill. App. 3d at 1042, 647 N.E.2d at
       1066. On appeal and at trial, the State asserted P.V. was unable to give knowing consent
       based on her young age. The concept that a person must attain a certain age to be able to give
       consent to sexual activities has deep legal roots. The American legal system adopted it from
       the English common law, which had codified it in 1275. Michelle Oberman, Turning Girls
       Into Women: Re-evaluating Modern Statutory Rape Law, 8 DePaul J. Health Care L. 109,
       119 (2004). The reasoning behind an age of consent is that young people lack maturity in
       judgment and the ability to comprehend the consequences of such activity. See Addison v.
       People, 193 Ill. 405, 417-18, 62 N.E. 235, 238 (1901) (per curiam); see also Russell L.
       Christopher & Kathryn H. Christopher, Adult Impersonation: Rape by Fraud as a Defense
       to Statutory Rape, 101 Nw. U. L. Rev. 75, 111-12 (2007). Thus, “[t]he age of consent fixed
       by a state represents a legislative judgment about the maturity of girls in matters of sex.” Beul
       v. ASSE International, Inc., 233 F.3d 441, 450 (7th Cir. 2000). The Illinois legislature has
       enacted several age-based criminal statutes addressing the offender’s age, the victim’s age,
       and the type of conduct, and those provisions show the age of consent in Illinois is generally
       17 (720 ILCS 5/12-15(c) (West 2008)) but, in a few instances, it is 18 (see, e.g., 720 ILCS
       5/12-13(a)(3) (West 2008)). See Doe v. Oberweis Dairy, 456 F.3d 704, 707 (7th Cir. 2006)
       (en banc).
¶ 32       The facts of this case highlight the reason behind the existence of the age of consent.
       While P.V. was curious about sexual activities and wanted to have the experiences her sister
       and her sister’s friends had, she felt weird and scared and did not want the experience to be
       with defendant. P.V. also testified she thought that she was supposed to do those things based
       on the conversations she heard between her sister and her sister’s friends. Her explanation
       of why she changed her clothes at defendant’s request shows a confused and inexperienced
       young teenager. P.V.’s immature thought process is highlighted by the fact she kept thinking
       it would not happen again. Moreover, the trial evidence showed on a couple of occasions she
       would initially tell defendant no to the activity he wanted to do but then would eventually
       allow him to do it after he persisted. Defendant, who was almost 30 years older than P.V.,
       was the one that started all of the advances.
¶ 33       The fact the legislature has enacted some age-based statutes eliminating the term
       “consent” does not mean the legislature sought to exclude the inability to consent based on
       age from section 12-13(a)(2). As stated, section 12-13(a)(2) contains no such limiting
       language. Moreover, section 12-13(a)(2) requires the State to prove the defendant knew the
       person was unable to consent, not simply the victim’s age. With the age-based crimes, the

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       State does not have to prove that fact. Moreover, because the State has to prove the accused
       knew the victim was unable to consent, it would be highly unlikely any sexual contact
       between two similarly aged teenagers under 17 or sex with a person almost 17 would be
       punishable under section 12-13(a)(2). Thus, we disagree with any suggestion the inability to
       consent based on age is excluded from section 12-13(a)(2) because it would produce an
       illogical result. Infra ¶¶ 63-65.
¶ 34        As noted in Whitten, 269 Ill. App. 3d at 1042-43, 647 N.E.2d at 1066, the focus of our
       analysis is on what defendant knew. Contrary to any suggestion by the State, the mere fact
       P.V. was 13 alone is insufficient to prove “the accused knew that the victim was unable to
       understand the nature of the act or was unable to give knowing consent.” 720 ILCS 5/12-
       13(a)(2) (West 2008). Knowledge is usually established by circumstantial evidence. People
       v. Weiss, 263 Ill. App. 3d 725, 731, 635 N.E.2d 635, 639 (1994). “The State must present
       sufficient evidence from which an inference of knowledge can be made, and any inference
       must be based on established facts and not pyramided on intervening inferences.” Weiss, 263
       Ill. App. 3d at 731, 635 N.E.2d at 639. Defendant had known P.V. her entire life and had the
       same birth date as hers, about which they often joked. Thus, defendant would have known
       P.V. was in her early teens, well below the age of consent.
¶ 35        The State’s evidence also shows defendant knew P.V. could not knowingly consent due
       to her young age. Before P.V. left the van after the second incident, defendant told P.V. she
       could not tell anyone because he would get “45 to life.” After the third and fourth incidents,
       defendant again told P.V. she could not tell anyone. Defendant also stated on three occasions
       P.V. made him nervous because he thought she was going to tell on him. When defendant
       called P.V. on her cellular telephone, defendant began the conversation by asking if anyone
       was around and if she was able to talk. Such actions again indicate he had knowledge P.V.
       could not consent to the activities in which they were engaging. Additionally, when
       confronted by Officer Burns, defendant denied calling P.V. and denied being alone with her
       in the van.
¶ 36        In addition to the testimony about defendant’s statements, the jury viewed and heard P.V.
       while she testified in court at the July 2009 trial. The jury had the opportunity to assess
       P.V.’s personal characteristics, including her maturity level, physical characteristics, and
       emotional and mental strength. Such considerations would factor into her lack of ability to
       consent due to her youth and defendant’s knowledge of her inability to consent. Moreover,
       we note that, as defendant had known P.V. all of her life, he was positioned to take advantage
       of her naiveté as she was coming into her teen years. Based on its observations and
       subsequent assessments of P.V., the jury could reasonably infer P.V. was unable to give
       consent to this older lifelong family friend. A cold record does not give us the opportunity
       to make those observations and subsequent assessments, and that is why we give great
       deference to the trier of fact’s judgment.
¶ 37        Accordingly, we find the State presented more than ample evidence to prove beyond a
       reasonable doubt defendant knew P.V. was unable to give consent.




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¶ 38                                      B. Jury Instruction
¶ 39       Defendant asserts his convictions for criminal sexual assault based on his actions with
       his fingers must be vacated based on the definition of “sexual penetration” provided the jury.
       Defendant acknowledges he failed to preserve this error in the trial court and requests that
       we review the issue under the plain-error doctrine (Ill. S. Ct. R. 615(a) (eff. Jan. 1, 1967)).
       The State concedes the jury was provided the wrong jury instruction defining “sexual
       penetration” but argues the error did not rise to the level of plain error.
¶ 40       The plain-error doctrine permits a reviewing court to consider unpreserved error under
       the following two scenarios:
           “(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’s trial and challenged the integrity
           of the judicial process, regardless of the closeness of the evidence.” People v. Sargent,
           239 Ill. 2d 166, 189, 940 N.E.2d 1045, 1058 (2010).
       Since the State admits an error occurred, we begin our analysis by considering whether either
       of the two prongs of the plain-error doctrine has been satisfied. Sargent, 239 Ill. 2d at 189-
       90, 940 N.E.2d at 1059. Under both prongs, the defendant bears the burden of persuasion.
       Sargent, 239 Ill. 2d at 190, 940 N.E.2d at 1059.
¶ 41       Defendant contends the error was so serious that he was denied a fair trial. We begin by
       examining the error. The four convictions at issue are based on defendant committing an act
       of sexual penetration with P.V., involving his fingers and her vagina. Section 12-12(f) of the
       Criminal Code (720 ILCS 5/12-12(f) (West 2008)) defines “sexual penetration” and produces
       two broad categories of conduct. See People v. Maggette, 195 Ill. 2d 336, 346-47, 747
       N.E.2d 339, 345 (2001). One category “includes any contact between the sex organ or anus
       of one person by an object, the sex organ, mouth or anus of another person.” (Emphasis in
       original.) Maggette, 195 Ill. 2d at 347, 747 N.E.2d at 345. With this category, the term
       “object” does not include parts of the body. Maggette, 195 Ill. 2d at 350, 747 N.E.2d at 347.
       The second category “includes any intrusion of any part of the body of one person or of any
       animal or object into the sex organ or anus of another person.” (Emphasis in original.)
       Maggette, 195 Ill. 2d at 347, 747 N.E.2d at 345. Illinois Pattern Jury Instructions, Criminal,
       No. 11.65E (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 11.65E) separates the definition
       of “sexual penetration” into the two aforementioned categories. In this case, at the State’s
       request, the trial court gave only the first portion of IPI Criminal 4th No. 11.65E, which is
       the first or “contact” definition. Under that definition, defendant’s finger cannot constitute
       an “object,” and thus the State could not have proved sexual penetration by defendant’s
       finger under that definition.
¶ 42       The State recognizes the second or “intrusion” definition should also have been given to
       the jury. However, it argues defendant was not prejudiced by the improper instruction and
       was not denied a fair trial. Specifically, it notes with the last three incidents, P.V. gave
       specific testimony of digital penetration, and as to the first incident, the evidence was
       sufficient for the jury to reasonably infer digital penetration took place.


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¶ 43        Defendant notes the error with the jury instruction was compounded by the fact that, in
       its closing argument, the State improperly explained the “sexual penetration” definition by
       using the language of the contact clause instead of the intrusion clause. He also notes the trial
       court’s definition of female sex organ in response to the jury’s second question. Moreover,
       defendant disagrees with the State’s assertion P.V.’s testimony showed digital penetration
       took place on all four occasions.
¶ 44        We agree with the State P.V.’s testimony clearly demonstrates defendant inserted his
       fingers into her vaginal opening during the second, third, and fourth incidents. With each
       incident, P.V. stated defendant put his fingers inside or in her “private.” With the second and
       fourth incidents, P.V. explained it was not just one, but two fingers. Moreover, with the last
       incident, P.V. testified defendant stated she could take “good dick, or big dick” after his
       fingers were inside her “private.” Such testimony is clear evidence of digital penetration
       unlike in People v. James, 331 Ill. App. 3d 1064, 1068, 773 N.E.2d 1176, 1180 (2002),
       where the victim testified the “defendant touched her ‘in’ her ‘private part’ ” but did not
       explain what constituted her “private part.” Since the uncontroverted evidence showed digital
       penetration, the result of defendant’s trial would not have been different if the intrusion
       instruction would had been given. Accordingly, we find defendant has not shown plain error
       resulted from the erroneous jury instruction as to three of the four counts of criminal sexual
       assault based on defendant’s actions with his fingers. See People v. McNeal, 405 Ill. App.
       3d 647, 676, 952 N.E.2d 32, 45-46 (2010) (finding no plain error for an improper jury
       instruction where the evidence showed an intrusion and thus the outcome would have been
       the same if the proper instruction would have been given).
¶ 45        The evidence of intrusion with regard to the first incident is not as clear. As to that
       incident, P.V. testified defendant’s finger touched “the part that has the hole” and his hand
       went up and down on the part of her “privates” that has a hole. As the State notes, “[a] jury
       may reasonably infer that an act of penetration occurred based on testimony that the
       defendant ‘rubbed,’ ‘felt’ or ‘handled’ the victim’s vagina,” unless the victim denied
       penetration occurred. People v. Hillier, 392 Ill. App. 3d 66, 69, 910 N.E.2d 181, 184 (2009).
       However, in this case, the jury twice received the wrong definition of “sexual penetration”
       that did not inform the jury an intrusion was required. Thus, while we find the jury could
       have found sexual penetration under the intrusion clause during the first incident, it is also
       reasonable a jury could have not found an intrusion based on P.V.’s testimony. Since the
       incorrect “sexual penetration” definition could have affected the outcome of defendant’s trial
       on the count of criminal sexual assault based on the initial incident (presumedly count I), we
       find defendant has shown plain error as to that conviction. Accordingly, we reverse
       defendant’s criminal-sexual-assault conviction and sentence for count I and remand for a new
       trial on that count. See James, 331 Ill. App. 3d at 1070, 773 N.E.2d at 1181.

¶ 46                                   III. CONCLUSION
¶ 47       For the reasons stated, we reverse defendant’s criminal-sexual-assault conviction and
       sentence for count I, affirm the McLean County circuit court’s judgement in all other
       respects, and remand for a new trial on count I. As part of our judgment, we award the State


                                                 -10-
       its $75 statutory assessment against defendant as costs of this appeal.

¶ 48      Affirmed in part and reversed in part; cause remanded with directions.

¶ 49       JUSTICE STEIGMANN, specially concurring in part and dissenting in part:
¶ 50       Defendant engaged in felonious criminal conduct and deserves to be punished.
       Regrettably, the crimes charged were not the crimes he committed. Because the State’s
       evidence completely fails to prove defendant guilty of the crimes charged, this court is duty-
       bound to reverse all of his convictions. Accordingly, I respectfully dissent.

¶ 51                                    I. BACKGROUND
¶ 52                                   A. The State’s Charges
¶ 53       In January 2009, the State charged defendant with seven counts of criminal sexual assault
       pursuant to section 12-13(a)(2) of the Criminal Code (720 ILCS 5/12-13(a)(2) (West 2008)),
       which states that an individual commits criminal sexual assault when he commits an act of
       sexual penetration with a victim who he knows is unable to “understand the nature of the act”
       or “give knowing consent.” These seven counts were the only charges against defendant.
       That means that in order to convict him of anything, the State needed to prove beyond a
       reasonable doubt that defendant committed an act of sexual penetration with P.V. and he
       knew that she was either (1) unable to understand the nature of the act or (2) was unable to
       give knowing consent.

¶ 54        B. The Term “Unable” Under Section 12-13(a)(2) of the Criminal Code
¶ 55       When analyzing section 12-13(a)(2) concerning whether a victim was unable to
       understand the nature of the act or was unable to give knowing consent, the question should
       be asked: Unable, why? There are two possible answers to that question, depending upon
       one’s construction of the section. The first answer is because of the victim’s mental
       condition; the second answer is because of the victim’s legal condition.

¶ 56                             1. The Victim’s Mental Condition
¶ 57       A review of the sections of the Criminal Code defining sex offenses makes clear that
       section 12-13(a)(2) is referring to the victim’s mental condition. Thus, when properly
       understood, that section would read as follows: “(a) the accused commits criminal sexual
       assault if he or she *** (2) commits an act of sexual penetration and the accused knew that
       the victim because of the victim’s mental condition was unable to understand the nature of
       the act or because of the victim’s mental condition was unable to give knowing consent.”
       This construction is consistent both with the plain language of the statute and how it has been
       applied since the section was added to the Criminal Code in 1984. The victims in cases
       involving section 12-13(a)(2) have been unable to understand the nature of the sexual acts
       or unable to consent because of their mental condition–that is, the victims typically were


                                                -11-
       either severely mentally handicapped or in such a drunken state as to be practically comatose.
       See, for example, People v. Weiss, 263 Ill. App. 3d 725, 635 N.E.2d 635 (1994) (victim was
       34 years old and functioning at the level of a 4-year-old child); People v. Barnslater, 373 Ill.
       App. 3d 512, 869 N.E.2d 293 (2007) (victim was in a drunken stupor).

¶ 58                             2. The Victim’s Legal Condition
¶ 59       The alternative construction of the statute would have it read as follows: “(a) The accused
       commits criminal sexual assault if he or she *** (2) commits an act of sexual penetration and
       the accused knew that the victim because of the victim’s legal condition was unable to
       understand the nature of the act or because of the victim’s legal condition was unable to give
       knowing consent.” In this case, the “legal condition” is P.V.’s young age, which is the sole
       argument that the State has offered regarding the notion that she “could not consent” and
       defendant was aware of that fact. According to this argument, she could not consent because,
       being only 13 years old, the law would not recognize her consent.
¶ 60       This construction of the statute is based upon the victim’s legal condition–namely, her
       age–and not based upon her acuity in any way. Under this analysis, she could be the most
       precocious, knowledgeable, and advanced 13-year-old one could imagine, but she would still
       be a victim (under section 12-13(a)(2)) who was unable to understand the nature of the act
       or was unable to give knowing consent.

¶ 61                       3. The Consequences of the Majority Opinion
¶ 62       Under this construction of the statute, P.V.’s “legal condition”–namely, her inability to
       give knowing consent because of her age–stems from either section 12-15(b), (c), 12-16(c),
       (d) or (f) of the Criminal Code. 720 ILCS 5/12-15(b), (c), 12-16(c), (d), (f) (West 2008).
       These are the five statutes that essentially constitute what used to be known as “statutory
       rape,” meaning that a person engaging in an act of sexual penetration or sexual conduct with
       a victim who was under 17 years of age committed a criminal offense whether or not the
       victim was a willing participant. (Under sections 12-15(b) and (c), the crimes involved are
       misdemeanors, whereas under sections 12-16(c), (d), and (f), the crimes involved are
       probationable, Class 2 felonies.) However, if the “legal condition” because of the victim’s
       age is to be the focus of section 12-13(a)(2) regarding whether the victim was unable to
       understand the nature of the act or was unable to give knowing consent, then a consequence
       of so concluding would be–as the State acknowledged at oral argument in this case–that this
       definition would apply to other possible victims as well, not just the 13-year-old victim in
       this case.
¶ 63       Another such victim would be a girl who was, perhaps, 16 years and 11 months old.
       Under the “legal condition” construction of section 12-13(a)(2), if the accused, say, the 17-
       year-old boyfriend of the 16-year-old girl, committed an act of sexual penetration with his
       girlfriend (who, let’s assume, was a fully willing participant in the act) and the accused knew
       that the victim was 16 years old, then as a matter of law he knew that the victim was unable
       to understand the nature of the act or was unable to give knowing consent. That means he
       committed a nonprobationable, Class 1 felony. This outcome would, of course, be ridiculous,

                                                -12-
       but it is nonetheless the result compelled by the State’s “legal condition” construction of the
       statute.
¶ 64       Additionally, I note that section 12-13(a)(2) contains no age reference at all. That means
       that an accused, who would be guilty of criminal sexual assault (the aforementioned
       nonprobationable Class 1 felony) for engaging in an entirely consensual act of sexual
       penetration with a 16-year-old female, could himself be 17 years old and still be guilty of that
       crime.
¶ 65       Another consequence of the majority opinion that a 15-year-old male who had entirely
       consensual sexual intercourse with his 16-year-old girlfriend would also be guilty of the
       nonprobationable Class 1 felony of criminal sexual assault, albeit as a juvenile delinquent.
       And, by the way, so would she!
¶ 66       The majority attempts to explain away such results by writing the following:
           “[B]ecause the State has to prove the accused knew the victim was unable to consent, it
           would be highly unlikely any sexual contact between two similarly aged teenagers under
           17 or sex with a person almost 17 would be punishable under section 12-13(a)(2). Thus,
           we disagree with any suggestion the inability to consent based on age is excluded from
           section 12-13(a)(2) because it would produce an illogical result.” Supra ¶ 33.
¶ 67       The above quotation is significant for two reasons. First, it constitutes an implied
       admission by the majority that P.V.’s supposed “inability to consent” is based on nothing but
       her age. In other words, P.V.’s “legal condition,” not her mental condition, is the basis for
       the majority’s decision to affirm defendant’s convictions.
¶ 68       Second, other than the hope that a local prosecutor would have the good sense not to
       charge a 17-year-old boy with the nonprobationable Class 1 felony of criminal sexual assault
       under section 12-13(a)(2) because he engaged in sexual intercourse with his entirely willing
       16-year-old girlfriend, on what does the majority rely to claim that such a charge “would be
       highly unlikely”? Supra ¶ 33. After all, based upon my experience of 42 years with the
       criminal justice system in this state, I am shocked at the very charges some prosecutor
       brought in this case and take the view that they (1) clearly do not apply and (2) are entirely
       unsupported by the evidence. Construing criminal statutes should not be based upon the hope
       that no prosecutor will ever bring ridiculous charges; instead, courts should forthrightly reject
       those charges that are not consistent with Illinois law and reverse any convictions obtained
       thereunder.

¶ 69                         C. The Majority’s Reliance Upon Whitten
¶ 70        The majority relies upon its interpretation of Whitten as justification for its notion that
       criminal sexual assault is committed under section 12-13(a)(2) when a person, like defendant
       in the present case, engages in sexual relations with a person who, for any reason, is unable
       to give knowing consent. The majority claims the phrase “for any reason” in Whitten justifies
       its view that the legal condition of P.V.–namely, her age–is sufficient to prove that charge.
       That conclusion is clearly wrong and finds no basis for support in Whitten.
¶ 71        In Whitten, the complainant was “a 32-year-old developmentally disabled female with


                                                 -13-
       an intelligence quotient (IQ) of 54 and a functional level of nine years and nine months.”
       Whitten, 269 Ill. App. 3d at 1039, 647 N.E.2d at 1064. She resided in a residential living
       program for developmentally disabled adults, and the defendant, a 56 year-old male, was an
       employee of that residential unit who, on the evening in question, entered her apartment by
       using a pass key. He then allegedly committed a criminal sexual assault upon her. Whitten,
       269 Ill. App. 3d at 1039, 647 N.E.2d at 1064. The Whitten court then wrote the following:
                “Complainant’s testimony revealed that she did not consent to sexual intercourse
           with defendant. She testified that defendant did not ask her permission, and in fact, he
           did not say a word to her. Complainant stated that she did not give him permission to
           have sex with her and that she did not want to have sex with defendant. ***
                Complainant testified that she had not received any sex education. Additionally,
           Helton [(her case coordinator)] testified that complainant had an IQ of 54 and was mildly
           mentally retarded, but that she functioned at the 9-year-9-month-old level. While
           complainant cooked some meals for herself and could go shopping and received money
           for her work at the rehabilitation center, the evidence presented at trial created the
           inference that she had never lived alone. Helton had known complainant for about 12
           years and had counseled her regularly regarding her problems in dealing with other
           people. Helton also testified that, in her opinion, complainant would not understand the
           long-term ramifications of a sexual relationship; that complainant would not know she
           could refuse the sexual advances of a staff member; and that a person had to be very
           basic with complainant.
                                                 ***
                Here, complainant’s mental disability, her lack of sex education, and her statements
           that she had sex with defendant against her will, when combined with Helton’s testimony
           regarding her understanding and the contradictions in defendant’s and Lilly’s testimony,
           meet the burden of proof required of the State regarding complainant’s inability to give
           knowing consent. Further, defendant was in a position of authority, which would deter
           complainant from refusing defendant’s sexual advances.” Whitten, 269 Ill. App. 3d at
           1040-42, 647 N.E.2d at 1065-66.
¶ 72       The above recitation from Whitten makes clear that decision provides no support for the
       majority’s premise that P.V.’s age–without more–can constitute a basis for concluding that
       she was unable to give knowing consent. That the majority relies on Whitten for support
       reveals the dearth of support in Illinois law is for its position. The majority may rely on
       Whitten because no other Illinois case offers the majority any support and Whitten at least
       contains a phrase that–albeit taken out of context–at first blush seems supportive.
¶ 73       In People v. Blunt, 65 Ill. App. 2d 268, 212 N.E.2d 719 (1965), the court addressed the
       issue now before us because the defendant was charged with rape under a statute that defined
       that crime (in part) as intercourse which occurred “[w]here the female is so mentally
       deranged or deficient that she cannot give effective consent to intercourse.” Ill. Rev. Stat.
       1963, ch. 38, ¶ 11-1. The defendant was convicted, and the sole issue was whether the 23-
       year-old prosecuting witness was so mentally deficient that she could not give effective
       consent to an act of intercourse. Id. Some expert witnesses testified that the victim had an


                                               -14-
       IQ ranging from 71 through 78, and she was further described as mentally deficient. Blunt,
       65 Ill. App. 2d at 269-70, 212 N.E.2d at 720. This court reversed the defendant’s conviction,
       explaining as follows:
            “Mere mental derangement or mental deficiency is not enough. Its thrust must be of
            sufficient magnitude to throttle effective consent. To what does the term ‘mentally
            deficient’ relate? Does it imply the lack of mental capacity and training to understand
            calculus, the provisions of the Internal Revenue Code or the doctrine of dependent
            relative revocation in wills? We think not. *** Does it mean the inability to understand
            and comprehend the act of sexual intercourse, its moral aspects and the evil
            consequences which may flow from it? Again this record establishes such
            comprehension. ***
                In other jurisdictions where punishment is imposed upon those having sexual
            intercourse with females who through unsoundness of mind are incapable of effective
            consent, the capacity to consent ‘presupposes an intelligence capable of understanding
            the act, its nature and possible consequences.’ 44 Am Jur Rape, § 10, Ann Cas 1912B
            1050. We think this record attributes to [the victim] that intelligence. The bizarre events
            of this record cannot be equated with [the victim’s] lack of knowledge of the nature of
            the act nor of its moral reprehensibility nor of the possible fruits of its enjoyment.
            Morally distasteful as it is, it is not within the proscription of criminal sanctions under
            our Criminal Code relating to forcible rape.” Blunt, 65 Ill. App. 2d at 273-74, 212 N.E.2d
            at 722.
¶ 74        In People v. Maloney, 201 Ill. App. 3d 599, 611-12, 558 N.E.2d 1277, 1285 (1990), then-
       Appellate Court Justice Charles Freeman wrote an opinion for the First District Appellate
       Court that affirmed the defendant’s conviction for criminal sexual assault under section 12-
       13(a)(2) of the Criminal Code and rejected the defendant’s claim that Blunt required a
       different result. In Maloney, although the victim was 16 years old, he had a mental age of 7
       and attended school for severely learning-disabled children. Maloney, 201 Ill. App. 3d at 611,
       558 N.E.2d at 1285. The appellate court found ample basis in the record for a rational jury
       to conclude that the State had proved that the victim was unable to understand the nature of
       the acts of sexual penetration or to give knowing consent thereto and noted that “we believe
       that the whole scenario of the contact between defendant and [the victim] clearly reveals that
       defendant sought to take advantage of [the victim’s] reduced mental abilities after becoming
       aware of them during his conversation with him.” The Maloney court agreed with Blunt that
       “[m]ere mental derangement or *** deficiency is not enough. Its thrust must be of sufficient
       magnitude to throttle effective consent.” (Internal quotation marks omitted.) Maloney, 201
       Ill. App. 3d at 611-12, 558 N.E.2d at 1285. The Maloney court found that standard to have
       been met in the case before it.
¶ 75        In People v. Velasco, 216 Ill. App. 3d 578, 587, 575 N.E.2d 954, 960 (1991), this court
       affirmed the defendant’s conviction for criminal sexual assault under section 12-13(a)(2) of
       the Criminal Code where the complainant was born with Down’s syndrome, her functional
       level was somewhere between that of a six-year-old and an eight-year-old, she had been
       classified as trainably mentally handicapped, and she did not understand “where babies come
       from.”

                                                -15-
¶ 76       In People v. Fisher, 281 Ill. App. 3d 395, 397, 667 N.E.2d 142, 143 (1996), the defendant
       was convicted of criminal sexual assault under section 12-13(a)(2) of the Criminal Code for
       committing an act of sexual penetration with a person whom he knew to be unable to give
       knowing consent. The defendant had engaged in sexual intercourse with a girl who was
       rendered unconscious after she consumed a large quantity of alcohol. The appellate court
       affirmed the defendant’s conviction, holding that a reasonable fact finder could conclude that
       the amount of alcohol ingested by the 125-pound complainant could have left her incapable
       of being sufficiently roused to have knowingly given or refused consent to the defendant’s
       advances. Fisher, 281 Ill. App. 3d at 403, 667 N.E.2d at 147. Weiss (where the victim was
       34 years old and functioning at the level of a 4-year-old child) and Barnslater (where the
       victim was in a drunken stupor), previously mentioned, follow in this vein.
¶ 77       My reason for listing all of these cases is to point out that in the history of Illinois
       jurisprudence no published opinion has done what the majority opinion would do in this
       case: affirm a defendant’s conviction for criminal sexual assault under section 12-13(a)(2)
       of the Criminal Code based solely upon the victim’s legal condition–namely, her age–and
       not based upon her acuity in any way. I respectfully disagree with this unprecedented view.

¶ 78       D. The Majority Disregards the Legislative Structure Defining Sex Offenses
¶ 79       With commendable candor, the State conceded at oral argument before this court that its
       claim that P.V. was unable to give knowing consent was essentially based upon two facts:
       (1) she was 13 years old and (2) 13-year-olds cannot “consent” to acts of sexual penetration,
       however willingly they may have engaged in them. This argument is not consistent with how
       the Illinois legislature has defined sex offenses in the Criminal Code.
¶ 80       The Criminal Code reveals that the legislature is perfectly capable of saying precisely
       what it intends when it is defining crimes based, at least in part, upon the age of the victim.
       Indeed, in the very same section of the Criminal Code at issue in this case–namely section
       12-13(a)–(albeit in a different subsection) the legislature defines criminal sexual assault as
       follows:
                “(a) The accused commits criminal sexual assault if he or she:
                                                ***
                    (4) commits an act of sexual penetration with a victim who was at least 13 years
                of age but under 18 years of age when the act was committed and the accused was 17
                years of age or over and held a position of trust, authority or supervision in relation
                to the victim.” 720 ILCS 5/12-13(a)(4) (West 2008).
       In section 12-16(d), the legislature defined “aggravated criminal sexual abuse” as follows:
                “(d) The accused commits aggravated criminal sexual abuse if he or she commits an
           act of sexual penetration or sexual conduct with a victim who was at least 13 years of age
           but under 17 years of age and the accused was at least 5 years older than the victim.” 720
           ILCS 5/12-16(d) (West 2008).
       What sections 12-13(a)(4) and 12-16(d) have in common is that the legislature determined
       that the willingness of the victim to engage in the sexual acts in question did not matter


                                                -16-
       because of the victim’s age. In other words, even if the victim consented to or solicited the
       acts in question, the adult engaging in those acts with the victim would still be guilty of the
       crimes defined if the State was able to prove the other elements. For purposes of the present
       case, what is significant about what the legislature did in section 12-13(a)(4) and section 12-
       16(d) is that by removing the issue of consent from those statutes, the legislature eliminated
       any reference to the issue of consent by–literally–not using that word.
¶ 81        Other examples from the Criminal Code in which the legislature defined a crime and
       eliminated any issue of the victim’s willingness to engage in the sexual conduct in question
       by omitting any reference to whether or not the victim consented can be found as follows:
       (1) section 12-14.1, defining predatory criminal sexual assault of a child (720 ILCS 5/12-14.1
       (West 2008)); (2) sections 12-15(b) and 12-15(c), defining two forms of criminal sexual
       abuse (720 ILCS 5/12-15(b), (c) (West 2008)); (3) section 12-13(a)(3), defining one version
       of criminal sexual assault (720 ILCS 5/12-13(a)(3) (West 2008)); (4) sections 12-14(b) and
       12-14(c), defining two versions of aggravated criminal sexual assault (720 ILCS 5/12-14(b),
       (c) (West 2008)); and (5) section 12-16(b), section 12-16(c)(1)(i), section 12-16(c)(2)(i),
       section 12-16(d), section 12-16(e), and section 12-16(f), defining various forms of the
       offense of aggravated criminal sexual abuse (720 ILCS 5/12-16(b), (c)(1)(i), (c)(2)(i), (d),
       (e), (f) (West 2008)).
¶ 82        Despite the above statutes and the legislative structure they represent, the State maintains
       (and the majority agrees) that section 12-13(a)(2) should be construed to read as follows:
       “The accused commits criminal sexual assault if he or she commits an act of sexual
       penetration and the accused knew that the victim was under 17 years of age when the act was
       committed.” “Consent” in a real-world context would then become entirely irrelevant.
¶ 83        This interpretation is totally wrong. The word “consent” in section 12-13(a)(2) should
       be given its common, ordinary meaning–namely, compliance in or approval of what is done
       or proposed by another. Merriam-Webster’s Collegiate Dictionary 245 (10th ed. 2000). As
       the record in this case reveals, that definition fits how P.V. responded to defendant’s sexual
       overtures. In People v. Beasley, 314 Ill. App. 3d 840, 846, 732 N.E.2d 1122, 1127 (2000),
       the First District Appellate Court explained “consent” in this context as follows:
                 “ ‘ “Consent” implies a willingness, voluntariness, free will, reasoned or intelligent
            choice, physical or moral power of acting, or an active act of concurrence (as opposed
            to a passive assent) unclouded by fraud, duress, or mistake. [Citation.] The ability to give
            knowing consent should involve more than measuring complainant’s IQ or ability to
            physically resist defendant.’ Whitten, 269 Ill. App. 3d at 1042-44[, 647 N.E.2d at 1066].”

¶ 84                   E. The Record Contains No Evidence That P.V. Was
                                Unable To Give Knowing Consent
¶ 85       The State failed to present any evidence that P.V. was unable to give knowing consent.
       In fact, the State’s evidence showed that P.V. voluntarily complied with the sexual acts
       defendant proposed. P.V.’s ability to give knowing consent is perhaps best shown by her
       willingness to withhold her consent when defendant suggested that they engage in sexual
       intercourse or that she perform oral sex upon him. She had sufficient understanding of the

                                                 -17-
       circumstances as well as confidence in herself to say, in effect, “This far, but no further.”
       And he complied with the line she drew. These circumstances belie the notion that P.V. was
       anything like the victim in Whitten, who clearly (due to her mental condition) was unable to
       give knowing consent, or like the victims in any of the other cases discussed herein.

¶ 86                   F. The State Charged Defendant With the Wrong Crime
¶ 87        Defendant’s knowledge of P.V.’s age is the sole basis for the State’s claim that defendant
       knew she was unable to give knowing consent. As noted earlier, this record is devoid of any
       evidence suggesting that P.V. did not understand the nature of the acts defendant engaged
       in with her or was unable to give knowing consent to his doing so. The absence of any such
       evidence explains why the State on appeal based its entire case upon P.V.’s age and cited
       nothing else.
¶ 88        The majority writes that “the focus of our analysis is on what defendant knew. Contrary
       to any suggestion by the State, the mere fact that P.V. was 13 alone is insufficient to prove
       ‘the accused knew the victim was unable to understand the nature of the act or was unable
       to give knowing consent.’ [Citation.]” Supra ¶ 34. So, even though (in this instance) the
       majority claims to disagree with the State that the mere fact of P.V.’s age alone was
       sufficient to prove the charge against defendant, the majority fails to cite any other evidence
       in the record–other than P.V.’s age–indicating that she was unable to understand the nature
       of the act or was unable to give knowing consent.
¶ 89        In fact, in the very next paragraph, the majority writes that “[t]he State’s evidence also
       shows defendant knew P.V. could not knowingly consent due to her young age.” Supra ¶ 35.
       However, the only support for this assertion is defendant’s repeatedly telling P.V. not to tell
       anyone what they had been doing and mentioning he could get “45 to life.” But, of course,
       all that shows is that defendant knew P.V. was (in common parlance) “jail bait.” He may not
       have known the statutory citation, but he knew that engaging in sexual activities with a 13-
       year-old was a crime. And he was right. The trouble, however, is that the State chose to
       charge him with the wrong crime–that is, criminal sexual assault under section 12-
       13(a)(2)–instead of the crime he should have been charged with–namely, aggravated criminal
       sexual abuse under section 12-16(b). 720 ILCS 5/12-16(d) (West 2008).
¶ 90        The record shows that the State presented more than enough evidence to prove defendant
       committed aggravated criminal sexual abuse, which section 12-16(d) of the Criminal Code
       defines as follows: “The accused commits aggravated criminal sexual abuse if he or she
       commits an act of sexual penetration or sexual conduct with a victim who was at least 13
       years of age but under 17 years of age and the accused was at least 5 years older than the
       victim.” 720 ILCS 5/12-16(d) (West 2008). Aggravated criminal sexual abuse is a
       probationable Class 2 felony. 720 ILCS 5/12-16(d) (West 2008); 730 ILCS 5/5-5-3 (West
       2008).
¶ 91        Unfortunately, the State did not charge defendant with that crime. Instead, the State
       charged him only with multiple counts of criminal sexual assault, a nonprobationable Class
       1 felony (720 ILCS 5/12-13(a) (West 2008); 730 ILCS 5/5-5-3(c)(2)(H) (West 2008)) based
       upon the State’s claim that defendant knew that the minor victim, P.V., was unable to

                                                -18-
       “understand the nature of the act” or “unable to give knowing consent.” That defendant may
       in fact be guilty of some felony sex offenses involving a 13-year-old child is not a matter this
       court may consider when evaluating the sufficiency of the evidence regarding the actual
       charges the State chose to bring against defendant. For the reasons previously stated, because
       the State failed to prove those charges at trial, this court should reverse all of defendant’s
       convictions.

¶ 92                                       II. EPILOGUE
¶ 93        In my 22 years on this court, I have never written an opinion to reverse a criminal
       conviction based on the insufficiency of the State’s evidence. Nor have I written a dissent,
       as here, arguing that the majority has erred by failing to reverse a defendant’s conviction on
       the grounds of insufficient evidence. This long-standing record is in no small measure due
       to my deference to the trier of fact and my unwillingness to second-guess it.
¶ 94        This case is different. Here, we need not reweigh the evidence because there is no
       evidence to weigh. Once the State’s claim is rejected–that based solely on P.V.’s age, she
       was unable to understand the nature of the act or unable to give knowing consent–this record
       is totally bereft of any evidence to sustain defendant’s convictions.

¶ 95                                    III. CONCLUSION
¶ 96        The majority reverses some of defendant’s convictions and affirms others. Because I
       conclude all of his convictions should be reversed, I concur in part and dissent in part. While
       I concur in the reversal on count I, I would reverse outright and would not remand for a new
       trial.




                                                -19-
