No. 2--95--0698
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
_________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Stephenson County.
)
Plaintiff-Appellant, ) No. 93--CF--422
)
v. )
)
JOHN A. GOEBEL, ) Honorable
) Richard E. DeMoss,
Defendant-Appellee. ) Judge, Presiding.
_________________________________________________________________
JUSTICE HUTCHINSON delivered the opinion of the court:
The State appeals from the order of the circuit court of
Stephenson County granting the motion of the defendant, John A.
Goebel, to dismiss an amended information filed against him on
January 9, 1995. The State's motion to reconsider was denied, and
this timely appeal was filed. We reverse and remand.
The State petitioned this court for leave to supply us with
additional authority; we granted the State's petition. On appeal
to this court, the State raises one issue: whether reversal of the
trial court's dismissal order is required, based on the authority
of People v. DiLorenzo, 169 Ill. 2d 318 (1996). The State contends
that the allegations in the amended information were sufficient to
state the offense of aggravated criminal sexual abuse. We agree
with the State.
Defendant was charged by information with the offense of
criminal sexual assault. The information was later amended to
charge defendant with committing the offense of aggravated criminal
sexual abuse. The amended information alleged:
"[Defendant], on or about the 10th day of November 1992
at and within Stephenson County, Illinois did commit the
offense of AGGRAVATED CRIMINAL SEXUAL ABUSE in violation of
Chapter 38, Illinois Revised Statutes *** Section 12--16(b) in
that said defendant, [a family member] of [D.R.], knowingly
committed an act of sexual conduct with [D.R.], who was under
18 years of age when the act was committed, in that said
defendant rubbed his penis against the buttocks of [D.R.]."
(Emphasis in original.)
Section 12--16(b) of the Criminal Code of 1961 reads in
pertinent part:
"The accused commits aggravated criminal sexual abuse if
he or she commits an act of sexual conduct with a victim who
was under 18 years of age when the act was committed and the
accused was a family member." 720 ILCS Ann. 5/12--16(b)
(Smith-Hurd Supp. 1996).
The Criminal Code of 1961 defines "sexual conduct" in
pertinent part as "any intentional or knowing touching or fondling
by *** the accused *** of the sex organs *** of the victim *** for
the purpose of sexual gratification or arousal of the victim or the
accused." 720 ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996).
Defendant was tried before a jury on January 10-12, 1995. The
State's first witness was the victim, D.R. D.R. testified to the
events occurring on or about November 8 and 9, 1992, in which she,
defendant, and her sister, Tonya, were at the residence of
defendant and his wife, Darcy. D.R. testified that the three of
them, D.R., Tonya, and defendant, were painting the kitchen, and,
by the end of the evening, D.R. had paint in her hair and clothes.
She testified that she went upstairs to take a bath, but, because
the paint was still in her hair, she called to her sister for
assistance. Defendant, instead, went upstairs into the bathroom
and suggested she go to the basement and shower the paint out of
her hair. D.R. testified that, upon exiting from the shower in the
basement, defendant had come down the stairs, led her towards a
workout bench, and, with her back facing him, exposed his penis to
her. He then "started rubbing his penis up and down on [her]
butt." D.R. also testified that defendant told her that she was
too beautiful for her own good.
D.R. testified that another incident occurred at defendant's
residence after a funeral sometime at the end of June 1992. She
testified that she and defendant went downstairs to talk, but that
defendant started rubbing her back and put his hand down her pants.
She testified that defendant took off D.R.'s pants, kissed her
breasts, put his finger in her vagina, and then put his mouth on
her vagina. Defendant then exposed his penis to her, ejaculated,
and instructed D.R. to taste the semen.
According to D.R.'s testimony, another incident took place at
defendant's residence around October 1992. D.R. testified that she
and defendant were in the living room and she had been getting him
beers from the refrigerator when he told her to go upstairs "so
Darcy won't get suspicious." She testified that they went upstairs
and defendant turned on the television. Defendant then proceeded
to pull down D.R.'s pants, kiss her breasts and vagina, and put his
finger in her vagina.
D.R. next testified to an incident occurring in mid to late
June 1993 at defendant's newly purchased residence. D.R., among
others, was helping defendant renovate the residence prior to
defendant and his family moving in. D.R. testified that, on this
occasion, she had just finished going to the bathroom, but, before
she could pull up her underwear and pants, defendant came in and
put his fingers on her vagina and talked about his sex drive. D.R.
testified that defendant then stopped, apologized, and said he
could not help himself. She testified they then took a tour of the
house, and, while they were upstairs, defendant laid D.R. down,
took her pants down, and lifted her shirt and bra, exposing her
breasts. D.R. testified that defendant then put his fingers in her
vagina, kissed her breasts and vagina, and then attempted, but
failed, to put his penis in her vagina. Defendant then instructed
her to put her mouth on his penis, but then stopped and told her to
get a cup. D.R. testified she went downstairs, got the cup, went
back upstairs, and defendant again told her to put her mouth on his
penis. D.R. said defendant then ejaculated in her mouth.
Defendant then performed oral sex on D.R. D.R. testified that,
during the ensuing conversation, defendant stated that "he didn't
know if most [family members] did this but he thought they should
because he was trying to teach [her]" about sex.
On cross-examination, counsel for defendant attempted to
elicit from D.R. specific dates, times, and places of the
incidents, and whether any witnesses were present.
Tonya, sister of D.R., testified next, and she recalled the
events surrounding the November 8 and 9, 1992, incident. Tonya
testified that D.R. had taken a bath upstairs after painting that
evening and had called for Tonya, but that defendant went upstairs
instead. She then testified that D.R. went to the basement to take
a shower, and minutes later, while D.R. was still in the basement,
defendant went downstairs. On cross-examination, Tonya testified
as to her employment history, her knowledge of the June 1992
funeral, her recollection that defendant was in the basement with
D.R. in November 1992, and the terms of her visitation with
defendant.
The State's last witness was Officer Richard Roodhouse. He
testified about the investigation of the allegations against
defendant. Roodhouse testified that defendant acknowledged his
hand "fell against her breast" on one occasion and, on another
occasion, D.R. was getting up from a couch and she put her hand on
defendant's groin or penis. Roodhouse testified that defendant
said he "didn't remove [either his hand from her breast or her hand
from his groin or penis] right away because he had taken some
psychology courses, and the *** courses had taught him not to do so
because it would make that gesture appear dirty." He also
testified that defendant acknowledged taking the girls for rides in
the country and talking about sex "because he didn't want [them] to
be naive about sex." Defendant also told Roodhouse that D.R. had
the dates all wrong.
Defendant's brother, James, testified for the defendant.
James testified about the events surrounding the June 1992 funeral
and his work schedule.
Defendant's brother, Bill, testified next about the events of
the June 1992 funeral.
Six other witnesses testified that they helped remodel or
observed the remodeling of defendant's new home.
Darcy, defendant's wife, testified next. She testified as to
the events surrounding the June 1992 funeral, the routine she
typically followed, and observations she made during the remodeling
of her and defendant's new home.
Defendant testified next. Defendant categorically denied all
incidents of sexual abuse. Regarding the November 8 and 9, 1992,
incident, defendant testified that both Tonya and D.R. were in the
bathroom upstairs trying to get paint out of D.R.'s hair.
Defendant testified that he told D.R., through the bathroom door,
to go to the basement and let the shower water "beat [the paint]
out" of her hair. Defendant testified that Tonya stayed in the
bathroom upstairs while D.R. went down to the basement and took a
shower. He testified that he stayed in the kitchen and did not go
into the basement until D.R. had already gone back upstairs into
the bathroom where Tonya was. After that, he testified, he went to
the basement and stoked the wood-burning furnace and was only in
the basement for approximately five minutes.
Defendant acknowledged his conversations with Roodhouse
regarding defendant touching D.R.'s breast and her touching his
groin. On cross-examination, defendant also testified to only two
occasions, occurring years apart, when he was driving in the
country that he talked with his daughters about sex. Defendant
testified regarding the psychology course that he took, but never
finished, where he learned not to take his hand away from D.R.'s
breast too quickly or remove D.R.'s hand from his groin or penis
because it would make the gesture appear dirty. Defendant also
testified that on November 9, 1992, the only people painting and
remodeling in his new house were himself, Tonya, and D.R.
Before the case was given to the jury for decision, defendant
moved to have the charge dismissed. Defendant argued that the
charge did not state an offense and asserted that the evidence did
not support a conviction.
After hearing the arguments of counsel, the trial court first
denied the motion for a directed finding, stating that "the
evidence is sufficient that a jury can reasonably find the
defendant guilty of the charge." The trial court then discussed
defendant's motion to dismiss and determined that dismissal should
be granted because the charge failed to state an offense.
In granting the motion, the trial court explained that an
allegation regarding the child victim's buttocks did not charge the
offense of aggravated criminal sexual abuse, relying on People v.
Nibbio, 180 Ill. App. 3d 513 (1989). However, after the parties
filed post-judgment motions, the trial court reconsidered its
reasoning. On reconsideration, the trial court agreed with the
State that sexual conduct includes the knowing touching of the
victim's body by the penis of the accused. However, to prosecute
such a charge, the State must allege and prove that the touching
was done "for the purpose of sexual gratification or arousal of the
victim or of the accused." 720 ILCS Ann. 5/12--12(e) (Smith-Hurd
Supp. 1996). Relying on People v. Edwards, 195 Ill. App. 3d 454
(1990), the trial court, stated that that element was not alleged
in the amended information and the order dismissing the charge
would stand.
Before addressing the State's argument, we note that defendant
failed to file a brief in this appeal. However, because we find
the issue presented relatively straightforward, we may decide this
case without an appellee's brief in accordance with First Capitol
Mortgage Corp. v. Talandis Construction Corp., 63 Ill. 2d 128, 133
(1976) (holding that a reviewing court should decide the merits of
an appeal where the record is simple and the claimed error is such
that a decision can be made easily without the aid of an appellee's
brief); see also Exline v. Exline, 277 Ill. App. 3d 10, 13 (1995).
The State argues that reversal of the trial court's dismissal
order is required, relying on the authority of People v. DiLorenzo,
169 Ill. 2d 318 (1996). The State contends that, based on
DiLorenzo, the allegations in the amended information were
sufficient to state the offense of aggravated criminal sexual
abuse.
We are obliged to follow the precedents of our supreme court.
A settled rule of law that contravenes no statute or constitutional
principles should be followed under the doctrine of stare decisis
unless it can be shown that serious detriment prejudicial to the
public interest is likely to result. Pasquale v. Speed Products
Engineering, 166 Ill. 2d 337, 349 (1995). Stare decisis is a
policy of the courts to stand by precedent and leave settled points
of law undisturbed. Charles v. Seigfried, 165 Ill. 2d 482, 492
(1995). Additionally, our appellate court lacks the authority to
overrule or modify decisions of our supreme court. People v.
Woodard, 276 Ill. App. 3d 242, 245 (1995); Vonholdt v. Barba &
Barba Construction, Inc., 276 Ill. App. 3d 325, 329 (1995). Thus,
it is our duty to examine the DiLorenzo decision and determine
whether the material facts found by the Illinois Supreme Court in
DiLorenzo are similar to or different from those facts in the
present case.
In DiLorenzo, the defendant was charged with, inter alia,
aggravated criminal sexual abuse (Ill. Rev. Stat. 1991, ch. 38,
par. 12--16(c)(1)(i) (now 720 ILCS Ann. 5/12--16(c)(1)(i) (Smith-
Hurd Supp. 1996))). The indictment was in writing, specifically
named the alleged committed offenses, and provided citation to the
relevant statutory provisions, date of the offense, county of its
occurrence, and the defendant's name. Further, the indictment, in
the words of the statute, stated that the defendant committed the
offense of aggravated criminal sexual abuse in that
"he, who was 17 years of age or older, knowingly committed an
act of sexual conduct with [C.R.] who was under 13 years of
age when the act was committed."
Following a bench trial, the defendant was found guilty of
aggravated criminal sexual abuse and was sentenced; the appellate
court affirmed. The defendant appealed, asserting that the
indictment was fatally defective in that the aggravated criminal
sexual abuse charge failed to explicitly state that the alleged
"sexual conduct" with C.R. was "for the purpose of sexual
gratification or arousal of the victim or the accused" and also
that the indictment failed to set forth with particularity the
allegedly wrongful acts that constituted "sexual conduct."
The DiLorenzo defendant, like defendant in the present case,
failed to challenge the sufficiency of the charging instrument in
a pretrial motion. Therefore, the supreme court declined to
discuss the sufficiency of the charging instrument when attacked in
a pretrial motion. Because defendant in the present case also
waited until the conclusion of the trial to attack the
information's sufficiency, we too decline to address the issue of
a pretrial attack of the charging instrument.
Instead, the DiLorenzo court stated that, when the sufficiency
of a charging instrument is attacked for the first time on appeal,
the standard of review is whether the charging instrument apprised
the defendant of the precise offense charged with enough
specificity to (1) allow preparation of her or his defense and (2)
allow pleading a resulting conviction as a bar to future
prosecution arising out of the same conduct. DiLorenzo, 169 Ill.
2d at 321-22, citing People v. Thingvold, 145 Ill. 2d 441, 448
(1991).
The DiLorenzo court determined that the phrase "for the
purpose of sexual gratification" or the definition of "sexual
conduct" were unnecessary to its disposition and declined to
distinguish our rationale in People v. Edwards, 195 Ill. App. 3d
454 (1990). In Edwards, the defendant appealed two of his
convictions of aggravated criminal sexual abuse on the grounds that
the convictions were improperly charged. The defendant argued
that, because the charges were based upon the defendant's "sexual
conduct" with the victim, the charging instrument should have
included the relevant provision of the statute, "for the purpose of
sexual gratification or arousal of the victim or the accused." 720
ILCS Ann. 5/12--12(e) (Smith-Hurd Supp. 1996).
This court reversed those convictions, stating that reference
to the definition of "sexual conduct" was essential to the offense
of aggravated criminal sexual abuse. Edwards, 195 Ill. App. 3d at
457. In interpreting clauses and definitions in statutes, courts
should construe those words in accordance with the statutory
definition. DeBois v. Department of Employment Security, 274 Ill.
App. 3d 660, 664 (1995). Because the charges in Edwards were, for
the most part, expressed in the language of the "sexual conduct"
definition and because the charges omitted the element that the
relevant conduct was committed "for the purpose of sexual arousal
or gratification," we held that the charges failed both to set
forth fully the nature and elements of the offense and to be as
fully descriptive as the language of the statute. Edwards, 195
Ill. App. 3d at 457.
In disregarding the Edwards rationale, the DiLorenzo court
theorized that, should the defendant have needed to know "some of
the details" of the charge, the defendant could have filed a
request for a bill of particulars. Our supreme court concluded
that the defendant was aware of the nature of the charges against
him and that no impediment existed in the preparation of his
defense as a result of the manner in which the indictment charged
the offenses. DiLorenzo, 169 Ill. 2d at 324-25.
We determine that the material facts in the case at bar are
sufficiently analogous to the material facts of the DiLorenzo case.
The amended information apprised defendant of the precise offense
charged with enough specificity to allow preparation of his defense
and to allow pleading a resulting conviction as a bar to future
prosecution arising out of the same conduct. Our own review of the
record indicates that defendant was fully cognizant of the nature
of the charges against him, that he was being tried for "an act of
sexual conduct with [D.R.]." Defendant called 10 witnesses,
including himself, to refute the specifically charged offense
occurring on or about November 10, 1992, as well as the allegations
surrounding the June 1992 incident taking place after the
relative's funeral. Though defendant did not specifically defend
against each of the incidents to which D.R. testified, on at least
two occasions in the report of proceedings defendant did offer a
blanket denial of all allegations concerning sexual abuse of D.R.
Counsel for defendant cross-examined D.R. in depth, attempting to
elicit specific dates, places, times, and witnesses present.
Furthermore, defendant even secured broadcast schedules from an
area television station to defend against the alleged October 1992
incident.
Pursuant to the doctrine of stare decisis, we adhere to the
decision of our supreme court in DiLorenzo and reverse the trial
court's order dismissing the amended information charge against
defendant. To the extent our holding in Edwards is inconsistent
with this result, Edwards is overruled.
Finally, we compare the date of the disposition of DiLorenzo
with the pendency of the present case. DiLorenzo was disposed of
on February 15, 1996, while the instant case was dismissed by the
trial court on May 3, 1995. The State timely filed its appeal,
thus effecting a continuation in the proceedings. See 134 Ill. 2d
R. 606. In reversing the trial court's dismissal of the charging
instrument, we recognize that our supreme court has the inherent
power to give its decisions prospective or retrospective
application. See Berryman Equipment v. Industrial Comm'n, 276 Ill.
App. 3d 76, 79 (1995). Generally, a supreme court decision applies
retroactively to cases pending at the time the decision is
announced. People v. Granados, 172 Ill. 2d 358, 365 (1996). A
decision will be applied retroactively unless the court expressly
declares that its decision is a clear break with the past, such as
when it explicitly overrules its own past precedent, disapproves a
previously approved practice, or overturns a well-established body
of lower court authority. People v. Phillips, 219 Ill. App. 3d
877, 879 (1991). Because the DiLorenzo decision offers no such
declarations warranting only prospective application, its holding
will be applied retroactively, and, thus, DiLorenzo is controlling
in the appeal before us.
For the foregoing reasons, the judgment of the circuit court
of Stephenson County is reversed, and the cause is remanded for
further proceedings.
Reversed and remanded.
GEIGER and RATHJE, JJ., concur.