dissenting:
I respectfully dissent.
It is a defense to the offense charged if "the accused reasonably believed the person to be 17 years of age or over.” 720 ILCS 5/12 — 17 (West 1992).
A defendant is entitled to an instruction on his theory of the case if there is "some foundation” for the instruction in the evidence. (People v. Crane (1991), 145 Ill. 2d 520, 526, 585 N.E.2d 99, 102 (instruction on mistake of fact).) Generally, very slight evidence regarding a theory will justify the giving of an instruction on that theory. (People v. Moore (1993), 250 Ill. App. 3d 906, 915, 620 N.E.2d 583, 590 (included offense); People v. Arnold (1985), 139 Ill. App. 3d 429, 434, 487 N.E.2d 997, 1000 (defendant objected to giving of murder instruction).) When a court refuses to instruct on a certain issue, it in effect directs a verdict on that issue. (See People v. Cord (1994), 258 Ill. App. 3d 188, 192, 630 N.E.2d 173,176.) In deciding whether to instruct on a certain theory, the court’s role is to determine whether there is some evidence supporting that theory; it is not the court’s role to weigh the evidence. See People v. Creamer (1986), 143 Ill. App. 3d 64, 69, 492 N.E.2d 923, 927.
The rule that the instruction need only be supported by some evidence is found in civil as well as criminal cases. In criminal cases, there may be some reluctance to give an instruction because the State will then have the burden of proof on that issue, even if it is an affirmative defense. Nevertheless, the same standard as in civil cases applies — only some evidence is necessary in order to raise an affirmative defense. (People v. Kite (1992), 153 Ill. 2d 40, 44-45, 605 N.E.2d 563, 565.) It is not necessary that the defendant present any evidence if the affirmative defense is raised by the State’s evidence. 720 ILCS 5/3 — 2(a) (West 1992).
In the present case, the victim was 16 years and 10 months old at the time of the offense. The jury saw the victim testify and was entitled to determine whether there was a reasonable doubt whether defendant believed the victim to be 17. Defendant did not know the victim before the incident, the victim was engaged in an activity restricted to adults (drinking beer) when defendant encountered him, and the victim was apparently free to stay overnight at the apartment. The majority cites Lemons for its holding, but in Lemons the victim was only 14, and there was evidence that the defendant had been advised she was only 14. Lemons, 229 Ill. App. 3d at 652, 593 N.E.2d at 1044.
Lemons was not an instruction case; the jury had apparently been instructed under IPI Criminal 3d No. 11.60 that the State had to prove defendant did not reasonably believe the victim to be 17 years of age or older. ("Thus, the jury, to convict defendant, only had to find sexual penetration or sexual conduct occurred and that defendant did not reasonably believe the victim to be 17 years of age or older.” (Lemons, 229 Ill. App. 3d at 651, 593 N.E.2d at 1044).) The Lemons defendant did not appeal any failure to instruct, but argued the State failed to prove beyond a reasonable doubt his belief as to the victim’s age. The appellate court held a rational trier of fact could have found against defendant on that issue (a holding unavailable in the present case because the trier of fact was not instructed on the issue), but went on in dicta to indicate the evidence was not sufficient to impose on the State the burden of proving that defendant’s belief was unreasonable.
Perhaps it is legitimate to complain that the Lemons defendant, who in fact testified, did not present direct testimony as to his reasonable belief. In any event, the defendant in the present case did not testify at all. Defendant was not required to testify as to his belief in order to raise the issue of his reasonable belief. If defendant had testified he believed the victim to be 17, that testimony would not have been conclusive. The stronger evidence may be the circumstantial evidence. Mental states are not commonly proved by direct evidence. Instead, they may be inferred from the character of a defendant’s acts and the circumstances surrounding the commission of the offense. People v. Summers (1990), 202 Ill. App. 3d 1, 10, 559 N.E.2d 1133, 1138.
I would reverse and remand for a new trial.