concurring in part and dissenting in part:
The majority acknowledges that, under Collins, we cannot reverse a guilty finding for insufficient evidence unless, viewing the evidence in the light most favorable to the prosecution, we conclude that no rational trier of fact could have found defendant guilty. 394 Ill. App. 3d at 91, citing Collins, 106 Ill. 2d at 261. In its statement of facts (394 Ill. App. 3d at 90), the majority makes perfunctory mention of some of the trial court’s findings, which, of course, are critical under Collins. It also uses quotes from the trial court opinions on other counts (on which the trial court found defendant not guilty) to support the decision to reverse the trial court’s finding on the aggravated-criminal-sexual-abuse count now at issue. 394 Ill. App. 3d at 96. However, the majority does not quote, and its analysis does not address, the trial court’s findings with respect to the aggravated-criminal-sexual-abuse conviction the majority today overturns. I cannot take the same approach. I instead follow the evidence, the trial court’s findings, and the law governing review of both, to the inexorable conclusion that we should affirm defendant’s convictions.
The well-established Collins standard demands not only that we consult, but that we actually defer, to a trial court’s findings regarding the sufficiency of the evidence to convict. The standard can be difficult to apply, especially in jury cases, because triers of fact often do not record their reasoning, thus leaving reviewing courts to speculate as to the possible grounds for their decisions. Here, however, review under the Collins standard should be relatively easy, because the trial court made the effort to render a lucid and logical explanation of its view of the evidence. Therefore, although the majority analysis fails to quote any of the trial court’s findings that it overturns, I quote in full the trial court’s reasoning on the aggravated-criminal-sexual-abuse charge now at issue. After hearing four separate witnesses to the incident describe defendant’s conduct, the trial court ruled as follows on the charges related to defendant’s kissing L.R:
“The kisses by the Defendant were more than pecks on the lips, which might have been acceptable considering the testimony of L.R.’s mother. Even discarding the testimony of the one-minute kiss by Heller, according to the other witnesses, kisses on L.R.’s mouth ranged from 4 to 15 seconds, which exceeded a reasonable peck on the lips.
Evidence that Defendant had his mouth open while kissing L.R. on the lips is a further indicator that Defendant’s action was intended for something other than a reasonable kiss on the lips by a grandfather.
The manner in which the Defendant positioned his body while kissing L.R. is an indicator that his conduct was sexual in nature. By positioning, I mean the straddling of L.R. while kissing her, as well as kissing her while his legs were between hers.
The fact that there was more than one kiss on the lips in a brief period of time may suggest his conduct was unreasonable, although by itself does not carry a great deal of weight.”
These are not the words of an irrational trier of fact, and, under the Collins standard, the majority could not acknowledge them and still reach its desired result. So, instead, the majority’s analysis ignores the trial court’s findings and substitutes its own. The majority’s findings, not surprisingly, contrast sharply with the trial court findings the majority declines to address.
When it found defendant guilty for the above-quoted reasons, the trial court relied on four discrete factors drawn from the evidence: the duration of the kisses, the “open-mouth” nature of the kisses, the body positioning during the kisses, and the number of kisses.
On the first factor, the majority concludes, after a recapitulation of some of the testimony, that “[t]he length of time of the kisses alone *** does not support the element of a sexual purpose.” 394 Ill. App. 3d at 97. I cannot say for certain how the majority reaches this conclusion, but I can say that I disagree that the duration of the kisses does not support a finding of guilt. Fifteen seconds — the time established by the evidence when construed in a light most favorable to the State — is a very long time in this context. Defendant started kissing the four-year-old girl. One. Two. Three. Four. Five. Six. Seven. We are not yet halfway done. Eight. Nine. Ten. Eleven. Twelve. Thirteen. Fourteen. Fifteen. Defendant stopped kissing the four-year-old girl. Even the quick reader will agree that the duration of that kiss tends to indicate something more than an innocent peck. (I illustrate just one kiss, but, as I discuss below, the trial court found that defendant did not kiss the girl just once.) The majority turns the trial court’s finding on this first factor completely on its head by concluding that the duration of the kisses did not support a finding of guilt. I disagree with the majority’s conclusion that no rational person could share the trial court’s interpretation of this factor. See Collins, 106 Ill. 2d at 261.
The majority responds to the above illustration by sardonically counting to four — the lower end of the 4- to 15-second duration described in the testimony — and then implying that my dissent is only partially representing the facts by illustrating only the 15-second duration. 394 Ill. App. 3d at 90 n.l. There is a good reason I spend “no time [arguing] how short 4 seconds is” (394 Ill. App. 3d at 90 n.l). As Collins itself explained, “ ‘[o]nce a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.’ ” (Emphasis omitted.) Collins, 106 Ill. 2d at 261, quoting Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789. Here, in the light most favorable to the State, the evidence establishes at least one 15-second kiss. The fact that defendant also kissed this child an unspecified number of additional times for several seconds but less than 15 seconds hardly undercuts the significance of the trial court’s assessment of the 15-second kiss. The majority’s criticism of my emphasis on the 15-second count further illustrates its failure to follow Collins.
On the trial court’s second factor, the majority analysis not only ignores the trial court’s finding that the kisses were open-mouth, but actually implies the opposite by repeating several times that the kisses did not involve tongues5 while failing to mention at the same time that the trial court found that defendant had an open mouth during the kisses. (The majority mentions evidence that the kisses were open-mouth, but it does not do so when it assigns persuasive force to the idea that defendant did not use his tongue.) I disagree with the majority’s (unstated) conclusion that no rational person could share the trial court’s interpretation that the open-mouth nature of the kisses supported a finding of guilt. See Collins, 106 Ill. 2d at 261.
On the third factor, again, the majority takes the evidence of defendant’s body positioning and draws an inference directly contradicting the inference drawn by the trial court. The majority accomplishes this by twisting the trial court’s finding. While the trial court relied on “body positioning” during the kisses, the majority changes the issue to whether defendant’s “body positioning or touching” (emphasis added) (394 Ill. App. 3d at 95) during the kisses indicated a sexual motive. The majority then quotes passages in which the trial court itself stated that the evidence did not support a conviction of sexual abuse based on bodily touching. 394 Ill. App. 3d at 95-96. (These quotes come from the trial court’s rulings on counts unrelated to the count now at issue, which centers on defendant’s kissing the victim.) By changing the trial court’s findings so that they rely on “touching,” the majority causes the trial court’s findings to appear contradictory. In actuality, the trial court declined to convict defendant based on instances of bodily contact, but it thought defendant’s positioning during the kisses, even if the touching alone was not sexual abuse beyond a reasonable doubt, nevertheless supported conviction based on the kisses. I think the testimony describing defendant’s straddling L.R. or having his legs between hers was sufficient to allow the trial court rationally to conclude that defendant’s body positioning during the kisses supported a finding of guilt. I disagree with the majority’s conclusion that no rational person could share the trial court’s interpretation of this factor. See Collins, 106 Ill. 2d at 261.
Finally, the majority analysis does not address the trial court’s fourth factor, the number of the kisses, other than to acknowledge that “defendant kissed L.R. at least once.” 394 Ill. App. 3d at 97. I disagree with the majority’s (unstated) conclusion that the trial court was irrational when it found that the number of the kisses helped establish that defendant acted for sexual gratification or arousal.
Taken in total, the trial court’s findings indicate that, as part of a series of closely successive contacts, defendant kissed his four-year-old granddaughter on the lips, with an open or moving mouth, multiple times, for up to 15 seconds at a time, while the young girl was supine and he straddled her or put his legs between hers. There was ample evidence to support these findings, which, especially when combined, are more than sufficient under Collins to support the inference of sexual purpose necessary to affirm defendant’s conviction. I therefore disagree with the majority’s position that no rational trier of fact could have found defendant guilty based on the above evidence. See Collins, 106 Ill. 2d at 261.
The majority avoids direct confrontation with the trial court’s findings through several techniques, including separating the factors instead of considering them cumulatively as the trial court did (and even then outright failing to consider parts of the trial court’s ruling), obfuscating its discussion of the length of the kisses by blending it with the discussion of defendant’s body positioning, using conclusory language or repetition of facts in the place of analysis, and infusing its analysis with facts whose relevance is never explained.6 In response to this point, the majority objects that I “fail[ ] to explain [my] rationale [for] ignoring these facts entirely.” 394 Ill. App. 3d at 95 n.3. Quite to the contrary, I have explained my rationale — the relevance of those facts has not been explained. Indeed, even after I point out that the majority does not explain why these facts are relevant, all the majority offers to explain their relevance is the conclusory, and unsupported, statement that the facts are “obviously relevant.” 394 Ill. App. 3d at 95 n.3. The majority’s response proves my point that it does not explain the relevance of many of the facts on which it relies, as well as my point that it relies on conclusory language in the place of analysis.
The majority also cites as authority a string of cases in which courts affirmed sexual-purpose-based convictions based on facts much more lurid than those present here. 394 Ill. App. 3d at 95-96. But the issue is not whether the conduct here was as prurient as that of another case or whether the majority can set a “stark contrast” (394 Ill. App. 3d at 96 n.4) between this case and others, but whether a rational trier of fact could infer sexual purpose based on these facts. Further, the litany of cases in the majority opinion all involve courts affirming convictions rather than overturning them. Therefore, they do not help the majority explain what quantum of evidence allows a reviewing court to reverse a trial court’s finding of guilt. By citing these cases without observing the difference between a reviewing court that affirms and one that reverses a trial court finding of guilt, the majority illustrates that it has not fully contemplated the implications of the deference we must afford the trial court’s findings under Collins. If the majority could point to some cases in which reviewing courts overturned convictions based on stronger evidence, it might find support for its holding, but it gains nothing from citation to stronger cases in which the reviewing courts affirmed the trial courts, other than a demonstration of the most straightforward applications of the rule I champion here, that reviewing courts should defer to trial court findings. From the majority’s inability to locate a case in which a reviewing court overturned a trial court on facts weaker, or equivalent to, those here, the clear implication is that no such cases exist. Defendant has not cited any, and the majority’s extraordinary efforts — its citations reveal a coast-to-coast survey of American jurisprudence — do not seem to have uncovered one.7
Collins has long been understood to require that a reviewing court defer to a trial court’s findings of fact. The majority violates Collins by ignoring the trial court’s findings, omitting mention of evidence tending to establish defendant’s guilt, and fully substituting its judgment for that of the trial court.
The majority is correct when it says that there was no testimony that defendant used his tongue. During his testimony, Mr. King stated that “to [him] it looked like [defendant] was giving her tongue kisses,” but, for reasons that are not clear from the record, the trial court sustained defense counsel’s objection to the testimony. The trial court then refrained from relying in any way on that rejected testimony when it rendered its ruling. Its conclusions regarding the nature of the kisses between defendant and the girl were limited to those based on testimony that defendant’s mouth was open, thus further demonstrating how careful the trial court was in dealing with the evidence.
For example, to distinguish this case or to argue that defendant’s actions were not for sexual gratification or arousal, the majority uses the ideas that the girl here was not “startled by the act” (394 Ill. App. 3d at 93), the act was not “performed in the dark” (394 Ill. App. 3d at 93), the act was performed by a “close family member” rather than a neighbor (394 Ill. App. 3d at 93), there was no evidence “that L.R. was upset by” defendant’s conduct (394 Ill. App. 3d at 93, 94) there was evidence that she did not pull away from the kisses (394 Ill. App. 3d at 93, 94), “defendant was so intoxicated that he could not stand and was falling down” (394 Ill. App. 3d at 94), “defendant was not using force” (394 Ill. App. 3d at 95), “L.R. was rolling around on the ground with defendant and sticking her finger in defendant’s belly button” (394 Ill. App. 3d at 95), and “L.R. was being held up in the air by [defendant] and kissed on the cheek” (394 Ill. App. 3d at 95).
In response to my pointing out that its citations do not support its decision, the majority observes that I do not cite any cases in which reviewing courts affirmed under comparable facts. That is hardly a defense of the relevance of the majority’s own citations. However, the majority is correct that I have declined to search out such cases. My reason is that Collins lays out a standard that very clearly controls the outcome here.