dissenting:
I respectfully dissent because I believe that defendant’s conviction should be reversed outright. In my opinion, the State failed to prove, and cannot prove, under the facts in this case, that defendant committed the crime of attempted aggravated criminal sexual abuse. The facts in the case at bar do not constitute attempted aggravated criminal sexual abuse, and therefore defendant should not be subjected to another trial. Scrutiny of the record and study of the pertinent case law reveal that the State failed to carry its burden of proving that defendant committed a criminal attempt by taking the requisite "substantial step” toward perpetrating aggravated criminal sexual abuse. If the proof of any element of the charged crime is lacking or deficient, defendant is entitled to acquittal as a matter of law. To retry him under such circumstances would violate the constitutional prohibition against double jeopardy. Therefore, I dissent from my colleagues’ decision to remand this cause for new trial.
The majority reverses the appellate court’s affirmance of the conviction, based on one issue of trial error, and remands for new trial. The majority concludes that defendant was entitled to a jury instruction on the affirmative defense that he reasonably believed that the victim was 17 years of age or older. Defendant did not testify to what age he believed D.R. to be, nor did defense counsel introduce any evidence to show that defendant believed the victim to be older than he actually was. However, the opinion cites to cases which permit a defendant to tender an affirmative defense instruction even if defendant presents no affirmative evidence, as long as there is evidence in the record which supports an inference in favor of such a defense. In this case the actual or apparent age of the complaining witness is important. The fact that D.R. was only two months less than 17 years of age and that he was allowed to stay out all night and drink alcohol warrants the giving of an instruction to the jury to decide whether defendant had a reasonable belief that D.R. was not under age.
Notwithstanding my agreement with the conclusion of the majority that defendant’s affirmative defense instruction should have been given, I believe there are more cogent reasons why defendant’s conviction should be reversed. First and foremost, the majority opinion does not address the question of whether the State’s evidence against defendant duly proved the elements of the crime charged; it simply announces that the evidence is sufficient. However, the case at bar involves a fundamental question of whether the crime for which defendant was convicted can be proved under the facts of the case. The question is not whether the evidence establishes that defendant disrobed in front of D.R. and invited mutual masturbation. The defendant does not argue that the evidence failed to prove those facts, and the record contains sufficient evidence to establish them. Rather, the question is whether such conduct constitutes the crime of attempted aggravated criminal sexual abuse. Because I believe it does not, based.on case law, logic, and the facts of this case, I cannot agree with that portion of the opinion which summarily affirms the appellate court’s ruling on the sufficiency of the evidence, and orders defendant to be tried again. This is not a minor objection to the majority’s opinion, because the conclusion that defendant did not commit the crime of attempted aggravated criminal sexual abuse should result in the outright reversal of the conviction and not a remand for retrial. If any element of the crime charged is not proved or is deficient, requiring a defen-, dont to be retried would violate his constitutional right against double jeopardy.
In large part, the majority’s ruling that the evidence is sufficient stems from its failure to analyze the legal requirements of the crime of attempt and the underlying sexual offense. Therefore, it is necessary to examine both the legal elements of the offense with which defendant was charged and the evidence adduced at trial to prove the elements.
I
The Illinois Criminal Code of 1961 provides that "[a] person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Emphasis added.) 720 ILCS 5/8 — 4(a) (West 1992). The scienter of attempted crimes is the specific intent to commit a particular offense. See, e.g., People v. Harris, 72 Ill. 2d 16, 27-28 (1978); People v. Trinkle, 68 Ill. 2d 198, 203 (1977); People v. Viser, 62 Ill. 2d 568, 581 (1975). In addition to the requisite intent to commit a particular offense, a criminal attempt requires the taking of a substantial step toward committing the underlying offense. The defendant must, either by conduct or words or both, have actually begun to commit the crime or plainly manifested the intent to commit the underlying crime. Mere preparation for engaging in the proscribed act does not suffice. E.g., People v. Smith, 148 Ill. 2d 454, 459 (1992); People v. Terrell, 99 Ill. 2d 427, 436 (1984). To obtain a conviction under the Illinois attempt statute, the prosecution’s evidence must demonstrate that defendant came within " 'dangerous proximity to success[fui]’ ” completion of the crime. See United States v. Davis, 16 F.3d 212, 218 (7th Cir. 1994); People v. Smith, 148 Ill. 2d at 460 (and cases cited).
In the case at bar, one of the issues raised by defendant is whether his conduct reasonably can be found to constitute a substantial step toward committing the type of sexual contact prohibited by the aggravated criminal sexual abuse statute. The State argues that defendant’s act of undressing was not a lesser offense consisting of lewd exposure but instead constituted "preparation” for having sexual contact with D.R. As previously noted, however, mere preparation does not satisfy the requirement that a "substantial step” toward commission of the crime must be established in order to prove a defendant guilty of the inchoate crime of attempt. The record establishes that, with the exception of defendant’s oral inquiry to D.R., nothing else happened after defendant disrobed. He and D.R. remained seated on the floor talking. Defendant did not make any move toward D.R. that could be interpreted as the commencement of a sexual crime against him. Defendant did not reach toward D.R., did not touch his clothing or his body, restrain him, or engage in any conduct which would exhibit the specific intent to engage in prohibited sexual conduct with D.R. In my opinion, defendant did not take a substantial step toward perpetrating attempted aggravated criminal sexual abuse.
The majority concludes that defendant’s invitation for sexual conduct constitutes the necessary substantial step. However, the majority opinion offers no independent analysis beyond professing "careful consideration” of the issue. 175 Ill. 2d at 134. The elements of aggravated criminal sexual abuse are not analyzed in the majority opinion, nor is pertinent case law discussed or distinguished. As more fully explained below, the majority’s acceptance of the State’s theory that defendant’s passive invitation for sexual conduct sustains its burden of proving defendant guilty of the charged offense does not withstand analysis.
II
The relevant provision of the aggravated criminal sexual abuse statute applicable to the case at bar is section 12 — 16(d), which criminalizes a defendant’s "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 1992). The essential provision of the criminal sexual abuse statute requires proof that the defendant engaged in "sexual conduct” with the victim. "Sexual conduct” is defined as "any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, *** for the purpose of sexual gratification or arousal of the victim or the accused.” (Emphasis added.) 720 ILCS 5/12 — 12(e) (West 1992).
Case law holds that the elements of aggravated criminal sexual abuse require touching between the accused and the victim. In People v. Gann, 141 Ill. App. 3d 34 (1986), after reviewing the definition of sexual conduct, the appellate court concluded that the defendant’s self-stimulation in the presence of a minor did not violate the aggravated criminal sexual abuse statute because there was no sexual touching between the minor and the accused. Therefore, the appellate court reversed the defendant’s conviction of aggravated criminal sexual abuse and remanded for further proceedings, noting that defendant’s behavior was already addressed in the lewd exposure subsection of the public indecency statute.
In People v. Deal, 185 Ill. App. 3d 332 (1989), the court relied on Gann and held that a count charging aggravated criminal sexual abuse for defendant’s fondling himself in front of the minor for purposes of arousal did not state an offense. In People v. Harris, 205 Ill. App. 3d 873 (1990), the court held that absent physical contact between perpetrator and victim, a charge of public indecency based on sexual conduct failed to state an offense. Although the evidence that defendant masturbated in the presence of juvenile males would have supported a public indecency charge based on lewd exposure, the Harris court noted that the State did not charge defendant with that offense.
Gann, Deal, and Harris establish that a defendant who publicly exposes himself in a lewd manner or fondles himself in front of minors is not guilty of aggravated criminal sexual abuse, if he does not engage in direct sexual touching or fondling of the victims.1 None of these cases suggest that the defendants could have been prosecuted for attempted aggravated criminal sexual abuse based on the theory that their exposure and masturbation, without more, constituted the requisite substantial step toward engaging in sexual conduct with the minors. In the case at bar, it is uncontested that defendant did not touch D.R, make any move toward him, or coerce D.R. into engaging in masturbation with him. Defendant’s nudity or exposure by itself was not criminal in nature. Therefore, the question becomes whether the sole additional factor of defendant’s verbal invitation to D.R. to engage in sexual conduct can satisfy the "substantial step” requirement of criminal attempt in the case at bar.
In considering the above question, it should be noted that defendant’s solicitation for sexual conduct with D.R. did not violate any Illinois criminal statute. Indecent solicitation of a child prohibits persons older than 17 from soliciting a "child under the age of 13 to do any act, which if done would be aggravated criminal sexual assault, criminal sexual assault, aggravated criminal sexual abuse or criminal sexual abuse.” (Emphasis added.) 720 ILCS 5/11 — 6 (West 1992). In the case at bar, defendant’s solicitation for sexual conduct with D.R. did not constitute solicitation of a child because D.R. was not a child under the age of 13.
In People v. Nash, 183 Ill. App. 3d 924 (1989), the reviewing court affirmed a conviction for indecent solicitation of a child. It is significant that the defendant in Nash (as the defendant in the case at bar) had also been indicted for attempted aggravated criminal sexual abuse. The trial court directed a verdict in favor of defendant on the attempt charge. The facts revealed that a school custodian placed a note in the locker of a 10-year-old, requesting that the two of them see each other naked and touch each other. The effect of the directed verdict is to hold that such conduct did not constitute a substantial step toward committing aggravated criminal sexual abuse as a matter of law.
Consistent with the Nash court’s disposition of the attempted aggravated criminal sexual abuse charge, other cases also illustrate that when a conviction for an attempted sexual offense is sustained, the evidence revealed that the defendants had actually engaged in physical conduct signalling the forceful commencement of a sexual act, rather than merely a passive request for sexual conduct. For example, in People v. Sutton, 252 Ill. App. 3d 172 (1993), the defendant was convicted of crimes, including attempted aggravated criminal sexual abuse, based on evidence that the defendant punched, choked, lay on top of, and threatened the physically handicapped victim while beginning to remove her clothing and his own clothing. The court held that defendant’s "act of touching the victim’s body with his constituted a substantial step toward committing sexual conduct.” Sutton, 252 Ill. App. 3d at 187. In People v. Traufler, 152 Ill. App. 3d 987 (1987), the court affirmed a conviction for attempted aggravated criminal sexual assault, where the evidence of defendant’s specific intent to rape the victim and his substantial step toward perpetrating such offense included throwing the victim against the wall, telling her in essence that he wanted to rape her, and beginning to remove her clothing. See also People v. Bridgewater, 259 Ill. App. 3d 344 (1994).
In contrast to the active and forcible conduct evidenced in Sutton, Traufler, and Bridgewater, in the case at bar defendant’s request for sexual conduct was unaccompanied by even a suggestion of coercion or physical force. There is a qualitative difference between a passive request for sex and the actual commencement of a sexual crime, manifested by the use of force by a defendant. My research reveals no case comparable to the one at bar in which a defendant was convicted of attempted aggravated criminal sexual abuse based on disrobing in front of a minor or soliciting such minor, without any physical manifestation that the defendant, with the requisite intent, had begun forcing himself sexually on the victim.
In the instant case, defendant could not have been found guilty of a completed offense of aggravated criminal sexual abuse under Illinois law because there was no physical contact between the complainant and defendant. Nor is there sufficient evidence from which to infer that defendant’s nudity and mere verbal request for sexual contact, without more, legally constitutes an attempt to commit aggravated criminal sexual abuse. At most, the evidence demonstrates defendant’s hope or desire to engage in sexual conduct, which is not, to my knowledge, criminal. According to the facts reported, defendant made no move toward D.R. and in no way attempted, physically or verbally, to begin touching D.R. or coerce sexual conduct with him. Defendant’s undressing cannot reasonably be construed as attempted aggravated criminal sexual abuse; Otherwise, whenever a person removes clothing in the presence of another he or she could be prosecuted for attempted criminal sexual abuse.
To summarize, under Illinois’ statutory scheme of sexual offenses, defendant could not be convicted of the offense of aggravated criminal sexual abuse because there was no sexual contact between him and D.R. Defendant could not be convicted of solicitation of a child, because D.R. was older than 13 years of age. Furthermore, defendant’s act of disrobing in a nonpublic place is not a criminal offense. Notwithstanding the noncriminal nature of both acts — defendant’s undressing and his solicitation of sexual conduct with D.R. — the majority holds that in combination the acts give birth to a felony: attempted aggravated criminal sexual abuse. The alchemy behind such transformation is in no way explained in the majority decision.
In a single paragraph of its opinion, the majority in the instant case dispenses with defendant’s argument that the evidence did not sustain his conviction for attempted aggravated criminal sexual abuse. Without any discussion of cases involving attempts to commit aggravated criminal sexual offenses, the majority announces,
"After careful consideration, we agree with the appellate . court that this act of exposure, when added to the request for sexual conduct, was sufficient to constitute a substantial step notwithstanding the lack of any actual contact between defendant and the victim. 276 Ill. App. 3d at 1008-09, citing People v. Brewer, 118 Ill. App. 3d 189 (1983). We therefore believe the evidence at trial was sufficient for the jury to conclude that defendant was guilty beyond a reasonable doubt ***.” 175 Ill. 2d at 134.
The appellate court’s reliance on Brewer and this court’s apparent approval of that case is difficult to understand because Brewer involved different statutory offenses as well as children who were under the age of 13. In Brewer, the defendant had exposed himself to a six-year-old and a seven-year-old in a public park, offering them $5 to perform fellatio on him. The defendant was convicted of attempted indecent liberties with a child and indecent solicitation. One of the issues the defendant raised on appeal was whether his conviction for indecent solicitation should be vacated, either because it was based on the same acts as the conviction for attempted indecent liberties or because solicitation was a lesser included offense of attempted indecent liberties. Without extended analysis or case citation, the Brewer court agreed with defendant that the solicitation conviction should be vacated because, "[w]hile it [was] clear that separate acts were committed by the defendant, it is equally clear that the act of exposure alone without the request for fellatio would not have established the offense of attempt (indecent liberties) as a matter of law.” Brewer, 118 Ill. App. 3d at 198.
Although the Brewer court’s quoted language could be interpreted as implying that it was defendant’s request for fellatio, apart from or in addition to his public display, which satisfied the substantial step requirement of attempted indecent liberties, the defendant in Brewer had not challenged the propriety of the attempt charge and the court was not faced with the issue which is presented in the case at bar. Moreover, the offense of indecent liberties with a child (Ill. Rev. Stat. 1983, ch. 38, par. 11 — 4) is not the same offense as aggravated criminal sexual abuse and has been held to have substantially different elements. See, e.g., People v. Demeron, 153 Ill. App. 3d 440, 448-49 (1987) (holding that newly enacted statutory scheme of sexual offenses substantially changed nature of indecent liberties offense). The victims in Brewer were young children, the solicitation of whom was, and continues to. be, proscribed by law, while in the instant case, defendant’s solicitation of D.R., who was over the age of 13, is not a crime. Accordingly, whatever relevance the majority in the instant case perceives that Brewer has to the case at bar remains unexplained and obscure.
In the case at bar, defendant was sentenced to five years in prison for conduct that is not criminal under Illinois’ existing scheme of sexual offenses. He did not commit the predicate criminal sexual conduct because there was no sexual "touching or fondling” between him and D.R. Taking off one’s clothes in a private bedroom is not a crime, even if done during a conversation with a 16-year-old. Soliciting sexual conduct with a minor over the age of 13 is not a crime. Mere desire for sexual conduct is not the equivalent of specific intent to force such conduct upon another. Mere preparation for or anticipation of sexual conduct is not the substantial step required under Illinois attempt law. Under the majority’s holding today, a crime nonetheless emerges out of the mists. I cannot join in this result, nor can I condone this court’s requiring defendant to undergo a second trial and perhaps again be sentenced to a lengthy prison term. It is the duty of the reviewing court to ensure that no person accused of a crime is convicted if reliable evidentiary support for the conviction is lacking. The test is whether, after viewing the evidence in light most favorable to the prosecution, any rational fact finder could have found the essential elements of the offense beyond a reasonable doubt. E.g., People v. Schott, 145 Ill. 2d 188, 203 (1991). Applying this standard, I conclude that defendant’s conviction cannot be sustained.
The majority acknowledges that the jury received erroneous instructions and directs that such instructions not be given upon retrial. However, the majority does not acknowledge that its resolution of this case unfairly gives the State another chance to convict defendant of a serious felony based on insufficient evidence of any criminal conduct. The jury heard brief testimony describing defendant’s nude solicitation of a minor who was almost 17 years old. Despite the fact that defendant’s nude solicitation of D.R. was not criminal under Illinois law, the jury was hopelessly misinstructed on the proper elements of attempted aggravated criminal sexual abuse. The jury was also offered a confusing public indecency instruction that lacked evidentiary support. Under these erroneous instructions, as long as the jury believed that defendant made a nude solicitation for sex, the only verdict it could reach was that defendant was guilty of attempted aggravated criminal sexual abuse. No legitimate purpose is served in remanding this case for another trial. Defendant’s conduct may be viewed as offensive, but he should not be subjected to further felony prosecution and risk a significant prison term based on nonexisting evidence of criminal guilt.
For the foregoing reasons, I dissent.
There is an issue in the instant case concerning whether defendant’s conduct might be subject to a lesser included offense instruction based upon the lewdness provision of the public indecency statute. 720 ILCS 5/11 — 9(a)(2) (West 1992). The trial court, appellate court, and the majority of this court arrived at differing conclusions respecting this issue. Because I believe defendant’s conviction should be reversed outright, I do not definitively analyze this issue. However, I question whether the "public place” element of the public indecency statute is satisfied by defendant’s exposure, which took place at night in a bedroom where there was no evidence that members of the public would be likely to have viewed defendant.