specially concurring in part and dissenting in part:
I agree with the majority that the sentences on counts VIII and IX should run concurrently. I respectfully dissent, however, from the majority’s conclusion that the State proved count VI, a second offense of attempt (aggravated criminal sexual assault).
Defendant does not invoke the one-act, one-crime doctrine in his brief. He does not argue that the State “carved [more than one offense] from the same physical act.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844. Nor does he argue that “with regard to multiple acts,” he was “convicted of more than one offense, some of which [were], by definition, lesser[-]included offenses.” King, 66 Ill. 2d at 566, 363 N.E.2d at 844. He merely argues the State failed to prove him guilty of a second offense of attempt (as opposed to only one offense of attempt).
The majority says: “Just as multiple penetrations can support separate offenses of aggravated criminal sexual assault, multiple attempts to commit aggravated criminal sexual assault can support multiple convictions for attempt.” 379 Ill. App. 3d at 305. I agree that multiple attempts can support multiple convictions for attempt. But that truism begs the question of whether by striking K.D. repeatedly with the board and commanding her to spread her legs, defendant did indeed commit more than one offense of attempt, as that crime is defined in section 8 — 4(a) of the Criminal Code (Code) (720 ILCS 5/8 — 4(a) (West 2004)).
Attempt consists of two elements: (1) an intent to commit a specific offense, together with (2) an overt act constituting a substantial step toward the commission of the offense. 720 ILCS 5/8 — 4(a) (West 2004); Davis, 43 Ill. App. 3d at 614, 357 N.E.2d at 104-05. The majority reasons: “The multiple directions by defendant for K.D. to open up her legs and the multiple attempts to open KJD.’s legs so as to get the board inside KD.’s vagina constitute sufficient evidence from which a rational trier of fact could find that defendant committed two offenses of attempt (aggravated criminal sexual assault).” 379 Ill. App. 3d at 307. The way the majority loosely uses the word “attempt” invites confusion. At times, the majority uses the word to signify the offense of attempt, and at other times, it seems to use the word in its ordinary linguistic sense, to signify an act defendant took in his endeavor to commit aggravated criminal sexual assault. With the meaning of the term oscillating back and forth in this manner, the offense of attempt blurs into one of its elements, an overt act. I disagree with making the offense coextensive with one of its elements, such that every overt act equals a separate attempt. For instance, in the sentence quoted in this paragraph, I disagree with the equation of defendant’s “multiple directions” to K.D. with “multiple attempts” (understanding “attempt” as a statutorily defined offense).
Clearly, when defendant hit K.D. in the thighs, calves, and ankles with the board and commanded her to spread her legs, he did so with the intent of committing aggravated criminal sexual assault — or a trier of fact would be abundantly justified in so inferring. Thus, the element of intent was proved. Defendant continued to have that same intent while committing a series of overt acts (the second element): striking her again and again with the board and demanding that she expose her privates, evidently for penetration by the board. All of these acts were motivated by one intent. Surely, no one could plausibly suggest that in the brief intervals between blows, defendant ceased having the intent to commit aggravated criminal sexual assault and then quickly formed the intent again in time to deliver the next blow. He maintained that intent all along while wielding the board.
Here, then, is the question: If a defendant performs one substantial step and, a moment later, another substantial step, all the while having the same criminal intent, is each substantial step a separate offense of attempt? To this question, the majority really does not give an answer supported by relevant authorities; it merely answers “yes.” As far as I can determine, no other court in Illinois has so interpreted the attempt statute (720 ILCS 5/8 — 4 (West 2004)) during the 45 years it has been in existence. Rather, Illinois courts have repeatedly held that a single offense of attempt can encompass multiple acts. People v. Woods, 24 Ill. 2d 154, 158, 180 N.E.2d 475, 478 (1962) (“an attempt does exist where a person, with intent to commit a specific offense, performs acts which constitute substantial steps toward the commission of that offense” (emphasis added)); People v. Paluch, 78 Ill. App. 2d 356, 359, 222 N.E.2d 508, 510 (1966) (“The crux of the determination of whether the acts are sufficient to constitute an attempt really is whether, when given the specific intent to commit an offense, the acts taken in furtherance thereof are such that there is a dangerous proximity to success in carrying out the intent” (emphases added)); People v. Stevenson, 198 Ill. App. 3d 376, 383, 555 N.E.2d 1074, 1078 (1990) (“Attempt requires an intent to commit a specific offense and an act or acts constituting a substantial step toward the commission of the offense” (emphasis added)).
To my knowledge, only one case has held that each substantial step is a separate offense of attempt. That case comes from Massachusetts — and, ironically, even it undercuts the majority’s position. In Commonwealth v. Dykens, No. 2005 — 393 (001 — 017), slip op. at _ (September 7, 2005) (hereinafter Dykens), a grand jury indicted Kenneth Dykens on three charges of attempted breaking and entering. According to the testimony in the grand-jury hearing, on February 10, 2005, at 2:30 a.m., Dykens tried to break into John and Jacqui Cram’s house by (1) removing the screen from a window, (2) propping a ladder against the house, and (3) throwing a rock through a sliding glass door. Dykens, slip op. at _. For each of those three substantial steps, the grand jury indicted Dykens for a separate offense of attempt. Dykens, slip op. at _. Dykens moved to dismiss two of the three counts, along with the “corresponding habitual[-]offender charges,” arguing that the three acts “constitute^] only one continuing attempt to break[ in]to the Cram[s’] house.” Dykens, slip op. at _. The superior court denied his motion, reasoning as follows:
“ ‘[Wlhere a single statute is involved and the issue is whether two or more discrete offenses were proved under that statute rather than a single continuing offense, the question becomes whether the [(legislature intended to authorize more than one conviction.’ Commonwealth v. Decicco, 44 Mass. App. Ct. 111, 112[, 688 N.E.2d 1010] (1998) (internal citations omitted); Commonwealth v. Levia, 385 Mass. 345, 347-351[, 431 N.E.2d 928] (1982). ‘Ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity.’ Commonwealth v. Donovan, 395 Mass. 20, 29[, 478 N.E.2d 727] (1985).
In this case, [section 6 of chapter 274 of the] General Laws *** is clear. It prohibits the ‘attempt to commit a crime by doing any act toward its commission that fails in its perpetration[.]’ [Mass. Gen. Laws ch. 274, §6.] If the legislature intended for a single attempt charge to cover all overt acts directed toward the commission of a single crime, it would have used the words ‘any act or acts,’ rather than ‘any act.’ ‘It is a fundamental principle of statutory construction that “statutory language should be given effect consistent with its plain meaning and in light of the aim of the [legislature unless to do so would achieve an illogical result.” ’ Commonwealth v. Hatch, 438 Mass. 618, 632[, 783 N.E.2d 393] (2003), citing Sullivan v. Brookline, 435 Mass. 353, 360[, 758 N.E.2d 110] (2001). Consequently, Indictments 003, 004, 005, and 006 must stand.” Dykens, slip op. at _.
Like the Massachusetts statute, our attempt statute uses the term “any act”: “[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 2004). Illinois, however, also has a Statute on Statutes (5 ILCS 70/0.01 through 83 (West 2004)), section 1 of which provides: “In the construction of statutes, this Act shall be observed, unless such construction would be inconsistent with the manifest intent of the General Assembly or repugnant to the context of the statute.” 5 ILCS 70/1 (West 2004). Section 1.03 provides: “Words importing the singular number may extend and be applied to several persons or things, and words importing the plural number may include the singular.” 5 ILCS 70/1.03 (West 2004). By operation of sections 1 and 1.03 of the Statute on Statutes, “any act,” in the Illinois attempt statute (720 ILCS 5/8 — 4(a) (West 2004)), means — to quote the Massachusetts court — “ ‘any act or acts.’ ” From this alternatively singular or plural meaning, we should infer that “the legislature intended for a single attempt charge to cover all overt acts directed toward the commission of a single crime” (Dykens, slip op. at _). At the very least, the construction of “any act” as “any act or acts” creates an ambiguity in the attempt statute, which we should resolve in favor of lenity. See People v. Davis, 199 Ill. 2d 130, 140, 766 N.E.2d 641, 647 (2002); Dykens, slip op. at _.
Two other cases tend to deepen my reservations about the new-attempt-for-each-overt-act theory. In Missouri v. Cox, 752 S.W.2d 855, 857 (Mo. App. 1988), the “defendant ‘represented’ Mary Blair in proceedings to obtain social security benefits.” In the form appointing him as her representative, he waived his right to a fee. Cox, 752 S.W.2d at 857. After she won her social security claim, he threatened to have her benefits terminated unless she compensated him for his services as her representative. Cox, 752 S.W.2d at 857. He made this threat to her on several different occasions, for which a jury convicted him of multiple counts of attempt to steal $150 or more by coercion (Mo. Rev. Stat. §564.011 (1986)). He challenged five of these convictions on the ground of double jeopardy, arguing that “his five threats constituted a single act of attempted stealing and the individual threats were, at best, corroborative of his single intent to commit the crime of stealing. To [the] defendant, the intent and act were simply a continuing intent and continuing act.” Cox, 752 S.W.2d at 859. The Court of Appeals of Missouri rejected his double-jeopardy challenge. The court reasoned as follows:
“By this argument, [the] defendant would lead us into the quagmire of metaphysics. Did [the] defendant have one continuing intent, verbally manifested on separate days[,] or did he form a new intent manifested by each threat on each day[?] To avoid metaphysics, we resolve this kind of issue by determining whether there is an identifiable physical termination of the crime charged. [Citations.] We look to the time and place of commission of the conduct in question. Here [the] defendant’s utterances took place on five different occasions. Each occasion was separated by at least one day. This physical separation as a matter of common sense implies a newly formed intent to commit the crime and a new step toward its commission rather than a single continuous intent and act. The word ‘attempt’ means to try. Here, on separate days, [the] defendant simply followed the old adage: ‘If, at first, you don’t succeed, try, try again.’ ” Cox, 752 S.W.2d at 859.
In the present case, by contrast, defendant committed the “substantial steps” (hitting K.D. with a board and commanding her to spread her legs) at the same time, in the same place, and in the same course of conduct. There was no “identifiable physical termination” forming an interlude or dividing gap between separate offenses of attempt.
In United States v. Resendiz-Ponce, 549 U.S. 102, 103, 166 L. Ed. 2d 591, 595, 127 S. Ct. 782, 785 (2007), a jury convicted Juan ResendizPonce, a Mexican citizen, of illegally attempting to reenter the United States (8 U.S.C. §1326(a) (2000)). Because the indictment failed to allege “ ‘any specific overt act that [was] a substantial step’ toward the completion of the unlawful reentry,” the court of appeals set aside the indictment as fatally flawed. Resendiz-Ponce, 549 U.S. at 105, 166 L. Ed. 2d at 596, 127 S. Ct. at 786, quoting United States v. Resendiz-Ponce, 425 F.3d 729, 733 (9th Cir. 2005), rev’d, 549 U.S. 102, 166 L. Ed. 2d 591, 127 S. Ct. 782 (2007). The Supreme Court reversed the court of appeals. According to the Supreme Court, by alleging simply that Resendiz-Ponce attempted to reenter the United States, the indictment implicitly alleged the necessary overt act, for “attempt” implied an act, not merely intent. Resendiz-Ponce, 549 U.S. at 107, 166 L. Ed. 2d at 597, 127 S. Ct. at 787.
Resendiz-Ponce maintained that the indictment would have been sufficient only if it had alleged any of three overt acts he performed when attempting to reenter the United States: that he walked into an inspection area, that he presented a misleading identification card, or that he lied to the inspector. Resendiz-Ponce, 549 U.S. at 109, 166 L. Ed. 2d at 598, 127 S. Ct. at 788. The Supreme Court responded:
“Individually and cumulatively, those acts tend to prove the charged attempt — but none was essential to the finding of guilt in this case. All three acts were rather part of a single course of conduct culminating in the charged ‘attempt.’ As Justice Holmes explained in Swift & Co. v. United States, 196 U.S. 375, 396[, 49 L. Ed. 518, 524, 25 S. Ct. 276, 279] (1905), ‘[t]he unity of the plan embraces all the parts.’ ” Resendiz-Ponce, 549 U.S. at 109, 166 L. Ed. 2d at 598-99, 127 S. Ct. at 788.
Then, in a footnote, the Supreme Court added:
“Likewise, it would be unrealistic to suggest that [the] respondent actually committed three separate attempt offenses involving three different overt acts. Indeed, if each overt act were treated as a separate element, an attempt involving multiple overt acts might conceivably qualify for several separate offenses, thus perversely enhancing, rather than avoiding, the risk of successive prosecution for the same wrong.” Resendiz-Ponce, 549 U.S. at 109 n.5, 166 L. Ed. 2d at 599 n.5, 127 S. Ct. at 788 n.5.
In the present case, it would be unrealistic to suggest that defendant committed a separate offense of attempt every time he commanded K.D. to spread her legs and every time he hit her with the board. If the State had charged him with aggravated assault in counts V and VI, each blow of the board would be a separate offense. Instead, the State charged him with attempt in those counts — an inchoate offense, a very different offense from assault. The policy behind the offense of attempt is to punish the dangerous proximity to the substantive offense (Paluch, 78 Ill. App. 2d at 359, 222 N.E.2d at 510), not, specifically, the substantial steps (which, absent the criminal intent, could be innocuous in themselves). Once the defendant takes a substantial step, he has crossed the threshold of dangerous proximity and becomes criminally liable. Treating a subsequent substantial step as a new attempt would be tantamount to prosecuting him again for coming within dangerous proximity to commission of the same substantive offense (to which he already was in dangerous proximity, with resulting criminal liability). Subdividing an attempt into numerous miniattempts, one for each overt act, perversely enhances the risk of successive prosecution for the same wrong. Depending on the number of overt acts, a defendant could end up being punished more severely for attempting to commit a substantive offense than if he had actually committed the substantive offense. It is doubtful the legislature intended such an absurdity. I would reverse the conviction on count VI on the ground of insufficiency of evidence.