People v. Kolton

• Decision Date: 23 March 2006
• Docket Number: No. 99221.,99221.
• Citation: 848 N.E.2d 950,219 Ill.2d 353
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Marian KOLTON, Appellant.
• Court: Illinois Supreme Court

848 N.E.2d 950

219 Ill.2d 353

The PEOPLE of the State of Illinois, Appellee, v. Marian KOLTON, Appellant.

No. 99221.

Supreme Court of Illinois.

March 23, 2006.

Rehearing Denied May 22, 2006.

COPYRIGHT MATERIAL OMITTED

Michael J. Pelletier, Deputy Defender, Paul Rathburn, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for appellant, and Marian Kolton, Ullin, appellant pro se.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine, State's Attorney, Chicago (Linda D. Woloshin, Assistant Attorney General, Chicago, James E. Fitzgerald, Annette Collins, Veronica Calderon Malavia and Eve Reilly, Assistant State's Attorneys, of counsel), for the People.

Justice McMORROW delivered the judgment of the court, with opinion:

On May 23, 2000, defendant Marian Kolton was charged in a single count indictment with predatory criminal sexual assault of a child in violation of section 14.1(a)(1) of the Criminal Code of 1961 (720 ILCS 5/12-14.1(a)(1) (West 2000)). The indictment alleged:

"defendant was 17 years of age or older and committed an act of sexual penetration upon [C.S.], to wit: an intrusion of Marian Kolton's finger into [C.S.'s] vagina, and [C.S.] was under thirteen years of age when the act of sexual penetration was committed."

Following a bench trial, the trial court found that the "intrusion" necessary for an act of sexual penetration had not been proven beyond a reasonable doubt, but that "the lesser included offense of aggravated criminal sexual abuse [720 ILCS 5/12-16(c)(1) (West 2000)] was proven beyond a reasonable doubt." Defendant was convicted of aggravated criminal sexual abuse and sentenced to 90 days' incarceration plus 4 years' felony probation.

Defendant filed a posttrial motion for reconsideration. Relying on this court's decision in People v. Novak, 163 Ill.2d 93, 205 Ill.Dec. 471, 643 N.E.2d 762 (1994), defendant argued that aggravated criminal sexual abuse is not a lesser-included offense of predatory criminal sexual assault and that the trial court erred by finding him guilty of a crime which was not charged in the indictment. Defendant's motion was denied and defendant appealed. The appellate court, with one justice dissenting, affirmed defendant's conviction. 347 Ill.App.3d 142, 282 Ill.Dec. 587, 806 N.E.2d 1175.

We granted defendant's petition for leave to appeal (177 Ill.2d R. 315), and now affirm the judgment of the appellate court.

BACKGROUND

At defendant's bench trial, Rolling Meadows police officer Jason Morrison testified that, on the morning of Sunday, April 30, 2000, he and his partner were on patrol when they noticed a green minivan parked diagonally across three parking spaces, in the nearly empty parking lot of the Continental Towers Business Complex at 1701 Golf Road. The officers exited their patrol car to investigate. They checked the minivan and, seeing no one in or near it, they climbed the 10-foot embankment that ran along the east side of the parking lot, to check the wooded area at the top of the embankment. As the officers approached the top of the embankment, they saw a young girl, later identified as 12-year-old C.S., coming out of the wooded area, followed by an older man, later identified as the 49-year-old defendant.

When questioned, defendant initially told the officers that he was C.S.'s grandfather and that they had been looking at trees. Officer Morrison testified that he found this explanation implausible because C.S. appeared to be Latino, while defendant spoke with a heavy Polish accent. Upon further questioning, defendant admitted that he was not C.S.'s grandfather but, rather, the owner and landlord of the building where C.S. lived with her family. Defendant told the officers that he had gone to C.S.'s apartment that morning to make repairs and found that he needed to purchase some doors. Defendant said C.S. came with him to go to the store. Defendant claimed that his wife had been with them, too, but that she had left them in the parking lot so that they could look at trees while she shopped. Officer Morrison noted, however, that there were no stores anywhere near the parking lot.

Officer Morrison testified that he took C.S. down the embankment, where he questioned her away from defendant. At that time, C.S. revealed that defendant had offered to give her money if she would let defendant "hug" her. Defendant was then taken into custody and both defendant and C.S. were transported to the police station. Later that day, C.S. was taken to the Child Advocacy Center (CAC) for a victim sensitivity interview and then to the hospital for a physical examination. No one from the hospital or the CAC testified at trial.

The State's second witness was Rolling Meadows Police Detective Gadomski, who testified that, in the evening of April 30, 2000, he questioned defendant, who was being held in custody at the Rolling Meadows police station. Defendant told Detective Gadomski that he was the landlord of the building where C.S. lived with her family, that he had been going to Home Depot to buy doors for C.S.'s apartment, and that C.S. had agreed to come along to help carry the doors. However, defendant gave Detective Gadomski a different explanation for why he was in the parking lot. Defendant claimed that he became lost going to the Home Depot and that he parked his vehicle in the parking lot and climbed the embankment to try to get his bearings. Detective Gadomski testified that he asked defendant why he took a blanket with him and defendant replied, "I don't know, I've lost my mind." Later, defendant claimed that he mistakenly took the blanket, thinking that it was a box of cigars.

The State's last witness was C.S., who testified that, on April 30, 2000, defendant asked her to accompany him to the Home Depot to help him carry doors he was going to purchase for her mother's apartment. C.S. also testified that, after leaving her apartment, they did not go to the store. Instead, they stopped in a parking lot. C.S. said she asked defendant to take her home, but he told her to be patient and to come with him up the embankment to look at trees. At the top of the embankment, defendant put a blanket on the ground under the trees and told her to sit down. C.S. said she sat on the blanket "cross-legged" and defendant sat down next to her. She testified that defendant began to hug her, but she told him to stop. Defendant then offered her money to let him touch her, but she said no. Nevertheless, defendant reached over, moved her shorts and underwear to the side and put his finger into her vagina. After he did this, C.S. got up and asked to go home. C.S. said that, as they were leaving, she saw two police officers coming up the embankment.

After hearing all of the evidence, the trial judge held that C.S. was credible, but without any medical corroboration he could not find beyond a reasonable doubt that sexual penetration had taken place. The trial judge then found defendant guilty of aggravated criminal sexual abuse as a lesser-included offense of predatory criminal sexual assault. As noted earlier, the appellate court affirmed defendant's conviction, with one justice dissenting.

ANALYSIS

A defendant in a criminal prosecution has a fundamental due process right to notice of the charges brought against him. People v. DiLorenzo, 169 Ill.2d 318, 321, 214 Ill.Dec. 846, 662 N.E.2d 412 (1996). For this reason, a defendant may not be convicted of an offense he has not been charged with committing. People v. Baldwin, 199 Ill.2d 1, 6, 262 Ill.Dec. 9, 764 N.E.2d 1126 (2002); see also People v. Knaff, 196 Ill.2d 460, 472, 256 Ill.Dec. 881, 752 N.E.2d 1123 (2001); People v. Jones, 149 Ill.2d 288, 292, 172 Ill.Dec. 401, 595 N.E.2d 1071 (1992). A defendant may, however, be convicted of an uncharged offense if it is a lesser-included offense of a crime expressly charged in the charging instrument (Novak, 163 Ill.2d at 105, 205 Ill.Dec. 471, 643 N.E.2d 762), and the evidence adduced at trial rationally supports a conviction on the lesser-included offense and an acquittal on the greater offense (Novak, 163 Ill.2d at 108, 205 Ill.Dec. 471, 643 N.E.2d 762).

The first step when deciding whether a defendant has been properly convicted of an uncharged offense is determining whether the offense is "included" in the offense that was charged. An "included offense" is defined by statute as an offense which is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged. 720 ILCS 5/2-9(a) (West 2000). This definition offers little guidance because it does not specify the factors to be considered when deciding whether an uncharged offense is lesser included. See Novak, 163 Ill.2d at 105-06, 205 Ill.Dec. 471, 643 N.E.2d 762. For this reason, courts have employed various approaches for determining whether a particular offense is a lesser-included offense of a charged crime. In Novak, we identified three main approaches: (1) the abstract elements approach; (2) the charging instrument approach; and (3) the factual or evidence approach, also known as the "inherent relationship" approach.

Pursuant to the abstract elements approach, an offense is lesser included only if all of the statutory elements of the lesser offense are contained in the greater offense. This approach was rejected as too formulaic and rigid. Novak, 163 Ill.2d at 111, 205 Ill.Dec. 471, 643 N.E.2d 762. On the other hand, the "factual" or "evidence" approach, which looks to the facts adduced at trial to determine whether the proofs offered on the greater offense establish the lesser offense, was determined to be too broad. With this approach, neither the defendant nor the prosecution would have notice of all possible lesser offenses until the close of all of the evidence. Novak, 163 Ill.2d at 110, 205 Ill.Dec. 471, 643 N.E.2d 762.

After weighing the relative...