People v. Allensworth

• Decision Date: 14 May 1992
• Docket Number: No. 3-91-0435,3-91-0435
• Citation: 175 Ill.Dec. 739,600 N.E.2d 1197,235 Ill.App.3d 185
• Parties: , 175 Ill.Dec. 739 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert M. ALLENSWORTH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1197

600 N.E.2d 1197

235 Ill.App.3d 185, 175 Ill.Dec. 739

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert M. ALLENSWORTH, Defendant-Appellant.

No. 3-91-0435.

Appellate Court of Illinois,

Third District.

May 14, 1992.

As Modified on Denial of Rehearing Nov. 6, 1992.

Peter A. Carusona, Office of State Appellate Defender, Ottawa, John O'Gara, Trial Counsel, Galesburg, for Robert M. Allensworth.

Jay P. Hoffmann, State's Attys. Appellate Prosecutor, Ottawa, Raymond Kimbell III, State's Atty., Galesburg, John X. Breslin, Deputy Director, State's Attys. Appellate Prosecutor, Ottawa, for the People.

Justice GORMAN delivered the opinion of the court:

A jury found the defendant, Robert M. Allensworth, guilty of two counts of aggravated criminal sexual abuse (Ill.Rev.Stat.1989, ch. 38, par. 12-16(d) ). The trial court sentenced him to concurrent 3-year prison terms. He appeals.

Only those facts necessary to decide the issues presented will be set forth. Prior to trial, although the defendant had originally indicated that he wished to represent himself, the court appointed the public defender. At a later hearing, the public defender informed the court that he and the defendant had decided to wait until examining the discovery materials before determining whether he would act in his usual role or as standby counsel. After the trial court admonished the defendant concerning the dangers of representing himself, the hearing concluded with the defendant agreeing that he had an attorney representing him at that point.

The State later filed a motion requesting that the defendant be examined to determine whether he was fit to stand trial. The court granted the motion. Thereafter, the defendant filed a pro se motion to dismiss the charges. In the motion, he made statements about the incident that formed the basis of the charges against him. At the hearing on the pro se motion, the public defender appeared as standby counsel for the defendant and indicated that the motion had been filed against his advice. The court stated that the defendant should not have made certain allegations in the motion and that this was proof that he needed assistance. The court then strongly advised the defendant that it would be in his best interests to accept the assistance of counsel and reserved ruling on the pro se motion until the question of the defendant's fitness was resolved.

At the fitness hearing, the assistant public defender appeared and the court noted that the defendant was trying the matter pro se with the assistance of standby counsel. Standby counsel stated that the defendant was technically still representing himself, but counsel had reviewed the psychiatric report with the defendant and they were both prepared to stipulate to the information in the report. The defendant stated that he agreed with this. Standby counsel stated that he had explained to the defendant that by stipulating they were admitting to the psychiatrist's qualifications as an expert and were admitting that if the psychiatrist were called to testify, he would testify as indicated in the report. The trial court found the defendant fit to stand trial and then had the prosecutor, the defendant, and standby counsel sign the resulting order.

The evidence presented at trial established that a videotape had been made in January 1990, which depicted the hands of the two minor victims, J.G. and D.C., touching the defendant's exposed penis. At the time the tape was made, J.G. was 16 years old and D.C. was 15 years old. Another participant was 18 years old at the time. The evidence also established that the defendant was born in 1937. At the close of evidence, the trial court dismissed the three counts of child pornography, finding insufficient proof that the defendant was responsible for the videotaping. The defendant argued that there was a reasonable doubt that he had had any sexual contact with a minor, and that he was forced to participate. The jury found him guilty of two counts of aggravated criminal sexual abuse.

At the sentencing hearing, J.G.'s father testified that the entire family needed counseling as a result of the offense. He further stated that he had consulted with the Spoon River Medical Center, which could provide family counseling services at $60 per hour for 12 monthly sessions. The trial court ordered the defendant to pay the clerk $720, which was to be used for reimbursement of the counseling.

On appeal, the defendant first argues that the indictment which charged him with two counts of aggravated criminal sexual abuse was insufficient because it did not state two necessary elements of the crime. Specifically, he complains that neither count stated that the sexual conduct performed was "for the purpose of sexual gratification or arousal of the victim or the accused" or that the defendant was "at least five years older than the victims."

The indictment stated in pertinent part:

[Count 1] " * * * ROBERT M. ALLENSWORTH committed the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE * * * in that said defendant knowingly committed an act of sexual conduct with [J.G.], who was at least thirteen (13) years of age but under (17) years of age, in that he allowed [J.G.] to fondle his * * * penis, in violation of Illinois Revised Statutes, Chapter 38, Paragraph 12-16(d).

[Count 4] * * * ROBERT M. ALLENSWORTH committed the offense of AGGRAVATED CRIMINAL SEXUAL ABUSE * * * in that said defendant knowingly committed an act of sexual conduct with [D.C.], who was at least thirteen (13) years of age but under sixteen (16) years of age, in that he allowed [D.C.] to fondle his * * * penis, in violation of Illinois Revised Statutes, Chapter 38, Paragraph 12-16(d)."

We will first address the defendant's contention with regard to the "purpose of sexual gratification" provision. The definition of "sexual conduct" appears in section 12-12(e) of the Criminal Code (Ill.Rev.Stat.1989, ch. 38, par. 12-12(e) ) as:

"Sexual conduct" means 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, or any other part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused.

The instant defendant relies upon the decision in People v. Edwards (1990), 195 Ill.App.3d 454, 142 Ill.Dec. 8, 552 N.E.2d 358, wherein the defendant was charged with two counts of aggravated criminal sexual abuse in an indictment which was returned in language similar to the one brought in this case. The charge in Edwards also failed to state that the sexual conduct was for the purpose of sexual gratification or arousal of the victim or the accused. The Edwards court reversed the defendant's convictions on those counts, holding that the purpose of the sexual gratification provision was essential.

We do not agree with Edwards. Instead, we find that People v. Lewis (1986), 147 Ill.App.3d 249, 101 Ill.Dec. 661, 498 N.E.2d 1169, and People v. Balle (No. 1-88-1029, decided January 28, 1992), --- Ill.App.3d ----, --- Ill.Dec. ----, --- N.E.2d ----, appeal denied, 145 Ill.2d 636, 173 Ill.Dec. 7, 596 N.E.2d 631, correctly state the law. In both of those cases, the defendant had been charged with aggravated criminal sexual abuse pursuant to section 12-16(c)(1) of the Criminal Code (Ill.Rev.Stat.1989, ch. 38, par. 12-16(c)(1) ). However, as in the instant case, the indictments failed to specifically allege that the sexual conduct was for the purpose...