People v. DiLorenzo

• Decision Date: 15 February 1996
• Docket Number: No. 78372,78372
• Citation: 169 Ill.2d 318,662 N.E.2d 412,214 Ill.Dec. 846
• Parties: , 214 Ill.Dec. 846 The PEOPLE of the State of Illinois, Appellee, v. James DiLORENZO, Appellant.
• Court: Illinois Supreme Court

Page 412

662 N.E.2d 412

169 Ill.2d 318, 214 Ill.Dec. 846

The PEOPLE of the State of Illinois, Appellee, v. James DiLORENZO, Appellant.

No. 78372.

Supreme Court of Illinois.

Feb. 15, 1996.

Robert Agostinelli, Deputy Defender and Stephen Omolecki, Asst. State Appellate Defender, Ottawa, for Appellant.

James E. Ryan, Attorney General, Springfield, and Kevin Lyons, State's Attorney, Peoria (Barbara A. Preiner, Solicitor General, and Arleen C. Anderson and Steven J. Zick, Assistant Attorneys General, Chicago, of counsel), for the People.

Justice FREEMAN delivered the opinion of the court:

Defendant, James DiLorenzo, appeals from a judgment of the appellate court finding that the indictment under which defendant was charged was not unconstitutionally defective.

BACKGROUND

Defendant was charged by indictment with criminal sexual assault, aggravated criminal sexual assault and aggravated criminal sexual abuse (Ill.Rev.Stat.1991, ch. 38, pars. 12-13(a)(1), 12-14(b)(1), 12-16(c)(1)(i)) of eight-year-old C.R. Following a bench trial in the circuit court of Peoria County, defendant was found guilty of aggravated criminal sexual abuse and was sentenced to an extended term of 14 years' imprisonment.

Defendant appealed, asserting, inter alia, a constitutional deficiency in the indictment. The appellate court affirmed defendant's conviction and sentence (No. 3-93-0894 (unpublished order under Supreme Court Rule 23)).

We subsequently granted defendant's petition for leave to appeal (see 145 Ill.2d R. 315) and now affirm the appellate court.

On appeal to this court, as in the appellate court, defendant urges that reversal of his aggravated criminal sexual abuse conviction is required. He again contends that the indictment was fatally defective in that the aggravated criminal sexual abuse charge failed to explicitly state that the alleged "sexual conduct" with C.R. was "for the purpose of sexual gratification or arousal of the victim or the accused," and also that the indictment failed to set forth with particularity the allegedly wrongful acts that constituted "sexual conduct."

DISCUSSION

A defendant has a fundamental right, under both the Federal Constitution (U.S. Const., amend. VI) and the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 8), to be informed of the "nature and cause" of criminal accusations made against him. (People v. Meyers (1994), 158 Ill.2d 46, 51, 196 Ill.Dec. 646, 630 N.E.2d 811.) The "nature and cause" of a criminal accusation refers to the crime committed, not the manner in which it was committed.

The failure to charge an offense is the kind of defect which implicates due process concerns. Such a defect may, therefore, be attacked at any time. See Ill.Rev.Stat.1991, ch. 38, par. 114-1(b); see also 725 ILCS Ann. 5/114-1, Committee Comments-1963, at 529 (Smith-Hurd 1992).

When the sufficiency of the charging instrument is attacked in a pretrial motion, the standard of review is to determine whether the instrument strictly complies with the requirements of section 111-3 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1991, ch. 38, par. 111-3(a)). (Meyers, 158 Ill.2d at 51, 196 Ill.Dec. 646, 630 N.E.2d 811.) Contrarily, when, as here, the sufficiency of a charging instrument is attacked for the first time on appeal, the standard of review is more liberal. In such a case, it is sufficient that the indictment apprised the accused of the precise offense charged with enough specificity to (1) allow preparation of Defendant was charged by indictment with aggravated criminal sexual abuse. The indictment was in writing, specifically named the alleged committed offense, and provided citation to the relevant statutory provision, date of the offense, county of its occurrence and the defendant's name. Further, the indictment, in the words of the statute, stated that the defendant committed the offense of aggravated criminal sexual abuse in that

                [214 Ill.Dec. 848] his defense and (2) allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct.  People v. Thingvold (1991), 145 Ill.2d 441, 448, 164 Ill.Dec. 877, 584 N.E.2d 89;  People v. Rege (1976), 64 Ill.2d 473, 478, 1 Ill.Dec. 349, 356 N.E.2d 537;  People v. Gilmore (1976), 63 Ill.2d 23, 29, 344 N.E.2d 456;  People v. Pujoue (1975), 61 Ill.2d 335, 339, 335 N.E.2d 437.   See also Ill.Rev.Stat.1991, ch. 38, par. 116-2 (motions in arrest of judgment attacking charging instrument on ground that it does not charge an offense are subjected to same two-pronged test)
                

"he, who was 17 years of age or older, knowingly committed an act of sexual conduct with [C.R.] who was under 13 years of age when the act was committed * * *."

In this appeal, defendant argues that the indictment was fatally defective in that it failed to: (1) include a material element of the offense, i.e., that the sexual conduct was "for the purpose of sexual gratification"; (2) define the term "sexual conduct," rendering the indictment insufficiently specific; and (3) "specifically describe the sexual conduct" with which he was charged.

Defendant points out that there is a split among the districts of our appellate court concerning what is sufficient to charge the offense of aggravated criminal sexual abuse. People v. Lewis (1st Dist., 3d Div.1986), 147 Ill.App.3d 249, 101 Ill.Dec. 661, 498 N.E.2d 1169, People v. Balle (1st Dist., 2d Div.1992), 234 Ill.App.3d 804, 176 Ill.Dec. 90, 601 N.E.2d 788, People v. Allensworth (3d Dist.1992), 235 Ill.App.3d 185, 175 Ill.Dec. 739, 600 N.E.2d 1197, and People v. Hubbard (5th Dist.1994), 264 Ill.App.3d 188, 201 Ill.Dec. 663, 636 N.E.2d 1095, each holds that it is not necessary to explicitly aver that sexual conduct was "for the purpose of sexual gratification."

On the other hand, People v. Edwards (2d Dist.1990), 195 Ill.App.3d 454, 142 Ill.Dec. 8, 552 N.E.2d 358, and People v. Harris (1st Dist., 6th Div.1990), 205 Ill.App.3d 873, 150 Ill.Dec. 747, 563 N.E.2d 874 (public indecency), hold that such language must be explicitly stated. Defendant then offers that Edwards and Harris are better reasoned and should be followed.

A determination of whether the indictment here was required to aver that the conduct was "for the purpose of sexual gratification" or was required to define "sexual conduct" is not essential to the disposition of defendant's appellate challenge. (See Pujoue, 61 Ill.2d at 339, 335 N.E.2d 437.) For purposes of this review, it is sufficient if the indictment apprised defendant of the precise offense charged with enough specificity to prepare his defense and allow pleading a resulting conviction as a bar to future prosecution arising out of the same conduct. We do not consider whether the indictment could withstand a pretrial motion to dismiss (...