People v. Wasson

Decision Date20 October 1988
Docket NumberNo. 4-87-0617,4-87-0617
Citation175 Ill.App.3d 851,530 N.E.2d 527,125 Ill.Dec. 369
Parties, 125 Ill.Dec. 369 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis L. WASSON, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Jeffrey D. Foust, Asst. Defender, Springfield, for defendant-appellant.

Craig H. DeArmond, State's Atty., Danville, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Robert J. Biderman, Deputy Director, Kenneth R. Baumgarten, Staff Atty., Springfield, for plaintiff-appellee.

Justice KNECHT delivered the opinion of the court:

Defendant was charged by information with one count of aggravated criminal sexual assault. (Ill.Rev.Stat., 1984 Supp., ch. 38, par. 12-14(b)(1).) The information alleged that between January 1, 1983, and April 24, 1985, defendant, who was 17 years of age or older, committed an act of sexual penetration with a female child who was under 13 years of age when the act was committed. A jury convicted defendant as charged and he was sentenced to 15 years' imprisonment. Defendant appeals his conviction and sentence arguing the charging instrument was defective, the State did not carry its burden of proof at trial, and the jury instructions were incomplete. We reverse and remand.

On April 24, 1985, defendant Curtis Wasson was charged by information with one count of aggravated criminal sexual assault in violation of section 12-14(b)(1) of the Criminal Code of 1961 (Ill.Rev.Stat., 1984 Supp., ch. 38, par. 12-14(b)(1)). The information alleged that between January 1, 1983, and April 24, 1985, defendant had knowingly committed an act of sexual penetration with his niece, M.F., who was under the age of 13 when the act occurred.

Defendant requests his conviction be reversed (1) because he was charged via a complaint, alleging the offense of aggravated criminal sexual assault had been committed sometime during a two-year period that commenced well before July 1, 1984, the effective date of the statute, and (2) because the State did not prove beyond a reasonable doubt that defendant committed the offense sometime after it was created by statute. Defendant further argues he should not have been tried as charged without a jury instruction specifying the effective date of the statute as an essential element of the offense.

Initially we address the sufficiency of the charging instrument. A charging instrument fails to state an offense if the statute under which the defendant is charged and prosecuted is not in effect on the date of the alleged offense. A conviction on a defective instrument must be reversed. (People v. Spain (1974), 24 Ill.App.3d 377, 321 N.E.2d 520; People v. Hooper (1974), 21 Ill.App.3d 28, 314 N.E.2d 618.) On its own motion in a supplemental opinion, the appellate court in Spain determined it was plain error for the complaint to charge the defendant with an offense not yet covered by the charging statute. Although the defect issue was not brought to the attention of the trial court, the waiver principle was not applied on appeal. Spain, 24 Ill.App.3d at 381, 321 N.E.2d at 524.

The defendant here did not argue to the trial court that the State had filed a defective complaint. The serious nature of the State's error compels us to consider this issue nonetheless. People v. Terry (1988), 170 Ill.App.3d 484, 120 Ill.Dec. 655, 524 N.E.2d 685.

The law governing sex offenses was substantively changed with the enactment of the criminal sexual assault and abuse law of 1984. (Ill.Rev.Stat., 1984 Supp., ch. 38, par. 12-12 et seq.; People v. Fisher (1985), 135 Ill.App.3d 502, 90 Ill.Dec. 322, 481 N.E.2d 1233.) When Public Act 83-1067, effective July 1, 1984, was enacted (1983 Ill.Laws 7251), the legislature set forth a special paragraph which states the act shall only apply to "those persons who commit offenses prohibited under Sections 12-13 through 12-16 of the Criminal Code of 1961, as amended, on or after the effective date of this amendatory Act." (Ill.Rev.Stat., 1984 Supp., ch. 38, par. 12-12.) Thus, the legislature expressly provided a defendant cannot be charged under the new act for an offense committed prior to July 1, 1984. (People v. Haggard (1986), 143 Ill.App.3d 860, 97 Ill.Dec. 886, 493 N.E.2d 693.) The law was not intended to be applied retroactively. People v. J.S. (1984), 103 Ill.2d 395, 83 Ill.Dec. 156, 469 N.E.2d 1090.

It is clear the one-count information alleging defendant had committed an act of aggravated criminal sexual assault between January 1, 1983, and April 24, 1985, was defective to the extent it charged the act occurred prior to July 1, 1984. At trial the State argued defendant sexually assaulted his niece on numerous occasions during the time period charged. Thus, it would have been better practice for the State to charge defendant under the old statute with one or more counts alleging the offense of aggravated indecent liberties with a child was committed between January 1, 1983, and June 30, 1984 (Ill.Rev.Stat.1983, ch. 38, par. 11-4.1(a)(1)(A)), and, under the current statute, to enter additional counts for the act or acts committed between July 1, 1984, and April 24, 1985. Ill.Rev.Stat., 1984 Supp., ch. 38, par. 12-14(b)(1).

If an indictment or information contains sufficient information to apprise defendant of the charge with sufficient particularity to prepare his defense and to bar future prosecutions arising out of the same offense, it will be upheld when attacked for the first time on appeal. (People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437; People v. Williams (1980), 80 Ill.App.3d 963, 36 Ill.Dec. 112, 400 N.E.2d 532.) In this case we consider the flaws in the charging instrument are fatal defects which invalidate the entire instrument and warrant the reversal of defendant's conviction.

While the information adequately apprised defendant of the nature, cause, and elements of the charge against him, it also charged him for conduct which occurred before the statute came into effect. Defendant was hindered in the preparation of his defense because he was forced to answer to crimes for which he could not have been lawfully convicted.

Extra-indictment offenses are admissible where proof of their existence is independently relevant to show motive, intent, identity, or some other issue connected with the crime charged. (People v. Friedman (1980), 79 Ill.2d 341, 38 Ill.Dec. 141, 403 N.E.2d 229.) In this case however, the jury heard evidence of other crimes of defendant of which he was improperly accused. The defective charging instrument was the source of any prejudice defendant may have suffered at trial. Accordingly, we find the information provided an insufficient basis for the State to prosecute defendant as charged.

Next, defendant argues his conviction cannot stand because the State failed to prove beyond a reasonable doubt that the alleged sexual acts occurred on or after the effective date of the statute. Defendant maintains the State was obligated to prove beyond a reasonable doubt the charge against defendant was based upon an act which occurred after June 30, 1984, but the State's evidence at trial did not satisfy that burden. Defendant asserts the majority of the trial testimony indicates the last sexual activity between M.F. and defendant occurred prior to July 1, 1984. We find it necessary to thoroughly review the trial testimony to determine whether the jury's finding of guilt was against the manifest weight of the evidence.

Mrs. Tedrick, the school nurse at M.F.'s grade school, testified that on April 22, 1985, eight-year-old M.F. told her that one day around Easter defendant was baby-sitting and gave M.F.'s brothers some money to go to the grocery store for candy bars. M.F. said she was upstairs changing clothes when defendant came into her bedroom, took her pants off, threw her on the bed and "put his humper between her legs."

Tedrick testified M.F. referenced the act to Easter in some way. She initially understood M.F. was referring to the most recent Easter in 1985, but when Tedrick inquired, M.F. said: "No, it happened when I was in Mrs. Trask's room." The school records indicated M.F. repeated first grade and consequently was in Mrs. Trask's room for both the 1982-83 and 1983-84 school years. The school year normally is over by the first of June. M.F. was in second grade when she had the conversation with Tedrick. It was Tedrick's understanding that M.F. was describing the most recent incident, but that defendant had assaulted M.F. on previous occasions also.

M.F. also gave a statement to the police and to the Department of Children and Family Services (DCFS) on April 22, 1985. When asked when the last time it was defendant had sexually assaulted her, M.F. responded "a few summers ago." M.F. indicated defendant had placed his penis in her vagina three different times. M.F. was eight years old at the time of the statement. She told the officer she was six years old when defendant first had sex with her and was seven years old the last time. The entire statement to the police and DCFS was introduced as substantive and impeachment evidence.

M.F. testified that the first time defendant assaulted her she was five or six years old and in kindergarten. Defendant was babysitting M.F. and her brothers one day. Defendant sent the boys to the store for candy and would not let M.F. go along. M.F. was upstairs changing clothes when defendant entered her room and threw her down on the bed. Defendant took off his clothes and then removed M.F.'s underwear. When asked what happened next, M.F. replied: "Then he, uhm, put his dick into my crotch. He started moving back and forth--I mean up and down." M.F. said this hurt her. Defendant told M.F. to keep the incident a secret and he would buy her toys.

M.F. indicated defendant assaulted her many times again, but she could not remember how often. M.F. said she...

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