People v. Burton

558 N.E.2d 1369, 201 Ill. App. 3d 116, 146 Ill. Dec. 1035, 1990 Ill. App. LEXIS 1217

• Court: Appellate Court of Illinois
• Decided: August 16, 1990
• Docket: 4-89-0794
• Status: Published

Opinions

JUSTICE GREEN

delivered the opinion of the court:

Section 4 — 3 of the Criminal Code of 1961 (Code), inter alia, states the following:

“(a) A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4 — 4 through 4 — 7.

(b) *** If the statute does not prescribe a particular mental state applicable to an element of an offense (other than an offense which involves absolute liability), any mental state defined in Sections 4 — 4, 4 — 5 or 4 — 6 is applicable.” Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 3(a), (b).

Sections 4 — 4 through 4 — 7 of the Code contain provisions pertaining to intent (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 4), knowledge (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 5), recklessness (Ill. Rev. Stat. 1987, ch. 38, par. 4 — 6), and negligence (Ill. Rev. Stat. 1987, ch. 38, par. 4— 7). The primary issue in this case concerns the question of whether a defendant is entitled to have the jury instructed as to the necessity of the State proving beyond a reasonable doubt the existence of each of the mental states implied by section 4 — 3(b) of the Code. We hold such instruction is not necessarily required.

On January 9, 1989, an indictment was returned in the circuit court of De Witt County charging defendant Paul Burton with various counts of aggravated criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1)) on various dates between January 1986 and September 1988. After a trial by jury, defendant was convicted on June 30, 1989, of three counts of aggravated criminal sexual assault and one count of aggravated criminal sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 16(c)(l)(i).) On September 6, 1989, the court sentenced defendant to concurrent terms of imprisonment of 10 years for each such assault and 5 years for the abuse conviction. Defendant has appealed.

The jury was instructed in part concerning (1) the definitions of the elements of aggravated criminal sexual assault (Illinois Pattern Jury Instructions, Criminal, Nos. 11.33, 11.65 (2d ed. Supp. 1989) (IPI Criminal 2d (Supp. 1989))); and (2) the elements the State must prove in order to convict for that offense (IPI Criminal 2d No. 11.35 (Supp. 1989)). The defense objected to those instructions, because they did not refer to the mental state implied by section 4 — 3(b) of the Code to be an element of aggravated criminal sexual assault. Defendant maintains on appeal this ruling entitles him to a new trial as to the aggravated criminal sexual assault convictions. He also asserts reversible error resulted when the circuit court refused his motion to dismiss the assault charges. This motion was made after the State had filed a response to defendant’s request for a bill of particulars. Defendant maintains this response was too vague. We disagree with defendant’s contentions and affirm.

No contention is made that the evidence did not support the verdicts. Evidence was presented that defendant, a man in his fifties, on several occasions, within the time alleged in the indictment, placed his penis in the mouths of, and his fingers in the vaginas of, two girls who were under the age of 13 years at the times pertinent.

We consider first, the main issue concerning the propriety of the instructions. Section 12 — 14(b)(1) of the Code provides:

“The accused commits aggravated criminal sexual assault if:

(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed ***.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(b)(1).)

Section 12 — 12(f) of the Code states:

“ ‘Sexual penetration’ means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to eunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration.” (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f).)

Knowledge by the accused of the age of the victim is not an element of the aggravated criminal sexual assault charged here. People v. Sanders (1989), 191 Ill. App. 3d 483, 548 N.E.2d 103; People v. Barfield (1989), 187 Ill. App. 3d 257, 543 N.E.2d 157.

Indeed, the statutory provisions for the aggravated criminal sexual assaults for which defendant was charged make no mention of any mental states for the elements involved. Section 4 — 9 of the Code states:

“A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Sections 4 — 4 through 4 — 7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described.” Ill. Rev. Stat. 1987, ch. 38, par. 4 — 9.

Aggravated criminal sexual assault is not a misdemeanor (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 14(c)), nor does the statute defining that offense clearly indicate a legislative purpose to impose absolute liability for the conduct described. Accordingly, by the terms of section 4— 3(a) of the Code, the State was required to prove a mental state for each of the elements of the offense of aggravated criminal sexual assault even though no such mental states were expressly set forth in the statutory language defining the offense.

Defendant’s theory he was entitled to instructions setting forth the required mental states which the State had to prove to convict him of the offense of aggravated criminal sexual assault is based upon the general requirement that the jury be instructed as to each element of each offense charged. (People v. Reddick (1988), 123 Ill. 2d 184, 526 N.E.2d 141; People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861.) He also maintains failure to set forth the required mental state in the instructions in issue deprived him of due process, because the instructions relieved the State of proving beyond a reasonable doubt each element of the offense charged. Francis v. Franklin (1985), 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965; Sandstrom v. Montana (1979), 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450.

This court has recently rejected defendant’s theory requiring instructions as to mental states, implied to be part of an offense by section 4 — 3 of the Code, in People v. Avant (1989), 178 Ill. App. 3d 139, 532 N.E.2d 1141, and People v. Talley (1988), 177 Ill. App. 3d 170, 531 N.E.2d 1139. (See also People v. Leonard (1988), 171 Ill. App. 3d 380, 526 N.E.2d 397, cert. denied (1989), 490 U.S. 1008, 104 L. Ed. 2d 162, 109 S. Ct. 1647; People v. Ortiz (1987), 155 Ill. App. 3d 786, 508 N.E.2d 490.) The rationale of these rulings is that the mental states there implied by section 4 — 3 of the Code were in the nature of general criminal mental states, distinguished from specific mental states about which the jury must be advised in instructions defining an offense or describing the elements the State must prove.

We address this subject again to consider what, if any, effect the decision by the Illinois Supreme Court in People v. Terrell (1989), 132 Ill. 2d 178, 547 N.E.2d 145, raised by the dissent, has upon the prior precedent. There, a defendant convicted, as here, of aggravated criminal sexual assault argued he was deprived of equal protection when the penalty for that offense was more severe than that for aggravated criminal sexual abuse. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 16(e).) The assault offense is a Class X felony while the abuse offense is only a Class 2 felony. The definition of the abuse offense sets forth mental states of intent or knowledge while, as we have indicated, no mental state is specifically described as an element of the assault offense. In Terrell, that defendant argued that lack of a stated mental state for the assault offense inherently made that offense less culpable than one requiring intent or knowledge. The supreme court rejected that argument, pointing out that section 4 — 3(a) of the Code made intent, or knowledge, the mental state for aggravated criminal sexual assault.

A highly respected authority on criminal law has suggested mental states involved in criminal cases can better be analyzed with “ciarity” by “abandoning the ‘specific intent’ — ‘general intent’ terminology” and notes the Model Penal Code does so. (W. LaFave & A. Scott, Substantive Criminal Law §3.5(e), at 316 (1986), citing Model Penal Code §2.02, Comment, at 231 n.3 (1985).) Some argument can be made that article 4 of the Code was intended to do away with the difference between general and specific mental states, particularly ■with regard to intent. The decision in Terrell would be consistent with such a theory. If the “specific intent” — “general intent” dichotomy has been abolished, the rationale for the previously cited appellate court decisions making unnecessary instructions defining mental state in certain situations is invalid.

However, the Illinois Supreme Court has not treated article 4 of the Code as changing the concept of specific and general criminal intent. In People v. Gold (1967), 38 Ill. 2d 510, 516, 232 N.E.2d 702, 706, decided under the Code, the court held that as the statutory definition for rape set forth no mental state, the offense was “a general-intent crime” which could be properly alleged in the language of the statute. In People v. White (1977), 67 Ill. 2d 107, 365 N.E.2d 337, the court concluded that, although not so stated in the Code, the intent to permanently deprive the victim of property was still an element of robbery. Accordingly, because the offense was one requiring specific intent, voluntary intoxication was still a defense to such a charge. Nineteen months later, in People v. Banks (1979), 75 Ill. 2d 383, 388 N.E.2d 1244, White was overruled. The court concluded the intent to permanently deprive the victim of property was not an element of robbery and need not be alleged. The offense stated did not require any specific type of intention.

Notably, at the time of White and Banks, as now, robbery consists of the “[taking of] property from the person or presence of another by the use of force or by threatening the imminent use of force.” (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 1.) At all times pertinent, such a robbery has become an armed robbery when committed while the robber is “armed with a dangerous weapon.” (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2.) The White court had concluded the offense included the unstated factor that the robber acted with the intent to permanently deprive the victim of the property taken, and that was an element of the offense upon which the jury must be instructed. The Banks court decided that element was no longer a part of the offense. Had the intent to permanently deprive the victim of property been an unstated element of the offense, that offense would have been a specific-intent offense regardless of whether that specific type of intent was stated in the Code definition of the offense.

Section 4 — 3(a) of the Code has always required that for a non-absolute liability offense to occur, the offender must act “with respect to each element described by the statute defining the offense” with one of the mental states set forth in sections 4 — 4 through 4 — 7 of the Act. (Ill. Rev. Stat. 1989, ch. 38, par. 4 — 3(a).) However, the White court did not hold that intoxication would negate the defendant’s knowing or intentional use of force or threat of use of force, or the defendant’s knowledge that he was armed with a dangerous weapon. The Banks court did not say or indicate that the charge need allege the implied mental states for those elements of the offense of armed robbery. Thus, the recognition by the court of the difference between (a) mental states set forth in very specific language in statutes creating offenses or generally recognized to be very specific, and (b) mental states implied by section 4 — 3 of the Code to be either intent, knowledge, recklessness, or negligence clearly supports the decisions of this court in Avant and Talley.

Very lengthy instructions would be required if instructions always need be given concerning the unstated mental states implied by section 4 — 3 concerning each element of each offense charged. Take, for example, the offense of armed robbery. (Ill. Rev. Stat. 1989, ch. 38, par. 18 — 2.) The jury would have to be instructed that for the offense to occur: (1) the robber must have known he was taking property or intended the property to be taken; (2) the robber intended to use force or knew he was using force, or threatening imminent force; and (3) the robber knew he was carrying on his person, or armed with, a dangerous weapon. In almost every offense, the statute providing for the offense is silent as to the mental state required for some element of the offense.

Usually, the mental states implied by section 4 — 3 of the Code are mental states which almost always accompany the acts alleged. The Terrell court indicated that to be the situation there. (Terrell, 132 Ill. 2d at 210-11, 547 N.E.2d at 159.) In People v. Talley (1988), 177 Ill. App. 3d 170, 173, 531 N.E.2d 1139, 1141, this court indicated that the hallmark of a general intent crime was that the mental state required ordinarily followed the element of the conduct prohibited. The case of Louisiana v. Daniels (1958), 236 La. 998, 1007, 109 So. 2d 896, 899, was cited.

As with the robbery offenses, the mental state implied here by section 4 — 3 of the Code would necessarily accompany the prohibited elements of the offense of sexual assault. Defendant would have been extremely unlikely to have inserted his penis in the mouths of the two girls without intending to do so and knowing he did. While an adult caring for and bathing a small child might unintentionally and unknowingly place a finger in such a position as to create the slight penetration into the vagina or anus of a child described in section 12— 12(f) (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 12(f)) of the Code, the definition of aggravated criminal sexual assault would surely be given a commonsense interpretation to make such conduct innocent. Absent that type of situation, the Terrell opinion makes clear that the mental state required for aggravated criminal sexual assault based on such penetration would naturally flow from the commission of the prohibited acts.

We conclude Terrell does not require us to change our ruling in regard to the inclusion in instructions of the general criminal mental states implied by section 4 — 3 of the Code. However, as we mentioned in regard to the cases of White and Banks, some mental states involved in offenses, although not specifically mentioned in the statute defining the offense, may be implied in the offense and be specific enough to require instruction to the jury. Under some circumstances, the mental state implied by section 4 — 3 of the Code may possibly be so specific as to require instruction. See People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810.

Here, the implied mental states were not specific, and the circuit court did not err in giving the pattern instructions, which did not set forth those mental states.

Even though defendant was originally charged in count III with aggravated criminal sexual assault, the jury found him guilty of the included offense of aggravated criminal sexual abuse. As we previously noted, defendant is challenging his conviction on that count because of the State’s response to defendant’s bill of particulars in which the State asserts that it can provide no more specific information than that the offense charged in count III occurred sometime between January 1986 and September 1988. Defendant argues that this range of 33 months in the State’s response denied him due process of law, because defendant had a possible alibi defense which this 33-month range made it impossible for him to present. Accordingly, defendant argues that the trial court erred in denying his motion to dismiss count III. We disagree.

We begin our analysis by noting a rather striking inconsistency in defendant’s argument. If he cannot tell from the State’s response on which particular day within a 33-month period he is supposed to have committed the crime charged, then how can he possibly know he “has a possible alibi defense” which is being defeated because of the State’s uncertainty? By pointing out this inconsistency, we do not mean to suggest that a defendant who receives a response no more precise than this suffers no prejudice to the preparation of his defense; instead, we are simply pointing out the difficulty of determining with specificity just what that prejudice may be in a given case. Furthermore, the fact that the defendant may have suffered some prejudice does not, without more, justify dismissing the charges against him. This is particularly true where, as here, children are the alleged victims of sex abuse. To hold otherwise would be to jeopardize large numbers of such prosecutions, particularly with very young children, simply because they could not provide specific dates and times.

As long as the crime charged allegedly occurred within the applicable statute of limitations period, the State should be required to do no more than provide the defendant with the best information it has regarding when the offense took place. (People v. Patrick (1967), 38 Ill. 2d 255, 260, 230 N.E.2d 843, 845.) We reaffirm that the precise date the offense was allegedly committed is not an element of the offense. People v. Cregar (1988), 172 Ill. App. 3d 807, 821, 526 N.E.2d 1376, 1386.

For the reasons stated, we find no error in the trial court’s denial of defendant’s motion to dismiss count III.

Accordingly, we affirm the judgments of conviction and sentence.

Affirmed.

McCullough, j., concurs.