2025 IL App (1st) 230318-U No. 1-23-0318
FIRST DIVISION January 21, 2025
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 03 CR 10060 ) HUGO SANCHEZ, ) ) The Honorable Defendant-Appellant. ) Joanne F. Rosado, ) Judge Presiding.
______________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: (1) The State proved defendant guilty beyond a reasonable doubt of predatory criminal sexual assault. (2) The State proved defendant guilty beyond a reasonable doubt of aggravated criminal sexual assault. (3) The State proved defendant guilty beyond a reasonable doubt of aggravated kidnapping. (4) The State proved defendant guilty beyond a reasonable doubt of child pornography on counts 72, 73, 87, and 88. (5) The indictments for counts 71 and 86 for child pornography do not allege a criminal offense. (6) The circuit court improperly sentenced defendant to 14 years of imprisonment on counts 87 and 88 for child pornography.
¶2 Defendant Hugo Sanchez appeals his convictions and sentences for predatory criminal
sexual assault, aggravated criminal sexual assault, aggravated kidnapping, and child 1-23-0318
pornography. He argues that the State failed to prove him guilty beyond a reasonable doubt of
each conviction. He also alleges that the indictments for two counts of child pornography—71
and 86—were defective. He further contends that the circuit court improperly sentenced him on
three counts of child pornography. We affirm in part and reverse in part.
¶3 I. BACKGROUND
¶4 A grand jury indicted defendant with 88 counts of sex offenses committed against nine-
year-old C.M. from 2001 to 2002. In 2003, defendant was arraigned and the court set a bond.
Defendant posted bond, failed to appear for his next court date, and fled to Mexico. In 2018, the
State extradited defendant from Mexico.
¶5 In 2022, the State proceeded to trial on count 1 for predatory criminal sexual assault (720
ILCS 5/12-14.1(a)(1) (West 2002)); count 3 for aggravated criminal sexual assault (id. § 12-
14(a)(2)); count 65 for aggravated kidnapping (id. § 10-2(a)(2)); and counts 71, 72, 73, 86, 87,
88 for child pornography (id. § 11-20.1(a)(1)(ii), (a)(1)(iv), (a)(6)(ii), (a)(6)(iv)). Count 3 for
aggravated criminal sexual assault alleged: “that [defendant], intentionally or knowingly
committed an act of sexual penetration upon [C.M.], to wit: contact between [defendant’s] and
[C.M.’s] vagina, by the use of force or threat of force, and [defendant] caused bodily harm to
[C.M.], to wit: transection to [C.M.’s] hymen***.” Counts 71 and 86 for child pornography
alleged that the content of the video defendant videotaped and possessed depicted C.M. engaging
in an act of sexual contact involving her mouth and defendant’s mouth.
¶6 The State filed a motion for joinder of related prosecution, which sought to join this case
with cases 03 CR 10061 and 03 CR 10062. Those cases charged defendant with sex offenses
committed against C.M.’s older sister and younger sister, J.M. and E.M. During the hearing, the
State informed the court of the allegations against defendant in each case. The State stated that
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defendant and fifteen-year-old J.M. began what defendant referred to as a “boyfriend/girlfriend
relationship” in 2001. Their relationship involved weekly sexual intercourse. In 2003, J.M.
suspected that defendant was having sexual intercourse with her two younger sisters. She
searched defendant’s bedroom and found a video which confirmed her suspicions. She showed
the video to her mother who called the police. The circuit court denied the State’s motion. The
State filed a motion to use proof of other crimes, which the circuit court granted.
¶7 At trial, C.M. testified that she was born on May 26, 1991. She was approximately 31
years old at the time of the trial. She testified that she grew up in a two-story home located at
5416 South Washtenaw in Chicago, Illinois. She lived with her mother, father, two brothers, and
two sisters. Defendant later moved into the basement of the home. At the time, she was
approximately nine years old, her sister E.M. was approximately seven years old, and her sister
J.M. was approximately twelve years old. Defendant would spend time with her parents and was
a member of the family. The State asked C.M., “[y]ou say he hung out with your parents. Do you
know how old defendant was at the time?” C.M. answered, “[n]o. I know he was over 18. He
was working and he used to go to work.”
¶8 C.M. testified that she shared a room with her sisters on the first floor of the home.
Defendant had his own room in the basement of the home. C.M.’s parents and brothers lived on
the first floor of the home. The State asked C.M., “[d]id you at any time go into the defendant’s
room?” C.M. responded, “[f]orcefully.” She elaborated that when she went outside to play with
her siblings, she had to go through the access where the basement is located to get to the
backyard. Defendant would grab her as she went outside and carry her into his room when no
one was around.
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¶9 Inside his room, defendant would sexually assault C.M. Defendant would remove her
clothing. Defendant either removed his pants or lifted his shirt up and lowered his pants. He then
forced his penis inside of C.M.’s vagina. C.M. was approximately nine years old when this
happened. Defendant sexually assaulted C.M. more than two times. Prior to the first time
defendant sexually assaulted her, she was a virgin. Defendant injured C.M. when he put his penis
inside her vagina. C.M. testified, “[t]he first time there was blood in my vagina. I saw it in
between my legs and I had no idea what was going on.”
¶ 10 C.M. identified People’s Exhibit 1 as a photo of defendant. She identified People’s
Exhibit 2 as a photo of defendant as she remembered him from when she was approximately nine
years old. She identified People’s Exhibit 3 as a photo of herself when she was approximately
nine years old. She identified People's Exhibit 4 as a photo of her sister E.M. when she lived at
5416 South Washtenaw. She identified People’s Exhibit 5 as a video of her and defendant in his
bedroom. People’s Exhibit 5 was played for the jury. People's Exhibits 1 through 5 were
admitted into evidence.
¶ 11 People's Exhibit 1 depicts defendant at the age of the trial. People’s Exhibit 2 is a
screenshot from a video. People's Exhibit 2 depicts defendant at the time of the offense sitting in
his bed and staring directly at the video camera. The video camera is positioned at the foot of
defendant’s bed. The video camera is angled directly over the bed. People’s Exhibit 3 is a
screenshot from a video. People’s Exhibit 3 shows C.M. at approximately nine years old.
People’s Exhibit 4 is a screenshot from a video. People’s Exhibit 4 shows E.M. sitting on
defendant’s bed and defendant standing in the background. The video camera is positioned at the
foot of defendant’s bed. The video camera is angled directly over defendant's bed.
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¶ 12 In People’s Exhibit 5, defendant carries C.M. into his bedroom and lays her on his bed.
Defendant presses his body on top of C.M. as he thrusts his pelvis and grinds on her. She
attempts to break free of defendant throughout the video. At one point, defendant looks into the
camera as he exposes C.M.’s breasts to the camera. Defendant closes the door to his bedroom. At
the end of the video, defendant drags C.M. by her wrist out of his bedroom and turns off the
lights.
¶ 13 C.M. testified that she was approximately nine years old when People’s Exhibit 5 was
recorded. She did not set up the video camera. Defendant touched her all over her body. He
touched her breasts and buttocks. He forcibly kissed her on the mouth. She did not tell her
parents because she feared that they would not believe her since defendant was a part of the
family. She stated that her parents were “on the strict side,” and she did not think they would
believe her. Her parents did not give defendant permission to take her into his bedroom. She
informed the police about the assaults when they arrested defendant in 2003.
¶ 14 On cross-examination, C.M. testified that at the time of the offense, she did not know
about the video. She did not know how the video was captured, and she did not see the camera.
Defense counsel asked her, “[a]nd you don’t know where this video has been since that time
either, do you?” She responded, “I think it’s been here because I did hear about the video being
out. Even when I was that age when we went to talk to the police, like we all knew there was a
video.”
¶ 15 E.M. testified that she was born on November 18, 1993. She was approximately 28 years
old at the time she testified. She testified that she was approximately seven years old from 2001
to 2002. During that time, she lived at 5416 South Washtenaw in Chicago, Illinois. She lived
with her parents, two sisters, two brothers, and defendant. She shared a room with her sisters on
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the second floor. Defendant lived in the basement area. Defendant touched her in her privates
and made her touch his penis. He touched her vagina with his penis. He would grab her hand and
place it where he wanted. He forced her hand to touch his penis. He would undress her. She did
not tell anyone because she was afraid at the time. She eventually informed the police.
¶ 16 The jury convicted defendant on all counts. The presentence investigation report
indicated that defendant’s birth date was June 17, 1975. The circuit court sentenced defendant to
84 total years of imprisonment. The circuit court sentenced defendant to 28 years on count 1 for
predatory criminal sexual assault, count 3 for aggravated criminal sexual assault, and count 65
for aggravated kidnapping, which were to be served consecutive to each other. Defendant was
sentenced to 14 years on each of the six counts—71, 72, 73, 86, 87, and 88—for child
pornography, which merged and were to be served concurrently with the other charges.
¶ 17 Defendant appealed.
¶ 18 II. ANALYSIS
¶ 19 A. Sufficiency of the Evidence
¶ 20 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of
predatory criminal sexual assault, aggravated criminal sexual assault, aggravated kidnapping,
and child pornography.
¶ 21 When a defendant makes a challenge to the sufficiency of the evidence, “ ‘the relevant
question is whether, after viewing the evidence in the light most favorable to the prosecution,
any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt.’ ” (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). “[I]n weighing evidence, the trier of
fact is not required to disregard inferences which flow normally from the evidence before it, nor
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need it search out all possible explanations consistent with innocence and raise them to a level of
reasonable doubt.” People v. Jackson, 232 Ill. 2d 246, 281 (2009). “When presented with a
challenge to the sufficiency of the evidence, it is not the function of this court to retry the
defendant.” Collins, 106 Ill. 2d at 261. Thus, “the reviewing court must allow all reasonable
inferences from the record in favor of the prosecution.” People v. Cunningham, 212 Ill. 2d 274,
280 (2004). “A conviction will be reversed only where the evidence is so unreasonable,
improbable, or unsatisfactory that it justifies a reasonable doubt of the defendant’s guilt.” People
v. Belknap, 2014 IL 117094, ¶ 67.
¶ 22 “Circumstantial evidence is proof of facts that give rise to reasonable inferences of other
facts that tend to establish guilt or innocence of the defendant.” People v. Johnson, 2018 IL App
(1st) 150209, ¶ 19. A criminal conviction may be based solely on circumstantial evidence.
People v. Brown, 2013 IL 114196, ¶ 49. We apply the same standard of review “regardless of
whether the evidence is direct or circumstantial.” People v. Norris, 399 Ill. App. 3d 525, 531
(2010).
¶ 23 1. Predatory Criminal Sexual Assault
¶ 24 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of
the offense of predatory criminal sexual assault. Specifically, he argues the State failed to prove
that he was 17 years old or older at the time he committed the offense.
¶ 25 “The accused commits predatory criminal sexual assault of a child if: 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***.” 720 ILCS 5/12-14.1(a) (West 2002). The
defendant’s age is an element of predatory criminal sexual assault. Id. Still, the State need not
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prove the defendant’s exact age unless evidence tends to show he was under the requisite age.
People v. Flores, 168 Ill. App. 3d 284, 290-91 (1st Dist. 1988).
¶ 26 Proof of the defendant’s age cannot be satisfied by examination of defendant by the trier
of fact. People v. Boston, 52 Ill. App. 3d 18, 19 (2nd Dist. 1977). However, “[t]he observation of
the trier of fact may corroborate evidence of defendant’s age.” Flores, 168 Ill. App. 3d at 291.
“A positive identification by a single eyewitness who had ample opportunity to observe is
sufficient to support a conviction.” People v. Piatkowski, 225 Ill. 2d 551, 566 (2007). “The trier
of fact may accept or reject all or part of a witness’s testimony. People v. Corral, 2019 IL App
(1st) 171501, ¶ 85.
¶ 27 Although C.M. was nine years old at the time of the offense, she was 31 years old when
she testified at trial. C.M. twice testified that defendant was a member of her family. See In re
S.M., 2015 IL App (3d) 140687, ¶ 16 (the State may establish a person’s age as an element of an
offense through testimony of a family member). While she did not provide defendant’s exact age
at the time of the offense, she conclusively stated that she knew defendant was over the age of
18. No evidence presented at trial indicated that defendant was under the age of 17. Rather,
additional evidence corroborated C.M.’s statement that defendant was over the age of 18.
¶ 28 C.M. provided additional testimony to support her conclusion that she knew defendant
was over the age of 18—he spent time socializing with her parents and he went to work. The
State also admitted into evidence People’s Exhibit 2, People’s Exhibit 4, and People's Exhibit 5,
which enabled the jury to observe defendant’s appearance at the time of the offense. People's
Exhibits 2, 4, and 5 corroborated C.M.’s testimony regarding defendant’s age at the time of the
offense.
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¶ 29 Viewing the evidence in the light most favorable to the prosecution, the State proved
beyond a reasonable doubt that defendant was over the age of 17 at the time of the offense
through C.M.’s testimony and People’s Exhibits 2, 4, and 5. 1
¶ 30 2. Aggravated Criminal Sexual Assault
¶ 31 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of
the offense of aggravated criminal sexual assault. He initially claims that the State failed to prove
the specific bodily harm alleged in the indictment, “transection to C.M.’s hymen.” He then
asserts that the State failed to prove bodily harm.
¶ 32 a. Variance Claim
¶ 33 Defendant argues that the State failed to prove beyond a reasonable doubt the specific
bodily harm alleged in the indictment, “transection to C.M.’s hymen.”
¶ 34 The State must prove the material elements of the charging instrument. People v.
Lattimore, 2011 IL App (1st) 093238, ¶ 67. For a variance between the charging instrument and
the proof at trial to be fatal, the difference must be material and be of such character as may
mislead the defendant in making his or her defense. People v. Collins, 214 Ill. 2d 206, 219
(2005). The charging instrument must include “ ‘the name of the accused, the name, date and
place of the offense, cite[] the statutory provision alleged to have been violated and set forth in
the language of the statute the nature and elements of the offense charged.’ ” Id. (quoting People
v. Simpkins, 48 Ill. 2d 106, 111 (1971). “Where an indictment charges all essential elements of
an offense, other matters unnecessarily added may be regarded as surplusage.” Collins, 214 Ill.
2d at 219. “ ‘An [allegation] is material when it is essential to the crime or cause of action and
1 Although not before the jury nor necessary for our conclusion, the record indicates that defendant was born on June 17, 1975, and was, in fact, 26 to 27 years old during the time of the offense. To be clear, we are holding that the trial evidence was sufficient for the a rational trier of fact to conclude that the State proved beyond a reasonable doubt that defendant was over the age of 17.
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cannot be stricken from the indictment or complaint without leaving it insufficient.” People v.
Braddock, 348 Ill. App. 3d 115, 125 (1st Dist. 2004).
¶ 35 A defendant commits criminal sexual assault if he or she commits an act of sexual
penetration using force or threat of force. 720 ILCS 5/12-13(a)(1) (West 2002). A defendant
commits aggravated criminal sexual assault if he or she commits criminal sexual assault and
during the commission of the offense causes bodily harm to the victim. 720 ILCS 5/12-14(a)(2)
(West 2002).
¶ 36 Here, the aggravated criminal sexual assault count of the indictment alleged that
defendant “caused bodily harm to [C.M.].” The indictment then specified, “to wit: transection to
[C.M.’s] hymen***.” “Bodily harm” is an essential element of aggravated criminal sexual
assault. See 720 ILCS 5/12-14(a)(2). If the phrase “to wit: transection to [C.M.’s] hymen” was
stricken from the indictment, the remaining language would still include the required statutory
elements. The type of bodily harm is entirely immaterial to the sufficiency of the charge and,
therefore, the phrase “to wit: transection to [C.M.’s] hymen” is mere surplusage. See Lattimore,
2011 IL App (1st) 093238, ¶¶ 69-70; see also Braddock, 348 Ill. App. 3d at 125. Accordingly,
the State did not need to prove beyond a reasonable doubt that defendant caused “transection to
[C.M.’s] hymen.”
¶ 37 b. Bodily Harm
¶ 38 Defendant also asserts that the State failed to prove beyond a reasonable doubt that he
caused bodily harm to C.M.
¶ 39 “Bodily harm consists of ‘physical pain or damage to the body, like lacerations, bruises
or abrasions, whether temporary or permanent.’ ” People v. Bishop, 218 Ill. 2d 232, 250 (2005).
“In determining whether a defendant’s actions caused bodily harm, direct evidence of injury can
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be considered, or the trier of fact may infer injury based upon circumstantial evidence in light of
common experience.” Id. “A positive identification by a single eyewitness who had ample
opportunity to observe is sufficient to support a conviction.” Piatkowski, 225 Ill. 2d at 566. “The
trier of fact may accept or reject all or part of a witness’s testimony. Corral, 2019 IL App (1st)
171501, ¶ 85.
¶ 40 Here, C.M. testified that defendant injured her when he put his penis inside her vagina.
She further stated that she was a virgin prior to the first time defendant sexually assault her, and
“[t]he first time there was blood in my vagina.” Viewed in the light most favorable to the State,
C.M.’s testimony was sufficient evidence of bodily harm.
¶ 41 3. Aggravated Kidnapping
¶ 42 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of
aggravated kidnapping. Specifically, he contends that the State failed to prove beyond a
reasonable doubt that C.M.’s confinement was without the consent of her parents since the State
did not call C.M.’s parents to testify.
¶ 43 A person commits the offense of kidnapping when he or she knowingly and secretly
confines another against his or her will. 720 ILCS 5/10-1(a)(1) (West 2002). Confinement of a
child under the age of 13 years is against that child’s will if that confinement is without the
consent of that child’s parent. Id. § 10-1(b). A person commits aggravated kidnapping if he or
she kidnaps a child under the age of 13 years. Id. § 10-2(a)(2). “Circumstantial evidence is proof
of facts that give rise to reasonable inferences of other facts that tend to establish guilt or
innocence of the defendant.” Johnson, 2018 IL App (1st) 150209, ¶ 19. A criminal conviction
may be based solely on circumstantial evidence (Brown, 2013 IL 114196, ¶ 49) and a single
witness is sufficient to conviction (Piatkowski, 225 Ill. 2d 551, 566).
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¶ 44 Here, the State asked C.M. whether her parents consented to defendant taking her into his
bedroom. C.M. responded, “[n]o, absolutely not.” C.M. also noted that her parents were “on the
strict side.” C.M. testified that defendant would force her into his bedroom when no one else was
around. In People’s Exhibit 5, defendant closed the door to his bedroom. “[T]he trier of fact is
not required to disregard inferences which flow normally from the evidence before it, nor need it
search out all possible explanations consistent with innocence and raise them to a level of
reasonable doubt.” Jackson, 232 Ill. 2d at 281. Viewing the evidence in the light most favorable
to the State, the jury could reasonably infer that defendant grabbed C.M. when no one was
around, and closed his bedroom door because he knew that her parents did not consent to him
forcefully taking her into his bedroom. This conclusion was further supported by C.M.’s
testimony.
¶ 45 4. Child Pornography
¶ 46 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt of
child pornography. Defendant alleges that the State failed to prove that he knowingly or
intentionally videotaped People’s Exhibit 5. He further contends that the State failed to prove
that he possessed People’s Exhibit 5. The State responds that it proved that defendant videotaped
and possessed People’s Exhibit 5 through circumstantial evidence.
¶ 47 a. Knowledge or Intent
¶ 48 Defendant was convicted of three counts of child pornography for videotaping certain
sexual acts between him and C.M—counts 71, 72, and 73. 720 ILCS 5/11-20.1(a)(1)(ii), (iv)
¶ 49 A person commits child pornography if he or she videotapes any child who he or she
knows or reasonably should know to be under the age of 18 where such child is engaged in any
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act of sexual penetration or sexual conduct involving the sex organs of the child and the mouth,
anus, or sex organs of another person; or which involves the mouth, anus or sex organs of the
child and the sex organs of another person; or where the child is actually engaged in any act of
lewd fondling, touching, or caressing involving another person. 720 ILCS 5/11-20.1(a)(1)(ii),
(iv) (West 2002). Child pornography is a specific intent crime. People v. Dodds, 2014 IL App
(1st) 122268, ¶ 47. Accordingly, the State must have proved beyond a reasonable doubt that
defendant knowingly or intentionally filmed C.M. People v. Robinson, 379 Ill. App. 3d 679, 683-
84 (2nd Dist. 2008). “Knowledge is often proven by circumstantial evidence.” People v. Jasoni,
2012 IL App (2d) 110217, ¶ 20. “Circumstantial evidence is proof of facts that give rise to
reasonable inferences of other facts that tend to establish guilt or innocence of the defendant.”
Johnson, 2018 IL App (1st) 150209, ¶ 19.
¶ 50 Here, People’s Exhibits 2, 4, and 5 established by circumstantial evidence that defendant
knowingly videotaped sexual acts between himself and C.M. The position of the video camera is
notable. The video camera is positioned directly at the foot of defendant’s bed and angled to
capture anything that happens on defendant’s bed. In the People’s Exhibit 2, defendant is staring
directly into the video camera. During People’s Exhibit 5, defendant exposes C.M.’s breasts to
the camera while staring directly into the camera. Viewing the evidence in the light most
favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that
defendant knowingly filmed sexual acts between himself and C.M.
¶ 51 b. Possession
¶ 52 Defendant was convicted of three counts of child pornography for possessing the video
that showed him engaging in sexual acts with C.M.—counts 86, 87, and 88. 720 ILCS 5/11-
20.1(a)(1)(ii), (iv) (West 2002).
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¶ 53 “Possession of child pornography may be established by proof of either actual and
knowing physical possession or constructive possession.” People v. Jaynes, 2014 IL App (5th)
120048, ¶ 46. “Proof of constructive possession is sufficient in establishing possession***.”
People v. Maldonado, 2015 IL App (1st) 131874, ¶ 23. “Constructive possession exists when a
defendant has the intent and capacity to maintain dominion and control over the [child
pornography].” People v. Horn, 2021 IL App (2d) 190190, ¶ 39. “To establish constructive
possession, the State must prove that defendant had knowledge of the [child pornography] and
that defendant exercised immediate and exclusive control over the area where the [child
pornography] was found.” Maldonado, 2015 IL App (1st) 131874, ¶ 23. “A fact finder may infer
control of premises if the defendant lived there.” People v. Jaynes, 2014 IL App (5th) 120048, ¶
46.
¶ 54 Above, we already determined that the State proved beyond a reasonable doubt that
defendant had knowledge of the video camera. Supra, ¶ 50. Furthermore, C.M. and E.M. testified
that only defendant lived in the basement and the remainder of the family lived upstairs. Viewing
the light in the evidence most favorable to the State, the trier of fact could reasonably infer that
defendant exercised exclusive control over the basement. Thus, the State established beyond a
reasonable doubt that defendant constructively possessed the video tape.
¶ 55 B. Defective Indictment
¶ 56 Defendant argues that his convictions for counts 71 and 86 must be vacated where the
facts presented by the State did not allege a criminal offense. The State concedes that the
convictions for counts 71 and 86 should be vacated because the facts presented did not allege a
criminal offense.
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¶ 57 “A criminal defendant has a fundamental right to be informed of the nature and cause of
criminal accusations made against him.” People v. Carey, 2018 IL 121371, ¶ 20. In Illinois, this
right is set out in section 111-3 of the Code of Criminal Procedure of 1963 (“Code”). People v.
Meyers, 158 Ill. 2d 46, 51 (1994).
“Section 111-3(a) demands that the charging instrument be in writing, stating the name of the offense and the relevant statutory provision violated, setting forth the nature and elements of the offense and the date and county in which the offense occurred, and naming the accused if known or a reasonably certain description.” Id. (citing 725 ILCS 5/111-3(a) (West 2002).
The failure to charge an offense implicates due process concerns. People v. DiLorenzo, 169 Ill.
2d 318, 321 (1996). Accordingly, it may be attacked at any time. Id.
¶ 58 If the charging instrument is attacked for the first time on appeal, “a charging instrument
is sufficient if it notified the defendant of the precise offense charged with enough specificity to
allow the defendant to (1) prepare his or her defense and (2) plead a resulting conviction as a bar
to future prosecution arising out of the same conduct.” Carey, 2018 IL 121371, ¶ 22. Put simply,
the reviewing court must determine whether the defective charging instrument prejudiced
defendant in preparing his defense. Id. A defendant is hindered in the preparation of his defense
where he is forced to answer for crimes for which he could not be lawfully convicted. People v.
Libricz, 2022 IL 127757, ¶ 42 (quoting People v. Wasson, 175 Ill. App. 3d 851, 855 (4th Dist.
1988)). A conviction based on a charging instrument which fails to state a criminal offense
warrants reversal. Libricz, 2022 IL 127757, ¶ 45 (quoting People v. Tellez-Valencia, 188 Ill. 2d
523, 527 (1999).
¶ 59 Counts 71 and 86 charged defendant with violations of sections 11-20.1(a)(1)(ii) and 11-
20.1(a)(6)(ii) of the Code. 720 ILCS 5/11-20.1(a)(1)(ii), (a)(6)(ii) (West 2002). Counts 71 and
86 for child pornography alleged that the content of the video defendant videotaped and
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possessed depicted C.M. engaging in an act of sexual contact involving her mouth and
defendant’s mouth. However, sexual contact involving a child’s mouth and another person’s
mouth is not a criminal offense under either section 11-20.1(a)(1)(ii) or 11-20.1(a)(6)(ii) of the
Code. See id. Accordingly, counts 71 and 86 of the indictment failed to allege a criminal offense
for which defendant could be lawfully convicted, and his convictions must be vacated.
¶ 60 C. Improper Sentencing
¶ 61 Defendant next argues that his 14-year sentences for child pornography pursuant to
section 11-20.1(a)(6) of the Code—counts 86, 87, and 88—are improper. The State agrees.
¶ 62 A defendant is entitled to be sentenced under either the law in effect at the time the
offense was committed or at the time of sentencing. People v. Reyes, 2016 IL 119271, ¶ 12. At
the time of the offense, a violation of section 11-20.1(a)(6) was a Class 3 felony. See 720 ILCS
5/11-20.1(c) (West 2002). For a Class 3 felony, the maximum sentence was five years. 730 ILCS
5/5-8-1(a)(6) (West 2002). Here, the circuit court improperly sentenced defendant to nine years
over the maximum sentence for a violation of section 11-20.1(a)(6). Accordingly, we reduce
defendant’s sentences for counts 87 and 88 to five years of imprisonment for each count. We
previously vacated defendant’s conviction for child pornography on count 86.
¶ 63 III. CONCLUSION
¶ 64 For the reasons stated above, we affirm defendant’s convictions and sentences on count 1
for predatory criminal sexual assault, count 3 for aggravated criminal sexual assault, count 65 for
aggravated kidnapping, and counts 72 and 73 for child pornography. We vacate defendant’s
convictions and sentences for counts 71 and 86 for child pornography. We affirm defendant’s
convictions for counts 87 and 88 for child pornography but reduce the sentence for each count to
five years of imprisonment.
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¶ 65 Affirmed in part and reversed in part.
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