THIRD DIVISION March 27, 2019

No. 1-16-1246

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 15 CR 7235 ) RONALD SMITH, ) ) Honorable James N. Karahalios, Defendant-Appellant. ) Judge Presiding )

JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.

OPINION

¶1 After a jury trial, defendant Ronald Smith was convicted of two counts of aggravated

criminal sexual assault and sentenced to 50 years’ imprisonment. On appeal, defendant claims

that (1) the State failed to prove beyond a reasonable doubt the aggravating factor, namely that

he displayed a knife “during the commission” of the sexual assaults, and (2) the circuit court

failed to sua sponte instruct the jury on the lesser-included offense of criminal sexual assault. We

find defendant’s reading of the aggravated criminal sexual assault statute unreasonable and hold

that, under a proper reading of it, the evidence was more than sufficient to support the 1-16-1246

convictions. We reject his claim of error regarding the lesser-included instruction based on

waiver, as defendant himself made the decision not to seek that instruction.

¶2 BACKGROUND

¶3 Defendant was charged by indictment with, among other things, two counts of aggravated

criminal sexual assault. 720 ILCS 5/11-1.30(a)(1) (West 2014). The gist of the indictment was

that defendant forced his penis into S.N.’s mouth through the use or threat of force while

displaying a knife. Defendant opted to proceed pro se by way of jury trial.

¶4 At trial, S.N. testified that she met defendant through an online dating service

approximately seven years before trial. When S.N. met defendant, he lived in Connecticut. After

meeting, defendant and S.N. began a long-distance relationship. Sometime before 2014, the

relationship ended. However, in fall 2014, defendant contacted S.N. via Skype, and they renewed

their online relationship. Sometime thereafter, defendant moved to Illinois, and in October 2014,

he moved into S.N.’s apartment with her and her roommate, Wilder Prieto.

¶5 In January 2015, S.N. ended her relationship with defendant and told him that he had “a

month to get his life together and move out.” In February, Prieto moved out of the apartment. As

a result, S.N. allowed defendant to assume Prieto’s portion of the lease and continue living in the

apartment. S.N. testified that from the time she ended her relationship with defendant in January

until April 8, 2015, she had no romantic relationship or sexual contact with defendant.

¶6 On April 7, 2015, S.N. went to see the movie “Fast and Furious 7.” S.N. was initially

planning on going alone, but defendant asked to come along. At first, S.N. agreed, explaining to

defendant, “I will buy my ticket, go buy your ticket, and we’ll just watch it.” In response,

defendant told S.N. that he was “thinking we would go like boyfriend/girlfriend” and “make out

afterwards.” S.N. ultimately went to the movie alone.

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¶7 When S.N. returned home from the movie theater, defendant was not there. S.N. locked

the front door, went upstairs, and took a shower. At some point while S.N. was showering,

defendant opened the door, walked into the bathroom, and asked if he could get in the shower

with S.N. She refused, defendant left, and S.N. finished showering.

¶8 After showering, S.N. went into her bedroom, locked the door, spread Legos across the

floor in front of the door, and then got dressed. S.N. explained that defendant had tried coming

into room before, so she “thought if he comes into my room in the dark, he’ll step on [the

Legos]. That hurts like hell, so he’ll make a noise, and that will wake me up.” S.N. then went to

sleep.

¶9 S.N. awoke to the sound of her doorknob “jiggling.” According to her, “the door opened”

and defendant “was standing in the doorway, and he had a knife in his hand and a roll of duct

tape in the other hand.” S.N. asked defendant “if he would hurt me.” Defendant said, “Yes.”

¶ 10 Defendant then entered S.N.’s bedroom and got on top of S.N., pinning down her arms

with his knees. S.N. attempted to resist and began to cry. Defendant then grabbed S.N.’s hands,

twisted them over her head, and tried to tape them together. S.N. begged defendant not to hurt

her, telling him to stop and that “if he loved me, he wouldn’t hurt me.” According to S.N., at one

point when he was trying to tape S.N.’s hands together, defendant put the knife down.

¶ 11 At some point during the struggle, defendant “started to move his hips towards [S.N.’s]

face,” and then, while holding her wrists with one hand, used his other hand to put his penis in

S.N.’s mouth. S.N. began coughing and gagging, and defendant got off of her. S.N. then leaned

over and coughed into a garbage can.

¶ 12 Defendant then laid down on his back where S.N. had been lying and grabbed S.N. by the

neck and “shoved me on his penis again.” S.N. explained that defendant grabbed her by the nape

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of her neck and forced her head up and down, causing her mouth to again come in contact with

his penis. S.N. became sick again and began coughing. While S.N. lay on the bed crying and

coughing into her pillow, defendant stood up and left the room.

¶ 13 But defendant was not through with S.N. He returned to her room—this time fully

nude—again brandishing his knife and carrying a roll of duct tape. Upon entering S.N.’s room,

defendant got on her bed and straddled her. Defendant once again tried without success to tape

S.N.’s wrists together. Defendant then put his penis on S.N.’s lips. S.N. began coughing again, so

defendant got off of her and began “spooning” her as she cried. Eventually, defendant fell asleep

in S.N.’s bed. S.N. explained that she didn’t move when defendant fell asleep because she was

“scared that any noise would wake him up and that he would come after me again.”

¶ 14 After full admonishment from the court, defendant testified on his own behalf in narrative

fashion. He admitted that he went into S.N.’s room on the night in question but claimed that he

was wearing pants and boxer shorts. Defendant also admitted that he used a knife to open S.N.’s

door, but he testified that he put the knife in his pocket immediately after opening the door. He

testified that he got into bed with S.N. and took off his pants, but he stated that he still had his

boxer shorts on, and he denied that he had the knife in his hand.

¶ 15 Defendant then “grab[bed] [S.N.] to face me.” In response, S.N. told defendant, “I said

get out, no.” Defendant replied, “[J]ust come on.” Thereafter, defendant testified that he knocked

on the bathroom door while S.N. was showering and asked if he could join her. After S.N.

refused, defendant left to go walk a neighbor’s dog.

¶ 16 When he returned, defendant asked S.N. to perform oral sex on him. S.N. said no.

However, defendant told the jury, he “knew that if I would just keep on pressuring her,

eventually she would say yes because before she was mad at me and she was like, no *** I told

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you, you have to do things for me first, you have to change, I have to see it.” Defendant

explained that S.N. was “upset because I was drinking more heavy,” and he admitted that he had

been drinking on the night in question.

¶ 17 Thereafter, defendant admitted that he put his hands on S.N. and got on top of her while

saying “come on.” S.N. continued to say “no.” Defendant continued pressuring S.N. for oral sex,

saying, “come on, ***, you know, just a little.” Defendant then told the jury, “[a]nd then from

there she just said, I did force her, but at no time did I have a knife in my hand. After that right

there [S.N.] told me, she was like, she’s like, I kept asking her, she was like, okay, fine, just get

on your back.” According to defendant, S.N. then performed oral sex on him for approximately

two minutes. Defendant testified that he did not ejaculate.

¶ 18 Afterwards, defendant and S.N. “kiss[ed] passionately.” Defendant and S.N. laid in bed

together for approximately 20 to 30 minutes. At that point, defendant asked S.N., “let’s just do it

again.” S.N. refused, stating, “I already did it once.” In response, defendant said, “come on, just

a little bit more.” Thereafter, defendant testified that he “got up and she had her head like up on

the bed. And then I’m not going to say I forced her because I didn’t. I was already naked because

I was inside the bed with her. And then I put my penis into her mouth at that time. That was the

second time.”

¶ 19 The following morning, defendant asked S.N. for vaginal sex. She refused, and they

argued. According to defendant, at that point, he told S.N. that he “felt like fucking [her] up.”

However, he denied threatening her the night before. S.N. then went into the bathroom.

Defendant tried to hug S.N., and she asked defendant if he was going to hurt her. Defendant

testified that he answered “no.”

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¶ 20 After deliberating, the jury found defendant guilty of two counts of aggravated criminal

sexual assault. The circuit court sentenced defendant to 25 years in prison on each count, to be

served consecutively. This appeal followed.

¶ 21 ANALYSIS

¶ 22 Defendant raises two arguments on appeal. First, his convictions for aggravated criminal

sexual assault should be reduced to criminal sexual assault, because the State failed to prove that

he displayed a knife during the commission of a sexual assault. Second, he is entitled to a new

trial because the circuit court failed to sua sponte tender a jury instruction on the lesser-included

offense of criminal sexual assault. We take the questions in that order.

¶ 23 I

¶ 24 Defendant claims the State failed to prove beyond a reasonable doubt that he used a knife

“during the commission of” the sexual assaults, because he was not holding or displaying the

knife at the precise moment the sexual penetrations occurred. While couched as a challenge to

the sufficiency of the evidence, this claim first requires us to interpret the aggravated criminal

sexual assault statute. See, e.g., People v. Ward,

(2005) (in determining

whether evidence was sufficient to prove defendant guilty of possession of harmful materials,

question “devolve[d] into an issue of statutory interpretation” as to meaning of term “possession”

in statute); People v. Barnes,

(sufficiency of evidence of armed-

violence conviction depended on interpretation of mob-action statute that served as predicate for

conviction).

¶ 25 Our task in interpreting a statute is to give effect to the legislature’s intent, “keeping in

mind that the best and most reliable indicator of that intent is the statutory language itself, given

its plain and ordinary meaning.” People v. Young,

. We resort to other aids

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of statutory construction only if the language of the statute is ambiguous. People v. Glisson,

(2002).

¶ 26 The offense of aggravated criminal sexual assault is codified in section 11-1.30 of the

Criminal Code, which provides in relevant part:

“(a) A person commits aggravated criminal sexual assault if that person commits

criminal sexual assault and any of the following aggravating circumstances exist during

the commission of the offense ***:

(1) the person displays, threatens to use, or uses a dangerous weapon, other than a

firearm, or any other object fashioned or used in a manner that leads the victim, under the

circumstances, reasonably to believe that the object is a dangerous weapon[.]” (Emphasis

added.) 720 ILCS 5/11-1.30(a)(1) (West 2014).

¶ 27 This case turns on the meaning of the phrase, “during the commission of the offense.”

Here, of course, the “offense” referenced is criminal sexual assault. Relevant here, criminal

sexual assault occurs when a person “commits an act of sexual penetration and uses force or

threat of force.” 720 ILCS 5/11-1.20 (West 2014).

¶ 28 So the “offense” of criminal sexual assault is not merely sexual penetration, full stop—it

is sexual penetration plus the use or threat of force, a separate element of the offense. The precise

act of sexual penetration occurs at a fixed moment (or moments) in time. That moment occurs,

relevant to this case, when “contact, however slight,” occurs between “the sex organ *** of one

person and” the “mouth *** of another person.” 720 ILCS 5/11-0.1 (West 2014).

¶ 29 The use or threat of force, on the other hand, does not occur solely at the precise time of

sexual penetration. To be sure, the use or threat of force may continue during the sexual

penetration—it usually does—but that is not when the use or threat of force begins.

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¶ 30 The use of force occurs “when the accused overcomes the victim by use of superior

strength or size, physical restraint, or physical confinement.”

By definition, that force will

precede the act of sexual penetration by at least some amount of time—seconds, minutes,

whatever amount of time it takes to “overcome” the victim.

¶ 31 So, too, with the “threat of force,” which occurs, in relevant part, “when the accused

threatens to use force or violence on the victim ***, and the victim under the circumstances

reasonably believes that the accused has the ability to execute that threat.”

It is so obvious

that it hardly requires saying: A threat of force precedes the sexual penetration by some amount

of time; it lingers over the victim, who is subdued precisely because the victim has a reasonable

belief that the accused “has the ability to execute that threat” of force.

¶ 32 The point being, the “offense” of criminal sexual assault does not begin and end at the

fixed point in time of the sexual penetration. It begins when the offender first uses force or the

threat of force along the way toward ultimately accomplishing sexual penetration. So when the

aggravated criminal sexual assault statute provides for the aggravation of the crime based on the

“display, threat[] to use, or use” of a dangerous weapon “during the commission of the offense,”

the phrase “during the commission of the offense” must include the period of time in which the

offender used or threatened force. 720 ILCS 5/11-1.30(a)(1) (West 2014). Any other reading

would ignore one of the elements of criminal sexual assault and focus exclusively on the other,

sexual penetration.

¶ 33 So we categorically reject defendant’s claim that he could not have been guilty of

aggravated criminal sexual assault unless he displayed the knife at the precise moment of sexual

penetration.

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¶ 34 With that understanding, we review the evidence to determine if it was sufficient to

convict defendant of aggravated criminal sexual assault. We review the evidence in the light

most favorable to the State and ask whether any rational juror could have found the required

elements proven beyond a reasonable doubt. People v. Newton,

.

¶ 35 S.N. testified that, during the first incident, defendant (1) used a knife to break into S.N.’s

room; (2) stood in her doorway brandishing the knife; (3) told S.N. he was going to hurt her; (4)

entered S.N.’s room while holding the knife and a roll of duct tape; (5) got into S.N.’s bed while

still holding the knife and got on top of her; and (6) while holding the knife, struggled to get

control of S.N. before setting the knife down, grabbing her hands, and forcing his penis into her

mouth. That testimony was more than sufficient for a rational juror to conclude that defendant

displayed the knife during the commission of the offense. Defendant both used and threatened

force while holding—“displaying”—the knife in his hand.

¶ 36 We are not moved in the slightest by the fact that near the tail end of this first incident,

defendant put the knife down. First, as a practical matter, to suggest that the knife did not remain

a threat to the victim here is utterly unrealistic and not supported by the evidence. A knife set

down, placed in the offender’s pocket, or even set on the floor near the bed can always be

retrieved again. Second, as a literal matter, the requirement that the knife be displayed “during

the commission of the offense” does not require that it be displayed at all times during its

commission.

¶ 37 During the second incident, according to S.N.’s testimony, after first leaving her room,

defendant (1) returned to her bedroom, again holding a knife and a roll of duct tape; (2) got onto

S.N.’s bed; (3) straddled S.N.; and (4) put his penis on her mouth. Afterwards, defendant fell

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asleep next to S.N., who explained at trial that she didn’t get out of bed that night because she

was too scared to wake up defendant.

¶ 38 Again, this evidence was amply sufficient to convict defendant. Defendant

unquestionably displayed that knife when he entered the room. The knife was either held by or

near defendant at all relevant times, always looming as an option for defendant if his victim did

not comply. That is to say nothing of the fact that a man entering a room with a knife and duct

tape, in and of itself, could cause a reasonable person in S.N.’s position to believe that defendant

had the means and intention of using force to get what he wanted from her.

¶ 39 We could stop there, but we would add that the jury was not required to discount

defendant’s prior threat of violence toward S.N., during the first incident, when he told her he

was going to hurt her. The jury could have rationally determined that S.N. had not forgotten that

earlier threat, which was followed up by a brutal, violent sexual assault the first time around.

Given that defendant was returning for the second time with that same knife and that same roll of

duct tape, it would defy logic and experience for someone in S.N.’s position not to view that

knife as a threat to her once more. At a minimum, a rational juror could have found that she

reasonably regarded it as such.

¶ 40 The evidence was more than sufficient to convict defendant of each count of aggravated

criminal sexual assault.

¶ 41 II

¶ 42 We next consider defendant’s claim that the trial court erred by not tendering a jury

instruction on the lesser-included offense of criminal sexual assault. A criminal defendant has a

due process right to have the jury properly instructed on the law. See U.S. Const., amd. XIV;

Middleton v. McNeil,

(2004) (“In a criminal trial, the State must prove every

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element of the offense, and a jury instruction violates due process if it fails to give effect to that

requirement.). Corollary to that right, a criminal defendant has a right to request a jury

instruction for any offense that is a lesser-included offense of the charged offense. People v.

Brocksmith,

(1994).

¶ 43 Rights, however, can be waived. “[W]aiver is an intentional relinquishment or

abandonment of a known right or privilege.” People v. Lesley,

. And that is

exactly what occurred in this case. To be sure, during the instruction conference, defendant

initially requested a lesser-included offense instruction. But then the following colloquy ensued:

“THE COURT: Do you want the lesser included offenses to be given to the jury?

That means if they find that you did this but didn’t display a weapon, they can find you

guilty. The way it currently stands is the only way that they can find you guilty of either

one is if you displayed the weapon, the knife. It is up to you. Your choice.

THE DEFENDANT: The only reason why I said that—

THE COURT: I understand, but I just need to know what you want to do. Again, I

am going to accommodate you. So far I have done every single thing you have asked me

for in this case. If you want it, you can have it. I want you to think about it, because what

I’m saying is that the way it stands at the moment if they don’t prove that you used the

knife, that you displayed the knife, you walk. If you give them the lesser included, they

don’t have to prove that you displayed the knife. All they have to prove is that you did it.

The knife is irrelevant. If they prove that, then you’re tagged.

What do you want to do?

THE DEFENDANT: I testified because I—because I did put my penis in [S.N.’s]

mouth. I never once contested that. I just said it was consensual. What I said, I told the

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entire truth. That’s what I did. I don’t want to show prejudice to myself where I walk on a

technicality. I want to give the State the opportunity—that she doesn’t be prejudiced.

THE COURT: Do you want to submit the lesser included offense?

THE DEFENDANT: No objection.

THE COURT: No, I didn’t ask if you had an objection. It has to be your motion.

It has to be your request.

THE DEFENDANT: No. Everything is fine then.

THE COURT: I’m sorry?

THE DEFENDANT: No, as it states. I will leave it like that.”

¶ 44 That is a textbook example of waiver. Defendant possessed a right—the right to request a

lesser-included offense instruction. The right was a known right, as evidenced by defendant’s

own words and the circuit court’s patient explanations. And defendant voluntarily relinquished

that right after the circuit court admonished him of the potential consequences of requesting a

lesser-included offense instruction. See People v. Cox,

(finding

that defendant waived his right to cross-examine a witness “by stating affirmatively that he had

no objection to admitting” a document, “even though it was clear that meant there would be no

cross-examination prior to its admission”).

¶ 45 Undeterred, defendant claims that the circuit court committed second-prong plain error

by failing to sua sponte tender a lesser-included offense instruction, despite defendant’s

conscious decision at trial to not request a lesser-included offense instruction. We cannot agree.

¶ 46 The plain-error doctrine is codified in Supreme Court Rule 615(a) (eff. Jan. 1, 1967),

which states: “Plain errors or defects affecting substantial rights may be noticed although they

were not brought to the attention of the trial court.” (Emphasis added.) As evidenced by the

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italicized language, the plain-error doctrine can only apply to arguments that were forfeited—

that is, arguments that “were not brought to the attention of the trial court.” Id.; see Lesley,

(“Forfeiture is defined as the failure to make the timely assertion of the right.”);

People v. Phipps,

(2010) (“forfeiture applies to issues that could have been

raised but were not”).

¶ 47 Here, however, as we have already explained, we do not face a situation where defendant

failed to raise an issue before the trial court. To the contrary, defendant engaged in a lengthy

discussion with the trial judge, who made it clear that defendant had the option: He could tender

an instruction on criminal sexual assault, a conviction that would be easier to obtain because the

State would not have to prove the display of the knife, or he could go for the all-or-nothing

approach of waiving the lesser-included instruction, thus facing only conviction on aggravated

criminal sexual abuse (which would require proof that he displayed the knife) or acquittal.

Defendant made his choice. He went for the all-or-nothing approach. He did not forfeit his right

to a lesser-included instruction. He waived it.

¶ 48 The distinction is critical here, because while plain-error review is available for errors

that were forfeited, it is not available for those that were waived.

¶ 49 People v. Patrick,

(2009), provides a good illustration. Patrick claimed

error in the giving of a jury instruction at his murder trial, as it allowed the jury to consider

involuntary manslaughter only if it first acquitted him of first-degree murder.

. Our

supreme court first found the issue forfeited, because Patrick failed to object to the instruction

and failed to raise any claim of error in his post-trial motion.

Defendant then sought plain-

error review of the forfeited jury-instruction argument. The supreme court held that, in addition

to forfeiting the error, Patrick waived it, too, because he himself tendered that jury instruction.

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at 76-77. The court thus “decline[d] to address Patrick's plain-error claim because Patrick invited

any error by submitting the jury instruction.”

.

¶ 50 Still more on point is the earlier supreme court decision of People v. Carter,

(2003), where defendant challenged his first-degree murder conviction, claiming that

the trial court erred by not tendering an instruction to the jury on the lesser-included offense of

involuntary manslaughter. The record showed that defendant affirmatively told the trial court

that he did not want that lesser-included instruction tendered.

Our supreme court held that the

doctrine of “invited error” precluded the defendant from challenging an action of the trial court

that the defendant, himself, requested.

¶ 51 As in Patrick and Carter, defendant here waived his right to challenge the trial court’s

action because it was the very action he invited. Whether we couch it in terms of “waiver” or

“invited error,” plain-error review of that action is not available. See also People v. Stewart,

(“Forfeited errors may be subject to plain-error review, but

waiver forecloses review of a claim predicated upon the waived right.”); People v. Boston,

, ¶ 109 (“Plain-error review is forfeited *** when the defendant invites the

error.”).

¶ 52 CONCLUSION

¶ 53 For these reasons, we affirm defendant’s conviction.

¶ 54 Affirmed.

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