IN THE
                               SUPREME COURT
                                           OF
                         THE STATE OF ILLINOIS




                                   (Docket No. 129425)

               THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
                       KOREM M. JOHANSON, Appellant.

                               Opinion filed April 4, 2024.



        JUSTICE O’BRIEN delivered the judgment of the court, with opinion.

        Chief Justice Theis and Justices Neville, Overstreet, Cunningham, and
     Rochford concurred in the judgment and opinion.

        Justice Holder White took no part in the decision.

OPINION

¶1      Following a bench trial, the circuit court of McHenry County found defendant,
     Korem M. Johanson, guilty of Class X felony predatory criminal sexual assault of
     a child (720 ILCS 5/11-1.40(a)(1) (West 2018)). Prior to sentencing, defendant
     moved to be sentenced for the less severe Class 2 felony offense of aggravated
     criminal sexual abuse (id. § 11-1.60(c)(1)(i)). 1 He argued that the greater penalty
     for predatory criminal sexual assault of a child violated the proportionate penalties
     clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11) because the two
     offenses contained identical elements but disparate sentences. The circuit court
     denied the motion and sentenced defendant to 16 years’ imprisonment. Defendant
     raised the same argument on appeal, and the appellate court affirmed defendant’s
     conviction and sentence. 

. We affirm.


¶2                                         BACKGROUND

¶3       The State charged defendant with six offenses. He pled guilty to one count prior
     to trial, which is not relevant to this appeal. Following the bench trial on the
     remaining five counts, the circuit court found him guilty of only one count of
     predatory criminal sexual assault of a child. That count alleged:

         “[D]efendant committed the offense of predatory criminal sexual assault, in that
         the said defendant, who was seventeen years of age or older, knowingly
         committed an act of contact with [the victim] who was under thirteen years of
         age when the act was committed, in that said defendant caused [his] sex organ
         (penis) to make contact with the hand of [the victim] for the purpose of the
         defendant’s sexual gratification or arousal.”

¶4       Prior to sentencing, defendant filed a motion to be sentenced for the Class 2
     felony of aggravated criminal sexual abuse. He claimed that predatory criminal
     sexual assault of a child contained identical elements to the less severe offense of
     aggravated criminal sexual abuse, which he argued violated the proportionate
     penalties clause of the Illinois Constitution. The circuit court denied the motion,
     finding that the two offenses did not contain identical elements, given that the
     offense of predatory criminal sexual assault of a child required “contact” between
     the sex organ or anus of the defendant or victim, while aggravated criminal sexual




         1
           The appellate court observed that defendant cited a different form of aggravated criminal
     sexual abuse in the trial court (720 ILCS 5/11-1.60(b) (West 2018)), but in the appellate court and
     this court, defendant relied on section 11-1.60(c)(1)(i). See 

, ¶ 4 n.1. The
     State took no issue with this discrepancy in either the appellate court or this court.




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     abuse broadly required an act of “sexual conduct” that did not necessarily involve
     contact with a sex organ or anus.

¶5       On appeal, defendant again argued that the penalty for predatory criminal
     sexual assault of a child violated the proportionate penalties clause of the Illinois
     Constitution under the identical elements test. 

 The appellate court interpreted
     the definition of the element “sexual conduct” for the offense of aggravated
     criminal sexual abuse. 

 ¶ 18 (citing 720 ILCS 5/11-0.1 (West 2018)). It
     concluded that sexual conduct can occur in three ways, when

        “for the purpose of sexual gratification or arousal of the defendant or the victim,
        there is (1) knowing touching or fondling of the victim’s or the defendant’s sex
        organs, anus, or breast, or (2) knowing touching or fondling of any part of the
        body of a child under age 13, or (3) any transfer or transmission of semen by
        the accused upon any part of the clothed or unclothed body of the victim.”
        (Emphases in original and internal quotation marks omitted.) 

¶6       By contrast, the court noted that predatory criminal sexual assault of a child
     “concerns ‘contact, however slight, between the sex organ or anus of one person
     and the part of the body of another,’ where the victim is under 13 years of age.” 

     ¶ 19 (quoting 720 ILCS 5/11-1.40(a)(1) (West 2018)). The court found that,
     although both offenses required the victim to be under the age of 13, the broad
     definition of sexual conduct could be satisfied without contact involving the sex
     organ or anus. 

 Therefore, a person could commit the offense of aggravated
     criminal sexual abuse without also committing the offense of predatory criminal
     sexual assault of a child. 

 Consequently, the court concluded that the two
     offenses did not contain identical elements in violation of the proportionate
     penalties clause. Id. ¶ 27.

¶7      Defendant appeals.


¶8                                       ANALYSIS

¶9       In this court, defendant contends that the courts below erred in rejecting his
     argument that the penalty for the offense of predatory criminal sexual assault of a
     child violates the proportionate penalties clause of our state constitution. The




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       constitutionality of a statute is a question of law, which we review de novo. People
       v. Hauschild, 

 (2007).

¶ 10       The proportionate penalties clause of the Illinois Constitution provides that
       “[a]ll penalties shall be determined both according to the seriousness of the offense
       and with the objective of restoring the offender to useful citizenship.” Ill. Const.
       1970, art. I, § 11. When reviewing a proportionate penalties claim, “our ultimate
       inquiry is whether the legislature has set the sentence in accord with the seriousness
       of the offense.” People v. Guevara, 

 (2005). One way a penalty
       can violate the proportionate penalties clause, which is at issue here, is if that
       penalty “is greater than the sentence for an offense with identical elements.” People
       v. Ligon, 

, ¶ 10. This is known as the identical elements test.

¶ 11       Under the identical elements test, where different offenses contain identical
       elements, “common sense and sound logic would seemingly dictate that their
       penalties be identical.” People v. Christy, 

 (1990). When two
       different offenses contain identical elements but different penalties, “the penalties
       [are] unconstitutionally disproportionate and the offense with the greater penalty
       [cannot] stand.” People v. Williams, 

 (citing Christy, 

). This objective test compares the elements of the two offenses to
       determine if the offenses are the same. Id. ¶ 19. Given that the test is objective, it
       does not consider the offenses as applied to an individual defendant. Id. Here, we
       compare section 11-1.40(a)(1) of the Criminal Code of 2012 (Code) (720 ILCS
       5/11-1.40(a)(1) (West 2018)) (predatory criminal sexual assault of a child) with
       section 11-1.60(c)(1)(i) of the Code (id. § 11-1.60(c)(1)(i)) (aggravated criminal
       sexual abuse).

¶ 12      Section 11-1.40(a)(1) provides that

          “[a] person commits predatory criminal sexual assault of a child if that person
          is 17 years of age or older, and commits an act of contact, however slight,
          between the sex organ or anus of one person and the part of the body of another
          for the purpose of sexual gratification or arousal of the victim or the accused
          *** and:

              (1) the victim is under 13 years of age[.]” Id. § 11-1.40(a)(1).




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       Contact has been interpreted to mean any touching. People v. Kitch, 

. Contact in the context of this statute requires direct contact
       between the sex organ or anus of one person and any part of the body of another.

¶ 13        By comparison, section 11-1.60(c)(1)(i) provides that “[a] person commits
       aggravated criminal sexual abuse if: (1) that person is 17 years of age or over and:
       (i) commits an act of sexual conduct with a victim who is under 13 years of age.”
       720 ILCS 5/11-1.60(c)(1)(i) (West 2018). “Sexual conduct” is defined as

          “any knowing touching or fondling by the victim or the accused, either directly
          or through clothing, of the sex organs, anus, or breast of the victim or the
          accused, or any part of the body of a child under 13 years of age, or any transfer
          or transmission of semen by the accused upon any part of the clothed or
          unclothed body of the victim, for the purpose of sexual gratification or arousal
          of the victim or the accused.” 

 § 11-0.1.

       The first two definitions involve the knowing touching or fondling based on the age
       of the victim. Depending on the victim’s age,

          “ ‘sexual conduct’ involving a victim of the age of 13 and over requires
          intentional touching or fondling of certain parts of the body, namely, the sex
          organs, the anus, or the breast, whereas ‘sexual conduct’ involving a victim
          under the age of 13 years includes the touching or fondling of ‘any part of the
          body,’ in all cases for the purpose of sexual gratification or arousal of the victim
          or the accused.” People v. Nibbio, 

 (1989) (interpreting
          the former version of the statute, which mirrored the relevant language of the
          current version of the definition of sexual conduct).

       The third definition involves the transfer of semen regardless of the victim’s age.
       Therefore, where the conduct in question does not involve the transfer of semen,
       the element of sexual conduct under section 11-1.60(c)(1)(i)—which requires the
       victim to be under the age of 13—is defined as any “knowing touching or fondling
       by the victim or the accused, either directly or through clothing, of *** any part of
       the body of a child under 13 years of age.” 720 ILCS 5/11-0.1 (West 2018); see
       Nibbio, 

.




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¶ 14       The plain language of these statutes demonstrates a clear difference between
       the two offenses. Although both require the victim to be under the age of 13,
       aggravated criminal sexual abuse concerns any touching or fondling for purposes
       of sexual gratification or arousal, whereas predatory criminal sexual assault of a
       child requires direct contact with the sex organ or anus. While acts that satisfy the
       contact element of predatory criminal sexual assault of a child also satisfy the
       element of sexual conduct, the opposite is not always true.

          “For example, a defendant who massages the back of a naked six-year-old for
          purposes of sexual gratification can be convicted of aggravated criminal sexual
          abuse, but without an allegation that the touching concerned a sex organ or anus,
          the defendant cannot also be convicted of predatory criminal sexual assault of
          a child.” 

.

       Consequently, the two offenses do not contain identical elements. See generally
       People v. Gallegos-Moreno, 

 (agreeing with the
       appellate court’s decision in the case at bar); People v. D.K., 

 (same). The legislature could have reasonably believed that contact
       between the sex organ or anus of the defendant and a child victim required a more
       severe penalty. Therefore, the more severe sentence provided for the offense of
       predatory criminal sexual assault of a child is not constitutionally disproportionate
       to the less severe sentence for the offense of aggravated criminal sexual abuse.

¶ 15       Nevertheless, defendant asks this court to consider the elements of the offense
       as alleged in this case and find that both offenses contain identical elements. He
       notes that he was convicted of predatory criminal sexual assault of a child based on
       one theory of guilt—that he caused his penis to make contact with the hand of the
       victim for the purpose of sexual gratification or arousal. Had defendant been
       charged with aggravated criminal sexual abuse, defendant claims the State would
       be required to prove contact between defendant’s penis and the victim’s hand to
       satisfy the element of sexual conduct. Since his acts satisfied the elements of both
       offenses, he contends the elements must be identical.

¶ 16       We reject defendant’s argument for two reasons. First, despite defendant’s
       insistence to the contrary, his argument is an as-applied challenge, which is not
       appropriate under the identical elements test. Williams, 

. The
       identical elements test compares the elements of two offenses to determine if the



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       offenses are the same. 

 This objective test does not consider the offenses as
       applied to an individual defendant. 

 Rather, the question of whether the elements
       of one offense are the same as those of another offense turns on that statutory
       language, not the facts alleged in a particular case. Here, the analysis is whether
       “sexual conduct” means the same thing as “contact” based on the statutory
       language. That defendant’s acts in this case constituted both offenses shows only
       that aggravated criminal sexual abuse may be a lesser included offense of predatory
       criminal sexual assault of a child in some cases, but that does not make the elements
       identical. For the same reason, we find defendant’s reliance on Christy, 

, People v. Lewis, 

 (1996), Hauschild, 

, and People
       v. Clemons, 

, misplaced. Those decisions compared a felony
       offense to the offense of armed violence and did not involve the offenses in question
       here. Further, the statutes in question involved the use of different words that meant
       the same thing. Here, the elements of contact and sexual conduct do not mean the
       same thing.

¶ 17        Defendant’s argument has a second flaw in that it incorrectly defines the
       element of sexual conduct for the offense of aggravated criminal sexual abuse when
       the victim is under the age of 13. Defendant claims this court should rely on the
       first clause and define this element as “any knowing touching or fondling by the
       victim or the accused, either directly or through clothing, of the sex organs, anus,
       or breast of the victim or the accused.” 720 ILCS 5/11-0.1 (West 2018). However,
       this definition has no application to section 11-1.60(c)(1)(i), which requires the
       victim to be under the age of 13. As noted above, when the victim is under the age
       of 13 and the conduct involves touching and fondling, sexual conduct is defined as
       “any knowing touching or fondling by the victim or the accused, either directly or
       through clothing, of *** any part of the body of a child under 13.” 

 This does not
       require contact between the sex organ or anus of the victim or the accused, although
       proof of those facts would satisfy this definition.

¶ 18      Finally, we reject defendant’s reliance on People v. Deckard, 

, which also compared predatory criminal sexual assault of a child and
       aggravated criminal sexual abuse but reached the opposite conclusion. 2 Relying on


           2
            The Fourth District has since held that “[t]o the extent the Deckard decision’s mere existence
       suggests a defendant can raise an as-applied proportionate penalties challenge under the identical




                                                     -7-
       the fact that defendant’s conduct in Deckard constituted both offenses, the court
       held that the offenses shared identical elements. 

. The flaw in Deckard is it
       relied on the fact that the charging instrument alleged facts that could establish both
       offenses to find the elements are identical. As discussed above (supra ¶¶ 15-16),
       that is not the appropriate test. We therefore overrule Deckard. 3


¶ 19                                           CONCLUSION

¶ 20       For the above reasons, we affirm the judgment of the appellate court, which
       affirmed the circuit court’s judgment that the offense of predatory criminal sexual
       assault of a child does not contain identical elements to the offense of aggravated
       criminal sexual abuse and therefore does not violate the proportionate penalties
       clause of the Illinois Constitution.


¶ 21       Judgments affirmed.


¶ 22       JUSTICE HOLDER WHITE took no part in the consideration or decision of
       this case.




       elements test, we emphasize the supreme court’s decision in Williams does not allow such a
       challenge.” People v. Melvin, 

.
           3
            In coming to this conclusion, we also note that Deckard is an unpublished appellate court
       decision from before 2021, which Rule 23 does not permit a litigant to cite for persuasive purposes.
       See Ill. S. Ct. R. 23(e) (eff. Feb. 1, 2023).




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