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Docket No. 89057-Agenda 10-November 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v. JOSEPHMAGGETTE, Appellee.
Opinion filed March 29, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

Following a bench trial in the circuit court of Adams County, defendant, Joseph Maggette, was ultimately convicted of twocounts of criminal sexual assault and one count of residential burglary. 720 ILCS 5/12-13(a)(2), 19-3 (West 1998). He wassentenced to prison terms totaling 30 years.

The appellate court reversed defendant's criminal sexual assault convictions and affirmed his residential burglaryconviction. 311 Ill. App. 3d 388. We allowed the State's petition for leave to appeal (177 Ill. 2d R. 315(a)); defendantcross-appeals. We now affirm the appellate court, but modify defendant's sentence .

BACKGROUND

The State's evidence at trial was essentially as follows. In late May or early June 1998, defendant moved into the HotelElkton (Elkton) in Quincy, Illinois. The victim, G.J.S., was employed as a housekeeper there. She had seen defendant priorto his moving into the Elkton, when he worked at a recycling center in Quincy. There, he would wave or speak to her or herhusband.

While defendant resided at the Elkton, he followed the victim while she worked, asking questions about her. During theseconversations, defendant repeatedly stated that "he wanted to be more than friends" with her; that "he wanted to have anaffair" with her; and that he would like to perform cunnilingus on her. The victim always and repeatedly responded that shecould only offer defendant friendship. She told defendant that she was married, intended to be faithful to her husband, anddid not want to have an affair with him.

The victim had a friend, L.F., who lived at the Elkton. L.F. witnessed some of the above-stated conversations between thevictim and defendant. L.F. told defendant more than once to stay away from the victim.

On June 3, 1998, L.F. and the victim had planned to celebrate the twenty-first birthday of L.F.'s son. They were going tohave a party that afternoon at L.F.'s apartment, and would take him out that evening. Prior to the victim's arrival, L.F.'s sonappeared briefly and then left, telling L.F. that he would soon return. The victim arrived. Defendant subsequently came by,looking for the victim; L.F. allowed him in her apartment. L.F.'s son never returned. L.F. and the victim accordingly madeplans to go out themselves that evening. Defendant was present when L.F. and the victim planned their evening. They didnot invite defendant.

The victim went to her home and, at approximately 7:30 p.m., returned to L.F.'s apartment. The victim brought her dinnerwith her, but she did not eat it. The victim, L.F., and two of their friends went to a tavern. L.F. saw defendant sitting at thebar with someone; he did not say anything to the victim and her friends. After several drinks, the victim and her friends leftthat tavern and went to a second one. None of them saw defendant. They drank there for approximately one to two hours.According to L.F., she was not intoxicated, but the victim was.

They drove to a tavern called Port's Place, located two buildings away from the Elkton. Before entering, the victim decidedto go to L.F.'s apartment, eat the meal that she brought there, and then rejoin her friends. L.F. gave the victim the key to herapartment. L.F. and her friends entered the tavern, and the victim went to L.F.'s apartment. The victim let herself in, but didnot recall locking the door. She decided to rest before eating her meal. She lay down on the living room sofa and fellasleep.

In the tavern, defendant approached L.F. and asked where was the victim. L.F. told him that the victim was in L.F.'sapartment and that she would soon return. Saying that he would telephone the victim, defendant left. L.F. did not givedefendant permission to enter her apartment.

The victim at first thought that she was dreaming about being with her husband. She felt her breast being sucked, hervaginal area being rubbed, and her hand rubbing a penis. She opened her eyes and saw defendant laying over her. Thevictim was wearing a jumpsuit that zipped and buttoned down the length of the suit's front center. Both the zipper and thebuttons were undone; her bra was pulled up over her breasts; her panties were still on. One of defendant's hands wasrubbing the victim's hand on his exposed penis. During the subsequent police investigation and direct examination at trial,the victim stated that defendant's other hand was rubbing her vagina over her panties. However, during cross-examinationat trial, the victim testified that defendant's other hand was rubbing her vaginal area both over and underneath her panties.As she awoke, she asked defendant what he had done and how he had gotten into the apartment. Defendant replied: "I amnot finished, just let me finish," or "let me go all the way." The victim shouted at defendant and ordered him to leave theapartment.

Defendant left, and the victim locked the apartment door. The victim locked herself in the bathroom and repeatedly washedherself. Defendant telephoned the apartment; the victim answered the phone, hung up on him, and again locked herself inthe bathroom. Defendant later returned to the apartment and knocked on the door, saying that he wanted to talk to her. Thevictim ignored him and remained in the bathroom.

Defendant returned to the tavern. L.F. asked him where was the victim. He answered that she was in the apartment.Deciding to check on the victim, L.F. went to her apartment. She knocked on her apartment door. L.F. heard the victim andasked what was wrong. The victim would not answer and would not let L.F. into the apartment. L.F. obtained a spare keyand went inside. The victim was locked in the bathroom; with difficulty, L.F. persuaded the victim to open the door. Thevictim was crying, her clothes were undone, and she was washing herself. L.F. led the shaking victim to the living room,where she told L.F. what had happened.

They returned to the tavern. Defendant was still there, and L.F. confronted him. She shouted her accusations at defendant,who said that he did not do it, or even know what L.F. was talking about.

On June 5, 1998, a Quincy police officer took the initial report in this case. On June 8, Bryan Dusch, a Quincy policedepartment investigator, interviewed the victim, L.F., and defendant. During his interview, defendant told Dusch thefollowing. Defendant was with L.F. and the victim at L.F.'s apartment on the afternoon of June 3. Further, early the nextmorning, defendant was at Port's Place for a short time. He saw L.F. there and asked where was the victim. L.F. told himthat the victim was intoxicated and in L.F.'s apartment. Defendant initially told Dusch that he left the tavern to speak withfriends outside. Defendant later admitted to Dusch that he went to L.F.'s apartment, knocked on the door, and received thevictim's permission to enter. She was sitting on the sofa. Initially, defendant denied any sexual interaction with the victim;he left the apartment when she told him that she was intoxicated and sick. Later, in tears, he told Dusch that he kissed thevictim. She told him that she did not want to cheat on her husband, and then he left. Defendant returned to the tavern,where L.F. told him to leave the victim alone or L.F. would have him arrested. Defendant denied knowing why L.F. wasupset with him. Dusch arrested defendant following the interview.

Defendant was ultimately charged in a five-count amended information. Counts I and V charged defendant with criminalsexual assault in that he, knowing that the victim was unable to give knowing consent, committed acts of sexualpenetration. Count I charged that defendant placed the victim's hand on his penis, and count V charged that defendant"rubbed the vagina of [the victim], through her clothing, with his finger." See 720 ILCS 5/12-13(a)(2) (West 1998). CountsII and III charged defendant with criminal sexual abuse in that he, knowing that the victim was unable to give knowingconsent, committed acts of sexual conduct. Count II charged that defendant fondled the victim's breasts for the purpose ofhis sexual arousal, and count III charged that defendant "fondled the vagina of [the victim] through her clothing, for thepurpose of [his] sexual arousal." See 720 ILCS 5/12-15(a)(2) (West 1998). Count IV charged defendant with residentialburglary in that he knowingly and without authority entered into L.F.'s dwelling with the intent to commit a criminal sexualassault. See 720 ILCS 5/19-3(a) (West 1998).

Defendant testified for the defense essentially as follows. Early on June 4, 1998, defendant left his job and went to hisapartment. At approximately 1:45 a.m., defendant went to Port's Place to have a beer. He saw an intoxicated L.F., who saidthat the victim was looking for him and was in L.F.'s apartment. Defendant went to L.F.'s apartment to learn what thevictim wanted. The victim answered the door and hugged and kissed defendant. He was of the opinion that the victim wasintoxicated. They sat on the sofa. He hugged and kissed her; she rubbed between his legs. The victim said that she founddefendant attractive, but she cheated on her husband once before and did not want to do it again. Defendant left the victimand returned to Port's Place. He denied undressing the victim or committing the acts charged.

In rebuttal, L.F. denied being intoxicated and telling defendant that the victim was looking for him. Also, the victim denied:telling L.F. or anyone else that she was looking for defendant, allowing defendant into L.F.'s apartment, and voluntarilytouching defendant in any way.

At the close of the evidence, the trial court convicted defendant of counts I and V (criminal sexual assault), count III(criminal sexual abuse: fondling victim's vagina), and count IV (residential burglary). The trial court acquitted defendant ofcount II (criminal sexual abuse: fondling victim's breasts). The court found that the evidence of this charged conduct wasadduced in the form of a dream the victim thought she was having. Further, upon denial of defendant's post-trial motion,the court vacated the judgment on count III, finding that it was a lesser included offense of count V.

At the sentencing hearing, defendant testified in mitigation. He apologized to the victim for kissing and generallydisrespecting her. However, defendant denied committing the acts charged. During his closing argument, defense counselstated that under defendant's version of events, when defendant "was asked to leave he immediately did so." At the close ofthe sentencing hearing, the trial court sentenced defendant to prison terms of 8 years on count I, 10 years on count IV, and12 years on count V, all to run consecutively.

Defendant appealed, challenging the sufficiency of the charging instrument as to the criminal sexual assault (counts I andV) and the sufficiency of the evidence as to the residential burglary conviction (count IV). The appellate court reverseddefendant's convictions of criminal sexual assault (311 Ill. App. 3d at 394-97) and affirmed his conviction of residentialburglary (311 Ill. App. 3d at 397-99). The State appeals, and defendant cross-appeals.

DISCUSSION

The State contends that the appellate court erred in reversing defendant's criminal sexual assault convictions. On cross-appeal, defendant contends that the appellate court erred in upholding his residential burglary conviction.

I. Criminal Sexual Assault

The State charged defendant with committing criminal sexual assault in that he, knowing that the victim was unable to giveknowing consent, committed acts of sexual penetration. 720 ILCS 5/12-13(a)(2) (West 1998). Section 12-13(a) of theCriminal Code of 1961 provides in pertinent part: "The accused commits criminal sexual assault if he or she commits anact of sexual penetration and the accused knew that the victim was unable to understand the nature of the act or was unableto give knowing consent." 720 ILCS 5/12-13(a)(2) (West 1998). Section 12-12(f) of the Code further defines this crime inpertinent part:

" 'Sexual penetration' means any contact, however slight, between the sex organ or anus of one person by an object, the sexorgan, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of anyanimal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or analpenetration." 720 ILCS 5/12-12(f) (West 1998).

This definition reflects a broad concept of "sexual penetration" for purposes of Illinois sex crimes. It defines two broadcategories of conduct. It includes any contact between the sex organ or anus of one person by an object, the sex organ,mouth or anus of another person. Alternatively, the statutory definition includes any intrusion of any part of the body of oneperson or of any animal or object into the sex organ or anus of another person. This statutory concept of "sexualpenetration" is broader than what was known under prior law. See generally 1 J. Decker, Illinois Criminal Law