Supreme Court Summaries

Opinions filed March 21, 2013


People v. Kennebrew, 2013 IL 113998

Appellate citation: 2012 IL App (2d) 090754-U.


      JUSTICE GARMAN delivered the judgment of the court, with opinion.

      Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, and Burke concurred in the judgment and opinion.

      Justice Theis dissented, with opinion.


      This Winnebago County defendant went to a jury trial concerning sexual misconduct allegedly committed against his stepdaughter in 2007, when she was nine years old. She testified at trial, as did her young cousin and stepmother, along with a child forensic interviewer and a registered nurse.

      This appeal concerns count I of the indictment, which was for predatory criminal sexual assault, and of which the jury found Kennebrew guilty. He appealed as to this count and the appellate court, believing the evidence to be insufficient, reversed. However, the Illinois Supreme Court directed the appellate court to consider whether the evidence was sufficient to sustain a conviction for the uncharged crime of aggravated criminal sexual abuse as a lesser-included offense of predatory criminal sexual assault. The appellate court did so find and remanded for sentencing.

      In his appeal to the Illinois Supreme Court, Kennebrew complained that what is at issue here is an offense with which he was not charged and as to which no instruction was ever requested or given. He argued that there had been a forfeiture by the prosecution, and also that his due process rights were violated by his not having been given notice of the previously uncharged offense and not having had an opportunity to present a defense to this charge at trial.

      The supreme court rejected the defendant’s forfeiture argument, noting the authority of reviewing courts, given by rule, to reduce offenses on appeal.

      The defendant conceded that under what is known as the “charging instrument approach,” aggravated criminal sexual abuse is a lesser-included offense of predatory criminal sexual assault. However, the defendant argued that because he was not given an opportunity to defend against this uncharged offense and the jury did not specifically consider it, the stricter “abstract elements approach” should be applied to his case and would yield a different result.

      In People v. Kolton, 219 Ill. 2d 353 (2006), the Illinois Supreme Court had held that an offense is a lesser-included offense under the charging instrument approach if every element of the uncharged offense is contained in the indictment or if any element not listed in the indictment can reasonably be inferred from the indictment allegations. Thus, the absence of a statutory element from a charging instrument will not prevent a finding that it contains a broad foundation or main outline of the lesser offense if any missing element can be inferred. In this opinion, the supreme court noted that the assault charge involves sexual penetration, while the abuse charge involves sexual gratification or arousal. The former was alleged in the indictment, while the latter was not. However, the indictment specifically alleged sexual penetration and, from this, the supreme court held that it could be inferred that the alleged misconduct was done with the purpose of sexual gratification or arousal. Thus, defendant had reasonable notice of the potential for a conviction of the lesser-included offense of aggravated criminal sexual abuse. Also, because of this implication, the defendant could not successfully argue that the jury never gave consideration to whether he was guilty of aggravated criminal sexual abuse. Therefore the appellate court, in finding guilt of the lesser offense, did not render a verdict on an additional element not considered by the jury. The procedural distinction that it was the appellate court, rather than the trier of fact, which specifically found guilt of the lesser-included offense is insufficient to implicate the stricter abstract elements approach argued for by Kennebrew.

      The defendant cannot claim a denial of due process because he had the opportunity to defend against the greater charge and thus was presented both with notice of the possible lesser charge and the opportunity to defend against it.

      The appellate court was affirmed in its remand for sentencing for aggravated criminal sexual abuse.