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People v. Boand9/30/2005
s of involuntary manslaughter and one count of delivering methadone, a controlled substance, to Levin. Hoerer also stated that he had negotiated no deal with the State in exchange for his testimony and that, after discussing his legal situation with counsel, he decided to testify because "telling the truth [would] in some way help case."
Defendant argues that he was barred from showing that Hoerer "would say anything to stay out of jail." However, defendant's argument on this point is contained in a single footnote in his opening brief, and he cites no authority to support his position. Therefore, he has waived the issue, and we need not consider it. See Official Reports Advance Sheet No. 4 (October 17, 2001), R. 341(e)(7), eff. October 1, 2001 (points not argued in appellant's brief are waived). However, we briefly note that Hoerer acknowledged providing a written statement, the value of which would determine the plea agreement he might ultimately reach with the State. Thus, the jury heard some evidence of Hoerer's motive to testify for the State.
D. Sufficiency of the Evidence of Criminal Sexual Assault
We next turn to defendant's contention that he was not proved guilty beyond a reasonable doubt of criminal sexual assault. Defendant's challenge focuses on the sufficiency of the evidence as it relates to the language of the charging instrument, which is an issue that might arise again on remand. Defendant was charged with committing criminal sexual assault, in that he, "knowing Tavia Shepard was unable to give knowing consent, committed an act of sexual penetration with Tavia Shepard , in that placed his penis in the vagina of Tavia Shepard , in violation of 720 ILCS 5/12--13(a)(2) [(West 2004)]." (Emphasis added.) Defendant asserts that, to be guilty of sexual penetration, the State had to prove that he "placed his penis in the vagina" of Shepherd because that fact was alleged in the charging instrument. We disagree, concluding that the State was required only to prove the more general allegation that defendant committed an act of "sexual penetration."
Section 111--3(a) of the Code (725 ILCS 5/111--3(a) (West 2004)) sets forth the requirements for the form of a charge and provides in relevant part as follows:
"(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have been violated;
(3) Setting forth the nature and elements of the offense charged;
(4) Stating the date and county of the offense as definitely as can be done; and
(5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty." 725 ILCS 5/111--3(a) (West 2004).
To vitiate a trial, a variance between allegations in a charge and proof at trial " ' "must be material and be of such character as may mislead the accused in making his defense." ' " People v. Collins, 214 Ill. 2d 206, 219 (2005), quoting People v. Davis, 82 Ill. 2d 534, 539 (1980), quoting People v. Figgers, 23 Ill. 2d 516, 518-19 (1962). Where an instrument charges all essential elements of an offense, other matters unnecessarily added may be regarded as surplusage. Collins, 214 Ill. 2d at 219.
In this case, the criminal-sexual-assault charge stated the offense, the statutory provision violated, the nature and elements of the offense as defined by the statute, the date and county of the offense, and the name of the accused. Section 111--3(a) required nothing more. We conclude that the words "sexual penetration"
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