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People v. Boand9/30/2005
were sufficiently specific to inform defendant with reasonable certainty of the offense he was accused of committing. The additional allegation that the specific type of sexual penetration was the placing of defendant's penis in Shepherd's vagina constituted mere surplusage. See Collins, 214 Ill. 2d at 219; see also People v. Ikpoh, 242 Ill. App. 3d 365, 380-81 (1993).
Defendant argues that the State did not prove that he committed an act of "sexual penetration." When a defendant challenges the sufficiency of the evidence, a reviewing court will reverse the conviction only if, after viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541 (1999). It is the responsibility of the trier of fact to assess the credibility of the witnesses, weigh the evidence, draw reasonable inferences from the evidence, and resolve any conflicts in the evidence. People v. Sorenson, 196 Ill. 2d 425, 431 (2001).
The term "sexual penetration" is defined as "any contact, however slight, between the sex organ * of one person * the sex organ, mouth or anus of another person, * including but not limited to cunnilingus, fellatio or anal penetration." (Emphasis added.) 720 ILCS 5/12--12(f) (West 2004). Shepherd testified that when she entered defendant's bedroom, she ingested methadone that defendant provided, fell asleep, and awoke with defendant on top of her. In denying the offense, defendant emphasizes Shepherd's testimony that she did not recall removing her clothing, defendant could not achieve an erection, and she was unsure whether "he even had sex with ." However, Shepherd also testified that defendant was naked and "attempting to have sex[ual intercourse] with ." Left with the task of assessing the credibility of the witnesses and drawing reasonable inferences from the evidence, the jury could infer from Shepherd's testimony that defendant removed Shepherd's clothing and that their sex organs made "contact, however slight," which is sufficient to support a finding of sexual penetration. 720 ILCS 5/12--12(f) (West 2004); see Sorenson, 196 Ill. 2d at 431. Contrary to defendant's assertion, his apparent inability to achieve an erection is not dispositive of whether any contact occurred. Furthermore, Officer Nash testified that, when the police responded to the 911 call, defendant admitting having "sex" with Shepherd at approximately 6 a.m. We conclude that, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of criminal sexual assault beyond a reasonable doubt. See Smith, 185 Ill. 2d at 541.
E. Admission of Goldman's Third Telephone Conversation With Shepherd
On direct examination by the State, Shepherd testified that, on the night of the incident, Levin was very upset about her failed relationship and damaged car. Shepherd conceded that Levin did not say that she wished to commit suicide. Shepherd recalled discussing Levin's death in two telephone conversations with a friend, Becky Goldman, during the week following the incident. Shepherd denied that she told Goldman that Levin wanted to kill herself and that her death was not preventable. Goldman testified that Shepherd did, in fact, say that Levin wanted to commit suicide. Over defense objection, the trial court permitted Goldman to testify to a third telephone conversation with Shepherd, which occurred between the other two conversations. During the third conversation, Goldman heard defendant in the background "probing Shepherd on what to say."
Defendant contends that the Sta
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