Background
A Cook County jury convicted Devin Hemphill of three counts of predatory criminal sexual assault of a child and two counts of aggravated sexual abuse of a minor. He received an aggregate 25-year prison sentence.
Count I alleged that Hemphill inserted his finger into D.S.’s sex organ. Although that charge depended on proving an intrusion, the jury was instructed under the statutory contact clause for sexual penetration and was told that a finger could be an “object.” The State likewise argued that it needed to prove only contact, however slight.
The Court’s Holding
The appellate court held that the instruction was legally incorrect. Under Illinois law, a finger is not an “object” for purposes of the contact clause of the sexual-penetration definition. Because Count I alleged digital intrusion, the State had to proceed under the intrusion clause instead.
Hemphill could not obtain plain-error review because his trial counsel affirmatively accepted the instruction, invoking invited error. But counsel was ineffective under Strickland by agreeing to an instruction that lowered the State’s burden from proving digital penetration to proving mere contact. The error concerned an essential element and rendered the Count I proceedings fundamentally unfair.
Key Takeaways
- Digital penetration must be evaluated under the statutory intrusion clause, not by treating a finger as an “object” under the contact clause.
- Counsel’s affirmative assent to an erroneous instruction can bar plain-error review but can support an ineffective-assistance claim.
- The court reversed Count I and remanded for a new trial; it found the evidence sufficient to permit retrial.
Why It Matters
The decision reinforces that juries must receive instructions matching the precise theory charged and the applicable statutory element. An instruction that permits conviction on contact when the charged offense requires intrusion can improperly reduce the prosecution’s burden of proof.
The order was issued under Illinois Supreme Court Rule 23 and is nonprecedential except in the limited circumstances permitted by Rule 23(e)(1).