In Re FM

801 N.E.2d 135, 344 Ill. App. 3d 524, 279 Ill. Dec. 843
CourtAppellate Court of Illinois
DecidedNovember 25, 2003
Docket1-02-0456
StatusPublished
Cited by1 cases

This text of 801 N.E.2d 135 (In Re FM) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re FM, 801 N.E.2d 135, 344 Ill. App. 3d 524, 279 Ill. Dec. 843 (Ill. Ct. App. 2003).

Opinion

801 N.E.2d 135 (2003)
344 Ill. App.3d 524
279 Ill.Dec. 843

In the Interest of F.M., a Minor (The People of the State of Illinois, Petitioner-Appellee,
v.
F.M., a Minor, Respondent-Appellant).

No. 1-02-0456.

Appellate Court of Illinois, First District, Second Division.

November 25, 2003.
Rehearing Denied December 26, 2003.

*136 Michael J. Pelletier, Deputy Defender, and Eric M. Muellenbach, Assistant Appellate *137 Defender, Office of the State Appellate Defender, Chicago, for Petitioner-Appellee.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb and Mary L. Boland, of counsel), for Respondent-Appellant.

Presiding Justice WOLFSON delivered the opinion of the court:

Following an adjudicatory hearing, respondent F.M. was found delinquent based on his commission of aggravated criminal sexual assault. Respondent was placed on five years' probation and ordered to refrain from having any unsupervised contact with children under 12 years of age. On appeal, respondent contends: (1) the aggravated criminal sexual assault statute he was charged with violates due process because it permits felony adjudications based on innocent conduct; (2) his disposition as a Class X offender pursuant to section 12-14(b)(i) of the Criminal Code of 1961 was in error where that section properly is classified as a Class 4 offense; and (3) he was deprived of due process of law where the State presented unreliable evidence of prior bad acts through a victim impact statement. We affirm.

FACTS

Respondent was charged with aggravated criminal sexual assault pursuant to section 12-14(b)(i). 720 ILCS 5/12-14(b)(i) (West 2000). He was adjudicated delinquent after a stipulated adjudicatory hearing.

At the hearing on a motion to suppress statements, Sergeant William Stutzman of the Wheeling Police Department testified that on March 29, 2000, he investigated a possible incident of sexual abuse between respondent, respondent's sister, and a neighbor girl. He called respondent's mother and asked her to bring respondent to the police station. After being read his Miranda rights, respondent gave a verbal statement, followed by a written statement. He admitted placing his penis in the mouths of his sister and the neighbor girl. The court denied the motion to suppress.

The parties entered into a stipulator adjudicatory hearing that incorporated respondent's statement. They also stipulated that on March 28, 2000, respondent was 13 years old, and the neighbor victim was 6 years old. The state informed the court that the charges related to respondent's sister were nolle prossed. The trial judge adjudicated respondent delinquent of aggravated criminal sexual assault.

At the dispositional hearing, the State introduced evidence in the form of two victim impact statements. The victim's father and mother each read a statement to the court. In the victim's mother's statement, she said, "what [the victim] saw was she played a part in a game at least three separate times* * * The fact that he subjected my daughter and his sister to this numerous times makes me wonder about my ability to protect my daughter."

The State recommended that respondent be placed on five years' probation and ordered to refrain from having any unsupervised contact with children under 12 years old. The assistant public defender had no objection and said she was "fundamentally in agreement" with the recommended sentence. The court followed the State's recommendation, placing respondent on five years' probation and ordering respondent not to have any unsupervised contact with children under 12. Respondent also was ordered to participate in sex offender treatment, with family counseling and mandatory school attendance.

DECISION

I. Substantive Due Process

Respondent first contends the statute under which he was found delinquent, section *138 12-14(b)(1), violates due process because it sweeps too broadly and potentially punishes innocent conduct. The section charged against respondent does not require that sexual penetration be accompanied by sexual gratification or the use or threat of force. Absent a requirement of criminal intent or a culpable mental state, respondent contends, merely changing a baby's diaper or washing a baby with a washcloth could be punishable as a felony.

Whether a statute is constitutional is a question of law to be reviewed de novo. People v. Morgan, 203 Ill.2d 470, 486, 272 Ill.Dec. 160, 786 N.E.2d 994 (2003). All statutes are presumed constitutional, and the party challenging the constitutionality of a statute bears the burden of clearly establishing the alleged constitutional violation. In re R.C., 195 Ill.2d 291, 296, 253 Ill.Dec. 699, 745 N.E.2d 1233 (2001).

Section 12-14(b)(i) provides:

"(b) The accused commits aggravated criminal sexual assault if the accused was under 17 years of age and (i) commits an act of sexual penetration with a victim who was under 9 years of age when the act was committed." 720 ILCS 5/12-14(b)(i) (West 2000).

"Sexual penetration" is defined as:

"any contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person * * *." 720 ILCS 5/12-12(f) (West 2000).

The State contends respondent essentially is arguing section 12-14(b)(i) is overbroad, the same defense argument rejected in People v. Terrell, 132 Ill.2d 178, 138 Ill.Dec. 176, 547 N.E.2d 145 (1989), where the accused facially challenged the aggravated criminal sexual assault and criminal sexual assault statutes. There, the court discussed two alternative requirements for standing to attack the constitutionality of a statute: the person must be directly affected by the alleged unconstitutionality, or he must claim the statute inhibits the exercise of rights protected under the First Amendment. Terrell, 132 Ill.2d at 212, 138 Ill.Dec. 176, 547 N.E.2d 145. The first requirement prevented the defendant from pursuing his challenge to the face of the statutes. That is, "[t]he defendant does not have standing to challenge the constitutionality of those statutes on the ground that they may be applied unconstitutionally in a different situation." Terrell, 132 Ill.2d at 212, 138 Ill.Dec. 176, 547 N.E.2d 145.

Terrell would dispose of an overbreadth claim in this case, although the overbreadth doctrine was "designed to protect first amendment freedom of expression from laws written so broadly that the fear of punishment might discourage people from taking advantage of that freedom." People v. Anderson, 148 Ill.2d 15, 26, 169 Ill.Dec. 288, 591 N.E.2d 461 (1992), citing Broadrick v. Oklahoma, 413 U.S.

Related

People v. Kasp
815 N.E.2d 809 (Appellate Court of Illinois, 2004)

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Bluebook (online)
801 N.E.2d 135, 344 Ill. App. 3d 524, 279 Ill. Dec. 843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-fm-illappct-2003.