People v. Alexander

Opinion

No. 3-04-0892 Filed January 18, 2007.

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2007

The People of the State ) Appeal from the Circuit of Illinois, ) Court of the 12th Judicial ) Circuit, Will County, Petitioner-Appellee, ) Illinois, ) v. ) No. 03-CF-364 ) Dan Alexander, ) Honorable ) Daniel J. Rozak, Defendant-Appellant. ) Judge, Presiding.

JUSTICE LYTTON delivered the Opinion of the court.

Defendant Dan Alexander was charged with two counts of

sexual exploitation of a child. He was convicted and

sentenced to 180 days in county jail and two years of

probation. Additionally, the trial court ordered Alexander

to pay a fee for the collection of his DNA. The issues on

appeal are (1) whether the State proved that Alexander

possessed the requisite criminal intent, or mens rea, for

sexual exploitation of a child, and (2) whether the trial

court possessed the authority to impose a DNA collection

fee. We affirm in part and vacate in part. The evidence at trial indicated that Alexander had been

a neighbor of seven-year-old B.M.R., her nine-year-old

sister A.M.R. and their mother. He would sometimes baby-sit

the girls for their mother.

B.M.R. testified that, when Alexander was babysitting

her at the park, he asked her if she wanted to play with his

penis and that “the thing he goes to the bathroom with”

touched her cheek once. A.M.R. testified that he would

“mess[] with it” and would “go up and down on it” but nothing

ever came out of “it.” Once, Alexander asked A.M.R. if he

could pull his pants down and she said no, so he did not.

He made her promise not to tell anyone about the incident.

A.M.R. testified that Alexander never asked her to touch

him, and he never touched her.

Detective Rob Plutz testified that he interviewed

Alexander. During the interview, Alexander stated that he

did not recall masturbating in front of the girls, but if he

did, he must have been “smashed,” and he was sorry. In his

testimony, Alexander denied ever making this statement to

Detective Plutz. However, Alexander admitted that he had

drinking problems in the past. He had a prior DUI

conviction and had been through a recovery program called

“Stepping Stones” to help him combat his alcoholism.

2 Alexander maintained that he never exposed himself to

the girls but that once, they pulled down his pants; he

yelled at them but, at their request, did not tell their

parents. Alexander’s ex-girlfriend’s twenty-one-year-old

daughter corroborated his testimony about this incident.

A jury found Alexander guilty of two counts of sexual

exploitation of a child. Alexander was sentenced to 180

days in jail and two years of probation. He was also

ordered to pay a $10 collection fee for mandatory DNA

testing and genetic marking. His motions for a new trial

and a reduction in sentence were denied.

I. Reasonable Doubt

Alexander argues that the State failed to prove that he

acted for the purpose of his sexual arousal or

gratification. Sexual exploitation of a child occurs when

“[a]ny person *** in the presence of a child *** exposes his

or her sex organs, *** for the purpose of sexual arousal or

gratification of such person or the child.” 720 ILCS 5/11-

9.1(a)(2) (West 2002). When faced with a challenge to the

sufficiency of the evidence, we determine whether, after

reviewing all of the evidence in the light most favorable to

the State, any rational trier of fact could have found the

elements of the crime proven beyond a reasonable doubt.

3 People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277

(1985).

Alexander’s argument relies on A.M.R.’s testimony that

nothing came out of Alexander’s penis; thus, he argues that

“sexual gratification” was not proven beyond a reasonable

doubt. Alexander seems to assume that the term “sexual

gratification,” as used in 720 ILCS 5/11-9.1(a)(2), has a

technical or biological meaning that eluded the jury in

their deliberations. However, the term possesses no

restrictive legal definition. We believe that a jury of

twelve can determine the meaning of the term “sexual

gratification” upon “fair and open deliberations.” See

Jenkins v. State, 424 N.E.2d 1002, 1004 (Ind. 1981).

Moreover, sexual gratification may be proven by

circumstantial evidence. In re Donald R., 343 Ill. App. 3d

237, 240, 796 N.E.2d 670, 673 (2003). In Donald R., a six-

year-old child alleged that respondent showed “his private

part” to her and made her touch it. The appellate court

found that though there was only circumstantial evidence

regarding the respondent’s sexual arousal or gratification,

“it was not inherently implausible or unreasonable for the

trier of fact to infer from the circumstantial evidence that

the sixteen-year-old [respondent] exposed his penis to the

4 six-year-old victim for the purpose of the [respondent’s]

sexual gratification or arousal.” Donald R., 343 Ill. App.

3d at 244, 796 N.E.2d at 676.

Here, A.M.R. and B.M.R. testified that Alexander

exposed himself to them, masturbated in front of them, and

touched B.M.R. inappropriately. Even considering A.M.R.’s

testimony that nothing came out of Alexander’s penis, it is

not “inherently implausible” that a rational trier of fact,

confronted with this evidence, could have found that there

was sufficient proof that Alexander’s sexual gratification

was proven beyond a reasonable doubt. Accordingly, we

affirm Alexander’s conviction of two counts of sexual

exploitation of a child.

II. DNA Collection Fee

Next, Alexander argues that the trial court exceeded

its statutory authority in ordering him to pay a fee for the

collection of his DNA. We consider questions regarding

statutory authority de novo. In re K.C., 325 Ill. App.3d

771, 776-777, 759 N.E.2d 15, 20-21 (2001).

The State advances three arguments supporting the

imposition of the fee. First, the State contends that

Alexander waived his challenge to the fee because he did not

object to the collection fee in the trial court. However,

5 “[w]here a court*** exceeded its statutory power to act, any

resulting judgment is void and may be attacked at any time.”

People v. Raczkowski, 359 Ill. App. 3d 494, 497, 834 N.E.2d

596, 599 (2005). Defendant has not waived this issue.

Second, the State argues that the fee is a proper cost

levied on the defendant. “[S]tatutory provisions regarding

costs must be strictly construed.” People v. Fales, 247

Ill. App. 3d 681, 682, 617 N.E.2d 421, 422 (1993). The

statute states that, “in addition to any other disposition,

penalty, or fine imposed, [the defendant] shall pay a [DNA]

analysis fee of $200.” 730 ILCS 5/5-4-3(j) (West 2004). It

does not provide for the imposition of additional fees that

are not already otherwise authorized, such as fines, court

costs or costs of prosecution. People v. Hunter, 385 Ill.

App. 3d 1085, 1096, 831 N.E.2d 1192, 1199 (2005). Nothing

in the statute authorizes the imposition of a DNA collection

fee. People v. McAfee, ___ Ill. App. 3d___,___, 853 N.E.2d

107, 109 (2006). Thus, the trial court exceeded its power

under the statute when it ordered Alexander to pay $10 for

the collection of his DNA.

Third, the State argues that Will County Administrative

Order 03-31 granted the trial judge specific authority to

impose the $10 collection fee. The State contends that the

6 Will County order was properly entered pursuant to

subsections (a) and (b) of Supreme Court Rule 21 (94 Ill. 2d

R. 21), which provides:

"(a) Appellate Court and Circuit Court Rules. A

***majority of the circuit judges in each circuit

may adopt rules governing civil and criminal cases

which are consistent with these rules and the

statutes of the State***.

(b) General Orders. The chief judge of each

circuit may enter general orders in the exercise

of his general administrative authority, including

orders providing for assignment of judges, general

or specialized division, and times and places of

holding court." 94 Ill. 2d R. 21(a) and (b).

Initially, the State argues that “[r]ule 21(a) should

be properly interpreted as requiring only that each

circuit’s rules be consistent with statutes that do not

unduly infringe upon the ‘judicial power,’ ” citing People v.

Joseph, 113 Ill. 2d 36, 46-47, 495 N.E.2d 501, 506 (1986).

In Joseph, our supreme court struck down a portion of the

Post-Conviction Hearing Act (Ill. Rev. Stat., 1984 Supp.,

ch. 38 par. 122-1 et seq.) that restricted post-conviction

judicial assignments to judges who had not been involved in

the original proceeding. Joseph, 113 Ill. 2d at 46, 495

7 N.E.2d at 506. The court found the statute unconstitutional

because it unduly encroached upon the judiciary’s power to

administer the court system. Joseph, 113 Ill. 2d at 48, 495

N.E.2d at 507.

The State’s argument, however, would turn Joseph on its

head. The issue here is not whether legislation

appropriates judicial power, but whether the circuit court

order infringes on the legislative power. The order, in

effect, raises revenue for Will County by directing

convicted defendants to provide reimbursement for the cost

of mandatory DNA testing. “[T]he question of costs which are

to be allowed the successful party and the items of expense

which are to be included therein is a question to be

determined by the legislature.” See Ritter v. Ritter, 381

Ill. 549, 553-554, 46 N.E.2d 41, 43-44 (1943). The fee in

this case is not a cost authorized by statute. Thus, under

the order, the fee is an unconstitutional infringement on

the legislative power rather than a valid exercise of

judicial power.

The State also claims that Rule 21(b) authorizes the

order. However, the order does not provide for the

“assignment of judges,” nor does it delineate “the times and

places of holding court.” 94 Ill. 2d R. 21(b). Further,

8 the chief judge’s general administrative authority under

Rule 21(b) cannot appropriately encompass or purport to

exercise a power so closely akin to the revenue raising

power of the legislature. See Ritter v. Ritter, 381 Ill.

549, 553-554, 46 N.E.2d 41, 43-44 (1943). Therefore, the

order exceeds the powers granted to the chief judge under

Rule 21(b).

Order 03-31 violates the separation-of-powers clause

and is void. (Ill. Const. 1970, art. II, §1.) For the above

stated reasons, the DNA collection fee is vacated.

The judgement of the circuit court of Will County is

affirmed in part and vacated in part.

Affirmed in part; vacated in part.

LYTTON, PJ., with SCHMIDT, J., concurring and CARTER,

J., specially concurring.

CARTER, J., specially concurring.

I concur with the majority as to the issues raised but

write separately on the need for the legislature to amend

the statute requiring Genetic Marker Group (DNA) Testing

(730 ILCS 5/5-4-3 (West 2004)). The legislature should

grant trial courts the authority to impose on defendants the

cost of DNA collections. People v. Hunter, 358 Ill.App.3d

1085, 1097, 831 N.E.2d 1192, 1201 (2005). At present, the

legislative specimen submission requirements make county

government, in certain circumstances, responsible for offender compliance and, as such, represents an unfunded

mandate on local government. Specimens collected for the

Illinois State Police Laboratory have local cost

implications which the legislature, in the exercise of its

prerogative, should remedy.