2018 IL App (1st) 150626 No. 1-15-0626
FIRST DIVISION June 25, 2018
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 10 CR 16598 ) JAMARI McARTHUR, ) ) Honorable ) Michele McDowell Pitman Defendant-Appellant. ) Judge Presiding.
JUSTICE GRIFFIN delivered the judgment of the court, with opinion. Presiding Justice Pierce and Justice Mikva concurred in the judgment and opinion.
OPINION
¶1 Seventeen-year-old defendant Jamari McArthur was arrested for allegedly engaging in
sexual conduct with M.W., an 11-year-old boy. Defendant confessed to the police in writing after
having spent 50 hours in custody without a probable cause determination. Defendant filed a
motion to suppress his confession arguing that the duration of his detention without a probable
cause determination rendered his confession involuntary. The trial court ruled that defendant’s
confession was voluntary despite the delay. A jury found defendant guilty of the aggravated
criminal sexual abuse of M.W. and the trial court sentenced him to four-years’ imprisonment. As
a result of his conviction, defendant was ordered to register as a sex offender under the Sex
Offender Registration Act (SORA) (730 ILCS 150/1 et seq. (West 2014)) for the remainder of
his natural life. No. 1-15-0626
¶2 On appeal, defendant challenges the trial court’s ruling that his confession was voluntary
and the sufficiency of the evidence presented at trial. Defendant further challenges the
constitutionality of SORA and the SORA provision that precludes minors charged under the
criminal laws as adults from petitioning to terminate their sex offender registration (730 ILCS
150/3-5(i) (West 2014) (Subsection (i) of Juvenile SORA)). We reject defendant’s arguments
that SORA and Subsection (i) of Juvenile SORA deprive him of the equal protection of the law
and punish him. We affirm the jury’s verdict and the trial court’s ruling that defendant’s
confession was voluntary.
¶3 BACKGROUND
¶4 On Saturday, August 28, 2010 at 2:57 p.m., defendant was arrested and taken to the
Calumet City Police Department. Later that day at 7:53 p.m., Detective Casey Erickson placed
defendant in an interview room, read defendant his Miranda rights and presented him with a
preprinted waiver form. Defendant said he understood his Miranda rights, initialed and signed
the waiver form, and confessed to placing his mouth around the penis of M.W., an 11-year-old
boy.
¶5 Detective Erickson questioned defendant again at 9:20 p.m. that night and defendant
offered additional details about the incident. The next day, August 29, 2010 at 1:02 p.m.,
defendant consented to a mouth swab, placed a call to his grandmother and was not questioned
for the rest of the day. On Monday, August 30, 2010, Detective Erickson and Cook County
assistant state’s attorney Elizabeth Dibler (ASA Dibler) attended four victim sensitive interviews
(VSIs) of M.W. and other potential child witnesses. The last VSI concluded at 2:14 p.m. and
ASA Dibler met with defendant in an interview room at the police station at 3:45 p.m.
¶6 ASA Dibler read defendant his Miranda rights and questioned him in the presence of
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Detective Erickson. Defendant indicated that he understood his Miranda rights and over the
course of a half hour, provided a detailed confession and chronological account of the events
leading up to, and following, the incident. At around 5:02 p.m., ASA Dibler asked defendant to
make a written confession and defendant agreed. ASA Dibler proceeded to summarize
defendant’s statements in writing on a preprinted form. When completed, defendant read the
statement aloud without any difficulty. Defendant asked ASA Dibler to add three sentences to
his statement and then signed the statement on each of its four pages. Defendant also signed a
picture of himself, taken by ASA Dibler, showing him signing the statement.
¶7 The next morning, Tuesday, August 31, 2010, defendant was brought before a judge for a
probable cause determination. More than 73 hours had passed since the time of his arrest. The
judge found probable cause for defendant’s arrest and he was subsequently charged with two
counts of predatory criminal sexual assault (720 ILCS 5/11-1.40(a)(1) (West 2016)), four counts
of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 2016)) and one count of aggravated
criminal sexual abuse (720 ILCS 5/12-16(C)(1)(i) (West 2016)).
¶8 Defendant filed a motion to suppress his confession, arguing that his time spent in
custody without a judicial determination of probable cause was unreasonable and rendered his
confession involuntary. The trial court held an evidentiary hearing on defendant’s motion and the
State called Detective Erickson and ASA Dibler to testify. Detective Erickson testified that he
did not bring defendant to court for a probable cause determination until the morning of August
31, 2010 because “we hadn’t officially interviewed the victim” and “there was still an ongoing
investigation.” Detective Erickson testified that he could not schedule VSIs of child witnesses
until the afternoon of August 30, 2010, but that defendant was brought before a judge the
morning after the interviews were conducted. Detective Erickson could offer “no reason” as to
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why he did not release defendant before the VSIs were conducted and re-arrest defendant if the
victim and child witnesses confirmed the content of defendant’s confession.
¶9 ASA Dibler testified that after attending VSIs on August 30, 2010, she and Detective
Erickson placed defendant in an interview room around 3:45 p.m. ASA Dibler read defendant his
Miranda rights and defendant provided a detailed statement of his sexual contact with M.W.:
defendant was at M.W.’s house on Friday and stayed the night; defendant went to bed around
12:00 p.m., awoke at 1:00 a.m. the next morning and placed his head on M.W.’s stomach;
defendant noticed M.W.’s penis protruding from his shorts and put M.W.’s penis inside his
mouth for 10 seconds; M.W. woke up, went to the bathroom, returned to the bedroom and slept
on the other side of the room. ASA Dibler testified that, outside the presence of Detective
Erickson, defendant denied being verbally or physically threatened, or abused, by the police.
Returning to the interview room around 5:02 p.m., ASA Dibler testified that she read defendant
his Miranda rights and with defendant in agreement, summarized his statements in writing on a
preprinted form. Defendant read the completed statement aloud. Defendant asked ASA Dibler to
add three sentences after the statement’s third paragraph and everyone present signed the
statement on all of its pages.
¶ 10 The trial court denied defendant’s motion to suppress his confession, stating that although
the police delayed a probable cause determination, the totality of the circumstances indicated that
defendant’s confession was given voluntarily. The State proceeded on the charges of predatory
criminal sexual assault and aggravated criminal sexual abuse and a jury trial commenced.
¶ 11 M.W. testified that he woke up between 10:30 p.m. and 11:00 p.m. on August 27, 2010,
and saw that his sister had a sheet over her face. Defendant was laying on M.W. like a pillow,
touched his shorts and started licking his underwear for several minutes. M.W. testified that
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defendant then started “sucking [his] penis.” Defendant tried to get M.W. to grab his penis, but
M.W. pushed his hand away. M.W. then felt something wet on his leg. Defendant got up and put
a sheet over M.W.’s face before going to the bathroom. Upon his return, defendant cleaned up
the “wet feeling” on M.W.’s leg and continued to suck his penis. Defendant stopped after a few
minutes and M.W. pretended to be asleep. M.W. testified that he told his mother what happened
the next morning and defendant was arrested the same day. After giving statements to arresting
officers, M.W. testified that his mother took him to St. Margaret’s Hospital, where he was
examined by Dr. Brett Marcotte. M.W. told Dr. Marcotte that he had not changed his clothes or
taken a shower that day. M.W. testified that three days later, he attended a VSI with Dr. Myra
West.
¶ 12 Defendant took the stand in his own defense and testified to a different version of events.
Defendant testified that he spent the night M.W.’s house and fell asleep next to him in a
bedroom. At around midnight, defendant testified that he woke up, went to use the bathroom,
washed his hands and then went back to sleep. A half hour later, M.W. woke up, hit the
defendant, left the room and started walking down the hallway toward the bathroom. When
M.W. returned, defendant testified that M.W. went to sleep next to his sister, E.A.
¶ 13 Defendant’s testimony as to what he said and did while in police custody conflicted with
the testimony of Detective Erickson and ASA Dibler. Defendant testified that in his interviews
with Detective Erickson, he waived his Miranda rights and denied placing his mouth on M.W.’s
penis. Defendant further denied adding the sentences after the third paragraph of his written
confession. On cross-examination, defendant admitted to making the statements contained in his
written confession and to telling ASA Dibler that he saw M.W.’s penis sticking out of his shorts,
that he placed M.W.’s penis in his mouth for ten seconds and stopped sucking M.W.’s penis
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when M.W. woke up. However, defendant maintained that what he told ASA Dibler was not
true.
¶ 14 Defendant called Dr. Brett Marcotte to the stand and he testified that he used a standard
sexual assault kit to examine M.W. Dr. Marcotte testified that he found no semen on M.W.’s
groin and thigh area after performing a black light test of the region and that he skipped step 6 of
the sexual assault kit, which required him to perform a penile swab of M.W. Defendant also
called police officer Mike Serrano to the stand, who testified that he was assigned to take
photographs and collect evidence from M.W.’s home. Serrano collected tissue from each of two
trash cans found in the bathroom next to M.W.’s bedroom and a shoe box containing bathroom
tissue in a dumpster outside of the apartment. Serrano testified that he sent the evidence he
collected to the Illinois State Police Crime Lab for testing.
¶ 15 Katherine Sullivan, a forensic biologist working for the Illinois State Police Crime Lab,
testified that she received and tested the physical evidence collected in M.W.’s case. When
testing M.W.’s boxer shorts for the presence of saliva, Sullivan testified that she expected saliva
to have been transferred to M.W.’s boxer shorts after three minutes of licking, but that she found
none. Sullivan testified that defendant’s mouth swab tested negative for the presence of semen
and that a test of the tissue from one of the bathroom trash cans revealed 16 glowing spots under
a black light, but that each stain tested negative for semen or saliva. Sullivan noted the absence
of a penile swab from the sexual assault kit and testified that penile swabs are tested for the
presence of saliva.
¶ 16 At the close of the parties’ arguments, the jury deliberated and found defendant guilty of
aggravated criminal sexual abuse. Defendant filed a motion for a new trial, which was denied.
The trial court sentenced defendant to four-years’ incarceration in the Illinois Department of
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Corrections and as a result of his conviction, required defendant to register as a sex offender
under SORA for the remainder of his life. The trial court denied defendant’s motion to
reconsider his sentence.
¶ 17 Defendant appeals his conviction and seeks a new trial or the outright reversal of his
conviction. Alternatively, defendant requests that we vacate the trial court’s order mandating him
to lifetime SORA registration and remand of his case to the trial court with an instruction that he
be ordered to register under the provisions of SORA applicable to juveniles.
¶ 18 JURISDICTION
¶ 19 On October 21, 2014, a jury found defendant guilty of aggravated criminal sexual abuse.
The trial court sentenced defendant on January 20, 2015. Defendant filed a timely motion to
reconsider his sentence, which was denied on February 17, 2015. A notice of appeal was filed on
February 17, 2015. Accordingly, we have jurisdiction to hear defendant’s appeal. Ill. Const.
1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); Ill. S. Ct. R. 606 (eff. July 1, 2017).
¶ 20 ANALYSIS
¶ 21 The issues on appeal are whether: (1) the trial court erred in ruling that defendant’s
confession was voluntary; (2) the forensic evidence presented at trial contradicted the State’s
case such that no rational trier of fact could have found defendant guilty of aggravated criminal
sexual abuse beyond a reasonable doubt; (3) Subsection (i) of Juvenile SORA on its face, and as
applied to defendant, violates the Equal Protection clause of the Illinois (Ill. Const.1970, art. I,
sec. 2) and United States Constitutions (U.S. Const., amend. XIV, sec. 1) by excluding minors
prosecuted under the criminal laws as adults from petitioning to terminate their SORA
registration; (4) Subsection (i) of Juvenile SORA and SORA subjected defendant to
disproportionate, and cruel and unusual punishment, in violation of the Eighth Amendment to the
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United States Constitution (U.S. Const., amend. VIII) and the proportionate penalties clause of
the Illinois Constitution (Ill. Const. 1970, Art. I, § 11).
¶ 22 We review the trial court’s factual findings at the evidentiary hearing on defendant’s
motion to suppress his confession to determine whether they were against the manifest weight of
the evidence. People v. Richardson, 234 Ill. 2d 233, 251 (2009). We review the trial court’s
ultimate ruling, that defendant’s confession was voluntary, de novo. Id. We may consider both
the evidence presented at defendant’s suppression hearing as well as the evidence adduced at
trial to determine whether the State proved the voluntariness of defendant’s confession by a
preponderance of the evidence. Id.
¶ 23 Police are required to provide a defendant with a “fair and reliable determination of
probable cause” before or promptly after arrest. Gerstein v. Pugh, 420 U.S. 103, 125 (1975). A
prompt determination of probable cause is one made within 48 hours of arrest. City of Riverside
v. McLaughlin, 500 U.S. 44, 56 (1991). Here, police clearly exceeded the law’s 48-hour limit by
providing defendant with a probable cause determination 73 hours after his arrest. However,
even if police do not provide a defendant with a prompt determination of probable cause, a
confession will not be suppressed unless it was given involuntarily. See People v. Willis, 215 Ill
2d 517. 535 (2005) (holding that a trial court facing a Gerstein/McLaughlin violation asks the
question whether the confession was voluntary). We therefore turn to consider whether, in light
of the delay of defendant’s probable cause determination, his confession was voluntary.
¶ 24 To determine whether defendant’s confession was voluntary, we consider the totality of
the circumstances and the following factors: (1) age, (2) intelligence, (3) education, (4)
experience, (5) physical condition at the time of the detention and interrogation, (6) the duration
of the interrogation, (6) the presence of Miranda warnings, (7) the presence of any physical or
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mental abuse and (8) the legality and duration of the detention. Id. at 536. Defendant’s statement
was voluntary unless his will was overcome by the police at the time he confessed. People v.
Gilliam, 172 Ill. 2d 484, 500 (1996).
¶ 25 The trial court considered the foregoing factors and ruled that, although police delayed
defendant’s probable cause determination, the totality of the circumstances did not warrant the
suppression of his confession as involuntary. The trial court supported its decision with the
following factual findings adduced from the evidentiary hearing on defendant’s motion to
suppress his confession:
“Under a totality of the circumstances analysis *** defendant was 17
years of age and a high school student living with family members. The defendant
was currently looking for a job. Was not able to obtain one at the time but looking
for employment. I have not heard that the defendant was below intelligence, a
special needs student. Did not understand what was going on when the Assistant
State’s Attorney and the Detective spoke with the defendant and clearly gave
defendant his Miranda warnings.
Both witnesses indicated that the defendant was cooperative. He
understood his Miranda Warnings; and, he waived Miranda *** In this case, it
appears as if the witnesses are children. The defendant is being spoken to on the
28th and within five hours or so he gives an incriminating statement. Now at this
point the Detective needs to continue to speak with the children who were
involved in this. Hearing the circumstances of this incident. There are young
children to be interviewed”
*** “The Detective indicated that the first time he was able to get a victim
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sensitive interview set up with these children was *** at 1:00 p.m. Monday, the
30th. The defendant was arrested on August 28th at just before 3:00 p.m. So, at
that time the victim sensitive interviews were being conducted you’re still within
the forty-eight hour timeframe *** When the police, they are continuing their
investigation I don’t find that it was any malicious delay in trying to keep the
defendant as opposed to in [Willis] where the defendant was kept. He had not
given any incriminating statement.”
*** “It is a delay. Yes, it is. Does it render the statement looking at the totality
of the circumstances and the need and I believe [Willis] speaks even about the
need to allow the police some latitude to conduct their investigations. This was an
investigation. This was not an attempt to get the defendant to confession and keep
him in custody past forty-eight hours. *** The delay alone does not render the
statement involuntary based on the totality of the circumstance under which
[defendant] gave his statement.”
¶ 26 We hold that the trial court’s factual findings were not against the manifest weight of the
evidence and its ultimate ruling was not in error. The delay of defendant’s probable cause
determination beyond 48 hours was not the result of a willful disregard of McLaughlin,
indifference to defendant’s presence in custody or the product of police misconduct. See Willis,
215 Ill. at 538. Detective Erickson’s explanation for the delay was not “specious,” as defendant
contends, but rather demonstrative of his intent to corroborate defendant’s account of the
incident with statements obtained from M.W. and other child witnesses through VSIs. When the
VSIs were completed on August 30, 2010, defendant was interviewed, confessed in writing and a
judge found probable cause for his arrest the next morning. Any delay by police was attributed to
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the need to speak with the child witnesses before charging defendant with a felony offense. We
find that the police did not engage in “delay for delay’s sake.” McLaughlin, 500 U.S. at 59.
Having considered the duration of defendant’s detention, we turn to address the other factors
necessary to our determination of whether defendant’s confession was voluntary. See People v.
Westmoreland, 372 Ill. App. 3d 868, 877 (2007) (no single factor is determinative).
¶ 27 The record supports the trial court’s findings and determination that defendant was
provided his Miranda rights before questioning and that police questioning was not unreasonable
in duration. Defendant was arrested on August 28, 2010 at 2:57 p.m., read his Miranda rights
and, following a 20-minute interview, confessed by 7:53 p.m. that night. About an hour later,
defendant was read his Miranda rights again and provided more information to the police about
the incident. On August 30, 2010 at 3:45 p.m., defendant was read his Miranda rights by ASA
Dibler and, over the course of a 30-35 minute interview, confessed to his placing his mouth on
M.W.’s penis. ASA Dibler then returned, re-read defendant his Miranda rights and, over the
course of 15 to 20 minutes, reduced defendant’s confession to writing with his permission.
Defendant read the statement aloud, clarified his statement with additional sentences and signed
each page of the preprinted form, which contained a list of Miranda rights in its preamble.
¶ 28 The trial court’s factual findings as to defendant’s personal characteristics and the lack of
police mistreatment support its ruling. When defendant was arrested, he was over the age of 17
and in the tenth grade taking geometry, chemistry, physical education, journalism and speech
classes. The trial court noted the absence of any facts demonstrating that defendant was “below
intelligence” or “a special needs student.” There was no indication of police mistreatment or
mental abuse during defendant’s questioning. Detective Erickson denied making any overt
threats or promises to defendant in exchange for his statements and, outside the presence of
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Detective Erickson, defendant denied being verbally or physically threatened, or abused, by the
police.
¶ 29 As defendant points out, he had no prior involvement with the police and no criminal
background, but his inexperience alone does not support the suppression of his confession.
Defendant attempts to analogize his case, and himself, to that of the defendant in Westmoreland,
372 Ill. App. 3d 868 (2007). Westmoreland examined the confession of an “immature” and
“terrified” 17-year-old defendant after police refused to contact his mother and detained him
beyond the 48 hour limit imposed by McLaughlin. 372 Ill. App. at 869. The Westmoreland court
held that the defendant’s physical characteristics, the interrogating police officer’s statement that
“I don’t give a shit if you go to jail or not” and the fact that police refused defendant’s requests to
contact his mother during questioning warranted the suppression of his confession. 372 Ill. App.
3d at 890. The police made no such statement here and defendant did not share the physical
characteristics of the defendant in Westmoreland. Id. at 874.
¶ 30 Defendant argues that Detective Erickson violated his rights under the provision of the
Juvenile Court Act (JCA) that requires police officers, who arrest a minor without a warrant, to
“immediately” make a reasonable attempt to notify a parent or legal guardian and to take the
minor to the nearest juvenile officer “without unnecessary delay.” 705 ILCS 405/5-405(2) (West
2016). However, this provision applies to minors who are subject to the jurisdiction of the JCA.
705 ILCS 405/5-130(7) (West 2016) (procedures for the investigation, arrest and prosecution of
juvenile offenders shall not apply to minors who are excluded from the jurisdiction of the
juvenile court). Defendant was not subject to the exclusive jurisdiction of the JCA when he was
questioned by police. See 705 ILCS 405/5-120 (West 2014) (prior to its amendment under Public
Act 98–61, section 5 (eff. Jan. 1, 2014), the exclusive jurisdiction statute of the JCA applied to
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minors under the age of 17). Defendant therefore cannot avail himself of the protections afforded
by this provision.
¶ 31 Alternatively, defendant argues that we should consider the “concerned adult” factor to
find that his confession was involuntary. The concerned adult factor requires a determination of
whether: (1) defendant had an opportunity to consult with an interested adult before or after
interrogation; and (2) whether a police prevented defendant from contacting an interested adult
or vice versa. Richardson, 234 Ill. 2d 233, 254 (2009). In support of his argument, defendant
cites Westmoreland, arguing that the absence of a concerned adult when defendant was
questioned by police weighs in favor of the suppression of his confession. But unlike
Westmoreland, there are no facts indicating that the police prevented defendant from contacting
his parent or vice versa. To the contrary, defendant placed a phone call to his grandmother 15
hours after his arrest. We recognize that defendant was permitted to contact his grandmother
after he made an oral confession, but do not find that this factor renders his written confession,
which was given after he spoke with his grandmother, involuntary.
¶ 32 The totality of the circumstances do not warrant the suppression of defendant’s
confession. The police did not overbear defendant’s will and the State was at liberty to publish
the written confession to the jury at trial. See In re Marvin M., 383 Ill. App. 3d 693, 705 (2008)
(police are allowed to play on a respondent's ignorance, fear, and anxieties, but may not engage
in conduct that overbears a defendant’s will or renders him incapable of making a rational
decision). Accordingly, the trial court’s factual findings were not against the manifest weight of
the evidence and its ultimate conclusion, that the State proved the voluntariness of the
defendant’s confession by a preponderance of the evidence, was not in error.
¶ 33 Defendant challenges the sufficiency of the evidence presented at trial, arguing that
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forensic evidence contradicted the State’s case such that no rational trier of fact could have found
him guilty of criminal sexual abuse beyond a reasonable doubt. Defendant’s challenge requires
us to determine whether any rational trier of fact could have found the essential elements of the
offense beyond a reasonable doubt. People v. Hardman, 2017 IL 121453, ¶ 37. We will not
reverse defendant’s criminal conviction unless the evidence presented to the jury was so
“unreasonable, improbable or so unsatisfactory as to justify a reasonable doubt of the defendant’s
guilt.” People v. Campbell, 146 Ill. 2d 363, 375 (1992). We review the evidence in a light most
favorable to the State and draw all reasonable inferences from the evidence in the State’s favor.
Id.
¶ 34 We hold that the jury could have found defendant guilty of aggravated sexual abuse
beyond a reasonable doubt based on the evidence presented at trial. The testimony of M.W. was
sufficient to convict defendant of his sex offense and we will not retry the defendant or substitute
the jury’s credibility determinations with that of our own. People v. Cunningham, 212 Ill. 2d
274, 279 (2004).
¶ 35 In order to convict defendant of the aggravated criminal sexual abuse of M.W., the jury
was required to find that the State proved the following elements of the offense beyond a
reasonable doubt: (1) defendant was over 17 years of age; (2) M.W. was younger than 13 years
of age; and (3) defendant knowingly committed an act of sexual conduct on M.W. See 720 ILCS
5/12-16(c)(1)(i) (West 2016); see also 720 ILCS 5/12-12(e) (West 2016) (defining sexual
conduct as the knowing touching of the sex organ of the complaining witness by the accused).
¶ 36 The testimony of M.W. could alone have supported the jury’s verdict. It is well settled
that the testimony of a single witness, if positive and credible, is sufficient to convict even
though it is contradicted by the defendant. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009).
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M.W. testified that he was younger than 13 years of age, and defendant was over 17-years-old,
when the following events took place: M.W. woke up between 10:30 p.m. and 11:00 p.m. on the
night of August 27, 2010; defendant was laying on him like a pillow; touched his shorts; licked
his underwear for several minutes; and started “sucking [his] penis.” These facts are similar to
People v. Mack, 2016 IL App (5th) 130294, where the court held that the victim’s testimony, that
she woke up to defendant rubbing her private area in a circular motion, supported the jury’s
finding of guilt in spite of the defendant’s contrary testimony that he may have touched her thigh
when he tried to put a cover of the victim. Here too, M.W.’s testimony could have supported the
jury’s verdict despite defendant’s conflicting testimony at trial.
¶ 37 Defendant cites In re Nasie M., 2015 IL App (1st) 151678 in support of his argument that
forensic evidence raised sufficient reasonable doubt that no rational trier of fact could have found
him guilty. But that case does not apply here. In re Nasie M. involved a court’s reversal of a
juvenile’s conviction for aggravated unlawful use of a weapon and unlawful possession of a
firearm where the State presented no eyewitnesses at trial or any evidence that the defendant
actually possessed a firearm when he was found shot in the foot. 2015 IL 151678, ¶ 3. Here, the
victim testified credibly to defendant’s sexual conduct. Moreover, defendant confessed in
writing.
¶ 38 Defendant alleges three forensic evidentiary contradictions, each of which are unavailing:
(1) the was no saliva detected on M.W.’s boxer shorts despite M.W.’s statement that he licked
his boxer shorts for several minutes; (2) there was no semen on M.W.’s leg despite his testimony
that he “felt something wet”; and (3) there was no semen on the bathroom tissues collected by
officer Serano despite defendant’s written statement that he ejaculated and cleaned himself them.
¶ 39 Forensic technician Sullivan testified that the amount of saliva transferred to M.W.’s
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boxer shorts would have depended on which part of defendant’s tongue he used when he licked
the boxer shorts. M.W. testified that he wiped the semen off of his thigh which, according to
forensic technician Sullivan, may have explained why Dr. Marcotte’s examination did not reveal
the presence of semen on his body. The fact that penile swab results were not presented to the
jury does not raise sufficient doubt to overturn the verdict as the State was not required to present
corroborating evidence to support the jury’s finding of guilt. See People v. Herron, 2012 IL App
(1st) 090663 (corroborating physical evidence not necessary when eyewitness testimony is
credible).
¶ 40 Similarly, the fact that discarded bathroom tissues collected from M.W.’s home did not
test positive for the presence of semen does not suffice to overturn the jury’s verdict. As to
defendant’s argument that M.W.’s testimony was inconsistent with defendant’s written
confession and his testimony at trial, the jury resolved those inconsistencies against defendant.
People v. Cunningham, 212 Ill. 2d 274, 283 (2004). The precise time the incident took place, as
well as the questions as to whether defendant grabbed M.W.’s penis, whether M.W. walked to
the bathroom, and the number of times defendant sucked on M.W.’s penis, are collateral matters
that did not render M.W.’s testimony “incredible or improbable.” People v. Gray, 2017 IL
120958, ¶ 47. Accordingly, the jury’s verdict stands and the evidence presented at trial was not
“so unreasonable, improbable, or unsatisfactory” as to warrant an overturning of the jury’s
verdict. Id. at ¶ 35.
¶ 41 Defendant challenges the facial and as-applied constitutionality of Subsection (i) of
Juvenile SORA, which precludes minors prosecuted under the criminal laws as adults from
petitioning a court to terminate their SORA registration. 730 ILCS 150/3-5(i) (West 2016).
Defendant argues that Subsection (i) of Juvenile SORA deprives him of equal protection by
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creating a “distinction that allows minors who are found guilty of committing the same offense,
at the same age, to be subject to different SORA registration requirements.” We review
defendant’s equal protection challenge de novo. People v. Richardson, 2015 IL 118255, ¶ 8.
¶ 42 The State argues that defendant forfeited review of his argument. Ordinarily, the failure
to raise a constitutional challenge before the trial court results in a forfeiture of the argument on
appeal. Odle v. Department of State Police, 2015 IL App (5th) 140274, ¶ 35. However,
defendant raised an equal protection argument before the trial court in his posttrial motion for a
new trial and, in any event, a challenge to the constitutionality of a statute may be raised at any
time. People v. Burnett, 2015 IL App (1st) 133610, ¶ 80.
¶ 43 Under SORA, “a minor adjudicated delinquent for an offense which, if charged as an
adult, would be a felony” may petition for the termination of registration “no less than 5 years”
after registration was ordered. 730 ILCS 150/3-5(c) (West 2016). However, this subsection “does
not apply to minors prosecuted under the criminal laws as adults.” 730 ILCS 150/3-5(i) (West
2016). Therefore, only an individual who is subject to, or not excluded from, the jurisdiction of
the JCA can petition to terminate SORA registration. See 705 ILCS 405/5-120 (West 2014); see
also 705 ILCS 405/5-130(1)(a)(ii) (West 2016) (minor charged with aggravated criminal sexual
assault shall be prosecuted under the criminal laws of Illinois).
¶ 44 We hold that defendant’s facial and as-applied equal protection challenges to the
constitutionality of Subsection (i) of Juvenile SORA fail outright because he was simply not
subject to the jurisdiction of the JCA when he engaged in the sexual conduct that supported his
conviction. Defendant falls into the category of 17-year-old offenders who were alleged to have
committed a criminal offense before the amendment to the exclusive jurisdiction provision of the
JCA went into effect. (Public Act 98–61, section 5 (eff. Jan. 1, 2014) (extending jurisdiction of
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the JCA to minors under 18 years of age at time of their alleged offense); 705 ILCS 405/5-120
(West 2014). Prior to the statute’s amendment only individuals under the age of 17 could be tried
in juvenile court. Id. Therefore, defendant was simply unable to take advantage of that which an
adjudication of delinquency would have provided: the opportunity to petition a court for
termination from the SORA registry after five years. But the cause of defendant’s complaint is
timing, not illegality.
¶ 45 The line drawn between juveniles, adjudicated delinquent under the JCA, and adults,
prosecuted under the criminal laws, is jurisdictional. As our Supreme Court recognized in
Richardson, 2015 IL 118255, ¶ 10, amendments must have a beginning and the fact that the
amendment to the exclusive jurisdiction of the JCA applies to some 17 year olds, and not others,
does not render the statute unconstitutional. Accordingly, defendant’s facial and as-applied equal
protection challenges to Subsection (i) of Juvenile SORA fail.
¶ 46 Defendant’s final contention is that Subsection (i) of Juvenile SORA, and his mandated
lifetime SORA registration, impose a (1) cruel and unusual punishment in violation of the Eighth
Amendment to the United States Constitution (U.S. Const., amend. VIII) and (2)
disproportionate penalty in violation of the proportionate penalties clause of the Illinois
Constitution (Ill. Const. 1970, Art. I, § 11). We review defendant’s constitutional challenge de
novo. People v. Jackson, 2017 IL App (3d) 150154, ¶ 19.
¶ 47 The Eight Amendment states that “cruel and unusual punishment” shall not be inflicted
and has been interpreted to include “a narrow proportionality principle.” U.S. Const., amend
VIII; Harmelin v. Michigan, 501 U.S. 957, 997 (1991). The proportionate penalties clause of the
Illinois Constitution states that “[a]ll penalties shall be determined both according to the
seriousness of the offense and with the objective of restoring the offender to useful citizenship.”
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Ill. Const. 1970, Art. I, § 11. The clause prohibits criminal penalties that are wholly
disproportionate to an offense and prevents offenses with the same elements from having
different sentences. People v. Pollard, 2016 IL App (5th) 130514, ¶ 51. The Eight Amendment
and proportionate penalties clause are coextensive. Id.
¶ 48 Defendant challenges Subsection (i) of Juvenile SORA as applied to him. Defendant
admits that SORA is not punitive, but argues that “one specific provision, Section 150/3-5(i),
operates in such a way as to have an exclusively punitive effect despite the overall civil-
regulatory character of SORA.” In support of his argument, defendant cites a litany of cases from
foreign jurisdictions that are not precedential. People v. Applewhite, 2016 IL App (1st) 142330, ¶
23 (“The decisions of foreign courts are not binding on Illinois courts and we are required to
follow our Supreme Court precedent”).
¶ 49 We hold that Subsection (i) of Juvenile SORA is a non-punitive jurisdictional statute that
does not apply to defendant and therefore, his as-applied constitutional challenge must fail.
Subsection (i) of Juvenile SORA merely precludes individuals not subject to, or excluded from,
the jurisdiction of the JCA from petitioning a court to terminate their SORA registration. 730
ILCS 150/3-5(i) (West 2016). The statutory provision operates in a manner similar to the
mandatory transfer statute, which has routinely survived constitutional challenges under the
Eighth Amendment and the proportionate penalties clause of the Illinois Constitution. People v.
Pacheco, 2013 IL App (4th) 110409, ¶ 55; see People v. Salas, 2011 IL App (1st) 091880, ¶ 66
(holding that the automatic transfer statute does not impose any punishment on the juvenile
defendant, but rather it only provides a mechanism for determining where defendant’s case is to
be tried).
¶ 50 Again, defendant was over the age of 17 when he engaged in the sexual conduct that
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supported his conviction for aggravated criminal sexual abuse. Because defendant was not
subject to the jurisdiction of the JCA, the statute does not apply to him, let alone exact a cruel
and unusual or disproportionate punishment upon him. Insofar as defendant’s challenge is one to
the amendment to the exclusive jurisdiction of the JCA, which subjects 17-year-olds to
delinquency proceedings, we have already indicated that the legislative classification is
constitutional. Richardson, 2015 IL 118255, ¶ 10. Accordingly, defendant’s as-applied challenge
to Subsection (i) of Juvenile SORA cannot survive as the statute is a non-punitive jurisdictional
mechanism that does not apply to him.
¶ 51 In his final argument, defendant contends that his mandated lifetime SORA registration is
punitive as applied to him. The State argues that defendant has forfeited review of this issue,
lacks standing to raise the issue and has failed to develop the factual record necessary for his as-
applied constitutional challenge to prevail. Alternatively, the State argues that SORA is non-
punitive.
¶ 52 We initially note that that a challenge to the constitutionality of a statute may be raised at
any time and defendant raised an Eighth Amendment challenge before the trial court in his
posttrial motion. People v. Burnett, 2015 IL App (1st) 133610, ¶ 80. Defendant has therefore not
forfeited review of this issue. We reject the State’s argument that defendant has no standing to
pursue his constitutional challenge because, as a result of his conviction, he is automatically
subject to SORA for the remainder of his life and has thereby received punishment. See People
v. Avila-Briones, 2015 IL App (1st) 132221, ¶¶ 31-43.
¶ 53 We agree with the State’s argument that defendant has failed to sufficiently develop the
record. See People v. Thompson, 2015 IL 118151, ¶ 37 (an as-applied constitutional challenge is
dependent on the particular circumstances and facts of the individual defendant and must be
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sufficiently developed for purposes of appellate review). But our holding does not require an
analysis of SORA’s punitive effects in light of defendant’s individual characteristics.
¶ 54 Our Supreme Court has routinely held that “sex offender registration is not punishment.”
People v. Cardona, 2013 IL 114076, ¶ 24 (citing People ex rel. Birkett v. Konetski, 233 Ill. 2d
185, 207 (2009). Similarly, SORA registration, as applied to juvenile sex offenders, is not
punitive. In re J.W., 204 Ill. 2d 50, 75 (2003). Defendant himself has admitted that SORA is non-
punitive statute with an “overall civil-regulatory character.”
¶ 55 We hold that defendant’s mandated lifetime registration under SORA is not punishment
imposed as a result of his conviction for the aggravated criminal sexual abuse of M.W. The
Eighth Amendment and proportionate penalties clause do not apply unless and until a statute
imposes punishment or a penalty. People v. Patterson, 2014 IL 115102, ¶ 101. We are bound by
clear Supreme Court precedent that SORA is a non-punitive regulatory scheme designed for
public safety. Cardona, 2013 IL 114076, ¶ 24 (citing People ex rel. Birkett v. Konetski, 233 Ill.
2d 185, 207 (2009)). Accordingly, defendant’s as-applied Eighth Amendment and proportionate
penalties clause challenges to SORA must fail.
¶ 56 CONCLUSION
¶ 57 Accordingly, we affirm.
¶ 58 Affirmed.
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