Opinion
4-23-1552
05-20-2024
In re J.W., a Minor v. J.W., Respondent-Appellant The People of the State of Illinois, Petitioner-Appellee,
This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of McLean County No. 22JD89 Honorable John Casey Costigan, Judge Presiding.
JUSTICE ZENOFF delivered the judgment of the court. Justices DeArmond and Vancil concurred in the judgment.
ORDER
ZENOFF JUSTICE
¶ 1 Held: The court affirmed respondent's delinquency adjudication for criminal sexual abuse where the evidence supported a finding that respondent acted for the purpose of sexual gratification or arousal.
¶ 2 The State filed a petition for adjudication of wardship, alleging the minor respondent, J.W., committed the offense of criminal sexual abuse (720 ILCS 5/11-1.50(b) (West 2020)). The trial court found respondent guilty and adjudicated him delinquent, made him a ward of the court, and sentenced him to 24 months of probation, with the requirement that he register as a sex offender. Respondent appeals, challenging the sufficiency of the evidence. We affirm.
¶ 3 I. BACKGROUND
¶ 4 The State alleged that on or about November 19, 2021, respondent committed the offense of criminal sexual abuse by committing an act of "sexual conduct" in touching A.K.'s vagina with his hand. The statute the State accused respondent of violating provides, "A person commits criminal sexual abuse if that person is under 17 years of age and commits an act of *** sexual conduct with a victim who is at least 9 years of age but under 17 years of age." 720 ILCS 5/11-1.50(b) (West 2020). The term "sexual conduct" is defined, in relevant portion, as "any knowing touching or fondling by *** the accused, either directly or through clothing, of the sex organs *** of the victim *** for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS 5/11-0.1 (West 2020).
¶ 5 The matter proceeded to trial in April 2023. The only issue the parties disputed was whether respondent touched A.K. as alleged. Neither the attorneys nor the trial court specifically discussed whether such touching was for the purpose of either respondent's or A.K.'s sexual gratification or arousal. On appeal, respondent does not dispute that the State proved he touched A.K.'s vagina as alleged. Rather, he argues only that the State failed to prove he touched her for the purpose of sexual gratification or arousal. Accordingly, we focus our statement of facts on the evidence relevant to this issue.
¶ 6 The parties stipulated respondent was born in October 2006. A.K. was the only witness, and she testified as follows. At the time of trial, A.K. was 15 years old and a sophomore in high school. On November 19, 2021, while on a school bus, respondent was "[s]itting like on [A.K.'s] legs" when he forced his hands down her pants and touched her vagina. She scratched one of his arms and told him to stop. A.K. did not ask respondent to touch her, and he did not ask her permission to do so.
¶ 7 The prosecutor showed A.K. a 5 minute and 45 second video clip taken from a camera mounted inside the school bus. A.K. identified herself, respondent, and other individuals in the video. According to A.K., "the incident" occurred 1 minute and 50 seconds into the video clip and continued until respondent walked to the back of the bus.
¶ 8 This court has reviewed the video clip, which has accompanying audio. It shows A.K. sitting in the aisle seat beside another individual in the fifth row on the left side. Respondent was initially sitting in the aisle seat in the fourth row on the right side. Respondent then climbed over A.K., sat between her and another person, and put his legs over A.K.'s legs. The seat in front of A.K. and respondent blocked the camera's view of respondent's hands. Respondent's legs, which extended into the aisle, blocked the camera's view of A.K.'s crotch area. There were many overlapping conversations, so not everything A.K. and respondent said was audible. However, at times, A.K.'s demeanor and words could be deemed consistent with her testimony that respondent touched her without consent. As one example, at around 3 minutes and 42 seconds into the video, A.K. said something that sounds like, "wrong, stop," and then either, "no" or "nope." At about 4 minutes into the video, respondent climbed over A.K., walked toward the back of the bus, and took a seat. Around 5 minutes and 3 seconds into the video, A.K. turned around when respondent called her name. Respondent said, "When we get off, [indecipherable]." Respondent then made a gesture with his right hand near his mouth which could be indicative of someone performing oral sex on a male. A.K. turned away and rested her head and arm against the seat in front of her. Respondent then twice asked A.K., "Are you mad at me?"
¶ 9 The trial court adjudicated respondent delinquent. The court made respondent a ward of the court and placed him on probation for 24 months. As a consequence of his adjudication of delinquency, respondent must register as a sex offender. 730 ILCS 150/2(A)(5), 150/2(B)(1) (West 2022). Respondent filed a timely notice of appeal.
¶ 10 II. ANALYSIS
¶ 11 Pursuant to Illinois Supreme Court Rule 660A(f) (eff. July 1, 2018), "[e]xcept for good cause shown," our deadline to file the disposition in this case was May 16, 2024. This court initially entered an order denying respondent's request for oral argument. However, we subsequently granted respondent's motion to reconsider that order, and we held oral argument on May 14, 2024. We determine there is good cause shown for the late filing of this disposition, as it was occasioned by our granting respondent's motion to reconsider and setting the matter for oral argument.
¶ 12 On appeal, respondent challenges whether the State proved beyond a reasonable doubt that his purpose in touching A.K.'s vagina was for sexual gratification or arousal. He does not challenge the State's proof as to any other element of the offense.
¶ 13 Respondent advocates for de novo review. However, Illinois courts that have addressed similar claims by minors adjudicated delinquent for sex offenses have applied the highly deferential standard of review tracing its origins to Jackson v. Virginia, 443 U.S. 307, 319 (1979). See In re M.H., 2019 IL App (3d) 180625, ¶ 14; In re Davontay A., 2013 IL App (2d) 120347, ¶ 14; In re D.H., 381 Ill.App.3d 737, 740 (2008); In re Matthew K., 355 Ill.App.3d 652, 655 (2005); In re Donald R., 343 Ill.App.3d 237, 246 (2003); In re A.J.H., 210 Ill.App.3d 65, 71 (1991). Pursuant to this standard, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in original.) Jackson, 443 U.S. at 319. "Whether a defendant acted with the requisite state of mind is for the trier of fact to determine." Donald R., 343 Ill.App.3d at 243-44. "An appellate court shall not substitute its judgment for the judgment of the trier of fact, unless that judgment was inherently implausible or unreasonable." Donald R., 343 Ill.App.3d at 244. "Where evidence permits multiple reasonable inferences, we will accept those inferences that support the trial court's judgment." Davontay A., 2013 IL App (2d) 120347, ¶ 14.
¶ 14 Respondent maintains we owe no deference to the trial court, as neither the parties nor the court discussed at trial whether respondent acted for the purpose of sexual gratification or arousal. We disagree. In his closing argument, the prosecutor submitted the case came "down to whether or not [respondent] knowingly committed an act of sexual conduct with the minor victim A.K." As previously mentioned, the term "sexual conduct" has a statutory definition, requiring the accused to act "for the purpose of sexual gratification or arousal of the victim or the accused." 720 ILCS 5/11-0.1 (West 2020). Thus, the court could not have adjudicated respondent delinquent unless it determined he acted for the purpose of sexual gratification or arousal. Absent "strong affirmative evidence to the contrary," we must presume the court knew the law and applied it properly. In re N.A., 2018 IL App (1st) 181332, ¶ 36. Furthermore, "[w]hen determining the correctness of a trial court's findings in a juvenile case, a reviewing court may affirm on any basis found in the record." In re Gabriel W., 2017 IL App (1st) 172120, ¶ 31. Accordingly, we presume the court determined respondent touched A.K.'s vagina for the purpose of sexual gratification or arousal, and we will consider whether the evidence supported such a finding.
¶ 15 Respondent's challenge to the sufficiency of the evidence proceeds from the premise that "the only evidence even potentially supportive of [him] having the necessary intent comes in the form of the touching itself and of J.W.'s age." Respondent asks us not to presume from the touching itself and his age that his purpose was for sexual gratification or arousal. As we will explain, the totality of the circumstances and evidence reasonably supports a finding that respondent acted with the requisite mens rea.
¶ 16 Typically, "[w]hen the accused is an adult, a trier of fact can infer that the accused acted for the purpose of sexual gratification or arousal" from the charged conduct itself. M.H., 2019 IL App (3d) 180625, ¶ 16. "However, 'it is not justified to impute the same intent into a child's action that one could reasonably impute into the actions of an adult.'" M.H., 2019 IL App (3d) 180625, ¶ 16 (quoting A.J.H., 210 Ill.App.3d at 72). Thus, "[t]he State must present sufficient evidence to show that a minor acted with the intent of sexual gratification." M.H., 2019 IL App (3d) 180625, ¶ 16.
¶ 17 "The mens rea element of a crime rarely can be proved by direct evidence." Donald R., 343 Ill.App.3d at 243. Accordingly, it is permissible for the State to rely on circumstantial evidence to prove a minor acted for the purpose of sexual gratification or arousal. M.H., 2019 IL App (3d) 180625, ¶ 17. Examples of such circumstantial evidence "may include the removal of clothing, heavy breathing, placing the victim's hand on the accused's genitals, an erection, *** other observable signs of arousal," or sexually explicit comments. M.H., 2019 IL App (3d) 180625, ¶ 17. Nevertheless, there is" 'no bright-line test'" for evaluating whether the State proved that a minor acted for the purpose of sexual gratification or arousal, and this" 'must be determined on a case-by-case basis.' "M.H., 2019 IL App (3d) 180625, ¶ 18 (quotingMatthew K., 355 Ill.App.3d at 656).
¶ 18 In deciding whether to infer the requisite mens rea, a trial court must consider all of the evidence presented, including the offender's age and maturity. M.H., 2019 IL App (3d) 180625, ¶ 18. Generally, "[t]he closer the accused is to the age of majority, the more plausible it is for the court to infer that the accused acted for the purpose of sexual gratification and arousal." M.H., 2019 IL App (3d) 180625, ¶ 18. To that end, "[s]exual conduct by 11 to 13 year olds 'is more apt to be innocent than similar conduct by older minors.'" M.H., 2019 IL App (3d) 180625, ¶ 18 (quoting Donald R., 343 Ill.App.3d at 247 (Holdridge, J., concurring)). For example, in M.H., an 11-year-old respondent's "preadolescent curiosity" was different from a pursuit of sexual gratification or arousal where his conduct demonstrated a "complete lack of understanding of sex." M.H., 2019 IL App (3d) 180625, ¶¶ 20-21. The younger the respondent, the more likely it is he or she acted for a nonsexual purpose, such as "playing doctor." See Matthew K., 355 Ill.App.3d at 655 (an expert testified that the 12-year-old respondent was" 'socially deficient'" and was" 'playing doctor with a 7-year-old'" when he committed the charged acts). Nevertheless, depending on the nature of the evidence presented, even very young respondents may be deemed to have acted for the purpose of sexual gratification or arousal. See Davontay A., 2013 IL App (2d) 120347, ¶¶ 3, 22 (affirming the delinquency adjudications of respondents who were 12 and 13 years old, respectively); D.H., 381 Ill.App.3d at 738 (affirming a 12-year-old respondent's delinquency adjudication).
¶ 19 To be sure, one's chronological age does not always mirror his or her intellectual capacity, developmental maturity, or expected knowledge of sex. See People v. Mayo, 2017 IL App (2d) 150390, ¶¶ 4, 33 (the evidence showed the 23-year-old defendant had the functional capacity of a 3-year-old); Matthew K., 355 Ill.App.3d at 654-55 (the evidence showed the 12-year-old respondent had the functional capacity of a 10-year-old). When assessing whether the State met its burden to prove that an accused minor acted for the purpose of sexual gratification or arousal, a court should consider any evidence presented that the person's chronological age did not match his or her actual circumstances.
¶ 20 Here, respondent was 15 years old at the time of the alleged offense. He was older than any of the respondents in cases he cites where the appellate court reversed a delinquency adjudication based on the State's failure to prove the offender's purpose of sexual gratification or arousal. See M.H., 2019 IL App (3d) 180625, ¶ 1 (11-year-old respondent); Matthew K., 355 Ill.App.3d at 653 (12-year-old respondent); In re E.R.E., 245 Ill.App.3d 669, 670 (1993) (offense committed when the respondent was either 11 or 12 years old); A.J.H., 210 Ill.App.3d at 66 (13- year-old respondent). The parties presented no evidence at trial that respondent functioned at either a higher or lower level than would be expected of someone his age. Thus, the trier of fact reasonably could have determined respondent functioned at the level of a typical 15-year-old and had an awareness and understanding of sex consistent with his age. Of course, this is merely one consideration in evaluating whether respondent acted for the purpose of sexual gratification or arousal.
¶ 21 The evidence showed respondent put his legs over A.K.'s legs on a crowded bus, put his hands down her pants, and touched her vagina. A.K. testified the incident occurred 1 minute and 50 seconds into the video and continued until respondent walked to the back of the bus, which the video shows happened around the 4-minute mark. Therefore, this presumably was not a brief incident of touching, but rather continued for about two minutes. A reasonable fact finder could deem respondent's actions in touching A.K.'s vagina for two minutes while arguably restraining her legs as an indication he acted for the purpose of sexual gratification or arousal. See D.H., 381 App. 3d at 741 (affirming the delinquency adjudication of a 12-year-old respondent who took advantage of the victim's incapacity when she was restrained). The fact that this incident occurred in a very public environment does not inherently cast doubt on whether respondent touched A.K. for the purpose of sexual gratification or arousal. See Davontay A., 2013 IL App (2d) 120347, ¶¶ 3, 22 (affirming the delinquency adjudications of a 12-year-old respondent and a 13-year-old respondent who sexually abused a child on a school bus).
¶ 22 Furthermore, the video showed that after respondent walked to the back of the bus, he called A.K.'s name. When she turned around, he said, "When we get off, [indecipherable]." Respondent then made a gesture possibly indicative of someone performing oral sex on a male. A reasonable trier of fact could believe respondent was proposing that A.K. perform oral sex on him sometime after they got off the bus. This could be another indication that respondent's actions toward A.K. when he was seated next to her on the bus reflected a purpose of sexual gratification or arousal. See M.H., 2019 IL App (3d) 180625, ¶ 17 ("Sexually explicit comments by the accused may also support a finding that the accused acted for purposes of sexual gratification or arousal."). At oral argument, respondent's appellate counsel suggested that respondent's gesture was indicative of "vaping," not about oral sex. However, there was no evidence introduced at trial about vaping. Additionally, having reviewed the video, we determine that a reasonable fact finder could conclude respondent made a lewd gesture.
¶ 23 Toward the end of the video, respondent asked A.K. whether she was mad at him. Although certainly not an "apology" as the State suggests, under the totality of the circumstances, a reasonable trier of fact could construe this as respondent's consciousness of guilt for having touched A.K.'s vagina. See D.H., 381 Ill.App.3d at 741 (noting that a statement that respondent and another child were" 'just playing'" was a "defensive comment" that showed consciousness of guilt after having sexually abused a girl).
¶ 24 The State asserts the video also showed respondent hiding his face from the camera and his "flight" after the incident by moving to the back of the bus, which the State submits are additional indications of consciousness of guilt. We deem these particular inferences to be unsupported by the evidence. It would be unreasonable to conclude that walking to the back of the bus constituted either "flight" or "hiding" under the circumstances of this case, as respondent remained on the bus and yelled to get A.K.' s attention. Regardless, for the reasons explained above, considering the totality of the circumstances and evidence presented, it was not "inherently implausible or unreasonable" (Donald R., 343 Ill.App.3d at 244) that respondent touched A.K.'s vagina for the purpose of sexual gratification or arousal. Accordingly, we reject respondent's challenge to the sufficiency of the evidence.
¶ 25 We note respondent cites facts in his brief that were adduced in connection with the sentencing hearing but not at trial. For example, in his statement of facts, respondent recites that the social investigation report indicated (1) he had been diagnosed with attention-deficit/hyperactivity disorder and oppositional defiant disorder and (2) he was a special education student and struggled significantly at school. In both his statement of facts and the argument section of his brief, respondent mentions he said at the sentencing hearing that he reached into A.K.'s pocket to grab a "vape." In his brief, respondent proposes there may be "innocent explanations" for his touching A.K.'s vagina, such as "adolescent curiosity" or that he was reaching for a vape.
¶ 26 These arguments are unpersuasive. Respondent fails to mention that other statements attributed to him in connection with the preparation of the social investigation report made clear he was not sexually naive. Respondent told a counselor who evaluated him for sexually problematic behavior that he had sex with A.K. multiple times before the incident on the bus. He said he experienced "post nut shame" and "didn't want anyone to know we were f[***]." He added he thought A.K. accused him because he "started messing with one of her best friends." Obviously, these statements did not come out at trial and thus are not proof of guilt. However, to the extent respondent's brief asserts or implies that facts adduced in connection with his sentencing hearing (his mental health diagnoses and academic struggles) showed he acted without a purpose for sexual gratification or arousal but merely because of "adolescent curiosity," such argument is contradicted by the record.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we affirm the trial court's judgment.
¶ 29 Affirmed.