APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
537 N.E.2d 1089, 181 Ill. App. 3d 769, 130 Ill. Dec. 760 1989.IL.576
Appeal from the Circuit Court of McLean County; the Hon. Keith E. Campbell, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. McCULLOUGH, P.J., and SPITZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
On July 13, 1988, defendant Larry Myers was found guilty by a jury sitting in the circuit court of McLean County of committing two counts of the offenses of aggravated criminal sexual assault and two counts of aggravated criminal sexual abuse, in violation of sections 12-14 and 12-16, respectively, of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 12-14, 12-16). He was subsequently sentenced to concurrent six-year imprisonment terms on each sexual assault conviction, and three-year imprisonment terms on each sexual abuse conviction. He now appeals alleging the aggravated criminal sexual assault statute is unconstitutional.
Defendant was convicted of two counts of violating section 12-14(b)(1) of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12-14(b)(1)), which provides that an accused commits aggravated criminal sexual assault if the accused is 17 years of age or older and commits an act of sexual penetration with a victim who is under 13 years of age at the time the act was committed. It was alleged defendant committed an act of sexual intercourse with his nine-year-old ex-stepdaughter and had her perform an oral sexual act on him. He was also convicted of two counts of aggravated sexual abuse. (Ill. Rev. Stat. 1987, ch. 38, par. 12-16(c)(1).) It was alleged defendant fondled the victim and had her fondle him. Suffice it to say, there is sufficient evidence to sustain the convictions.
Defendant appeals solely the aggravated criminal sexual assault convictions. He argues for the first time on appeal that the statutes involved are unconstitutional. His first contention is that the section defining criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-13) is overbroad. His other two arguments are that the aggravated criminal sexual assault statute is overbroad and violates due process.
We initially observe, concerning defendant's first argument, that the point was not pursued at the trial court level nor contained in a post-trial motion. Generally, questions of constitutionality of a statute cannot be raised for the first time on appeal, but must have been presented to the trial court. (People v. Cregar (1988), 172 Ill. App. 3d 807, 826, 526 N.E.2d 1376, 1389; People v. Whitfield (1986), 147 Ill. App. 3d 675, 680, 498 N.E.2d 262, 266.) Accordingly, review of this question is waived. Cregar, 172 Ill. App. 3d at 826, 526 N.E.2d at 1389.
Further, defendant has no standing to pursue this issue. Defendant was convicted of violating section 12-14(b)(1). He now wishes to argue the constitutionality of section 12-13 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 12-13). While the offenses contained in section 12-13 can sometimes be an element of offenses contained in section 12-14(a) (see Ill. Rev. Stat. 1987, ch. 38, par. 12-14(a)), due to the nature of the offense in this case, section 12-13 is not involved. It is well settled that an individual has standing to challenge the constitutionality of a statutory provision if he is directly affected as one within the class aggrieved by the alleged unconstitutionality. (People v. Wagner (1982), 89 Ill. 2d 308, 311, 433 N.E.2d 267, 269; People v. Mayberry (1976), 63 Ill. 2d 1, 6, 345 N.E.2d 97, 100.) It is evident defendant is not directly affected by any alleged constitutional problem with section 12-13 and, thus, has no standing to raise such.
Defendant's next contention is that section 12 -- 14(b)(1) of the Code is overbroad. As noted, this section prohibits acts of sexual penetration where the perpetrator is at least 17 years of age and the victim is under 13 years of age. Defendant's argument is centered on the definition of "sexual penetration," which is:
"'Sexual penetration' means any contact, however slight, between the sex organ of one person and 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, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration." (Ill. Rev. Stat. 1987, ch. 38, par. 12-12(f).)
He observes this provision does not require that the act be done for purposes of the sexual gratification or arousal of the victim or accused, which is an element of sexual conduct. (See Ill. Rev. Stat. 1987, ch. 38, par. 12-12(e).) He believes this failure to limit the definition of sexual penetration results in a constitutionally overbroad statute, since innocent conduct, such as a parent bathing a young child inadvertently making a slight intrusion into said child, would come under the criminal penalties imposed.
Again, we note this argument is raised for the first time on appeal and is waived. (Cregar, 172 Ill. App. 3d at 826, 526 N.E.2d at 1389.) Also, unless the statute is one that may inhibit first amendment rights, a person may not challenge a statute as being overbroad on the grounds that the statute, in another context or situation not before the court, could be applied unconstitutionally to another party. (People v. Haywood (1987), 118 Ill. 2d 263, 275, 515 N.E.2d 45, 51; People v. Holder (1983), 96 Ill. 2d 444, 449, 451 N.E.2d 831, 833.) It is evident section 12 -- 14(b)(1) does not affect ...