SUPREME COURT OF ILLINOIS
549 N.E.2d 226, 133 Ill. 2d 1, 139 Ill. Dec. 714 1989.IL.1497
Appeal from the Circuit Court of Cook County, the Hon. Earl E. Strayhorn, Judge, presiding.
JUSTICE RYAN delivered the opinion of the court.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RYAN
Defendant, Freddie Rogers, was arrested and charged in an information in the circuit court of Cook County with the offense of child abduction, in violation of section 10-5(b)(10) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, par. 10-5(b)(10)). The information alleged that he intentionally lured two children, without their parents' consent, for the unlawful purpose of committing criminal sexual abuse. After a preliminary hearing, the defendant filed a motion to dismiss, claiming that the statutory provision was unconstitutional. The circuit court of Cook County agreed that the provision relieved the State of its burden of proof as to one of the elements of the offense and declared the statute unconstitutional. The State then filed a direct appeal as a matter of right to this court, pursuant to our Rule 603 (107 Ill. 2d R. 603). We reverse and remand.
"Intentionally lures or attempts to lure a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child for other than a lawful purpose.
For the purposes of this subsection (b), paragraph (10), the luring or attempted luring of a child under the age of 16 into a motor vehicle without the consent of the parent or lawful custodian of the child shall be prima facie evidence of other than a lawful purpose."
Section 10-5(c)(4) provides that it shall be an affirmative defense if the defendant shows that he "lured or attempted to lure a child under the age of 16 into a motor vehicle for a lawful purpose." Ill. Rev. Stat. 1987, ch. 38, par. 10-5(c)(4).
The trial court held a preliminary hearing on August 21, 1987, to determine whether there was probable cause to pursue the criminal charges. The evidence presented at the hearing was that at approximately 8 p.m. on August 18, defendant approached K.M. at a game room in downtown Chicago. K.M. was 14 years old at the time. Defendant asked if he and his 13-year-old friend, A.B., would help him unload some newspapers which were in a nearby alley. The boys agreed and they went with defendant in his car to the alley. During the ride, the defendant offered to pay each of them $5 for their help. After reaching the alley, defendant parked his car and left to look for his partner. Shortly afterwards, he returned and said that they had to wait for a few minutes. At this time, A.B. was in the front seat and next to the door, K.M. was next to him, and the defendant was in the driver's seat. While waiting, defendant told the boys that he was going to move their seat back. In his attempt to do so, his hand touched A.B. in his "private parts." In response, A.B. pushed the defendant's hand away. The defendant then claimed he wanted to fix the seat belt and while doing so, he briefly placed his elbow on K.M.'s groin area. When defendant again touched his "privates," K.M. pushed his hand away. The boys remained in the car for five more minutes, at which point defendant said they could leave. Defendant then gave K.M. $1.65, stating that that was all he had, but that he would pay them $5 if they would let him "suck them." The two boys left the car and ran down the alley and across the street to a policeman, Officer Paoletti, and told him what had happened.
Officer Paoletti testified that he had seen the defendant's parked car in the alley and had been watching it through binoculars for approximately five minutes. The officer observed the youths exit the car and run towards him. Paoletti arrested the defendant after the boys told him that defendant had just molested them. Testimony was also presented from a parent of each child that neither parent knew the defendant nor did they give their child permission to enter his car.
After the hearing, the trial court found that there existed probable cause to press criminal charges. On September 4, 1987, the State's Attorney filed a two-count information against the defendant. Count I stated:
"[Defendant] intentionally lured , a child under the age of 16 years, without the consent of the parent of said child for an unlawful purpose, to wit: to commit the offense of criminal sexual abuse . . .."
Count II charged defendant with the same offense and named A.B. as the victim. In June 1988, defendant filed a motion to dismiss, claiming that section 10 -- 5(b)(10) was unconstitutional. He argued that one element of the crime is that the child was lured into the vehicle for other than a lawful purpose. However, the statute declares that if a person under 16 years of age is lured into a vehicle without parental consent, it is prima facie evidence of other than a lawful purpose. The defendant argues that this presumption scheme and burden-shifting unconstitutionally relieves the State of its burden of proof beyond a reasonable doubt as to an element of the crime. He contends that this presumption is not validated by section 10 -- 5(c)(4), which allows the defendant to present as an affirmative defense evidence of a lawful purpose. Defendant also ...