The opinion of the court was delivered by: Presiding Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable James D. Egan, Judge Presiding.
The State charged defendant, Alex Smith, by indictment with two counts of indecent solicitation of a child based on the offense of predatory criminal sexual assault of a child. The indictment alleged that defendant committed the indecent solicitation on July 11, 1997, in that he being over 17 solicited two children under the age of 13 to have sexual intercourse, an act which if completed would be predatory criminal sexual assault of a child.
Defendant was found unfit to stand trial and subject to involuntary admission. The parties then proceeded to a discharge hearing under section 104-25 of the Code of Criminal Procedure of 1963. (725 ILCS 5/104-25 (West 1996)). The trial court found defendant "not not guilty" of the charges and ordered that defendant be remanded to the custody of the Department of Mental Health and Developmental Disabilities for a course of treatment to render him fit to stand trial.
On appeal, defendant argues that the charges of indecent solicitation of a child must be dismissed because the statute is void and unconstitutional as it fails to include a sentence for the offense of indecent solicitation of a child based on predatory criminal sexual assault of a child. 720 ILCS 5/11-6(c)(West 1996).
At the discharge hearing Tiara B, testified she is 7 years old and in second grade. She and her sister Tashia were in a park two houses from her grandmother's when the defendant approached them. He said, "I'll give you 50 cents if you want to freak." He said "Do you want to see my dick?" and pointed at his private part. He told her sister he would give her a quarter if she would go around the tree and "freak" him. Tiara and her sister ran home and told their mother.
Salena H, testified that on July 11, 1997, around 6 p.m. her two daughters, Tiara and Tashia, came home screaming that a boy on the playground offered them money to "freak" him. The girls pointed the defendant out to her. Salena H, told her sister to call the police, and she went outside and followed the defendant until the police arrived.
Kimellen Chamberlain testified she is an assistant State's Attorney assigned to felony review. After 9:15 p.m. on July 11, 1997, she interviewed the defendant in the presence of a detective. At first defendant told her he did not see any girls in the park, then he said he did see two girls, but he only pushed them on the swings. When Chamberlain asked the detective to leave the room, the defendant told her that he went up to the two girls on the swings and asked them if they wanted to "freak" him. When asked what "freak" meant, defendant explained that it was when a boy puts his "thing" or "dick" in a girl's "stuff" or between her legs. Defendant also told Chamberlain that the girls ran away when he asked them if they wanted to see his "dick," but they came back with their mother and she kept him from leaving until the police arrived.
The parties then stipulated that Dr. Fauteck, the psychologist who had testified at the earlier fitness hearing and gave his expert opinion that defendant was not fit to stand trial and that he is subject to involuntary admission, would testify that defendant was unable to understand and waive his Miranda rights.
The court found that defendant was "not not guilty" of indecent solicitation of a child based on predatory criminal sexual assault of a child. The court further stated that, if defendant is subsequently found fit to stand trial, it would permit defense counsel to refile a motion to suppress statements. The trial court then ordered that defendant be remanded to the custody of the Department of Mental Health and Developmental Disabilities for a course of treatment to render him fit to stand trial. This appeal followed.
Defendant contends that the absence of the language "predatory criminal sexual assault of a child" from the sentencing provisions of the indecent solicitation statute renders the statute void and unconstitutional.
In cases where a party attacks the validity or constitutionality of a statute, our supreme court has repeatedly noted the "presumption of validity that attaches to legislation, including enactments that define offenses and prescribe penalties." People v. Fuller, No. 86104, slip op. at 6 (July 1, 1999); People v. Dunigan, 165 Ill. 2d 235, 244, 650 N.E.2d 1026 (1995). Thus, a reviewing court has a duty to construe a statute in a manner that upholds the statute's validity and constitutionality if reasonably possible. Fuller, slip op. at 7.
As defined by statute, the offense of indecent solicitation of a child prohibits anyone age 17 or older from soliciting a child under age 13 to do any act which, if done, would constitute aggravated criminal sexual assault, predatory criminal sexual assault of a child, criminal sexual assault, aggravated ...