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In re Donald R.

August 29, 2003

IN RE DONALD R., JR., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
DONALD R., JR., RESPONDENT-APPELLANT.)



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois No. 01-JD-72 Honorable Chris L. Fredericksen, Judge, Presiding.

The opinion of the court was delivered by: Justice Schmidt

UNPUBLISHED

The State petitioned that the minor, Donald R., Jr., be adjudged delinquent for having committed the offenses of aggravated criminal sexual abuse (720 ILCS 5/12--16(c)(2)(i) (West 2000)) (count I) and sexual exploitation of a child (720 ILCS 5/11--9.1(a)(2) (West 2000)) (count II). The minor's motion to suppress his confession was denied. His motions for directed verdicts were granted regarding count I, but denied regarding count II. The minor was adjudged to be delinquent based on count II and was committed to two years' probation. Additionally, he was to register as a sex offender and to obtain counseling as conditions of his probation. On appeal, the minor argues that (1) the directed verdict rulings were inconsistent; (2) his confession should have been suppressed; (3) the State failed to prove the elements of count II beyond a reasonable doubt; and (4) the terms of his probation are excessive. We affirm.

BACKGROUND

In its juvenile petition, the State alleged that the minor committed aggravated criminal sexual abuse by having a young girl, M.Z., touch his penis and that he committed sexual exploitation of a child by exposing his penis to M.Z. Testimony during the adjudication established that the minor was 16 years old and M.Z. was 6 years old at the time of the incident.

At the adjudication on December 6, 2001, Detective Donna Nicholson testified that she was a juvenile officer with the Peoria police department. Nicholson had interviewed M.Z. on February 11, 2001. M.Z. told Nicholson that about three weeks before the interview, M.Z. was in the basement of her uncle's home when the minor came into the basement to visit the uncle. While M.Z.'s uncle was in the shower, the minor pulled his pants and underwear down past his knees and showed "his private part" to her. M.Z. said that the minor squeezed and held her hand, and made her touch "his private part." When the minor heard that the girl's uncle had finished showering, he pulled his pants up before the uncle came out of the bathroom. The minor threatened to beat M.Z. up if she told anyone what had happened. M.Z. went upstairs and told her grandparents about the incident shortly after it occurred.

At the adjudication, M.Z. testified that the minor showed her his "private." She denied, however, that the minor made her touch him. M.Z. could remember that the incident happened "kind of long ago," but could not remember exactly when it happened. She denied that the minor had threatened her. M.Z. recalled that she had told someone about the incident, but could not remember whom she told. Later, she testified that she told a police officer about the event, but could not remember if the officer was a man or a woman.

Nicholson said that on the evening of February 21, 2001, she and Detective Terry Esser went to the minor's home in an apartment complex. The officers spoke with the minor's parents. Initially, the officers told the parents that they wanted to speak with the minor about an altercation at the high school. The parents said that the minor was not home, but would return in about 10 or 15 minutes. The officers told the parents that they would wait for the minor in the parking lot.

When the minor arrived at the parking lot, the officers placed him under arrest. Without having an opportunity to speak to his parents, the minor was transported to the police station by a third officer.

At the suppression hearing, Esser testified that he and Nicholson again spoke to the minor's parents after the minor was arrested. According to the officers, they now told the parents that the minor had been arrested for a sexual offense and was being transported to the police station. The minor's father told the officers that in the State of Indiana, parents could act as their child's attorney during police interrogation. The father asked Esser if the parents could act as the minor's attorney in this case. Esser advised the father that in the State of Illinois, parents could not act as a minor's attorney. Esser and Nicholson then left the apartment and went to the police station.

The minor's mother testified at the suppression hearing. She stated that the minor's father not only asked Esser about the parents acting as the minor's attorney, but also asked if the parents could come to the police station. According to the mother, Esser said that the parents could not come to the police station.

At the suppression hearing, Esser stated that at the police station he read the minor his Miranda rights and interrogated the minor for 2½ to 3 hours. At first, the juvenile denied committing the offenses. During the interrogation, Esser was joined by Detective Javier Grow, who also interrogated the minor.

Eventually, the minor admitted that he had exposed his penis to M.Z. for 15 to 20 seconds upon her request. According to Esser, the minor claimed that M.Z. told the minor that she had seen a boy's " pee-pee" at school. The minor claimed that M.Z. repeatedly asked to see his "pee-pee" and he only exposed himself in order to quiet her. The juvenile, however, denied that M.Z. voluntarily touched his penis or that he placed her hand on his penis.

At the suppression hearing, the minor testified that he only admitted exposing himself to M.Z. because Esser made a promise of leniency and Grow threatened him. Esser and Grow, however, stated that they neither threatened the minor nor promised him leniency.

The minor said that he asked Esser if his parents were going to come to the police station, to which Esser replied that they were not coming. The juvenile submitted that he asked "towards the end" of the interrogation if he could talk to his parents. The issue "was left open," but then he did not speak to them. Both Esser and Grow testified that the minor did not ask for his parents to be present either before or during the interrogation. On cross-examination, the minor acknowledged that he had experience with the police from previous juvenile adjudications for retail theft and burglary.

Regarding the motion to suppress, the trial judge found that the minor had not been threatened or promised leniency by the police. The judge also found that the minor did not ask to speak to his parents before or during the interrogation. Additionally, the judge found that even if the father implied that he wished to be present during his son's interrogation, it was the minor rather than the parent who must ask for the parent to be present during the interrogation. The judge denied the minor's motion to suppress the confession.

The remaining testimony at the adjudication was substantially similar to the testimony at the suppression hearing. In separate motions, the minor moved for directed verdicts on counts I and II. Regarding the aggravated criminal sexual abuse charge, the trial judge stated that, in another case in which he was the trial judge, this court had ruled in an unpublished order that circumstantial rather than direct evidence of acting for the purpose of sexual arousal was insufficient in a juvenile case. The judge noted that the unpublished case from this court cited two published cases from the Illinois Appellate Court, Second District, which are In re E.R.E., 245 Ill. App. 3d 669, 614 N.E.2d 1367 (1993), and In re A.J.H., 210 Ill. App. 3d 65, 568 N.E.2d 964 (1991). The judge stated that even though he disagreed with these rulings, he was bound to follow our unpublished case and the two Second District cases. He ruled that because the State only presented circumstantial evidence of the mens rea element, he must grant the minor's motion for a directed verdict on count I.

The judge, however, noted that his research had uncovered no case law concerning the sexual-exploitation-of-a-child offense. The judge, therefore, denied the minor's motion for a directed verdict on count II. The minor was adjudicated delinquent and was committed to probation with conditions. His motion to reduce the sentence was denied and he appealed.

ANALYSIS

I. Inconsistent ...


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