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In re F.M.

November 25, 2003

IN THE INTEREST OF F.M., A MINOR
(THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,
v.
F.M., A MINOR, RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Cook County. Honorable Richard F. Walsh, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Wolfson

UNPUBLISHED

Following an adjudicatory hearing, respondent F.M. was found delinquent based on his commission of aggravated criminal sexual assault. Respondent was placed on five years' probation and ordered to refrain from having any unsupervised contact with children under 12 years of age. On appeal, respondent contends: (1) the aggravated criminal sexual assault statute he was charged with violates due process because it permits felony adjudications based on innocent conduct; (2) his disposition as a Class X offender pursuant to section 12-14(b)(i) of the Criminal Code of 1961 was in error where that section properly is classified as a Class 4 offense; and (3) he was deprived of due process of law where the State presented unreliable evidence of prior bad acts through a victim impact statement. We affirm.

FACTS

Respondent was charged with aggravated criminal sexual assault pursuant to section 12-14(b)(1). 720 ILCS 5/12-14(b)(1) (West 2000). He was adjudicated delinquent after a stipulated adjudicatory hearing.

At the hearing on a motion to suppress statements, Sergeant William Stutzman of the Wheeling Police Department testified that on March 29, 2000, he investigated a possible incident of sexual abuse between respondent, respondent's sister, and a neighbor girl. He called respondent's mother and asked her to bring respondent to the police station. After being read his Miranda rights, respondent gave a verbal statement, followed by a written statement. He admitted placing his penis in the mouths of his sister and the neighbor girl. The court denied the motion to suppress.

The parties entered into a stipulatory adjudicatory hearing that incorporated respondent's statement. They also stipulated that on March 28, 2000, respondent was 13 years old, and the neighbor victim was 6 years old. The state informed the court that the charges related to respondent's sister were nolle prossed. The trial judge adjudicated respondent delinquent of aggravated criminal sexual assault.

At the dispositional hearing, the State introduced evidence in the form of two victim impact statements. The victim's father and mother each read a statement to the court. In the victim's mother's statement, she said, "what [the victim] saw was she played a part in a game at least three separate times*** The fact that he subjected my daughter and his sister to this numerous times makes me wonder about my ability to protect my daughter."

The State recommended that respondent be placed on five years' probation and ordered to refrain from having any unsupervised contact with children under 12 years old. The assistant public defender had no objection and said she was "fundamentally in agreement" with the recommended sentence. The court followed the State's recommendation, placing respondent on five years' probation and ordering respondent not to have any unsupervised contact with children under 12. Respondent also was ordered to participate in sex offender treatment, with family counseling and mandatory school attendance.

DECISION

I. Substantive Due Process

Respondent first contends the statue under which he was found delinquent, section 12-14(b)(i), violates due process because it sweeps too broadly and potentially punishes innocent conduct. The section charged against respondent does not require that sexual penetration be accompanied by sexual gratification or the use or threat of force. Absent a requirement of criminal intent or a culpable mental state, respondent contends, merely changing a baby's diaper or washing a baby with a washcloth could be punishable as a felony.

Whether a statute is constitutional is a question of law to be reviewed de novo. People v. Morgan, 203 Ill. 2d 470, 486, 786 N.E.2d 994 (2003). All statutes are presumed constitutional, and the party challenging the constitutionality of a statute bears the burden of clearly establishing the alleged ...


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