Appeal from the Circuit Court of Cook County. Nos. 00 CR 19545 & 00 CR 19546. Honorable Thomas Nowinski, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
Following a bench trial, in this consolidated appeal, Robert Woodrum challenges his conviction of child abduction and his sentence of 24 months probation. Woodrum also challenges his sentence that he undergo HIV/Aids testing and give samples so as to have his genetic markers recorded in a database. Woodrum advances the following four issues: (1) whether an individual can be convicted of child abduction when the unlawful purpose forming the basis of the crime was based solely upon his thoughts that were not acted upon; (2) whether the trial court erred in refusing to grant Woodrum's request for a bill of particulars to specify the exact nature of the unlawful purpose forming the basis of the charges; (3) whether there has been a speedy trial violation where the State, with knowledge of all the facts of the case at the commencement of the prosecution, failed to allege each element of the offense in the previous indictments; and (4) whether the trial court may order a defendant convicted of child abduction to undergo either mandatory HIV/Aids testing, genetic marker identification or, in this case, both. For the reasons that follow, we reverse the defendant's conviction and remand the matter for further proceedings.
At the time of the offense, Woodrum was a 29 year old single male suffering from schizophrenia and depression who was being treated with psychotropic medication. On more than one occasion, he videotaped children at play. On each occasion he taped the children, after finishing taping, Woodrum invited the children up to his parents' condominium to watch the video they just made. During one of the incidents he was videotaping, while the children were wrestling, one child announced that another child's fly was down. Woodrum said the girl should show him so he could tape it but the girl refused to allow him to do so. The parents of the children complained to the police. Woodrum was arrested and charged with child abduction. He gave a statement, not in a question and answer format, to the Assistant State's Attorney. That statement was written by the Assistant State's Attorney and was signed by Woodrum. The statement suggested that Woodrum became sexually aroused while videotaping the children, especially during the open fly incident. In the statement, Woodrum indicated he fantasized about having sex with the children and thought about masturbating but took no affirmative steps toward completing any of those acts.
Bond was initially set at $700,000 but was reduced to $150,000. Woodrum remained in custody until after his trial when he was released, subject to sex offender probation. The original indictments charged Woodrum with two separate occurrences that constituted child abduction. The first indictment related to the November 4, 1999 occurrence with the four children playing on the front lawn. This resulted in four counts. The second indictment related to events from the following day. At that time, Woodrum encountered children in the laundry room and invited them up to his residence. That indictment contained three counts. Although these two indictments referenced the relevant statute and charged that Woodrum lured the children into a dwelling place without their parents' consent, neither indictment stated that Woodrum acted "with other than a lawful purpose."
The State made a motion to amend the indictments. The trial court granted the motion and Woodrum was re-indicted in two separate indictments totaling seven counts of child abduction. The amended indictments claimed that Woodrum had lured the children into the condo "for other than a lawful purpose," but did not specify the nature of the unlawful purpose. The trial court detected another error in the second indictment, so a third version was created. Again the indictment did not specify the unlawful purpose.
Defense counsel filed a motion for a bill of particulars seeking to learn with specificity the nature of the unlawful purpose. The State responded that, under the statute, the luring of a child under the age of 16 without parental consent is prima facie evidence of other than a lawful purpose. As such, the State argued before the trial court that further discovery was not necessary. The trial court denied the motion for a bill of particulars holding that the burden falls to the defendant, in the nature of an affirmative defense, to show his actions were taken with a lawful purpose.
The defense filed a motion to dismiss claiming a speedy trial problem and the failure to explain the alleged unlawful purpose.
Woodrum's counsel argued that the elements added to the subsequent versions of the indictments were additional charges based on facts known to the State at the commencement of the prosecution. Woodrum's counsel argued that the generic allegation that he acted with an unlawful purpose was a new element that constituted a new crime and that dismissal of the indictments was proper because Woodrum had been in custody for over 120 days. The trial court denied the motion to dismiss, stating that the subsequent indictments were "just re-indictments of the original charges" and that the amended indictments related back to the original date together with all by agreement continuances, thereby eliminating any speedy trial problem.
The children testified at trial that Woodrum never touched them or harmed them in any way, but that he told them not to tell their parents. Woodrum argued at trial that he only thought about doing things to the children, but that he never actually did anything. The State argued that the statute provides for a presumption such that "[it] did not have to show he completed an act." The trial court found Woodrum guilty, holding that:
"But just as a picture of a naked child could be one of beauty, depending on the eye of the beholder, and the purpose of the beholder for taking it, it could also be something which would not have a lawful purpose. The statute states that luring a child into a house, dwelling, motor vehicle, who is under the age of sixteen, is prima facie evidence of other than a lawful purpose. The Defendant's statement is that he did these things because he enjoyed watching the children, he enjoyed especially watching if they showed parts of their body that were exposed, that these things sexually excited him. I cannot say that taking a videotape that sexually excites you, of little children, is a lawful purpose for videotaping. Therefore, the Defendant will be found guilty on all counts."
Defense counsel complained that the trial court was "shifting the burden to the defendant to prove that the unlawful purpose * * * was not unlawful." Defense counsel reiterated the request for clarification as to the exact nature of the unlawful purpose the trial court found Woodrum had committed. Even in conviction, the trial court declined to honor Woodrum's request to learn the nature of the unlawful purpose.
Woodrum was sentenced to 24 months sex offender probation. Over defense objection, Woodrum was also ordered to undergo an HIV/AIDS test and have his blood genetic markers placed on file.