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In Re S.B.

October 4, 2012

IN RE S.B., A MINOR (THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT,
v.
S.B., APPELLEE).



The opinion of the court was delivered by: Justice Burke

JUSTICE BURKE delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Karmeier, and Theis concurred in the judgment and opinion.

Justice Garman dissented, with opinion.

OPINION

¶ 1 At issue in this case is whether a juvenile who has been found "not not guilty" of aggravated criminal sexual abuse following a discharge hearing pursuant to section 104-25(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/104-25(a) (West 2008)) must register as a sex offender. The appellate court concluded that registration was not required. 408 Ill. App. 3d 516. We hold that the juvenile is required to register as a sex offender, but that he may petition to be removed from the sex offender registry under the terms set forth in section 3-5 of the Sex Offender Registration Act (730 ILCS 150/3-5 (West 2008)).

¶ 2 Background

¶ 3 On July 7, 2006, the State filed a two-count juvenile petition in the circuit court of Peoria County alleging that S.B., a minor, was delinquent. Count I alleged that in June or July of 2005, S.B. placed his finger in the vagina of a girl under the age of nine, thereby committing aggravated criminal sexual assault (720 ILCS 5/12-14(b)(i) (West 2004)). Count II alleged that S.B. touched the vagina of the victim for the purpose of sexual arousal, thereby committing aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(i) (West 2004)).

¶ 4 The circuit court ordered that S.B. be evaluated for his fitness to stand trial. Dr. Jane Velez examined S.B. under the fitness procedures of the Code of Criminal Procedure (Code) (725 ILCS 5/104-10 et seq. (West 2008)) and was the sole witness to testify at his fitness hearing. Velez stated that S.B., who was 14 years old at the time of the incident, suffered from mild mental retardation and that he functioned like "a 7 or 8-year-old boy." Velez concluded that, because of his intellectual limitations, S.B. would not be able to assist in his defense, and was therefore unfit to stand trial. Velez also explained to the court that S.B. was "really not a pedophile" and that "his main difficulty" was his cognitive limitations. According to Velez, with family support and counseling, there was little risk of recidivism on the part of S.B.

¶ 5 At the conclusion of the fitness hearing, the circuit court found that S.B. was unfit to stand trial and there was no substantial likelihood he would attain fitness within one year. See 725 ILCS 5/104-16(d) (West 2008)). As a result, the court set the matter for a discharge hearing pursuant to section 104-25(a) of the Code (725 ILCS 5/104-25(a) (West 2008)). A discharge hearing "is an 'innocence only' proceeding that results in a final adjudication of charges only if the evidence fails to establish the defendant's guilt beyond a reasonable doubt (resulting in the defendant's acquittal) or the defendant is found not guilty by reason of insanity. If the evidence is found to be sufficient to establish the defendant's guilt, no conviction results. Instead, the defendant is found not not guilty (People v. Lavold, 262 Ill. App. 3d 984 (1994)) and may be held for treatment. A criminal prosecution of the charges against the defendant does not take place unless or until the defendant is found fit to stand trial." (Emphasis in original.) People v. Waid, 221 Ill. 2d 464, 469-70 (2006).

¶ 6 At the discharge hearing, the victim, M.J., testified for the State.

M.J., who was seven years old on the date of the hearing and four years old at the time of the incident, stated that S.B. was her neighbor.

On the day of the incident, M.J. was playing in a cornfield with S.B. and his brother when they found a ball. According to M.J., S.B. came up with a game where one person threw the ball, the other two persons looked for it, and the person who did not find it had to "get naked." S.B. threw the ball, his brother found it, and as a result, M.J. took off her clothes. While M.J. was standing naked, S.B. approached her, got on his knees, and touched her "private part." At some point, S.B.'s brother threw the ball a second time, and S.B. failed to find it. S.B. undressed and asked M.J. to touch his penis. M.J. then touched S.B.'s penis with her finger. After getting dressed, S.B., his brother, and M.J. left the cornfield.

¶ 7 M.J. did not tell anyone about what happened in the cornfield because she was afraid she would get in trouble. Approximately a year later, however, M.J.'s grandmother learned about the incident from M.J.'s brother and contacted the police.

¶ 8 Detective David Doubet from the Peoria County sheriff's department testified about statements M.J. made to him during his investigation of the incident. See 725 ILCS 5/115-10 (West 2008) (allowing admission of out-of-court statement by minor victim of sex offense as exception to hearsay rule). Doubet essentially reiterated M.J.'s testimony.

¶ 9 At the close of evidence, the State conceded there was insufficient evidence to establish that S.B. had penetrated the victim's vagina. The circuit court agreed and, accordingly, entered a judgment of acquittal on count I. With respect to count II, the circuit court found that M.J.'s testimony was credible and that her touching of S.B.'s penis at his request was sufficient to establish the element of sexual arousal. The court therefore found that the State had proven beyond a reasonable doubt that S.B. committed aggravated criminal sexual abuse. Accordingly, the court entered a finding of no acquittal or "not not guilty" on count II.

¶ 10 For the next 15 months, S.B. was evaluated on an outpatient basis by the Illinois Department of Human Services pursuant to section 104-25(d)(1) of the Code (725 ILCS 5/104-25(d)(1) (West 2008)). Reports generated during this period describe the efforts made to restore S.B. to fitness by educating him about the legal process. The reports also uniformly state that S.B. was not suffering from a mental illness and was not considered a danger to himself or others.

¶ 11 At the conclusion of the 15-month period, the circuit court found that S.B. remained unfit to stand trial. The State then moved to compel further fitness treatment for S.B. pursuant to section 104-25(g)(2) of the Code (725 ILCS 5/104-25(g)(2) (West 2008)). Under this provision, a court may order further treatment of a person if he is either subject to involuntary admission under the Mental Health and Developmental Disabilities Code (405 ILCS 5/1-100 et seq. (West 2008)) or "constitutes a serious threat to public safety." The court denied the State's motion, finding there was no evidence that S.B. was mentally ill or that he posed a threat to public safety.

¶ 12 The State also moved to compel S.B.'s registration as a sex offender pursuant to section 2(A)(1)(d) of the Sex Offender Registration Act (SORA) (730 ILCS 150/2(A)(1)(d) (West 2008)). This provision defines a sex offender as "any person" who is charged with a sex offense who "is the subject of a finding not resulting in an acquittal" following a discharge hearing. On January 27, 2009, the circuit court granted the State's motion and ordered S.B. to register as a sex offender. Defendant appealed.

¶ 13 On appeal, defendant did not contest his conviction but, instead, challenged only the circuit court's order requiring him to register as a sex offender. With one justice dissenting, the appellate court concluded that registration was not required and reversed the judgment of the circuit court. 408 Ill. App. 3d 516.

¶ 14 In so holding, the appellate court noted that the only reference to juveniles in SORA's definitions of a sex offender is found in section 2(A)(5) (730 ILCS 150/2(A)(5) (West 2008)), and that this provision refers only to juveniles who have been adjudicated delinquent. Because S.B. was not adjudicated delinquent but, instead, was found "not not guilty" following a discharge hearing, the court concluded that S.B. was not a sex offender as defined in SORA.

¶ 15 The appellate court further noted that section 3-5 of SORA (730

ILCS 150/3-5 (West 2008)) allows juveniles who have been adjudicated delinquent to petition for termination of registration under certain conditions, but does not mention juveniles found "not not guilty." Given this fact, the court concluded that it would be "absurd and unjust" to apply section 2(A)(1)(d) to juveniles found "not not guilty," as the result would be "a non-delinquent juvenile having fewer rights than a juvenile who was actually adjudicated delinquent." 408 Ill. App. 3d at 520.

¶ 16 We allowed the State's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).

¶ 17 Analysis

¶ 18 Section 2 of SORA sets forth the definitions of a sex offender and provides, in relevant part:

"(A) As used in this Article, 'sex offender' means any person who is:

(1) charged pursuant to Illinois law, or any substantially similar federal, Uniform Code of Military Justice, sister state, or foreign country law, with a sex offense set forth in subsection (B) of this Section ...


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