Appeal from the Circuit Court of Winnebago County. No. 10-JD-419, 10-JD-418 Honorable K. Patrick Yarbrough, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.
¶ 1 In these consolidated cases, respondents, Davontay A. and Donavon A., were adjudged to be delinquent minors, made wards of the court, and placed on probation. They now appeal, contending that: (1) the charges against them were not proven beyond a reasonable doubt; and (2) the trial court erred in assessing sexual assault fines. We affirm in part and vacate in part.
¶ 2 I. BACKGROUND
¶ 3 Davontay, age 13, and his brother Donavon, age 12, were each charged under the Juvenile Court Act of 1987 (Juvenile Court Act) (705 ILCS 405/1-1 et seq. (West 2008)) with 13 sex-related offenses arising from an incident occurring on a school bus on December 1, 2010, involving a 13-year-old fellow student, K.J.D. After trial, the trial court found the following charges against Davontay proven: aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(ii) (West 2008)) (count I); attempt (aggravated criminal sexual abuse) (720 ILCS 5/8-4(a), 12-16(c)(2)(ii) (West 2008)) (count IV); criminal sexual abuse (720 ILCS 5/12-15(b) (West 2008)) (count VII); and aggravated battery (720 ILCS 5/12-4(b)(8) (West 2008)) (count XIII). The court found the following charges against Donavon proven: attempt (aggravated criminal sexual abuse) (720 ILCS 5/8-4(a), 12-16(c)(2)(ii) (West 2008)) (count V); and aggravated battery (720 ILCS 5/12-4(b)(8) (West 2008)) (count X).
¶ 4 K.J.D. testified that, on December 1, 2010, as she was riding the late activity bus home from school, she was bothered by a series of boys. She moved to various seats on the bus to get away from the boys, but eventually a boy named Dezzion sat next to her. Dezzion turned her around in her seat so that she faced the back of the seat and "started humping" her for about a minute, pressing the front of his body against the back of her body. When Dezzion left, Davontay took his spot. K.J.D. was standing on the seat, facing sideways, and Davontay was lying down on the seat. His left hand was on K.J.D.'s upper thigh and his right hand was on her vagina, moving. Davontay and another boy, Quinten, tried to prevent K.J.D. from leaving, but Quinten let her go, and she punched Davontay. She then attempted to move to the back of the bus. As she walked in the aisle, Donavon "humped" her. His hands were on her waist and he moved his body back and forth on her "behind" for about a minute before he left and K.J.D. took a seat. K.J.D. testified that Donavon later told her to get up from that seat and pushed her face with an open hand when she refused.
¶ 5 The State also introduced into evidence a DVD recording, approximately 40 minutes long, from a surveillance camera mounted at the front of the bus facing the back. K.J.D. testified while she watched the recording, pointing out individuals and describing their actions. The recording shows a school bus full of students; without a witness to identify respondents or even K.J.D., it is difficult to discern individuals or relevant actions to which witnesses testified while watching the recording.
¶ 6 Davontay testified that he took the activity bus home from school on December 1, 2010. He had known K.J.D. for about two years. He denied grabbing K.J.D.'s vagina or legs, lying down on a seat that she was standing on, or holding her and preventing her from leaving. He also denied that K.J.D. hit him; he saw her hit someone named "Quinn."
¶ 7 Davontay also testified while watching the recording. Again, this "testimony" is mostly Davontay pointing out and identifying various people in the recording. He described how someone named "Curtis" grabbed K.J.D.'s leg. At some point later, K.J.D. sat in the same seat with him, as he pointed out in the recording.
¶ 8 Donavon testified that he was on the activity bus on December 1. He did not know K.J.D. but had seen her around school. The bus was crowded, and he climbed over seats to move to the front to get off at his stop. However, the bus driver would not let anyone off the bus because someone threw a pen at her, and the bus returned to the school. He climbed back to his seat.
¶ 9 Donavon got up to talk to a friend who was seated a couple of rows ahead of him on the opposite side of the bus. He passed K.J.D. in the aisle. At some point, K.J.D. was right in front of him while he was in the aisle. However, he never touched her with any part of his body. Donavon specifically denied touching his pelvis to K.J.D.'s buttocks or touching her waist with his hands. He also testified that later on, K.J.D. sat in a seat that he had vacated. He asked her to move, and she refused. He did not touch her but moved his hand in front of her face. She later moved when he again asked her to do so. He never had any physical contact with K.J.D. on December 1. Donavon also testified while watching the recording.
¶ 10 After the trial court found respondents guilty of the various charges, Davontay and the State agreed that counts IV, VII, and XIII should be merged into count I (aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(2)(ii) (West 2008)), and Donavon and the State agreed that count X would merge into count V(attempt (aggravated criminal sexual abuse)) (720 ILCS 5/8-4(a), 12-16(c)(2)(ii) (West 2008)). The trial court denied respondents' motions for a new trial or, in the alternative, to reconsider and proceeded to sentencing hearings. Davontay and the State submitted an agreed sentence of five years' probation with various conditions, including stayed time in the juvenile detention center, DNA indexing, registration as a sex offender, counseling, and STD/HIV testing. The trial court brought up a sexual assault fine of $200 and a sex offender fine of $500, of which neither the State nor Donavon appeared to be aware. After some discussion, the sentencing hearings were continued for the parties to research the applicability of the fines.
¶ 11 On March 1, after hearing argument, the trial court concluded that the sexual assault fine applied to minors charged under the ...