Buttock-touching incidents are not sex offenses as defined by statute, and where only one attempt at what would qualify as such was shown, a finding of sexual dangerousness was properly reversed for insufficient evidence.
For APPELLANT: Mr. David E. Mannchen, State's Attorneys Appellate Prosecutor, Springfield, IL; Ms. Katherine Marie Doersch, Assistant Attorney General, Chicago, IL; State's Attorney Macon County, Macon County Courthouse, Decatur, IL.
For APPELLEE: Ms. Monica Hawkins, Hawkins & Root P.C., Decatur, IL.
CHIEF JUSTICE GARMAN delivered the judgment of the court, with opinion. Justices Freeman, Thomas, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
GARMAN, CHIEF JUSTICE.
[¶1] The circuit court of Macon County declared defendant, Julianna Bingham, to be a sexually dangerous person under the Sexually Dangerous Persons Act (SDPA) (725 ILCS 205/1.01 to 12 (West 2010)), and appointed the Director of the Illinois Department of Corrections (Department) as her guardian. Defendant was ordered to remain committed to the Department " until or unless [she] is recovered and released." The appellate court reversed the trial court's judgment. 2013 IL App (4th) 120414, 987 N.E.2d 1023, 370 Ill.Dec. 257. We granted the State's petition for leave to appeal. Ill. S.Ct. R. 315(a) (eff. July 1, 2013). For the reasons that follow, we affirm.
[¶3] In September 2009, the State charged defendant with aggravated battery and alleged that defendant knowingly caused bodily harm to her assistant high school principal, Mike Mose, when she bit, spat on, and choked him. Defendant pleaded guilty and the court sentenced her to 24 months' probation. The trial court's order also required defendant to undergo a mental health evaluation.
[¶4] In January 2011, the State petitioned the court to revoke defendant's probation. The petition alleged that defendant committed a battery when she placed her hand on 17-year-old Katie C.'s buttocks while staying at a group home called Grace House.
[¶5] In July 2011, when defendant was nineteen, the State filed a petition to have her declared a sexually dangerous person. The petition relied on several allegations regarding defendant's past conduct: (1) in 2005, defendant's 11-year-old cousin stated that defendant touched her breasts and gave her " wedgies all the time" ; (2) the same year, another cousin noted that defendant touched his girlfriend's buttocks and chest; (3) in 2006, defendant was adjudicated a delinquent minor for two charges of assault for fondling the buttocks of two students at her school; (4) during a Sex Offender Specific Evaluation in 2006, defendant flirted with the therapist and asked her if she was a lesbian; (5) while staying in a group home in 2007, defendant inappropriately grabbed a female in the bathroom and pulled the shower curtain open on the female while she was showering; and (6) defendant made sexual advances toward a female teacher, Ashley Guntol, grabbing her neck and breast, pushing the teacher into a chair and pressing her lips and tongue into the teacher's mouth.
[¶6] The trial court appointed Dr. Lawrence Jeckel and Dr. Terry Killian to each conduct a Sexually Dangerous Person evaluation and file a written report with the court. The court held a bench trial, and several individuals testified.
[¶7] At the hearing, Dr. Jeckel testified regarding the court-ordered sexually dangerous person evaluation he conducted of defendant. Dr. Jeckel met with defendant for one hour and also reviewed police reports and notes from defendant's prior evaluations. He first testified regarding the time defendant placed her hand on the buttocks of Katie C. while living at the group home called Grace House. Katie C. reported that defendant " came up from behind her and placed one of her hands on her buttocks." Katie C. asked defendant not to do that and defendant stopped. Katie C. also testified that defendant was " looking down her shirt" and later that
day, defendant asked Katie C. " to get on her bed with her."
[¶8] Regarding the incident with Katie C., defendant told Dr. Jeckel that she and Katie C. " started playing around," but denied touching Katie C.'s buttocks and looking at Katie C.'s breasts. Defendant also stated that Katie C. did not like her because Katie C. thought defendant was a lesbian. Finally, defendant " claimed that she wasn't sexually drawn to minors."
[¶9] Dr. Jeckel spoke with defendant about the time she choked, bit, and spat on her high school assistant principal, Mike Mose. Mose attempted to restrain defendant after defendant got into an altercation with another student after a verbal dispute over where to sit at lunch. Defendant told Dr. Jeckel that the other girl touched her leg and that she kneed the other girl to protect herself. Mose attempted to restrain defendant until the police arrived and defendant choked, bit, and spat on him. Justifying her actions against Mose, defendant claimed that Mose pushed her and started to fight her.
[¶10] Next, Dr. Jeckel testified about defendant's sexual advances toward her teacher, Ashley Guntol. Guntol reported that defendant grabbed her neck and breast, pushed her into a chair, and pressed her lips and tongue into Guntol's mouth. Defendant said that Guntol told defendant to " come to the desk in front of her so she could see her pretty face." Defendant also said that " she kissed her because she liked her, and couldn't understand *** why the police were called." Dr. Jeckel testified that defendant told him that the attempted kiss " was wrong" but did not want to talk about it.
[¶11] Dr. Jeckel testified that defendant " has some limited intellectual ability," " showed an inability to love," and was " overly aggressive, uncomfortable with being a girl." Additionally, Dr. Jeckel noted that " it's very difficult to control her behavior to protect her and others" and that defendant " cannot process personal responsibility" for her conduct.
[¶12] Defendant told Dr. Jeckel that " [w]hen I see a girl that I like, I feel giddy and happy. I just can't restrain myself. It hasn't happened in jail because they're all ugly. If someone is beautiful, I am more likely to fall for them. I just can't restrain myself. It is very hard. Most days I think a lot about sex. I think of girlfriends who like me for who I am, and I would like them. It's not just the sex." Finally, Dr. Jeckel diagnosed defendant with borderline personality disorder with some antisocial qualities that " predisposed her to engage in recurrent improper sexual and aggressive activity with women." Dr. Jeckel testified that defendant's mental disorder existed for at least one year prior to July 13, 2011. Dr. Jeckel also opined that defendant's mental disorder causes a criminal propensity to the commission of sexual offenses and that defendant has demonstrated propensities toward acts of sexual molestation of children or other persons. Additionally, Dr. Jeckel noted that without treatment, defendant was likely to engage in sexually dangerous behavior in the future.
[¶13] On cross-examination, Dr. Jeckel acknowledged that he had not interviewed any of the individuals involved in the above detailed incidents, but rather relied on police reports. Dr. Jeckel also agreed that defendant's only prior sexual behavior had been one kiss and that she was not sexually active at the time.
[¶14] Dr. Killian testified next regarding his interview with defendant. When asked about the incident with Guntol, defendant admitted to trying to kiss her and grabbing her breast. Dr. Killian noted that defendant was " dismissive" during this discussion
and acted as if her actions were not a " big deal."
[¶15] With regards to her acts toward Katie C. at the group home, defendant again denied any intentional touching and said that she was falling and reached out to grab something when she " accidentally ...