*1 received relationship economic benefit from his with Rockford Surgical is hard-pressed not relevant. We would be to find an abuse of plaintiffs discretion where the material seek to discover not relevant to the upon basis which the trial granted the motion to dismiss.
Additionally, plaintiffs apparently did not seek discovery until after the trial court ruled on the motion to dismiss. Plaintiffs do not explain why request their discovery came so late. Under such circumstances, find we cannot that the trial court abused its discre- tion in denying plaintiffs’ motion to reconsider. See Gardner v. Na- vistar International Transportation Corp., 248-49
While the trial court’s and the parties’ failure to address the issue good is understandable, faith the issue could be relevant in this The judgment case. Winnebago circuit court of County is therefore reversed. We remand this cause may so this issue ad- dressed.
Reversed and remanded.
O’MALLEY,EJ, CALLUM,J, concur. (The K., In re People Illinois, MATTHEW a Minor of the State of Petitioner- Appellee, K., Respondent-Appellant). v. Matthew
Second District No. 2 — 03—1335
Opinion February 4, filed *2 JOHNSON, J., dissenting. GILLERAN Martin, Chicago, appellant. for W of
Marc Waller, Attorney, Waukegan (Stephen E. Norris and J. State’s Michael Office, Marshall, Attorneys Appellate Prosecutor’s Trent M. both State’s counsel), People. opinion
JUSTICE McLAREN delivered the of the court: K., minor, adjudication appeals the trial court’s Matthew finding counts wardship guilty after Matthew two delinquency and (West (720 16(c)(2)(i) criminal sexual abuse ILCS 5/12 — 2002)), sentencing probation registration him 24 and and to months’ 2002)). (730 (West 150/2, and We reverse as a sex offender ILCS hearing. dispositional remand for a new 2004, April are On the State The facts taken from record. having K. wardship charging Matthew with com- petition filed a Aliena L. and Madeline L. against offenses sisters mitted sex-related 23, 2002, Matthew was and October September between Madeline because she was acquitted charged against offenses charged At bench trial on the of- young competently testify. too that, the time of Aliena, presented evidence at against fenses offenses, Aliena was 8 old. Al- alleged was 12 and Matthew in Mat- that, occasion, she and Matthew were iena on one testified Matthew set game they called “survival.” playing bedroom thew’s present to leave game and told the other children rules for in Mat- and Matthew alone return in five minutes. While Aliena were Matthew Aliena room, lap Matthew’s told thew’s Aliena sat on down, pants Matthew they massages.” With Aliena’s would “do in “a little” but finger slid his “privates.” touched Aliena’s Matthew tickled, Matthew Aliena told Matthew that it “not too much.” When gave “tongue told her to cover her Then Aliena a mouth. Matthew massage” by putting his mouth her and wiggling tongue. mouth his gave Matthew lifted belly massage. also Aliena’s shirt and Aliena a Al- iena did not anything Matthew, notice unusual about Matthew did sounds, any special Aliena, not make threaten his remove own clothing. keep Matthew told Aliena to the incident a secret. At that point, door, the other children knocked on the Aliena up lifted her underwear, opened and Matthew night, door. That Aliena told her parents about the incident.
Aliena’s mother testified that locking Aliena told her that after bedroom, the door to massaged his Matthew “pee-pee” Aliena’s with tongue his and asked Aliena to “suck his wiener.”
Chief of child psychiatry Rush-Presbyterian-St. at Hospital Luke’s Kraus, M.D., Louis deemed “eminently qualified” by the trial immature, court. Dr. Kraus socially testified that Matthew was friends, and keeping up few had trouble with peers. his Matthew had camp a difficult time summer where the other kids talked about experiences and ridiculed participated Matthew. Matthew petting some consensual at camp, very but felt uncomfortable Regarding offenses, situation. charged Matthew told Dr. Kraus back, that he rubbed Aliena’s her kissed with his tongue for 10 to 15 seconds, reached pants, put into her hand on her for 10 or 15 seconds but did not his finger. insert locking Matthew denied *3 door but admitted that he told Aliena not to anyone tell about the incident. Matthew Dr. told Kraus that he did not know what his was, motivation but that it was not about sexual ejacula- arousal or tion. Matthew said that he wanted to see what it felt like. Dr. Kraus testified that he found no evidence that sexually gratified Matthew or attempted sexually to gratify himself or Dr. “strong Aliena. Kraus’s a opinion degree certainty” to reasonable of medical was that Mat- becoming sexually thew had no interest aroused. Dr. Kraus *** explained, simply brief, “it a socially inept was oc- behavior that curred.” Matthew’s actions could be better understood as those of a 12-year-old. rather than a closing
During argument, argued counsel for Matthew State failed to prove Matthew acted purpose with the of sexual regarding or arousal. Due to the lack of evidence this ele- ment, finding counsel asked for a on lesser included offense of bat- (720 3(a)(2) (West 2002)). tery ILCS 5/12 — guilty aggravated
The trial court found Matthew two counts of criminal sexual abuse as to Aliena. The trial denied Matthew’s finding reopen proofs. motion to timely appeal reconsider This followed. prove beyond failed to argues that the State appeal,
On Matthew sexually the intent acted with that Matthew reasonable doubt essential ele- as to this lack of evidence Due to the gratify or arouse. ment, agree Matthew. we every prove the burden to has settled that the State
It is well was found doubt. Matthew beyond a reasonable element of an offense 12— under section criminal sexual abuse guilty of 16(c)(2)(i), provides pertinent part: which if: abuse aggravated criminal sexual
“The accused commits (i) commits an years age under 17 the accused was under 9 conduct with a victim who was act of sexual added.) 720 ILCS (Emphasis committed[.]” the act was when (West2002). 16(c)(2)(i) 5/12— or know- pertinent part as an “intentional conduct is defined in Sexual *** gratification or of sexual fondling purpose for the ing or 12(e) (West 720 ILCS or the accused.” arousal of victim 5/12 — 2002). adult, an ac- finder can infer that accused is an a fact When the However, justified to “it is not intended sexual cused reasonably action that one could impute the same intent into child’s A.J.H., 3d of an adult.” In re impute into the actions (1991). challenge sufficiency in a to the The standard of review whether, considering light in a when all of evidence evidence have any rational trier of fact could prosecution, most favorable to beyond a doubt. elements reasonable found the essential offense (2001). 76, 84 We will Hurtado-Rodriguez, People trier fact un- judgment judgment not substitute our In re implausible or unreasonable. judgment inherently less the R., Donald VIII: case, of counts VII and guilty
In this Matthew was found the victim’s fondling placing tongue his on the victim’s presented acted mouth. no evidence that Matthew gratification. The that she with the victim testified touched her. There was no nothing noticed unusual when Matthew clothing, heavily, placed evidence breathed that Matthew removed other observ- penis, the victim’s hand on his or had an erection Kraus, Dr. Further, psychiatrist child whom signs able of arousal. that Matthew did qualified,” opined “eminently trial court found *4 Rather, himself or the sexually gratify the intent to victim. not act with 12-year-old, socially deficient Dr. that Matthew was “a opined Kraus 7-year- a a doctor with maybe acting 10-year-old, playing at level ignore Dr. Kraus’s Although was free to old.” the trier fact In that it. no evidence contradicted testimony, presented the State light intent, State’s lack of evidence of no rational trier of fact could beyond have found a reasonable doubt that Matthew acted the purpose gratification sexual recognize arousal. We that intent gratification of sexual may proven with circumstantial evidence. People C.H., See Ill. App. 3d 462 we do not presented believe that the State sufficient circumstantial evidence in this case.
Despite holdings our in E.R.E., A.J.H. and In re 245 Ill. App. 3d (1993), the State urges now us to hold that the trier of fact in this case reasonably intent inferred The State cites In re Donald R. to support argument. its We believe that the facts in this case are more similar to in those A.J.H. and E.R.E than to those
in Donald R. A.J.H.,
In 13-year-old a girl was aggravated accused of criminal sexual touching abuse for penis 5-year-old of a boy for whom she baby-sat. The victim testified that the minor penis, had touched his skin-to-skin, for four to five seconds and then told him not to tell A.J.H., anyone. 210 Ill. argued A.J.H., at 67-68. The State in here, as it does that the above evidence was sufficient to infer the requisite rejected claim, sexual intent. We that reasoning “it that is justified not impute the same intent into a child’s action that one impute could reasonably into A.J.H., the actions of an adult.” 210 Ill. App. 3d at 72. E.R.E.,
In 12-year-old boy was of aggravated accused criminal sexual abuse for 6-year-old girl. of a The victim testified the minor had “private parts” touched her her over clothes, and then told her not to anyone. Stating tell that the evidence presented A.J.H., was weaker than that in we reversed the trial court’s adjudication and held that the State prove gratifica- failed to the sexual tion beyond element E.R.E., reasonable doubt. 245 Ill. 3d at 674. R.,
In Donald support case cited argument, its a 16-year-old boy accused criminal sexual abuse and exploitation sexual by exposing of a child his penis 6-year-old girl to a having penis. R., her touch his Donald Because is Matthew’s closer to the minors in A.J.H. and E.R.E. R., than to the minor in Donald we believe that A.J.H. and E.R.E. greater have applicability. R., old, In Donald minor was 16 significantly closer to adulthood than the 12- offend- A.J.H., E.R.E., Thus, ers and this case. an inference gratification R., inference, was reasonable in Donald while the same intent, without evidence of analysis unreasonable here. As our implies, these cases the issue of intent of sexual *5 There can be no basis. case-by-case a be determined on minors must evidence, all of the must consider The fact finder bright-line test. deciding whether maturity, before and including the offender’s inferred. intent can be element of to an essential case, prove failed
In this a beyond reason thus, prove guilty Matthew and, failed to the offense Exercising power our sexual abuse. aggravated of criminal able doubt 615(b)(3) (134 Ill. 2d R. Rule Supreme Court in accordance with included of the lesser (b)(3)), two counts reduce the convictions to we 2002)) 3(a)(2) (West (720 and remand battery offense of ILCS 5/12 — resentencing. for finding court erred determined that the trial
Because we have abuse, not ad- criminal sexual we need guilty Matthew arguments appeal. on dress his other is reversed and County Lake judgment
The of the circuit hearing. dispositional remanded for a the cause is new hearing. dispositional and remanded for a new Reversed BYRNE, J., concurs. JOHNSON, dissenting: GILLERAN
JUSTICE supports case respectfully I dissent. The evidence this age, he committed an act of sexual years while was respondent, victim, 720 ILCS age. conduct with the while she was See 16(c) (West 2002). (2)(i) as Sexual conduct defined 5/12 — ac- fondling by or the victim or the knowing touching intentional or accused, cused, organs, anus, the victim or the of the sex or breasts of or the purpose for the or arousal of the victim 2002). 12(e) (West Contrary to what the accused. 720 ILCS 5/12 — clearly the concluded, respondent here touched majority has the for the victim’s facts, glossed either key majority which the has over
Several omitted, The victim testi- pertinent are the resolution of this case. she, were in the respondent, fied that the and some other children respon- game called The playing a “survival.” bedroom children to game. He instructed the other dent set the rules He then closed his bedroom door leave room five minutes. instead of locked himself and the victim inside. He told the victim that respondent massages. The playing game, they give would a little. pull pants her and underwear down instructed the victim so, respondent hand under the victim’s When did slid his the victim vagina. The placed his hand on the victim’s pants and underwear victim the respondent stated to that it respondent tickled told her to cover her mouth. respondent gave The then the victim a “tongue massage” a “belly massage.” When the other children get room, tried to back into the the respondent told them it was not yet. time letting room, Before the other children back inside the respondent keep instructed victim to incident secret. On a date, later respondent attempted another act of a sexual nature with the victim. He asked the victim to “suck his pee-pee.” respondent the victim told the no. Christine, mother,
The victim’s testified that the victim had told her respondent what the had done. The victim told Christine that while she was in the respondent’s playing game bedroom “survival,” massaged and licked her vagina. The victim also told Christine that similar incidents had occurred on other *6 occasions. One of these occasions occurred on respondent’s the driveway.
Dr. Kraus testified that he respondent. examined the The respondent a healthy was He musically student. was inclined and A/B had history no problems. behavioral On standardized testing, the respondent scored in the percentile 90th Dr. above. Kraus respondent believed that the socially was immature for age. his explained respondent Dr. Kraus camp attended a summer the past respondent The enjoyed camp part summer. most but at times felt Other camp uncomfortable. children at sometimes talked having about sexual The camp encounters. other children at ridiculed respondent knowledge experience about his lack of of and with respondent sex. The girl camp, met summer whom he kissed and petted. respondent The told Dr. that Kraus he felt awkward with the girl. respondent The admitted to Dr. Kraus that he had committed several acts of fondling with the victim and the victim’s sister. When Dr. respondent why Kraus asked the he had done what done, he had the respondent seeing stated that he “was what it felt like.” hearing evidence,
After the above the trial court determined that the respondent performed the alleged acts with the intent of gratification. emphasis sexual The placed great trial court on fact that multiple. placed acts were The trial court also great weight respondent’s experience camp. on the Specifi- at summer cally, the trial court found: behavior, I exposed
“[S]o have a who’sbeen to sexual petting, kissing, year up neighbor who later in the meets some with know, play game, you clearly,maybe kids and this it decides innocent, argued things could be once that this was that started to
659 again game’s played intended; but when happen that weren’t room, so out of the are directed minor children so that the other conduct, it physical type in this respondent] engage can [the that for sexual what he did was corroborates in nature. multiple It of contact. was types numerous I have the not, as Dr. wrong. It’s doing was Clearly, he knew what he was playing doc- indicated, socially 12-year-old, Kraus, deficient he’s coupled state- past that; that 7-year-old. It’s tor with a felt like.’ ment, T to see what it wanted that, is evidence—it’s circumstan- I feel there But on all based just investigation another tial, clearly this more than an but was unfortunately anatomy, female person’s body to check out the my ruling today.” that’s rarely proved can intent element of a crime
The mens rea or (1997). 763, Sanchez, App. v. 3d 771 People 292 direct evidence. Rather, generally inferred from circumstantial the mens rea element is 1016, (1995); Holt, People v. App. v. 271 Ill. 3d People evidence. (1992). Price, 1032, particular, In the mens rea App. 225 Ill. 3d abuse, a defendant’s of criminal sexual element v. People from circumstantial evidence. gratification, can be inferred (1992). acted with C.H., Whether a defendant 237 Ill. question for the trier of fact state of mind is a requisite ap- An Wehrwein, determine. People judgment judgment not its pellate court shall substitute fact, inherently implausible or judgment trier of unless that Price, 3d at 1035. unreasonable. implausible or in this case was not judgment
The trial court’s alleged he performed The admitted that respondent unreasonable. inference that This fact alone creates an acts. *7 gratification. Contact the with the sexual
performed acts touching is finger and a a defendant’s victim’s between implies that Generally, sufficiently contact nature. such sexual Kolton, gratification. People v. 347 by motivated sexual defendant was inference, However, 142, addition to this Ill. in App. 3d being respondent the to pieces point several more of evidence gratification. motivated sexual he the
One, performed to Dr. Kraus that respondent explained the to see what sex and wanted alleged acts because he was curious about curiosity not respondent’s was felt like. The contact of a sexual nature experienced respondent The had majority portrays. as the as innocent infer, as did certainly camp. One could at summer some sexual contact he sexual contact court, respondent enjoyed the the that the trial experience again. to it camp and wanted experienced at summer the Additionally, respondent doing knew that what he was was wrong. The respondent locked the door. He told the victim to cover her mouth while he touching Afterwards, her. he instructed the anyone victim not to tell happened. Moreover, what had after his first victim, encounter with respondent the the attempted another act of sexual conduct.
Finally, the fact that the respondent’s conduct here was intentional
and not accidental
very important.
is
Supreme
The Illinois
Court
explained
Terrell,
in People
(1998),
2d
the rationale
behind the
element
intent of
sexual arousal or
Specifi-
cally, the Terrell
explained
that the element of intent of sexual
gratification
arousal or
was inherent
the definition of sexual
penetration. Terrell,
In ruling majority cases, the relies on E.R.E., two In re 245 App. (1993), re A.J.H., 3d 669 and In App. (1991), 210 Ill. 3d 65 that are readily distinguishable present from the case. In both E.R.E. A.J.H., the respondents were 12 and the approximately same respondent E.R.E., as 670; the here. 245 Ill. 3d App. A.J.H., However, Ill. App. fact, 3d at 66. besides that one present the case is very First, different A.J.H., from E.R.E. and A.J.H. E.R.E. and the State failed to introduce evidence as to the mindset or motivation respondents. E.R.E., See generally 669; 245 Ill. App. A.J.H., 3d 210 Ill. 3d App. case, 65. in this above, However as noted there were key several facts introduced that respondent indicated that performed acts gratification, with the intent of notably most respondent’s admission that he wanted see how the acts felt. Also, in A.J.H., both respondents E.R.E. performing denied alleged E.R.E., A.J.H., 669; acts. 245 Ill. 210 Ill. here admitted what he had By done. ignoring differences, these the majority seemingly bright-line creates a rule that minors cannot requisite form the intent commit criminal sexual abuse. bright-line R.,
Such a preposterous. rule would be In In re Donald (2003), Court, District, 3d 237 Appellate Third recognized this departed upheld from E.R.E. A.J.H. The court child, adjudication exploitation of a for sexual reason- ing implausible that it was not for the trier of fact to infer from *8 penis 6-year-old to a boy exposed his circumstances that 3d at Donald, gratification. girl concurrence, against special in his warned Holdridge, 244. Justice minors have that all that assumes an inflexible rule adopting involving conduct engaging reasons noncriminal (Holdridge, 3d at 247-48 Donald, organs. exposure of sex particular that courts consider J., concurring). urged He specially Donald, case-by-case approach. apply of each case and facts J., concurring). (Holdridge, specially 3d at 248 create an inference sum, instant case In facts particular In er- intent of sexual acted with the otherwise, to address the determining majority failed roneously contentions, include the issue remaining which Act as it Registration Illinois Sex Offender constitutionality majority’s disposition. I therefore dissent from the pertains to minors. INC., al., INVESTMENTS, Petitioners-Appellees, v. THE VILLAGE JLR et HILLS, Respondent-Appellant. OF BARRINGTON Second District No. 2 — 04—0045 January 21,
Opinion filed