People v. Alexander

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People v. Alexander

State: Illinois

Court: 3rd District Appellate

Docket No: 3-04-0892 Rel

Case Date: 01/18/2007

Preview:No. 3-04-0892 Filed January 18, 2007. IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2007 The People of the State of Illinois, Petitioner-Appellee, v. Dan Alexander, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois, No. 03-CF-364 Honorable Daniel J. Rozak, Judge, Presiding.

JUSTICE LYTTON delivered the Opinion of the court.

Defendant Dan Alexander was charged with two counts of sexual exploitation to 180 of a in child. county He jail was and convicted two years and of

sentenced probation.

days

Additionally, the trial court ordered Alexander The issues on that Alexander

to pay a fee for the collection of his DNA. appeal are (1) whether the State proved

possessed the requisite criminal intent, or mens rea, for sexual exploitation of a child, and (2) whether the trial court possessed the authority to impose a DNA collection fee. We affirm in part and vacate in part.

The evidence at trial indicated that Alexander had been a neighbor of seven-year-old B.M.R., her nine-year-old

sister A.M.R. and their mother. the girls for their mother.

He would sometimes baby-sit

B.M.R. testified that, when Alexander was babysitting her at the park, he asked her if she wanted to play with his penis and that "the thing he goes to the bathroom with" touched her cheek once. A.M.R. testified that he would

"mess[] with it" and would "go up and down on it" but nothing ever came out of "it." Once, Alexander asked A.M.R. if he

could pull his pants down and she said no, so he did not. He made her promise not to tell anyone about the incident. A.M.R. testified that Alexander never asked her to touch him, and he never touched her. Detective Alexander. Rob Plutz testified that he interviewed

During the interview, Alexander stated that he

did not recall masturbating in front of the girls, but if he did, he must have been "smashed," and he was sorry. In his

testimony, Alexander denied ever making this statement to Detective Plutz. drinking problems However, Alexander admitted that he had in the past. He had a prior DUI

conviction and had been through a recovery program called "Stepping Stones" to help him combat his alcoholism.

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Alexander maintained that he never exposed himself to the girls but that once, they pulled down his pants; he yelled at them but, at their request, did not tell their parents. Alexander's ex-girlfriend's twenty-one-year-old

daughter corroborated his testimony about this incident. A jury found Alexander guilty of two counts of sexual exploitation of a child. Alexander was sentenced to 180 He was also mandatory DNA

days in jail and two years of probation. ordered to pay a $10 collection fee for

testing and genetic marking.

His motions for a new trial

and a reduction in sentence were denied. I. Reasonable Doubt

Alexander argues that the State failed to prove that he acted for the purpose of his sexual arousal or

gratification.

Sexual exploitation of a child occurs when

"[a]ny person *** in the presence of a child *** exposes his or her sex organs, *** for the purpose of sexual arousal or gratification of such person or the child." 9.1(a)(2) (West 2002). 720 ILCS 5/11-

When faced with a challenge to the

sufficiency of the evidence, we determine whether, after reviewing all of the evidence in the light most favorable to the State, any rational trier of fact could have found the elements of the crime proven beyond a reasonable doubt.

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People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985). Alexander's argument relies on A.M.R.'s testimony that nothing came out of Alexander's penis; thus, he argues that "sexual gratification" was not proven beyond a reasonable doubt. Alexander seems to assume that the term "sexual

gratification," as used in 720 ILCS 5/11-9.1(a)(2), has a technical or biological meaning that eluded the jury in their deliberations. However, the term possesses no

restrictive legal definition. twelve can determine upon the

We believe that a jury of of the term "sexual See

meaning and open

gratification"

"fair

deliberations."

Jenkins v. State, 424 N.E.2d 1002, 1004 (Ind. 1981). Moreover, sexual gratification may be proven by

circumstantial evidence.

In re Donald R., 343 Ill. App. 3d In Donald R., a six-

237, 240, 796 N.E.2d 670, 673 (2003).

year-old child alleged that respondent showed "his private part" to her and made her touch it. The appellate court

found that though there was only circumstantial evidence regarding the respondent's sexual arousal or gratification, "it was not inherently implausible or unreasonable for the trier of fact to infer from the circumstantial evidence that the sixteen-year-old [respondent] exposed his penis to the

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six-year-old victim for the purpose of the [respondent's] sexual gratification or arousal." Donald R., 343 Ill. App. 3d at 244, 796 N.E.2d at 676. Here, A.M.R. and B.M.R. testified that Alexander

exposed himself to them, masturbated in front of them, and touched B.M.R. inappropriately. Even considering A.M.R.'s

testimony that nothing came out of Alexander's penis, it is not "inherently implausible" that a rational trier of fact, confronted with this evidence, could have found that there was sufficient proof that Alexander's sexual gratification was proven beyond a reasonable doubt. two Accordingly, counts of we

affirm

Alexander's

conviction

of

sexual

exploitation of a child. II. DNA Collection Fee Next, Alexander argues that the trial court exceeded its statutory authority in ordering him to pay a fee for the collection of his DNA. We consider questions regarding In re K.C., 325 Ill. App.3d

statutory authority de novo.

771, 776-777, 759 N.E.2d 15, 20-21 (2001). The imposition State of advances the fee. three First, arguments the State supporting contends the that

Alexander waived his challenge to the fee because he did not object to the collection fee in the trial court. However,

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"[w]here a court*** exceeded its statutory power to act, any resulting judgment is void and may be attacked at any time." People v. Raczkowski, 359 Ill. App. 3d 494, 497, 834 N.E.2d 596, 599 (2005). Defendant has not waived this issue.

Second, the State argues that the fee is a proper cost levied on the defendant. "[S]tatutory provisions regarding People v. Fales, 247 The

costs must be strictly construed."

Ill. App. 3d 681, 682, 617 N.E.2d 421, 422 (1993).

statute states that, "in addition to any other disposition, penalty, or fine imposed, [the defendant] shall pay a [DNA] analysis fee of $200." 730 ILCS 5/5-4-3(j) (West 2004). It

does not provide for the imposition of additional fees that are not already otherwise authorized, such as fines, court costs or costs of prosecution. People v. Hunter, 385 Ill. Nothing

App. 3d 1085, 1096, 831 N.E.2d 1192, 1199 (2005).

in the statute authorizes the imposition of a DNA collection fee. People v. McAfee, ___ Ill. App. 3d___,___, 853 N.E.2d Thus, the trial court exceeded its power

107, 109 (2006).

under the statute when it ordered Alexander to pay $10 for the collection of his DNA. Third, the State argues that Will County Administrative Order 03-31 granted the trial judge specific authority to impose the $10 collection fee. The State contends that the

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Will

County

order

was

properly

entered

pursuant

to

subsections (a) and (b) of Supreme Court Rule 21 (94 Ill. 2d R. 21), which provides: "(a) Appellate Court and Circuit Court Rules. A

***majority of the circuit judges in each circuit may adopt rules governing civil and criminal cases which are consistent with these rules and the

statutes of the State***. (b) General Orders. The chief judge of each

circuit may enter general orders in the exercise of his general administrative authority, including orders providing for assignment of judges, general or specialized division, and times and places of holding court." 94 Ill. 2d R. 21(a) and (b).

Initially, the State argues that "[r]ule 21(a) should be properly interpreted be as requiring with only that that do each not

circuit's

rules

consistent

statutes

unduly infringe upon the `judicial power,' " citing People v. Joseph, 113 Ill. 2d 36, 46-47, 495 N.E.2d 501, 506 (1986). In Joseph, our supreme court struck down a portion of the Post-Conviction Hearing Act (Ill. Rev. Stat., 1984 Supp., ch. 38 par. 122-1 et seq.) that restricted post-conviction judicial assignments to judges who had not been involved in the original proceeding. Joseph, 113 Ill. 2d at 46, 495 7

N.E.2d at 506. The court found the statute unconstitutional because it unduly encroached upon the judiciary's power to administer the court system. N.E.2d at 507. The State's argument, however, would turn Joseph on its head. The issue here is not whether legislation Joseph, 113 Ill. 2d at 48, 495

appropriates judicial power, but whether the circuit court order infringes on the legislative power. effect, raises revenue for Will County The order, in by directing

convicted defendants to provide reimbursement for the cost of mandatory DNA testing. "[T]he question of costs which are to be allowed the successful party and the items of expense which are to be included therein is a question to be

determined by the legislature."

See Ritter v. Ritter, 381 The fee in Thus, under

Ill. 549, 553-554, 46 N.E.2d 41, 43-44 (1943). this case is not a cost authorized by statute.

the order, the fee is an unconstitutional infringement on the legislative power rather than a valid exercise of

judicial power. The State also claims that Rule 21(b) authorizes the order. However, the order does not provide for the

"assignment of judges," nor does it delineate "the times and places of holding court." 94 Ill. 2d R. 21(b). Further,

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the Rule

chief 21(b)

judge's cannot

general

administrative encompass

authority or

under to

appropriately

purport

exercise a power so closely akin to the revenue raising power of the legislature. See Ritter v. Ritter, 381 Ill. Therefore, the

549, 553-554, 46 N.E.2d 41, 43-44 (1943).

order exceeds the powers granted to the chief judge under Rule 21(b). Order 03-31 violates the separation-of-powers clause
and

is void.

(Ill. Const.

1970, art. II,

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