People v. Alexander ( 2007 )

No. 3-04-0892
Filed January 18, 2007.
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2007
The People of the State ) Appeal from the Circuit
of Illinois, ) Court of the 12th Judicial
) Circuit, Will County,
Petitioner-Appellee, ) Illinois,
)
v. ) No. 03-CF-364
)
Dan Alexander, ) Honorable
) Daniel J. Rozak,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE LYTTON delivered the Opinion of the court.
Defendant Dan Alexander was charged with two counts of
sexual exploitation of a child. He was convicted and
sentenced to 180 days in county jail and two years of
probation. Additionally, the trial court ordered Alexander
to pay a fee for the collection of his DNA. The issues on
appeal are (1) whether the State proved that Alexander
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. He would sometimes baby-sit
the girls for their mother.
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 Rob Plutz testified that he interviewed
Alexander. 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. However, Alexander admitted that he had
drinking problems 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
days in jail and two years of probation. He was also
ordered to pay a $10 collection fee for mandatory DNA
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.” 720 ILCS 5/11-
9.1(a)(2) (West 2002). 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. We believe that a jury of
twelve can determine the meaning of the term “sexual
gratification” upon “fair and open deliberations.” See
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
237, 240, 796 N.E.2d 670, 673 (2003). In Donald R., a six-
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. Accordingly, we
affirm Alexander’s conviction of two counts 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
statutory authority de novo. In re K.C., 325 Ill. App.3d
771, 776-777, 759 N.E.2d 15, 20-21 (2001).
The State advances three arguments supporting the
imposition of the fee. First, the State contends 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
costs must be strictly construed.” People v. Fales, 247
Ill. App. 3d 681, 682, 617 N.E.2d 421, 422 (1993). The
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.
App. 3d 1085, 1096, 831 N.E.2d 1192, 1199 (2005). Nothing
in the statute authorizes the imposition of a DNA collection
fee. People v. McAfee, ___ Ill. App. 3d___,___, 853 N.E.2d
107, 109 (2006). Thus, the trial court exceeded its power
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 as requiring only that each
circuit’s rules be consistent with statutes that do not
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
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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. Joseph, 113 Ill. 2d at 48, 495
N.E.2d at 507.
The State’s argument, however, would turn Joseph on its
head. The issue here is not whether legislation
appropriates judicial power, but whether the circuit court
order infringes on the legislative power. The order, in
effect, raises revenue for Will County 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
Ill. 549, 553-554, 46 N.E.2d 41, 43-44 (1943). The fee in
this case is not a cost authorized by statute. Thus, under
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 chief judge’s general administrative authority under
Rule 21(b) cannot appropriately encompass or purport to
exercise a power so closely akin to the revenue raising
power of the legislature. See Ritter v. Ritter, 381 Ill.
549, 553-554, 46 N.E.2d 41, 43-44 (1943). Therefore, the
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, §1.) For the above
stated reasons, the DNA collection fee is vacated.
The judgement of the circuit court of Will County is
affirmed in part and vacated in part.
Affirmed in part; vacated in part.
LYTTON, PJ., with SCHMIDT, J., concurring and CARTER,
J., specially concurring.
CARTER, J., specially concurring.
I concur with the majority as to the issues raised but
write separately on the need for the legislature to amend
the statute requiring Genetic Marker Group (DNA) Testing
(730 ILCS 5/5-4-3 (West 2004)). The legislature should
grant trial courts the authority to impose on defendants the
cost of DNA collections. People v. Hunter, 358 Ill.App.3d
1085, 1097, 831 N.E.2d 1192, 1201 (2005). At present, the
legislative specimen submission requirements make county
government, in certain circumstances, responsible for
offender compliance and, as such, represents an unfunded
mandate on local government. Specimens collected for the
Illinois State Police Laboratory have local cost
implications which the legislature, in the exercise of its
prerogative, should remedy.
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