People v. Burmeister

• Decision Date: 26 August 1986
• Docket Number: No. 2-85-0596,2-85-0596
• Citation: 100 Ill.Dec. 850,147 Ill.App.3d 218,497 N.E.2d 1212
• Parties: , 100 Ill.Dec. 850 PEOPLE of the State of Illinois, Plaintiff-Appellee v. William BURMEISTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1212

497 N.E.2d 1212

147 Ill.App.3d 218, 100 Ill.Dec. 850

PEOPLE of the State of Illinois, Plaintiff-Appellee v. William BURMEISTER, Defendant-Appellant.

No. 2-85-0596.

Appellate Court of Illinois Second District.

Aug. 26, 1986.

Rehearing Denied Oct. 21, 1986.

G. Joseph Weller, Deputy Defender, William A. Delaney, II, Assistant Defender, Office of the State Appellate Defender, Elgin, for defendant-appellant.

Gerald Grubb, State's Atty. Boone County, Belvidere, Kenneth R. Boyle, Director, Springfield, William L. Browers, Deputy Director, Cynthia N. Schneider, Staff Atty., State's Atty. Appellate Com'n, Elgin, for plaintiff-appellee.

Justice SCHNAKE delivered the opinion of the court:

Defendant, William Burmeister, was convicted at a jury trial of one count of criminal sexual assault (Ill.Rev.Stat.1985, ch. 38, par. 12-13(a)(3)) and two counts of aggravated criminal sexual abuse (Ill.Rev.Stat.1985, ch. 38, par. 12-16(b).) On each count, he was sentenced to concurrent 4-year periods of probation and fined $25. The conditions of probation included concurrent 120-day terms of imprisonment followed by concurrent 150-day terms of periodic imprisonment (work release). Defendant appeals, contending (1) that the statutes which define the offenses of which he was convicted, and which determine the possible sentences therefor, are an unreasonable and arbitrary exercise of the State's police power in violation of the constitutional requirement of due process of law; (2) that he was deprived of his constitutional right to a fair and impartial jury; (3) that his two convictions of aggravated criminal sexual abuse should be vacated because they arose from the same act as his conviction of criminal sexual assault; and (4) that the condition of probation requiring him to serve a 150-day term of periodic imprisonment is illegal and should be vacated.

Because defendant does not maintain that he was not proved guilty beyond a reasonable doubt, an extended discussion of the facts is unnecessary. The complaining witness, S.H., was the 14-year-old stepdaughter of defendant. She testified that on August 9, 1984, defendant attempted to rape her. In the course of the attack, he fondled her vagina with his hand and "used his mouth" on her breasts and her vagina. Defendant testified, denying the accusations.

The offenses of which defendant was convicted were created by Public Act 83-1067. (1983 Ill.Laws 7251.) That act repealed various sex offense statutes and enacted statutes creating the offenses of criminal sexual assault, aggravated criminal sexual assault, criminal sexual abuse, and aggravated criminal sexual abuse. The new law, as amended, defines two forms of sexual activity: "sexual penetration" and "sexual conduct." Section 12-12(f) of the new law states:

" 'Sexual penetration' means any contact, however slight, between the sex organ of one person and the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person or of any animal or object into the sex organ or anus of another person, including but not limited to cunnilingus, fellatio or anal penetration. Evidence of emission of semen is not required to prove sexual penetration." (Ill.Rev.Stat.1985, ch. 38, par. 12-12(f).)

Section 12-12(e) of the new law provides:

" 'Sexual conduct' means any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused." (Ill.Rev.Stat.1985, ch. 38, par. 12-12(e).)

The criminal sexual assault offenses occur when the offender commits an act of "sexual penetration" under certain defined circumstances. The criminal sexual abuse offenses involve acts of "sexual conduct" or "sexual penetration." The assault offenses are punished more severely than the abuse offenses. Ill.Rev.Stat.1985, ch. 38, pars. 12-13, 12-14, 12-15, 12-16.

The constitutional requirement of due process of law places limitations on the State's exercise of its police power. A legislative enactment is required to bear a reasonable relationship to the public interest intended to be protected, and the means adopted must be a reasonable method of accomplishing the desired objective. (People v. Wick (1985), 107 Ill.2d 62, 89 Ill.Dec. 833, 481 N.E.2d 676.) Defendant maintains that the legislative objective of the new law was "to provide a coherent pattern for criminalizing sex offenses by creating a statutory framework which would cover the spectrum of sex offenses, including offenses not previously covered." The State does not dispute this contention, and we agree that creating a coherent pattern of sex offenses was one of the primary purposes of this legislation.

Defendant's challenge to the constitutionality of the new law has three parts. First, he notes that the statutory definition of "sexual penetration" is different from the ordinary meaning of that term. "Penetration" normally connotes an act of passing into or through. (See Webster's Third New International Dictionary 1670 (1966).) The statutory definition of "sexual penetration," however, insofar as it involves contact between the sex organ of one person and the sex organ, mouth or anus of another person, does not require a penetration in this ordinary sense. Only contact is required. Defendant argues that "[f]or the legislature to create crimes with reference to 'penetration' and yet go on to define 'penetration' as 'contact' makes no sense at all." He maintains that this "unreasonable" definition frustrates the legislative objective of creating a coherent pattern of sex offenses. We cannot agree. The legislature may define terms in a statute so that they have a broader or narrower meaning than they otherwise would have. (See People v. McCarty (1981), 86 Ill.2d 247, 56 Ill.Dec. 67, 427 N.E.2d 147; People v. Hope (1986), 142 Ill.App.3d 171, 96 Ill.Dec. 506, 491 N.E.2d 785.) The fact that the term "sexual penetration" has been given a broader meaning than its dictionary definition does not mean that a coherent pattern of sex offenses has not been created.

Defendant's second challenge to the new law involves a comparison of the statutory definitions of "sexual penetration" and "sexual conduct." He maintains that because the ordinary definition of "penetration" was not used, and "sexual penetration" includes mere "contact," the term is indistinguishable from "sexual conduct" which involves "touching or fondling." This alleged failure to draw a meaningful distinction between these two terms results, defendant maintains, in a failure to distinguish the more serious offenses from the less serious ones. For example, under section 12-13(a)(1) criminal sexual assault, a Class 1 felony, is committed when the accused commits an act of "sexual penetration" by the use of force or threat of force. (Ill.Rev.Stat.1985, ch. 38, par. 12-13(a)(1).) And under section 12-15(a)(1) criminal sexual abuse, a Class A misdemeanor, is committed when the accused commits an act of "sexual conduct" by the use of force or threat of force. (Ill.Rev.Stat.1985, ch. 38, par. 12-15(a)(1).) (Compare also Ill.Rev.Stat.1985, ch. 38, pars. 12-13(a)(2) and 12-13(a)(3) with Ill.Rev.Stat.1985, ch. 38, pars. 12-15(a)(2) and 12-16(b).) Defendant maintains that these subsections prohibit the same conduct, and that the legislative objective of creating a coherent pattern of sex offenses has, therefore, been lost.

We cannot agree. The weakness of defendant's argument is that he has focused on only a portion of the definition of "sexual penetration," i.e., the word "contact." He has ignored the requirement that the contact be between the sex organ of one person and the sex organ, mouth or anus of another person. The "touching or fondling" of the sex organs, anus, or breast of the victim included in the term "sexual conduct" may be done with the hands or any other part of the accused. Thus, there is a very real distinction between the terms "sexual penetration" and "sexual conduct," and in our judgment, the legislative determination that sex offenses involving "sexual penetration" are generally more serious than those involving "sexual conduct" is an eminently reasonable one. An improper act of "sexual penetration" would generally be a greater affront to the personal dignity of the victim than an improper act of "sexual conduct." The supposed similarity of the terms does not, therefore, render the statute an unreasonable exercise of the State's police power.

Defendant's final challenge to the new law involves the mental state required for the differing offenses. He notes that the definition of "sexual penetration" does not include any mental state. The definition of "sexual conduct," however, requires that the touching or fondling be either "intentional or knowing" and "for the purpose of sexual gratification or arousal of the victim or the accused." Defendant maintains that the offenses based on "sexual penetration," which are generally punished more severely, require no mental state, whereas the offenses based on "sexual conduct," which are generally punished less severely, require a mental state. He maintains that this "anomaly" renders the statute unconstitutional. He also maintains that because the definition of "sexual penetration" does not include a mental state, the new law "reaches too far and punishes innocent conduct" and is, therefore, invalid.

We cannot agree with defendant's contention. Section 4-9 of the Criminal Code provides that absolute liability (liability without a culpable mental state) obtains only if the crime is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or if the statute defining the offense clearly indicates a legislative purpose to impose absolute liability. (...