People v. Douglas

• Decision Date: 08 April 2008
• Docket Number: No. 2-06-0334.,2-06-0334.
• Citation: 886 N.E.2d 1232
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony DOUGLAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

886 N.E.2d 1232

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony DOUGLAS, Defendant-Appellant.

No. 2-06-0334.

Appellate Court of Illinois, Second District.

April 8, 2008.

Thomas A. Lilien, Deputy Defender, and Jack Hildebrand (Court-appointed), Office of the State Appellate Defender, Elgin, for Anthony Douglas.

Joseph E. Birkett, Du Page County State's Attorney, Wheaton, Lawrence M. Bauer, Deputy Director, Sally A. Swiss, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice O'MALLEY delivered the opinion of the court:

Defendant, Anthony Douglas, was convicted of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)), following a stipulated bench trial. Defendant appeals, contending that the trial court erred by denying him the opportunity to raise the defense of mistake of age to the charge of predatory criminal sexual assault of a child. Defendant also contends that the judgment orders should be corrected to reflect the proper provision under which he was convicted. We affirm as modified.

Defendant was charged with four counts of predatory criminal sexual assault of a child, all stemming from his December 20, 2004, liaison with the victim, C.V. All of the charges alleged that defendant was older than 17 years of age and that he committed an act of sexual penetration with C.V., who was under 13 years of age.

Before trial, the State filed a motion in limine seeking to preclude defendant from raising the defense of mistake of age, in that he believed that C.V. was 13 years or older. At the hearing on the motion in limine, defendant argued that, if there was no mental state associated with the age of the victim, then the offense effectively would be a strict liability offense. Defendant relied on Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288 (1952), which, he argued, expressed the preference that serious offenses not be strict liability offenses. The State argued that Illinois case law and the structure of the Criminal Code demonstrate that the legislature clearly intended that the age of the victim not be subject to a mental state and that this rendered the mistake-of-age defense unavailable for the offense of predatory criminal sexual assault of a child. The trial court agreed with the State and held that the defense of mistake of age was unavailable to defendant.

Subsequently, in exchange for a sentencing cap of 18 years, defendant agreed to participate in a stipulated bench trial. The evidence at the stipulated bench trial included the police report from the Du Page County sheriff's office, a stipulation that the victim would testify that defendant placed his penis in her vagina, evidence that defendant's DNA was found on the person of the victim after the incident, and a videotape of defendant's statement to police. Defendant argued that if he had been allowed to present a mistake-of-age defense, then he would have presented evidence to establish that he believed the victim to be 15 years of age. The trial court found defendant guilty, noting that he was 31 years of age and the victim was 12 years of age and that the victim's statements in the police report were remarkably consistent with defendant's videotaped statement. The trial court sentenced defendant to a 15-year term of imprisonment. Defendant timely appeals.

On appeal, defendant notes that the judgment orders and mittimus do not properly reflect the provision under which defendant was convicted, and he argues that they must be corrected. The State agrees. Accordingly, we correct the mittimus and judgment orders in this case to show that defendant was convicted of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2004)). See 134 Ill.2d R. 615(b)(1) (appellate court may correct trial court orders as necessary); People v. Mitchell, 234 Ill.App.3d 912, 921, 176 Ill.Dec. 218, 601 N.E.2d 916 (1992) (appellate court may correct mittimus and sentencing orders without remanding the cause to the trial court).

Substantively, defendant contends that the trial court erred in construing the predatory-criminal-sexual-assault-of-a-child statute to foreclose the defense of mistake of age. According to defendant, the text of the pertinent portion of the statute does not clearly demonstrate the legislature's intent to make the victim's age an absolute or strict liability element. Defendant argues that some mental state is generally preferred in criminal offenses, especially serious ones. By contrast, strict liability offenses generally are mala prohibita, are punished by fines, and do not particularly harm the defendant's reputation. Because predatory criminal sexual assault of a child is such a serious crime defendant argues that a mental state should be imposed on the victim's-age element — in particular, the State should have to prove that the defendant knew that the victim was underage, in this case, under the age of 13. Defendant also notes that the term "predatory" connotes some sort of intentional predation upon underage victims — a status he argues he did not possess, because he believed the victim to be 15 years of age. Thus, according to defendant, the very name of the offense requires that the victim's-age element possess a mental state.

The State counters that, both in Illinois and in other jurisdictions, serious sexual crimes have not required mental states as to the victim's age in order to pass muster. For example, statutory rape offenses have never required a mental state as to the victim's age. The State also notes that predatory criminal sexual assault of a child requires the mental state of intent related to the sexual penetration element, and thus it is not a strict liability offense. The State further notes that, in addition to the protection offered to very young children by placing on the offender the risk that he is engaging in sexual activity with an underage victim, the sexual offense statutes spell out available defenses, including mistake of age where the defendant believes the victim to be 17 years of age or older. Such a defense is not specified for the predatory-criminal-sexual-assault-of-a-child statute, and, from this, the State concludes that the legislative intent was not to offer such a defense. Accordingly, the State urges us to reject defendant's contentions and hold that mistake of age is not a viable defense to a charge of predatory criminal sexual assault of a child.

We begin our consideration by first determining the standard of review to employ in this case. We are asked here to interpret the terms of a statute. As this is a legal question, we review de novo the trial court's decision. People v. Cordell, 223 Ill.2d 380, 389, 307 Ill.Dec. 669, 860 N.E.2d 323 (2006). The fundamental rule of statutory construction is to ascertain and give effect to the intent of the legislature, the best indication of which is the language of the statute accorded its plain and ordinary meaning. Cordell, 223 Ill.2d at 389, 307 Ill.Dec. 669, 860 N.E.2d 323. In considering the statutory language, the court should consider the statute in its entirety and keep in mind the subject addressed by the statute as well as the legislature's apparent objective in enacting the statute. Cordell, 223 Ill.2d at 389, 307 Ill.Dec. 669, 860 N.E.2d 323.

We begin with the statute itself. Section 12-14.1(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/12-14.1(a) (West 2004)) provides:

"The accused commits predatory criminal sexual assault of a child if:

(1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed; or

(1.1) the accused was 17 years of age or over and, while armed with a firearm, commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed; or

(1.2) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed and, during the commission of the offense, the accused personally discharged a firearm; or

(2) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed and the accused caused great bodily harm to the victim that:

(A) resulted in permanent disability; or

(B) was life threatening; or

(3) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed and the accused delivered (by injection, inhalation, ingestion, transfer of possession, or any other means) to the victim without his or her consent, or by threat or deception, and for other than medical purposes, any controlled substance." 720 ILCS 5/12-4.1(a) (West 2004).

Defendant here was charged with violating section 12-14.1(a)(1) of the Code, committing "predatory sexual assault of a child" where "the accused was 17 years of age or over and commit[ted] an act of sexual penetration with a victim who was under 13 years of age when the act was committed." 720 ILCS 5/12-14.1(a)(1) (West 2004).

Before 1996, the exact offense with which defendant was charged was codified as aggravated criminal sexual assault. See, e.g., Ill.Rev.Stat.1985, ch. 38, par. 12-14(b)(1) ("The accused commits aggravated criminal sexual assault if: (1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed"); Ill.Rev.Stat.1987, ch. 38, par. 12-14(b)(1) ("The accused commits aggravated criminal sexual assault if: (1) the accused was 17 years of age or over and commits an act of sexual penetration with a victim who was under 13 years of age when the act was committed"); 720 ILCS 5/12-14(b)(1) (West 1994) ("The accused commits aggravated criminal sexual assault if: (1) the accused...