People v. Hillier

• Decision Date: 16 June 2009
• Docket Number: No. 3-07-0717.,3-07-0717.
• Citation: 910 N.E.2d 181,392 Ill. App. 3d 66
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Howard J. HILLIER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

910 N.E.2d 181

392 Ill. App. 3d 66

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Howard J. HILLIER, Defendant-Appellant.

No. 3-07-0717.

Appellate Court of Illinois, Third District.

June 16, 2009.

Jay Wiegman, Office of State Appellate Defender, Ottawa, IL, for Appellant.

Terry A. Mertel, Deputy Director State's Attorneys Appellate Prosecutor, Sawn D. Duffy, State's Attorneys Appellate Prosecutor, Ottawa, IL, John T. Pepmeyer, State's Attorney, Galesburg, IL, for Appellee.

Justice LYTTON delivered the opinion of the court:

Defendant, Howard Hillier, was charged with predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (2006)). The trial court found defendant guilty. Before sentencing, the trial court ordered defendant to participate in a sex offender evaluation. The trial court sentenced defendant to 20 years in prison based, in part, on the results of the sex offender evaluation. On appeal, defendant asks that (1) his conviction be reversed because the evidence was insufficient to prove him guilty of predatory criminal sexual assault of a child, and (2) his sentence be vacated because the trial court violated Illinois law and his fifth amendment rights by compelling him to submit to a sex offender evaluation. We affirm.

On June 28, 2006, defendant was charged by information with predatory criminal sexual assault of a child "in that from on or about February 15, 1998, to February 14, 2000, the said defendant, who was 17 years or older, committed an act of sexual penetration with J.L.J., who was under 13 years of age when the act was committed, in that the defendant placed his finger in the vagina of J.L.J. in violation of 720 ILCS 5/12-14.1(a)(1)."

A bench trial was held on December 19 and 20, 2006. At defendant's trial, J.L.J. testified that she was born in 1991. Defendant was her stepfather and "sexually abused" her for two years from approximately 1998 to 2000. The abuse began when J.L.J. was seven or eight years old. According to J.L.J., defendant "put his hands down my pants and he fondled my breasts." The prosecutor asked J.L.J. the following questions and received the following responses from J.L.J.:

"Q. Did he ever do anything else to you? Did he touch you in any way or place his finger anywhere?

A. Yes.

Q. Where did he place his finger?

A. My vagina."

Defendant testified that used to be married to J.L.J.'s mother. He denied ever "placing [his] finger inside J.L.J.'s vagina" or "fondling her breasts."

The trial court ruled that "the State proved its case beyond a reasonable doubt" and found defendant guilty of predatory criminal sexual assault of a child. The trial court directed the probation office to prepare a presentence investigation.

The State then filed a motion for a sex offender evaluation. The trial court granted the motion and entered an order requiring defendant to undergo a sex offender evaluation. In its order, the court stated: "That it was the intention of the Court, at the time the Defendant was found guilty of the offense in the above captioned case, to order a sex offender evaluation as well as a pre-sentence investigation."

Defendant underwent a sex offender evaluation, which was conducted by a clinical social worker at a mental health facility. During the evaluation, defendant denied sexually abusing J.L.J. As part of the evaluation, the social worker assessed defendant's risk to reoffend using STATIC 99, "an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders." The results of that assessment were as follows:

"Mr. Hillier scored a 6 on this risk assessment. Individuals with these characteristics, on average sexually reoffend at 39% over five years, 45% over 10 years and 52% over 15 years. The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 44% over 5 years, 51% over 10 years and 59% over 15 years.

Based on the STATIC 99 score this places Mr. Hillier in the high category or between the top 12% risk category relative to other male sex offenders."

At defendant's sentencing hearing, the trial court took into consideration the results of defendant's sex offender evaluation. The court explained: "This might be an entirely different situation had that assessment come back and said that you are not at risk of re-offending but this, in fact, indicated that you were a higher risk of reoffending because of everything contained within that statement." The trial court sentenced defendant to 20 years in prison.

I. SUFFICIENCY OF THE EVIDENCE

Defendant argues that he was not proven guilty beyond a reasonable doubt of predatory criminal sexual assault of a child because J.L.J. never testified that he placed his finger inside her vagina.

A defendant is guilty of predatory criminal assault of a child if he "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 5/12-14.1 (a)(1) (West 2006). "`Sexual penetration' means * * * any intrusion, however slight, of any part of the body of one person * * * into the sex organ or anus of another person." 720 ILCS 5/12-12(f) (West 2006). When a defendant challenges the sufficiency of the evidence, the appropriate standard of review is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Bell, 234 Ill.App.3d 631, 635-36, 175 Ill.Dec. 659, 600 N.E.2d 902, 906 (1992). Whether sexual penetration occurred is a question of fact to be determined by the trier of fact. People v. Herring, 324 Ill. App.3d 458, 464, 257 Ill.Dec. 727, 754 N.E.2d 385, 390 (2001); Bell, 234 Ill. App.3d at 636, 175 Ill.Dec. 659, 600 N.E.2d at 906.

It is the function of the trier of fact to determine credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. Herring, 324 Ill.App.3d at 464, 257 Ill.Dec. 727, 754 N.E.2d at 390. The trier of fact is entitled to draw all reasonable inferences from both circumstantial and direct evidence, including an inference of penetration. Herring, 324 Ill.App.3d at 465, 257 Ill.Dec. 727, 754 N.E.2d at 391. A jury may reasonably infer that an act of penetration occurred based on testimony that the defendant "rubbed," "felt" or "handled" the victim's vagina. See Bell, 234 Ill.App.3d at 636-37, 175 Ill.Dec. 659, 600 N.E.2d at 906-07. Such an inference is unreasonable only if the victim denies that penetration occurred. See Bell, 234 Ill.App.3d at 637, 175 Ill.Dec. 659, 600 N.E.2d at 907.

Here, there was sufficient evidence presented to establish that defendant sexually penetrated J.L.J. When J.L.J. was asked where defendant "placed his finger," she responded, "my vagina." J.L.J. never denied that defendant penetrated her. Based on J.L.J.'s statement, the trial court could have reasonably inferred that defendant penetrated J.L.J.'s vagina with his finger. See Bell, 234 Ill.App.3d at 636-37, 175 Ill.Dec. 659, 600 N.E.2d at 906-07. Thus, defendant was proven guilty beyond a reasonable doubt of predatory criminal sexual assault of J.L.J.

II. STATUTORY AND FIFTH AMENDMENT CLAIMS

Defendant also argues that his sentence should be vacated because the trial court violated state law, as well as his fifth amendment rights, when it ordered him to participate in a sex offender evaluation.

A. Statutory Claim

In Illinois, a presentence report must be completed in all felony cases, which sets forth certain information about the defendant. See 730 ILCS 5/5-3-2 (West 2006). When a felony sex offender is being considered for probation, he is required to submit to a sex offender evaluation as part of the presentence investigation. 20 ILCS 4026/16 (West 2006); 730 ILCS 5/5-3-2(b-5) (West 2006). A sex offender evaluation must include an assessment of the defendant's risk of reoffending, which is to be evaluated by a "validated risk instrument that is generally accepted by sex offender evaluators," such as "STATIC 99." 20 Ill. Adm.Code § f1905.240(k) (2006).

Here, defendant was convicted of predatory criminal sexual assault of a child, a non-probationary Class X felony. See 720 ILCS 5/12-14.1 (b)(1) (West 2006); 730 ILCS 5/5-5-3 (c)(2)(c) (West 2006). Nevertheless, the trial court ordered defendant to undergo a sex offender evaluation. Based on defendant's STATIC 99 score, defendant fell in the "high category" of recidivism. The trial court considered the results of the evaluation when sentencing defendant.

Defendant contends that the trial court should not have ordered him to submit to a sex offender evaluation because he was not eligible for probation. There is no requirement for a sex offender who is not eligible for probation to submit to a sex offender evaluation. However, the statute does not prohibit a trial court from ordering a sex offender evaluation for a defendant who is not eligible for probation. In fact, the statute specifically allows the trial court to order supplementary information to be included in the report. See 730 ILCS 5/5-3-2 (a)(6), (b) (West 2006). We see no reason to disallow a sex offender evaluation in non-probationary cases if the trial court deems it helpful in sentencing a defendant. The trial court did not err in requiring defendant to submit to the sex offender evaluation.

B. Fifth Amendment Claim

The fifth amendment to the United States Constitution provides that "[n]o person * * * shall be compelled in any criminal case to be a witness against himself." U.S. Const., amend. V. This prohibition permits an individual "`not to answer official questions put to him in any * * * proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.'" Minnesota v. Murphy, 465 U.S. 420, 426, 104 S.Ct. 1136, 1141, 79 L.Ed.2d 409, 418...