People v. Childs ( 2011 )

NO. 4-09-0822 Opinion Filed 3/4/11
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
FREDERICK T. CHILDS, ) No. 08CF426
Defendant-Appellant. )
) Honorable
) Charles G. Reynard,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the judgment of the court,
with opinion.
Presiding Justice Knecht and Justice McCullough con-
curred in the judgment and opinion.
OPINION
In May 2009, the trial court found defendant, Frederick
T. Childs, guilty of attempt (aggravated criminal sexual assault)
(720 ILCS 5/8-4(a), 12-14(a)(2) (West 2008)) and later sentenced
him to 12 years in prison.
Defendant appeals, arguing that (1) the State's charg-
ing instrument was defective; (2) the trial court erred by
finding that the State was required only to prove beyond a
reasonable doubt that he intended to commit the offense of
criminal sexual assault to convict him of attempt (aggravated
criminal sexual assault); and (3) the McLean County circuit clerk
lacked the authority to impose a (a) $10 drug-court fee and (b)
$15 children's-advocacy-center fee under sections 5-1101(d-5) and
5-1101(f-5), respectively, of the Counties Code (55 ILCS 5/5-
1101(d-5), (f-5) (West 2008)).
Because we accept the State's concession that the
circuit clerk erred by imposing certain fees, we affirm defen-
dant's conviction and sentence as modified and remand for issu-
ance of an amended sentencing judgment.
I. BACKGROUND
A. The Indictment
In April 2008, a grand jury indicted defendant, alleg-
ing that he committed the following offense:
"Attempted Aggravated Criminal Sexual
Assault[.]
In that the defendant knowingly and with
the intent to commit criminal sexual assault
by the use of force took a substantial step
toward the commission of that offense by
hitting the victim, C.B., about the body,
thereby causing bruising to C.B., and by
ordering C.B. to remove her pants, and by
removing his penis from his pants."
B. The Stipulated Evidence Presented to the Trial Court
At an April 2009 stipulated bench trial, the parties
agreed to the admission of (1) written statements by (a) the
victim, C.B., who was 17 years old at the time of the incident,
and (b) a Bloomington police officer; (2) a police crime lab
report; and (3) several photographs, which showed the following.
On April 4, 2008, C.B. decided to leave a party and
drive home. When C.B. informed her friends that she was leaving,
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defendant asked C.B. if she would give him a ride to his apart-
ment. C.B. reluctantly agreed, noting that despite being at
defendant's apartment with her friends on three previous occa-
sions, she only knew defendant by his nickname.
As C.B. drove, defendant repeatedly reached over and
rubbed C.B.'s thigh with his hand. Each time defendant touched
C.B., she pushed him away and told him to stop. When C.B.
arrived at defendant's apartment building, defendant suddenly
grabbed C.B.'s steering wheel and told C.B. that she was (1) "not
going anywhere" and (2) "was going to have sex with him that
night." C.B. cried and shouted that she was not going to have
sex with defendant and that she needed to go home. Defendant
responded, "You're not going anywhere, bitch," adding, "You're
gonna stay here and I'm gonna fuck you, bitch." Defendant then
shifted C.B.'s car into park and removed the ignition key.
Defendant unzipped his trousers, exposed his penis, and
told C.B., "You're gonna suck my dick, bitch." and "I'm gonna get
some head from you." C.B. refused, again yelling that she had to
go home. Defendant then (1) pulled his trousers up, (2) exited
the car, (3) dangled C.B.'s keys in front of her, and (4) taunted
C.B. by saying, "Now where you gonna go bitch?" When C.B.
attempted to make a call on her cellular phone, defendant re-
turned to C.B.'s car to stop her.
During the ensuing struggle, defendant wrestled the
phone from C.B. by repeatedly punching her in the face and body
with such force that it dislodged C.B.'s nose and ear piercings.
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With each punch, defendant yelled that C.B. "was going to have
sex with him." C.B. estimated that defendant continued hitting
her for at least four minutes until she relented because she was
in "significant pain" and believed that she had no other choice.
C.B. told defendant that she would comply with his demands
provided he stopped beating her and remained calm.
After defendant told C.B. that she "better do what the
fuck I say bitch," defendant gave C.B. back her keys and told her
to drive to an area near the rear entrance of his apartment
building. After C.B. complied, defendant again removed the car's
ignition key and ordered C.B. into the backseat. C.B. begged
defendant to use a condom that she had supplied, but defendant
responded that he did not need a condom because he intended to
sodomize her. Defendant later agreed to use a condom based on
C.B.'s persistent cries that he do so. As defendant applied the
condom, he told C.B. to remove her pants. C.B. told defendant
that he could not have sex with her because she was menstruating
but eventually complied with defendant's order (1) to remove her
tampon, which she threw out the window, and (2) position herself
on her hands and knees.
Although defendant then attempted to penetrate C.B.'s
vagina and anus, he succeeded only in pushing his flaccid penis
into C.B.'s buttocks and against the back of her thigh. He did
so with such force that he caused C.B. to repeatedly hit her head
against the car window. About 30 seconds later, defendant
stopped and ordered C.B. to put her clothes back on. Defendant
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told C.B. that (1) he had never done that before; (2) he "wanted"
her, but he knew C.B. was not "going to give it to [him]" so he
"had to take it"; and (3) she could not tell anyone about this
incident. Defendant then pulled up his trousers, threw the
condom out of the car window, and ran into his apartment. C.B.
then drove home and described defendant's actions to her parents.
The following day, police collected a tampon and a
condom near defendant's apartment. Testing later confirmed that
the deoxyribonucleic acid (DNA) on those items matched C.B.'s and
defendant's respective DNA profiles. Three admitted photographs
depicted (1) two separate bruises located on C.B.'s left cheek
and under her chin; (2) three separate bruises located on C.B.'s
right cheek, right ear, and forehead; and (3) a circular bruise
on C.B.'s thigh. After accepting the parties' stipulation, the
trial court continued the trial until the next month.
C. The Parties' Respective Arguments to the Trial Court
When defendant's stipulated bench trial resumed in May
2009, the parties informed the trial court that their pending
arguments did not concern the stipulated evidence previously
presented but instead, how the law applied to that evidence.
The State argued that the evidence established defen-
dant committed the offense of attempt (aggravated criminal sexual
assault) as alleged in its indictment. In particular, that
defendant intended to commit a criminal sexual assault that was
aggravated by bodily harm, which the State identified as the
bruising defendant had inflicted upon C.B. during his attempt to
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sexually assault her. With regard to that bodily harm, the State
asserted that it was not required to prove that defendant in-
tended to inflict bodily harm, but instead, that the bodily harm
was a natural and reasonably foreseeable consequence of the force
defendant used in attempting to commit a criminal sexual assault
on C.B.
In response, defense counsel argued that at the time of
the offense, the evidence established that defendant committed
the offense of attempt (criminal sexual assault) in that defen-
dant intended only to sexually penetrate C.B. by the use of
force. In particular, defense counsel, noting that the elements
of the aggravated-criminal-sexual-assault statute require the (1)
completion of the criminal sexual assault and (2) an accompanying
aggravating factor, contended that the State improperly "ele-
vated" defendant's act of attempt (criminal sexual assault) to
attempt (aggravated criminal sexual assault) by "retrospectively"
using C.B.'s bruises that later appeared, even though he had not
committed an act of sexual penetration. Defense counsel summa-
rized his argument as follows:
"It's my argument, your honor, that at
the time the force was used, it was just
that. It was use of force as described in
the statute defining criminal sexual assault
and therefore[,] since we're talking about an
uncompleted sex act, we are talking about an
attempted criminal sexual assault."
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D. The Trial Court's Findings and Sentence
Following arguments, the trial court made the following
findings:
"It is [the court's] belief and [its]
finding that the intent required by the at-
tempt statute is the intent to commit the
core, or predicate, offense of criminal sex-
ual assault. The intent to perpetrate bodily
harm, the bruises in this case, as an aggra-
vating factor is not a required, specific
intent. ***
The intent to perpetrate, or to inflict
the bruises, the bodily harm, in any event
[the court] think[s] is fairly established
beyond a reasonable doubt by *** the nature
of *** defendant's assaultive conduct and his
own statements. [The court] appreciate[s]
that the premeditative dimension of the spe-
cific intent might well be that [defendant]
wanted to--his intention, his premeditation
was to secure sexual relations, and that he
has not specifically contemplated the inflic-
tion of harm to do so, but his premeditation
[the court believes], based on [defendant's]
conduct and his statements, fairly estab-
lished his contemplation that [the infliction
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of harm] was a possible recourse to which he
would resort, and which he, indeed, resorted
to. ***
*** Defendant's statements belie the
inferences that there was no intent, because
he made statements indicating that he was
going to secure what he wanted that night by
force and by the infliction of injuries,
which were the natural[]and[]probable conse-
quences of the infliction of the force that
[defendant] inflicted. [The court finds]
that the retrospective analysis that [defense
counsel] reflects upon simply is not fore-
closed in these circumstances by virtue of
the fact that this is an attempt offense."
Thereafter, the court found defendant guilty of attempt (aggra-
vated criminal sexual assault).
E. The Trial Court's Sentencing Order and the
Circuit Clerk's Notice to Party
Following a July 9, 2009, sentencing hearing, the trial
court filed a sentencing order that imposed a 12-year prison
sentence with 123 days of sentencing credit for time defendant
spent in pretrial confinement. That same day, the court also
filed a supplemental sentencing order, imposing the following
financial obligations against defendant: (1) a $20 penalty under
section 10(c)(2) of the Violent Crime Victims Assistance Act
(Act) (725 ILCS 240/10(c)(2) (West 2008)), (2) a $200 DNA-analy-
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sis fee under section 5-4-3(j) of the Unified Code of Corrections
(Unified Code) (730 ILCS 5/5-4-3(j) (West 2008)), and (3) a $200
sexual-assault fine under section 5-9-1.7(b)(1) of the Unified
Code (730 ILCS 5/5-9-1.7(b)(1) (West 2008)).
On July 10, 2009, the circuit clerk filed a notice to
party, notifying defendant of the fines and court costs that had
been assessed against him. The circuit clerk's notice, which was
not signed by the trial court, included, in pertinent part, a (1)
$10 drug-court fee and (2) $15 children's-advocacy-center fee
pursuant to sections 5-1101(d-5) and 5-1101(f-5), respectively,
of the Counties Code.
On July 14, 2009, the trial court filed an amended
supplemental sentencing order again imposing only (1) a $20 Act
penalty, (2) a $200 DNA-analysis fee, and (3) a $200 sexual-
assault fine. On July 15, 2009, the circuit clerk filed another
notice to party, which was not signed by the trial court, impos-
ing, in pertinent part, (1) a $10 drug-court fee and (2) a $15
children’s-advocacy-center fee against defendant.
This appeal followed.
II. ANALYSIS
Defendant argues that (1) the State's charging instru-
ment was defective; (2) the trial court erred by finding that the
State was required only to prove he intended to commit criminal
sexual assault to convict him of attempt (aggravated criminal
sexual assault); and (3) the circuit clerk lacked the authority
to impose a (a) $10 drug-court fee and (b) $15 children's-
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advocacy-center fee under sections 5-1101(d-5) and 5-1101(f-5),
respectively, of the Counties Code. We address defendant's
contentions in turn.
A. Defendant's Claim Regarding the
State's Charging Instrument
Defendant argues that the State's charging instrument
was defective. Specifically, defendant contends that the State's
indictment failed to allege that he had the requisite intent to
commit aggravated criminal sexual assault and as consequence,
failed to apprise him of the offense with sufficient specificity
to prepare his defense. We disagree.
The timing of a challenge to the charging instrument is
significant in determining whether a defendant is entitled to
relief. People v. Davis, 217 Ill. 2d 472, 478, 841 N.E.2d 884,
888 (2005). When a defendant challenges the sufficiency of the
charging instrument for the first time on appeal, "'a reviewing
court need only determine whether the charging instrument ap-
prised the defendant of the precise offense charged with enough
specificity to prepare his or her defense and allow pleading a
resulting conviction as a bar to future prosecution arising out
of the same conduct.'" People v. Burke, 362 Ill. App. 3d 99,
103, 840 N.E.2d 281, 284 (2005) (quoting People v. Maggette, 195
Ill. 2d 336, 347-48, 747 N.E.2d 339, 346 (2001)). In other
words, the question on appeal is whether the defect in the
charging instrument prejudiced the defendant in preparing his
defense. Davis, 217 Ill. 2d at 479, 841 N.E.2d at 888. In
making this determination, a reviewing court may refer to the
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record. Maggette, 195 Ill. 2d at 348, 747 N.E.2d at 346.
In support of his contention that the State's indict-
ment prejudiced him, defendant asserts that because the State's
indictment charged, in part, that he "knowingly and with the
intent to commit criminal sexual assault by the use of force"
instead of charging him with "knowingly and with the intent to
commit aggravated criminal sexual assault by the use of force,"
the indictment failed to apprise him of the precise offense
charged with sufficient specificity to prepare his defense.
However, defendant fails to specify how the omission of the word
"aggravated" adversely affected his defense by articulating the
actions his counsel would have otherwise taken if the State's
indictment had included that word. See Davis, 217 Ill. 2d at
479, 841 N.E.2d at 888 (to prevail on a challenge to the charging
instrument for the first time on appeal, a defendant must show
prejudice in the preparation of his defense). Moreover, the
record belies defendant's claim that his counsel was under the
misapprehension that the State "had only charged, and could only
prove that [defendant] had the intent to commit the included
offense of criminal sexual assault."
In this case, the record shows that at the start of
defendant's April 2009 stipulated bench trial, defense counsel
agreed with the State that the sole issue before the trial court
concerned whether the stipulated evidence presented proved
defendant guilty of attempt (aggravated criminal sexual assault),
as the State had alleged in its indictment, or attempt (criminal
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sexual assault), as defense counsel advocated. In this regard,
the record also shows that defendant's counsel was not only aware
of the State's position with regard to the offense charged in the
indictment, but also prepared in that he argued zealously in
opposition to that position. Accordingly, we reject defendant's
argument that the State's indictment failed to apprise him of the
offense with sufficient specificity to prepare his defense.
Further, defendant's conviction constitutes a bar to a future
prosecution arising out of the same conduct, and defendant does
not even argue otherwise.
B. Defendant's Claim That the Trial Court Erred
Defendant next argues that the trial court erred by
finding that the State was required to prove beyond a reasonable
doubt only that he intended to commit the offense of criminal
sexual assault to convict him of attempted aggravated criminal
sexual assault. We disagree.
1. The Offense of Attempt
Section 8-4(a) of the Criminal Code of 1961 (Criminal
Code), provides as follows:
"(a) Elements of the Offense.
A person commits an attempt when, with
intent to commit a specific offense, he does
any act which constitutes a substantial step
toward the commission of that offense." 720
ILCS 5/8-4(a) (West 2008).
2. The Offense of Aggravated Criminal Sexual Assault
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Section 12-14(a)(2) of the Criminal Code provides as
follows:
"(a) The accused commits aggravated
criminal sexual assault if he or she commits
criminal sexual assault and any of the fol-
lowing aggravating circumstances existed
during *** the commission of the offense:
***
(2) the accused caused bodily
harm[.]" 720 ILCS 5/12-14(a)(2)
(West 2008).
(A person commits the offense of criminal sexual assault if he
"commits an act of sexual penetration by the use of force or
threat of force." 720 ILCS 5/12-13(a)(1) (West 2008). "'Sexual
penetration' means any contact, however slight, between the sex
organ or anus of one person by an object, the sex organ, mouth[,]
or anus of another person, or any intrusion, however slight, of
any part of the body of one person or *** object into the sex
organ or anus of another person, including but not limited to
cunnilingus, fellatio[,] or anal penetration." 720 ILCS 5/12-12
(f) (West 2008)).
3. The Trial Court's Findings
In support of his argument that the trial court erred,
defendant contends that the offense of attempt (aggravated
criminal sexual assault) required the State to prove that he
intended to commit the offense of aggravated criminal sexual
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assault instead of merely proving that he intended to commit
criminal sexual assault. Defendant's contention is misguided.
As previously outlined, the elements of attempt are (1)
an intent to commit the specific offense and (2) an overt act
constituting a substantial step toward the commission of that
offense. People v. Rincon, 387 Ill. App. 3d 708, 723, 900 N.E.2d
1192, 1205 (2008). Again, a person commits aggravated criminal
sexual assault when he commits criminal sexual assault--that is,
sexual penetration by the use of force--accompanied by a statuto-
rily enumerated aggravating factor during the commission of the
criminal sexual assault. 720 ILCS 5/12-14(a) (West 2008).
Because the statutory offense of aggravated criminal sexual
assault does not prescribe a mental state, the mental state of
intent, knowledge, or recklessness must be implied. People v.
Anderson, 325 Ill. App. 3d 624, 633, 759 N.E.2d 83, 91 (2001).
If, during the course of a sexual assault, bodily harm
is caused to the victim, it is unnecessary for the State to prove
that such harm was inflicted knowingly or intentionally. People
v. Russell, 234 Ill. App. 3d 684, 688, 600 N.E.2d 1202, 1205
(1992). "An inadvertent or accidental infliction of simple
bodily harm will nonetheless subject the assailant to conviction
of aggravated criminal sexual assault." Id.
In this case, the trial court noted that the State was
required to prove defendant intended to commit the offense of
aggravated criminal sexual assault. However, the court further
explained that, in accordance with the aggravated-criminal-sexual
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assault statute, the State was required to prove beyond a reason-
able doubt that defendant intended to commit the offense of
criminal sexual assault--which defendant admitted to the court he
committed--and that the stipulated evidence presented proved
beyond a reasonable doubt that defendant inflicted bodily harm
during his attempt to sexually assault C.B.
In other words, the trial court first concluded that
the State did not need to prove that defendant intended to
inflict bodily harm upon C.B. to prove attempt (aggravated
criminal sexual assault) as long as the State proved--as it did--
that defendant intended to commit a sexual assault upon C.B. and,
in the process, inflicted bodily harm upon her. We agree and
view this result as consistent with Russell.
Although this analysis is sufficient to decide this
issue, we further note that the trial court also concluded that
if the State did need to prove that defendant intended to inflict
bodily harm upon C.B. to prove attempt (aggravated criminal
sexual assault), the evidence was sufficient to do so. Again, we
agree.
Here, the stipulated evidence showed that defendant
punched C.B. repeatedly until she acquiesced to defendant's
sexual demands. In so doing, he inflicted bodily harm in the
form of bruises on C.B.'s face and thigh. See People v. Evans,
209 Ill. 2d 194, 209, 808 N.E.2d 939, 947 (2004) (a reviewing
court "[w]ill not reverse a conviction unless the evidence is so
unreasonable, improbable[,] or unsatisfactory that it raises a
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reasonable doubt of defendant's guilt").
C. Defendant's Claim Regarding the Circuit
Clerk's Imposition of Certain Fees
1. The Imposition of the Drug-Court Fee and
Children's-Advocacy-Center Fee
Defendant also argues that the circuit clerk lacked the
authority to impose a (1) $10 drug-court fee and (2) $15
children's-advocacy-center fee under sections 5-1101(d-5) and 5-
1101(f-5), respectively, of the Counties Code. The State con-
cedes that the circuit clerk erred by imposing the fees and we
accept the State's concession.
Sections 5-1101(d-5) and 5-1101(f-5) of the Unified
Code provide as follows:
"Additional Fees to finance court system. A
county board may enact by ordinance or reso-
lution the following fees:
* * *
(d-5) A $10 fee to be paid by the defen-
dant on a judgment of guilty *** under Sec-
tion 5-9-1 of the [Unified Code] to be placed
in the county general fund and used to fi-
nance the county mental health court, the
county drug court, or both.
* * *
(f-5) In each county in which a Chil-
dren's Advocacy Center provides services, the
county board may adopt a mandatory fee of
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between $5 and $30 to be paid by the defen-
dant on a judgment of guilty *** under Sec-
tion 5-9-1 of the [Unified Code] for a felony
***." 55 ILCS 5/5-1101(d-5), (f-5) (West
2008).
See People v. Williams, No. 1-09-1667, slip op. at 11 (Ill. App.
Dec. 2, 2010), (concluding that the fees imposed under sections
5-1101(d-5) and 5-1101(f-5) are fines because they are "not
intended to specifically reimburse the State for costs it has
incurred in prosecuting a defendant"); see also People v. Folks,
No. 4-09-0579, slip op. at 10-11 (Ill. App. Dec. 28, 2010),
(noting that the McLean County Board enacted the drug-court fee
on September 1, 2006, and the children's-advocacy-center fee on
June 1, 2008, and concluding both assessments are mandatory
fines).
In People v. Swank, 344 Ill. App. 3d 738, 747-48, 800
N.E.2d 864, 871 (2003), this court defined the proper role of
judicial and nonjudicial members in imposing statutory fines as
follows:
"The imposition of a fine is a judicial
act. 'The clerk of the court is a nonjudi-
cial member of the court and, as such, has no
power to impose sentences or levy fines.'
[Citation.] Instead, the circuit clerk has
authority only to collect judicially imposed
fines. [Citation.]"
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In this case, the record reveals that the trial court
did not impose either (1) a $10 drug-court fee or (2) a $15
children's-advocacy-center fee, which later appeared on the
circuit clerk's July 2009 notice to party. Thus, because we have
previously held that the drug-court fee and children's-advocacy-
center fee are both mandatory fines, those assessments cannot be
imposed by the circuit clerk. Accordingly, we (1) vacate the
fines imposed by the circuit clerk and (2) reimpose the $10 drug-
court fee and $15 children's-advocacy-center fee under sections
5-1101(d-5) and 5-1101(f-5), respectively, of the Counties Code.
See Folks, slip op. at 13, (vacating and reimposing a $10 drug-
court fee and $15 children's-advocacy-center fee, concluding that
this court can reimpose mandatory fines).
In addition, we note that because the record shows that
defendant spent 123 days in pretrial confinement on a bailable
offense, he is entitled to receive a total credit of $25 to be
applied to his $10 drug-court fee and $15 children's-advocacy-
center fee pursuant to section 110-14 of the Code of Criminal
Procedure of 1963 (Criminal Procedure Code) (725 ILCS 5/110-14
(West 2008)).
2. The Trial Court's Imposition of a
$20 Act Assessment
Section 10(b) of the Act mandates the imposition of an
additional financial penalty when a defendant is convicted of a
felony. 725 ILCS 240/10(b) (West 2008). If the trial court
imposes fines on a defendant convicted of a felony, the addi-
tional Act penalty is calculated at "$4 for each $40, or fraction
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thereof, of fine imposed." 725 ILCS 240/10(b) (West 2008). If
no fines are imposed by the court, the additional Act penalty is
$25 for crimes of violence and $20 for any other felony. 725
ILCS 240/10(c) (West 2008). In addition, any Act penalty imposed
is not subject to the $5-per-day credit for incarceration on a
bailable offense under section 110-14 of the Criminal Procedure
Code. 725 ILCS 240/10(c) (West 2008).
Here, because this court imposed a $10 drug-court fee
and $15 children's-advocacy-center fee and the trial court had
previously imposed a $200 sexual-assault fine and $200 DNA-
analysis fee, defendant was assessed $425 in fines. See People
v. Long, 398 Ill. App. 3d 1028, 1034, 924 N.E.2d 511, 516 (2010)
(in which this court--in a matter of first impression--concluded
that the DNA-analysis fee is a fine because it does not reimburse
the State for costs associated with prosecuting a defendant).
Therefore, we vacate the court's imposition of a $20 penalty
under section 10(c) of the Act and impose a $44 penalty under
section 10(b) of the Act ($425 divided by $40 equals 10.6; 10
plus a "fraction thereof" multiplied by $4 equals $44).
III. CONCLUSION
For the reasons stated, we (1) affirm defendant's
conviction and sentence; (2) vacate the circuit clerk's imposi-
tion of fines; (3) impose a $10 drug-court fee and $15
children's-advocacy-center fee under sections 5-1101(d-5) and 5-
1101(f-5), respectively, of the Counties Code, which are offset
by credit for the time defendant served in pretrial custody; (4)
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vacate the trial court's imposition of a $20 Act penalty under
section 10(c) of the Act, and (5) impose a $44 Act penalty under
section 10(b) of the Act. We remand for issuance of an amended
sentencing judgment consistent with this opinion. As part of our
judgment, we award the State its $50 statutory assessment against
defendant as costs of this appeal.
Affirmed as modified and remanded with directions.
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