In re M.G. , 2024 IL App (1st) 232106 ( 2024 )

2024 IL App (1st) 232106No. 1-23-2106
Opinion filed August 26, 2024.
First Division
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
In re M.G., a Minor ) Appeal from the
) Circuit Court of
(The People of the State of Illinois, ) Cook County.
)
Petitioner-Appellee, )
)
v. ) No. 22 JD 00555
)
M.G., )
) The Honorable
Respondent-Appellant). ) Steve Bernstein,
) Judge Presiding.
______________________________________________________________________________
JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment and
opinion.
OPINION
¶1 Following a bench trial, respondent M.G. was found guilty of the aggravated criminal
sexual abuse of his 10-year-old niece S.G., ordered to register as a sex offender (see 730 ILCS
150/1 et seq. (West 2018)), and consequently he was adjudicated a delinquent minor pursuant to
the Juvenile Court Act of 1987 (Act) (705 ILCS 405/1-1 et seq. (West 2018)). On appeal,
respondent contends that the State failed to prove him guilty beyond a reasonable doubt because
No. 1-23-2106
there was insufficient evidence that he touched the S.G.’s breast, or that he did so for the purpose
of sexual gratification. Respondent also contends that his constitutional right to equal protection
was violated because he received harsher treatment under the law due to his status as an “uncle”
of the victim. We affirm.
¶2 BACKGROUND
¶3 Respondent was arrested in April 2019, after it was discovered that he had sexually
abused his two biological nieces, S.G. (at age 10) and F.G. (at age 13), over the course of several
months between August 2018 and December 2019, when respondent was ages 15 and 16. In the
adjudication petition, the State subsequently charged respondent with the criminal sexual assault
(Count 1) and aggravated criminal sexual abuse (Count 3) of his minor niece, S.G. and the
criminal sexual assault (Count 2) of his minor niece, F.G. The State specifically alleged that
during that time, M.G. “committed an act of sexual penetration upon S.G.,” in that “he put his
hand to the sex organ of S.G.” (Count 1), and he knowingly “put his hand to [the] breast of S.G.
for the purpose of [his] sexual arousal or gratification” (Count 3). See 720 ILCS 5/11-1.20(a)(3)
(West 2018) (defining criminal sexual assault); 720 ILCS 5/11-1.60(b) (West 2018) (defining
aggravated criminal sexual abuse). In addition, the State alleged that during that same period,
respondent “committed an act of sexual penetration upon F.G.,” in that he “put his hand to the
sex organ of F.G.” (Count 2). See 720 ILCS 5/11-1.20(a)(3) (West 2018) (defining criminal
sexual assault).
¶4 At trial, the State adduced the following testimony by both S.G. and F.G. in support of
those charges. S.G. testified in English and also in Spanish through an interpreter, while F.G.
testified only in Spanish through the interpreter. In 2018, S.G. , F.G. and their immediate family
(totaling five) moved from Mexico to their grandparents’ two-bedroom apartment in the Chicago
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suburbs. Also staying in this crowded apartment were the girls’ aunt, respondent, their two
grandparents, and their grandmother’s cousin. 1 People slept in the two bedrooms and also in the
living room.
¶5 At that time, S.G. and F.G., along with their two siblings, mom, aunt, and M.G. shared a
bedroom, sleeping on the bed or on the floor. F.G. elaborated that whoever grabbed the bed first
could sleep there, and S.G. also stated the sleeping arrangement was random. In early August
2018, S.G. and F.G.’s mother was hospitalized for several weeks.
¶6 S.G. testified that during this period and into 2019, respondent touched her
“inappropriately,” explaining that respondent touched her more than once while she and the
others were sleeping in the bedroom, and always when she was on the floor. S.G. testified that
respondent would start by touching her belly and then he would lower one hand (she was not
sure which) under her pajamas and underwear to touch her vagina on the outside. At that point
during S.G.’s testimony, the trial court stated, “I know it’s hard, but you’ve got to talk about
this[,] okay? Just relax,” and later asked S.G. to talk “as loud as” she could. In Spanish, and
presumably with the aid of an interpreter, S.G. clarified that respondent’s hand “was never inside
[her vagina]; it was always, like, on top, above.” S.G. testified that she remembered one time
distinctly because she was awake, although she did not think anyone else was, and it was dark at
night. S.G. added in Spanish that, in that instance, respondent touched her “on the top part, the
pubic area,” in addition to her stomach. S.G. estimated that respondent committed the abuse
more than five times, always touching her under her clothes. When it happened, she would go to
the bathroom and close the door because that made her “feel safe.” She would stay there “as long
1F.G. testified that eight people (which included herself) lived in the apartment, but S.G.’s
testimony identifying individuals indicates it was 10 people.
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as [she] had to,” sometimes falling asleep on the bathroom floor, because she did not want to be
near respondent.
¶7 Respondent also took S.G.’s hand and put it on his stomach, then attempted to move her
hand lower to touch his penis, but she pulled her hand away. S.G. did not say anything when
respondent touched her, nor did respondent make any sounds or say anything. S.G. would let
respondent know she was awake by moving her body away from him. Although S.G. initially
testified that this happened “just one time,” in response to the State’s question, S.G. later testified
that it happened about five times. S.G. testified that she did not tell anyone about the abuse
because her mother was in the hospital, she was scared to tell her older sister, and she did not
have a close relationship with her grandparents. In fact, she felt scared and did not know what to
do or who to talk to. She wondered why a member of her own family would touch her “like
that.”
¶8 Near the end of S.G.’s direct examination, the State noted that they had some “trouble
with translation a little bit earlier,” then stated, “when you spoke to the interpreter, we talked
about parts of your body that the minor Respondent touched. Can you tell me those parts again,
please? Which parts of your body did he touch?” S.G. asked if she could respond in Spanish,
which was allowed, and she testified, “[m]y vagina, my breasts, and sometimes my belly.”
¶9 On cross-examination, S.G. clarified that the abuse occurred one or two times when her
mother was also present in the bedroom. The defense proposed that during her forensic interview
conducted after reporting the abuse, S.G. had identified a different person, “Miguel Cruz
Oliveras,” as the uncle who “did all the touching,” but S.G. denied that assertion. She also denied
that two uncles resided in the apartment; instead, one was “like a cousin” of her grandmother’s,
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not an uncle. However, he slept in the other bedroom. 2 On re-direct examination, S.G. explained
that she knew it was respondent who touched her, even though it was dark, because he was the
only person sleeping next to her.
¶ 10 F.G. testified next that one night in August 2018, while her mother was hospitalized,
M.G. lay between F.G. and another person on the bed. Respondent touched F.G.’s stomach and
then lowered his right hand under her shirt, pants, and underwear to touch her “intimate parts,”
by which she meant her vagina “within the lips.” Respondent touched her for about five minutes.
Respondent did not say anything or make any sounds. F.G. moved her body so that respondent
would know that she was not fully asleep. F.G. thought that maybe it was a dream because she
was half asleep, but when she awoke, she knew “something bad had happened,” and she did not
feel safe. F.G. explained that she did not understand what was happening to her because she was
very young and respondent was a family member. F.G. did not tell anyone about it at first
because she feared they might not believe her and because her mother was absent at the time.
¶ 11 In 2019, the family moved to a shelter, but returned to their grandparents’ home in 2020.
By then, they had different sleeping arrangements, and M.G. did not sleep in the same room with
S.G. or F.G. In 2021, S.G. divulged to her sister what had happened, and F.G. also eventually
told S.G. about the abuse incident. The family moved from their grandparents’ home into their
own home in June or July 2021. In 2022, the sisters then told their mother of the abuse. F.G.
explained that they decided to tell their mother because respondent was potentially going to live
with them. Afterwards, the sisters reported the matter to the police and also spoke a forensic
interviewer. At trial, both S.G. and F.G. made in-court identifications of respondent.
2F.G. also stated on cross that “[a] cousin of my mom’s” stayed in the other bedroom.
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¶ 12 On cross, F.G. acknowledged telling the forensic interviewer that she was asleep when
M.G. touched her. She thought the incident with M.G. was a dream until S.G. reported her own
abuse. On re-direct, F.G. confirmed that she knew it was not a dream because when she awoke
the next day, she knew something bad had happened, and because her sister’s report corroborated
the matter. F.G. further stated that she knew M.G. was the perpetrator because they slept in the
same bed that night, and she saw him before she went to sleep and when she awoke in the
morning.
¶ 13 The State rested, and the defense moved for a directed verdict, which was denied. The
respondent rested without presenting evidence, and the parties presented closing arguments. The
defense argued the victims conspired in their reporting of the abuse and there was no evidence of
penetration or sexual gratification to sustain the counts. The defense did not raise any
constitutional issue.
¶ 14 Following evidence and argument, the court issued the following findings. Regarding
F.G., the court was convinced that sexual abuse occurred, but found the State failed to establish
beyond a reasonable doubt the offense of criminal sexual assault. The court specifically found
F.G.’s testimony was weak because she was trying to “protect her mom” and thus “couched her
testimony in such a way” that it was simply insufficient to satisfy the State’s burden. The court
stated, “[F.G.] did everything in her power to make it seem as if it didn’t happen for her own
well-being and for her mother’s well-being.”
¶ 15 Nevertheless, as to S.G., the court found her testimony “very credible” and there was
“[n]o question” that S.G., at 10 years old, was sexually abused by her uncle in violation of her
trust. The court noted S.G. was so frightened by the abuse that she had to leave the room and hid
in the bathroom. The court found that the abuse took place multiple times and, contrary to the
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defense argument, denied that F.G. or S.G. conspired against respondent in reporting the sexual
abuse. The court thus determined the evidence established beyond a reasonable doubt that
respondent was guilty of both the criminal sexual assault and aggravated criminal sexual abuse
of S.G. Accordingly, the court adjudicated respondent delinquent for those crimes and placed
him on electronic monitoring.
¶ 16 Respondent filed a motion to reconsider that finding, again contending the State failed to
establish beyond a reasonable doubt evidence of penetration to sustain the criminal sexual assault
of S.G. Respondent also maintained there was no evidence that he touched S.G. for the purpose
of sexual gratification to sustain the aggravated criminal sexual abuse offense.
¶ 17 After hearing arguments and again reviewing the evidence, the court reversed its decision
on Count 1, and found respondent not guilty of criminal sexual assault. The court reiterated that
although it believed both victims as to the abuse, the evidence of penetration needed for criminal
sexual assault was insufficient. However, the court sustained its guilty finding as to the
aggravated criminal sexual abuse of S.G., Count 3, first reiterating that S.G. was a very credible
witness, and respondent’s intent was clear. The court declared that, considering the totality of the
facts, including the “time of the day, the location of the touching, the fact that [respondent] did,
in fact, touch under two layers of clothing,” there was no doubt that respondent touched S.G. “for
his and/or her sexual gratification.”
¶ 18 The court thus upheld its delinquency finding on Count 3, and as respondent was about to
turn 21, the court lifted the electronic monitoring, mandated DNA testing, and ordered
respondent to register as a sex offender.
¶ 19 This appeal followed.
¶ 20 ANALYSIS
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¶ 21 Sufficiency of the Evidence Claim
¶ 22 When considering a challenge to a criminal conviction based upon the sufficiency of the
evidence, we must determine whether, after viewing the evidence in a light most favorable to the
State, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). In that sense, our function is
not to retry the defendant or substitute our judgment for that of the trier of fact. Id. Rather, the
trier of fact remains responsible for making determinations regarding the credibility of witnesses,
the weight to be given their testimony, and the reasonable inferences to be drawn from the
evidence. People v. Wright, 2017 IL 119561, ¶ 70. A conviction will not be set aside on appeal
unless the evidence is so unreasonable, improbable, or unsatisfactory that there remains a
reasonable doubt of the defendant's guilt. Id. This same reasonable doubt standard applies to
juvenile delinquency proceedings. In re Jonathon C.B., 2011 IL 107750, ¶ 47.
¶ 23 In this case, as set forth, respondent was found guilty of aggravated criminal sexual
abuse. According to section 11-1.60(b) of the Criminal Code of 2012 (Code) (720 ILCS 5/11-
1.60(b) (West 2018)), “[a] person commits aggravated criminal sexual abuse if that person
commits an act of sexual conduct with a victim who is under 18 years of age and the person is a
family member,” which is a Class 2 felony. Id. The term sexual conduct “means any 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, or any transfer or transmission of semen by the accused upon any part of the
clothed or unclothed body of the victim, for the purpose of sexual gratification or arousal of the
victim or the accused.” 720 ILCS 5/11-0.1 (West 2018). Respondent does not now challenge his
status as a “family member” of the victim S.G. or that S.G. was a minor under the statute. Rather,
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respondent contends the State failed to prove he committed an act of “sexual conduct” against
S.G. by touching her breast or that he did so for “the purpose of sexual gratification or arousal.”
See id.¶ 24 Here, contrary to respondent’s contention otherwise, S.G. testified competently that from
August 2018 and into 2019, respondent repeatedly touched S.G.’s vagina, breasts, and
sometimes her belly. She explained that in the evening while they were sleeping on the floor in a
room full of her immediate family members and aunt, respondent would start by touching her
belly and then reach under her pajamas and underwear to touch her vagina on the outside.
Respondent committed this abuse at least five times and while S.G.’s mother was hospitalized,
making S.G. so scared and uncomfortable that she would retreat to the bathroom, where she’d
sometimes fall asleep on the floor with the door closed. Respondent also tried to guide S.G.’s
hand to his penis about five times before she pulled her hand away. S.G. did not tell anyone of
the abuse because her mother was in the hospital, she was not close to her grandparents, and she
felt scared. The court found S.G. “very credible” and there was no doubt that her uncle sexually
abused her multiple times her when she was 10 years old. Given the court’s credibility finding
and viewing this evidence in a light most favorable to the State, as we must, we cannot say the
evidence was so improbable or unsatisfactory as to create a reasonable doubt of respondent’s
guilt. See Wright, 2017 IL 119561, ¶ 70.
¶ 25 Respondent nonetheless maintains the evidence “suggests that S.G. thought or dreamed”
the abuse and, specifically, the touching of her breast. Respondent’s argument is not well-taken.
First, it’s clear from S.G.’s testimony that to the extent she was sleeping when the abuse
occurred, it awakened her; again, S.G. reported that the abuse occurred more than five times and
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on multiple occasions she escaped to the bathroom to get away from respondent. 3 Second, S.G.
testified that she specifically remembered one time distinctly because she was awake (she stated
“I just remember one time happening like, because I was like not really sleeping,” in which she
referenced respondent touching her stomach and public area, which includes her vagina). 4 Third,
in response to the State’s questioning, S.G. testified confidently and competently in her native
language of Spanish that respondent touched “[m]y vagina, my breasts, and sometimes my
belly,” thus clarifying the nature of the abuse. While respondent asks that we read the testimony
and inferences arising from the evidence in a light most favorable to him, that is not the standard
on appeal. Rather, it’s the opposite. See Sutherland, 223 Ill. 2d at 242. We will not retry
respondent or substitute our judgment for that of the trial judge, especially as to matters
involving witness credibility and the weight of the evidence. See id.; Wright, 2017 IL 119561, ¶
70.
¶ 26 Respondent also argues the State failed to prove beyond a reasonable doubt his identity,
suggesting the perpetrator could have been any one of the other people in the crowded apartment,
including S.G.’s grandfather, her grandmother’s cousin, or her then seven-year-old brother. See
People v. Slim, 127 Ill. 2d 302, 307-08 (1989) (listing relevant factors to consider in
identification challenges). Yet, respondent does not challenge S.G.’s testimony as to the sleeping
arrangement — that S.G. and respondent shared a bedroom with S.G.’s three siblings, aunt, and
mother (when she was present). The only other two adult males slept in different rooms. While
the defense suggested on cross that S.G. identified a different “uncle” (“Miguel Cruz Oliveras”)
as the abuser, S.G. denied that assertion and denied that she even had two uncles in the
3We agree with the State that S.G. never testified she believed the abuse was a “dream.” That was
F.G. who did so. Respondent appears to be conflating their testimony.
4We decline respondent’s invitation to view this statement in isolation without considering S.G.’s
total testimony and the context in which she made her statements.
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household; rather, one was similar to a cousin of her grandmother. Respondent did not contradict
S.G.’s statements or further perfect his impeachment. 5 The record thus does not support his
claim. See People v. Hunt, 234 Ill. 2d 49, 58 (2009) (noting, the appellant bears the burden of
presenting an adequate record to support his claim of error, and any doubts stemming from an
inadequate record will be construed against the appellant). Moreover, a trier of fact is not
required to accept any possible explanation compatible with the respondent’s innocence and
elevate it to the status of reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 229 (2009);
see also People v. Newton, 2018 IL 122958, ¶ 27 (noting, the State need not disprove or rule out
all possible factual scenarios).
¶ 27 Significantly, S.G. testified that respondent sexually abused her multiple times and she
knew it was respondent, notwithstanding the dark room, because he was the only person sleeping
next to her at the time. Again, the abuse prompted her to flee to the bathroom multiple times. It is
well established that a single positive identification by a witness who had ample opportunity for
observation is sufficient to support a conviction. People v. Davila, 2022 IL App (1st) 190882, ¶
36; see also People v. Wells, 2019 IL App (1st) 163247, ¶ 19 (unequivocal testimony from a
single complainant, even absent corroborating physical evidence, is sufficient to sustain a
conviction in a sexual crimes case). The persuasiveness of identification testimony likewise
continues to be strengthened by the witness’s prior acquaintance with the accused. Davila, 2022
IL App (1st) 190882, ¶ 38. Given the familial relationship between respondent and S.G., the
sleeping arrangements, and competent testimony by S.G., including her attention to the abuse, it
5When defense counsel asked S.G. whether she’d identified another individual in the forensic
interview, and S.G. denied that suggestion, counsel stated “Judge, I’ll come back to that. I’ll look up the
video.” It is not entirely clear from the record what video defense counsel is even referencing. See People
v. Hunt, 234 Ill. 2d 49, 58 (2009).
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was reasonable for the trial court to find S.G. positively identified respondent as her abuser. See
Sutherland, 223 Ill. 2d at 242.
¶ 28 Notably, F.G. also identified respondent. While the trial court found the evidence was
insufficient to establish the criminal sexual assault of F.G. beyond a reasonable doubt, the court
expressly found F.G.’s testimony credible. Consistent with the abuse against S.G., respondent
touched F.G.’s stomach and then lowered his hand under multiple layers of clothing to touch her
“intimate parts,” by which she meant her vagina, for about five minutes. Thus, it was more likely
than not that respondent committed criminal sexual assault against F.G. See 720 ILCS 5/11-
1.20(a)(3) (West 2018) (defining criminal sexual assault); People v. Garcia, 2017 IL App (1st)
133398, ¶ 74 (noting, other-crimes evidence is admissible when a jury can reasonably find by a
preponderance of the evidence that the defendant committed the other offense). Moreover, the
trial court dismissed the defense’s claim that S.G. and F.G. conspired in their identification of
defendant, and both witnesses made in-court identifications of defendant. F.G.’s identification
thus buttresses S.G.’s identification.
¶ 29 Lastly, while respondent equates the delay in outcry with a lack of identification, this
argument is misplaced. A delay in reporting incidents of sexual abuse may be reasonable where
the victim’s silence can be attributed to fear of the offender or to shame, guilt, and
embarrassment. People v. Duplessis, 248 Ill. App. 3d 195, 199 (1993). In sexual assault cases
involving family relationships, the victim’s credibility is not lessened if there is no immediate
outcry. Id. at 199-200. Again, S.G. testified that she did not tell anyone about the abuse because
her mother was in the hospital, she was scared to tell her older sister, and she did not have a close
relationship with her grandparents. In fact, she testified she felt scared and did not know what to
do or who to talk to. The two sisters ultimately reported the abuse to their mother about three
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years later when it became clear that respondent would potentially live with them in their home.
The record also suggests that even four years later at trial, S.G. struggled to speak about the
abuse. Under these circumstances, it was reasonable to conclude the delayed outcry was a result
of the sexual abuse the respondent perpetrated against S.G. at her young age of 10 while her
mother was hospitalized, and S.G.’s concomitant fear, shame, and guilt, rather than any inability
to identify respondent as the offender. Respondent’s argument fails.
¶ 30 Respondent next argues that the State did not prove that the touching was done for the
purpose of sexual gratification or arousal, an essential element of aggravated criminal sexual
abuse. See 720 ILCS 5/11-1.60(b) (West 2018). We disagree.
¶ 31 Determining whether an act was committed for the purpose of sexual gratification or
arousal, as defendant acknowledges, is typically inferred from circumstantial evidence. People v.
Hunter, 2023 IL App (4th) 210595, ¶ 58. Circumstantial evidence of sexual gratification may
include the removal of clothing, heavy breathing, placing the victim’s hand on the accused’s
genitals, an erection, or other observable signs of arousal. In re M.H., 2019 IL App (3d) 180625,
¶ 17. “[T]he issue of intent of sexual gratification in minors must be determined on a case-by-
case basis,” and there’s no bright-line test. In re Matthew K., 355 Ill. App. 3d 652, 656-57
(2005). A fact finder must consider all of the evidence, including the offender’s age, maturity,
actions, and statements, before deciding whether intent can be inferred. Wells, 2019 IL App (1st)
163247, ¶ 19; M.H., 2019 IL App (3d) 180625, ¶ 17.
¶ 32 Here, the nature of the touching and the circumstances under which it occurred provide
strong circumstantial evidence of intent. Respondent, at ages 15 and 16, waited until S.G.’s
mother was away and the rest of his family was presumably asleep, then proceeded to touch his
10-year-old niece’s intimate parts, including her breast, under her pajamas and underwear. See
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People v. Burton, 399 Ill. App. 3d 809, 815 (2010) (touching a female’s breast generally carries a
sexual purpose). While respondent argues that the lack of sexual sounds and words suggest a
lack of intent, we again decline to read the evidence and inferences arising therefrom in a light
most favorable to him, rather than the State. Instead, the trial court could have easily concluded
that respondent made no sounds or noises to ensure that the rest of his family would not awaken,
and that no attention would be drawn to himself in order to take advantage of the situation. As
the trial court declared, considering the totality of the facts, including the “time of the day, the
location of the touching, the fact that [respondent] did, in fact, touch under two layers of
clothing,” there was no doubt that respondent touched S.G. “for his and/or her sexual
gratification.” Given that finding, we therefore reject respondent’s contention that he was asleep
when touching S.G. and could not have intended sexual gratification. Respondent’s repeated
sexual abuse of S.G. (and his abuse of F.G.) also negates any claim that this contact was
unintentional or accidental.
¶ 33 We further reject respondent’s reliance on In re Matthew K. There, the 12-year-old
respondent touched his 8-year-old sister’s vagina and kissed her with his tongue, then lifted her
shirt and gave her a belly massage while playing a game called “survival.” The State also
presented expert testimony from a child psychiatrist that the respondent was socially immature,
acting at the level of a 10-year-old, and there was no evidence the respondent was sexually
gratified or attempted to sexually gratify himself or the victim. Over a dissent, this court reversed
the trial court’s delinquency finding of aggravated criminal sexual abuse after finding the State’s
evidence insufficient to establish that the respondent acted with the purpose of sexual
gratification.
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¶ 34 This case is distinguishable in significant regards. Here, respondent was ages 15 and 16
when he abused his 10-year-old niece. Indeed, the closer the accused is to the age of majority,
the more plausible it is for the court to infer that the accused acted for the purpose of sexual
gratification or arousal. M.H., 2019 IL App (3d) 180625, ¶ 17. There also was no expert evidence
that respondent was not sexually gratified when abusing S.G. or that he was socially immature
for his age. In fact, the record suggests otherwise. By the time of the guilty finding in October
2023, respondent had graduated high school, had a full-time job, and paid rent to his parents. See
In re Kendale H., 2013 IL App (1st) 130421, ¶ 31 (noting, we may affirm the lower court on any
grounds supported by the record). Moreover, as set forth, this was not a one-time childish
exploration from curiosity. Respondent’s repeated abuse of S.G. and his abuse of F.G. negates
his claimed lack of intent.
¶ 35 Based on the foregoing, the State proved beyond a reasonable doubt that respondent
committed aggravated criminal sexual abuse because he committed an act of sexual conduct,
insofar as he knowingly touched S.G.’s breast for the purpose of his and/or her sexual
gratification or arousal. See 720 ILCS 5/11-1.60(b) (West 2018); 720 ILCS 5/11-0.1 (West
2018). Respondent’s challenge to the sufficiency of the evidence fails.
¶ 36 Equal Protection Claim
¶ 37 Last, respondent contends that his constitutional right to equal protection was violated.
Respondent maintains that had he “been S.G.’s brother or cousin,” he would not qualify as a
“family member” under the aggravated criminal sexual abuse statute and could not be convicted
of that offense. He would have been subject, instead, to the lesser offense of criminal sexual
abuse, a Class A misdemeanor, with less stringent sex offender registration requirements. See
720 ILCS 5/11-1.50(b) (West 2018) (“A person commits criminal sexual abuse if that person is
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under 17 years of age and commits an act of sexual penetration or sexual conduct with a victim
who is at least 9 years of age but under 17 years of age.”); 730 ILCS 150/3-5(c) (West 2018). In
requesting that we reduce his conviction to that lesser-included offense, respondent argues that,
as-applied, section 11-1.60(b) governing aggravated criminal sexual abuse treats him (an uncle
only five years senior to S.G.) differently than similarly-situated individuals (such as cousins or
brothers of his same age), in violation of the equal protection clause. See U.S. Const. amend.
XIV; Ill. Const. 1970, art I, § 2. Specifically, he maintains the aggravated criminal sexual abuse
statute unreasonably “exclude[s] both siblings and cousins from the definition.”
¶ 38 Section 11-0.1 of the Code states “unless the context clearly requires otherwise,” the
term family member “means a parent, grandparent, child, aunt, uncle, great-aunt, or great-uncle,
whether by whole blood, half-blood, or adoption, and includes a step-grandparent, step-parent, or
step-child.” (Emphasis added.) 720 ILCS 5/11-0.1 (West 2018). Section 11-0.1 of the Code
continues, stating that family member “also means, if the victim is a child under 18 years of age,
an accused who has resided in the household with the child continuously for at least 6 months.”
720 ILCS 5/11-0.1 (West 2018).
¶ 39 We begin by noting that legislative enactments enjoy a strong presumption of
constitutionality, and the burden then rests on the respondent to demonstrate the invalidity of a
particular statute. People v. Alcozer, 241 Ill. 2d 248, 259 (2011). A reviewing court has the duty
to construe a statute to uphold its validity whenever reasonably possible. Id. We review both the
constitutionality of a statute and matters of statutory interpretation de novo. Id.; People v.
Shreffler, 2015 IL App (4th) 130718, ¶ 17. When construing a statute, our primary objective is to
give effect to the legislature’s intent, which is best indicated by the statute’s plain and ordinary
language. Shreffler, 2015 IL App (4th) 130718, ¶ 18.
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No. 1-23-2106
¶ 40 Here, reading the plain and ordinary language of the statute, as we must, the very
premise of respondent’s equal protection claim fails. Contrary to respondent’s contention
otherwise, section 11-0.1 of the Code does not exclude a “brother or cousin” of the same age
from its scope. This is because the term “family member” can also mean a “child” or “an accused
who has resided in the household with the child continuously for at least 6 months.” 720 ILCS
5/11-0.1 (West 2018). As such, “a person” who commits aggravated criminal sexual abuse (an
act of sexual conduct with a victim under age 18), can also be a child or someone living with the
victim for at least six months, and this certainly encompasses a brother or cousin. See 720 ILCS
5/11-1.60(b) (West 2018) (“A person commits aggravated criminal sexual abuse if that person
commits an act of sexual conduct with a victim who is under 18 years of age and the person is a
family member.” (Emphasis added.)). Section 11-0.1 involving statutory definitions also requires
that we consider “the context” of section 1.60(b). With that in mind, the plain language of
section 1.60(b) demonstrates it encompasses not just authority figures but those individuals with
a familial relationship of trust to the minor victim. Cf. 730 ILCS 5/5-5-3.2(a)(14) (West 2018)
(noting, a factor in aggravation at sentencing includes when “the defendant held a position of
trust or supervision such as, but not limited to, family member as defined in Section 11-0.1 of the
Criminal Code of 2012.” (Emphasis added.)).
¶ 41 Based on the foregoing, respondent’s constitutional claim fails before it even begins.
People v. Reed, 148 Ill. 2d 1, 7 (1992) (“Equal protection requires that government deal with
‘similarly situated’ individuals in a similar manner.”). We reach this conclusion without the
benefit of fully-fleshed out arguments by the parties and the trial court because respondent did
not raise his constitutional claim below. Regardless, respondent has failed to sustain his burden
of establishing a constitutional violation.
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No. 1-23-2106
¶ 42 CONCLUSION
¶ 43 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 44 Affirmed.
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