Find Legal Information

Nos. 1-00-4124 & 1-00-4125 (Consolidated)

JUSTICE REID delivered the opinion of the court:

Following a bench trial, in this consolidated appeal, Robert Woodrum challenges hisconviction of child abduction and his sentence of 24 months probation. Woodrum also challengeshis sentence that he undergo HIV/Aids testing and give samples so as to have his genetic markersrecorded in a database. Woodrum advances the following four issues: (1) whether an individualcan be convicted of child abduction when the unlawful purpose forming the basis of the crime wasbased solely upon his thoughts that were not acted upon; (2) whether the trial court erred inrefusing to grant Woodrum's request for a bill of particulars to specify the exact nature of theunlawful purpose forming the basis of the charges; (3) whether there has been a speedy trialviolation where the State, with knowledge of all the facts of the case at the commencement of theprosecution, failed to allege each element of the offense in the previous indictments; and (4)whether the trial court may order a defendant convicted of child abduction to undergo eithermandatory HIV/Aids testing, genetic marker identification or, in this case, both. For the reasonsthat follow, we reverse the defendant's conviction and remand the matter for further proceedings.

At the time of the offense, Woodrum was a 29 year old single male suffering fromschizophrenia and depression who was being treated with psychotropic medication. On more thanone occasion, he videotaped children at play. On each occasion he taped the children, afterfinishing taping, Woodrum invited the children up to his parents' condominium to watch the videothey just made. During one of the incidents he was videotaping, while the children werewrestling, one child announced that another child's fly was down. Woodrum said the girl shouldshow him so he could tape it but the girl refused to allow him to do so. The parents of thechildren complained to the police. Woodrum was arrested and charged with child abduction. Hegave a statement, not in a question and answer format, to the Assistant State's Attorney. Thatstatement was written by the Assistant State's Attorney and was signed by Woodrum. Thestatement suggested that Woodrum became sexually aroused while videotaping the children,especially during the open fly incident. In the statement, Woodrum indicated he fantasized abouthaving sex with the children and thought about masturbating but took no affirmative steps towardcompleting any of those acts.

Bond was initially set at $700,000 but was reduced to $150,000. Woodrum remained incustody until after his trial when he was released, subject to sex offender probation. The originalindictments charged Woodrum with two separate occurrences that constituted child abduction. The first indictment related to the November 4, 1999 occurrence with the four children playing onthe front lawn. This resulted in four counts. The second indictment related to events from thefollowing day. At that time, Woodrum encountered children in the laundry room and invited themup to his residence. That indictment contained three counts. Although these two indictmentsreferenced the relevant statute and charged that Woodrum lured the children into a dwelling placewithout their parents' consent, neither indictment stated that Woodrum acted "with other than alawful purpose."

The State made a motion to amend the indictments. The trial court granted the motionand Woodrum was re-indicted in two separate indictments totaling seven counts of childabduction. The amended indictments claimed that Woodrum had lured the children into thecondo "for other than a lawful purpose," but did not specify the nature of the unlawful purpose. The trial court detected another error in the second indictment, so a third version was created. Again the indictment did not specify the unlawful purpose.

Defense counsel filed a motion for a bill of particulars seeking to learn with specificity thenature of the unlawful purpose. The State responded that, under the statute, the luring of a childunder the age of 16 without parental consent is prima facie evidence of other than a lawfulpurpose. As such, the State argued before the trial court that further discovery was notnecessary. The trial court denied the motion for a bill of particulars holding that the burden fallsto the defendant, in the nature of an affirmative defense, to show his actions were taken with alawful purpose.

The defense filed a motion to dismiss claiming a speedy trial problem and the failure toexplain the alleged unlawful purpose.

Woodrum's counsel argued that the elements added to the subsequent versions of theindictments were additional charges based on facts known to the State at the commencement ofthe prosecution. Woodrum's counsel argued that the generic allegation that he acted with anunlawful purpose was a new element that constituted a new crime and that dismissal of theindictments was proper because Woodrum had been in custody for over 120 days. The trial courtdenied the motion to dismiss, stating that the subsequent indictments were "just re-indictments ofthe original charges" and that the amended indictments related back to the original date togetherwith all by agreement continuances, thereby eliminating any speedy trial problem.

The children testified at trial that Woodrum never touched them or harmed them in anyway, but that he told them not to tell their parents. Woodrum argued at trial that he only thoughtabout doing things to the children, but that he never actually did anything. The State argued thatthe statute provides for a presumption such that "[it] did not have to show he completed an act." The trial court found Woodrum guilty, holding that:

"But just as a picture of a naked child could be one of beauty,depending on the eye of the beholder, and the purpose of thebeholder for taking it, it could also be something which would nothave a lawful purpose. The statute states that luring a child into ahouse, dwelling, motor vehicle, who is under the age of sixteen, isprima facie evidence of other than a lawful purpose. TheDefendant's statement is that he did these things because heenjoyed watching the children, he enjoyed especially watching ifthey showed parts of their body that were exposed, that thesethings sexually excited him. I cannot say that taking a videotapethat sexually excites you, of little children, is a lawful purpose forvideotaping. Therefore, the Defendant will be found guilty on allcounts."

Defense counsel complained that the trial court was "shifting the burden to the defendantto prove that the unlawful purpose * * * was not unlawful." Defense counsel reiterated therequest for clarification as to the exact nature of the unlawful purpose the trial court found Woodrum had committed. Even in conviction, the trial court declined to honor Woodrum'srequest to learn the nature of the unlawful purpose.

Woodrum was sentenced to 24 months sex offender probation. Over defense objection,Woodrum was also ordered to undergo an HIV/AIDS test and have his blood genetic markersplaced on file.

"A criminal conviction will not be set aside on grounds of insufficient evidence unless theproof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant'sguilt." People v. Pollack, 202 Ill. 2d 189, 217 (2002), citing People v. Maggette, 195 Ill. 2d 336,353 (2001). "The standard for reviewing a challenge to the sufficiency of the evidence is wellsettled. When reviewing the sufficiency of evidence to sustain a verdict on appeal, the relevantinquiry is 'whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond a reasonabledoubt.' " Pollack, 202 Ill. 2d at 217, quoting Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L. Ed. 2d 560, 573 (1979) (emphasis omitted); People v. Cooper, 194 Ill.2d 419, 430-31 (2000); People v. Thomas, 178 Ill. 2d 215, 231-32 (1997). "The same standardof review applies when reviewing the sufficiency of evidence in all criminal cases, regardless ofwhether the evidence is direct or circumstantial." Pollack, 202 Ill. 2d at 217, citing Cooper, 194Ill. 2d at 431; People v. Digirolamo, 179 Ill. 2d 24, 43 (1997); People v. Gilliam, 172 Ill. 2d 484,515 (1996); see also Maggette, 195 Ill. 2d at 353. However, where the facts are not in disputeand there are no credibility issues such that our determination will turn exclusively on a questionof law, we conduct a de novo review. People v. Smith, 191 Ill. 2d 408, 411 (2000); People v.McGee, 326 Ill. App. 3d 165, 168 (2001); In re D.G., 144 Ill. 2d 404, 408-09 (1991). Becausethere is no dispute as to the content of the videotape, Woodrum's statement, or the testimony ofthe children allegedly abducted, we review this matter de novo.

As to the denial of Woodrum's motion for a bill of particulars, we review that order underan abuse of discretion standard because the trial court's decision is within its sound discretion. People v. Lego, 116 Ill. 2d 323, 336 (1987); 720 ILCS 5/111-6 (West 1998).

Woodrum argues on appeal that mere thoughts should not constitute evidence that heacted with an unlawful purpose. Woodrum also argues that the denial of the bill of particularsprejudiced his ability to prepare a defense because the indictments did not identify the unlawfulpurpose with specificity. Woodrum also argues that the permissive presumption found in thestatute does not prove beyond a reasonable doubt that he acted with other than a lawful purpose.

The State responds that he used the promise of allowing the children to watch the tapesas a basis for getting them in the condominium and sexually exploiting them. The State arguesthat it is irrelevant that he did not follow through on his illicit thoughts. The State argues that thestatute does not require that the defendant successfully complete the unlawful purpose. The Statealso responds that Woodrum was not convicted merely because of his thoughts and thepossession of a videotape of the children. He was convicted because he used the videotape toentice the children to his parents' condominium. The State further responds that the denial of thebill of particulars was within the trial court's discretion and that he was sufficiently informed of thecharges against him because the indictments tracked the statutory language.

The child abduction statute provides, in relevant part, as follows:

"(b) A person commits child abduction when he or she * * *(10) Intentionally lures or attempts to lure a child under the age of16 into a motor vehicle, building, housetrailer, or dwelling placewithout the consent of the parent or lawful custodian of the childfor other than a lawful purpose. For the purposes of this subsection(b), paragraph (10), the luring or attempted luring of a child underthe age of 16 into a motor vehicle, building, housetrailer, ordwelling place without the consent of the parent or lawful custodianof the child shall be prima facie evidence of other than a lawfulpurpose." 720 ILCS 5/10-5(b)(10) (West 2000)(emphasis added).

"(c) It shall be an affirmative defense that * * * (4) Theperson lured or attempted to lure a child under the age of 16 into amotor vehicle, building, housetrailer, or dwelling place for a lawfulpurpose in prosecutions under subsection (b), paragraph (10)." 720ILCS 5/10-5(c)(4) (West 2000) (emphasis added)

"A primary rule of statutory construction is to give effect to the legislative intent byconsidering 'the entire statute, the evil to be remedied and the object to be attained.'" People v.Marcotte, 217 Ill. App. 3d 797, 800 (1991), quoting People v. Ivy, 133 Ill. App. 3d 647 (1985). Marcotte explains that the object of the child abduction statute is "protecting the rights ofcustodial parents and protecting children from intentional removing, detaining, or concealing bythose who have no legal right." Marcotte, 217 Ill. App. 3d at 800. Marcotte also explains thatthe evil to be remedied is the prevention of and punishment for "luring or attempting to lure achild under the age of 16 without the parent's consent." Marcotte, 217 Ill. App. 3d at 800. As aresult, "[s]ection 10-5(b)(10) condemns the intentional luring of children without parental orcustodial consent; that act establishes a violation of the statute. Since defendant is in the bestposition to know the lawfulness of his purpose, the legislature found it proper to place the burdenof proving lawful purpose on the defendant. Section 10-5(b)(10), taken in conjunction withsection 10-5(c)(4), specifically provides that a defendant accused of child abduction may raise"lawful purpose" as an affirmative defense." Marcotte, 217 Ill. App. 3d at 800 (emphasis added).

It is undisputed that Woodrum videotaped the children on the front lawn and in thebuilding. The tape shows nothing obscene or criminal. Though the activities depicted wereundertaken at Woodrum's urging, the videotape merely depicts children engaged in horseplay. Woodrum told those children that they were being taped and could be seen on local televisionnews, which was simply untrue. Woodrum then invited those children to join him in his parents'apartment where they could watch the videotape. It is equally undisputed that Woodrum gavestatements to the authorities post-arrest that he experienced some measure of sexual arousal whilewatching the children on the videotape and that he thought about masturbating. Additionally,Woodrum admitted that he fantasized about having sexual relations with at least one of the fourof the girls he videotaped. At all times relevant, Woodrum did not touch the children and, despitehis admitted thoughts, neither exposed nor pleasured himself in their presence. In and of itself,the content of the videotape is innocuous. As a result, the entire prosecution is based uponWoodrum's thoughts, not his actions. The linchpin of the State's case is the admission byWoodrum that he had distasteful fantasies about the children and thought about masturbating. Itis the admission in the statement to the authorities that purportedly turns an invitation into luring. Without that admission, the State has nothing but an unsupportable presumption. "The normalmethod of deterring unlawful conduct is to impose an appropriate punishment on the person whoengages in it." Bartnicki v. Vopper, 532 U.S. 514, 529, 149 L. Ed. 2d 787, 121 S. Ct. 1753,1762 (2000). Woodrum's admission of his private thoughts and desires came after he was takeninto custody. In order for the crime to be committed Woodrum would have to have acted with"other than a lawful purpose." There must be a not only mens rea, but actus reus, "a wrongfuldeed which renders the actor criminally liable if combined with the mens rea." Black's LawDictionary, Sixth ed., p. 36. Videotaping children is not, in and of itself a criminal act. Neither isshowing children a non-obscene videotape. "There are many things, innocent in themselves,however, such as cartoons, video games, and candy, that might be used for immoral purposes, yetwe would not expect those to be prohibited because they could be misused." Ashcroft v. TheFree Speech Coalition, 535 U.S. 234, 251, 152 L. Ed. 2d 403, 122 S. Ct. 1389, 1402 (2002). Harboring unexpressed sexual desires, while repugnant in this context, is not criminal. Finally, ina private venue, masturbating is not illegal; thinking about masturbating doubly so.

"The sexual abuse of a child is a most serious crime and an act repugnant to the moralinstincts of a decent people." Ashcroft, 535 U.S. at 244, 152 L. Ed. 2d 403, 122 S. Ct. at 1399. It is perfectly understandable that people, particularly parents, would place their child's welfare atthe pinnacle of importance to them. "Our society, like other cultures, has empathy and enduringfascination with the lives and destinies of the young." Ashcroft, 535 U.S. at 248, 152 L. Ed. 2d403, 122 S. Ct. at 1399. In order to protect children from sexual predators, legislatureseverywhere have passed legislation. It is the burden of the State and the police to enforce thelaws. That does not, however, grant the State the unfettered right to prosecute someone for theirthoughts. "The government 'cannot constitutionally premise legislation on the desirability ofcontrolling a person's private thoughts.' " Ashcroft, 535 U.S. at 253, 152 L. Ed. 2d 403, 122 S.Ct. at 1403, quoting Stanley v. Georgia, 394 U.S. 557, 566, 22 L. Ed. 2d 542, 89 S. Ct. 1243(1969). The Ashcroft case, in the context of a First Amendment challenge, explained that "[t]heright to think is the beginning of freedom...." Ashcroft, 535 U.S. at 253, 152 L. Ed. 2d 403, 122S. Ct. at 1403.

Presumptions are legal devices by which a trier of fact may "assume the existence of apresumed or ultimate fact based on certain predicate or basic facts." People v. Greco, 204 Ill. 2d400, 407 (2003); People v. Henderson, 329 Ill. App. 3d 810 (2002). "Mandatory presumptions incriminal cases are unconstitutional because they relieve the State of the burden of proof beyond areasonable doubt and violate the due process clause by shifting the burden of persuasion to thecriminal defendant." Marcotte, 217 Ill. App. 3d at 802-03, citing Franklin v. Franklin, 471 U.S.307, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985). "On the other hand, an entirely permissiveinference, which allows - but does not require - the trier of fact to infer an elemental fact fromproof of a basic one, and which places no burden of any kind on the defendant, is clearlypermissible. In that situation the basic fact may constitute prima facie evidence of the elementalfact." Marcotte, 217 Ill. App. 3d at 803. "When reviewing this type of evidentiary device, theSupreme Court has required the party challenging it to demonstrate its invalidity as applied tohim." Marcotte, 217 Ill. App. 3d at 803, citing County Court of Ulster County v. Allen, 442 U.S.140, 157, 60 L. Ed. 2d 777, 792, 99 S. Ct. 2213, 2224 (1979). "Where the permissivepresumption is the lone basis for a finding of guilt, however, the presumed fact must flow beyonda reasonable doubt from the proven, predicate fact." Greco, 204 Ill. 2d at 408, citing People v.Housby, 84 Ill. 2d 415, 425 (1981).

The statute that Woodrum has been found guilty of violating requires that a defendant"intentionally lure" members of the identified class of young people "without the consent of theparent"to a specified type of location for "other than a lawful purpose." The presumption flowsfrom the language of the statute authorizing courts to treat the luring or attempted luring as primafacie evidence of the unlawful purpose. If, as here, the State is unable or unwilling to articulatethe exact nature of the other than lawful purpose, and the defendant's actual conduct is notcriminal, then the statute is unconstitutional as applied to him because it is both vague and overlybroad. It criminalizes Woodrum's conduct based solely upon what can only be described as amandatory presumption. "A mandatory presumption * * *may affect not only the strength of the'no reasonable doubt' burden but also the placement of that burden; it tells the trier that he or theymust find the elemental fact upon proof of the basic fact, at least unless the defendant has comeforward with some evidence to rebut the presumed connection between the two facts." Allen,442 U.S. at 157, 60 L. Ed. 2d at 792, 99 S. Ct. at 2225. Here the trial court presumed not onlythe alleged unlawful purpose, but also that the children had been lured into the house in the firstplace, as opposed to having been merely invited to view an innocuous videotape. In a classic"cart before the horse" scenario, the trial court presumed illegality where none exists, exceptlocked in the mind of the defendant. Nothing illegal actually occurred and nothing illegal wasattempted in the defendant's mother's apartment. If otherwise legal conduct can subject adefendant to prosecution, because both the "luring" of the children and the unlawful purpose canbe presumed, then "men of ordinary intelligence have no way of ascertaining what breach ofcriminal or civil law may subject them to arrest and prosecution." Landry v. Daley, 280 F. Supp.938, 955 (N.D. Ill. 1968), rev'd on other grounds, Boyle v. Landry, 401 U.S. 77, 27 L. Ed. 2d696, 91 S. Ct. 758 (1971). In People v. Williams, 133 Ill. 2d 449, 453-55 (1990), the IllinoisSupreme Court declined to find the child abduction statute vague on its face because the "men ofordinary intelligence" described in Landry should know that violations of the criminal code cansubject a defendant to prosecution. This is why the statute is unconstitutional as applied toWoodrum. By way of the presumption, the trial court criminalized conduct that does not violatethe criminal code. In so doing, the trial court improperly shifted the burden to disprove theelemental fact instead of leaving that burden of prosecution entirely with the State. Even if thiswere but a permissive presumption, it rises to the level of error when the trial court refused toallow Woodrum's request for a bill of particulars. This case presents a unique set of facts andcircumstances. This defendant was being asked to present proof he was not engaging in conductwith "other than a lawful purpose" without truly knowing what the alleged unlawful purposeactually was. By forcing the State to identify the alleged unlawful purpose, Woodrum would havebeen able to properly prepare an affirmative defense. Because the trial court declined to grant thebill of particulars, Woodrum was denied a fair trial and the statute in question is unconstitutionalas applied.

Woodrum next argues a violation of his right to a speedy trial. He was taken into custodyon November 10, 1999. Woodrum argues he was held in custody for over 120 days while theState delayed in obtaining proper indictments. Though all the relevant indictments cited to thecorrect statutory provision, neither of the two original indictments charged that Woodrum acted"with other than a lawful purpose." Woodrum argues that, in order to be a proper indictment forchild abduction, it must contain the missing language. Accordingly, Woodrum argues that hiscustody exceeded 120 days without him being actually charged with a crime. Woodrum admitsthat much of the delay was as a result of agreed continuances. However, Woodrum argues thatthose delays should not be credited against him because they were obtained in connection with thetrial of the original charges and not with respect to the new and additional charges containing theproper language. Woodrum further argues that, because this issue involves the application of thelaw to undisputed facts, this court should review the matter de novo.

The State objects to the characterization of the final set of indictments as relating to newand additional charges. The State argues that the relation back doctrine covers the delays becausethe re-indictments were amendments of the original indictments. According to the State, thesubsequent indictments essentially duplicated the original set of indictments because they allegedthe same crimes against the same children on the same dates at the same location. The State alsoargues that Woodrum repeatedly agreed to almost all of the continuances and that the delaysshould toll the speedy trial period. The State further argues that the correct standard of review isabuse of discretion when the reviewing court must review the trial court's determination as towhich party is responsible for the delay.

A defendant possesses both a constitutional and statutory right to a speedy trial. People v.Mayo, 198 Ill. 2d 530, 535 (2002), citing U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,