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Docket No. 97118-Agenda 10-May 2004.

In re RYAN B., a Minor (The People of the State of Illinois,
Appellee, v. Ryan B., Appellant).

Opinion filed September 23, 2004.
 

JUSTICE THOMAS delivered the opinion of the court:

Respondent, Ryan B., was adjudicated delinquent based upon afinding that he had committed the offense of sexual exploitation of achild (720 ILCS 5/11-9.1(a-5) (West 2000)). Respondent wassentenced to five years' probation, was ordered to register as a sexoffender pursuant to the Sex Offender Registration Act (RegistrationAct) (730 ILCS 150/1 et seq. (West 2000)), and was ordered tosubmit to a DNA blood draw (730 ILCS 5/5-4-3 (West 2000)). Theappellate court affirmed the judgment of the circuit court. No.1-01-2320 (unpublished order under Supreme Court Rule 23). Wegranted respondent's petition for leave to appeal. 177 Ill. 2d R.315(a).

BACKGROUND

Respondent was charged as a delinquent minor for committingthe offense of sexual exploitation of a child. At the time of the offense,respondent was 14 years old. The parties proceeded with a stipulatedbench trial. The parties stipulated that, if called to testify, the victim,J.B., would testify that around 3 p.m. on August 19, 2000, respondentapproached her and asked her to lift up her shirt so he could see her"boobs." At the time, J.B. was eight years old. J.B. knew respondentfrom the neighborhood. J.B. did lift up her shirt and expose herbreasts to respondent.

The parties also stipulated that, if called to testify, DetectiveHollister would testify that respondent was brought to the policestation on August 19, 2000, and signed a waiver of his Mirandarights. Respondent was questioned about the incident with J.B. andadmitted that he had asked J.B. to lift up her shirt and show him her"boobs." Respondent said that J.B. lifted her shirt for 5 to 10 secondsand that he was able to see her nipples when she lifted up her shirt.Respondent then went home. When Detective Hollister askedrespondent why he asked J.B. to lift up her shirt, respondent said hehad just thought of it and that he asked her because it "turned himon."

Based upon the stipulation, the trial court found respondent to bea delinquent minor. Respondent was placed on probation for five yearsand ordered to cooperate with any therapeutic placement to bedetermined later. As noted, respondent also was ordered to register asa sex offender and to submit a blood sample for DNA analysis. Thelatter two orders were stayed pending appeal.

On appeal, respondent argued that he had not been provendelinquent beyond a reasonable doubt. Respondent claimed that theState had failed to establish that he had enticed, coerced or persuadedJ.B. to lift her shirt, as required by statute in order to prove sexualexploitation of a child. Respondent also argued that juvenile sexoffenders are not required to register under the Registration Act.Finally, respondent maintained that the Registration Act violatesprocedural due process because it fails to provide juvenile offendersthe opportunity to be heard on the issue of their continuing danger tothe community before requiring them to register as sex offenders.

The appellate court affirmed the judgment of the circuit court.The appellate court held that a rational trier of fact could have foundthat respondent coerced J.B. into lifting her shirt because "[o]ne couldeasily conclude that an 8-year-old girl would be intimidated by a 14-year-old boy who asked her to lift her shirt and expose her breasts.Such intimidation would explain J.B.'s compliance with respondent'srequest." The appellate court also held that a rational trier of factcould have found that respondent persuaded J.B. to lift her shirt. Theappellate court stated that it was logical to conclude that J.B.'sdecision to lift her shirt "was influenced solely by respondent'ssolicitation" and that "J.B. would not have lifted her shirt hadrespondent not specifically urged her to do so." In response to J.B.'sargument that merely asking J.B. to lift her shirt did not constitutepersuasion, the appellate court stated that "[b]ecause respondent failsto identify any other persuasive factor that would have convinced J.B.,an 8-year-old girl, to lift her shirt and expose her breasts torespondent, we are left with only one rational conclusion: that J.B.was persuaded and/or coerced by respondent."

Citing this court's decision in In re J.W., 204 Ill. 2d 50 (2003),the appellate court also rejected respondent's claim that juvenile sexoffenders are not required to register under the Registration Act.Finally, the appellate court rejected respondent's claim that theRegistration Act violates due process, noting that the registrationrequirement was not based upon a finding of dangerousness, but uponan adjudication of delinquency or a conviction for a sex offense.

ANALYSIS

In this court, respondent again argues that he was not provendelinquent for sexual exploitation of a child beyond a reasonabledoubt. In addition, respondent reasserts his claim that the RegistrationAct violates his right to procedural due process. Respondent also asksthis court to reconsider its decision in In re J.W.

The statute at issue in this case provides that:

"A person commits sexual exploitation of a child whoknowingly entices, coerces, or persuades a child to removethe child's clothing for the purpose of sexual arousal orgratification of the person or the child, or both." 720 ILCS5/11-9.1(a-5) (West 2000).

The dispute in this case concerns whether respondent's actionsconstituted enticing, coercing or persuading as set forth in the statute.Because respondent's challenge to the sufficiency of the evidenceagainst him does not question the credibility of the witnesses, butinstead questions whether the uncontested facts were sufficient toprove the elements of sexual exploitation of a child, our review is denovo. People v. Smith, 191 Ill. 2d 408, 411 (2000). The State mustprove the elements of the substantive offense charged in a delinquencypetition beyond a reasonable doubt. In re W.C., 167 Ill. 2d 307, 336(1995).

Respondent maintains that the stipulated testimony showed onlythat he "asked" J.B. to lift her shirt and that she did so. Respondentdenies that "asking" amounts to "coercing," "enticing" or"persuading" as set forth in the statute. The State, however, maintainsthat respondent's actions qualify as enticing or persuading. The Stateargues that asking is one way to persuade or entice another person todo something, particularly where the victim is an 8-year-old girl andthe respondent is a 14-year-old boy.

In order to determine whether asking constitutes coercing,enticing or persuading, we must look to the language of the statute.The fundamental rule of statutory construction is to ascertain and giveeffect to the legislature's intent. Caveney v. Bower, 207 Ill. 2d 82, 87-88 (2003). The best indication of the legislature's intent is thestatutory language, given its plain and ordinary meaning. Caveney,207 Ill. 2d at 88. In the absence of a statutory definition indicatinglegislative intent, an undefined word must be given its ordinary andpopularly understood meaning. In re D.F., 201 Ill. 2d 476, 496(2002).

Because the sexual exploitation of a child statute does not definethe terms "entice," "coerce" or "persuade," we must look to theordinary and popularly understood meaning of those terms. As theappellate court observed, Webster's Third New InternationalDictionary defines "entice" as "to draw on by arousing hope ordesire." Webster's Third New International Dictionary 757 (1993)."Coerce" is defined as "to restrain, control, or dominate, nullifyingindividual will or desire (as by force, power, violence, orintimidation)." Webster's Third New International Dictionary 439(1993). "Persuade" is defined as "to induce by argument, entreaty, orexpostulation into some mental position (as a determination, decision,conclusion, belief) *** to use persuasion upon: plead with: URGE."Webster's Third New International Dictionary 1687 (1993).

Based upon the foregoing definitions, respondent argues thatthere was no evidence that he caused J.B. to lift her shirt by arousingher hope and desire, that he restrained, controlled or intimidated J.B.into lifting up her shirt, or that he pleaded with or urged J.B. to lift hershirt. The stipulated testimony established only that respondent"asked" J.B. to lift her shirt and that she did so. Respondent notes thatWebster's Third New International Dictionary defines "ask" as "puta question to: inquire of" and to "make a request of." Webster's ThirdNew International Dictionary 128 (1993). Respondent contends thatthe appellate court erred in holding that because J.B. complied withrespondent's request, it follows that she was coerced or persuadedinto doing so. Respondent claims that the appellate court erroneouslyrendered the plain language of the statue meaningless by inferring that"ask" has the same meaning as "persuade" or "coerce."

The State concedes that respondent did not "coerce" J.B. to lifther shirt, as that word implies a measure of force. Nonetheless, theState argues that it is obvious that respondent enticed or persuadedJ.B. to expose her breasts because she responded by complying withrespondent's request. The State maintains that there is no evidencethat J.B.'s exposure of her breasts was an independent act unsolicitedby respondent.

Upon review, we agree with respondent that the State failed toprove him guilty of sexual exploitation of a child beyond a reasonabledoubt. In order to commit the offense of sexual exploitation of a child,an offender must coerce, entice or persuade the child to remove herclothing. Giving the statutory terms "coerce," "persuade," and"entice" their plain and ordinary meanings, it is clear that asking doesnot rise to the level of coercing, persuading or enticing. The stipulatedtestimony in this case established only that respondent asked J.B. tolift her shirt and that she complied. As respondent argues, coercing,persuading or enticing requires something more than making a singlerequest of another. For example, had the stipulated testimony shownthat respondent repeatedly requested, badgered or begged J.B. to lifther shirt, or explicitly or implicitly threatened J.B. into lifting her shirt,respondent's conduct would constitute coercion, persuasion orenticement as set forth in the statute. In the absence of any suchevidence, however, we cannot hold that the stipulated facts weresufficient to prove the elements of sexual exploitation of a child.

Likewise, we cannot conclude that respondent enticed orpersuaded J.B. to lift her shirt simply by virtue of the fact that shecomplied with respondent's request. The appellate court erred inholding that respondent persuaded J.B. to lift her shirt because it waslogical to conclude that J.B.'s decision to lift her shirt "was influencedsolely by respondent's solicitation" and that J.B. "would not havelifted her shirt had respondent not specifically urged her to do so."Contrary to the appellate court's interpretation, the only logicalinterpretation of the stipulated testimony is that J.B. lifted her shirtbecause respondent asked her to lift her shirt. The legislature has notmade the mere asking of a child to remove her clothing a violation ofthe sexual exploitation of a minor statute. This court must interpretand apply statutes in the manner in which they are written, and we canneither restrict nor enlarge the meaning of an unambiguous statute.Henrich v. Libertyville High School, 186 Ill. 2d 381, 394-95 (1998).That J.B. complied with respondent's request, then, without more, isnot sufficient to establish a violation of the statute.

Further, we agree with respondent that the appellate courtimproperly shifted the burden of proof when it held that becauserespondent failed to identify any other persuasive factor that wouldhave convinced J.B. to lift her shirt, the only rational conclusion wasthat J.B. was persuaded or coerced by respondent into lifting her shirt.The State must prove the elements of sexual exploitation of a childbeyond a reasonable doubt. See In re W.C., 167 Ill. 2d at 336. Here,the State failed to do so.

The appellate court also finds coercion by virtue of the agedifference between J.B. and the respondent, stating that "[o]ne couldeasily conclude that an 8-year-old girl would be intimidated by a 14-year-old boy who asked her to lift her shirt and expose her breasts."Given respondent's relative youth, however, we will not presume thatthe six-year age difference between respondent and J.B. in itselfestablished coercion. The age difference between the parties certainlywas a fact for the trial court to consider, and certainly could bedispositive if the offender was an adult or a person in a position ofauthority over the victim. As respondent observes, however, had thelegislature intended to criminalize conduct between two minors basedsolely upon their age differences, the legislature would have includeda presumptive inference of culpability based upon age differences inthe statute. See People v. Reed, 148 Ill. 2d 1 (1992) (upholdingstatute imposing greater penalty on adults who engage in sexualconduct with minors when the adults are five or more years older thanthe minors). Here, however, the stipulated testimony was notsufficient to establish that the age difference between respondent andJ.B. alone was sufficient to establish coercion. The stipulatedtestimony merely established that J.B. knew respondent from theneighborhood. Had the testimony shown that J.B. knew respondentfrom the neighborhood and believed him to be violent or threatening,or was otherwise fearful of him, we would agree with the appellatecourt that J.B. could have been intimidated when respondent askedher to lift her shirt. In this case, however, we will not assumeintimidation merely because J.B. complied with respondent's request.

Although we do not condone respondent's behavior in this case,we must reverse the judgment of the circuit and appellate courtsadjudicating respondent a delinquent minor for committing the offenseof sexual exploitation of a child. As noted, the legislature has notprovided that merely asking a child to remove her clothing violates thesexual exploitation of a child statute. Here, the stipulated evidenceestablished only that respondent asked J.B. to lift her shirt. Askingdoes not constitute coercing, persuading or enticing as set forth in thestatute. Consequently, the stipulated testimony failed to establishbeyond a reasonable doubt that respondent knowingly enticed,coerced or persuaded J.B. to lift her shirt.

Because we reverse the judgment adjudicating respondent adelinquent minor for committing the offense of sexual exploitation ofa child, we need not address respondent's challenge to the circuitcourt's order requiring him to register as a sex offender or hischallenge to the constitutionality of the Registration Act.

For all the foregoing reasons, the judgments of the circuit courtof Cook County and the appellate court are reversed.

Appellate court judgment reversed;

circuit court judgment reversed.