2019 IL App (3d) 180625

Opinion filed April 9, 2019 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2019 

In re M.H., )

 ) 

 a Minor ) 

 ) 

(The People of the State of Illinois, ) 

 ) 

Petitioner-Appellee ) 

 ) 

 v. ) 

 ) 

M.H., ) 

 ) 

Respondent-Appellant). )

Appeal from the Circuit Court

of the 12th Judicial Circuit, 

Will County, Illinois. 

Appeal No. 3-18-0625 

Circuit No. 17-JD-353 

The Honorable 

Paula A. Gomora, 

Judge, presiding.

_____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court, with opinion. 

Justices O’Brien and Wright concurred in the judgment and opinion. 

_____________________________________________________________________________

 OPINION

¶ 1 Respondent M.H. was found delinquent and made a ward of the court after the trial court 

found him guilty of criminal sexual abuse of E.D., an 8-year-old girl, when he was 11 years old. 

The trial court sentenced M.H. to 24 months of probation and imposed various probation 

conditions, including requiring him to register as sex offender and barring him from accessing 

social media. On appeal, M.H. contends that (1) the evidence was insufficient to support his 

conviction, (2) the trial court erred in admitting prior statements of E.D. at the adjudicatory 
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hearing, (3) the Sex Offender Registration Act (730 ILCS 150/1 et seq. (West 2016)) and Sex 

Offender Community Notification Law (730 ILCS 152/101 et seq. (West 2016)) are 

unconstitutional as applied to him, and (4) barring him from accessing social media was 

unreasonable. We reverse, holding that the State failed to present sufficient evidence to support 

M.H.’s conviction for criminal sexual abuse. 

¶ 2 I. BACKGROUND

¶ 3 In August 2017, when M.H. was 16 years old, the State filed a petition for a finding of 

delinquency and an adjudication of wardship under the Juvenile Court Act of 1987 (705 ILCS 

405/5-101 et seq. (West 2016)). The petition alleged that M.H. committed criminal sexual abuse 

in that he “knowingly placed his penis on the vaginal area of [E.D.] for the sexual gratification of 

the minor” in violation of section 11-1.50(a)(2) of the Criminal Code of 2012 (720 ILCS 5/11-

1.50(a)(2) (West 2016)). The petition alleged that the conduct occurred “between January 1, 

2013 and December 31, 2013.” The State later amended its petition to allege that the conduct 

took place “between May 1, 2012 and December 1, 2012.” 

¶ 4 In December 2017, the State filed a notice of its intention to offer prior statements made 

by E.D. at the adjudicatory hearing as hearsay exceptions, pursuant to section 115-10 of Code of 

Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10 (West 2016)). The two statements the 

State sought to introduce were (1) a videotaped interview of E.D. that took place on May 7, 

2017, at the Will County Children’s Advocacy Center and (2) testimony from E.D.’s mother, 

Juana, that E.D. told her approximately two years earlier that M.H. had molested her. 

¶ 5 In January 2018, the trial court held a hearing pursuant to section 115-10 of the Code. At 

the hearing, the State presented the May 7, 2017, videotaped interview of E.D. During that 

interview, E.D. stated that when she was eight years old and in fourth grade, she was “raped” by 
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E.D., who was 11 years old. She said the incident started when M.H. told her he was curious and 

wanted to know what females look like “down there.” M.H. persuaded E.D. to go into her 

mother’s bedroom and take off her pants to show him the bottom half of her body. E.D. said 

“more sexual things” took place, including her being “raped” by M.H. She said that M.H. 

attempted “whatever an 11-year-old perceives sex as” to her vagina and anus. She thought she 

was lying on her back when M.H.’s penis touched her vagina and thought she was lying on her 

stomach when his penis touched her anus. She did not know if M.H.’s penis entered her vagina 

or anus and did not remember what his penis felt like. She said that M.H. did not ejaculate. She 

said she told her mother about the abuse when she was 10 years old. 

¶ 6 At the hearing, E.D.’s mother, Juana, testified that E.D. told her approximately two years 

earlier that M.H. had “molested” her in E.D.’s bedroom when he was living with them. At one 

point, E.D. used the word “rape” and told Juana “he did it to the front and to the back.” The next 

day, Juana called M.H.’s mother, Ana, who is also Juana’s sister. Ana and M.H. went to Juana’s

house, and M.H. denied that the incident occurred. Juana said she did not report the incident 

because she did not want to break up her family. According to Juana, E.D. later told her principal 

about the incident, and the principal called Juana and discussed it with her. E.D. later told a 

teacher, who reported it to the Illinois Department of Children and Family Services (DCFS).

¶ 7 After the hearing, the trial court ruled that both of the statements the State sought to 

introduce as hearsay exceptions were admissible at M.H.’s adjudicatory hearing. 

¶ 8 The adjudicatory hearing was held in March 2018. At the hearing, Juana provided 

testimony consistent with her testimony at the section 115-10 hearing, stating that when E.D. 

was approximately 11 years old, she told Juana that M.H. had “molested her.” 
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¶ 9 E.D. was born in June 2004. At the time of the adjudicatory hearing, she was 13 years 

old. She said that when she was “about eight years old,” M.H. “raped” her. She testified that 

M.H. was 10 to 12 years old at the time. She explained that she and M.H. were in the upstairs 

hallway of her home when he said he was curious about seeing a girl naked. She and M.H. then 

went into her mother’s bedroom, and they each took off their own pants. The next thing she 

remembers is lying on her stomach on her mother’s bed. M.H. got on top of her and touched his 

penis to her vaginal area from behind. This lasted “not even a few minutes.” After that, they both 

got dressed and left the bedroom. 

¶ 10 E.D. testified that she did not tell anyone after the incident because she “didn’t know 

what had happened was wrong.” She said M.H. told her, “this is something everybody does, 

people feel good about this.” As she got older and heard about “safe touches” in fifth grade, she 

discovered that what M.H. did “wasn’t okay.” She believes the incident “most likely” happened 

the summer before she entered the fourth grade. 

¶ 11 M.H., who was born in February 2001 and was 17 years old at the time of the 

adjudicatory hearing, testified that he never molested, raped, or inappropriately touched E.D. His

sister testified that her family and E.D.’s family used to be close, going on vacations and 

attending family gatherings together, but that their relationship deteriorated a few months before 

the adjudicatory proceeding began. M.H.’s mother, Ana, testified that M.H., E.D., and their 

sisters all shared the same bed when they spent the night at Bear Lodge in 2012 and Key Lime 

Cove in 2013. E.D. never complained about sharing a bed with M.H. Juana agreed that her 

children and Ana’s children spent the night in the same hotel room at Bear Lodge in 2012 and 

Key Lime Cove in 2013, but denied that M.H. and E.D. shared the same bed. 
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¶ 12 In March 2018, the trial court found M.H. guilty of criminal sexual assault. The court 

made M.H. a ward of the court and sentenced him to 24 months of probation. The court also

imposed various probation conditions, including requiring M.H. to register as sex offender and 

ordering him to “have no access to social media.” The trial court’s written order stated that M.H. 

“[s]hall not visit or be involved in any social media web sites such as Facebook or Twitter, etc. 

even with parent.” M.H. filed a motion for new trial and a motion to reconsider. The trial court 

denied the motions, but stayed M.H.’s sex offender registration pending appeal. 

¶ 13 II. ANALYSIS

¶ 14 In reviewing a challenge to the sufficiency of the evidence, we consider the evidence in 

the light most favorable to the prosecution and determine whether a rational trier of fact could 

have found the essential elements of the offense beyond a reasonable doubt. In re Matthew K.,

355 Ill. App. 3d 652, 655 (2005). “It is well settled that the State has the burden to prove every 

element of an offense beyond a reasonable doubt.” Id. 

¶ 15 “A person commits criminal sexual abuse if that person *** commits an act of sexual 

conduct and knows that the victim is unable to understand the nature of the act or is unable to 

give knowing consent.” 720 ILCS 5/11-1.50(a)(2) (West 2016). “Sexual conduct” is defined as 

“any knowing touching or fondling by the victim or the accused, either directly or through 

clothing of *** any part of the body of a child under 13 years of age *** for the purpose of 

sexual gratification or arousal of the victim or the accused.” 720 ILCS 5/11-0.1 (West 2016). 

¶ 16 When the accused is an adult, a trier of fact can infer that the accused acted for the 

purpose of sexual gratification or arousal. In re Matthew K., 355 Ill. App. 3d at 655. However, “it 

is not justified to impute the same intent into a child’s action that one could reasonably impute 

into the actions of an adult.” In re A.J.H., 210 Ill. App. 3d 65, 72 (1991). The State must present 
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sufficient evidence to show that a minor acted with the intent of sexual gratification. In re 

Matthew K., 355 Ill. App. 3d at 655-56. Without evidence that the accused’s actions were 

intended to sexually gratify himself or the victim, “an essential element of the crime is missing.” 

In re A.J.H., 210 Ill. App. 3d at 72. 

¶ 17 “[S]exual gratification may be proven with circumstantial evidence.” In re Matthew K., 

355 Ill. App. 3d at 656. 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. See id. at 655. Sexually explicit comments by the accused may 

also support a finding that the accused acted for purposes of sexual gratification or arousal. See 

In re D.H., 381 Ill. App. 3d 737, 741 (2008). 

¶ 18 “[T]he issue of intent of sexual gratification in minors must be determined on a case-bycase basis.” In re Matthew K., 355 Ill. App. 3d at 656-57. There is “no bright-line test.” Id. at 

657. The trier of fact “must consider all of the evidence, including the offender’s age and 

maturity, before deciding whether intent can be inferred.” Id. 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 and arousal. See In re Donald R., 343 Ill. App. 3d 237, 244 (2003). Sexual 

conduct by 11 to 13 year olds “is more apt to be innocent than similar conduct by older minors.” 

Id. at 247 (Holdridge, J., concurring). 

¶ 19 According to the time period alleged in the adjudication petition, M.H. was 11 years old

at the time of the incident. Because M.H. was a minor, the trier of fact could not infer that M.H.

acted for the purpose of sexual gratification or arousal when he touched his penis to E.D.’s 

vagina. See In re Matthew K., 355 Ill. App. 3d at 655; In re A.J.H., 210 Ill. App. 3d at 72. 
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Instead, the State had to present evidence that M.H. acted for such a purpose. See In re Matthew 

K., 355 Ill. App. 3d at 655-56; In re A.J.H., 210 Ill. App. 3d at 72. 

¶ 20 The only evidence the State presented at the adjudicatory hearing was the act itself and 

M.H.’s statement to E.D. that “this is something everybody does, people feel good about this.” 

We find this insufficient to prove that M.H. acted for the purpose of sexual gratification or 

arousal. There was no evidence that during the encounter with E.D., which lasted “not even a 

few minutes,” M.H. showed any signs of sexual arousal, such as heavy breathing or an erection. 

E.D. expressly denied that M.H. ejaculated. There was also no evidence that M.H. placed E.D.’s

hand on his penis or made any sexual references or comments to E.D. M.H.’s statement that “this 

is something everybody does, people feel good about this” does not establish that M.H. acted for 

the purpose of sexual gratification or arousal. Rather, it shows M.H.’s immaturity and his 

complete lack of understanding of sex. 

¶ 21 Accepting E.D.’s testimony as true, the State failed to present evidence that M.H.’s

actions were motivated by anything other than preadolescent curiosity. In light of the evidence, 

no rational trier of fact could have found beyond a reasonable doubt that M.H. acted with the 

purpose of sexual gratification or arousal. Because the State failed to prove an essential element 

of criminal sexual abuse, we reverse M.H.’s conviction. 

¶ 22 III. CONCLUSION

¶ 23 The judgment of the circuit court of Will County is reversed.

¶ 24 Reversed.