No. 3-04-0892 Filed January 18, 2007.

IN THE APPELLATE COURT OF ILLINOIS THIRD DISTRICT A.D., 2007 The People of the State ) Appeal from the Circuit of Illinois, ) Court of the 12 th Judicial ) Circuit, Will County, Petitioner-Appellee, ) Illinois, ) v. ) No. 03-CF-364 ) Dan Alexander, ) Honorable ) Daniel J. Rozak, Defendant-Appellant. ) Judge, Presiding. JUSTICE LYTTON delivered the Opinion of the court.

Defendant Dan Alexander was charged with two counts of sexual exploitation of a c hild. He was convicted and sentencedto 180 days in county jail and two years of pro bation. Additionally, the trial court ordered Alexande r to pay a fee for the coll ect ion of his DNA. The issues on appeal are (1) whether the State proved that Alexander pos sess edthe requisite criminal intent, or mens rea , for sexual exploitation of a child, and (2) whether the trial court possessed the authority to impose a DNA collection fee. We affirm in part and vacate in part.2 The evidence at trial indicated that Alexander had been

a neighbor of seven-year-old B.M.R., her nine-year-old sister A.M.R. and their mother. He would sometimes baby-sit the girls for their mother. B.M.R. testified that, when Alexander was babysitting her at the park, he asked her if she wanted to play with his pe nis and that “ the thing he goes to the bathroom with ” touchedher cheek on ce. A.M.R. testified that he would

“ mess[] with it ”andwould “ go up anddown on it ”but nothing

ever came out of “ it. ”Once, Alexander asked A.M.R. if he couldpull his pants down and she said no, so he did not. He made her promise not to tell anyone about the incident. A.M.R. testified that Alexander never asked her to touch him, and he never touched her. Detective Rob Plutz testified that he interviewed Alexander. During the interview, Alexander stated that he did not recall masturbating in front of the girls, but if he d id, he must have been “ smashed, ” and he was sorry. In hi s testimony, Al exand er denied ever making this statement to Detective Pl utz. However, Alexander admitted that he had drinking problems in the past. He had a prior DUI conviction and had been through a recovery program called

“ Stepping Stones ”to help him combat his alcoholism.3 Alexander maintained that he never ex p osed himself to the girls but that once, they pulled down his pants; he yelledat them but, at their request, did not tell their parents. Alexa nd er ’ s ex-girlfriend ’ s twenty-one-year-old daughter corroborated his testimony about this incident. Ajury found Alexander gui lty of two counts of sexual exploitation of a chi ld. Alexander was sentenced to 180 days in jail and two ye ars of probation. He was also orderedto pay a $10 collection fee for ma ndatory DNA testing and genetic marking. His motions for a new trial and a reduction in sentence were denied. I. Reasonable Doubt Alexander argues that the State failed to prove that he actedfor the purpose of his sexual arousal or gratification. Sexual exploitation of a child occurs when

“ [a]ny p erson *** in the presence of a child *** exposes his

or her sex organs, *** for the purpo se of sexual arousal or gratification of such person or the ch ild. ”720 ILCS 5/11- 9.1(a)(2) (West 2002). When faced with a challenge to the sufficiency of the evidence, we determ in e whether, after reviewing all of the evidence in the light most favorable to the State, any rational trier of fact could have found the el ements of the crime proven beyond a reasonable dou bt .4

People v. Collins , 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985). Alexander ’ s argument relies on A.M.R. ’ s testimony that nothing came out of Alexan der ’ s penis; thus, he argues that

“ sexual gratification ”was not proven beyond a reasona bl e doubt. Alexander seems to assume that the term “ sexu a l gratification, ” as used in 720 ILCS 5/11-9 .1(a)(2), has a technical or biological meaning that elude d th e jury in their deliberations. How ever, the term possesses no restrictive legal definition. We believe that a jury of twelve can determine the meaning of the term “ sexual gratification ”upon “ fair and open deliberati ons. ” See Jenkins v. State , 424 N.E.2d 1002, 1004 (Ind. 1981). Moreover, sexual gratification may be proven by circumstantial evidence. In re Donald R. , 343 Ill. App. 3d 237, 240, 796 N.E.2d 670, 673 (2003). In Donald R. , a sixyear-oldchild alleged that respondent showed “ his pr iva te part ”to her and made her touc h i t. The appellate court foundthat though there was only circumstan ti al evidence regarding the respondent ’ s sexual ar ous al or gratification,

“ it was not inherently implausible or unreasonable for the trier of fact to infer from the circumstantial evidence that the sixteen-year-old [respondent] e x posed his penis to the5

six-year-oldvicti m fo r the purpose of the [respondent ’ s] sexual gratification or arousal. ” Don al d R. , 343 Ill. App. 3d at 244, 796 N.E.2d at 676. Here, A.M.R. and B.M.R. testified that Alexander exposedhimself to them , m asturbated in front of them, and touchedB.M.R. inappropriate ly. Even considering A.M.R. ’ s t estimony that nothing came out of Alexander ’ s penis, it i s not “ inhe rently implausible ”that a rational trier of fact, confrontedwith this evidence, could have found that there

was suffic ien t proof that Alexander ’ s sexual gratification

was proven beyond a reasonable doubt. Accordingly, we affir mAlexander ’ s conviction of two counts of sexua l exploitation of a child. II. DNA Collection Fee Next, Alexander argues that the trial court exceeded its statutory authority in ordering him to pay a fee for the coll ection of his DNA. We consider questions regarding statutory authority de novo . In re K.C. , 325 Ill. App.3d 771, 776-777, 759 N.E.2d 15, 20-21 (2001). The State advances three arguments supporting the imposition of the fee. First, the State contends that Alexander waived his challenge to the fee because he did not object to the collection fee in the trial court. However,6

“ [w ]here a court*** exceeded its statutory power to act, any resulting judgme nt is void and may be attacked at any time. ” People v. Raczkowski , 359 Ill. App. 3d 494, 497, 834 N.E.2d 596, 599 (2005). Defendant has not waived this issue. Second, the State argues that the fee is a proper cost leviedon the defendan t. “ [ S]tatutory provisions regarding costs mus t be strictly construed. ” People v. Fales , 247 Ill. App. 3d 681, 682, 61 7 N.E.2d 421, 422 (1993). The statute states that, “ in addition t o an y other disposition, penalty, or fine imposed, [the defen dant] shall pay a [DNA] analysis fee of $200. ”730 ILCS 5/5-4 -3(j) (West 2004). It does not provide for the imposition of addit ional fees that

are not already otherwise authorized, such as fines, court costs or costs of prosecution. People v. Hunter , 385 Ill. App. 3d 1085, 1096, 831 N.E.2d 1192, 1199 (2005). Nothing in the statute authorizes the imposition of a DNA collection fee. People v. McAfee, ___ Ill. App. 3d___,___, 853 N.E.2d 107, 109 (2006). Thus, the trial court exceeded its power under the statute when it ordered Alexander to pay $10 for the collection of his DNA. Third, the State argues that Will County Administrative Order 03-31 granted the trial judge specific autho rity to impose the $10 collection fee. The State contends that the7

Will County order was properly en tered pursuant to subsections (a) and (b) of Supreme Court Rule 21 (94 Ill. 2d R. 21), which provides: "(a) Appellate Court and Circuit Court Rules. A ***majority of the circuit judges in each ci rcui t may adopt rules governing civil and criminal cases which are consistent with these rul es and the statutes of the State***. (b) General Orders. The chief judge of each circuit may enter general orders in the exercise of his general administrative authority, including orders providing for assignment of judges, general

or specialized division, and times and pl a ces of holding court." 94 Ill. 2d R. 21(a) and (b). Initially, th e State argues that “ [r]ule 21(a) should be properly i n terpreted as requiring only that each circuit ’ s rules be consistent with statute s that do not unduly infringe upon the ‘ judicial power, ’ ”citing People v. Joseph , 113 Ill. 2d 36, 46-47, 495 N.E.2d 501, 506 (1986). In Joseph , our supreme court struck down a portion of the Post-Conviction Hearing Act (Ill. Rev. Stat., 19 84 Su pp., ch. 38 par. 122-1 et seq. ) that restricted post-conviction judi cial assignments to judges who had not been involvedi n the original proceeding. Joseph , 113 Ill. 2d at 46, 4958

N.E.2dat 506. Th e co urt found the statute unconstitutional because it unduly encroached upon the judiciar y ’ s power to administer the court system. Joseph , 113 Ill. 2d at 48, 495 N.E.2d at 507. The St ate ’ s argument, however, would turn Joseph on its head. The issue here is not whether legislation appropriates judicial power, but whether the circui t court order infringes on the legislative power. The o rder , in effect, raises revenue for Will County by dir e cting convicteddefendants to provide reimbursement for the co s t of mandatory DNA testing. “ [T]he question of costs wh ich ar e to be allowed the successful party and the items of expense which are to be included therein is a question to be determin e dby the legislature. ”See Ritter v. Ritter , 381 Ill. 549, 553 -554, 46 N .E.2d 41, 43-44 (1943). The fee in this case is not a cost authorized by sta tute. Thus, under the order, the fee is an unconstitu tion al infringement on the legislative power rather than a val id e xercise of judicial power. The State also claims that Rule 21(b) authorizes the order. However, the order does not provide for the

“ assignmen t o f judges, ” nor does it delineate “ the times and pl aces of h olding court. ”94 Ill. 2d R. 21(b). Further,the chief judge ’ s general administrative au tho rity under

Rule 21(b) cannot appropriatel y enco mpass or purport to exercise a power so closely akin to t he revenue raising power of the legislature. See Ritter v. Ritter , 381 Ill. 549, 553-554, 46 N.E.2d 41, 43-44 (1943). Therefore, the order exceeds the powers granted to the chief judge under Rule 21(b). Order 03-31 violates the separation-of-powers clause
and is void. (Ill. Const. 1970, art . II, §1.) For the above stated reasons, the DNA collection fee is vacated. The judgement of the circuit court of Will County is affirmed in part and vacated in part. Affirmed in part; vacated in part. LYTTO N , PJ., with SCHMIDT, J., concurring and CARTER, J., specially concurring. CARTER, J., specially concurring. I concur with the majority as to the issues raised but write separately on the need for the legislature to amend the statute requiring Genetic Marker Group (DNA) Te st ing (730 ILCS 5/5-4-3 (West 2004)). The legislatu re s hould grant trial courts the authority to impose on defendants the cost of DNA co lle ctions. People v. Hunter , 358 Ill.App.3d 1085, 1097, 831 N.E.2d 1192, 1201 (2005). At present, the legislative specimen submission requirements make county government, in certain circumstances, responsible for10

offender compliance and, as such, r epresents an unfunded mandate on local government. Specimens collected for the Illinois State Police Laboratory have local cost implications which the legislature, in the exercise of its prerogative, should remedy.