People v. Higginbotham

No. 2--95--0490

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
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THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of Lake County.
)
Plaintiff-Appellee, ) No. 94--CF--1728
)
v. )
)
BLAKE L. HIGGINBOTHAM, ) Honorable
) Michael J. Fritz,
Defendant-Appellant. ) Judge, Presiding.
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JUSTICE McLAREN delivered the opinion of the court:

Following a bench trial, defendant, Blake Higginbotham, was
convicted of aggravated criminal sexual abuse (720 ILCS 5/12--
16(c)(1)(i) (West 1992)) and battery (720 ILCS 5/12--3(a)(2) (West
1992)). He was sentenced to probation with conditions of 10
months' periodic imprisonment, restitution, and sex offender
treatment. Defendant appeals his aggravated criminal sexual abuse
conviction, raising two issues: whether he was proved guilty
beyond a reasonable doubt; and whether he was denied a fair trial
by the admission of improper evidence.
Defendant was charged with committing an act of sexual conduct
with T.S., who was under 13 years of age when the act was
committed, in that defendant placed T.S.'s hand on his stomach for
his sexual arousal. We will summarize only those facts relevant to
the issues raised on appeal.
At trial, on January 17, 1995, T.S. testified that she was a
14-year-old high school freshman. T.S. had been a member of a
church of which defendant was the pastor. T.S. was asked about
what happened in the fall of 1992. She stated that, on a Saturday,
she went to defendant's house in Round Lake Beach, to spend time
with him. T.S. went downstairs to the basement, and, about five
minutes later, defendant came downstairs wearing nothing but ruby-
colored brief underwear. He lay down on his back on the couch, and
T.S. kneeled on the floor next to him. Defendant told T.S. to rub
his stomach, which she did for about 15 minutes. Defendant rolled
the waistband down once and directed T.S. to rub down to the
waistband. She complied. T.S. stopped rubbing and went into the
bathroom for a few minutes. When she came back out, defendant was
gone. He came back downstairs, and T.S. noticed that he had an
erection. Defendant returned to the couch, gave T.S. a pair of
tweezers, and told her to pluck his gray chest hairs. While T.S.
plucked, defendant made comments such as, " 'That's the one I was
waiting for you to pull' or 'that felt good.' " Defendant then
took a shower. The evidence revealed that defendant was over the
age of 17 when this occurred.
Defendant first contends that the State failed to prove beyond
a reasonable doubt that there was sexual conduct and that the
victim was under 13 years old. A reviewing court will not overturn
a conviction if it determines, after viewing all the evidence in
the light most favorable to the prosecution, that any rational
trier of fact could have found the elements of the offense beyond
a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261
(1985). Although it is not our function to retry the defendant or
reweigh the evidence, where the evidence is so improbable or
unsatisfactory, the conviction cannot stand. People v. Steidl, 142 Ill. 2d 204, 226 (1991). We may not substitute our judgment for
that of the trier of fact on questions involving the weight of the
evidence or the credibility of the witnesses. People v. Batchelor,
171 Ill. 2d 367, 376 (1996). Here, the trial court found T.S.'s
testimony credible, and, therefore, we must accept it in
determining whether the trial court could have found the elements
of the offense beyond a reasonable doubt.
As charged here, a person commits aggravated criminal sexual
abuse if he was over 17 years of age and committed an act of sexual
conduct with a person who was less than 13 years old. 720 ILCS
5/12--16(c)(1)(i) (West 1992). "Sexual conduct" is defined as "any
intentional or 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, for the purpose of sexual
gratification or arousal of the victim or the accused." (Emphasis
added.) 720 ILCS 5/12--12(e) (West 1992).
Defendant argues that he could not have committed aggravated
criminal sexual abuse because he did not touch any part of T.S.'s
body; rather, her hand touched a part of his body. The State
responds that T.S.'s hand is a part of her body and that her hand
made physical contact with, "touched," defendant's body. The State
therefore reasons that there was intentional touching by the
defendant of any part of the body of T.S. We believe this is a
strained and improper reading of the statute.
The primary rule of statutory interpretation is to ascertain
and give effect to the legislative intent. People v. Britz, 174 Ill. 2d 163, 196 (1996). To determine that intent, we first look
to the language of the statute, which is given its plain and
ordinary meaning. People v. Haynes, 174 Ill. 2d 204, 222 (1996).
We must also consider all parts of the statute together (People v.
Warren, 173 Ill. 2d 348, 357 (1996)), and give every word or phrase
some reasonable meaning (Opyt's Amoco, Inc. v. Village of South
Holland, 149 Ill. 2d 265, 277 (1992)). Criminal statutes are
construed strictly in favor of the defendant, and courts should
take nothing by intendment or implication beyond the obvious or
literal meaning of the statute. People v. Woodard, 175 Ill. 2d 435, 444 (1997).
The statute defines sexual conduct as touching by the accused
of any part of the body of a child under the age of 13, or touching
by the child of the sex organs, anus, or breast of the accused.
The State's interpretation would nullify the statutory language
that prohibits the touching or fondling by the victim of only those
areas specified in the statute. "Touch" means "to bring a bodily
part briefly into contact so as to feel" or "to strike or push
lightly: extend the hand or foot or an implement so as to reach,
nudge, stir up, inspect, or arouse," or "to examine by touching or
feeling with the fingers," or "to feel something with a body part
(as the hand or foot)." Webster's Third New International
Dictionary 2415-16 (1986). Defendant did not bring a bodily part
into contact with a part of T.S.'s body so as to feel it; rather,
T.S. touched defendant. The statute does not prohibit the touching
or fondling of any part of anyone's body when the child is under 13
years of age. The statute prohibits the touching or fondling of
any part of the child's body. Thus, T.S.'s touching of defendant's
stomach does not fall within the statutory proscription, and
defendant's conduct, though reprehensible, does not constitute
aggravated criminal sexual abuse under the facts presented in this
case.
Because we conclude that the aggravated criminal sexual abuse
conviction must be reversed, we need not address defendant's other
arguments.
The judgment of aggravated criminal sexual abuse in the
circuit court of Lake County is reversed.
Reversed.
INGLIS and HUTCHINSON, JJ., concur.