In re MATTHEW K., a Minor (The People of the State of Illinois, Petitioner-Appellee, v. Matthew K., Respondent-Appellant), 355 Ill. App. 3d 652

JUSTICE McLAREN delivered the opinion of the court: Matthew K., a minor, appeals the trial court’s adjudication of delinquency and wardship after finding Matthew guilty of two counts of aggravated criminal sexual abuse (720 ILCS 5/12 — 16(c)(2)(i) (West 2002)), and sentencing him to 24 months’ probation and registration as a sex offender (730 ILCS 150/2, 3 (West 2002)). We reverse and remand for a new dispositional hearing. The facts are taken from the record.

On April 13, 2004, the State filed a petition for wardship charging Matthew K. with having committed sex-related offenses against sisters Aliena L. and Madeline L. between September 23, 2002, and October 4, 2002. Matthew was acquitted of the charged offenses against Madeline because she was too young to competently testify. At the bench trial on the charged offenses against Aliena, the State presented evidence that, at the time of the alleged offenses, Matthew was 12 and Aliena was 8 years old.

Aliena testified that, on one occasion, she and Matthew were in Matthew’s bedroom playing a game they called “survival.” Matthew set the rules for the game and told the other children present to leave and return in five minutes. While Aliena and Matthew were alone in Matthew’s room, Aliena sat on Matthew’s lap and Matthew told Aliena that they would “do massages.” With Aliena’s pants down, Matthew touched Aliena’s “privates.” Matthew slid his finger in “a little” but “not too much.” When Aliena told Matthew that it tickled, Matthew told her to cover her mouth.

Then Matthew gave Aliena a “tongue massage” by putting his mouth to her mouth and wiggling his tongue. Matthew also lifted Aliena’s shirt and gave Aliena a belly massage. Aliena did not notice anything unusual about Matthew, and Matthew did not make any special sounds, threaten Aliena, or remove his own clothing. Matthew told Aliena to keep the incident a secret. At that point, the other children knocked on the door, Aliena lifted up her underwear, and Matthew opened the door. That night, Aliena told her parents about the incident.

Aliena’s mother testified that Aliena told her that after locking the door to his bedroom, Matthew massaged Aliena’s “pee-pee” with his tongue and asked Aliena to “suck his wiener.” Chief of child psychiatry at Rush-Presbyterian-St. Luke’s Hospital Louis Kraus, M.D., was deemed “eminently qualified” by the trial court. Dr. Kraus testified that Matthew was socially immature, had few friends, and had trouble keeping up with his peers. Matthew had a difficult time at summer camp where the other kids talked about sexual experiences and ridiculed Matthew.

Matthew participated in some consensual petting at camp, but felt very uncomfortable with the situation. Regarding the charged offenses, Matthew told Dr. Kraus that he rubbed Aliena’s back, kissed her with his tongue for 10 to 15 seconds, reached into her pants, and put his hand on her vagina for 10 or 15 seconds but did not insert his finger. Matthew denied locking the door but admitted that he told Aliena not to tell anyone about the incident. Matthew told Dr. Kraus that he did not know what his motivation was, but that it was not about sexual arousal or ejaculation.

Matthew said that he wanted to see what it felt like. Dr. Kraus testified that he found no evidence that Matthew sexually gratified or attempted to sexually gratify himself or Aliena. Dr. Kraus’s “strong opinion to a reasonable degree of medical certainty” was that Matthew had no interest in becoming sexually aroused. Dr. Kraus explained, “it was simply a brief, socially inept *** behavior that occurred.” Matthew’s actions could be better understood as those of a 10-year-old rather than a 12-year-old.

During closing argument, counsel for Matthew argued that the State failed to prove that Matthew acted with the purpose of sexual gratification or arousal. Due to the lack of evidence regarding this element, counsel asked for a finding on the lesser included offense of battery (720 ILCS 5/12 — 3(a)(2) (West 2002)). The trial court found Matthew guilty of two counts of aggravated criminal sexual abuse as to Aliena. The trial court denied Matthew’s motion to reconsider the finding and reopen proofs. This timely appeal followed.

On appeal, Matthew argues that the State failed to prove beyond a reasonable doubt that Matthew acted with the intent to sexually gratify or arouse. Due to the lack of evidence as to this essential element, we agree with Matthew. It is well settled that the State has the burden to prove every element of an offense beyond a reasonable doubt. Matthew was found guilty of aggravated criminal sexual abuse under

section 12— 16(c)(2)(i), which provides in pertinent part: “The accused commits aggravated criminal sexual abuse if: the accused was under 17 years of age and (

i) commits

an act of sexual conduct with a victim who was under 9 years of age when the act was committed[.]” (Emphasis added.) 720 ILCS 5/12 — 16(c)(2)(i) (West 2002). Sexual conduct is defined in pertinent part as an “intentional or knowing touching or fondling *** for the purpose of sexual gratification or arousal of the victim or the accused.” 720 ILCS 5/12 — 12(e) (West 2002). When the accused is an adult, a fact finder can infer that an accused intended sexual gratification.

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 standard of review in a challenge to the sufficiency of the evidence is whether, when considering all of the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. People v. Hurtado-Rodriguez, 326 Ill. App. 3d 76, 84 (2001).

We will not substitute our judgment for the judgment of the trier of fact unless the judgment was inherently implausible or unreasonable. In re Donald R., 343 Ill. App. 3d 237, 244 (2003). In this case, Matthew was found guilty of counts VII and VIII: fondling the victim’s vagina and placing his tongue on the victim’s mouth. However, the State presented no evidence that Matthew acted with the purpose of sexual gratification. The victim testified that she noticed nothing unusual when Matthew touched her.

There was no evidence that Matthew removed his clothing, breathed heavily, placed the victim’s hand on his penis, or had an erection or any other observable signs of arousal. Further, child psychiatrist Dr. Kraus, whom the trial court found to be “eminently qualified,” opined that Matthew did not act with the intent to sexually gratify himself or the victim. Rather, Dr. Kraus opined that Matthew was “a socially deficient 12-year-old, maybe acting at the level of a 10-year-old, playing doctor with a 7-year-old.” Although the trier of fact was free to ignore Dr.

Kraus’s testimony, the State presented no evidence that contradicted it. In light of the State’s lack of evidence of intent, no rational trier of fact could have found beyond a reasonable doubt that Matthew acted with the purpose of sexual gratification or arousal. We recognize that intent of sexual gratification may be proven with circumstantial evidence. See People v. C.H., 237 Ill. App. 3d 462 (1992). However, we do not believe that the State presented sufficient circumstantial evidence in this case. Despite our holdings in A.J.H. and In re E.R.E., 245 Ill.

App. 3d 669 (1993), the State now urges us to hold that the trier of fact in this case reasonably inferred intent of sexual gratification. The State cites In re Donald R. to support its argument. We believe that the facts in this case are more similar to those in A.J.H. and E.R.E than to those in Donald R. In A.J.H., a 13-year-old girl was accused of aggravated criminal sexual abuse for touching the penis of a 5-year-old boy for whom she baby-sat. The victim testified that the minor had touched his penis, skin-to-skin, for four to five seconds and then told him not to tell anyone. A.J.H., 210 Ill.

App. 3d at 67-68. The State argued in A.J.H., as it does here, that the above evidence was sufficient to infer the requisite sexual intent. We rejected that claim, reasoning that “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.” A.J.H., 210 Ill. App. 3d at 72. In E.R.E., a 12-year-old boy was accused of aggravated criminal sexual abuse for touching the vagina of a 6-year-old girl. The victim testified that the minor had touched her “private parts” over her clothes, and then told her not to tell anyone.

Stating that the evidence was weaker than that presented in A.J.H., we reversed the trial court’s adjudication and held that the State failed to prove the sexual gratification element beyond a reasonable doubt. E.R.E., 245 Ill. App. 3d at 674. In Donald R., the case cited by the State to support its argument, a 16-year-old boy was accused of aggravated criminal sexual abuse and sexual exploitation of a child by exposing his penis to a 6-year-old girl and having her touch his penis. Donald R., 343 Ill. App. 3d at 241.

Because Matthew’s age is closer to the minors in A.J.H. and E.R.E. than to the minor in Donald R., we believe that A.J.H. and E.R.E. have greater applicability. In Donald R., the minor was 16 years old, significantly closer to adulthood than the 12- and 13-year-old offenders in A.J.H., E.R.E., and this case. Thus, an inference of sexual gratification was reasonable in Donald R., while the same inference, without any evidence of intent, is unreasonable here. As our analysis of these cases implies, the issue of intent of sexual gratification in minors must be determined on a case-by-case basis.

There can be no bright-line test. The fact finder must consider all of the evidence, including the offender’s age and maturity, before deciding whether intent can be inferred. In this case, the State failed to prove an essential element of the offense and, thus, failed to prove Matthew guilty beyond a reasonable doubt of aggravated criminal sexual abuse. Exercising our power in accordance with Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615 (b)(3)), we reduce the convictions to two counts of the lesser included offense of battery (720 ILCS 5/12 — 3(a)(2) (West 2002)) and remand for resentencing.

Because we have determined that the trial court erred by finding Matthew guilty of aggravated criminal sexual abuse, we need not address his other arguments on appeal. The judgment of the circuit court of Lake County is reversed and the cause is remanded for a new dispositional hearing. Reversed and remanded for a new dispositional hearing. BYRNE, J., concurs.