THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. HOWARD J. HILLIER, Defendant-Appellant, 392 Ill. App. 3d 66

JUSTICE LYTTON delivered the opinion of the court: Defendant, Howard Hillier, was charged with predatory criminal sexual assault of a child (720 ILCS 5/12 — 14.1(a)(1) (West 2006)). The trial court found defendant guilty. Before sentencing, the trial court ordered defendant to participate in a sex offender evaluation. The trial court sentenced defendant to 20 years in prison based, in part, on the results of the sex offender evaluation.

On appeal, defendant asks that (1) his conviction be reversed because the evidence was insufficient to prove him guilty of predatory criminal sexual assault of a child, and (2) his sentence be vacated because the trial court violated Illinois law and his fifth amendment rights by compelling him to submit to a sex offender evaluation. We affirm. On June 28, 2006, defendant was charged by information with predatory criminal sexual assault of a child “in that from on or about February 15, 1998, to February 14, 2000, the said defendant, who was 17 years or older, committed

an act of sexual penetration with J.L.J., who was under 13 years of age when the act was committed, in that the defendant placed his finger in the vagina of J.L.J. in violation of 720 ILCS 5/12 — 14.1(a)(1).” A bench trial was held on December 19 and 20, 2006. At defendant’s trial, J.L.J. testified that she was born in 1991. Defendant was her stepfather and “sexually abused” her for two years from approximately 1998 to 2000. The abuse began when J.L.J. was seven or eight years old.

According to J.L.J., defendant “put his hands down my pants and he fondled my breasts.” The prosecutor asked J.L.J. the following questions and received the following responses from J.L.J.: “Q. Did he ever do anything else to you? Did he touch you in any way or place his finger anywhere? A. Yes. Q. Where did he place his finger? A. My vagina.” Defendant testified that he used to be married to J.L.J.’s mother.

He denied ever “placing [his] finger inside J.L.J.’s vagina” or “fondling her breasts.” The trial court ruled that “the State proved its case beyond a reasonable doubt” and found defendant guilty of predatory criminal sexual assault of a child. The trial court directed the probation office to prepare a presentence investigation. The State then filed a motion for a sex offender evaluation. The trial court granted the motion and entered an order requiring defendant to undergo a sex offender evaluation.

In its order, the court stated: “That it was the intention of the Court, at the time the Defendant was found guilty of the offense in the above captioned case, to order a sex offender evaluation as well as a pre-sentence investigation.” Defendant underwent a sex offender evaluation, which was conducted by a clinical social worker at a mental health facility. During the evaluation, defendant denied sexually abusing J.L.J.

As part of the evaluation, the social worker assessed defendant’s risk to reoffend using STATIC 99, “an instrument designed to assist in the prediction of sexual and violent recidivism for sexual offenders.” The results of that assessment were as follows: “Mr. Hillier scored a 6 on this risk assessment. Individuals with these characteristics, on average sexually reoffend at 39% over five years, 45% over 10 years and 52% over 15 years. The rate for any violent recidivism (including sexual) for individuals with these characteristics is, on average, 44% over 5 years, 51% over 10 years and 59% over 15 years.

Based on the STATIC 99 score this places Mr. Hillier in the high category or between the top 12% risk category relative to other male sex offenders.” At defendant’s sentencing hearing, the trial court took into consideration the results of defendant’s sex offender evaluation. The court explained: “This might be an entirely different situation had that assessment come back and said that you are not at risk of re-offending but this, in fact, indicated that you were a higher risk of re-offending because of everything contained within that statement.” The trial court sentenced defendant to 20 years in prison. I.

SUFFICIENCY OF THE EVIDENCE Defendant argues that he was not proven guilty beyond a reasonable doubt of predatory criminal sexual assault of a child because J.L.J. never testified that he placed his finger inside her vagina. A defendant is guilty of predatory criminal assault of a child if he “was 17 years of age or over and commits

an act of sexual penetration with a victim who was under 13 years of age when the act was committed.” 720 ILCS 5/12 — 14.1(a)(1) (West 2006). “ ‘Sexual penetration’ means *** any intrusion, however slight, of any part of the body of one person *** into the sex organ or anus of another person.” 720 ILCS 5/12—12(f) (West 2006). When a defendant challenges the sufficiency of the evidence, the appropriate standard of review is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

People v. Bell, 234 Ill. App. 3d 631, 635-36, 600 N.E.2d 902, 906 (1992). Whether sexual penetration occurred is a question of fact to be determined by the trier of fact. People v. Herring, 324 Ill. App. 3d 458, 464, 754 N.E.2d 385, 390 (2001); Bell, 234 Ill. App. 3d at 636, 600 N.E.2d at 906. It is the function of the trier of fact to determine credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. Herring, 324 Ill. App. 3d at 464, 754 N.E.2d at 390.

The trier of fact is entitled to draw all reasonable inferences from both circumstantial and direct evidence, including an inference of penetration. Herring, 324 Ill. App. 3d at 465, 754 N.E.2d at 391. A jury may reasonably infer that

an act of penetration occurred based on testimony that the defendant “rubbed,” “felt” or “handled” the victim’s vagina. Bell, 234 Ill. App. 3d at 636-67, 600 N.E.2d at 906-07. Such an inference is unreasonable only if the victim denies that penetration occurred. See Bell, 234 Ill. App. 3d at 637, 600 N.E.2d at 907. Here, there was sufficient evidence presented to establish that defendant sexually penetrated J.L.J. When J.L.J. was asked where defendant “placed his finger,” she responded, “my vagina.” J.L.J. never denied that defendant penetrated her.

Based on J.L.J.’s statement, the trial court could have reasonably inferred that defendant penetrated J.L.J.’s vagina with his finger. See Bell, 234 Ill. App. 3d at 636-67, 600 N.E.2d at 906-07. Thus, defendant was proven guilty beyond a reasonable doubt of predatory criminal sexual assault of J.L.J. II. STATUTORY AND FIFTH AMENDMENT CLAIMS Defendant also argues that his sentence should be vacated because the trial court violated state law, as well as his fifth amendment rights, when it ordered him to participate in a sex offender evaluation. A.

Statutory Claim In Illinois, a presentence report must be completed in all felony cases, which sets forth certain information about the defendant. See 730 ILCS 5/5—3—2 (West 2006). When a felony sex offender is being considered for probation, he is required to submit to a sex offender evaluation as part of the presentence investigation. 20 ILCS 4026/16 (West 2006); 730 ILCS 5/5 — 3—2(b—5) (West 2006).

A sex offender evaluation must include an assessment of the defendant’s risk of re-offending, which is to be evaluated by a “validated risk instrument that is generally accepted by sex offender evaluators,” such as “STATIC 99.” 20 Ill. Adm. Code §§1905.240(k)(5), (k)(7). Here, defendant was convicted of predatory criminal sexual assault of a child, a nonprobationary Class X felony. See 720 ILCS 5/12— 14.1(b)(1) (West 2006); 730 ILCS 5/5 — 5—3(c)(2)(c) (West 2006). Nevertheless, the trial court ordered defendant to undergo a sex offender evaluation.

Based on defendant’s STATIC 99 score, defendant fell in the “high category” of recidivism. The trial court considered the results of the evaluation when sentencing defendant. Defendant contends that the trial court should not have ordered him to submit to a sex offender evaluation because he was not eligible for probation. There is no requirement for a sex offender who is not eligible for probation to submit to a sex offender evaluation. However, the statute does not prohibit a trial court from ordering a sex offender evaluation for a defendant who is not eligible for probation.

In fact, the statute specifically allows the trial court to order supplementary information to be included in the report. See 730 ILCS 5/5 — 3—2(a)(6), (b) (West 2006). We see no reason to disallow a sex offender evaluation in nonprobationary cases if the trial court deems it helpful in sentencing a defendant. The trial court did not err in requiring defendant to submit to the sex offender evaluation. B. Fifth Amendment Claim The fifth amendment to the United States Constitution provides that “[n]o person *** shall be compelled in any criminal case to be a witness against himself.” U.S. Const., amend. V.

This prohibition permits an individual “ ‘not to answer official questions put to him in any *** proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.’ ” Minnesota v. Murphy, 465 U.S. 420, 426, 79 L. Ed. 2d 409, 418, 104 S. Ct. 1136, 1141 (1984), quoting Lefkowitz v. Turley, 414 U.S. 70, 77, 38 L. Ed. 2d 274, 281, 94 S. Ct. 316, 322 (1984). The fifth amendment privilege extends to sentencing proceedings. Mitchell v. United States, 526 U.S. 314, 325, 143 L. Ed. 2d 424, 435, 119 S. Ct. 1307, 1313-14 (1999).

The fifth amendment speaks of compulsion; it does not preclude a witness from testifying voluntarily in matters that may incriminate him. Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. Therefore, if a witness desires the protection of the privilege, he must claim it or he will not be considered to have been “compelled” within the meaning of the amendment. Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. An exception to the general rule exists when the witness is interrogated while held in police custody, Murphy, 465 at 430, 79 L. Ed. 2d at 421, 104 S. Ct. at 1143.

When in police custody, a defendant must be notified of his fifth amendment right to remain silent and his right to the presence of an attorney before being questioned. Miranda v. Arizona, 384 U.S. 436, 444-45, 16 L. Ed. 2d 694, 706-07, 86 S. Ct. 1602, 1612 (1966).

Miranda warnings are necessary when police officers are interrogating defendants who are in custody because officers are “ ‘acutely aware of the potentially incriminating nature of the disclosures sought’ ” and the custodial setting contains “ ‘inherently compelling pressures which work to undermine the individual’s will to resist and to compel him to speak where he would not otherwise do so freely.’ ” Murphy, 465 U.S. at 429-30, 79 L. Ed. 2d at 421, 104 S. Ct. at 1143, quoting Garner v. United States, 424 U.S. 648, 657, 47 L. Ed. 2d 370, 379, 96 S.

Ct. 1178, 1184 (1976), and quoting Miranda, 389 U.S. at 467, 16 L. Ed. 2d at 719, 86 S. Ct. at 1624. The Supreme Court has consistently held that Miranda “ ‘does not apply outside the context of the inherently coercive custodial interrogations for which it was designed.’ ” Murphy, 465 U.S. at 430, 79 L. Ed. 2d at 421, 104 S. Ct. at 1143-44, quoting Roberts v. United States, 445 U.S. 552, 560, 63 L. Ed. 2d 622, 630-31, 100 S. Ct. 1358, 1364 (1980). Defendant argues that he was entitled to Miranda warnings prior to the sex offender evaluation. In support thereof, he cites Estelle v. Smith, 451 U.S. 454, 68 L.

Ed. 2d 359, 101 S. Ct. 1866 (1981). In Estelle, the defendant underwent a compelled pretrial psychiatric evaluation to determine if he was fit to stand trial. The State relied on statements the defendant made during that evaluation to establish his future dangerousness at the penalty phase of his capital trial. The Supreme Court held that the defendant’s statements could not be used for that purpose because the defendant was not advised before the evaluation that he had a right to remain silent and that any statement he made could be used against him at sentencing. Estelle, 451 U.S. at 467-68, 68 L.

Ed. 2d at 371, 101 S. Ct. at 1875-76. In Estelle, the Supreme Court substantially limited its holding to the facts of that case, stating: “we do not hold that the same Fifth Amendment concerns are necessarily presented by all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination.” Estelle, 451 U.S. at 469 n.13, 68 L. Ed. 2d at 373 n.13, 101 S. Ct. at 1876 n.13. Relying on the above-quoted language, the court in Baumann v.

United States, 692 E2d 565, 576 (9th Cir. 1982), held that Estelle did not require that a convicted defendant receive Miranda warnings prior to submitting to a presentence interview. The court explained: “[T]here is a substantial difference between a psychiatric examination of the defendant in a capital case which seeks to elicit evidence from the defendant relating to the critical aggravating factor of dangerousness, and a ‘routine’ presentence interview [citation], restricted to gathering information upon which the district court, in its discretion, may rely when imposing sentence.

As we read Estelle, the Court’s fifth amendment holding is limited to the distinct circumstances of the bifurcated capital proceedings presented in that case.” Baumann, 692 F.2d at 576. Since the Baumann decision, several courts have agreed that Miranda warnings are not required to be given prior to presentence interviews. See United States v. Rogers, 921 F.2d 975 (10th Cir. 1990); United States v. Miller, 910 F.2d 1321 (6th Cir. 1990); United States v. Cortes, 922 F.2d 123 (2d Cir. 1990); People v. Corrigan, 129 Ill. App. 3d 787, 473 N.E.2d 140 (1985); People v. Bachman, 127 Ill.

App. 3d 179, 468 N.E.2d 817 (1984). In Cortes, the court explained that the pretrial psychological evaluation in Estelle was readily distinguishable from a presentence interview because the defendant in Estelle was ordered to submit to an interrogation for one purpose and did not know that the prosecution would subsequently use the information against him for an entirely different purpose. See Cortes, 922 F.2d at 126-27. A defendant participating in a presentence interview, on the other hand, knows that the information he provides will be used in sentencing and may have an adverse effect on his sentence.

Cortes, 922 F.2d at 126-27. See also Rogers, 921 F.2d at 981 (found psychological examination in Estelle distinguishable from a postconviction presentence interview because the examination in Estelle occurred before defendant’s trial, and the information obtained in that evaluation “was used by the government to carry its burden of proof at the penalty phase of a capital murder trial”). In the same vein, courts have ruled that a defendant need not be provided Miranda warnings before being required to submit to a presentence psychosexual evaluation. In Dzul v.

State, 118 Nev. 681, 687, 56 E3d 875, 879 (2002), the Nevada Supreme Court considered whether a defendant was entitled to Miranda warnings before psychosexual interviews. The defendant in Dzul cited Estelle in support of his position that he was entitled to Miranda warnings. Dzul, 118 Nev. at 685, 56 F.3d at 878. The court found Estelle distinguishable because the defendant in Dzul was interviewed after he was convicted and was informed in advance that the psychosexual evaluation was for the purpose of determining his sentence. Dzul, 118 Nev. at 686; 56 E3d at 878.

The court also noted that “Dzul had the assistance of counsel throughout the proceedings, never invoked his right against self-incrimination, and does not dispute that he was Mirandized when he first spoke with police during their investigation in this case.” Dzul, 118 Nev. at 686, 56 F.3d at 878-89. The court concluded that the State did not violate Dzul’s constitutional rights. Dzul, 118 Nev. at 687, 56 F.3d at 879. See also State v.

Curless, 137 Idaho 138, 144-45, 44 F.3d 1193, 1199-1200 (App. 2002) (no Miranda warnings required prior to a postconviction psychosexual evaluation because it is more akin to a presentence interview than the pretrial competency evaluation in Estelle). We find these cases persuasive. Unlike the defendant in Estelle who was required to undergo a pretrial competency evaluation, defendant here was ordered to participate in the evaluation after he was convicted. Additionally, defendant was informed of the purpose of the evaluation, and the evaluation was used solely for that purpose.

Thus, Estelle is distinguishable and not controlling here; defendant was not entitled to Miranda warnings prior to being compelled to participate in the court-ordered sex offender evaluation. When defendants are not entitled to Miranda warnings, they must either claim the fifth amendment privilege or they waive it. See Murphy, 465 U.S. at 427, 79 L. Ed. 2d at 419, 104 S. Ct. at 1142. Here, since defendant never asserted his fifth amendment privilege, he was not entitled to its protections, and his claim must fail. CONCLUSION The judgment of the circuit court of Knox County is affirmed. Affirmed.

SCHMIDT, J., concurs.