People v. Woodrum

Docket No. 99984.

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROBERT WOODRUM, Appellee.

Opinion filed October 5, 2006.

JUSTICE KILBRIDE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Burke took no part in the decision.

OPINION

Following a bench trial, defendant Robert Woodrum was found
guilty of seven counts of child abduction (720 ILCS 5/10B5(b)(10)
(West 1998)). The circuit court sentenced him to 24 months=
probation. As conditions of probation, defendant was required to
complete a sex offender program and register as a sex offender.
Defendant was also ordered to submit blood for HIV/AIDS testing
and genetic marker identification. The appellate court reversed
defendant=s convictions and remanded for the circuit court to expunge
the order requiring him to submit blood samples for HIV/AIDS
testing and genetic marker identification. 354 Ill. App. 3d 629.
We allowed the State=s petition for leave to appeal (134 Ill. 2d R.
317). The State raises several claims of error on appeal to this court,
including that the appellate court erred in finding a presumption in
the child abduction statute unconstitutional. We hold that the child
abduction statute creates an unconstitutional mandatory presumption,
but the application of the presumption in this case was harmless error.
We therefore reverse the judgment of the appellate court.

I. BACKGROUND
Defendant was arrested on November 10, 1999. He was
subsequently charged in two indictments with a total of seven counts
of child abduction. The first indictment alleged that on or about
November 4, 1999, defendant intentionally lured S.S., N.W., G.S.,
and A.T., each under 16 years of age, into a dwelling without the
consent of a parent or lawful custodian in violation of section
10B5(b)(10) of the Criminal Code of 1961 (Code) (720 ILCS
5/10B5(b)(10) (West 1998)). The second indictment alleged that on or
about November 5, 1999, defendant intentionally lured L.M., A.T.,
and S.S., each under 16 years of age, into a dwelling without the
consent of a parent or lawful custodian in violation of section
10B5(b)(10) of the Code (720 ILCS 5/10B5(b)(10) (West 1998)).
The State later filed amended indictments. The amended
indictments, filed on June 22, 2000, essentially restated the previous
allegations and added that defendant acted Afor other than a lawful
purpose.@ The State subsequently filed a third set of indictments to
correct scriveners errors.
Defendant filed a motion for discovery. In his motion, defendant
sought, among other things, a bill of particulars stating the Aspecific
act that had an unlawful purpose@ and the Aspecific unlawful purpose@
he allegedly possessed. Defendant asserted this information was
essential to the preparation of a defense. The State filed an objection
to the request for a bill of particulars. The State asserted Aa video tape
of the crime and the defendant=s detailed written confession have
been tendered to the defense giving unusually detailed discovery on
what evidence the state is relying on to sustain their burden of proof.@
At the hearing on defendant=s motion, the prosecutor stated:
AIn this particular case, the evidence against the Defendant
is ninety percent on a video tape of the crime and is [sic] a
written confession as to what happened. *** The only thing
that is going to be added in this case is to have the victims

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 identify themselves on tape and the parents to say they didn=t
give him consent. I have never seen a case in this Courtroom
where the Defense has a better outline of exactly what the
State is going to prove because not one word will be
changed on the tape and not one word will be changed on the
statement, so Counsel is well prepared on what is going to
happen.@
The trial court observed that the act of luring a child under 16
years of age into a dwelling without the parent=s consent constitutes
prima facie evidence of other than a lawful purpose under the child
abduction statute. The court stated that the A[b]urden basically falls to
the Defendant to show that it was an affirmative defense. That there
was a lawful purpose involved.@ The trial court, therefore, found a
bill of particulars was not necessary and denied defendant=s motion.
On July 28, 2000, defendant moved to dismiss the indictments,
claiming his right to a speedy trial had been violated. At the hearing
on the motion, defendant asserted that any delays in connection with
the original charges could not be attributed to him on the subsequent
indictments because those indictments contained new and additional
charges. The trial court denied defendant=s motion to dismiss, finding
that the subsequent indictments were Ajust the re-indictment of the
original charges.@
At trial, the State introduced a videotape of the children and
defendant=s written statement. Additionally, several of the children
and their parents testified. The evidence showed that four girls were
playing in front of a condominium building on November 4, 1999.
The girls were eight and nine years old. Defendant came outside and
began videotaping them. Defendant asked the girls to wrestle or Acat
fight.@ While the girls were fighting, one of them stated another girl=s
Afly was down.@ Defendant stated A[l]et=s see it@ while trying to
videotape the girl. The girl turned around and zipped up her pants.
Defendant invited the children to watch the videotape inside the
condominium where he lived with his parents. The girls went inside
with defendant and watched the tape. While they were still in the
condominium, defendant asked the girls if they would like to Ahave
an Olympics show.@ Defendant videotaped them while they did
cartwheels, somersaults, and back bends. Defendant and the children
then watched the second videotape. After watching the second tape,

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defendant became worried that his mother would return and find the
girls inside the condominium. Defendant, therefore, told them to
leave and Anot to say anything to their parents.@
The next day, two of the girls and an eight-year-old boy were
playing outside when they heard music coming from the building.
The children went into the laundry room where defendant was
listening to music while doing his laundry. Defendant had his video
camera. At defendant=s request, the children began wrestling.
Defendant videotaped the children as they wrestled and spun around
on a chair.
Defendant then invited the children to watch the videotape inside
his parents= condominium. While defendant and the children were
watching the videotape, the father of one of the children knocked on
the door. Defendant answered the door, and the girl left with her
father. The other two children also left. As these two children were
leaving, defendant told them not to tell anyone that they had been in
his condominium watching videotapes. The parents of these children
did not give defendant permission to have them in his residence on
either of these occasions.
The mother of two of the children involved in these incidents
later went to defendant=s condominium. She demanded that defendant
give her the videotape of her children. Defendant initially refused, but
produced the videotape after the mother of the children threatened to
call the police. After watching the videotape, the mother of the
children gave it to the police.
Defendant was arrested and gave a written statement recounting
these events. Defendant asserted that he was sexually excited by the
fact that the girl=s zipper was open. While that same girl was doing
the AOlympics show,@ he could see her exposed stomach. Defendant
stated he was sexually excited and hoped to see more of her body.
Defendant thought about masturbating while watching the girls view
the videotape. While he was videotaping the girls, he Afantasized that
he thought it would be nice to see them naked >cat fighting.= @
Defendant further stated that he Ahad a fantasy about having sex with
the four girls he videotaped.@ Defendant knew it was wrong to have
the children in his residence without the consent of their parents.
Defendant moved for a directed verdict at the close of the State=s
case. The trial court denied defendant=s motion. Defendant=s mother

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then testified that defendant took pictures with his video camera as a
hobby.
In closing argument, the prosecutor asserted that defendant=s
statement showed he invited the children into the condominium for
his own sexual gratification or excitement. Therefore, the evidence
was sufficient to show defendant lured the children inside for an
unlawful purpose. After taking a recess to read defendant=s statement,
the trial court found defendant guilty of child abduction, stating:
AThe defense is correct that many cases, just taking a video
tape is not an unlawful act, does not have an unlawful
purpose. But just as a picture of a naked child could be one
of beauty, depending upon the eyes of the beholder, and the
purpose of the beholder for taking it, it could also be
something which would not have a lawful purpose. The
statute states that luring a child into a house, dwelling, motor
vehicle, who is under the age of sixteen, is prima facie
evidence of other than a lawful purpose. The Defendant=s
statement is that he did these things because he enjoyed
watching the children, he enjoyed especially watching if
they showed parts of their body that were exposed, that these
things sexually excited him. I cannot say that taking a video
tape that sexually excites you, of little children, is a lawful
purpose for videotaping. Therefore, the Defendant will be
found guilty on all counts.@
Defendant=s attorney asked for clarification of the court=s
decision concerning the unlawful purpose. The court stated:
AWhat I said was, the prima facie evidence is that his luring
*** was for other than a lawful purpose. He has not shown
he did this for a lawful purpose, and his taping, taking the
video tape for exciting himself is not a lawful purpose, and
therefore, I=m making a finding of guilty.@
The trial court sentenced defendant to 24 months= probation. The
court also ordered defendant to submit blood samples for HIV/AIDS
testing and genetic marker identification. Defendant remained in
custody from the date of his arrest until he was sentenced.
The appellate court held that defendant was convicted based
upon his constitutionally protected thoughts rather than his actions.
354 Ill. App. 3d at 635-37. Additionally, the court concluded that the

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child abduction statute, as applied to defendant, contained an
unconstitutional mandatory presumption. 354 Ill. App. 3d at 637-38.
Further, the trial court erred in denying defendant=s motion for a bill
of particulars and in denying his motion to dismiss based on a
violation of his statutory right to a speedy trial. 354 Ill. App. 3d at
639-41. The State conceded that the trial court was not authorized to
order defendant to submit to HIV/AIDS and genetic marker
identification testing in the circumstances of this case. 354 Ill. App.
3d at 641. The appellate court agreed that the trial court=s order in this
regard was error. 354 Ill. App. 3d at 641. The appellate court,
therefore, reversed defendant=s convictions of child abduction and
remanded to the trial court for the purpose of expunging the order
requiring defendant to submit to those tests. 354 Ill. App. 3d at 641-
42.
We allowed the State=s petition for leave to appeal. 134 Ill. 2d R.
317.

II. ANALYSIS
The State raises both constitutional and nonconstitutional issues
in this appeal. This court will not address a constitutional question if
an appeal can be decided on other grounds. People v. Lee, 214 Ill. 2d
476, 482 (2005). We will, therefore, first address the State=s
arguments that do not raise constitutional claims.

A. Speedy Trial
The State argues that defendant=s statutory right to a speedy trial
was not violated. The State contends the subsequent indictments did
not add any new charges but, rather, essentially duplicated the
original charges. The delays that defendant agreed to on the original
charges should, therefore, continue to be attributed to him on the
subsequent indictments.
In response, defendant initially asserts that the original
indictments failed to allege that he acted with Aother than a lawful
purpose.@ Defendant argues that the State held him in custody for
over 120 days before properly charging him with child abduction by
including this element of the offenses in the subsequent indictments,
thus violating his statutory right to a speedy trial.

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 The cases defendant cites in support of this argument only
address the sufficiency of the charging instrument. See People v.
Pujoue, 61 Ill. 2d 335 (1975); People v. Abrams, 48 Ill. 2d 446
(1971). These cases do not discuss speedy-trial challenges. This
argument is more properly addressed to challenging the indictments
themselves than to a speedy-trial challenge.
Moreover, defendant=s argument is without merit because the
original indictments were sufficient to allow him to prepare his
defense. Defendant never sought dismissal of the original indictments
in the trial court. When a defendant challenges the sufficiency of an
indictment for the first time on appeal, a court of review need only
determine whether the indictment apprised the defendant of the
precise offense charged with sufficient specificity to prepare his
defense. People v. Phillips, 215 Ill. 2d 554, 562 (2005). This is the
proper standard for determining whether defendant was prejudiced by
the allegedly defective original indictments. We will not look to
formal rules of pleading in analyzing defendant=s speedy-trial
challenge.
The charges in the original indictments were complete with the
exception that they did not include the phrase Afor other than a lawful
purpose.@ The original indictments included the correct statutory
citation for these offenses, and the statutory language contained that
phrase. We find that the original indictments sufficiently notified
defendant of the charges for the purpose of preparing a defense. Thus,
defendant was not prejudiced by the allegedly defective indictments
for speedy-trial purposes. The continuances defendant agreed to on
the original indictments are properly charged to him in connection
with those indictments. Defendant=s right to a speedy trial was not
violated by holding him for over 120 days on the original
indictments.
Defendant also argues that the subsequent charges of child
abduction constitute new and additional charges. Defendant asserts
that any delay cannot be attributed to him because those charges were
not before the court at the time of the continuances. Therefore,
defendant argues the trial court erred in denying his motion to
dismiss on speedy-trial grounds.
Defendants possess both constitutional and statutory rights to a
speedy trial. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I,

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'8; 725 ILCS 5/103B5(a) (West 1998). While these provisions
address similar concerns, A >the rights established by each are not
necessarily coextensive.= @ People v. Mayo, 198 Ill. 2d 530, 535
(2002), quoting People v. Hall, 194 Ill. 2d 305, 326 (2000).
Defendant only asserts a violation of his statutory right to a speedy
trial and has not raised a constitutional issue.
The speedy-trial statute provides that every person in custody for
an alleged offense must be tried within 120 days from the date that
person was taken into custody unless delay is occasioned by the
defendant. 725 ILCS 5/103B5(a) (West 1998). If a defendant remains
in custody, the 120-day statutory period begins to run automatically,
and a formal demand for trial is not required. Mayo, 198 Ill. 2d at
536. A defendant not tried within the statutory period must be
discharged from custody, and the charges must be dismissed. 725
ILCS 5/103B5(d), 114B1(a)(1) (West 1998); Mayo, 198 Ill. 2d at 536;
People v. Kliner, 185 Ill. 2d 81, 114-15 (1998).
Any period of delay occasioned by the defendant tolls the
speedy-trial period. Mayo, 198 Ill. 2d at 536. An agreed continuance
generally constitutes an act of delay attributable to the defendant.
Kliner, 185 Ill. 2d at 115. Delays attributable to a defendant in
connection with the original charges, however, are not always
attributable to the defendant on subsequently filed charges. On this
point, the appellate court has stated:
AWhere new and additional charges arise from the same
facts as did the original charges and the State had knowledge
of these facts at the commencement of the prosecution, the
time within which trial is to begin on the new and additional
charges is subject to the same statutory limitation that is
applied to the original charges. Continuances obtained in
connection with the trial of the original charges cannot be
attributed to defendants with respect to the new and
additional charges because these new and additional charges
were not before the court when those continuances were
obtained.@ People v. Williams, 94 Ill. App. 3d 241, 248-49
(1981).
This court subsequently clarified that this rule applies only when the
original and subsequent charges are subject to compulsory joinder.

-8-
People v. Williams, 204 Ill. 2d 191, 207 (2003); People v. Gooden,
189 Ill. 2d 209, 218 (2000).
In this case, defendant does not dispute that he agreed to delays
on the original indictments. Instead, defendant contends that the
delays on the original charges cannot be attributed to him in
connection with the subsequent indictments. The resolution of this
issue depends upon whether the charges in the subsequent
indictments were Anew and additional.@ This issue involves a
comparison of the charges contained in the indictments. The facts as
they relate to this issue are not in dispute. Thus, this is a legal issue
that is reviewed de novo. See Hobbs v. Hartford Insurance Co. of the
Midwest, 214 Ill. 2d 11, 17 (2005) (de novo standard applies when
facts are undisputed and appeal involves only a legal issue).
This court has not previously defined when charges are Anew and
additional@ within the meaning of the speedy-trial statute. However,
we have stated the purpose of the rule announced in Williams is to
prevent Atrial by ambush.@ Williams, 204 Ill. 2d at 207. In the absence
of such a rule:
A[t]he State could lull the defendant into acquiescing to
pretrial delays on pending charges, while it prepared for a
trial on more serious, not-yet-pending charges. *** When
the State filed the more serious charges, the defendant would
face a Hobson=s choice between a trial without adequate
preparation and further pretrial detention to prepare for
trial.@ Williams, 204 Ill. 2d at 207.
Thus, the purpose of the rule is to prevent the State from surprising a
defendant with new and additional charges, thereby circumventing
the defendant=s statutory right to a speedy trial. See Williams, 204 Ill.
2d at 207.
The original indictments filed in this case are virtually identical
to the subsequent ones, with the exception that the subsequent
indictments added the phrase Afor other than a lawful purpose.@ The
original and subsequent indictments contained the same statutory
citation for the charges. The phrase Afor other than a lawful purpose@
is part of the statute cited in the indictments. Additionally, the factual
basis was the same for the original and subsequent indictments. The
addition of the phrase Afor other than a lawful purpose@ did not

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transform the charges. Rather, as the trial court found, the subsequent
indictments were essentially a Are-indictment of the original charges.@
In this case, defendant could not have been surprised by the
subsequent charges because they were essentially the same as the
original ones. Based on these facts, we conclude that the charges in
the subsequent indictments are not Anew and additional@ for purposes
of defendant=s speedy-trial challenge. The delays attributable to
defendant on the original indictments continue to be attributable to
him on the subsequent indictments. Accordingly, defendant=s
statutory right to a speedy trial was not violated.

B. Bill of Particulars
The State also contends that the trial court did not abuse its
discretion in denying defendant=s motion for a bill of particulars
because the indictments sufficiently apprised him of the nature and
elements of the offenses. In response, defendant argues that the denial
of his motion for a bill of particulars deprived him of the ability to
prepare a defense to the charges. Defendant asserts the denial of his
motion left him to Aguess among hundreds of potential offenses@ that
could have constituted the Aother than a lawful purpose@ element of
child abduction.
When an indictment fails to specify the particulars of the
charged offense sufficiently to enable the defendant to prepare a
defense, the trial court may require the State to furnish a bill of
particulars. 725 ILCS 5/111B6 (West 1998). The purpose of a bill of
particulars is to give the defendant notice of the charge and to inform
the defendant of the particular transactions in question, thus enabling
preparation of a defense. Kliner, 185 Ill. 2d at 137-38. There is no
need for a bill of particulars when the indictment sufficiently informs
the defendant of the charged offense. People v. Lego, 116 Ill. 2d 323,
337 (1987). A trial court=s decision on a motion for a bill of
particulars is reviewed for abuse of discretion. Lego, 116 Ill. 2d at
336-37. An abuse of discretion will be found only when the trial
court=s decision is arbitrary and no reasonable person would adopt the
view of the court. People v. Illgen, 145 Ill. 2d 353, 364 (1991).
Defendant claims a specific statement of the alleged unlawful
purpose was necessary to prepare a defense to these charges. In its
written objection to the request for a bill of particulars, however, the

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State informed defendant that the evidence consisted of the videotape
and defendant=s Adetailed written confession.@ At the hearing on
defendant=s motion, the prosecutor stated that the only additional
evidence to be presented was testimony of the children identifying
themselves on the videotape and the parents= testimony that defendant
did not have permission to take the children inside his residence. At
trial, the State confined its evidence to the videotape, defendant=s
written statement, and the testimony of the children and their parents.
The record shows that defendant was aware of the charges and
the alleged underlying transactions. Moreover, he knew the State
would introduce his statements at trial and rely upon them as the
basis for the alleged unlawful purpose. Defendant=s statements of his
sexual thoughts and intentions identified the alleged unlawful
purpose. An intent to commit a sex offense can easily be inferred
from defendant=s statements. We find that the indictment and the
State=s disclosures were sufficient to enable defendant to prepare his
defense. The trial court, therefore, did not abuse its discretion in
denying defendant=s motion for a bill of particulars.

C. Vagueness
In a related claim, defendant argues that the child abduction
statute did not give him adequate notice of his allegedly unlawful
purpose. Moreover, as a result of the denial of his motion for a bill of
particulars, defendant was forced to go to trial without notice of the
allegedly unlawful purpose. Defendant, therefore, argues the child
abduction statute is unconstitutionally vague as applied to him.
To comply with due process requirements, the proscription of a
criminal statute must be clearly defined and provide a sufficiently
definite warning of the prohibited conduct as measured by common
understanding and practices. People v. Jihan, 127 Ill. 2d 379, 385
(1989). Criminal statutes must be definite so that a person of ordinary
intelligence will have a reasonable opportunity to know what conduct
is prohibited. Jihan, 127 Ill. 2d at 385. Additionally, a definite
criminal statute prevents arbitrary and discriminatory enforcement by
police officers, judges, and juries. People v. Haywood, 118 Ill. 2d
263, 269 (1987).
This court has previously held that the phrase Aother than a
lawful purpose@ in the child abduction statute is not

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unconstitutionally vague on its face. People v. Williams, 133 Ill. 2d
449, 454 (1990). This phrase, given its ordinary meaning, implies
actions that violate the Criminal Code. Williams, 133 Ill. 2d at 454.
Thus, the phrase gives adequate notice of the conduct that will
subject a person to criminal penalties. Williams, 133 Ill. 2d at 453-54.
Further, as noted above, defendant=s unlawful purpose or intent
was apparent from his detailed statement. The statement implied an
intent to commit a sex offense. Defendant had notice of the unlawful
purpose the State was seeking to prove based on the indictment and
on the State=s evidentiary disclosures. Given these facts, we conclude
that the child abduction statute is not unconstitutionally vague as
applied to defendant.

D. First Amendment Claims
Next, the State contends that the child abduction statute is
constitutional as applied to defendant because he was not convicted
for his private thoughts. Rather, defendant was convicted based on
his actions of luring the children into his residence with an unlawful
purpose. Defendant=s statements that he wanted to see the children
naked and have sex with them revealed his intent to gratify himself
sexually with the children. Thus, defendant acted with other than a
lawful purpose when he lured the children into his residence for his
potential sexual gratification.
Defendant argues that he was convicted based solely upon the
thoughts he revealed in his statement. However, any thoughts that he
had of committing a criminal offense do not, by themselves,
constitute an offense. According to defendant, the court violated his
rights under the first amendment to the United States Constitution by
using his private thoughts as the sole basis for concluding that he
acted with other than a lawful purpose.
The first amendment prohibits the government from premising
legislation on the desirability of controlling a person=s private
thoughts. Ashcroft v. Free Speech Coalition, 535 U.S. 234, 253, 152
L. Ed. 2d 403, 423, 122 S. Ct. 1389, 1403 (2002), quoting Stanley v.
Georgia, 394 U.S. 557, 566, 22 L. Ed. 2d 542, 550, 89 S. Ct. 1243,
1249 (1969). The Supreme Court has, therefore, drawn distinctions
between ideas and conduct. Ashcroft, 535 U.S. at 253, 152 L. Ed. 2d
at 423, 122 S. Ct. at 1403. The government cannot regulate mere

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thought without conduct. Doe v. City of Lafayette, 377 F.3d 757, 765
(7th Cir. 2004), citing Paris Adult Theatre I v. Slaton, 413 U.S. 49,
67-68, 37 L. Ed. 2d 446, 463, 93 S. Ct. 2628, 2640-41 (1973).
Regulations targeting thought plus conduct, however, do not
implicate the first amendment=s freedom of mind principle. City of
Lafayette, 377 F.3d at 765 (citing Paris Adult Theatre I, 413 U.S. at
67-68, 37 L. Ed. 2d at 463, 93 S. Ct. at 2640-41, and Osborne v.
Ohio, 495 U.S. 103, 109, 109 L. Ed. 2d 98, 109, 110 S. Ct. 1691,
1696 (1990).
In City of Lafayette, the city banned John Doe, a person with a
long history of sex offenses, from its public parks. City of Lafayette,
377 F.3d at 758. The ban was imposed by the city after Doe was
observed A >cruising= parks and watching young children.@ City of
Lafayette, 377 F.3d at 759. In his deposition testimony, Doe stated he
went to the park to look for children. City of Lafayette, 377 F.3d at
759-60. When he saw several teenage children in the park, he thought
of possibly exposing himself to them or having sexual contact with
them. City of Lafayette, 377 F.3d at 760. Doe stated, AThose thoughts
were there, but they, you know, weren=t realistic at the time. They
were just thoughts.@ City of Lafayette, 377 F.3d at 760.
Doe challenged the ban, contending, in pertinent part, that it
violated his constitutional rights under the first amendment because
the city was punishing him for his private thoughts. City of Lafayette,
377 F.3d at 765. The court noted that the city had not banned Doe
from having sexual fantasies about children. City of Lafayette, 377
F.3d at 766-67. Doe did not simply entertain thoughts, however. He
took dangerous steps toward gratifying his sexual urges toward
children by going to a place where he could find children in a
vulnerable situation. City of Lafayette, 377 F.3d at 767. The court
concluded that it would be required to ignore Doe=s actions in order
to characterize the ban as directed purely at thought. City of
Lafayette, 377 F.3d at 767. The court further explained:
AThe children and their parents are not concerned about Mr.
Doe=s thoughts. They are concerned about his coming to the
park to achieve sexual gratification. They do not need to
wait until a child is molested to take steps to protect their
children. The First Amendment does not prohibit the City
from taking the action it did to protect its children. It does

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 not require the City to act in an ostrichlike fashion and
expose the children of the City to the risk that, on a future
date, a child will wander further from the group, present a
better opportunity and experience the tragic consequences.@
City of Lafayette, 377 F.3d at 767.
We recognize that City of Lafayette is a civil case involving a
ban from the city=s public parks. The first amendment principles
discussed in that case are, nevertheless, equally applicable to this
criminal case. Applying those principles results in a finding that
defendant was not punished simply for having sexual fantasies about
children. Rather, he was punished for acting on those thoughts by
luring the children into his residence. If defendant had not acted by
luring the children, he would not be subject to any criminal penalty.
This is not a case where defendant was convicted based solely upon
his thoughts or fantasies.
We note that defendant also argues he was not convicted based
on his conduct as he did not attempt or commit any criminal offense
after the children were inside his residence. Thus, defendant
apparently contends that the State was required to prove that he
attempted or committed an offense inside the residence to sustain the
child abduction convictions.
A person commits child abduction by intentionally luring or
attempting to lure a child under 16 years of age into a dwelling
without the consent of a parent or lawful custodian for other than a
lawful purpose. 720 ILCS 5/10B5(b)(10) (West 1998). The language
of this statute does not require proof of a separate criminal offense
after a child has been lured into a dwelling.
The child abduction statute is analogous to the offense of
residential burglary. A residential burglary is committed when a
person knowingly and without authority enters the dwelling of
another with the intent to commit a felony or theft therein. 720 ILCS
5/19B3(a) (West 1998). This court has held that the offense of
residential burglary A >is complete upon entering with the requisite
intent. The actual commission of the intended offense is irrelevant.= @
People v. Maggette, 195 Ill. 2d 336, 353 (2001), quoting People v.
Palmer, 83 Ill. App. 3d 732, 734 (1980).
Similarly, the offense of child abduction is complete upon luring
a child into a dwelling with the requisite unlawful purpose. The State

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is not required to prove that defendant completed his unlawful
purpose or intended offense after luring the children inside. The
completion or attempted completion of the unlawful purpose would
result in a prosecution for a separate offense. Thus, contrary to
defendant=s argument, the State was not required to prove that a
separate crime or attempt occurred inside the residence to sustain the
charge of child abduction.
In sum, defendant was not convicted based solely upon his
thoughts or sexual fantasies. He was convicted for his actions in
luring the children into his residence with an unlawful purpose.
Accordingly, defendant=s convictions were not obtained in violation
of his constitutional rights under the first amendment.

E. Constitutionality of the Presumption
The State=s final contention is that the appellate court erred in
finding the presumption in section 10B5(b)(10) of the child abduction
statute unconstitutional. The State asserts that the presumption is
constitutional because it is permissive, rather than mandatory.
Defendant responds that section 10B5(b)(10) creates an
unconstitutional mandatory presumption.
The constitutionality of a statute is reviewed de novo. People v.
Malchow, 193 Ill. 2d 413, 418 (2000). All statutes are presumed to be
constitutional, and the party challenging the statute bears the burden
of rebutting that presumption by demonstrating clearly a
constitutional violation. People v. Dinelli, 217 Ill. 2d 387, 397
(2005), quoting People v. Greco, 204 Ill. 2d 400, 406 (2003). This
court has a duty to construe a statute in a manner that upholds its
constitutionality, if reasonably possible. Dinelli, 217 Ill. 2d at 397.
A presumption is a legal device that either permits or requires
the trier of fact to assume the existence of an ultimate fact, after
establishing certain predicate facts. People v. Pomykala, 203 Ill. 2d
198, 203 (2003), citing People v. Watts, 181 Ill. 2d 133, 141 (1998).
Although due process requires the State to prove every element of an
offense beyond a reasonable doubt (In re Winship, 397 U.S. 358, 364,
25 L. Ed. 2d 368, 375, 90 S. Ct. 1068, 1073 (1970)), the State may
properly rely on certain presumptions or inferences in proving those
elements. Pomykala, 203 Ill. 2d at 202.

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 Presumptions may be permissive or mandatory. A permissive
presumption allows, but does not require, the trier of fact to infer the
existence of the ultimate fact upon proof of the predicate fact, without
placing a burden on the defendant. People v. Jordan, 218 Ill. 2d 255,
265 (2006), citing Pomykala, 203 Ill. 2d at 203; Watts, 181 Ill. 2d at
141-42. The fact finder is free to accept or reject a permissive
presumption. Watts, 181 Ill. 2d at 142, quoting People v. Hester, 131
Ill. 2d 91, 99 (1989).
A mandatory presumption, on the other hand, requires the fact
finder to accept the presumption. Jordan, 218 Ill. 2d at 265, citing
Pomykala, 203 Ill. 2d at 203; Watts, 181 Ill. 2d at 141-42. Mandatory
presumptions have been classified as conclusive or rebuttable.
Pomykala, 203 Ill. 2d at 203; Watts, 181 Ill. 2d at 142. The Supreme
Court has held that mandatory conclusive presumptions are
unconstitutional because they conflict with the presumption of
innocence. See Sandstrom v. Montana, 442 U.S. 510, 521-23, 61 L.
Ed. 2d 39, 49-51, 99 S. Ct. 2450, 2458-59 (1979). In Sandstrom, the
Supreme Court further held that mandatory rebuttable presumptions
shifting the burden of persuasion to a defendant are per se
unconstitutional, as they relieve the State of the burden of proving
each element of the offense beyond a reasonable doubt. Sandstrom,
442 U.S. at 524, 61 L. Ed. 2d at 51, 99 S. Ct. at 2459. This court has
held that mandatory rebuttable presumptions shifting the burden of
production to a defendant are also unconstitutional because they
could, in effect, require a trial court to direct a verdict against a
defendant on an element proved by the presumption. Jordan, 218 Ill.
2d at 266, quoting Watts, 181 Ill. 2d at 147. Thus, under Illinois law,
all mandatory presumptions are per se unconstitutional. Pomykala,
203 Ill. 2d at 204.
Here, the child abduction statute states that Athe luring or
attempted luring of a child under the age of 16 into a motor vehicle,
building, housetrailer, or dwelling place without the consent of the
parent or lawful custodian of the child shall be prima facie evidence
of other than a lawful purpose.@ 720 ILCS 5/10B5(b)(10) (West
1998). The primary rule of statutory construction is to ascertain and
give effect to the intent of the legislature. People v. Roberts, 214 Ill.
2d 106, 116 (2005). The best indication of legislative intent is the
language used in the statute, given its plain and ordinary meaning.

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People ex rel. Ryan v. Agpro, Inc., 214 Ill. 2d 222, 226 (2005),
quoting Caveney v. Bower, 207 Ill. 2d 82, 88 (2003).
According to Black=s Law Dictionary, Aprima facie evidence@ is
A[e]vidence that will establish a fact or sustain a judgment unless
contradictory evidence is produced.@ (Emphasis added.) Black=s Law
Dictionary 598 (8th ed. 2004). Likewise, Aprima facie@ is defined as
A[s]ufficient to establish a fact or raise a presumption unless
disproved or rebutted.@ (Emphasis added.) Black=s Law Dictionary
1228 (8th ed. 2004). Thus, given its plain and ordinary meaning, the
term Aprima facie evidence@ in section 10B5(b)(10) suggests a shift in
the burden of production. That shift is made mandatory by use of the
term Ashall.@ See People v. Ramirez, 214 Ill. 2d 176, 182 (2005) (use
of the word Ashall@ generally indicates legislature intended to impose
mandatory obligation). Accordingly, the language Ashall be prima
facie evidence@ creates a mandatory presumption. Specifically, it
shifts the burden of production to the defendant as to the unlawful
purpose element of the offense of child abduction by requiring the
finder of fact to presume the existence of an unlawful purpose upon
proof that the defendant lured a child into a vehicle, building,
housetrailer, or dwelling place without the consent of the child=s
parent. See 720 ILCS 5/10B5(b)(10) (West 1998). In accordance with
Watts, this mandatory rebuttable presumption is unconstitutional.
This conclusion is supported by our decision in Pomykala. In
Pomykala, we considered the constitutionality of a presumption in the
reckless homicide statute. Pomykala, 203 Ill. 2d at 202. The
presumption provided that being under the influence of alcohol or
any other drug at the time of the alleged offense A >shall be presumed
to be evidence of a reckless act unless disproved by evidence to the
contrary.= @ Pomykala, 203 Ill. 2d at 202, quoting 720 ILCS 5/9B3(b)
(West 2000). We noted that A[t]his court has interpreted the word
>shall= to connote a mandatory obligation unless the statute indicates
otherwise. [Citation.] In addition, the word >presume= in this context
means >to suppose to be true without proof.= [Citation.]@ Pomykala,
203 Ill. 2d at 205-06. We concluded that this statutory language could
not reasonably be construed as creating a permissive presumption
but, rather, it created an unconstitutional mandatory presumption.
Pomykala, 203 Ill. 2d at 208-09.

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 We also noted that a prior version of the statute stated that being
under the influence of alcohol or any other drug at the time of the
alleged offense A >shall be prima facie evidence of a reckless act.= @
Pomykala, 203 Ill. 2d at 204, quoting Ill. Rev. Stat. 1991, ch. 38, par.
9B3(b). We did not take a position on the meaning or constitutionality
of this language, noting simply that the case law was Ain conflict@ at
the time of our decision on whether the prior version of section
9B3(b) created a mandatory presumption. Pomykala, 203 Ill. 2d at
206. There was no need for us to resolve that conflict because the
language before us differed from the language in the prior version of
the statute. Although we properly limited our holding to the language
before us, we noted that, in amending the statute, the legislature
intended to incorporate the definition of Aprima facie evidence.@
Pomykala, 203 Ill. 2d at 205.
Since Pomykala was decided, our appellate court has reviewed
the constitutionality of other statutes that incorporated the phrase
Aprima facie evidence.@ See People v. Quinones, 362 Ill. App. 3d 385
(2005) (reviewing section 24B5(b) of the Criminal Code of 1961 (720
ILCS 5/24B5(b) (West 2002))); People v. Miles, 344 Ill. App. 3d 315
(2003) (reviewing section 16 of the Illinois Credit Card and Debit
Card Act (720 ILCS 250/16 (West 2002))). In Miles, the appellate
court held that A[c]onsistent with the Pomykala analysis, if a statute
incorporating the definition of >prima facie= to establish an element of
a criminal offense creates a prohibited mandatory presumption, then a
statute that uses the object of the definition, that is, >prima facie,= to
establish an element is similarly prohibitive.@ Miles, 344 Ill. App. 3d
at 319-20. The appellate court, therefore, held that section 16 of the
Illinois Credit Card and Debit Card Act created an unconstitutional
mandatory presumption. Miles, 344 Ill. App. 3d at 320. In Quinones,
the appellate court also relied on Pomykala in finding that the phrase
Aprima facie evidence@ in section 24B5(b) of the Criminal Code
created an unconstitutional mandatory presumption. Quinones, 362
Ill. App. 3d at 394.
Based on People v. Robinson, 167 Ill. 2d 53 (1995), the State
argues that section 10B5(b)(10) creates a constitutional permissive
presumption. In Robinson, this court considered whether the State
had satisfied its burden of proving the defendant eligible for
sentencing as a habitual criminal. Robinson, 167 Ill. 2d at 74. The
Habitual Criminal Act provided that certified copies of prior
convictions constituted prima facie evidence of such convictions.

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Robinson, 167 Ill. 2d at 74. This court stated that prima facie
evidence, in the criminal context, is in the nature of a presumption,
more precisely described as an instructed inference. Robinson, 167
Ill. 2d at 75, citing M. Graham, Cleary & Graham=s Handbook of
Illinois Evidence '304.1, at 114-16 (5th ed. 1990). We stated that
prima facie evidence may be defined as a quantum sufficient to
satisfy the burden of production on a basic fact that allows an
inference of a presumed fact. Robinson, 167 Ill. 2d at 75, citing M.
Graham, Cleary & Graham=s Handbook of Illinois Evidence '302.8,
at 102 (5th ed. 1990). When the burden of production is satisfied, the
fact finder is permitted but not required to find the presumed fact.
Robinson, 167 Ill. 2d at 75, citing M. Graham, Cleary & Graham=s
Handbook of Illinois Evidence '304.1, at 115-16 (5th ed. 1990).
Robinson is inapposite because it dealt with whether the State
produced sufficient evidence to prove the defendant=s eligibility for
sentencing as a habitual criminal. Robinson, 167 Ill. 2d at 74. To the
extent Robinson discussed the meaning of Aprima facie evidence,@ it
determined whether the State presented sufficient evidence to satisfy
its burden of persuasion on the fact of the defendant=s 1984 armed
robbery conviction. Robinson, 167 Ill. 2d at 75. As Robinson noted,
A[o]nce the burden of production is satisfied, the judge is permitted
but not required to find the burden of persuasion satisfied depending
on the judge=s consideration of all the evidence. The defendant=s
introduction of contradictory evidence does not diminish the prima
facie evidence, but such evidence is considered by the trial judge in
determining whether the State has satisfied the burden of persuasion.@
Robinson, 167 Ill. 2d at 75. In Robinson, the issue of whether the
Ashall be prima facie evidence@ language contained in the Habitual
Criminal Act created an unconstitutional mandatory presumption was
not before this court.
Consistent with Pomykala, we conclude that the plain meaning
of the phrase Ashall be prima facie evidence@ in section 10B5(b)(10) is
that the ultimate fact must be presumed upon proof of the predicate
facts unless disproved by evidence to the contrary. The plain
language of section 10B5(b)(10) incorporating Ashall be prima facie
evidence@ creates a facially unconstitutional mandatory presumption.
As a final point, the State has relied upon several prior appellate
court cases interpreting section 10B5(b)(10) as creating a
constitutional permissive presumption. See People v. Tirado, 254 Ill.
App. 3d 497 (1993); People v. Joyce, 234 Ill. App. 3d 394 (1992);

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People v. Marcotte, 217 Ill. App. 3d 797 (1991); People v. Embry,
177 Ill. App. 3d 96 (1988). The appellate court has reasoned that
section 10B5(b)(10) A >speaks in terms of prima facie evidence and
there is no restraint on the trier of fact=s ability to accept or reject the
inference.= @ Tirado, 254 Ill. App. 3d at 510, quoting Embry, 177 Ill.
App. 3d at 101. These appellate court decisions interpreting section
10B5(b)(10) as permissive are inconsistent with our construction of
that section as an unconstitutional mandatory presumption.
Accordingly, we hereby overrule Tirado, Joyce, Marcotte, and Embry
to the extent that those cases are inconsistent with our decision.
Next, we must consider whether the unconstitutional mandatory
presumption is severable from the remainder of the statute. An
unconstitutional presumption may be severed from a statute if what
remains is complete in itself and capable of being executed
independently of the severed portion. Jordan, 218 Ill. 2d at 267,
citing Pomykala, 203 Ill. 2d at 209. Statutory provisions are not
severable when they are essentially and inseparably connected in
substance, and the legislature would not have passed the valid
portions without the invalid portions. Jordan, 218 Ill. 2d at 267,
citing Watts, 181 Ill. 2d at 151.
In Watts, this court severed an unconstitutional mandatory
presumption from the Home Repair Fraud Act. Watts, 181 Ill. 2d at
151. The presumption required the fact finder to presume that the
defendant intended not to perform work as promised upon proof of
three predicate factors, unless that presumption was rebutted. Watts,
181 Ill. 2d at 141. In finding that the unconstitutional presumption
was severable, this court reasoned, in part, that the remainder of the
statute could be executed without the presumption because that
provision operated only to ease the State=s burden of proof on the
intent element of the offense. Watts, 181 Ill. 2d at 151.
Here, the first sentence of section 10B5(b)(10) contains all of the
elements of the offense of child abduction. It is complete in itself and
capable of being executed without the mandatory presumption set
forth in the second sentence. The mandatory presumption operates
only to ease the State=s burden of proving an element of the offense,
namely, the defendant=s unlawful purpose. See Watts, 181 Ill. 2d at
151. The excision of the unconstitutional presumption does not
impair the meaning or operation of the remainder of the statute. We
therefore conclude that the second sentence of section 10B5(b)(10)
may be severed from the remainder of the statute.

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 Finally, we consider whether application of the presumption in
this case was harmless error. A constitutional error is harmless if it
appears beyond a reasonable doubt that the error did not contribute to
the verdict. People v. Patterson, 217 Ill. 2d 407, 428 (2005). The
Supreme Court has established a two-part test for determining
whether application of an unlawful presumption is harmless error.
Yates v. Evatt, 500 U.S. 391, 404, 114 L. Ed. 2d 432, 449, 111 S. Ct.
1884, 1893 (1991), overruled on other grounds by Estelle v.
McGuire, 502 U.S. 62, 72 n.4, 116 L. Ed. 2d 385, 399 n.4, 112 S. Ct.
475, 482 n.4 (1991). First, the reviewing court must determine what
evidence the trier of fact actually considered in reaching the verdict.
Second, the court must weigh the probative force of the evidence
actually considered by the trier of fact against the probative force of
the presumption standing alone. Yates, 500 U.S. at 404, 114 L. Ed. 2d
at 449, 111 S. Ct. at 1893. The issue is whether the trier of fact rested
its verdict on evidence that establishes the presumed fact beyond a
reasonable doubt, independently of the presumption. Yates, 500 U.S.
at 404, 114 L. Ed. 2d at 449, 111 S. Ct. at 1893. A court must
determine whether the force of the evidence presumably considered
by the trier of fact is Aso overwhelming as to leave it beyond a
reasonable doubt that the verdict resting on that evidence would have
been the same in the absence of the presumption.@ Yates, 500 U.S. at
404-05, 114 L. Ed. 2d at 449, 111 S. Ct. at 1893.
Unlike Yates, this case was tried to the court rather than a jury.
The trial court=s findings on the record give us some insight into the
basis for the finding of guilty. The trial court mentioned the
presumption, but also relied upon defendant=s statement and his
conduct in finding that he acted with other than a lawful purpose. The
court also referred to the videotape in its findings. There is nothing in
the record indicating that the court declined to consider any of the
evidence presented by the parties. We conclude that the trial court
considered all of the evidence in finding defendant guilty.
We must, therefore, weigh the probative force of all the evidence
on whether defendant acted with other than a lawful purpose against
the probative force of the presumption standing alone. The required
showing that a defendant had Aother than a lawful purpose@ is
essentially a statement of the criminal intent, or mens rea. Criminal
intent is a state of mind that is usually inferred from the surrounding
circumstances. Maggette, 195 Ill. 2d at 354. Here, defendant gave a
statement highly illustrative of his state of mind. Defendant=s

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statement may be used to establish his purpose in luring the children
into his residence without improperly infringing on his first
amendment rights. See Wisconsin v. Mitchell, 508 U.S. 476, 489, 124
L. Ed. 2d 436, 448, 113 S. Ct. 2194, 2201 (1993) (the first
amendment Adoes not prohibit the evidentiary use of speech to
establish the elements of a crime or to prove motive or intent@).
In his statement, defendant asserted that he was sexually excited
by seeing the open zipper on one of the girls= pants and the girl=s
exposed stomach. Defendant stated he hoped to see more of that girl=s
body. Further, he thought about masturbating in the presence of the
girls. Defendant also fantasized about seeing the girls Anaked >cat
fighting= A and about having sex with them. Defendant=s statement is
replete with references to his sexual intent and purpose. At a
minimum, the statement permits an inference that defendant intended
to commit the offense of sexual exploitation of a child by
masturbating in the presence of the children. 720 ILCS 5/11B9.1
(West 1998). A trier of fact could also infer from the statement that
defendant intended to have sex with the children if given the
opportunity, thus committing the offense of predatory criminal sexual
assault of a child. 720 ILCS 5/12B14.1 (West 1998).
The evidence also showed that defendant lured these children
into his residence on two separate occasions with the offer of viewing
themselves on the videotapes. The children were eight and nine years
old. The parents did not consent to their children being inside
defendant=s residence. In fact, the second incident was interrupted by
the father of one of the children coming to retrieve his child. When
the mother of two of the children later demanded the videotape,
defendant initially refused and only produced the videotape after she
threatened to call the police. Defendant admitted he knew it was
wrong to have the children inside his residence without the consent of
their parents.
Additionally, defendant told the children not to tell their parents
or anyone else that they had been inside his residence. The facts,
therefore, show that defendant intended for these events to remain
secret. Defendant=s unlawful purpose is further shown by his attempt
to view and videotape the girl with her zipper down and his attempt
to see more of the bodies of the children by encouraging them to do
an AOlympics show.@
We find that this evidence, considered independently of the
presumption in section 10B5(b)(10), overwhelmingly establishes

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defendant=s unlawful purpose in luring the children into his residence.
The application of the unconstitutional presumption is Aunimportant
in relation to everything else@ the court considered on this issue. See
Yates, 500 U.S. at 403, 114 L. Ed. 2d at 449, 111 S. Ct. at 1893. We
conclude that the finding of guilt based upon all the evidence of
defendant=s unlawful purpose would have been the same in the
absence of the presumption. Thus, the application of the presumption
in this case was harmless beyond a reasonable doubt.

III. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
appellate court, except as it concerns the circuit court=s HIV/AIDS
and genetic marker testing orders. Those orders are not at issue in this
appeal and we make no comment on them. The judgment of the
circuit court is affirmed.

Appellate court judgment reversed;
circuit court judgment affirmed.

JUSTICE BURKE took no part in the consideration or decision
of this case.

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