People v. Libricz

2022 IL 127757

215 N.E.3d 800

465 Ill.Dec. 595

The PEOPLE of the State of Illinois, Appellee,

v.Robert LIBRICZ, Appellant.

Docket No. 127757

Supreme Court of Illinois.

Opinion Filed November 28, 2022.

Rehearing denied 2022 January 23, 2023

James E. Chadd, State Appellate Defender, Thomas A. Lilien, Deputy Defender, and Jeffrey Bruce Kirkham, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Elgin, for appellant.

Kwame Raoul, Attorney General, of Springfield (Jane Elinor Notz, Solicitor General, and Katherine M. Doersch and Erin M. O'Connell, Assistant Attorneys General, of Chicago, of counsel), for the People.

JUSTICE HOLDER WHITE delivered the judgment of the court, with opinion.

¶ 1 Following a November 2018 bench trial, defendant, Robert Libricz, was convicted of committing various sex offenses against his minor daughter and sentenced to prison. On appeal, defendant argued the indictment was fatally defective and asserted his convictions should be reversed because the alleged period in which the acts took place included time before the effective date of the statute creating the offense. Although the Second District found two counts in the indictment defective, the appellate court affirmed defendant's convictions and sentences.

¶ 2 Now on appeal, defendant argues counts VI and VIII of the indictment failed to sufficiently charge the offense of predatory criminal sexual assault of a child because the 2-year period in which the alleged criminal conduct occurred included 14 months before the effective date of the statute creating the offense. We affirm.

¶ 3 BACKGROUND

¶ 4 In June 2015, defendant was charged in an 11-count indictment with committing various sex offenses against two of his daughters, D.L. and K.L., between 1987 and 2006, when the victims were minors. Counts I and II charged defendant with the offenses of predatory criminal sexual assault of a child ( 720 ILCS 5/12-14.1(a)(1) (West 1998)) and criminal sexual assault ( 720 ILCS 5/12-13(3) (West 2004)), respectively, against D.L., who was born in May 1992. Counts III through XI charged defendant with various sex offenses against K.L., who was born March 27, 1984.

¶ 5 The issue in this appeal centers on counts VI and VIII, which charged defendant with predatory criminal sexual assault of a child. This offense was created by Public Act 89-428, with an effective date of December 13, 1995. Public Act 89-428 was later held unconstitutional by this court in Johnson v. Edgar , 176 Ill. 2d 499, 224 Ill.Dec. 1, 680 N.E.2d 1372 (1997), as violating the single subject clause of the Illinois Constitution ( Ill. Const. 1970, art. IV, § 8 ). This rendered the offense of predatory criminal sexual assault of a child "void ab initio ; that is, it was as if the law never existed." People v. Tellez-Valencia , 188 Ill. 2d 523, 526, 243 Ill.Dec. 191, 723 N.E.2d 223 (1999). The General Assembly later reenacted the offense in Public Act 89-462, with an effective date of May 29, 1996. The legislature's "reenactment had the effect of creating an entirely new criminal statute." Id.

¶ 6 Count VI charged that, "on or between March 27, 1995 and March 27, 1997, inclusive," defendant committed the offense of predatory criminal sexual assault of a child, "in violation of Chapter 720, Section 5/12-14.1(a)(1) of the Illinois Compiled Statutes," in that he "knowingly committed an act of sexual penetration with K.L., who was under 13 years of age when the act was committed," when he "caused his penis to make contact with the vagina and/or anus of K.L." See 720 ILCS 5/12-14.1(a)(1) (West 1998).

¶ 7 Count VIII charged that, "on or between March 27, 1995 and March 27, 1997, inclusive," defendant committed the offense of predatory criminal sexual assault of a child, "in violation of Chapter 720, Section 5/12-14.1(a)(1) of the Illinois Compiled Statutes," in that he "knowingly committed an act of sexual penetration with K.L., who was under 13 years of age when the act was committed," in that he "inserted his penis inside the vagina of K.L." See id.

¶ 8 Counts VII and IX charged defendant based on the same alleged acts and time period in counts VI and VIII, respectively. However, counts VII and IX alleged the offense of aggravated criminal sexual assault "in violation of 720 ILCS 5/12-14(b)(1) of the Illinois Compiled Statutes." See id. § 12-14(b)(1).

¶ 9 In April 2017, defendant filed a motion for a bill of particulars, arguing he was unable to adequately prepare his defense. Among other things, defendant argued there had "been substantive law changes both within the date ranges as well as in the time period between the specified date ranges and the charging date."

¶ 10 At the August 2017 hearing on the motion, defense counsel noted some of the charges involved a date range "as wide as two years" and "the law on these offenses has changed several times." He argued that, with "such a wide date range[,] *** you don't know what the law is going to be." He also argued "this system was never designed to be a shot in the dark" or one that is figured "out on the fly."

¶ 11 In response, the State argued the alleged crimes occurred within the statute of limitations period and the date of the offense is not an essential factor in child sex cases. Along with providing the best possible information regarding the location of where the offenses took place and the names of the victims, the State indicated the time frames alleged were consistent with the tendered discovery.

¶ 12 Defense counsel responded by noting the law changed over the alleged date ranges of the offenses and then argued "I don't know what law we are talking about, the court doesn't know what law we are talking about, and this isn't supposed to be a guessing game."

¶ 13 Following questioning by the circuit court, the State contended "there really were no changes in the law." Instead, the State suggested "there was simply renumbering and retitling of the same charges," as it involved "the same type of sexual conduct."

¶ 14 The circuit court denied the motion. The court noted "the date of the offense is not an essential factor in child sex offense cases" and "[i]t is permissible to allege a range of dates in which the offenses allegedly occurred." On the question of whether each count gave defendant enough facts to enable him to prepare a defense, the court found that, "[a]s long as the crime occurred within the statute of limitations and prior to the return of the charging instrument, the State need only provide the Defendant with the best information it has as to when the offenses occurred."

¶ 15 In May 2017, defendant filed a motion to dismiss the indictment pursuant to section 114-1(a)(2) of the Code of Criminal Procedure of 1963 (Code) ( 725 ILCS 5/114-1(a)(2) (West 2016)), arguing that counts I and III through XI were barred by the statute of limitations. The circuit court denied the motion in October 2018, finding the charges were "viable at each and every extension on the statute of limitations" and the State set forth the statute of limitations as required.

¶ 16 Prior to trial, defendant filed a motion to sever counts I and II with respect to D.L., which the circuit court granted. In November 2018, the matter proceeded to a bench trial. The court granted the State's motion to dismiss counts VII and IX, both of which charged the offense of aggravated criminal sexual assault. The State proceeded on counts III, IV, V, VI, VIII, X, and XI, all of which involved K.L. As the issue in this appeal centers on counts VI and VIII, we will focus our attention on the facts pertaining to those counts.

¶ 17 K.L. testified she was born on March 27, 1984, and defendant is her biological father. She stated he was born in August 1960. When she was "about 11," K.L. was in the family home sleeping on the couch. She awoke to find defendant, who was naked, on top of her. Defendant attempted to penetrate her vagina with his penis. K.L. stated defendant's penis touched her vagina and her anus. On cross-examination, defense counsel asked K.L. about the incident and stated that, "[a]t that time, I believe you said it was somewhere between the ages of 11 and 13." K.L. responded, "[s]omewhere in there."

¶ 18 K.L. also testified about an incident that occurred when she was in sixth grade. She hoped to attend a school dance and asked defendant for permission. He told her she could attend but that she would first have to take a shower. While K.L. showered in the upstairs bathroom, defendant took off his clothes and "got in the shower" with her. Defendant bent her over and penetrated her vagina from behind with his penis. On cross-examination, K.L. testified that, in sixth grade, she was 11 years old and turned 12 during the course of the school year.

¶ 19 D.L. testified regarding other acts of sexual conduct committed by defendant. In 1999, when she was between five and seven years old, she attended a "daddy-daughter dance" with defendant. After they returned home from the dance, she was alone with defendant in his bedroom when he "put his pinky finger in [her] vagina." In one instance between 2004 and 2006, when D.L. was approximately 13 years old, D.L. fell asleep in her parents’ bed. She awoke to discover defendant's hand in her pants and "he was rubbing the outside of [her] vagina and sticking his fingers inside of [her] vagina."

¶ 20 In March 2015, K.L. and D.L. went to the McHenry County Sheriff's Office to report the allegations of defendant's abuse and met with Detective Michelle Asplund. In April 2015, K.L. had a recorded telephone conversation with defendant and met with him at his place of employment while wearing a recording device. Both recordings were played at trial.

¶ 21 During the in-person meeting with defendant, K.L. attempted to engage him in conversation about the alleged sexual conduct. At one point, K.L. asked defendant if he was going to apologize to her on his death bed, and he responded: "I thought about that." He later stated:...