                               No. 2-09-0788 Filed: 10-25-10
______________________________________________________________________________

                                            IN THE

                             APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Winnebago County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 02--CM--6344
                                       )
RICKY T.,                              ) Honorable
                                       ) Gary V. Pumilia,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE McLAREN delivered the opinion of the court:

       Defendant, Ricky T., was convicted of sexual exploitation of a child (720 ILCS

5/11--9.1(a)(1) (West 2002)) and sentenced to 24 months' probation. On appeal, defendant contends

that he was not proved guilty beyond a reasonable doubt. For the reasons that follow, we affirm.

                                        BACKGROUND

       At defendant's bench trial, Kathryn B. testified as follows. On July 20, 2002, she was in a

relationship with defendant and lived with him. That evening, she left to go to work and left

defendant and their 18-month-old daughter at home. When Kathryn arrived at work, she learned that

she was not scheduled to work that evening, so she went home.

       Upon entering the couple's apartment, Kathryn discovered defendant sitting on the couch with

their daughter. One of defendant's legs was propped up on the coffee table, while the other was
No. 2--09--0788


against the back of the couch. Defendant was dressed in women's clothing: a strapless black bra

holding condoms filled with water; a light blue, spaghetti-strap halter top that revealed his stomach;

and a pair of very tight short shorts with a button fly. Three-quarters of defendant's penis was

exposed through the leg of his shorts, and his penis was fully erect. His hand was on his penis, but

Kathryn testified that she did not see him masturbating. Kathryn observed that their daughter was

naked and reaching for the head of defendant's penis. A pornographic movie was on pause in the

VCR, but the television was displaying a channel playing a cartoon. When defendant saw Kathryn,

he attempted to "shove his penis back up the leg of the pants," but was unsuccessful. Kathryn

grabbed their daughter, dressed her, and brought her to a friend's house.

       Kathryn testified that when she reported the matter to the police nearly a week later, she told

the officer that she had observed defendant masturbating. She further testified at trial, however, that

"[h]is hand was actually just on his penis, fully wrapped around his penis."

       Defendant's testimony at trial was as follows. After Kathryn left for work on July 20, 2002,

he placed their daughter in her room and she fell asleep. He then changed into women's clothing and

began to watch television. He denied wearing a bra or using condoms filled with water as breasts.

He also denied watching a pornographic movie, stating that the pornographic movie that was in the

VCR was there from the previous night when he and Kathryn had watched it together. At some point

after he changed into women's clothing, his daughter woke up and came into the living room. Once

in the living room, the child ripped off her diaper and crawled up onto the couch. Kathryn walked

through the door as defendant was rising to pick up the diaper from the floor. He did not have his

penis in his hand, but instead had his hand on his thigh as he was getting up. Defendant denied that

his penis was ever exposed or that the child saw him masturbating. He did admit, however, that his



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penis was semi-erect and "stimulated" as a result of the tight-fitting shorts. Defendant also denied

having any inappropriate sexual contact with the child.

        The trial court found defendant guilty, stating that it found Kathryn to be "eminently

believable." Defendant was sentenced to 24 months' probation, one of the conditions of which was

that he serve 180 days in jail. Defendant appealed.

                                             ANALYSIS

        On appeal, defendant argues that the State failed to prove beyond a reasonable doubt that he

was masturbating, because there was no evidence that he did anything other than hold his penis and

there was no evidence that he ejaculated. Having reviewed the record, we conclude that a rational

trier of fact could have found beyond a reasonable doubt that defendant was masturbating.

        A defendant's conviction will not be set aside unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins, 106 Ill.

2d 237, 261 (1985). It is not the function of this court to retry the defendant. Collins, 106 Ill. 2d at

261. Rather, " 'the relevant question is whether, after viewing 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.' " (Emphasis in original.) Collins, 106 Ill. 2d at 261, quoting Jackson

v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). The trier of fact

must assess the credibility of the witnesses and the weight of their testimony, resolve conflicts in the

evidence, and draw reasonable inferences from that evidence, and this court will not substitute its

judgment for that of the trier of fact on these matters. People v. Ortiz, 196 Ill. 2d 236, 259 (2001).

        A person commits the crime of sexual exploitation of a child when he or she engages in a

sexual act in the presence of a child and with the intent or knowledge that the child would view the



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acts. 720 ILCS 5/11--9.1(a) (West 2002). A sexual act is "masturbation, sexual conduct, or sexual

penetration as defined in Section 12--12 of [the Criminal Code of 1961]." 720 ILCS 5/11--9.1(b)

(West 2002). The term "masturbation" is not defined by statute. Nor is it defined in Illinois case law.

It is, however, commonly understood to mean "erotic stimulation involving the genital organs

commonly resulting in orgasm and achieved by manual or other bodily contact exclusive of sexual

intercourse." Webster's Third New International Dictionary 1391 (1993); see also People v.

Beachem, 229 Ill. 2d 237, 244 (2008) (when a term is not statutorily defined, we are to presume that

the legislature intended the ordinary and popularly understood meaning, which may be ascertained

through use of a dictionary).

       The evidence presented at trial, taken in the light most favorable to the State, was sufficient

to prove beyond a reasonable doubt that defendant was engaged in the erotic stimulation of his

genitals. Kathryn, whom the trial court found to be "eminently believable," testified that defendant

was dressed in women's clothing, had his erect penis three quarters of the way exposed, had a

pornographic video in the VCR, and had his hand wrapped all the way around his penis. Given this

context, a rational trier of fact could find beyond a reasonable doubt that defendant was masturbating.

       Defendant contends that the evidence was insufficient to prove that he was masturbating,

because (1) at most, Kathryn saw him merely holding his penis, not manipulating his penis in any way,

and (2) there was no evidence that he ejaculated. While both of these contentions are true, they do

not establish that defendant was not masturbating. The definition of masturbation does not require

that a person stimulate his or her genital organ in any specific way; an act constitutes masturbation

so long as the bodily contact erotically stimulates the genital organ. Here, the evidence was that

defendant was aroused (as evidenced by his erection) and that his hand was wrapped around his penis.



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No. 2--09--0788


Under the circumstances, one would not expect defendant to have his hand on his penis unless he was

masturbating. Defendant argues that if merely holding a penis constitutes masturbation, a man would

be considered to be masturbating every time he touches or scratches himself on the genitals. This,

however, is not true, as not every touching of genitals would cause erotic stimulation--a requirement

for masturbation. Similarly, just as the definition of masturbation does not require a specific method

of stimulation, it also does not require that a man achieve orgasm, much less ejaculate, every time he

masturbates. Thus, the fact that there was no evidence that defendant had achieved orgasm or

ejaculated does not mean that no rational trier of fact could have found that defendant was

masturbating.

                                          CONCLUSION

       For the foregoing reasons, we conclude that the State proved beyond a reasonable doubt that

defendant was masturbating. The judgment of the circuit court of Winnebago County is affirmed.

       Affirmed.

       HUTCHINSON and JORGENSEN, JJ., concur.




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