In re H.

2011 IL App (2d) 090909

952 N.E.2d 159

351 Ill.Dec. 786

In re TERRY H., a Minor (The People of the State of Illinois, Petitioner–Appellee,

v. Terry H., Respondent–Appellant).

No. 2–09–0909.

Appellate Court of Illinois, Second District.

June 7, 2011.

Thomas A. Lilien and Patrick M. Carmody, both of State Appellate Defender's Office, of Elgin, for appellant.Joseph P. Bruscato, State‘s Attorney, of Rockford (Lawrence M. Bauer and Scott Jacobson, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Justice HUDSON delivered the judgment of the court, with opinion.

¶ 1 Terry H. appeals from an order revoking his supervision following his adjudication of delinquency for aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(2)(I) (West 2006)). He contends that there was insufficient evidence that he violated the terms of his supervision. We affirm.

¶ 2 I. BACKGROUND

¶ 3 In February 2006, a delinquency petition was filed against Terry, alleging that he committed domestic battery. In March 2006, he was placed on probation, ordered to perform public service, and ordered to pay court costs. An order that he serve 30 days in detention was stayed.

[351 Ill.Dec. 788] ¶ 4 On August 14, 2006, a supplemental delinquency petition was filed, alleging that Terry, who was 15 at the time, committed aggravated criminal sexual abuse by touching his penis to the buttocks of a minor under 9 years of age. Under an agreement between the parties, Terry admitted the charge and was sentenced to two years' supervision, ordered to cooperate and participate in counseling, and ordered not to have unsupervised contact with minors under 12 years of age.

¶ 5 On July 2, 2008, a petition to revoke Terry's supervision was filed, alleging that Terry had gone to Great America amusement park unsupervised and that he was not cooperating with court-ordered treatment. On May 11, 2009, a hearing was held.

¶ 6 At the hearing, Jeffrey Sundberg, a social worker who counseled Terry, testified. Sundberg began counseling Terry in October 2007 on an individual basis. He then directed Terry to take part in a weekly sex-offender counseling group to further address issues that caused Terry to sexually act out. Based on a polygraph, Sundberg believed that there were matters not being addressed individually and that, by being in both group and individual sessions, Terry might be in a better position to make progress. In June 2008, Sundberg discharged Terry from the group. Sundberg testified that Terry was willing to talk about general issues but, when the topic became focused on his offender-specific concerns, Terry would “shut down,” would not proceed, and would not explore the issues. In Sundberg's opinion, Terry was not participating in the group counseling sessions. Sundberg stated that participants were expected to come prepared with assignments for the discussion and respond to questions, and that Terry had a pattern of not participating. Sundberg discussed the problem with Terry more than once before discharging him, but Terry's participation did not improve. On cross-examination, Sundberg stated that he was aware that Terry was diagnosed with ADHD, was bipolar, and had fetal alcohol syndrome. Sundberg agreed that some kids do better in group sessions than others.

¶ 7 Michelle Eaton, Terry's probation officer, testified that she observed some of the group sessions, during which Terry would state that he did not want to discuss matters. Eaton said that, on many occasions, Sundberg then discussed with Terry that Terry had to talk about things or risk being dismissed from the group. Eaton testified that she also transported Terry to individual sessions and that they would discuss Terry's participation. Many times, Terry would not say anything, and he would put his head down and refuse to talk. After discussing with Terry what would happen if he did not participate, his participation improved somewhat in that he would attempt to give feedback to other members of the group, but he did not offer much in terms of his own treatment. Eaton stated that Terry was not working on his own issues, in violation of part of the requirement of working with the group. On cross-examination, Eaton agreed that it is extremely difficult for young teens to talk about their sexual dynamics in front of a group. She also was aware of Terry's mental health issues but stated that she had no reason to believe that he was unable to comply with the requirement that he participate in counseling.

¶ 8 Terry's mother testified about Terry's mental health issues and to various counseling that he had outside of his sex-offender treatment. When she was asked if Terry was assertive and how Terry behaved in family counseling, the State objected based on relevancy. The objections were sustained.

[351 Ill.Dec. 789] ¶ 9 In regard to the trip to Great America, Terry had gone to the park as part of an organized trip with a group of students in his age group, but it was a regular park day and children of all ages were present. Sundberg testified that he discussed the trip with Terry, who told Sundberg that there was a chaperone and that the chaperone was unaware of Terry's status as a sex offender. Likewise, Eaton testified that she discussed the trip with Terry, who told her that the person supervising his group was not aware of why he was on supervision. Terry told Eaton that his mother was there but that he was not part of her group. He said that he went on rides and was not supervised in the restroom. Terry also told Eaton that his mother called him throughout the day but that he did not answer his cell phone.

¶ 10 Terry's mother testified that there were no children on the trip under the age of 12 and that there were about eight chaperones. She said that Terry was part of her group. The park itself was open to the public, and there were children of all ages there. She and Terry were at the park from about 10 a.m. to 6 or 7 p.m. She testified that she was not with Terry when he went on rides but that she was sitting on a bench waiting for him. She knew that he was on a ride, but she could not always see him while it was operating or while he was waiting in line. Terry's mother did not go to the restroom with him. Terry was also out of her sight when he went into the arcade, but she stayed right outside the door. She said that, if she wanted, she could look in and see him at all times. Terry's mother testified that she found out that Terry's cell phone was turned off when she tried to call him after she went to the restroom and could not find him when she came out. Terry then came out of the restroom, showed her that the phone was turned off, and turned it on.

¶ 11 Terry argued that the State failed to show a violation of his supervision by a preponderance of the evidence. The trial court found that Terry violated the terms of his supervision. The court stated that it was well known that an amusement park is not limited to people over 12 years of age and that Terry was outside his mother's presence while at the park. The court also found that Terry purposely refused to participate in counseling. Accordingly, the court revoked Terry's supervision, he was sentenced to probation, and he was required to register as a sex offender. Terry moved for reconsideration, arguing that the State failed to prove that he violated the terms of his supervision. The motion was denied, and he appeals.

¶ 12 II. ANALYSIS

¶ 13 Terry argues that the trial court lacked sufficient evidence to revoke his supervision, because there was no evidence that he had any unsupervised contact with children under the age of 12 and because there was no proof that his failure to participate in counseling was willful in light of his mental health issues.

¶ 14 Minors in delinquency cases are entitled to the same due process protections as adults who face criminal charges. See 705 ILCS 405/5–101(3) (West 2008); In re Westley A.F., Jr., 399 Ill.App.3d 791, 795, 340 Ill.Dec. 431, 928 N.E.2d 150 (2010). “On a State's motion to terminate supervision, the State has the burden of showing a violation of supervision by a preponderance of the evidence.” People v. McGuire, 216 Ill.App.3d 705, 709, 159 Ill.Dec. 722, 576 N.E.2d 391 (1991). A proposition is proved by a preponderance of the evidence when the proposition is more probably true than not true. People v. Drake, 131 Ill.App.3d 466, 472, 86 Ill.Dec. 639, 475 N.E.2d 1018 (1985). The State may meet its burden using circumstantial evidence. See People v. Love, 404 Ill.App.3d 784, 788, 344 Ill.Dec. 729, 937 N.E.2d 752 (2010); People v. Kane, 136 Ill.App.3d 1030, 1034, 91 Ill.Dec. 737, 484 N.E.2d 296 (1985) (allowing revocation of probation based on circumstantial evidence). “ In evaluating whether the State met its burden, the trial judge is free to resolve inconsistencies in the testimony and to accept or reject as much of each witness's testimony as the judge pleases.” Love, 404 Ill.App.3d at 787, 344 Ill.Dec. 729, 937 N.E.2d 752. “A trial court's determination to revoke supervision will not be disturbed unless it is against the manifest weight of the evidence.” McGuire, 216 Ill.App.3d at 709, 159 Ill.Dec. 722, 576 N.E.2d 391. “A finding is against the manifest weight of the evidence only if the opposite result is clearly evident.” Love, 404 Ill.App.3d at 787, 344 Ill.Dec. 729, 937 N.E.2d 752. Thus, even where the State's evidence is slight, we must affirm the revocation of supervision as long as the opposite conclusion is not clearly evident. See id. (applying this proposition to revocation of probation).

¶ 15 Terry relies primarily on two cases, People v. Prusak, 200 Ill.App.3d 146, 146 Ill.Dec. 733, 558 N.E.2d 696 (1990), and People v. McClellan, 353 Ill.App.3d 1027, 289 Ill.Dec. 802, 820 N.E.2d 578 (2004). In Prusak, the defendant pleaded guilty to one count of aggravated criminal sexual abuse and was sentenced to a three-year term of...