People v. H.C. (In re H.C.), 1-18-2581

2019 IL App (1st) 182581

130 N.E.3d 1115

433 Ill.Dec. 36

IN RE: H.C., a Minor

(The People of the State of Illinois, Petitioner-Appellee,

v.H.C., Respondent-Appellant).

No. 1-18-2581

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed May 2, 2019

James E. Chadd, Patricia Mysza, and Tomas G. Gonzalez, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Veronica Calderon, and Lisanne Pugliese, Assistant State’s Attorneys, of counsel), for the People.

JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a bench trial in juvenile court for criminal sexual abuse, H.C., the 17-year-old minor respondent, was found guilty. The trial court adjudicated him to be delinquent and a ward of the court, and sentenced him to 18 months of probation.

¶ 2 In this appeal, respondent seeks a new sentencing hearing, claiming that the trial court improperly considered his maintenance of innocence as an aggravating factor when sentencing him and, therefore, denied respondent's request for supervision instead of probation. For the following reasons, we affirm.

¶ 3 BACKGROUND

¶ 4 On August 20, 2018, respondent was charged in a juvenile petition for adjudication of wardship with criminal sexual abuse, unlawful restraint and battery. Prior to trial, the State made a plea offer of one year of probation in exchange for a plea of guilty to simple battery, and respondent rejected the offer. When the State published this offer on the record prior to trial, defense counsel stated on the record that she had advised respondent of the collateral consequences of having to register as a sex offender if convicted of criminal sexual abuse and of the possible immigration consequences that could result from a conviction. The social investigation report later indicated that respondent had immigrated to the United States from Honduras three years earlier.

¶ 5 In this appeal, respondent does not challenge either the sufficiency of the evidence against him or the admission at trial of any exhibit, testimony or other evidence. Thus, we provide here a summary of what the State's evidence established at trial.

¶ 6 On August 19, 2018, at 8:47 p.m., the victim, whom we identify by her initials, N.A., was walking eastbound on Wrightwood Avenue on her way to the Logan Theater in the Logan Square neighborhood, when she observed respondent and two other young men walking toward her. Respondent was wearing a white shirt and a white hat. N.A. was married and lived in the area, but did not testify as to her age. As she approached the men, they were positioned on the sidewalk, such that she either had to walk through them or walk in the street. The victim explained that she would have had to walk "out in the street because there is a tree on the right side here, and I would have had to walk around the tree, and here are the cars, so I would have to go around the cars or, yes, through the middle." So, she chose to walk through them.

¶ 7 As N.A. passed through the group, respondent grabbed her. She testified that he grabbed "between my legs." When asked to be more specific, she testified: "He grabbed my vagina." She testified that, after grabbing her vagina, he then "grabbed me like from the back." Again, when asked for more specificity, she testified: "[m]y butts." N.A. testified: "I started yelling first. I started screaming, and I just like fought my way out with my elbows. I just tried to—I don't know—fight my way out." The other men pushed N.A. towards respondent, making it difficult for her to escape. When asked whether respondent was laughing, she replied: "They were laughing." After escaping, she continued to walk to the theater, calling her husband on the way. N.A. explained: "No, I didn't run. I thought they will run after me if I run."

¶ 8 Once in the theater, N.A. observed the same group of three men walking past the theater and called 911. When the group had passed the theater, she went outside and told two men and a woman who were outside of the theater what had happened, and one of the two men, Nicholas Marzullo, started to follow the group. After the police arrived, they located the group and brought all three men to the theater separately for show-up identifications. N.A. identified respondent as the one who had grabbed her, and Nicholas Marzullo also identified respondent.

¶ 9 When N.A. accompanied the police back to the scene of the offense, she observed surveillance cameras on nearby buildings. At trial, the State introduced two clips from a surveillance video. The clips depict clearly a group of three men, including one with a white hat and white shirt, walking spread across the sidewalk. However, the incident itself is too far away and blurry to observe exactly what occurred at the moment that the victim walked through the group of men. Also, there is a bright light in the film, from the headlights of an approaching vehicle, which partly obscures what happened at that moment. However, one can observe some sort of altercation and then observe the victim walking away and talking on the phone.

¶ 10 Detective Jose Duran interviewed respondent in Spanish at the police station with respondent's mother present. Detective Duran testified that he provided Miranda warnings in Spanish, that both respondent and his mother indicated that they understood the warnings, and that they waived the right to counsel and indicated that they would speak with Detective Duran. After receiving Miranda warnings, respondent admitted walking down Wrightwood Avenue and passing a woman who yelled "hey" to the group and kept on walking. At the station, respondent was still wearing a white hat and a white shirt. Detective Duran was not asked, and did not testify at trial, about whether respondent admitted or denied touching the victim.

¶ 11 The trial court found respondent guilty of criminal sexual abuse and battery, but acquitted him of unlawful restraint and merged the battery conviction into the criminal sexual abuse conviction.

¶ 12 In the social investigation report, dated October 29, 2018, the probation officer reported: "The minor denies committing any act of crime." Further, the report stated:

"The minor reported to the probation officer that the incident occurred around 8 p.m. when he was walking with two of his friends. As he was walking he and his friends saw a female who was walking on the same street the [sic ] opposite of them. While as they passed each other up all he heard was a scream by the female that was walking past them. The minor denies anything else. He denies knowing why the female screamed until the police stopped him shortly thereafter. The minor completely denies any of his friends saying anything to her. He denies touching her."

¶ 13 The report noted that respondent has "a total of two court referrals with one of them being a finding of delinquency." The finding of delinquency was in the instant case. The probation officer recommended 18 months of probation.

¶ 14 At the sentencing hearing on November 8, 2018, the probation officer informed the trial court that he wanted to change his recommendation from 18 months of probation, as stated in his social investigation report, to 18 months of supervision. The trial court replied: "I'm not going to do that. This is a trial. Go ahead." The probation officer then described respondent's background, including that, at the time of the offense, respondent lived with his father, with whom he did not have a good relationship. Since his arrest, respondent had moved to a nearby town to live with his mother, with whom he had a good relationship, and he had an overall good school performance.

¶ 15 Although it was respondent's first offense, the State asked for a term of probation, based on the seriousness of the offense. In the victim's impact statement, the victim stated that the offense was the "most fearful moment in my life." She further stated: "I cannot walk alone anymore nowhere, I have nightmares."

¶ 16 Defense counsel observed that, prior to trial, the State had made an offer of probation for misdemeanor battery without a registration requirement, and counsel asked the court for a sentence of supervision. The following colloquy ensued at the sentencing hearing:

"DEFENSE COUNSEL: Your Honor, if you recall before this trial started, the State chose to put on the record the offer that they had made to the minor respondent, which was probation on a misdemeanor battery charge. Had he accepted that offer, there would be no collateral consequence of registration for that offense. The minor exercised his right to go to trial, and I don't—I'm not trying to minimize the seriousness of the offense, I am asking that the Court, however, consider a sentence of supervision.

THE COURT: I'm not doing that.

DEFENSE COUNSEL: Because—

THE COURT: Absolutely not. Not after what I heard at this trial."

¶ 17 At the sentencing hearing, defense counsel observed that, with probation, respondent would be required to be placed on the sex offender registry, which could cause him to be deported; and that his family intended to pursue asylum status based on respondent's having been recruited by gangs in Honduras.

¶ 18 Prior to sentencing respondent, the trial court offered respondent the opportunity to address the court, which he declined. The trial court then sentenced him, stating:

"THE COURT: You know, he is still denying what happened to his probation officer, and I heard a trial, and the evidence against him was frankly overwhelming, and what he did to [the victim] was inexcusable. There is no reason for it. No reason at all.

It's a finding of best interest and wardship, 18 months probation * * *."

¶ 19 On December 5, 2018, respondent filed a notice of appeal, and this timely appeal followed.

¶ 20 ANALYSIS

¶ 21 On this appeal, respondent makes one claim, and it is a claim of sentencing error. He argues that the trial court improperly...