People v. Bunning , 103 N.E.3d 864 ( 2018 )

2018 IL App (5th) 150114NOTICE
Decision filed 05/17/18. The
text of this decision may be NO. 5-15-0114
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of
IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Christian County.
)
v. ) No. 13-CF-59
)
JERRY H. BUNNING, ) Honorable
) Bradley T. Paisley,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion.
Justices Moore and Overstreet concurred in the judgment and opinion.
OPINION
¶1 After a jury trial in the circuit court of Christian County, defendant, Jerry H. Bunning,
was convicted of aggravated criminal sexual abuse (720 ILCS 5/11-1.60(c)(1)(i) (West 2012))
and was sentenced to five years in the Department of Corrections to be followed by two years of
mandatory supervised release. Defendant appeals the denial of his motion to reconsider his
sentence. The issue raised in this direct appeal is whether the trial court erred by considering in
aggravation the psychological harm or threat thereof suffered by the minor victim in sentencing
defendant. We affirm.
¶2 FACTS
¶3 Defendant was charged by information with a single count of aggravated criminal sexual
abuse for having the victim, M.B., who was under 13 years of age, “touch his penis over his
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clothing.” Id. M.B. is defendant’s step-granddaughter. At trial, M.B., age nine, testified that
approximately two years earlier defendant showed her pornography on a computer and made her
touch him on “his bad spot” over his clothes. She pointed to the bad spot on a diagram. M.B. said
it happened in the computer room at her grandparents’ house. M.B. estimated that it happened
approximately four times, usually at night while her grandmother was asleep.
¶4 After hearing all the evidence, the jury found defendant guilty. The trial court ordered a
sex offender evaluation and presentence investigation (PSI) prior to sentencing. The sex offender
evaluation showed that defendant is at a low risk for recidivism. The evaluator recommended
defendant undergo “[s]ex offender-specific treatment utilizing group-centered, cognitive-
behavioral techniques as recommended by the Illinois Sex Offender Management Board” and
“[s]ex offender-specific guidelines/requirements and specialized monitoring if [defendant] is at
some point placed/released under community supervision via probation or parole.”
¶5 The presentence investigation showed defendant has one 1977 conviction for disorderly
conduct. It also showed that defendant was gainfully employed as a truck driver by the same
employer for 18 years. With regard to a proposed plan of supervision, the report concluded:
“Due to the severity of the current offense and the defendant’s failure to take full
responsibility for the offense, it appears the defendant lacks empathy for others. In
addition, the defendant lacks involvement in an organized group or activity. If the court
were to sentence the defendant to a term of probation, the targeted interventions and
supervision strategies listed above as well as maximum level of supervision, would be
priorities in a supervision case plan.”
A revised level of service inventory suggested that defendant receive a “medium level of
supervision/service” and placed defendant’s probability of recidivism at 23%.
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¶6 M.B.’s mother submitted a victim impact statement in which she set forth the ways in
which she, M.B., and her family had been impacted by defendant’s abuse of M.B. In her letter,
she discussed how, over the course of the previous two years, her family members’ lives have
“been turned upside down.” She explained how the family has “had to rearrange our lives to
keep all of the counseling appointments, court dates, and advocate meetings.” She said she and
her husband missed more than 30 days of work because of such appointments, causing them to
lose money because neither has a job that gives them paid time off for such matters. She also
noted that the victim “has had to miss many days of school and some fun activities with her
friends.” She believes M.B. “is not the same girl she used to be” and defendant “took her
childhood away.”
¶7 A sentencing hearing was conducted on July 31, 2014. The State did not offer any
additional evidence in aggravation. The defense called defendant’s wife and defendant to testify.
Both testified about the hardships it would cause their family if defendant were incarcerated.
¶8 In sentencing defendant, the trial court said it considered the PSI; the history, character,
and attitude of the defendant; and the evidence and arguments that were presented by the parties.
The court noted mitigating factors, including no prior history of delinquency, albeit one
conviction years earlier, the sex offender report which indicated a low risk of recidivism, and the
excessive hardship on defendant’s dependents which would be caused by defendant’s
incarceration. The trial court also pointed out that even though defendant indicated in the PSI and
in court that he was willing to comply with sex offender treatment, such treatment is not usually
successful unless a defendant is willing to admit guilt.
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¶9 As to factors in aggravation, the trial court noted that one of the factors to be considered
is whether the offense caused or threatened serious harm. The court noted that this does not mean
only physical harm, specifically stating as follows:
“[I]n cases like this, physical harm is often not the issue. The issue is, emotional
psychological harm that may, obviously has occurred at least in some respects because
the child has apparently been in treatment for some time. I think the evidence I heard in
this case in a pretrial hearing was that she was. I think that is one of the first things that
was done even before the police were involved is that the mother took her to some type
of counseling. Uh, and unfortunately for us, we’re not going to know the nature and
extent of the harm caused by this act, these acts probably for quite some time. There is a
real danger that [M.B.] is going to have a lot of issues in the future dealing with trust,
dealing with relationships with other men, whether it is, you know, paramours or
otherwise. Uh, it is just part of what happens in these kinds of unfortunate situations.”
The trial court further found in aggravation that defendant held a position of supervision and
trust with regard to M.B. by virtue of the fact that he was the only grandfather she ever knew.
¶ 10 The trial court pointed out that the abuse happened more than once and was well
orchestrated by defendant in that defendant waited until his wife was asleep before abusing M.B.
The trial court also pointed out that even though defendant denied committing any acts of abuse,
he was caught in repeated lies about the incidents:
“And what I have seen in the past with sexual offenders is what I have seen with
[defendant]. And that is, it starts out like this. This is what happened in this case. They
find, they accuse him of having pornography on the computer. He says, no, I don’t; no, I
didn’t, I didn’t have. He didn’t know anything about computers. His wife found the porn
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on the computer relatively quickly. I don’t know how it got there. I didn’t put it there. Lie
number two. Uh, well we don’t believe that. There has got to be a way that that got there.
Well, maybe I accidentally got it there. And then it was, okay, fine; and then give up just
a little bit more every time, but falling short of actually coming clean and admitting what
he did. Then he would say, well, okay, yeah, I was watching pornography and I didn’t
know [M.B.] was there. When I found out that she was there, I told her that this is what
adults do, it wasn’t appropriate for her, and I shut it down. Uh, of course, we don’t want
to tell anybody though, which is another hallmark of sexual—We can’t tell anybody
because, I think the words were, grandma would kill me. And then it is, well, the
accusation is that she touched your penis. Well, that didn’t happen. Well, wait, let me
think about that. Well, there was this time that I got out of the shower, and she came
running into the bathroom and smacked me in the penis; and I told her, you know, that is
not appropriate, don’t do that. But again, I won’t tell, if you won’t tell. Concealment. So
it is just give you just enough each time, but the lies just compound and compound. And
so if you are asking what differentiates a probationable case from a nonprobationable
case, I think these facts and circumstances certainly do.”
The trial court went on to state that probation would not only “deprecate the seriousness of this
particular crime” but also “would be inconsistent with the ends of justice.” The trial court then
sentenced defendant to five years in prison to be followed by two years of mandatory supervised
release.
¶ 11 Defendant filed a pro se motion to reduce sentence, arguing that the State failed to
present any evidence of physical or emotional harm to M.B. Appointed counsel later filed an
amended petition to reduce sentence in which he incorporated the allegations in defendant’s
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pro se motion “by reference” and added some additional arguments. The motion to reduce
sentence alleged that the trial court failed to give proper weight to the factors in mitigation, failed
to give appropriate weight to defendant’s sex offender evaluation, and gave improper weight to
the seriousness of harm to the victim when there was “no indication in the record from
counselors or otherwise that there was serious harm done to the victim.”
¶ 12 After a hearing, the trial court denied the motion to reduce sentence. The trial court said it
considered both the factors in aggravation and in mitigation in sentencing defendant and noted
that one of the factors it considered in aggravation was whether there was actual or threatened
serious harm. The trial court found that any time a child is sexually abused by someone that is
close to them, “there is a possibility that could threaten serious harm.” The trial court believed
there was harm to M.B. “because she was in treatment for it. There was no question about that.”
The trial court also pointed to the factors in aggravation in this case, which include
(1) defendant’s position of trust relative to the victim, (2) lack of remorse on the part of
defendant, and (3) multiplicity of incidents of abuse. The trial judge said nothing new had been
presented that would cause him to change his mind and reduce defendant’s sentence. Defendant
now appeals.
¶ 13 ANALYSIS
¶ 14 The issue raised in this appeal is whether the trial court erred by considering in
aggravation the psychological harm or threat thereof suffered by M.B. in sentencing defendant.
Defendant argues that the trial court improperly considered in aggravation that defendant’s
conduct caused or threatened serious psychological harm because the record fails to show either
evidence of actual harm caused or circumstances that would be expected to cause harm beyond
that inherent in the charge of aggravated criminal sexual abuse. The State replies that the trial
6
court did not rely on an improper sentencing factor because the record sufficiently demonstrates
that M.B. suffered psychological harm or, at the very least, the threat thereof, as a result of
defendant’s abuse. We agree with the State.
¶ 15 We are aware of the general rule that a factor inherent in the offense for which a
defendant has been convicted cannot also be used as an aggravating factor in determining his
sentence. People v. Phelps, 211 Ill. 2d 1, 11 (2004). The rationale for this prohibition against
“double enhancement” is premised on the assumption that our General Assembly considered the
factors inherent in the offense in designating the range of punishment. Id. at 12. However, the
rule that a court may not consider a factor inherent in the offense should not be applied rigidly
because sound public policy demands that a sentence be varied according to the circumstances of
the offense. People v. Spicer, 379 Ill. App. 3d 441, 468 (2007). In determining whether the trial
court based its sentence on proper aggravating and mitigating factors, a reviewing court should
consider the record as a whole rather than focusing on a few words or statements by the trial
court. People v. Dowding, 388 Ill. App. 3d 936, 943 (2009).
¶ 16 If a sentence falls within the statutory limits, it will not be overturned on appeal absent an
abuse of discretion. People v. Perruquet, 68 Ill. 2d 149, 153 (1977); People v. Stroup, 397 Ill.
App. 3d 271, 274 (2010). An abuse of discretion occurs only if a sentence greatly varies from the
spirit and purpose of the law or where it is manifestly disproportionate to the nature of the
offense. People v. Stacey, 193 Ill. 2d 203, 210 (2000). A trial court is granted deference because
it is generally in a superior position to weigh such factors as defendant’s credibility, demeanor,
general moral character, mentality, social environment, habits, and age. People v. Streit, 142 Ill.
2d 13, 19 (1991).
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¶ 17 We first note that defendant’s conviction for aggravated criminal sexual abuse is a Class
2 felony. See 720 ILCS 5/11-1.60(g) (West 2012). A Class 2 felony carries a statutory limit of
not less than three years and not more than seven years. See 730 ILCS 5/5-4.5-35(a) (West
2012). Consequently, the sentence imposed upon defendant by the trial court was within the
statutory limits.
¶ 18 Contrary to defendant’s argument, many cases have held that the psychological harm
inflicted upon a child victim of a sex crime is a proper factor to consider in aggravation. For
example, in People v. Kerwin, 241 Ill. App. 3d 632, 636 (1993), this court rejected the
defendant’s argument that harm is inherent in the offense of aggravated criminal sexual assault
and found it proper that the trial court considered the emotional harm to the nine-year-old victim
as an aggravating factor. In People v. Fisher, 135 Ill. App. 3d 502, 506 (1985), our colleagues in
the Third District specifically stated, “Proof of medically diagnosed psychological harm is
unnecessary.” In that case, the defendant, who was charged with inter alia two counts of
indecent liberties with a child, argued that psychological harm could not be considered where it
was not proven. The court rejected that argument, finding that the defendant’s acts “created a
strong probability of permanent psychological harm” and was therefore properly considered. Id.¶ 19 In People v. Huddleston, 212 Ill. 2d 107, 134 (2004), our supreme court reviewed “[t]he
vulnerability of children to sexual predation” and “the psychological damage that results to the
developing psyches of these young victims.” The court found that long-term follow-up studies of
child sexual abuse victims show the sexual abuse is “grossly intrusive” in their lives “and is
harmful to their normal psychological, emotional and sexual development.” (Internal quotation
marks omitted.) Id. at 135 (quoting Yale Glazer, Child Rapists Beware! The Death Penalty and
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Louisiana’s Amended Aggravated Rape Statute, 25 Am. J. Crim. L. 79, 87 (1997), quoting
Christopher Bagley & Kathleen King, Child Sexual Abuse: The Search for Healing 2 (1990)).
¶ 20 Nevertheless, defendant contends that without specific evidence to show that a child
victim suffered psychological harm, any psychological harm must be limited to that implicit in
the offense itself. In support of its argument, defendant relies on People v. Calva, 256 Ill. App.
3d 865 (1993). In Calva, the defendant pled guilty to six counts of aggravated criminal sexual
assault committed against A.G., a six-year-old girl. Id. at 867. At sentencing, the trial court told
the defendant his actions “psychologically injured and scarred A.G. for life.” Id. at 869. On
appeal, the court found it was improper for the trial court to consider any psychological harm to
A.G. because “no evidence was offered to show any psychological harm to A.G.” Id. at 875.
¶ 21 Calva is distinguishable from the instant case for at least three reasons. First, in Calva the
defendant pled guilty, whereas this case went to trial. The trial court was able to observe M.B.
firsthand as she testified. M.B. specifically testified that she was abused by defendant on four
different occasions. Second, unlike Calva, the trial court set forth, both at sentencing and in
denying defendant’s motion to reconsider sentence, that there was evidence of M.B. having been
“in treatment.” Third, M.B.’s mother submitted a victim impact statement in which she outlined
the upheaval caused by defendant’s abuse and specifically referred to “counseling
appointments.” She noted that “[e]ven with the tools the counselors” have given M.B., she is still
concerned M.B. will be a victim again. She concluded that M.B. “is not the same girl she used to
be.”
¶ 22 After careful consideration, we find the record before us supports a finding of
psychological harm to M.B. or at least a reasonable inference that M.B. suffered psychological
harm. Therefore, the trial court did not err in considering psychological harm as an aggravating
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factor. The record also shows that the trial court properly considered the factors in aggravation
and mitigation.
¶ 23 In addition to psychological harm to M.B., the trial court found other factors in
aggravation. The trial court specifically found in aggravation: (1) the position of supervision and
trust defendant held over M.B., (2) the fact the abuse happened more than once, (3) defendant’s
concealment of the abuse, and (4) defendant’s refusal to take full responsibility for the repeated
acts of abuse. And, as previously set forth, the trial court’s sentence falls within the statutory
limits prescribed by the legislature. Under these circumstances, we cannot say the trial court
erred in sentencing defendant.
¶ 24 CONCLUSION
¶ 25 For the foregoing reasons, we affirm the judgment of the circuit court of Christian
County.
¶ 26 Affirmed.
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2018 IL App (5th) 150114NO. 5-15-0114
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Christian County.
)
v. ) No. 13-CF-59
)
JERRY H. BUNNING, ) Honorable
) Bradley T. Paisley,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
Opinion Filed: May 17, 2018
______________________________________________________________________________
Justices: Honorable Richard J. Goldenhersh, J.
Honorable James R. Moore, J., and
Honorable David K. Overstreet, J.,
Concur
______________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy
for Defender, Elizabeth M. Crotty, Assistant Appellate Defender, Office of
Appellant the State Appellate Defender, Fifth Judicial District, 909 Water Tower
Circle, Mt. Vernon, IL 62864
______________________________________________________________________________
Attorneys Hon. Michael M. Havera, State’s Attorney, Christian County Courthouse,
for 101 S. Main Street, Taylorville, IL 62568; Patrick Delfino, Director,
Appellee David J. Robinson, Deputy Director, Erin Wilson Laegeler, Staff
Attorney, Office of the State’s Attorneys Appellate Prosecutor, Fourth
Judicial District, 725 South Second Street, Springfield, IL 62704
______________________________________________________________________________