                                       2018 IL App (5th) 150114
            NOTICE
 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.




                                                 3

¶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


                                                5

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).




                                                 7

¶ 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




                                                8

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) 150114 


                                     NO. 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
______________________________________________________________________________
