People v. Ressa , 2019 IL App (2d) 170439 ( 2019 )

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Appellate Court Date: 2019.06.27
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People v. Ressa, 2019 IL App (2d) 170439Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption GUISEPPE RESSA, Defendant-Appellant.
District & No. Second District
Docket No. 2-17-0439
Filed March 29, 2019
Decision Under Appeal from the Circuit Court of Du Page County, No. 15-CF-1115;
Review the Hon. Robert A. Miller, Judge, presiding.
Judgment Affirmed.
Counsel on Alison H. Motta, of Motta & Motta LLC, of Aurora, and Kevin E. Bry,
Appeal of Oak Park, for appellant.
Robert B. Berlin, State’s Attorney, of Wheaton (Lisa Anne Hoffman
and Mary A. Fleming, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE BURKE delivered the judgment of the court, with opinion.
Justices Zenoff and Spence concurred in the judgment and opinion.
OPINION
¶1 Defendant, Guiseppe Ressa, was charged with multiple counts of child abduction (720
ILCS 5/10-5(b)(10) (West 2014)), aggravated criminal sexual abuse (id. § 11-1.60(c)(1)(i)),
and aggravated kidnapping (id. § 10-2(a)(2)), stemming from his interactions with two sets of
siblings, the first at an apartment complex in Lisle on May 27, 2015, and the second at an
apartment complex in Addison on June 1, 2015. Following a bench trial, defendant was found
guilty on two counts of aggravated criminal sexual abuse for physical contact with two of the
children during the two incidents. Defendant was also convicted on five counts of child
abduction, for luring or attempting to lure all of the children into vestibules within their
apartment complexes for an unlawful purpose. Defendant, who has been diagnosed with
“delusional disorder, grandiose type (with religious content), continuous,” was sentenced to an
aggregate term of 20 years’ imprisonment.
¶2 On appeal, defendant contends that (1) his trial counsel was ineffective for failing to pursue
an insanity defense, (2) the trial court abused its discretion in admitting into evidence
numerous of defendant’s writings and other materials, (3) the evidence was insufficient to
support the convictions of aggravated criminal sexual abuse and one of the convictions of child
abduction, and (4) the trial court abused its discretion in sentencing him to an aggregate term of
20 years’ imprisonment. We affirm.
¶3 I. BACKGROUND
¶4 A. Charges
¶5 On June 30, 2015, defendant was charged by indictment with aggravated kidnapping of
Jazlene (born April 3, 2008) (count I), aggravated kidnapping of Adrien (born November 2,
2011) (count II), aggravated criminal sexual abuse of Jazlene (count III), child abduction of
Jazlene (count IV), child abduction of Adrien (count V), child abduction of Jackilynne (born
February 25, 2009) (count VI), aggravated kidnapping of Jackie (born August 31, 2007) (count
VII), attempted aggravated kidnapping of Jackie (count VIII), aggravated kidnapping of
Johnny (born July 2, 2009) (count IX), aggravated criminal sexual abuse of Jackie (count X),
child abduction of Jackie (count XI), and child abduction of Johnny (count XII).
¶6 B. Trial
¶7 On May 27, 2015, then-seven-year-old Jackie and her younger brother, Johnny, were at the
playground of their apartment complex in Lisle. They were joined later by their neighbors,
then-seven-year-old Gael and his three-year-old sister, Sophia. Defendant approached and
started interacting with these children, talking to them, proposing games, and offering candy
and cookies.
¶8 Defendant tried to lure Johnny with a toy. Johnny started to go with him until Jackie
intervened. Defendant then tempted Jackie, offering her a cookie to lure her into the building,
but she resisted. Jackie testified that defendant carried her, bumping her head, and then placed
her on the slide at the playground and sat next to her. She attempted to get off the slide, but
defendant would not let her go. Defendant pushed her down every time she tried to get up until
eventually Jackie and Johnny went home for dinner.
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¶9 Gael testified that he was playing hide and seek with Jackie when he saw a stranger grab
her hand and pull her inside the building. Gael did not know how she managed to escape. Later,
Gael saw the stranger push her onto the slide. The stranger was on top of Jackie. After Jackie
and Johnny went home, Gael continued to play at the park with Sophia. When Gael and
Sophia’s dad, Jose, arrived, the stranger left and headed to his car.
¶ 10 Jose testified that he saw defendant at the park with his children and got a look at
defendant’s car as defendant left. He searched for defendant but did not find him, so he went to
the police.
¶ 11 On June 1, 2015, unaware that the police were watching him, defendant went to an
apartment complex in Addison and encountered Jazlene, Jackilynne, and Adrien. Defendant
gave them candy and offered more but told them that to get more they had to follow him.
Jackilynne refused, but Jazlene and Adrien followed defendant into a building vestibule, where
they were alone. Defendant was out of candy, so he offered Jazlene $5. Then defendant
crouched down and started touching her. He was rubbing her leg and talking to her when the
police arrived. Without speaking, defendant stood up and started to leave the building, but the
police asked him what he was doing.
¶ 12 Jackilynne testified that defendant came to the entryway to her apartment building and
asked if she wanted some candy. Defendant gave her sour gummy candy. After that, defendant
touched her. Defendant asked Jackilynne her name and where she lived. Defendant told her
that if she wanted more candy she could go to his car. Jackilynne did not go. Defendant then
went to his car to get a white hat. Jackilynne stated that she forgot to tell anyone that defendant
tried to get her to go to his car.
¶ 13 A court order allowed a tracking device to be placed on defendant’s car, and Detective
Kevin Licko of the Lisle Police Department conducted surveillance of defendant. While school
buses were dropping children off in the Aspen Ridge Apartment Complex, Licko observed
defendant drive by slowly, looking in the direction of the children. Defendant then drove to the
Carrollwood Apartment Complex and then to another apartment complex. Licko observed
defendant approach three children and appear to give them something. Licko called other
detectives when defendant was out of his line of sight.
¶ 14 Detectives Loudon and Eccart of the Lisle Police Department responded to Licko’s call.
They proceeded on foot and saw defendant with three children. Defendant gave the children
something from a yellow bag. Defendant then went to his car and retrieved a white hat.
Defendant returned to the children and walked into a building with two of them. Loudon and
Eccart followed and saw that defendant was crouched down by a little girl. As soon as Loudon
and Eccart found defendant and the children, defendant walked away. Loudon and Eccart
followed, with their badges hanging around their necks. They asked defendant if he would talk
to them. He agreed and told them that he lived in the apartment complex but then stated that he
did not live there. Defendant claimed that he was shopping for apartments but then said that he
was there to visit his friend Tommy. When the officers asked defendant to call Tommy,
defendant said that he was not doing anything wrong. Loudon offered to call Tommy, but
defendant could not remember his number. Loudon asked defendant if he could check his
pockets. Defendant agreed, and Loudon found an empty Sour Patch candy bag and $5.
¶ 15 Eccart testified regarding searches of defendant’s vehicle and residence. He authenticated
many of the exhibits, including pictures, books, and defendant’s writings, found during the
searches. The State also introduced note cards, loose papers, and receipts.
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¶ 16 Officer Dean Anders of the Lisle Police Department testified regarding the search of
defendant’s cell phone. Defendant’s browsing history showed news stories about murders and
sexual assaults of children. Anders also found research of stories about the May 27, 2015,
incident, which were published before defendant was charged.
¶ 17 The trial court found defendant not guilty of counts I, II, VII, VIII, and IX. The trial court
found defendant guilty of counts III, IV, V, VI, X, XI, and XII, which included two counts of
aggravated criminal sexual abuse and five counts of child abduction. Defendant filed a motion
to reconsider or, in the alternative, for a new trial, which was denied. The court sentenced
defendant to an aggregate term of 20 years’ imprisonment. Defendant timely appeals.
¶ 18 II. ANALYSIS
¶ 19 A. Ineffective Assistance of Counsel
¶ 20 Defendant first claims that his trial counsel was ineffective for failing to pursue an insanity
defense. The State responds that defendant’s claim must fail because the record does not show
what defense counsel did or did not do to investigate an insanity defense. We agree.
¶ 21 To prevail on an ineffectiveness claim, a defendant must first establish that “counsel’s
representation fell below an objective standard of reasonableness.” Strickland v. Washington,
466 U.S. 668, 688 (1984). The defendant must then show that counsel’s deficient performance
resulted in prejudice to the defendant such that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different. Id.¶ 22 In Illinois, a person is not criminally responsible for conduct if, at the time of the conduct,
he suffered from a mental disease or defect such that he lacked substantial capacity to
appreciate the criminality of his conduct. 720 ILCS 5/6-2(a) (West 2014). When a defendant
raises the affirmative defense of insanity, he bears the burden of proving by clear and
convincing evidence that he is not guilty by reason of insanity, while the State retains the
burden of proving the defendant guilty beyond a reasonable doubt. Id. § 6-2(e).
¶ 23 The State filed a motion for a psychological evaluation of defendant in anticipation of a
possible insanity defense, pursuant to section 115-6 of the Code of Criminal Procedure of 1963
(Code) (725 ILCS 5/115-6 (West 2014)). Section 115-6 provides for a court-ordered
evaluation on the State’s motion “if the facts and circumstances of the case justify a reasonable
belief” that, inter alia, a defendant might rely on an insanity defense. Id. Defendant did not
object, and an evaluation was conducted by Dr. Murray. Both parties received a copy of Dr.
Murray’s report on September 1, 2015. Dr. Murray concluded that “[defendant] does not
present with symptoms of a psychiatric disorder that would have impaired his ability to lack
substantial capacity to appreciate the criminality of his conduct between May 27, and June 1,
2015. These findings are not consistent with the insanity verdict.” The State points out that this
is the only evidence in the record regarding a possible insanity defense and that there thus is no
evidence to support defendant’s claim that defense counsel should have brought an insanity
defense.
¶ 24 There certainly appears to be evidence in the record of defendant’s mental illness.
Defendant cites a myriad of examples, such as defendant’s statement comparing himself to
Jesus and other “disturbing and frankly sick statements.” However, bizarre behavior or
delusional statements do not compel an insanity finding, as a defendant can suffer mental
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illness without being legally insane. See, e.g., People v. Gilmore, 273 Ill. App. 3d 996, 1000
(1995).
¶ 25 Defendant cites People v. Murphy, 160 Ill. App. 3d 781 (1987), to support his claim that
counsel was ineffective. In Murphy, the court held that, based on the defendant’s assignment to
a residential treatment unit and other circumstances, defense counsel had the affirmative
obligation to make further inquiry into the defendant’s mental condition. The court found that
the defendant was denied the effective assistance of counsel where reasonable grounds existed
to question his sanity or competency but defense counsel failed to explore the issue. Id. at 789.
Unlike in Murphy, the record here does not reveal whether counsel investigated the issue. It is
possible that counsel did investigate and received information that would not support an
insanity defense. We also cannot determine whether defendant was prejudiced by counsel’s
decisions.
¶ 26 Defendant’s reliance on Wilson v. Gaetz, 608 F.3d 347 (7th Cir. 2010), similarly fails. In
Wilson, defense counsel raised an insanity defense without an expert opinion or evaluation
regarding sanity. He relied instead on the expert who had evaluated the defendant for fitness to
stand trial. The Seventh Circuit noted that fitness and sanity are two separate issues and that “a
fitness evaluation is not an adequate substitute” for an examination regarding sanity. Id. at 351.
The court believed that defense counsel should have done more—he should have interviewed
family members, spent more time discussing testimony with his expert, and either asked the
expert to reinterview the defendant, retained a second expert, or both. Id. at 352. In Wilson,
unlike in this case, the record showed counsel’s improper reliance on a fitness evaluation to
support an insanity defense. Here, there is no record of what actions, if any, counsel took
regarding an insanity defense.
¶ 27 In sum, the record does not support a claim of ineffective assistance of counsel. The record
fails to show whether defense counsel investigated and, if so, what he actually discovered. As
stated, there unquestionably is evidence in the record of defendant’s mental illness, but the
only expert opinion is from Dr. Murray, who found that defendant was not legally insane. We
observe, in passing, that if defendant has supporting evidence or can develop it, a collateral
proceeding offers the appropriate forum for such a claim. See People v. Clark, 406 Ill. App. 3d
622, 640 (2010) (noting that claims for ineffective assistance of counsel are preferably brought
on collateral review, because the trial record is often inadequate to support such a claim).
¶ 28 B. Admission of Evidence
¶ 29 Defendant next contends that the trial court abused its discretion by admitting certain
evidence, including defendant’s delusional and fantastical writings, online searches relating to
well-known cases involving children who had been murdered and sexually molested, and other
items relating to children. Defendant believes that this evidence was not relevant or, to the
extent that it was relevant, was more prejudicial than probative.
¶ 30 Illinois Rule of Evidence 404(b) (eff. Jan. 1, 2011) provides that, with certain specified
exceptions, evidence of other crimes, wrongs, or acts is not admissible to prove the character of
a person in order to show action in conformity therewith. Such evidence may be admitted for
other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident. People v. Pikes, 2013 IL 115171, ¶ 14. Relevant
evidence is defined under the rules of evidence as “ ‘evidence having any tendency to make the
existence of any fact that is of consequence to the determination of the action more probable or
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less probable than it would be without the evidence.’ ” People v. Montano, 2017 IL App (2d)
140326, ¶ 74 (quoting Ill. R. Evid. 401 (eff. Jan. 1, 2011)); see also People v. Harvey, 211 Ill.
2d 368, 392 (2004). The trial court has discretion to determine whether evidence is relevant
and admissible. People v. Hanson, 238 Ill. 2d 74, 101 (2010). However, the court may exercise
its discretion and exclude evidence, even if it is relevant, if the danger of unfair prejudice
substantially outweighs its probative value. Id. at 102. The trial court’s admission of other-acts
evidence will be upheld on appeal unless the court abused its discretion. People v. Fretch, 2017
IL App (2d) 151107, ¶ 47.
¶ 31 In a bench trial, such as this, a trial judge is presumed to know the law and to follow it, and
this presumption is rebutted only when the record affirmatively shows otherwise. People v.
Yancy, 368 Ill. App. 3d 381, 386 (2005).
¶ 32 Defendant filed a motion in limine requesting that all evidence of writings and materials
taken from his home be barred. He argued that this evidence was not relevant or that its
prejudicial effect substantially outweighed its probative value.
¶ 33 The State responded that the evidence at issue established defendant’s intent to commit the
crimes for which he was indicted. The State further noted that it reduced the number of
documents it sought to introduce, to avoid the concerns raised in People v. Gregory, 2016 IL
App (2d) 140294, ¶ 26. In Gregory, letters the defendant had written, which included evidence
of unrelated offenses, were admitted in their entirety. We noted that deleting the evidence of
unrelated offenses would have done nothing to interfere with the State’s use of the letters.
However, because that use was so minimal and because the evidence of unrelated offenses was
so voluminous and inflammatory, we found that there was a great risk that the jury would find
the defendant guilty of the charges in light of his propensity or would find him guilty not of the
charges but instead of one of the uncharged acts. Thus, the letters’ prejudicial effect
overwhelmed their probative value. In this case, the State argued that the evidence at issue was
directly relevant to the charges and should be admitted to establish defendant’s intent. The
State claimed that the evidence “contain[s] references to *** defendant’s improper physical
conduct with children, include[s] admissions of his desire to commit sexual assaults upon
children, outline[s] various strategies on how to commit such acts, and otherwise
demonstrate[s] his disturbing fascination with the notorious crimes committed against
Samantha Runnion, who at five (5) years of age was abducted from her front yard on July 15,
2002, and thereafter raped and murdered.”
¶ 34 The State continued that, to the extent that the evidence referenced actual physical contact
with children, it was more like the other-crimes evidence dealt with by the supreme court in
People v. Wilson, 214 Ill. 2d 127, 136 (2005) (the other-crimes testimony of two of the victims
fit squarely within the recognized exceptions, which allow such evidence to show the
defendant’s intent or to show that the acts in question were not performed inadvertently,
accidently, involuntarily, or without guilty knowledge). The State also noted that defendant’s
writings describing his contact with minors showed that his conduct in this case was not
innocent behavior.
¶ 35 Defendant was charged with aggravated criminal sexual abuse and child abduction, and the
State was obligated to prove defendant’s intent. In particular, for the sexual-abuse charges, the
State had to prove that defendant touched the minors for the purpose of his sexual gratification.
See People v. Balle, 234 Ill. App. 3d 804, 813 (1992) (intent element of aggravated criminal
sexual abuse may be established by circumstantial evidence, i.e., trier of fact may consider the
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circumstances and infer defendant’s intent from his conduct). Here, the facts showed that
defendant touched the minors in an arguably nonsexual manner. The evidence at issue puts
defendant’s otherwise “innocent” touching in context, as the vast majority of it revolved
around defendant’s obsession with sexual activity with or related to children. This evidence
thus was relevant and admissible to prove intent or motive under Rule 404(b). We cannot say
that the trial court abused its discretion in determining that the prejudicial effect of the
evidence was outweighed by its relevance.
¶ 36 The State relies on Fretch, which we agree supports the trial court’s ruling. In that case, the
defendant argued that his prior demonstrations of sexual interest in a particular class of victim,
female minors, were not probative as to whether he intended to expose his penis to the victim,
a female minor. We stated:
“[E]vidence of defendant’s general interest in female minors was proper as well.
Defendant misunderstands the parameters on other-acts evidence. Certainly, the law
does not permit the inference that because the defendant has committed some bad act or
crime, he must have committed the charged offense. Just the same, the law does not
shield a defendant from proof of his particular tendencies or patterns of conduct as they
might bear logically on whether he acted in conformity with them in committing the
charged offense. ‘The case law fully establishes that the State may adduce evidence of
the defendant’s proclivities or past conduct in order to prove intent or knowledge in the
case sub judice.’ People v. Gumila, 2012 IL App (2d) 110761, ¶ 54 (the internal
records in the defendant’s computer showing prior visits to websites with child
pornography were admissible as other-acts evidence to show that the defendant
knowingly and voluntarily possessed images of child pornography found on his
computer’s hard drive). More specific to the present case, a defendant’s prior conduct
toward ‘the victim or person in the same class of the victim’ is admissible to show
intent. *** People v. Illgen, 145 Ill. 2d 353, 367 (1991).” (Emphases omitted.) Fretch,
2017 IL App (2d) 151107, ¶ 76.
¶ 37 Similarly here, defendant’s materials referencing fantasies involving children were
relevant to show defendant’s intent to commit the crimes with which he was charged.
¶ 38 Defendant argues that some of his writings were remote in time, dating back to 2010.
While this might have affected the weight to be given the older writings, the import is that his
writings were continuous from 2010 to around the time of defendant’s arrest. Because this was
a bench trial, we presume that the trial court gave the evidence the appropriate weight. People
v. Paige, 378 Ill. App. 3d 95, 100 (2007) (“The experienced trial judge is presumed to have
followed the law and given proper consideration to any deficiencies when weighing the
evidence as the trier of fact in the bench trial.”). Moreover, as we pointed out in Fretch, “ ‘[t]he
decision whether to admit or exclude such evidence must be made on a case-by-case basis by
the trial judge responsible for evaluating the probative value of the evidence.’ ” Fretch, 2017
IL App (2d) 151107, ¶ 82 (quoting Illgen, 145 Ill. 2d at 370).
¶ 39 We note that defendant argues that an “expert witness or even educated defense counsel,
should have put into context the prejudicial evidence if it was to be admitted, including
explaining defendant’s religious beliefs and delusions, and that his comments and interests
were in the hereafter as opposed to in this life.” Defendant’s ineffective-assistance argument
related to this issue is undeveloped and therefore is forfeited under Illinois Supreme Court
Rule 341(h)(7) (eff. May 25, 2018). People v. Young, 365 Ill. App. 3d 753, 773 (2006).
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¶ 40 C. Sufficiency of the Evidence
¶ 41 Defendant next argues that the evidence was insufficient to support both convictions of
aggravated criminal sexual abuse and the conviction on count VI for child abduction.
¶ 42 When presented with a challenge to the sufficiency of the evidence, it is not the function of
this court to retry the defendant. People v. Howard, 2012 IL App (3d) 100925, ¶ 8. 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 omitted.) People v. Collins, 106 Ill. 2d 237, 261
(1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact has the
responsibility to assess the credibility of the witnesses, weigh their testimony, resolve
inconsistencies and conflicts in the evidence, and draw reasonable inferences therefrom.
People v. Slim, 127 Ill. 2d 302, 307 (1989). A reviewing court will not substitute its judgment
for that of the trier of fact on issues of the credibility of the witnesses or the weight of the
evidence. People v. Jasoni, 2012 IL App (2d) 110217, ¶ 19. We will not reverse a guilty
verdict unless the evidence, viewed in the light most favorable to the prosecution, was so
palpably contrary to the verdict, so unreasonable, improbable, or unsatisfactory as to create a
reasonable doubt of the defendant’s guilt. People v. Lamon, 346 Ill. App. 3d 1082, 1089
(2004).
¶ 43 A person commits aggravated criminal sexual abuse when the person is 17 years of age or
over and commits an act of sexual conduct with a victim who is under 13 years of age. 720
ILCS 5/11-1.60(c)(1)(i) (West 2014). “Sexual conduct” is defined as
“any knowing touching or fondling by the victim or the accused, either directly or
through clothing, of the sex organs, anus, or breast of the victim or the accused, or any
part of the body of a child under 13 years of age, or any transfer or transmission of
semen by the accused upon any part of the clothed or unclothed body of the victim, for
the purpose of sexual gratification or arousal of the victim or the accused.” Id. § 11-0.1.
¶ 44 As to the charges of aggravated criminal sexual abuse, defendant argues that the State
failed to prove that his touching of Jazlene and Jackie was for the purpose of his sexual
gratification. The facts show that defendant picked up Jackie and carried her to the slide,
placed her on the bottom portion of the slide, and got on the slide with her, either on top of her
or next to her. Gael testified that defendant climbed on top of Jackie and pushed her down
every time she tried to get up to get away from him. Defendant showed Jazlene $5 and asked if
she wanted it and then began rubbing her upper leg.
¶ 45 Defendant claims that more than touching a child’s leg is necessary to prove aggravated
criminal sexual abuse beyond a reasonable doubt. He cites People v. Kitch, 239 Ill. 2d 452(2011), People v. Patel, 213 Ill. App. 3d 688 (1991), and People v. Smith, 152 Ill. App. 3d 589(1987), in support of his argument. Defendant claims that those cases illustrate the type of
overt sexual touching that is necessary to convict, satisfying the requirements of the first part
of section 11-0.1 of the Code. See 720 ILCS 5/11-0.1 (West 2014) (“touching or fondling ***
the sex organs, anus, or breast of the victim”). In this case, however, defendant was accused of
touching “any part of the body of a child under 13 years of age.” Id. To satisfy this part of
section 11-0.1, a defendant need not touch the sex organs, anus, or breast of the victim.
Although defendant touched Jackie and Jazlene in a manner that was not necessarily visibly
sexual, a rational fact finder could infer that defendant’s intent was sexual from his attempt to
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lure the children with candy and money to a secluded place and from his numerous writings
that concerned sexual conduct with children.
¶ 46 A person commits child abduction when he intentionally lures or attempts to lure a child
under the age of 17 into a building or dwelling place without the consent of the child’s parent
or lawful custodian for other than a lawful purpose. Id. § 10-5(b)(10). “Lure” is defined as any
knowing act to solicit, entice, tempt, or attempt to attract the child. Id. § 10-5(a)(2.2).
¶ 47 As to count VI, defendant claims that Jackilynne’s testimony about his attempt to lure her
into his car with candy was unreliable. Although defendant impeached her testimony with the
fact that she had not disclosed this previously, the evidence of defendant’s attempts to lure the
other children with candy and money corroborated it. Additionally, Loudon testified that he
found an empty bag of Sour Patch candy in defendant’s pocket. It was rational for the trial
judge to believe Jackilynne, and we will not reverse under the Collins standard.
¶ 48 D. Sentence
¶ 49 Defendant last argues that the trial court abused its discretion in sentencing him to an
aggregate term of 20 years’ imprisonment. Defendant argues that, although his physical
contact was alarming and clearly wrong, the sentence was disproportionate as compared to
other aggravated-criminal-sexual-abuse cases. In support of this claim, defendant notes that he
had a nonfelony criminal record with a remote disorderly conduct charge for which he was
sentenced to supervision and that the State recommended an aggregate term of only 15 years’
imprisonment.
¶ 50 It is well settled that the trial court is afforded broad discretion in imposing a sentence and
that its decision will not be disturbed upon review absent an abuse of discretion. People v.
Stacey, 193 Ill. 2d 203, 209 (2000); People v. Steffens, 131 Ill. App. 3d 141, 151 (1985). The
trial court is granted such deference because it is generally in a better position than the
reviewing court to determine the appropriate sentence, as it has the opportunity to weigh
factors such as the defendant’s credibility, demeanor, general moral character, mentality,
social environment, habits, and age. Stacey, 193 Ill. 2d at 209. Consequently, a reviewing court
may not overturn a sentence merely because it might have weighed the pertinent factors
differently. People v. McGowan, 2013 IL App (2d) 111083, ¶ 10.
¶ 51 Although the trial court is afforded broad discretion in sentencing, such discretion is not
unlimited. Stacey, 193 Ill. 2d at 209. Illinois Supreme Court Rule 615(b)(4) (eff. Jan. 1, 1967)
grants a reviewing court the power to reduce an excessive sentence. Steffens, 131 Ill. App. 3d at
151. However, that power should be exercised cautiously and sparingly. People v. Alexander,
239 Ill. 2d 205, 212 (2010).
¶ 52 Sentences are presumed to be proper. People v. Boclair, 225 Ill. App. 3d 331, 335 (1992).
When a sentence falls within the statutorily prescribed range, it will not be found to be
excessive or an abuse of discretion unless it greatly varies from the spirit and purpose of the
law or is manifestly disproportionate to the nature of the offense. People v. Weiser, 2013 IL
App (5th) 120055, ¶ 33. The spirit and purpose of the law are promoted when the trial court’s
sentence reflects both the seriousness of the offense and the defendant’s rehabilitative
potential. Boclair, 225 Ill. App. 3d at 335. However, the seriousness of the offense is the most
important factor for the court to consider. People v. Tye, 323 Ill. App. 3d 872, 890 (2001).
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¶ 53 Further, if mitigating evidence is presented at the sentencing hearing, a reviewing court
presumes that the trial court considered it, absent some contrary evidence. People v. Shaw, 351
Ill. App. 3d 1087, 1093 (2004). The trial court is not required to recite or assign a value to each
factor presented at the sentencing hearing. Id. The defendant bears the burden to affirmatively
establish that the sentence was based on improper considerations, and we will not reverse the
sentence unless it is clearly evident that the sentence was improper. People v. Bowen, 2015 IL
App (1st) 132046, ¶ 49.
¶ 54 Applying these principles to the instant case, we cannot say that the trial court’s aggregate
term of 20 years was an abuse of discretion. Defendant was convicted of two counts of
aggravated criminal sexual abuse and five counts of child abduction. Under section 5-8-4 of
the Unified Code of Corrections (730 ILCS 5/5-8-4 (West 2014)), consecutive sentencing is
permissive if, having considered the nature and circumstances of the offense and the history
and character of the defendant, the court believes that consecutive sentences are necessary to
protect the public from further criminal conduct by the defendant. Here, after considering all of
the evidence, the arguments of counsel, the applicable case and statutory law, and the factors in
mitigation and aggravation, the trial court found that imprisonment was necessary for the
protection of the public; that probation or conditional discharge would deprecate the
seriousness of defendant’s conduct and be inconsistent with the ends of justice; and that
consecutive terms of imprisonment were necessary to protect the public from further criminal
conduct by defendant. The court stated:
“In so finding, the Court has considered that the acts of the Defendant were
planned. The Defendant has a long history of deviant thoughts and behavior including
plans for future offenses. The defendant knew (the) actions in which he was engaging
were unacceptable. As an example brought out by the State, he even told one minor via
a text not to tell anyone about his communications because he would get in trouble.
Defendant’s behavior is not an aberration from otherwise appropriate behavior, but it’s
a continuing course of conduct. The Defendant’s choice of reading material included
‘The Guide to Pedophilia’ and ‘The Pedophile’s Guide to Love and Pleasure.’
I’ve considered Dr. Murray’s report including his opinion that the Defendant
presents a significant risk of violence and sexual offending against children. I’ve
considered Dr. Kane’s sex offender evaluation including her opinion that the
Defendant has pedophilic disorder, delusional disorder, and antisocial traits. The
Defendant’s Static-99R test indicated that the Defendant has a high risk for
reoffending. Dr. Kane further found that treatment for [defendant] would be extremely
difficult given his intense sexual preoccupation with children. [Defendant’s] fantasies
and urges involving children are too intense for him to manage even if he were to have
a strong commitment to treatment.”
¶ 55 We observe that, at the sentencing hearing, Dr. Murray testified that defendant’s
self-control was diminishing significantly and Dr. Kane opined that defendant posed a risk of
sexual violence toward children. In her report, Dr. Kane noted that defendant’s preoccupation
with Samantha Runnion added to the concern over his level of risk to the community.
¶ 56 In denying defendant’s motion to reconsider the sentence, the court further explained:
“But then what it came down to at the end was the offense and frankly the
protection of the public where I have experts telling me that [defendant] has certain
impulses involving offending against children and those impulses are such that
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treatment would be unlikely to have any sort of regulating effect on his ability to
control these sort of acts. That’s something I have to take into consideration. And
despite the legal arguments and arguments of counsel which again were successful on
an objective analysis level, it is difficult to overcome the subjective concerns that I
have concerning the protection of the public. And I felt that was an overwhelming
concern. I continue to feel that and therefore I’m denying your motion to reconsider the
sentence.”
¶ 57 Defendant cites Stacey for the proposition that his aggregate sentence is disproportionate to
the nature of the offense. In Stacey, the defendant received consecutive 25-year prison terms
for criminal sexual abuse and aggravated criminal sexual abuse where he “momentarily”
grabbed the breasts of two young girls who were fully dressed and he made lewd comments
and gestures. Stacey, 193 Ill. 2d at 210. The court reduced the defendant’s aggregate sentence
from 50 years to 12 years, based on the minimal contact. Id. at 211-12. Here, defendant’s
sentence is closer to the 12-year sentence than the 50-year sentence in Stacey. Moreover, it is
not disproportionate to the nature of the offenses. Unlike in Stacey, defendant has a long
history of deviant desires concerning children, which he acted upon in two separate incidents
involving five children.
¶ 58 The psychological reports and defendant’s writings regarding his preoccupation with
sexual activity with children presented defendant as a continuing, significant danger to the
public and, specifically, a danger to children. In light of all of this, we cannot say that the trial
court abused its discretion in sentencing defendant to an aggregate term of 20 years in prison.
¶ 59 III. CONCLUSION
¶ 60 For the preceding reasons, we affirm the judgment of the circuit court of Du Page County.
¶ 61 Affirmed.
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