People v. Jonathan C.B.

Filed 11/18/08 NO. 4-06-1077

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

In re: JONATHAN C.B., a Minor, ) Appeal from
THE PEOPLE OF THE STATE OF ILLINOIS, ) Circuit Court of
Petitioner-Appellee, ) Champaign County
v. ) No. 06JD127
JONATHAN C.B., )
Respondent-Appellant. ) Honorable
) Heidi Ladd,
) Judge Presiding.
_________________________________________________________________

JUSTICE McCULLOUGH delivered the opinion of the court:

The trial court adjudicated respondent, Jonathan C.B.,

a delinquent minor, finding him guilty of criminal sexual assault

(720 ILCS 5/12-13(a)(1) (West 2004)) and attempt (robbery) (720

ILCS 5/8-4(a), 18-1 (West 2004)), and ordered him to be committed

to the Illinois Department of Juvenile Justice for an indetermi-

nate term to automatically terminate upon the first of the

passage of 15 years or respondent attaining the age of 21.

Respondent appeals, arguing (1) the State failed to prove him

guilty of criminal sexual assault beyond a reasonable doubt; (2)

his due-process rights were violated when he was shackled during

his bench trial; and (3) section 5-101(3) of the Juvenile Court

Act of 1987 (Act) (705 ILCS 405/5-101(3) (West 2004)), as applied

to juveniles charged with sex offenses, is unconstitutional

because it denies juveniles the right to a jury trial. We

affirm.

On August 24, 2006, the State filed a supplemental

petition for adjudication of wardship, alleging respondent was a
delinquent minor and charging him with criminal sexual assault

(720 ILCS 5/12-13(a)(1) (West 2004)) and attempt (robbery) (720

ILCS 5/8-4(a), 18-1 (West 2004)). On August 30, 2006, respon-

dent's bench trial began. At respondent's trial, the State

presented evidence that during the late evening on July 10, 2006,

and the early morning on July 11, 2006, respondent, who was 16

years old, and another minor, G.W., sexually assaulted and

attempted to rob 45-year-old C.H. Respondent's theory of the

case was that he and G.W. paid C.H. $40 for sex and then at-

tempted to retrieve their money.

C.H. testified that at approximately 11:30 p.m. on July

10, 2006, she left her home to make a phone call at her friend

Donnie Stewart's house. As she walked to Stewart's house, she

was approached by a tall boy and a shorter, younger boy. C.H.

identified respondent as the taller boy. She stated the shorter

boy commented to her "I have three for one." She told him he

should be home in bed and respondent told C.H. that the shorter

boy was his brother and she was not to speak to him that way.

C.H. testified the boys made her uncomfortable and she continued

on her way.

C.H. arrived at Stewart's house and used his phone.

She remained there approximately 10 minutes and then left to

return home. As she was walking home, she heard footsteps behind

her and saw respondent and a second boy. The second boy was not

the same boy from the earlier encounter and C.H. described him as

being short and stout. C.H. testified the boys called to her and

- 2 -
respondent asked her if she wanted a drink. She stated he raised

the garage door on a nearby duplex using a button and asked her

to come toward the garage. C.H. declined and respondent let the

garage door down. He then suggested they go have a drink at the

back of the house. C.H. testified the shorter boy grabbed her

arm and pulled her behind the house. She was pushed to her knees

and felt respondent, who was behind her, put his penis in her

vagina. The shorter boy placed his penis in C.H.'s mouth. C.H.

stated she fought back to no avail and was screaming. During the

attack, her bra and shirt were torn.

C.H. testified she saw people across the street but no

one helped her. A boy walked by and asked what was happening.

C.H. stated the shorter boy became startled and let go of her.

She was able to get away but slipped and fell. C.H. then saw her

friend Keisha driving by and asked her for help. Keisha drove an

orange or gold vehicle that was "maybe like a truck." According

to C.H., respondent told Keisha not to let C.H. in Keisha's

vehicle because the police were coming and Keisha did not let her

in. Respondent presented testimony from Takesha Williams, who

stated she drove an orange Pontiac Aztec, which she described as

a "funny-made truck." She was acquainted with C.H. but denied

that C.H. approached her and asked for a ride on the date of the

alleged offenses. Instead, Williams asserted she was at her home

with her children.

C.H. testified that, after being denied entry into

Keisha's vehicle, she continued on and was able to get to a tree

- 3 -
near the back of her house. At that point, respondent hit her on

the back of her head and knocked her down. C.H. stated she

always carried a pocketknife with her when she was out after dark

and respondent yelled at her to "drop the knife." Respondent

also put his foot on her left arm and held it down. The other

boy started stomping on C.H.'s head.

C.H. testified she saw a light and heard a male voice

say "let her go." The male voice belonged to a police officer.

C.H. testified an ambulance also arrived at the scene. She

received medical care for injuries to her arm. C.H. also re-

ported that her stomach hurt. She refused to go to the hospital.

Further, C.H. acknowledged that she did not tell police she had

been sexually assaulted but stated she did report the sexual

assault to paramedics.

Sarah Ramey, a paramedic employed by Arrow Carle

Ambulance, testified that, in the early morning hours of July 11,

2006, she and her partner were dispatched to C.H.'s location.

Ramey observed C.H., whom she described as hysterical, crying,

and having trouble breathing. C.H. appeared to be intimidated by

men on the scene and immediately reached for Ramey. C.H. stated

she wanted to go home but agreed to go into the ambulance so

Ramey could check her injuries. As Ramey helped C.H. to the

ambulance, C.H. whispered to Ramey that C.H. "was raped." Ramey

testified she observed abrasions on both of C.H.'s elbows and a

shoe print on her left arm. C.H. also had some tenderness in her

abdomen. Ramey stated she pleaded with C.H. to go to the hospi-

- 4 -
tal but C.H. refused.

Destiny Nesbitt testified she was respondent's cousin

and was with him on the evening of July 10, 2006. At about 10:45

p.m., respondent asked for $40 because there were some girls in

the neighborhood and he needed money. Nesbitt gave respondent

the money and then went to sleep at approximately 11 p.m.

Shortly after 1 a.m., Nesbitt's boyfriend spoke with respondent

on the phone. During that conversation, respondent stated he had

"hit a hype," which she understood to mean he hit a drug addict.

Ultimately, Nesbitt learned the police were looking for respon-

dent.

Nesbitt testified she lived in a duplex at 2701A

Campbell Drive. A woman named Pooker lived on the other side of

the duplex, 2701B, with her five children, including G.W.. The

duplex had a garage, which Nesbitt also rented. She testified a

key was required to get inside the garage and that it always

stayed locked. On the night of the incident, Nesbitt learned

respondent was inside Pooker's residence and attempted to per-

suade him to leave the residence and talk with police.

Sheriff's deputy Andrew Good testified that, on July

10, 2006, he was working as a patrol officer on the midnight

shift. Around 1:15 a.m. he heard screaming and observed two

males standing over a female. The males were screaming at the

female and appeared to be striking her with their fists or hands.

Good heard the males saying "Give me the money," and "Where is

the bread." The female asked the males to stop hitting her and

- 5 -
stated she did not have any money. Good also heard her tell the

males to "put the knife down."

Good testified he observed the female stand up and run

in his direction with the two males chasing her. He drew his

weapon, pointed his flashlight in their direction, identified

himself as a sheriff's deputy, and ordered them to stop. The two

males turned and ran in the opposite direction. Good observed

that the female was wearing a tank top that was torn, exposing

her bra strap. Her bra was also torn and her pants were soiled

in the crotch area. Good described her as hysterical and stated

it was hard to get information from her. At first, the female

stated she had been raped and the two males had a gun. Good saw

that her elbows and arms were scratched and her elbows were

bleeding.

Ultimately, the female was able to tell police where

her attackers came from. She described a duplex with a large

tree in the front yard. Police went to a residence at 2701

Campbell Drive but were unable to immediately make entry. They

tried contacting people inside the residence and eventually

someone opened the door and they were able to take custody of two

suspects, G.W. and respondent. A show-up identification was

conducted. Good heard respondent state that he and G.W. "just

went up to help her" but they "saw the police and *** ran."

Eventually, G.W. and respondent were arrested and transported to

a detention center. Good described G.W. as being "five five" and

weighing 160 pounds and respondent as being "five two" and

- 6 -
weighing 115 pounds.

Sheriff's deputy Norman Meeker testified that on July

10, 2006, he was working the 11 p.m. to 7 a.m. shift and was

dispatched to the area of the incident in question to assist with

a fight. Later, the nature of the dispatch changed and he was

informed that it was an armed robbery. He was provided with

descriptions of the suspects and the direction they were travel-

ing. He began walking on Campbell Drive alongside houses. At

2701A Campbell, he heard someone talking on the phone, saying

"they better have their [$40]."

Meeker continued to watch the duplex and observed the

front door on one side open and close approximately five times.

Eventually, he made contact with Nesbitt from 2701A. She stated

she was getting her cousin, whom she identified as respondent.

Nesbitt stated she was supposed to be watching respondent and at

about 1:15 a.m. she received a phone call from him and he stated

"he just hit a hype." She stated respondent was on the other

side of the duplex. Nesbitt acknowledged she loaned respondent

$40 earlier in the evening and he stated he no longer had it but

would get it back for her.

Meeker and other officers attempted to make contact

with the people inside 2701B Campbell Drive by knocking and

pounding on the door and announced that they were the sheriff's

office. No one answered the knocking or pounding. Nesbitt was

able to speak with somebody inside the residence by phone and

Meeker asked her have them open the door. Eventually, around

- 7 -
2:15 a.m., the door was opened. Two suspects were found in the

residence, G.W. and respondent. A show-up identification was

conducted and Meeker heard respondent say something about how

they "were just walking with [C.H.]." C.H. identified G.W. and

respondent and they were arrested.

Meeker testified he later interviewed respondent.

Respondent stated C.H. approached him earlier in the evening,

wanting to sell a television. He replied that he did not have

any money. They then discussed the possibility of C.H. doing

something else for money. Respondent stated he had a friend and

C.H. stated that was okay. Respondent called G.W. and obtained

$40 from his cousin. Respondent stated both he and G.W. had

sexual relations with C.H. behind 2701 Campbell Drive. Specifi-

cally, he stated he had oral sex with C.H. and G.W. had sexual

intercourse with her. Respondent reported that, during the acts,

C.H. fell over, cut herself, and her shirt and possibly her bra

became torn. C.H. then became upset and asked respondent and

G.W. to walk her home so her husband would not be mad. Respon-

dent stated that, as they were walking, C.H. "freaked out" and

began yelling and screaming. At one point, she also pulled out a

box cutter. The police then arrived on the scene, and he and

G.W. ran away.

Meeker testified respondent later changed his story.

First, he asserted he never actually engaged in any sexual

activity with C.H. because she fell over. Second, respondent

informed Meeker that he and G.W. began following C.H. as she left

- 8 -
because they wanted to get their $40 back. He stated G.W. hit

C.H. and knocked her down in an attempt to get the money. At

that time, the police arrived. Respondent asserted he never hit

C.H. According to Meeker, respondent also reported that, while

he and G.W. were inside the residence at 2701B Campbell, they

discussed what they were going to tell police about what hap-

pened.

Curtis Apperson testified he was an investigator for

the sheriff's department and he and sheriff's deputy William

Davis interviewed C.H. Initially, the offense they were investi-

gating was an armed robbery. However, during the interview, C.H.

reported she had been raped and the nature of the investigation

changed. Apperson stated C.H. was emotional when she disclosed

the sexual assault. He and Davis collected the clothing she had

been wearing during the offenses and took her to the hospital to

obtain a rape kit. Apperson asked C.H. why she did not report

the sexual assault earlier to police. She explained that she had

been the victim of a rape before but police did not believe her.

She felt her claims would not be investigated. C.H. did report

to Apperson and Davis that she told a female paramedic or

firefighter that she was raped.

Apperson and Davis transported C.H. to the hospital,

where they continued to interview her. Apperson stated C.H.'s

emotions were up and down. At times, she was calm, but at other

times she became very emotional and was crying and lowering her

head.

- 9 -
 Apperson testified C.H. reported $50 was taken from her

during the incident. He also stated she reported that, prior to

being attacked, she had been to two places, Antoine's house and

Donnie's house. However, Apperson stated it was difficult to

talk to C.H. because of her emotions so he was "not exactly

clear" where C.H. stated she had been prior to when the offenses

allegedly occurred. Davis testified C.H. reported that she was

at Antoine's house before the incident in question and that she

had a birthday drink. She did not mention anyone named Donnie

Stewart to Davis. Also, he stated C.H. told him she was ini-

tially approached by three individuals rather than two.

Mary Sexton testified she was a registered nurse and

performed a sexual assault kit on C.H. C.H. reported to Sexton

that she had been walking home from a friend's house and the

friend had not been home. She was raped by two young males and

stated she had seen a small gun.

Respondent testified he was 16 years old. On July 10

and 11, 2006, he was staying at the home of his cousin, Destiny

Nesbitt. G.W. lived next door to Nesbitt. Between midnight and

12:30 a.m. on July 11, 2006, C.H. approached respondent and

G.W.'s little brother and asked them if they wanted to buy a

television. Respondent replied that he did not. C.H. then asked

respondent if he had any money or if he sold drugs. Respondent

replied negatively to both questions. C.H. asked respondent if

she could do anything for some money. Respondent understood that

C.H. was referring to some type sexual activity. He testified he

- 10 -
called G.W. and C.H. offered to have sex with both of them for

$20 each.

Respondent testified he borrowed $40 from Nesbitt. He

gave G.W. $20 and G.W. and C.H. went behind the duplex and

engaged in sexual intercourse. After 5 or 10 minutes, G.W. came

out from behind the house and handed respondent a condom.

Respondent then went behind the house and paid C.H. $20. C.H.

performed oral sex on respondent and then the two engaged in

vaginal sexual intercourse. Respondent testified that as he

engaged in vaginal intercourse with C.H., he grabbed her shoul-

ders and her bra strap tore. She also slipped and scraped her

elbow. After slipping, C.H. got up and was crying. She asked

respondent to walk her home because her boyfriend was going to

beat her. Respondent agreed to walk her home and stated he did

not get a chance to finish having sex with C.H.

Respondent testified that, as he and G.W. were walking

C.H. home, they decided to get their money back from her. He

stated, at that time, C.H. drew a knife and he told her to put it

down. After C.H. put the knife away, G.W. shoved her and knocked

her down. Respondent stepped on C.H.'s arm so that she would not

go for her knife. G.W. searched C.H. but did not find any money.

He asked her where her money was. Police appeared on the scene,

flashed lights on them, and told them to stop. Respondent and

G.W. ran to G.W.'s house and went inside. Police arrived at

G.W.'s house 15 to 20 minutes later. Approximately five minutes

later, G.W. opened the door and they were taken into custody.

- 11 -
 After hearing all the evidence and the parties' argu-

ments, the trial court found respondent guilty of both charged

offenses and adjudicated him delinquent. On November 13, 2006,

the court ordered him to be committed to the Illinois Department

of Juvenile Justice for an indeterminate term to automatically

terminate in 15 years or upon respondent attaining the age of 21,

whichever came first.

This appeal followed.

On appeal, respondent first argues the State failed to

prove him guilty of criminal sexual assault beyond a reasonable

doubt. He maintains C.H. was not a credible witness and the

trial court's judgment as to her credibility was not reasonable

in light of the record.

"In reviewing the sufficiency of the evidence, the

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 reason-

able doubt." (Emphasis in original.) People v. Jordan, 218 Ill.

2d 255, 269, 843 N.E.2d 870, 879 (2006). A reviewing court's

function is not to retry the defendant and it should not substi-

tute its judgment for that of the trier of fact. People v.

Sutherland, 223 Ill. 2d 187, 242, 860 N.E.2d 178, 217 (2006).

"The weight to be given the witnesses' testimony, the credibility

of the witnesses, resolution of inconsistencies and conflicts in

the evidence, and reasonable inferences to be drawn from the

testimony are the responsibility of the trier of fact." Suther-

- 12 -
land, 223 Ill. 2d at 242, 860 N.E.2d at 217. A conviction must

be reversed "where the evidence is so unreasonable, improbable,

or unsatisfactory as to justify a reasonable doubt of [the]

defendant's guilt." People v. Smith, 185 Ill. 2d 532, 542, 708

N.E.2d 365, 370 (1999).

A person commits criminal sexual assault if he or she

performs an act of sexual penetration by the use of force or

threat of force. 720 ILCS 5/12-13(a)(1) (West 2004).

Here, C.H. testified she was grabbed and taken behind a

duplex where G.W. and respondent forced her to engage in sexual

acts. She stated she was screaming and fought back but was

overpowered. C.H. specifically testified respondent inserted his

penis into her vagina. The record reflects C.H. reported being

"raped" immediately to paramedic Sarah Ramey and sheriff's deputy

Andrew Good. She was described by Ramey and police as being very

emotional to the point of being hysterical. Also, the trial

court commented that C.H. became similarly emotional when provid-

ing testimony on the subject of the sexual assault.

Respondent points out C.H. provided inconsistent

statements about where she went prior to the incident in ques-

tion, how many boys she saw during an initial encounter, the

opening and closing of the duplex's garage door, an encounter

with her friend "Keisha" during the attack, and whether the boys

had a gun. Here, the trial court noted the case came down to

issues of credibility and that inconsistencies were present in

both C.H.'s testimony and respondent's testimony. The court's

- 13 -
oral ruling in the case shows it thoroughly considered all of the

evidence presented, including the inconsistencies in C.H.'s

testimony. In the end, it found C.H. more credible than respon-

dent. That finding is not so unreasonable, improbable, or

unsatisfactory as to justify a reasonable doubt of respondent's

guilt.

Although C.H.'s testimony contained inconsistencies,

they did not concern the essential facts of the sexual assault or

attempted robbery. Moreover, respondent's own statements were

inconsistent and evolved over time, reflecting negatively on his

own credibility. He made several different statements, regarding

the sexual acts he engaged in with C.H. After initially being

taken into custody, police heard respondent state he was "just

walking with [C.H.]" and that he was trying to help her. In his

first statement to police, he stated he and C.H. engaged in oral

sex but later changed his story and said they never engaged in

any sexual acts. Finally, at trial, respondent testified he

engaged in both oral and vaginal sex with C.H.

As the trial court pointed out, at trial, respondent

asserted he met C.H. between midnight and 12:30 a.m. on July 11,

2006, and thereafter obtained $40 from his cousin, Destiny

Nesbitt, to pay C.H. for sexual acts she agreed to perform.

However, Nesbitt testified she gave respondent $40 at approxi-

mately 10:45 p.m. on July 10, 2006, at least 1 hour and 15

minutes before respondent asserted he encountered C.H.

Additionally, respondent's version of the acts sur-

- 14 -
rounding the attempted robbery was drastically different from the

acts witnessed by sheriff's deputy Good. Respondent asserted

G.W. shoved and knocked C.H. down and he only stepped on C.H.'s

arm so that she could not go for her knife. C.H. screamed for

help twice, and G.W. searched her and asked where the money was.

At that point, police arrived on the scene and he and G.W. fled.

Good testified, however, that he heard screaming and

observed two males standing over a female. The males were

screaming at the female and appeared to be striking her with

their fists or hands. The female asked the males to stop hitting

her and stated she did not have any money. The female then stood

up and ran in Good's direction with the two males chasing her.

When Good made his presence known, the males ran in the opposite

direction.

Respondent essentially asks this court to reweigh the

evidence, which is not the function of a reviewing court. The

record shows the trial court thoroughly considered the evidence

and made a well-reasoned determination as to credibility. The

evidence was sufficient to find respondent guilty of criminal

sexual assault.

On appeal, respondent next argues the trial court

violated his fourteenth amendment due-process guarantees by

having him shackled without an individualized determination of

necessity.

In People v. Boose, 66 Ill. 2d 261, 265, 362 N.E.2d

303, 305 (1977), the supreme court held that the shackling of a

- 15 -
defendant is disfavored because it (1) tends to prejudice the

jury, (2) restricts the defendant's ability to assist his counsel

during trial, and (3) offends the dignity of the judicial pro-

cess. Nevertheless, a defendant may be shackled where a manifest

need for restraints is shown. Boose, 66 Ill. 2d at 265-66, 362

N.E.2d at 305. Specifically, "[a] defendant may be shackled when

there is reason to believe that he may try to escape or that he

may pose a threat to the safety of people in the courtroom or if

it is necessary to maintain order during the trial." Boose, 66

Ill. 2d at 266, 362 N.E.2d at 305.

Whether to restrain the defendant is within the trial

court's discretion and its decision will not be reversed absent

an abuse of that discretion. Boose, 66 Ill. 2d at 266-67, 362

N.E.2d at 305-06. The court must hold a hearing outside the

presence of the jury, allowing the defendant's attorney the

opportunity to argue why the defendant should not be shackled.

Boose, 66 Ill. 2d at 266, 362 N.E.2d at 305. If it orders the

defendant to remain shackled, the court must also state the

reasons for its decision on the record. Boose, 66 Ill. 2d at

266, 362 N.E.2d at 305. Boose applies to both bench and jury

trials. People v. Strickland, 363 Ill. App. 3d 598, 603, 843

N.E.2d 897, 901 (2006).

Here, only one small reference to respondent's shack-

ling was made in the record. When respondent was called to

testify on his own behalf the trial court stated as follows:

"Okay. You may step up. You may take off the shackles. Sir, you

- 16 -
may go ahead and approach the bench. Raise your right hand."

Respondent was then sworn in and proceeded to testify. The

record contains no further mention of respondent's shackling and

he made no objection, either during his trial or in a posttrial

motion, to being shackled.

A defendant who fails to object to shackling at trial

or in a posttrial motion forfeits review of the issue on appeal.

People v. Barney, 363 Ill. App. 3d 590, 593, 844 N.E.2d 80, 83

(2006). However, pursuant to the plain-error doctrine, a review-

ing court may consider otherwise forfeited issues if the evidence

was closely balanced or the error was of such magnitude that the

defendant was denied a substantial right and a fair trial.

Barney, 363 Ill. App. 3d at 593-94, 844 N.E.2d at 84.

"[P]lain error does not automatically occur when

shackles are used without a Boose hearing." Barney, 363 Ill.

App. 3d at 596, 844 N.E.2d at 86. Instead, "[w]ithout objecting

and preserving the issue for review, the defendant must show the

evidence was closely balanced or 'the error was so serious it

affected the fairness of his trial and challenged the judicial

process's integrity.'" Barney, 363 Ill. App. 3d at 597-98, 844

N.E.2d at 87, quoting People v. Thompson, 359 Ill. App. 3d 947,

951, 835 N.E.2d 933, 936 (2005).

In Strickland, 363 Ill. App. 3d at 602, 843 N.E.2d at

901, this court considered whether the defendant was denied a

fair trial because the trial court ordered one of his hands to be

handcuffed to a table during his jury trial. The defendant made

- 17 -
no objection to the court's order but argued the handcuffing

resulted in plain error. Strickland, 363 Ill. App. 3d at 602,

843 N.E.2d at 901. We declined to reverse the defendant's

conviction under the plain-error doctrine. Strickland, 363 Ill.

App. 3d at 604, 843 N.E.2d at 903.

In part, we relied on People v. Hyche, 77 Ill. 2d 229,

240-41, 396 N.E.2d 6, 12 (1979), wherein the supreme court

considered whether a defendant's conviction warranted reversal

when he appeared before a jury in handcuffs but failed to make an

objection. There, the court concluded the defendant had waived

any error by failing to object and affirmed the trial court's

judgment. Hyche, 77 Ill. 2d at 241, 396 N.E.2d at 12. In

Strickland, 363 Ill. App. 3d at 604-05, 843 N.E.2d at 903, we

noted the Hyche decision indicated it was "the State's compelling

the defendant to wear restraints before the jury that create[d]

the constitutional violation." We reasoned that "when a defen-

dant fails to object to wearing restraints, the presence of

compulsion is negated, and a constitutional violation has not

been established." Strickland, 363 Ill. App. 3d at 605, 843

N.E.2d at 903.

Here, respondent made no objection to his shackling and

the record does not indicate the trial court was even aware that

he was shackled until he was called to testify. Pursuant to

Strickland, reversal of respondent's convictions is not warranted

by the plain-error doctrine.

Also, respondent failed to satisfy either prong of the

- 18 -
plain-error doctrine. First, the evidence in his case was not

closely balanced. Respondent was charged with criminal sexual

assault and attempted robbery. Although the testimony regarding

the criminal sexual assault came down to a credibility determina-

tion between respondent and C.H., the evidence presented as a

whole was not so close as to warrant application of the plain-

error doctrine. During his testimony, respondent essentially

admitted his part in the attempted robbery, acknowledging that he

and G.W. agreed to take money from C.H. and that he restrained

C.H. while G.W. searched her for money. He made similar admis-

sions in his first statements to police. Further, as discussed,

respondent's version of the events surrounding the criminal-

sexual-assault charge contained many inconsistencies. The dissent

insists the evidence was closely balanced but only considers the

evidence in connection with the criminal sexual assault.

Respondent has also failed to show the error was so

serious it affected the fairness of his trial and challenged the

judicial process's integrity. As stated, the record does not

show the trial court was even aware that respondent was shackled

until he was called to testify. If the court had not suggested

the shackles be taken off, the record would show nothing as to

this issue. The court ordered the shackles removed and the

record does not reflect respondent had to continue wearing them

after he testified. The record does not show the court was

prejudiced by respondent's shackles, they restricted his ability

to assist his counsel, or the dignity of the judicial process was

- 19 -
offended. Additionally, more than sufficient evidence of respon-

dent's guilty was presented at his trial.

Finally, we note respondent argues "shackling a minor

so offends the basic notions of justice that trial courts should

have a sua sponte duty to intervene." We find no authority for

the position and respondent cites none. Also, again, the record

fails to show the trial court was aware of the shackles prior to

when respondent was called to testify and may not have been in a

position to know it needed to intervene.

On appeal, respondent last argues section 5-101(3) of

the Act (705 ILCS 405/5-101(3) (West 2004)), as applied to

juveniles charged with sex offenses, is unconstitutional because

it denies juveniles the right to a trial by jury. Specifically,

he argues section 5-101(3) of the Act violates article I, section

8, of the Illinois Constitution of 1970 (Ill. Const. 1970, art.

I, §8) and his state and federal constitutional rights to due

process and equal protection.

"[A]ll statutes are presumed constitutional and *** the

party challenging a statute's validity bears the burden of

demonstrating a clear constitutional violation." In re Lakisha

M., 227 Ill. 2d 259, 263, 882 N.E.2d 570, 573 (2008). If reason-

ably possible, a court must construe a statute so as to affirm

its constitutionality. Lakisha M., 227 Ill. 2d at 263, 882

N.E.2d at 573. "[R]eview of a statute's constitutionality is de

novo." Lakisha M., 227 Ill. 2d at 263, 882 N.E.2d at 573.

Section 5-101(3) of the Act (705 ILCS 405/5-101(3)

- 20 -
(West 2004)) provides that "[m]inors shall not have the right to

a jury trial unless specifically provided by" the Act.

Respondent first argues section 5-101(3) is unconstitu-

tional pursuant to article I, section 8, of the Illinois Consti-

tution (Ill. Const. 1970, art. I, §8), which provides as follows:

"In criminal prosecutions, the accused

shall have the right *** to have a speedy

public trial by an impartial jury of the

county in which the offense is alleged to

have been committed."

Respondent maintains juveniles are entitled to a jury trial under

the Illinois Constitution because juveniles charged with sex

offenses are subject to criminal prosecution, resulting in a

"conviction" upon a finding of guilt. He relies on the supreme

court's statements in In re J.W., 204 Ill. 2d 50, 787 N.E.2d 747

(2003), equating the term "convicted" with "adjudicated."

Additionally, respondent notes a shift in purpose and policy of

the Act from rehabilitation to protecting the public and holding

juvenile offenders accountable.

The supreme court has previously held that juveniles

have no right to a jury trial under the Illinois Constitution.

See In re Fucini, 44 Ill. 2d 305, 310, 255 N.E.2d 380, 382

(1970); In re Presley, 47 Ill. 2d 50, 55, 264 N.E.2d 177, 179

(1970). In In re G.O., 191 Ill. 2d 37, 43, 727 N.E.2d 1003, 1007

(2000), the court rejected arguments that the denial of a jury

trial to a juvenile charged with first-degree murder violated

- 21 -
equal protection or due process. We note, although respondent

relies heavily on Justice Heiple's dissenting opinion in that

case, it is the G.O. majority's opinion which is precedential.

As asserted by the dissent, these cases do not address

respondent's specific arguments. However, they have been cited

by the parties and the dissent in G.O., relied upon by respon-

dent, and we note them here by way of background.

To support his position in this case, respondent relies

on In re A.G., 195 Ill. 2d 313, 746 N.E.2d 732 (2001). There,

the supreme court held that "compliance with the [Supreme Court]

Rule 604(d) certificate requirement [(210 Ill. 2d R. 604(d))]

[was] required in juvenile proceedings." A.G., 195 Ill. 2d at

322, 746 N.E.2d at 737-38. In reaching that decision, the court

made several observations about the Act. It noted the Act had

"been significantly amended" in 1999 and thereafter contained "a

purpose and policy section which represent[ed] a fundamental

shift from the singular goal of rehabilitation to include the

overriding concerns of protecting the public and holding juvenile

offenders accountable for violations of the law." A.G., 195 Ill.

2d at 317, 746 N.E.2d at 735. Importantly, however, the court

acknowledged proceedings under the Act were "still not criminal

in nature and [were] to be administered in a spirit of humane

concern for, and to promote the welfare of, the minor." A.G.,

195 Ill. 2d at 317, 746 N.E.2d at 735.

Respondent next relies upon J.W., 204 Ill. 2d 50, 787

N.E. 2d 747, which he argues makes it "all but explicit that

- 22 -
juveniles are subject to full criminal prosecutions in an ad-

versarial system." That case dealt with the constitutionality of

requiring a juvenile to register as a sex offender for his

natural life. J.W., 204 Ill. 2d at 62, 787 N.E.2d at 754.

However, J.W. dealt specifically and only with the Sex Offender

Registration Act (Registration Act), which defined a juvenile sex

offender as follows:

"'"Juvenile sex offender" means any

person who is adjudicated a juvenile delin-

quent as the result of the commission of or

attempt to commit a violation set forth in

item (B), (C), or (C-5) of this Section or a

violation of any substantially similar fed-

eral, sister state, or foreign country law.

For purposes of this Section, "convicted"

shall have the same meaning as

"adjudicated."' 730 ILCS 150/2(A-5) (West

2000)." J.W., 204 Ill. 2d at 63, 787 N.E.2d

at 755.

The supreme court's holding in J.W. is limited to

application of the Registration Act, which expressly stated, for

purposes of the Registration Act, "convicted" and "adjudicated"

had the same meaning. As the State points out, J.W. does not

stand for the broader proposition that all juveniles charged with

sex offenses are subject to criminal prosecutions within the

meaning of article I, section 8, of the Illinois Constitution or

- 23 -
that the term "convicted" always holds the same meaning as

"adjudicated."

More recently, in People v. Taylor, 221 Ill. 2d 157,

182, 850 N.E.2d 134, 147 (2006), the supreme court determined

juvenile adjudications should not be considered a conviction for

purposes of the escape statute. In reaching that decision, the

court reasserted that bench trials are "all that is constitution-

ally required in juvenile delinquency proceedings" because a

juvenile proceeding is not considered a criminal prosecution.

Taylor, 221 Ill. 2d at 168, 850 N.E.2d at 140. Additionally, it

stated as follows:

"The policy that seeks to hold juveniles

accountable for their actions and to protect

the public does not negate the concept that

rehabilitation remains a more important con-

sideration in the juvenile justice system

than in the criminal justice system and that

there are still significant differences be-

tween the two, indicating that 'the ideal of

separate treatment of children is still worth

pursuing.'" Taylor, 221 Ill. 2d at 170, 850

N.E.2d at 141, quoting McKeiver v. Pennsyl-

vania, 403 U.S. 528, 546 n.6, 29 L. Ed. 2d

647, 661 n.6, 91 S. Ct. 1976, 1986 n.6

(1971).

Although the 1999 amendments altered the policy and

- 24 -
purpose behind the Act, rehabilitation of juvenile offenders

remains an important consideration, more important than in

criminal proceedings. Additionally, the holding in J.W. was

specific to the statute before it and does not broadly stand for

the proposition that a juvenile adjudication is the same as a

criminal conviction. Respondent has failed to meet his burden of

establishing a constitutional violation of article I, section 8,

of the Illinois Constitution.

Respondent next argues section 5-101(3) of the Act, as

applied to juveniles charged with sex offenses, violates his due-

process right to a trial under the state and federal constitu-

tions, which he maintains "grant persons the right to a trial by

jury when *** charged with a serious criminal offense." See U.S.

Const., art. III, §2; Ill. Const. 1970, art. I, §13. More

specifically, he contends his due-process rights entitle him to a

jury trial because (1) the purpose of the Act is now to protect

the public instead of to rehabilitate the juvenile and (2) a

juvenile could be indefinitely and involuntarily committed as a

sexually violent person based on nothing more than proof of his

original bench adjudication of delinquency.

First, as stated, although a shift in purpose and

policy of the Act did occur after the 1999 amendments, Taylor

makes clear that rehabilitation remains an important purpose and

policy behind the Act, more so than in the criminal justice

system. We reject respondent's contention that "the purpose of

the Act is now to protect the public instead of rehabilitate the

- 25 -
juvenile." That may be one purpose of the Act but it is not the

Act's sole purpose.

Second, respondent's argument that an adjudication of

delinquency satisfies the requirements of the Sexually Violent

Persons Commitment Act (Commitment Act) (725 ILCS 207/1 through

99 (West 2004)), exposing a juvenile to indefinite and involun-

tary commitment, is also without merit. Three criteria must be

alleged and established before a person may be committed as a

sexually violent person under the Commitment Act: (1) the person

must have been found delinquent for a sexually violent offense

(725 ILCS 207/15(b)(1)(B) (West 2004)), (2) the person must

suffer from a mental disorder (725 ILCS 207/15(b)(4) (West

2004)), and (3) the person must be dangerous to others because

his or her mental disorder creates a substantial probability that

he or she will engage in acts of sexual violence (725 ILCS

207/15(b)(5) (West 2004)).

Respondent argues an adjudication of delinquency for a

sexually violent offense is sufficient to establish all three

elements under the Commitment Act. To support his position,

respondent cites portions of the dissenting opinion in In re

Detention of Samuelson, 189 Ill. 2d 548, 568, 727 N.E.2d 228, 239

(2000) (Heiple J., dissenting) ("[T]he State's expert in this

case was able to diagnose [the] defendant as having a 'mental

disorder' *** solely by virtue of [the] defendant's having

committed the acts which led to his criminal conviction and

punishment" (emphasis omitted)). We find the dissenting opinion

- 26 -
in Samuelson specific to the facts of that particular case.

Also, it is not precedential. It remains that the Commitment Act

requires three separate criteria to be established.

Additionally, respondent has failed to allege facts

showing he could be subject to commitment as a sexually violent

person. His delinquency adjudication for a qualifying offense is

insufficient, alone, to satisfy the Commitment Act's require-

ments.

Finally, on appeal, respondent argues juveniles charged

with sex offenses have an equal-protection right, under the state

and federal constitutions, to a trial by jury. See U.S. Const.

amend. XIV; Ill. Const. 1970, art. I, §2. "Equal protection

guarantees that similarly situated individuals will be treated in

a similar fashion, unless the government can demonstrate an

appropriate reason to treat them differently." People v.

Whitfield, 228 Ill. 2d 502, 512, 888 N.E.2d 1166, 1172 (2007).

"In cases where fundamental rights are not at issue, we employ

so-called rational basis scrutiny and consider whether the

challenged classification bears a rational relationship to a

legitimate governmental purpose." Whitfield, 228 Ill. 2d at 512,

888 N.E.2d at 1172.

Respondent argues juveniles charged with sex offenses

are similarly situated to other juvenile offenders who are

subject to extended juvenile jurisdiction (EJJ) and are accorded

the right to a jury trial (705 ILCS 405/5-810(3) (West 2004)), as

well as adult offenders charged with sex offenses. He maintains

- 27 -
no rational basis exists for treating those similarly situated

groups differently. We agree with the State and find respondent

has failed to show he is similarly situated to juveniles subject

to EJJ proceedings or adult offenders charged with sex offenses.

Again, respondent supports his contention with the

argument that the purpose and policy of the Act, as it relates to

juvenile sex offenders, is the protection of society rather than

rehabilitation of the juvenile offender. As already discussed,

we reject this contention and find, while the policies and

purposes of the Act changed after the 1999 amendments to include

the protection of society and holding juvenile offenders account-

able for their crimes, rehabilitation remains an important

purpose and policy of the Act.

Next, respondent argues he is similarly situated to

juveniles subject to EJJ and adult sex offenders because a

juvenile sex offender faces the possibility of future commitment

as a sexually violent person pursuant to the Commitment Act.

Juveniles subject to EJJ face sentencing as juveniles and, like

adult criminal offenders, an adult criminal sentence that is

"stayed on the condition that the offender not violate the

provisions of the juvenile sentence." 705 ILCS 405/5-810(4)

(West 2004).

Here, respondent does not face the possibility of an

adult criminal sentence and is therefore not similarly situated

to juveniles subject to EJJ proceedings or adult offenders.

Further, he has failed to show that he is or could be subject to

- 28 -
commitment as a sexually violent person under the Commitment Act.

As the State points out, "[c]ommitment under the [Commitment Act]

can result only after a successful separate action by the State,

requiring proof of additional elements not common to all sex

offenders, whether juvenile or adult." Respondent failed to meet

his burden of proving section 5-101(3) of the Act violated his

equal-protection rights.

Here, the record shows the State presented sufficient

evidence to prove respondent committed the offense of criminal

sexual assault beyond a reasonable doubt and that his due-process

rights were not violated when he was shackled during his bench

trial. Additionally, respondent has failed to establish section

5-101(3) of the Act, as applied to juveniles charged with sex

offenses, is unconstitutional.

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

MYERSCOUGH, J., concurs.

APPLETON, P.J., dissents.

- 29 -
 PRESIDING JUSTICE APPLETON, dissenting:

I respectfully dissent from the majority's decision. I

would reverse the trial court's judgment, and remand this case

for a new trial, for two reasons. First, the evidence was

closely balanced, and failing to hold a Boose hearing was plain

error. Second, section 5-101(3) of the Act (705 ILCS 405/5-

101(3) (West 2004)), as applied to juveniles charged with sex

offenses, is unconstitutional because it denies juveniles the

right to a jury trial.

A. The Unnecessary Shackling of Respondent

The supreme court has said that requiring a defendant

to wear shackles during trial without a strong necessity for the

shackling jeopardizes the value and protection of the presumption

of innocence. In re Staley, 67 Ill. 2d 33, 37, 364 N.E.2d 72, 73

(1977). If the only reason a defendant is in shackles is the

alleged offense for which he is on trial, he justifiably would

feel skeptical if the court happened to mention to him that he

was presumed innocent until proved guilty. Any sensible person

in his position would regard such a statement as pro forma

hypocrisy.

"Every accused person *** enters upon his trial clothed

with the presumption of innocence." Yee Hem v. United States,

268 U.S. 178, 184, 69 L. Ed. 904, 906, 45 S. Ct. 470, 472 (1925).

But in the circuit court of Champaign County, defendants wear

chains as a seeming matter of course. See Barney, 363 Ill. App.

3d at 592, 844 N.E.2d at 83 (appeal from Champaign County, in

- 30 -
which we discussed the requirements of Boose). Like the defense

counsel in Barney, defense counsel in this case never objected.

We held in Barney, 363 Ill. App. 3d at 596, 844 N.E.2d at 86,

that "plain error does not automatically occur when shackles are

used without a Boose hearing." It does not follow that unneces-

sary shackling can never be plain error.

The supreme court has held that a defendant can prove

plain error in two alternative ways:

"First, where the evidence in a case is so

closely balanced that the jury's guilty ver-

dict may have resulted from the error and not

the evidence, a reviewing court may consider

a forfeited error in order to preclude an

argument that an innocent person was wrongly

convicted. [Citation.] Second, where the

error is so serious that the defendant was

denied a substantial right, and thus a fair

trial, a reviewing court may consider a for-

feited error in order to preserve the integ-

rity of the judicial process. [Citations.]

This so-called disjunctive test does not

offer two divergent interpretations of plain

error, but instead two different ways to

ensure the same thing--namely, a fair trial."

People v. Herron, 215 Ill. 2d 167, 178-79,

830 N.E.2d 467, 475 (2005).

- 31 -
 Before deciding whether plain error occurred, it is

logical to consider whether any error at all occurred. People v.

Hudson, 228 Ill. 2d 181, 191, 886 N.E.2d 964, 971 (2008). (I

note that at oral argument, counsel for the State asserted that

the record did not disclose that the trial court was aware

respondent was shackled during the proceedings prior to his

testimony. Whether or not skirting at the counsel table existed,

given that the trial court directed that the shackles be removed

from respondent during his testimony from the witness stand would

seem to imply that the trial court was in a position to observe

respondent's shackling prior to that time.) The majority cites

decisions holding that unless a defendant objected to being

shackled, the shackling violated no constitutional right because

the State never compelled the defendant to be shackled. Hyche,

77 Ill. 2d at 241, 396 N.E.2d at 12; Strickland, 363 Ill. App. 3d

at 605, 843 N.E.2d at 903. It is beyond belief that just because

defense counsel fails to object, the defendant is wearing shack-

les by his own free choice. The more likely explanation is that

defense counsel assumed an objection would be futile because

routine shackling is the modus operandi. In any event, the

supreme court apparently no longer subscribes to the rather

facile no-objection, no-compulsion rationale of Hyche. In People

v. Allen, 222 Ill. 2d 340, 353-54, 856 N.E.2d 349, 357 (2006),

the supreme court held that even though the defendant never

objected to wearing an electric stun belt during trial, "the

failure to conduct a Boose hearing *** [was] an error," a "due[-]

- 32 -
process violation" (Allen, 222 Ill. 2d at 353, 856 N.E.2d at

356). Therefore, I infer that the failure to object to shackles

does not negate the error of failing to hold a Boose hearing.

The supreme court concluded in Allen, 222 Ill. 2d at

353, 856 N.E.2d at 356, that although the defendant had "prove[d]

a due[-]process violation which amounted to error by showing that

he was required to wear an electronic stun belt at trial without

the court having first determined that it was necessary," the

defendant had failed to establish "'that the error was so serious

that it affected the fairness of [his] trial and challenged the

integrity of the judicial process'" (i.e., the second of the two

alternative ways of establishing plain error, as described by

Herron). Allen, 222 Ill. 2d at 353, 856 N.E.2d at 356. The

supreme court added: "Here, [the] defendant cannot, and does

not, claim that the evidence presented was closely balanced"

(referring to the other way of establishing plain error). Allen,

222 Ill. 2d at 353, 856 N.E.2d at 357.

Likewise, in the appeal before us, the majority de-

clares that "the evidence in [respondent's] case was not closely

balanced." Slip op. at 19. The majority reasons as follows:

"Respondent was charged with criminal sexual

assault and attempted robbery. Although the

testimony regarding the criminal sexual as-

sault came down to a credibility determina-

tion between respondent and C.H., the evi-

dence presented as a whole was not so close

- 33 -
 as to warrant application of the plain-error

doctrine. During his testimony, respondent

essentially admitted his part in the

attempted robbery, acknowledging that he and

G.W. agreed to take money from C.H. and that

he restrained C.H. while G.W. searched her

for money. He made similar admissions in his

first statements to police. Further, as

discussed, respondent's version of the events

surrounding the criminal-sexual-assault

charge contained many inconsistencies." Slip

op. at 19.

Thus, even though "the criminal sexual assault came down to a

credibility determination between respondent and C.H." (slip op.

at 19), the majority did not find the evidence to be closely

balanced, because (1) respondent admitted he attempted to rob

C.H. and (2) his version of what happened "contained many incon-

sistencies" (slip op. at 19). As for the first reason, respon-

dent's attempting to rob C.H. did not prove he sexually assaulted

her. His attempting to rob her could prove, however, that she

had sold sex to the two boys and they wanted their money back. A

deputy sheriff, Andrew Good, testified that sometime around 1:15

a.m. on July 11, 2006, he was on patrol when he heard people

screaming on Campbell Street. As he approached, he saw two males

standing over a female. While striking her with their hands, the

males were screaming at her, "Give me the money[!]" and "Where is

- 34 -
the bread[?]" In his own testimony, respondent corroborated that

is precisely what his companion, G.W., said to C.H.: "Where is

the money? Where is the bread?" Note the repetition of the

definite article in both Good's and respondent's testimony: the

money and the bread. In their confrontation with C.H., the two

boys were referring not to money in general but to a specific

res--namely, the cash they testified they had paid C.H. for her

sexual services, or so a trier of fact could reasonably infer.

The second reason the majority gives for finding the

evidence not to be closely balanced is just as unconvincing as

the first. The majority says that respondent's testimony "con-

tained many inconsistencies." Slip op. at 19. That is true, but

in the majority's assessment of the evidence, the inconsistencies

in C.H.'s testimony and statements apparently do not count. I

will not go so far as to say that the evidence is insufficient,

as a matter of law, to sustain the conviction of criminal sexual

assault, but C.H.'s credibility could fairly be questioned. She

contradicted herself repeatedly, and her testimony was irrecon-

cilable with certain physical realities of the crime scene. To

fasten on the inconsistencies in respondent's testimony and

ignore the problems in C.H.'s testimony does not constitute an

imbalance in the testimony, but only a determination that under

our standard of review, we cannot second-guess the credibility

determinations of the trier of fact. We cannot decide whether

the evidence was closely balanced without objectively weighing

the evidence on both sides.

- 35 -
 Given respondent's testimony that C.H. approached him

on the street around midnight on July 11, 2006, and offered to

have sex with him for payment, one naturally would be interested

in knowing where C.H. was going at that hour and where she had

been. This is not to suggest that anyone strolling the streets

at midnight should be suspected of prostitution, but respondent

alleged that C.H. approached him and after offering to sell him a

television, offered to "do anything" for money; therefore, one

might have expected the State to counter his allegation with

credible and definite corroborating evidence that C.H. was, to

the contrary, out on some legitimate errand. Such evidence was

not forthcoming, and C.H.'s statements were inconsistent on this

question. C.H. told a police officer, Curt Apperson, that she

was on her way home from visiting a friend named Antoine when the

two boys sexually assaulted her. Later, at the hospital, she

told Apperson a different story: that she had been to the house

of a friend named Donnie. She told another police officer,

William Davis, that she had gone to Antoine's house, and she

never mentioned Donnie to him. The State called neither Antoine

nor Donnie. Apparently, Donnie's last name is Stewart. The

record does not seem to reveal Antoine's last name.

A registered nurse, Mary Sexton, treated C.H. at the

hospital, and according to Sexton's notes, C.H. told her the

attackers had a small black-handled pistol. Because Sexton

failed to note down some of the abrasions C.H. had suffered (as

shown in photographs admitted in evidence) and because Sexton

- 36 -
came across to the trial court as a "glum" or reluctant witness,

the court did not find her to be credible. But if one considers

Sexton to be an unreliable witness, it seems one would have to

consider Good to be unreliable, too, for he testified that when

he approached C.H. and the assailants fled, C.H. ran to him and

said she had been raped and that "they had a gun." C.H. never

mentioned a gun in her testimony at trial. That her assailants

were armed with a pistol would have been an important fact under

any view, and the omission of that fact from her testimony is

troubling and inexplicable.

Typically, falsehood reveals itself in the incidental

factual representations. A lie becomes more difficult to sustain

as the details accumulate. (I am not asserting that C.H. lied.

That is not for us to decide. I am merely trying, as fairly as

possible, to take account of the evidence on the other side.)

C.H. testified that as she was walking down the sidewalk, on her

way home from visiting a friend's house, respondent, whom she

described as the taller boy, and G.W., whom she described as the

shorter boy, asked her if she would like to go behind a house and

have a drink. Apparently, the house was where respondent's

cousin, Destiny Nesbitt lived. According to C.H.'s testimony,

she paused a moment on the sidewalk, and respondent, the taller

boy, was idly pressing a button, causing a garage door to go up

and down. C.H. testified she declined G.W.'s offer, whereupon

G.W. grabbed her and pulled her behind the house and the two boys

sexually assaulted her. According to respondent's testimony,

- 37 -
C.H. voluntarily went behind his cousin's house pursuant to her

agreement with him and G.W. to have sex with them for $20 apiece.

As it turned out, Nesbitt did indeed have a garage adjoining her

duplex, but the evidence was unrebutted that the garage had a

manual door with no automatic garage-door opener or electric

button. The trial court stated: "There would be no reason for

C.H. to make that up, and it may well have been a

[mis]perception. I don't think anyone is paying careful atten-

tion to the mechanism that operates a garage door when the events

are on the discussion and what took place." I do not think that

all reasonable minds would necessarily be satisfied by this

rationalization. It is difficult to understand how C.H. could

have misperceived what respondent was doing--she thought she saw

him pressing a button, but actually he grasped the handle of the

garage door and physically lifted the door and lowered it over

and over again? Setting aside the question of why anyone would

feel inclined to do that, the physical actions are so different

from one another as to make a mistake unlikely. A rational trier

of fact could find--would not have to find, but could find--that

C.H. made up the electric garage-door opener and made up the

black-handled gun and made up the midnight trip to the friend's

house and, therefore, made up the sexual assault.

In summary, with respect to the charge of criminal

sexual assault, this case turned on credibility, as the majority

admits--C.H.'s testimony on the one hand and respondent's testi-

mony on the other--and respondent was not the only witness whose

- 38 -
narrative was plagued by discrepancies, contradictions, and

improbabilities. One could question C.H.'s credibility, too.

Therefore, contrary to the majority's assessment, the evidence

was closely balanced.

The majority refuses to apply the plain-error doctrine

to this case because the evidence on the other count, attempt

(robbery), was not closely balanced. Apparently, in the major-

ity's view, if a defendant were charged with one count of first-

degree murder and one count of misdemeanor theft and the evidence

were closely balanced on the former count but not on the latter

count, review under the doctrine of plain error would be unavail-

able: it would not matter that because the evidence of murder

was closely balanced, an error might have caused the defendant to

be wrongly convicted of that offense--because the evidence that

he committed misdemeanor theft was overwhelming. That approach

to plain error cannot logically be sustained.

"When there is error in a close case, we choose to err

on the side of fairness, so as not to convict an innocent per-

son." Herron, 215 Ill. 2d at 193, 830 N.E.2d at 483. Failing to

hold a Boose hearing was error. See Allen, 222 Ill. 2d at 353,

856 N.E.2d at 356. For 137 years, courts in this country have

recognized that shackles can function as a psychological weapon

against the accused. In the first American shackling case, the

Supreme Court of California stated:

"A prisoner upon his trial in [c]ourt is

in the custody of the law[] and under the

- 39 -
 immediate control of and subject to the or-

ders of such [c]ourt. *** [A]ny order or

action of the [c]ourt which, without evident

necessity, imposes physical burdens, pains

and restraints upon a prisoner during the

progress of his trial, inevitably tends to

confuse and embarrass his mental faculties,

and thereby materially to abridge and preju-

dicially affect his constitutional rights of

defense; and especially would such physical

bonds and restraints in like manner materi-

ally impair and prejudicially affect his

statutory privilege of becoming a competent

witness and testifying in his own behalf."

People v. Harrington, 42 Cal. 165, 168

(1871).

Likewise, the Supreme Court of Missouri has stated: "[T]he

condition of the prisoner in shackles may, to some extent,

deprive him of the free and calm use of all his faculties."

State v. Kring, 64 Mo. 591, 593 (1877); see also Williams v.

State, 629 P.2d 54, 58 n.7 (Ala. 1981); State v. Roberts, 86 N.J.

Super. 159, 164, 206 A.2d 200, 203 (1965). It may be that,

physically, restraints are not as painful now as they were a

hundred or more years ago (Deck v. Missouri, 544 U.S. 622, 630,

161 L. Ed. 2d 953, 963, 125 S. Ct. 2007, 2012-13 (2005); Kennedy

v. Cardwell, 487 F.2d 101, 106 (6th Cir. 1973)), but I am uncon-

- 40 -
vinced that the cases were concerned merely with physical pain.

They were concerned with the diminution of the accused's self-

respect before the tribunal to which he must make his defense.

Courts considered it an abhorrent practice to "'"[bring the

defendant] to the [b]ar in a contumelious [m]anner,"'" bearing,

on his hands or feet, the "'"[m]ark of [i]gnominy and

[r]eproach."'" Deck, 544 U.S. at 630, 161 L. Ed. 2d at 963, 125

S. Ct. at 2013, quoting Roberts, 86 N.J. Super. at 162, 206 A.2d

at 202, quoting 2 W. Hawkins, Pleas of the Crown, ch. 28, §1, at

308 (1716-1721) (section on arraignments).

Even in a bench trial, a defendant should not be

shackled unless the trial court has good cause to believe that

shackles are necessary to keep the courtroom safe or to prevent

escape, for unnecessary shackling threatens the dignity of the

court. Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73. As a court

loses its dignity, it loses credibility with the public (Deck,

544 U.S. at 631, 161 L. Ed. 2d at 964, 125 S. Ct. at 2013); and I

further would argue that it loses credibility with the defendant

--to the possible detriment of his defense. To do his best at

trial, the defendant must have confidence that he is making his

case to a rational and impartial trier of fact who genuinely

presumes he is innocent until the State proves him to be guilty

beyond a reasonable doubt. Unnecessary and unjustified shackling

weakens that confidence; it "jeopardizes the presumption's value

and protection." Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73.

The presumption of innocence is a noble ideal, but this ideal

- 41 -
will inspire little hope if hard iron reminds the defendant,

every moment of the trial, how things really are between him and

the court--for, plainly, he is not "stand[ing] trial 'with the

appearance, dignity, and self-respect of a free and innocent

man.'" Staley, 67 Ill. 2d at 37, 364 N.E.2d at 73, quoting Eaddy

v. People, 115 Colo. 488, 492, 174 P.2d 717, 719 (1946). In

addition to defending himself against the State's evidence, a

defendant should not have to struggle with a sense of futility, a

disheartening suspicion that he is presumed guilty. Anyone who

can sit in chains with no diminution of courage and confidence

has a thicker hide than the common run of humanity. I would find

the failure to hold a Boose hearing to be plain error because the

evidence was closely balanced. I would reverse the trial court's

judgment and remand this case for a new trial--to be conducted

without shackles, unless the trial court holds a Boose hearing

and finds a clear need for them.

B. Denial of a Jury Trial

1. The Inapplicability of Fucini, Presley, and G.O.

In rejecting respondent's argument that denying him a

jury trial violated due process, the majority begins by citing

three cases--Fucini, Presley, and G.O.--all of which are distin-

guishable because they do not address the specific arguments

respondent is making in this appeal. It is true, as the majority

says, that in Fucini, 44 Ill. 2d at 310, 255 N.E.2d at 382, and

Presley, 47 Ill. 2d at 55, 264 N.E.2d at 179 (which simply

referenced Fucini), the supreme court "held that juveniles have

- 42 -
no right to a jury trial under the Illinois Constitution." Slip

op. at 21. But the supreme court decided Fucini and Presley in

1970, and much has changed in the intervening 38 years. The

Juvenile Court Act no longer exists. We now have the Juvenile

Court Act of 1987, which, in 1999, was amended so as to effect "a

fundamental shift from the singular goal of rehabilitation to

include overriding concerns of protecting the public and holding

juvenile offenders accountable for violations of the law" (Tay-

lor, 221 Ill. 2d at 167, 850 N.E.2d at 139). Also, when the

supreme court decided Fucini and Presley, there was no Sex

Offender Registration Act (730 ILCS 150/1 through 12 (West

2006)).

As for G.O., it is true, as the majority says, that the

supreme court in that case "rejected arguments that the denial of

a jury trial to a juvenile charged with first-degree murder

violated equal protection or due process." Slip op. at 22-23.

But, again, this discussion of G.O. is so general as to be

misleading. One must bear in mind the argument the respondent

was making in that case. He argued that denying him a jury trial

violated due process because the mandatory minimum sentence

required by section 5-33(1.5) of the Act (705 ILCS 405/5-33(1.5)

(West 1996))--i.e., "commit[ment] to the Department of Correc-

tions, Juvenile Division, until his '21st birthday, without the

possibility of parole, furlough, or non[]emergency authorized

absence for a period of 5 years'" (G.O., 191 Ill. 2d at 40-41,

727 N.E.2d at 1005)--"render[ed] the process to which [he was]

- 43 -
subject much more punitive than rehabilitative." G.O., 191 Ill.

2d at 44, 727 N.E.2d at 1007. The supreme court rejected respon-

dent's due-process theory in G.O. for the sole reason that the

theory rested on a false premise, namely, that there was such a

statute as section 5-33(1.5). Actually, that section of the Act

was void ab initio because it was part of Public Act 88-680 (Pub.

Act 88-680, §5-15, eff. January 1, 1995 (1994 Ill. Laws 2750)),

which, in People v. Cervantes, 189 Ill. 2d 80, 98, 723 N.E.2d

265, 274 (1999), the supreme court held to be unconstitutional

because the General Assembly had violated the single-subject

clause (Ill. Const. 1970, art. IV, §8(d)). G.O., 191 Ill. 2d at

43-44, 727 N.E.2d at 1007. The respondent in G.O. gave the

supreme court "no other reason to reexamine [its] earlier deci-

sions" such as Fucini. G.O., 191 Ill. 2d at 44, 727 N.E.2d at

1007.

Significantly, the majority in G.O. stated: "Contrary

to Justice Heiple's assertions [in his dissent], we do not hold

that a due[-]process argument is foreclosed by Fucini. Instead,

we hold that, in the absence of the mandatory sentencing provi-

sion, [the] respondent does not ask this court to reconsider

Fucini. The argument considered by Justice Heiple is not before

this court[,] and we express no opinion [on] its merits." G.O.,

191 Ill. 2d at 44 n.3, 727 N.E.2d at 1007 n.3. In this appeal,

respondent relies heavily on Justice Heiple's dissent in G.O. and

repeats his arguments. It is true that Justice Heiple's dissent

is not precedential, but the majority in this case goes further

- 44 -
and concludes that Fucini, Presley, and G.O. dispose of Justice

Heiple's arguments (which also are respondent's arguments) when,

in fact, the majority in G.O. emphasized it was expressing no

opinion, one way or the other, on the merits of Justice Heiple's

arguments and disavowed any implication that Fucini foreclosed a

due-process challenge along the lines of his dissent.

Thus, the three cases on which the majority chiefly

relies in disposing of respondent's due-process theory (Fucini,

Presley, and G.O.) really pose no obstacle at all to that theory.

Fucini and Presley were decided under a statute that no longer

exists, and G.O. rejected a due-process challenge for a narrow

reason that has no relevance to this case.

2. Due Process Versus the "Wooden Approach"

The majority concludes that respondent's due-process

challenge must fail because despite the 1999 amendments to the

Act, proceedings under the Act still are not criminal (A.G., 195

Ill. 2d at 317, 746 N.E.2d at 735; Taylor, 221 Ill. 2d at 168,

850 N.E.2d at 140) and "rehabilitation remains a more important

consideration in the juvenile justice system than in the criminal

justice system" (Taylor, 221 Ill. 2d at 170, 850 N.E.2d at 141).

As long as there is a juvenile justice system with less severe

maximum sentences than in the criminal justice system, one never

will be able to characterize delinquency proceedings--absolutely

and unreservedly--as "criminal"; rehabilitation always will be a

somewhat greater consideration in juvenile delinquency proceed-

ings than in criminal proceedings. Labels should not determine

- 45 -
our disposition of respondent's appeal. The Supreme Court has

said: "Little, indeed, is to be gained by any attempt simplisti-

cally to call the juvenile court proceeding either 'civil' or

'criminal.' The Court carefully has avoided this wooden ap-

proach." McKeiver, 403 U.S. at 541, 29 L. Ed. 2d at 658, 91 S.

Ct. 1984. Delinquency proceedings are on a continuum between

civil and criminal--they partake of aspects of each--and instead

of asking whether delinquency proceedings are one or the other,

we should be asking whether, in respondent's case, the proceed-

ings were close enough, in their objectives, to the criminal end

of the continuum (and far enough away from the State's tradi-

tional paternalistic role) as to make it a violation of due

process, or fundamentally unfair, to deny him a trial by jury.

I derive the standard of fundamental fairness from

McKeiver, a plurality decision by the Supreme Court. A majority

of the Court agreed in that case that trial by jury in a juvenile

court's adjudicative stage was not constitutionally required.

McKeiver, 403 U.S. at 545, 29 L. Ed. 2d at 661, 91 S. Ct. at

1986. Justice Blackmun wrote an opinion listing 13 reasons for

that holding. McKeiver, 403 U.S. at 545-51, 29 L. Ed. 2d at 661-

64, 91 S. Ct. at 1986-89. Only three other members of the Court

--Chief Justice Burger, Justice Stewart, and Justice White--

joined in Justice Blackmun's opinion. Justice Harlan concurred

in the judgments for the sole reason that, in his view, "criminal

jury trials [were] not constitutionally required of the [s]tates,

either as a matter of [s]ixth[-][a]mendment law or due process."

- 46 -
McKeiver, 403 U.S. at 553, 29 L. Ed. 2d at 668, 91 S. Ct. at 1992

(Harlan, J., concurring). No other members of the court shared

that view. Justice Brennan concurred in the judgment in the

Pennsylvania cases but dissented in the North Carolina cases (two

groups of cases, one group from Pennsylvania and the other from

North Carolina, were before the Court). In his opinion, he did

not say he agreed with Justice Blackmun's 13 reasons, but on one

point he did explicitly agree with Justice Blackmun's rationale:

that due process required "'fundamental fairness *** [in]

factfinding.'" McKeiver, 403 U.S. at 554, 29 L. Ed. 2d at 666,

91 S. Ct. at 1990 (Brennan, J., concurring in part and dissenting

in part).

In both Justice Blackmun's opinion and Justice

Brennan's opinion (and, therefore, in the view of a majority of

the Supreme Court), the fundamental fairness of denying a jury

trial in juvenile delinquency proceedings depended largely on the

paternalistic and beneficent character of such proceedings.

Justice Blackmun was concerned that requiring a jury trial would

"remake the juvenile proceeding into a fully adversary process

and [would] put an effective end to what has been the idealistic

prospect of an intimate, informal protective proceeding."

McKeiver, 403 U.S. at 545, 29 L. Ed. 2d at 661, 91 S. Ct. at

1986; see also Fucini, 44 Ill. 2d at 309, 255 N.E.2d at 382.

Justice Brennan reasoned as follows:

"The availability of trial by jury allows an

accused to protect himself against possible

- 47 -
oppression by what is in essence an appeal to

the community conscience, as embodied in the

jury that hears his case. To some extent,

however, a similar protection may be obtained

when an accused may in essence appeal to the

community at large, by focusing public atten-

tion upon the facts of his trial, exposing

improper judicial behavior to public view,

and obtaining, if necessary, executive re-

dress through the medium of public indigna-

tion. Of course, the Constitution, in the

context of adult criminal trials, has re-

jected the notion that public trial is an

adequate substitution for trial by jury in

serious cases. But in the context of juve-

nile delinquency proceedings, I cannot say

that it is beyond the competence of a [s]tate

to conclude that juveniles who fear that

delinquency proceedings will mask judicial

oppression may obtain adequate protection by

focusing community attention upon the trial

of their cases. For, however much the juve-

nile system may have failed in practice, its

very existence as an ostensibly beneficent

and noncriminal process for the care and

guidance of young persons demonstrates the

- 48 -
 existence of the community's sympathy and

concern for the young. Juveniles able to

bring the community's attention to bear upon

their trials may therefore draw upon a reser-

voir of public concern unavailable to the

adult criminal defendant." McKeiver, 403

U.S. at 554-55, 29 L. Ed. 2d at 666, 91 S.

Ct. at 1991 (Brennan, J., concurring in part

and dissenting in part).

Justice Brennan dissented in the North Carolina cases because

North Carolina law either permitted or required the exclusion of

the general public from juvenile trials. McKeiver, 403 U.S. at

556, 29 L. Ed. 2d at 667, 91 S. Ct. at 1991 (Brennan, J., concur-

ring in part and dissenting in part).

Section 1-5(6) of the Act provides: "The general

public except for the news media and the crime victim *** shall

be excluded from any hearing and, except for the persons speci-

fied in this [s]ection[,] only persons, including representatives

of agencies and associations, who in the opinion of the court

have a direct interest in the case or in the work of the court

shall be admitted to the hearing." 705 ILCS 405/1-5(6) (West

2006). Because the general public is excluded from hearings

under the Act and we have held that a trial court, in its discre-

tion, also may exclude the news media (In re a Minor, 205 Ill.

App. 3d 480, 491, 563 N.E.2d 1069, 1076 (1990)), public scrutiny

of the trial court's decision in a juvenile delinquency case

- 49 -
cannot substitute for a jury trial. Respondent was not able to

"draw upon a reservoir of public concern." See McKeiver, 403

U.S. at 555, 29 L. Ed. 2d at 666, 91 S. Ct. at 1991 (Brennan, J.,

concurring in part and dissenting in part).

Further, with the 1999 amendments to the Act and the

necessity of respondent's having to register as a sex offender as

a result of the adjudication of delinquency, it is unclear that

"concern," "sympathy," and "paternal attention" were the upper-

most values in the proceeding. McKeiver, 403 U.S. at 550, 29 L.

Ed. 2d at 664, 91 S. Ct. at 1989. As applied to respondent, the

process was not "ostensibly beneficent." McKeiver, 403 U.S. at

555, 29 L. Ed. 2d at 666, 91 S. Ct. at 1991 (Brennan, J., concur-

ring in part and dissenting in part). In Taylor, 221 Ill. 2d at

165-66, 850 N.E.2d at 138-39, the supreme court gave an overview

of the 1999 amendments to the Act:

"The *** Act was radically altered ***.

The General Assembly amended the Act with

Public Act 90-590, effective January 1, 1999.

705 ILCS Ann. 405/5-101 et seq. (Smith-Hurd

1999). The amendatory changes renumbered the

sections and largely rewrote article V of the

Act to provide more accountability for the

criminal acts of juveniles and, from all

appearances, to make the juvenile delinquency

adjudicatory process look more criminal in

nature. Compare 705 ILCS 405/5-1 et seq.

- 50 -
(West 1996) with 705 ILCS 405/5-105 et seq.

(West 2000). For starters, the 1999 amend-

ments provided a new purpose and policy sec-

tion, which states in relevant part as fol-

lows:

'(1) It is the intent of the

General Assembly to promote a juve-

nile justice system capable of

dealing with the problem of juve-

nile delinquency, a system that

will protect the community, impose

accountability for violations of

law[,] and equip juvenile offenders

with competencies to live responsi-

bly and productively. To effectu-

ate this intent, the General Assem-

bly declares the following to be

important purposes of this

[a]rticle:

(a) To protect citi-

zens from juvenile crime.

(b) To hold each

juvenile offender

directly accountable for

his or her acts.

(c) To provide an

- 51 -
individualized assessment

of each alleged and adju-

dicated delinquent juve-

nile, in order to reha-

bilitate and to prevent

further delinquent behav-

ior through the develop-

ment of competency in the

juvenile offender. As

used in this [s]ection,

"competency" means the

development of

educational, vocational,

social, emotional[,] and

basic life skills which

enable a minor to mature

into a productive member

of society.

(d) To provide due

process, as required by

the Constitution of the

United States and the

State of Illinois,

through which each juve-

nile offender and all

other interested parties

- 52 -
 are assured fair hearings

at which legal rights are

recognized and enforced.

(2) To accomplish these goals,

juvenile justice policies developed

pursuant to this [a]rticle shall be

designed to:

***

(b) Provide secure

confinement for minors

who present a danger to

the community and make

those minors understand

that sanctions for seri-

ous crimes, particularly

violent felonies, should

be commensurate with the

seriousness of the of-

fense and merit strong

punishment;

(c) Protect the

community from crimes

committed by minors;

* * *

(j) Hold minors

accountable for their

- 53 -
 unlawful behavior and not

allow minors to think

that their delinquent

acts have no consequence

for themselves and oth-

ers.' 705 ILCS 405/5-101

(West 2000).

Although proceedings under the Act are

still not criminal in nature even in the

aftermath of the 1999 amendments and are to

be administered in a spirit of humane concern

for the minor and to promote his general

welfare, the policy statement in section

5-101 represents a fundamental shift from the

singular goal of rehabilitation to include

the overriding concerns of protecting the

public and holding juvenile offenders ac-

countable for violations of the law. [Cita-

tion.] Consistent with this end, the 1999

amendments changed some of the terminology of

the Act. The Act now provides for a number

of features common to a criminal trial.

Pertinent to our analysis are the following

provisions. The legislature has now indi-

cated an intent that the term '"trial" re-

place the term "adjudicatory hearing" and be

- 54 -
 synonymous with that definition as it was

used in the [Act].' 705 ILCS 405/5-101(17)

(West 1998). Furthermore, the Act now allows

for a 'plea of guilty' in a delinquency pro-

ceeding (705 ILCS 405/5-605 (West 1998)), and

if a trial is conducted, the court is re-

quired, at its conclusion, to 'make and note

in the minutes of the proceeding a finding of

whether or not the minor is guilty.' (Empha-

sis added.) 705 ILCS 405/5-620 (West 1998).

If the court finds the minor 'guilty,' the

cause then proceeds to a 'sentencing hear-

ing,' where it is determined whether or not

it is in the best interests of the minor or

the public that he be made a ward of the

court, with the possibility that if defendant

is adjudicated a ward of the court, he could

be committed to the Department of Correc-

tions, Juvenile Division. 705 ILCS

405/5-620, 5-705, 5-710 (West 1998). In sum,

the Act now provides for pleas of guilty,

findings of guilty[,] and sentencing ***."

Not only was respondent "tried" under an Act that,

since the 1999 amendments, put an increased emphasis on punish-

ment and, as the supreme court said, "look[ed] more criminal in

nature," but his commitment to the Juvenile Division of the

- 55 -
Department of Corrections until his twenty-first birthday (an

approximate five-year sentence) translates to an even longer

sentence when one recognizes that adult offenders earn good-time

credits for time served and programs completed. Moreover, the

finding of "guilty" of the offense of criminal sexual assault

(720 ILCS 5/12-13(a)(1) (West 2004)) resulted in a designation of

"sexual predator" within the meaning of section 2(E)(1) (730 ILCS

150/2(E)(1) (West 2004)), requiring respondent to begin register-

ing as a sex offender when he turned 17 (730 ILCS 150/3(a) (West

2004)) and to continue registering for the rest of his life (730

ILCS 150/7 (West 2004)). The State was not acting as a compas-

sionate and sympathetic "parent" when it imposed that requirement

on him. Society holds sex offenders in deep abhorrence. See M.

Earl-Hubbard, The Child Sex Offender Registration Laws: The

Punishment, Liberty Deprivation, and Unintended Results Associ-

ated with the Scarlet Letter Laws of the 1990s, 90 NW. U. L. Rev.

788, 824 (1996) ("Authorities have documented numerous instances

of vigilantism and attacks on registered offenders in the few

years the registration laws have been in effect"); R. Tewksbury,

Conversation: Residency Restrictions on Sex Offenders: Exile at

Home: The Unintended Collateral Consequences of Sex Offender

Residency Restrictions, 42 Harv. C.R.-C.L. L. Rev. 531, 534-35

(2007) (loss or denial of employment, decrease in social interac-

tion, and difficulty finding housing). Being registered as a sex

offender is like having the mark of Cain, and it is a mark that

respondent will bear to his grave. He will be

- 56 -
 "forever kept under the shadow of his crime,

forever kept within voice and view of the

criminal magistrate, not being able to change

his domicile without giving notice to the

'authority immediately in charge of his sur-

veillance' ***. He may not seek, even in

other scenes and among other people, to re-

trieve his fall from rectitude. Even that

hope is taken from him, and he is subject to

tormenting regulations that, if not so tangi-

ble as iron bars and stone walls, oppress as

much by their continuity ***." Weems v.

United States, 217 U.S. 349, 366, 54 L. Ed.

793, 798, 30 S. Ct. 544, 549 (1910).

Considering what was at stake in this juvenile delinquency

proceeding, fundamental fairness required that respondent have a

right to a jury trial, and I would reverse the trial court's

judgment and remand this case with directions to afford him that

right.

- 57 -