ILLINOIS OFFICIAL REPORTS
Appellate Court
In re Terry H., 2011 IL App (2d) 090909
Appellate Court In re TERRY H., a Minor (The People of the State of Illinois,
Caption Petitioner-Appellee, v. Terry H., Respondent-Appellant).
District & No. Second District
Docket No. 2–09–0909
Filed June 7, 2011
Held The trial court’s order revoking respondent’s supervision imposed
(Note: This syllabus following his adjudication of delinquency for aggravated criminal
constitutes no part of the sexual abuse was affirmed, since there was sufficient evidence that he
opinion of the court but failed to “participate” in counseling, regardless of his claims that it is
has been prepared by the difficult for teens to discuss sexual matters in a group setting and that
Reporter of Decisions for his mental health issues made such discussions even more difficult,
the convenience of the especially when there was evidence that he was capable of participating
reader.) and simply chose not to, and, therefore, the trial court’s determination
that the State met its burden of proof on the issue of revoking
respondent’s supervision was not against the manifest weight of the
evidence.
Decision Under Appeal from the Circuit Court of Winnebago County, No. 06–JD–67;
Review the Hon. K. Patrick Yarbrough, Judge, presiding.
Judgment Affirmed.
Counsel on Thomas A. Lilien and Patrick M. Carmody, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M. Bauer
and Scott Jacobson, both of State’s Attorneys Appellate Prosecutor’s
Office, of counsel), for the People.
Panel JUSTICE HUDSON delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice Hutchinson concurred in the
judgment and opinion.
OPINION
¶1 Terry H. appeals from an order revoking his supervision following his adjudication of
delinquency for aggravated criminal sexual abuse (720 ILCS 5/12–16(c)(2)(i) (West 2006)).
He contends that there was insufficient evidence that he violated the terms of his supervision.
We affirm.
¶2 I. BACKGROUND
¶3 In February 2006, a delinquency petition was filed against Terry, alleging that he
committed domestic battery. In March 2006, he was placed on probation, ordered to perform
public service, and ordered to pay court costs. An order that he serve 30 days in detention
was stayed.
¶4 On August 14, 2006, a supplemental delinquency petition was filed, alleging that Terry,
who was 15 at the time, committed aggravated criminal sexual abuse by touching his penis
to the buttocks of a minor under 9 years of age. Under an agreement between the parties,
Terry admitted the charge and was sentenced to two years’ supervision, ordered to cooperate
and participate in counseling, and ordered not to have unsupervised contact with minors
under 12 years of age.
¶5 On July 2, 2008, a petition to revoke Terry’s supervision was filed, alleging that Terry
had gone to Great America amusement park unsupervised and that he was not cooperating
with court-ordered treatment. On May 11, 2009, a hearing was held.
¶6 At the hearing, Jeffrey Sundberg, a social worker who counseled Terry, testified.
Sundberg began counseling Terry in October 2007 on an individual basis. He then directed
Terry to take part in a weekly sex-offender counseling group to further address issues that
caused Terry to sexually act out. Based on a polygraph, Sundberg believed that there were
matters not being addressed individually and that, by being in both group and individual
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sessions, Terry might be in a better position to make progress. In June 2008, Sundberg
discharged Terry from the group. Sundberg testified that Terry was willing to talk about
general issues but, when the topic became focused on his offender-specific concerns, Terry
would “shut down,” would not proceed, and would not explore the issues. In Sundberg’s
opinion, Terry was not participating in the group counseling sessions. Sundberg stated that
participants were expected to come prepared with assignments for the discussion and respond
to questions, and that Terry had a pattern of not participating. Sundberg discussed the
problem with Terry more than once before discharging him, but Terry’s participation did not
improve. On cross-examination, Sundberg stated that he was aware that Terry was diagnosed
with ADHD, was bipolar, and had fetal alcohol syndrome. Sundberg agreed that some kids
do better in group sessions than others.
¶7 Michelle Eaton, Terry’s probation officer, testified that she observed some of the group
sessions, during which Terry would state that he did not want to discuss matters. Eaton said
that, on many occasions, Sundberg then discussed with Terry that Terry had to talk about
things or risk being dismissed from the group. Eaton testified that she also transported Terry
to individual sessions and that they would discuss Terry’s participation. Many times, Terry
would not say anything, and he would put his head down and refuse to talk. After discussing
with Terry what would happen if he did not participate, his participation improved somewhat
in that he would attempt to give feedback to other members of the group, but he did not offer
much in terms of his own treatment. Eaton stated that Terry was not working on his own
issues, in violation of part of the requirement of working with the group. On cross-
examination, Eaton agreed that it is extremely difficult for young teens to talk about their
sexual dynamics in front of a group. She also was aware of Terry’s mental health issues but
stated that she had no reason to believe that he was unable to comply with the requirement
that he participate in counseling.
¶8 Terry’s mother testified about Terry’s mental health issues and to various counseling that
he had outside of his sex-offender treatment. When she was asked if Terry was assertive and
how Terry behaved in family counseling, the State objected based on relevancy. The
objections were sustained.
¶9 In regard to the trip to Great America, Terry had gone to the park as part of an organized
trip with a group of students in his age group, but it was a regular park day and children of
all ages were present. Sundberg testified that he discussed the trip with Terry, who told
Sundberg that there was a chaperone and that the chaperone was unaware of Terry’s status
as a sex offender. Likewise, Eaton testified that she discussed the trip with Terry, who told
her that the person supervising his group was not aware of why he was on supervision. Terry
told Eaton that his mother was there but that he was not part of her group. He said that he
went on rides and was not supervised in the restroom. Terry also told Eaton that his mother
called him throughout the day but that he did not answer his cell phone.
¶ 10 Terry’s mother testified that there were no children on the trip under the age of 12 and
that there were about eight chaperones. She said that Terry was part of her group. The park
itself was open to the public, and there were children of all ages there. She and Terry were
at the park from about 10 a.m. to 6 or 7 p.m. She testified that she was not with Terry when
he went on rides but that she was sitting on a bench waiting for him. She knew that he was
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on a ride, but she could not always see him while it was operating or while he was waiting
in line. Terry’s mother did not go to the restroom with him. Terry was also out of her sight
when he went into the arcade, but she stayed right outside the door. She said that, if she
wanted, she could look in and see him at all times. Terry’s mother testified that she found
out that Terry’s cell phone was turned off when she tried to call him after she went to the
restroom and could not find him when she came out. Terry then came out of the restroom,
showed her that the phone was turned off, and turned it on.
¶ 11 Terry argued that the State failed to show a violation of his supervision by a
preponderance of the evidence. The trial court found that Terry violated the terms of his
supervision. The court stated that it was well known that an amusement park is not limited
to people over 12 years of age and that Terry was outside his mother’s presence while at the
park. The court also found that Terry purposely refused to participate in counseling.
Accordingly, the court revoked Terry’s supervision, he was sentenced to probation, and he
was required to register as a sex offender. Terry moved for reconsideration, arguing that the
State failed to prove that he violated the terms of his supervision. The motion was denied,
and he appeals.
¶ 12 II. ANALYSIS
¶ 13 Terry argues that the trial court lacked sufficient evidence to revoke his supervision,
because there was no evidence that he had any unsupervised contact with children under the
age of 12 and because there was no proof that his failure to participate in counseling was
willful in light of his mental health issues.
¶ 14 Minors in delinquency cases are entitled to the same due process protections as adults
who face criminal charges. See 705 ILCS 405/5–101(3) (West 2008); In re Westley A.F., 399
Ill. App. 3d 791, 795 (2010). “On a State’s motion to terminate supervision, the State has the
burden of showing a violation of supervision by a preponderance of the evidence.” People
v. McGuire, 216 Ill. App. 3d 705, 709 (1991). A proposition is proved by a preponderance
of the evidence when the proposition is more probably true than not true. People v. Drake,
131 Ill. App. 3d 466, 472 (1985). The State may meet its burden using circumstantial
evidence. See People v. Love, 404 Ill. App. 3d 784, 788 (2010); People v. Kane, 136 Ill. App.
3d 1030, 1034 (1985) (allowing revocation of probation based on circumstantial evidence).
“In evaluating whether the State met its burden, the trial judge is free to resolve
inconsistencies in the testimony and to accept or reject as much of each witness’s testimony
as the judge pleases.” Love, 404 Ill. App. 3d at 787. “A trial court’s determination to revoke
supervision will not be disturbed unless it is against the manifest weight of the evidence.”
McGuire, 216 Ill. App. 3d at 709. “A finding is against the manifest weight of the evidence
only if the opposite result is clearly evident.” Love, 404 Ill. App. 3d at 787. Thus, even where
the State’s evidence is slight, we must affirm the revocation of supervision as long as the
opposite conclusion is not clearly evident. See id. (applying this proposition to revocation
of probation).
¶ 15 Terry relies primarily on two cases, People v. Prusak, 200 Ill. App. 3d 146 (1990), and
People v. McClellan, 353 Ill. App. 3d 1027 (2004). In Prusak, the defendant pleaded guilty
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to one count of aggravated criminal sexual abuse and was sentenced to a three-year term of
probation. As a condition of his probation, the court ordered the defendant to undergo a
psychiatric evaluation and cooperate with any treatment and recommendation made by the
evaluating agency. The State filed a petition to revoke the defendant’s probation because his
treatment was discontinued “due to his lack of cooperation.” (Internal quotation marks
omitted.) Prusak, 200 Ill. App. 3d at 148. The State contended that the defendant did not
cooperate because he continually denied any specific memory of the offense. The trial court
revoked the defendant’s probation and we reversed.
¶ 16 We stated in Prusak that it was clear that the defendant submitted to an evaluation,
attended every counseling session, and did everything that was required of him in the
counseling sessions. The only thing that he did not do was accept responsibility for his sexual
misconduct, and this denial was caused by mental disabilities that included his inability to
remember the misconduct. Thus, he sufficiently cooperated with treatment. Id. at 149-50.
¶ 17 Similar to Prusak, the Fifth District in McClellan held that probation revocation was
improper when the defendant had attended and participated in all of her group sessions, even
if she did not get the full benefit of her counseling because she maintained her innocence.
There, the court focused on the fact that the defendant had been ordered only to “complete”
counseling. McClellan, 353 Ill. App. 3d at 1034-35.
¶ 18 We have been reluctant to expand the application of the ruling in Prusak. See People v.
Taube, 299 Ill. App. 3d 715, 723 (1998); McGuire, 216 Ill. App. 3d at 709. For example, in
McGuire, the defendant’s supervision was revoked because he continually denied
committing the offense, but he did not have the memory problems seen in Prusak. In refusing
to expand Prusak to cover the facts of that case, we noted that, in placing a defendant on
supervision, a court may order reasonable conditions relating to the nature of the offense or
the rehabilitation of the defendant. We further noted that “ ‘although the defendant’s fault
is, in most cases, of great importance in determining whether the conditions of probation
have been violated, circumstances beyond the defendant’s control may provide an adequate
basis for probation revocation where such circumstances frustrate the fundamental purpose
or reason for the imposition of a sentence of probation.’ ” McGuire, 216 Ill. App. 3d at 710
(quoting People v. Davis, 123 Ill. App. 3d 349, 354 (1984)). We determined that the
defendant’s own conduct in failing to admit involvement in the offense frustrated the
development of a treatment plan and that the trial court’s decision to revoke supervision was
not against the manifest weight of the evidence. Id.
¶ 19 Likewise, in Taube, we observed that “[a]lthough a court cannot order a sex offender to
be successfully treated, a defendant ordered to undergo treatment must actively participate
and cannot refuse to participate in his own treatment simply because he disagrees with the
methods used.” Taube, 299 Ill. App. 3d at 723. Thus, we stated that “[o]ur holding in Prusak
protects only those offenders who have honestly, sincerely, and completely cooperated in a
treatment program, yet have nonetheless failed to recover. It does not, as in this case, provide
a shield for those offenders who object to the treatment ordered by the court and refuse to
cooperate fully.” Id.
¶ 20 Here, there was sufficient evidence that Terry failed to “participate” in counseling. Terry
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refused to take part in discussions at counseling sessions, even when the consequences of that
failure were explained to him. Terry points to testimony that it is difficult for teens to discuss
sexual matters in a group setting, and he contends that his mental health issues made it even
more difficult. However, there was also evidence that Terry was capable of participating and
simply chose not to. That doing so would have been difficult for him does not fall under the
facts of Prusak, where the defendant could not take responsibility because of memory
problems but otherwise participated in counseling. Accordingly, the trial court’s
determination that the State met its burden of proof was not against the manifest weight of
the evidence and the court properly revoked Terry’s supervision.
¶ 21 Terry also alleges that the trial court erred by not allowing testimony about his
assertiveness or how he behaved in family counseling sessions, arguing that it would have
shown that he did not willfully refuse to participate. The State, however, was required to
show only that Terry failed to participate. There was no element of willfulness to that
question. See People v. Konwent, 405 Ill. App. 3d 794, 796 (2010). Accordingly, the court
did not err in sustaining objections to that evidence.
¶ 22 Terry also argues that the court erred when it found that he violated the terms of his
supervision when he went to Great America. Because we determine that the court did not err
when it determined that Terry violated the terms of his supervision by failing to participate
in counseling, we need not determine whether he also violated his supervision when he went
to Great America.
¶ 23 III. CONCLUSION
¶ 24 The trial court’s finding that the State sufficiently proved that Terry violated the terms
of his supervision was not against the manifest weight of the evidence. Accordingly, the
judgment of the circuit court of Winnebago County is affirmed.
¶ 25 Affirmed.
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