20 20 IL App (1st) 1 80731

- U No. 1-18-0731 Order f iled September 29 , 2020 Secon d Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff

- Appellee ,

v.
JOHN HENDERSHOTT , Defendant-Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.
No. 15 CR 16884
Honorable Timothy Joseph Joyce, Judge, presiding.

JUSTICE COBBS delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment. O RDER ¶ 1 Held : We affirm defendant’s convictio n for five counts of aggravated criminal sexual abuse and sentence over his contention that the trial court relied on an improper sentencing factor. ¶ 2 Foll o wing a 2017 jury trial, d efendant John Hendershott was found guilty of fi ve counts of aggravated criminal sexual abuse (720 ILCS 5/11 -1.60(d) (West 2014)) and sentenced to an aggregate term of 14 years’ imprisonmen t

. On appeal, defendant contends that the trial courtNo. 1-18-0731

- 2 - sente nced him based on an improper aggravating factor, such that he is entitled to resentencing before a different judge

. For t he following reasons, we affirm. ¶ 3 In July 2015, defendant , who is HIV

- positive, had a sexual encounter with J.Z., a 14- year old boy. Defendant was charged by indictment with five counts of aggravated criminal sexual abuse, premised on five different acts during the same encounter: contact between defendant’s penis and J.Z.’s mouth (count 1); contact between defendant’s penis and J.Z.’s anus (count 2); contact between defendant’s mouth and J.Z.’s penis (count 3); contact between defendant’s mouth and J.Z.’s anus (count 4); and defendant inserting his finger into J.Z.’s anus (count 5). Defenda nt was also charged with individual counts of indecent solicitation of a child (720 ILCS 5/11 -6(a) (West 2014 ) , traveling to meet a child (720 ILCS 5/11 -26 (West 2014) ), solicitation to meet a child (720 ILCS 5/11 -6.6(a) (West 2014) , harmful material (720 ILCS 5/11 -21(g) (West 2014) , grooming (720 ILCS 5/11 -25) ( West 2014 )), and luring of a minor (720 ILCS 5/10

- 5.1(a) ( West 2014)). Trial proceeded solely on the five counts of aggravated criminal sexual abuse. 1 ¶ 4 Before trial, the State filed a “Motion to All ow Other Crimes Evidence” purs uant to section
115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 -7.3 (West 2014)). In that motion, the State argued that defendant’s failure to disclose his HIV status to J.Z. was rele vant to the issues of motive, lack of consent, intent, and pr opensity to commit sex offenses

. Defen dant filed a respons e asser t ing that his HIV status was irrel evant , and t hat its pr obative va lue was outweighed by its prejudicial impact

. The court initiall y gra n ted the State’s motion and denied

1 The record does not show that the State formally nol

- prossed the other counts. However, the record reflects that the jury received instructions and verdict forms only for the counts of aggravated sexual abuse and not for the other charged offenses.No. 1-18-0731

- 3 - defen d ant’s motio n to reconsider. However, following jury selection , the trial court sua sponte reconsidered its ruling and barred the State from introducing evidence of defendant’s HIV status. ¶ 5 At trial, J.Z. tes tified that as of July 2015, he was 14 years old. His parent s were divorced, and he spent every other weekend at his father’s home. J.Z. had access to an iPod device that his father did not monitor. In June 2015, J.Z. joined an online dating website called Scruff in order to talk to men

. When J.Z. created his online account , he entered a false birthdate to indicate that he was 18 years old. J.Z. ’s age was not displaye d to other members of the website. J.Z. id entified the photograph that he used as his profile picture

. ¶ 6 J.Z. initiated communications with defendant , whose online profile indicated that he was over 50 years old. J.Z. and defendant engaged in a number of sexually ex plicit chat conversations

. ¶ 7 On the morning of July 19, 2015, J.Z. and defendant arranged to meet near J.Z.’s father’s home . They subsequently walked to defendant’s house and engaged in sexual activity. D efen dant put his mouth on J.Z.’s penis and then put his tongue in J.Z.’s anus. D efendant touched J.Z.’s anus with his finger , and inserted his penis into J.Z.’ s anus. Defe ndant did not wear a condom during the encounter. ¶ 8 That evening, J.Z. retu rned to his mothe r ’s house. H e told her about the encounter with defendant, and she contacted police. J.Z. was taken t o a hospital, where he was photographed. J.Z. was later interv iewed at the Childre n’s Advocac y Ce nter . He later identified d efendant in a phot o
array. ¶ 9 On cross

- exa mination , J.Z. admitted tha t that he did not tell defendant that he was 14 years old. He a greed that defe ndant did not physically force him to have sex , and that J.Z. “enjoyed” theNo. 1-18-0731

- 4 - encounter. On redirect examination , J.Z. ack nowledged that , shortly after h e met defendant in person, he said that he had been in the 6th grade three years ea r lier

. ¶ 10 Detective Charles Hollendoner testified that he conducted a n interview with def end ant after
h is arrest

. During the interview, defendant ac knowledged that he though t J. Z. looke d “young” and that he believed he was 16 or 17 years old. D efendant admitte d that they had oral sex and anal sex, and that he digi tally penetrated J.Z.’s anus. Defendant was interviewed three times, and the last interview was video recorded. Excerpts from th e recorded inter view were published to the jury. ¶ 11 T he jury found defendant guilty of all five counts of aggravated criminal sexual abuse. Defen d ant’s m otion fora new trial was denied. ¶ 12 The presentence investigation report (PSI) reflect ed that d efendant was bo r n in July 1963

. His criminal record consisted only of a traffic offense in 1998 and a “DUI/Alcohol” offense in
2005. The PSI noted that defendant had been taking medication for a “ serious medical condition ” for 25 years. ¶ 13 The court conducted a sentencing hearing on March 8, 2018. T he State presented a victim impact statement from D.Z., J.Z.’s mo the r. She stated that, when J.Z. was treated at a hospital, it
was “ re c omme nded as a pr e caut ion that [J.Z.] be put on an STD prep medi cation that would help
fi ght against exposure to the STD.” The drug had side effects, and J.Z. “be came v ery si ck and l ost six pounds. ” ¶ 14 D. Z. also stated: “When the detectives arrested [defendant] he disclosed that he tested positive for an STD and had been for 20 years. While we were relieved that my son had taken the STD prep medication within the first month of the assault, this revelation meantNo. 1-18-0731

- 5 - that my s on would have to test negative for the STD at numerous intervals for over a year to be out of the woods and officially STD free.” ¶ 15 D.Z. further stated that her re lationship w ith her fiancé “collapsed” after the incident. She and her children moved to a new residence because she could not “afford anything within their school dis trict with the mou nting b ills from docto r s, therapists, lawyers, and medication .” D.Z. further stated that the incident “brought back the pain” from her own experience with se xual abuse

. She was diag nosed with pos t- tr aumatic syndro me d iso rder and could not re turn to work

. D.Z. also stated that J.Z. experienced “ ali enation” and “emotional abuse” from his father afterthe incident. ¶ 16 J.Z.’s impact statement related that his family und erwent counseling therapy f or trauma

. T he incident with defendant created a rift between J.Z. and his father, who did not accept J.Z. and told him that he was at f ault

. The incident caused “major stress ” in J.Z.’s relationship with his mother, and they were both “changed forever.” ¶ 17 After the court read the victim impact statements, t he court asked the State’s attorney to confirm that defendant was HIV positive at the time of the incident

. The State’s attorney confirmed that defendant acknowledged his HIV status in his recorded interview. ¶ 18 In aggravation, the State emphas ized that defe ndant failed to reveal his HIV status and had sex with J.Z. without a condom , which posed “safety risks and life

- threatening possibilities

. ” The
St ate furth er argued that def endant knew J.Z. was a child and that a strict sentence was needed to

“ deter other p eople fr om putting children at risk .” The State requested that the court exercise its discretion to impose consecutive sentences pursuant to section 5 -8- 4(c) of the Unified Code of Corrections. 730 ILCS 5/5 -8-4 (West 2016) . The State a rgued that although concurrent sentencing could be appropriate “for somebo dy who wasn’t HIV positiv e, ” in this case defendant “put thisNo. 1-18-0731

- 6 - child in a life

- threatening situation .” The State further argued that consecutive sentencing was necessary to protect the public because d efendant ’s conduct was that of “ so mebody who is likely

to re

- offend .” ¶ 19 In mitig ation , d e fe nse counsel argue d that the se x ual encounter was “cons ensual, ” there
was “no force” used , and that d efendant did not contemplate that his conduct threat ened serious physical harm. Defense c ounsel not ed that defendant had no prior history of abusing children or other sexual misconduct . Counsel acknowledged his 2005 DUI but emphasize d he had no other criminal c a ses for the next 10 years

. Counsel argued that defendant understood his mistake and

was unlikely to commit another crime

. ¶ 20 In allocution, d efendant s tated he was “devastated b y what has gone on with [J.Z.] and his mother” and t hat he had “no intention” of doin g harm. Defendant m aintained that he did not know J.Z. was underage, and that it “never would have happened” had he known . He not ed that the dating website was for adults and that J.Z “cam e across as an adult” in their conversation s. Defendant ac knowledged that J.Z. appeared to be young and that it was a mistake not to ask h is
age . Defendant expressed remorse and said that “ [t] here’s not going to be anything like this ever again that happ ens to me in my life.” ¶ 21 Before announcing sente nce, the court recognized that all five offenses were c lass 2 felonies , punishable by three to seven years’ impr is onment. The court remarked that when J.Z. appeared in court at trial , “everyone in the room knew he wa s under the age of 17 then and that was two years after” the July 2015 incident. The court found there was “no question” that de fen dant knew J.Z. was younger than 17. The court acknowledged that J.Z. may have expressedNo. 1-18-0731

- 7 - a desire to have se x , but that there was no legal excuse for defendant to have sexual contact with a person that young. ¶ 22 The court discussed defendant’s HIV status at length , including the following:

“ So th i s crime, in my estimation, is compounded by the extraordinarily aggravating circumstance that you had a condition of human immunodeficiency virus * * * and that is of ten a precur sor for what is generally vi ew ed to be the fatal disease of AIDS , acqui red immu n e deficiency syndrome * * *. Now, happily * * * we all happen to live in an age at pr esent where pha rm acolog y and treatment and society’s desire to d efend against these pernicious diseas es are such that t hese drugs are made av ailable and whe n peop le fin d that they are HI V positive , they can engage in a regi men that maintains thei r heal th and
pr ohibits it – at least prevent s it for an appreciable period of time from deteriorating, a very sub stantial perio d of time. And it may well be tha t this pha rma co log y, this drug regimen, of ten prevents pa rtner s fr om b ecoming infect ed * * *. But there’s no guarantee in that regard. That’s why whe n it was discovered that you had this condition this child and his family and their medical care providers were required to engage in a particularly extreme pharmac ology regimen in order to for fend
ag ainst this child from be coming infected in that regard. Now, it may well be that somebody in this day and age, because of thes e ph armacological advances, might be con fident that they are not goin g to infect

s omeone. They might be personally confident that the manner in which they conduct themselves when engaged in sexual activity is such that they won’t infectNo. 1-18-0731

- 8 - somebody, but how any one can possibly think that they can guarantee that is beyond me. And how an y one could con duct themse lves in such a manner with an unknowing partner who h appens t o have been 14 years old is aggrava ting to the

extreme. ” ¶ 23 The court subsequently stated: “So this young child and his family, his mother and father, were required to trust that no one would seek to do this to him and to expose him to the potentiality that he could be infected, a potentiality that doesn’t go away on the day you get these drugs. A potentiality that for all I know and, frankly, for all pharmacology knows and science and medical people know, isn’t necessarily sure won’t lead to deleterious events or deleterious results years later for all I know. So to engage in that conduct with an unknowing partner who’s 14 years of age is, in my estimation, extraordinar ily aggravating.” ¶ 24 The court proceeded to impose the maximum term of seven years’ imprisonment on each of counts 1 through 5. The court further determined that the sentences on counts 1 and 2 would run consecutively because it was “necessary to protect the public from further conduct by the defendan t of such a t y pe as is the ca s e here be ca us e of the caval ier dismissi ve manner whi c h [d e fen d ant] use d this child .” The sentences on c ounts 3, 4 and 5 would run concurrent with count 1, resulting in an aggregate se ntence of 14 years’ imprisonment. ¶ 25 In moving to reconsider the sentence, defense counsel remarked that since the court imposed the maximum sentence, it found “ no mitigating circumstances whatsoever.” The court responded: “I did not make any such con clusion . I fully appreciated the mitigating circumst ancesNo. 1-18-0731

- 9 - that wer e presented. It’s just that the mitigating circumstances pale in comparison to the aggravatin g circumstances that I pointed out during my ruling.” The court denied the motion to reconsider sentence, and defendant filed a timely notice of appeal. ¶ 26 On appeal, defendant asserts a single claim of error with respect to sentenc ing , premised upon comments by the trial court regarding his HIV status. According to defendant, the trial court “relied on its persona l and err oneous belief about the potential for J.Z., who tested negative prio r to the sentencing hearing, to develop [HIV] sometime in the future as a r esul t of his se xual conta ct with [defendant.] ” Defen dant c laims that imposition of the maximum sentence “depended on the court’s imp roper bel ief that [defendant’s] HI V st atus posed a continuing threat to J.Z.” ¶ 27 Defendant relies on the court’s comments at sentencing, in which i t reference d the “potential ity that [J.Z.] could be infected” from his encounter with defendant . He emphasizes that the court referred to this a s a “potentiality that for all I know and, frankly, for all pharmacology knows and science and medical people know , isn ’ t necessa rily sure won’t lead to del eterious ev ents or dele terious result s year s later for a ll I know.” Defe ndant int erprets this comment as indicating the trial court’s belief , unsupported by the record, that J.Z. “could deve l op HIV years after having sex with [de fendant].” Although d efendant concedes that his HIV status may have been a

“ legitimate aggravating sentenc ing facto r, ” he claims the trial court “ invented an imagined aggravating factor” to impose the maximum possible sentence

. On that basis, he requests

res entencing before a different judge. ¶ 28 In setting forth this argument, d efendant acknowledges that he forfeited this claim by not making a contemporaneous objection at sentencing or inclu ding this issue in his moti on to reconsider se n tence. See People v. Hillier , 237 Ill.2d 539, 545 (2010) (to preserve a claim ofNo. 1-18-0731

- 10 - sentencing error, both a contemporaneous objection and a written postsentencing motion raising the issue are required). However, he assert s that for feiture should be relaxed because the bas is for the ob jection is the t rial judge ’s conduct. See People v. Wardell , 230 Ill. App. 3d 1093, 1102 (1992) (noting “ [t] he waiver rule * * * is less rigidly applied when the basis for the objection is the trial judge’s condu ct”). He otherwise suggests that we review the issue under the plain

- error doctrine, which “bypasses normal forfeiture principles and allows a reviewing court to consider unpreserved claims of error in specific circumstances.” People v. Thompson , 238 Ill. 2d 598, 613 (2010). ¶ 29 To obtain relief under the plain

- error doctrine, “a defendant must first show that a clear or obvious error occurred. [Citation.] In the sentencing context, a defendant must then show either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error was so egregious as to deny the defendant a fair sentencing hearing. [Citation.]” Hillier , 237 Ill. 2d at 545.
Defen dant ar gues that his claim is reviewable under either prong of the plain

- error doctrine

. How ever, the first step in our plain

- error analysis is to determine whether any error occurred

. People v. Eppinger , 2013 IL 114121, ¶ 19. ¶ 30 W e note the precise nature of defendant’s challenge to his sentence. D efendant does not contend that the trial court abused its dis cretion in the course of weighing relevant sentencing factors. In stead, he claims the court relied on an improper , non - existen t sentencing factor ; namely , that J.Z. faced an ongoing risk of HIV infection from his encounter with defendant. ¶ 31 “ We review a sentence that falls within statutory limits for an abuse of discretion. [Citation.] However, when a trial court considers an improper factor in aggravation, the trial court abuses its discretion. [Citation.]” People v. Minter , 2015 IL App ( 1st ) 120 958 , ¶ 147

. “Where aNo. 1-18-0731

- 11 - trial court considers an improper factor in aggravation, we must order resenten cing if we cannot determine the weight that the trial court gave to the aggravating factor .” Id. ¶ 152. ¶ 32 The issue of whether the trial court considered an improper factor in imposing sentence presents a question of law , which we review de novo

. People v. Williams , 2018 IL App ( 4th) 150759, ¶ 18 (citing People v. Abdelhadi , 2012 IL App (2d) 111053, ¶ 8). “ It is the defendant’s burden to affirmatively establish that the sentence was based on improper considerations [citation], and we will not reverse a sentence imposed by a trial court unless it is clearly evident the sentence was improperly imposed [citation.] ” People v. Bowen , 2015 IL App (1st) 132046, ¶ 49. ¶ 33 Furthermore, in deciding whether the trial court applied an improper factor, t here is a “strong pres umption that the trial court based its sentencing d etermination on proper legal reasoning , and a court of review should consider the record as a whole, rather than focusing on a few words or statements by the trial court.” (Internal quotation marks omitted .) Williams , 2018 IL App ( 4th ) 150759 , ¶ 18. In undertaking our analysis, this court “consider[s] the record as a whole” and “will not focus on isolated statements” in determining whether sentence was improperly imposed. Bowen , 2015 IL App (1st) 132046, ¶ 50. ¶ 34 In this case, defen dant ’s argument depends upon the interpretation of the trial court’s following rema rks: “So this young child and his family * * * were required to trust that no one would seek to do this to him and to expose him to the potentiality that he could be infected, a potentiality that doesn’t go away on the day you get these drugs. A potentiality that for all I know and, frankly, for all pharmacology knows and science and medical people know, isn’t necessarily sure won’t lead to deleterious events orNo. 1-18-0731

- 12 - deleterious results years later for all I know. So to engage in that conduct with an unknowing partner who’s 14 years of age is, in my estimation, extraordinarily aggravating.” ¶ 35 Defendant posits that these remarks indicate the court’s belief that, at the time of sentencing in March 2018 , J.Z. was still at risk of contracting HIV from his contact w ith defendant. Defendant claims that the court applied this “continuing” risk of HIV infection as an aggravating factorto impose the maximum sentence, despite the lack of evidence suggesting that J.Z. was still at risk of infection from the July 2015 encounter

. Th us, de fendant argues that the court considered an unsubstantiated non- existent aggravating factor

. ¶ 36 After rev iewing the court’s remarks in context of its other comments at sentencing , and keeping in mind the presumption that the court based its sentence on proper legal reasoning , we find the court’s remarks were not improper . Specifically, w e do not believe that the court ’s remarks

re garding the “potentiality” of HIV infection indicated its belief that , at the time of sentencing,
J.Z. was still at risk f rom contracting HIV from the encounter with defendant. Rather, in context, the court was elaborating on the risk that J.Z. was exposed to, at the time of the offense in July
2015. That is, the court was discussing the “potentiality” of infection and attendant consequences that J.Z. was exposed t o by defendant , in the course of emphasizing the seriousness of the offense

. ¶ 37 T he challenged remarks are consistent with the trial court’s other commentary at sentencing. B efore making the comments at issue, the court had noted that , due to medical advances, persons who are HIV positive can “engage in a regimen that ma intains their health and * * * at least prevent it for an appre ciable period of tim e from d eteriorating .” However , the cour t noted “there’s no guaran tee in that regard.” Similarly, the court noted that due to “ph armacologicalNo. 1-18-0731

- 13 - advances,” a person with HIV “might be personally confident * * * that they won’t infect somebody,” but that there was no “guarantee” of no transmission

. In sum, the court repeatedly emphasized that defendant knowingly exposed J.Z. to a risk of contr acting a health condition with long- term co nsequences. The challenge d commen t s are entir ely consi stent with th is overarching

concern . ¶ 38 T he isolated statements referenced by defendant do not show that the trial court relied up on an i mpro p eraggravating factoror imposed an increased sentence becau se it believe d that J.Z. was still at risk of HIV. Rather, the trial court was commenting on the risk of HIV transmission that defendant exposed J.Z. to at the time of the offense. Accordingly, d ef endant cannot meet his burde n to e stablish tha t the sent en ce was based on impr oper con siderations

. Bowen , 2015 IL App (1st) 132046, ¶ 49. ¶ 39 As we have determine d that there was no error, we need not go further in the plain

- error analysis or otherwise discuss defendant’s argument s regarding forfeiture. ¶ 40 Fo r the foregoing reasons, we affirm the judgment of the trial court. ¶ 41 Affirmed.