## I LLINOIS 

## O FFICIAL 

## R EPORTS Appellate Court

In re Terry H. , 2011 IL App (2d) 090909

Appellate Court Caption In re TERR Y H., a Minor (The People of the State of I llinoi s , Petitioner-Appellee, v. Terry H., Respondent-Appellant).

District & No. Second District Docket No. 2–09–0909

Filed June 7, 2011

Held ( N ote: This s yllabu s constitutes no part

of the opinion of the court but has been prepared by th e Reporter of Decisionsfor the conv en ience of the reader. ) The trial court’s order revoking responde nt’s supe rvisio n imposed following his adjudication of delinque n cy for a ggravated criminal sexual abuse was affirmed, since there wassufficient evidence that he fail edto “part

icipate” in counse

ling, regardle ss of his c laims that it i s difficul tfor teens to discuss sexual matter s in a group setting and that his mental heal th iss ues made such discussions ev en more d ifficult
, especia lly when the re was e vidence that he wa s capabl e of participating and simply chose not to, and, there fore, the trial court’s determination that the State met its burden of proof on the issue of revoking respondent’s super visi on was not against the manifest weight of the evidence.

Decision Under Review Appeal from th e C ir cu it Co ur t o f W in ne ba go Co un ty, No. 06–JD–67; the Ho n. K. P atric k Yarbr ough, J udge, p resid ing.

Judgment Affirmed.-2-

Counsel on Appeal Thomas A. Lilien and Patrick M. Carmod y, both of State A

ppellate Defend er’s Of fice, of Elgin, f or appellant.

Joseph P. Bruscato, State’s Attorney , of Rockford (Lawr ence M. Bauer

a nd Scott Jacobson, both of State’s Attorneys Appellate Prosec utor’s Office, of counsel), for the People.

Panel JUSTICE HUDSON delivered the judgment of the court, with opinion. Presiding Just

ice Jorg ens en a

nd Ju stice H utchinson concurred in the judgment and opinion.

OPINION

¶ 1 Terry

H. appeals from an order revoking his sup er vision following his adjudication of delinquency

for aggr avated c riminal se xual abuse

(720 IL CS 5/12–16(c)(2)(i) (West 2006)). He contends that there was insufficient evidence that he violat ed the te rms of his supervision. We affir m.

¶ 2 I. BACKGROUND ¶ 3 In February

2006, a delinquency

petition wa s filed against Terry , alleg ing that he committed do me st ic ba tt er y. In March 2006, he wa s placed on probation, ordered to perform public service, and ordered to pay court c o sts. An order that he serve 30 day s in detention was stayed. ¶ 4 On August 14, 2006, a supplementaldelinquency pe tition was filed, alleging that Te rr y, who was 15 at the t

ime, committed ag grava

ted criminal sexual

abuse by touching his penis to the buttoc

ks of a min or under

9 ye ars of a

ge. Und er an ag reemen t betwee n the par ties, Terry admitted the charge and was sentenc edto two y ears’ supervis ion, orde

red to co operate andparticip ate in counseling, and ordered not to have unsupervised c ontact with minors under 12 yea

rs of age. ¶ 5 On July 2, 2008, a petition to

revoke Terry ’s supervision was filed, alleging that Terr y had gone to Great America a musement 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 Sund be rg , a so ci al wo rk er wh o c ou ns el ed Te rr y, testifie d

. Sundberg began counseling Terr y in October 2007 on a

n individual basis. He then directed Terr y to take pa

rt in a we ekly

sex-offe nder cou nseling group to further addressissues tha t caused Terry

to sexually act out. Based on a polygra ph, Sundberg believed that there were

ma tters not being addressed individually and that, by being

in both group and individual-3-

sessions, Terry mig

ht be in a better position to make prog ress. In June 2008, Sundberg discharged

Terry f rom the group. Sundber g testified that Terry was willing to talk about general issues but , when the

topic bec amefocused on his offender-specific conc erns, Terry woul d “shut down,” would not proceed, and would not explore the issues. I n Sun dberg’ s opinion, Terry w as not participating in the group counseling sessions. Sundberg stated that particip ants were e xpected to come prepared with assignments for the discussion and re spond to questions , and that

Terry had a pa

tte rn of no t participating. Sundberg discussed the problemwith Terry

more tha n once be fore dis charging him, but Terry’ s participation did not improve. On cross-examination, Sundberg stated that hewas aware that Terry was diagnosed withADHD, was bipolar, and had fetal alcohol syndrome. Sundberg agreed that some kids do better in group sessions th an other s. ¶ 7 Michelle

Eaton, Terry ’s probation officer, testified that she observed some of the group sessions, during which Terry would stat

e that he did not wa

nt to discu ss matter s. Eaton sa id that, on ma ny o cc as io ns , S un db er g t he n d is cu ss ed wi th Te rr y th at Te rr y had to talk about thin gs 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, Te rry would notsay any

thing, and he would put his head down and refuse to talk. After discussing withTerry w

hat would happen if he did not participate, his participation improvedsomewhat in that he would attempt to give feedback to other members of the group, but hedid not offer much in terms of his own treatment. Eaton stated that Terry was not working o n his own issues, in violatio n of part o f the re quireme nt of work

ing with t

he group. On cr

ossexamination, Ea to n a gr ee d t ha t i t i s e xt re me ly difficult foryou ng teen s to talk ab out their sexual dynamics in front of a group. She also

was aware of Terry ’s mental health issues but stated that she hadno reason to believe that he was unab le to comply with the requireme nt that h e parti cipat e in co unsel ing. ¶ 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 Te rry wa s assertive and how Terry be

haved in family counse

ling, the State objected based on rel evancy . 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 agroup of students in his age group, but it was a regular park day

andchildren of all ages were present. Sundberg testified that he discussed the trip wi t h Terry , who told Sundberg that

there was a chaperone and tha t the chaperone was unaware of Terry’ s status

as a sex offender. Likewise, Ea ton testified that she discusse d the trip with Terr y, w ho told her that the person supervising his group was not awa re 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 therestroom. 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 Terr y waspart of her group. The park itself was open to the public, and there were childre n of all ages there. She and Terr y 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-4-

on a ride , but she c ould not alway s see him w hileit 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 rig ht 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 outthat Terry’ s cell phone was turned off when she tried to call him after s he went to the restroom andcould not f

ind him whe

n she cam e out. Terr

y th en came out of the

restroo m, showed her that the phone was turned off, and turned it on. ¶ 11 Terry

argue d that the

State fa iled to show a violation of his supervi sion by a preponderance

of the evidence. The tria l court fo und that Te

rry viola ted the terms of h

is supervision. The court stated that it was well known that an amusement park is not limited to peopl e over 1 2 years of a ge and that Terry was outside his mother’s presence while at the park. The court also foun d that Terry purp osely refu sed to parti cipat e in co unsel ing. Ac co rd in gl y, the court revoked Terry ’s supervision, he was sentenc ed to probation, and he

was required

to register as a sex offender. Ter ry moved for r

econsideration, arguing that the Statefailed to prove that he violated the terms of his supervision. The motion was denied, and he a ppeals.

¶ 12 II. AN ALYS IS ¶ 13 Terry

argues that the trial cour t lacked suffic ient evid

ence to r evoke hissupervision, because there was no evidence that he had any unsupervised contact

withchildren under the age of 12 a nd bec ause t here wa s no pr oof th at his failu re to p artic ipate in cou nseli ng w a s willful in l

ight of h is mental h

ealth issues. ¶ 14 Minors in delinquency ca ses are entitled to the sam e du e process protections as adults who facecriminal charges. See 705 I LCS 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. McGu ire , 216 Ill. App. 3d 705, 709 (1991). A proposition is proved by a preponde rance of the evidence when the proposition is more probably true tha

n not true. People v. Drake
, 131 Ill. App. 3d 466, 472 (1985). The State may meet its bu rden us ing circumstantial evidence. See People v. Love , 404 I ll. App. 3d

784, 788 ( 2010); Peoplev. Kane , 136 I ll. App. 3d 1030, 1034 (1985) (allowing revocation of probation based on circumstantial evidence). “In evaluat

ing whe ther the State met its burden , the tria l judge i s free to resolve inconsistencies in the testimony and to accept or reject as much of ea ch witness’s testimony

as the judge pleases.” Love , 404 Ill. App. 3d at 787. “A trial court’s determination to revoke supervision will no t be disturbed unless it is against the manifest weight of the evidence .” McGuire
, 216 Ill. A

pp. 3d at 7 09. “A finding is against the manifest weight of the evide nce 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 revoca tion of superv ision as long as the opposite conclusion is not clea

rly evid ent. See id . (applying this proposition to revocation of probation). ¶ 15 Terry

relies primaril

y on two case s, People v. Prusak , 200 Ill. App. 3d 146 (1990), and Peoplev. McClellan
, 353 Ill. App. 3d 1027 (2004). In Prusak , the def endant pl eaded g

uilty-5-

to one count of aggrava

ted criminal

sexual abu se and was sentenced to a three-y ear term of probation. As a cond

ition of hisprobati on, the c ourt ordered the defendant to underg o a psy chiatric

evaluat ion and co operate

withany trea

tment and recommendation made by the evaluating agency . The State filed a petition to revoke the defendant’s probation because his tr eatm ent was discontinued “due to his lack of cooperation.” (I nternal quotation marks omitted.) Prusak , 200 Ill. App. 3d at 148. The S t ate contended that the defendant did not coopera te because

he continually denied a

ny specific me

mory of the offense. The trial court revoked the defendant’s probation and we r eversed. ¶ 16 We s tated in Prusak that it was clear that the defendant submitted to an eval uation
, attendedevery c ounseling session, and did e verythi ng that was required of him in the counseling sessions. The only thing that he did not do wa s 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 Similarto Prusak , the Fifth District in McClellan held that probation revoc ation 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 c ounse ling b ecause she maintained her innocence

. There, the court focused on the fact that

the defendant had been ordered only to “complete”

couns eling. McClellan , 353 Ill. App. 3d at 1034-35. ¶ 18 We have be en reluctant to expand the application of the ruling in Prusak . See Peoplev. Taube
, 299 I

ll. App. 3d

715, 723 ( 1998); McGuire , 216 Ill. App. 3d at 709. For example, in McGuire
, the defendant’s supervision was revok ed because he continually denied committing the offense, buthe did not have the memory problems seen in Prusak . In refusing to expand Prusak

to cover the facts of

that c ase, we noted that, in placing a defe ndant on supervision, a court may or der reasonable conditions relating to the nature of the offense or the rehabilitation of the defendant. We further noted that “ ‘a lthough the defen dant’s fault is, in most cases, of great importance in determining whether the condition s of pr obation have been violated, circumstances beyond the defe ndant’s c ontrol may

provide a n adequa te basis for prob ation revocation where s uch circ

umstance s frustra

te the fu ndamenta l purpose

or reason for the imposition of a sentence of probation.’ ” McGuire , 216 Ill. App. 3d at 710 (quoting People v. Davi s , 123 Ill. App. 3d 349, 354 (1984)). We determined that the defendant’s own con du ct 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 evidenc e. Id

. ¶ 19 Likewise, in Taube , we observed that “[a]lthough a court cannot order a sex offender

to be successfully

treated, a defenda nt order ed to unde

rgo tre atment mus t activel y pa rticipat e and cannot refuse to participate in his own treatment simply because he disag rees wit h the methods used.” Taube , 299 Ill. App. 3d at 723. Thus, we stated that “[o]ur holding in Prusak protect s on ly t ho se of

fe nd er s w ho ha ve ho ne st ly, si nc er el y, and completely c ooperated in a treatment progra m, y et have nonethele ss failed to recover. It does not, as in this case, provide

a shield fo r those offe nders who object t o the tre atment or

dered by the cour t and ref use to cooperate fully .” Id

. ¶ 20 Here, there was sufficient evidence that Terry failed to “participate” in cou nseli ng. Terry-6-

refused to take part in discussions at counseling sessions, even when the conseque nces of that failure were explained to him. Terry points to te stimony

that it is dif

ficult fo r teens to discuss sexual matters in a group setting, and he conte nds that hi s mental he alth issues made it even

more difficul

t. However, there was also evidence that Terry w as capable of participating and simply chose no t to. That d

oing 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 problemsbut other

wise par ticipate d in counseling. Accordingly , the trial court’s determin ation tha

t the State met its burden o f proof w as not ag ainst the manifest weight of the evidence and the court properly revoked Terry ’s supervision. ¶ 21 Terry

also alle ges tha

t the tr ial court erred by

not allowing tes timony about his assertiveness or how he behaved in family counseling sessions, arguing that it would have shown that he did not willfully ref use to part icipate. The State , howeve r, was re quired to show only that Terry

failed to participate. There was no element of willful ness to th at 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 a rgu es that the court erred when it found that he violated the terms of his supervision when he w ent to Great America. Beca use we determine that

the court did not err when it determined that Te

rry violated the termsof his supe

rvision by failing to partic ipate in counseling, we need not determine whethe r he also violated his supervision when he went to Great America.

¶ 23 II I. CONCL

USION ¶ 24 The trial court’s finding that the State sufficiently proved that Terry violated the terms of his supervision was no t agains t the manifest weight of the evidence. Acc ordingly, the judgment of the circuit court of Winnebago County is affirmed. ¶ 25 Affirmed.