2018 IL App (5th) 150114
Ill. App. Ct.2018Background
- Defendant Jerry H. Bunning, convicted by jury of aggravated criminal sexual abuse for touching his under‑13 step‑granddaughter over her clothing; victim testified to multiple incidents and that she received counseling.
- Jury convicted; trial court ordered sex offender evaluation (low risk) and PSI. PSI noted prior minor conviction, steady employment, and recommended medium supervision if placed in the community.
- Victim’s mother submitted a victim impact statement describing counseling, missed school/work, and change in the child.
- At sentencing the court considered mitigating factors (low recidivism risk, family hardship) but found aggravating factors: psychological harm or threat thereof to the child, defendant’s position of trust, multiple incidents, concealment, and lack of remorse.
- Court sentenced defendant to five years’ imprisonment (within statutory 3–7 year range); post‑sentence motion to reduce was denied. Appeal challenges use of psychological harm as an aggravating factor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by considering psychological harm (or threat) to the child as an aggravating factor | State: record supports actual or reasonable inference of psychological harm (victim in counseling; mother’s impact statement); court may consider such harm | Bunning: no evidence of actual psychological harm beyond that inherent in the offense; considering it double‑counts the offense | Court affirmed: record supported finding of psychological harm or a reasonable inference; consideration was proper and sentence within statutory limits |
Key Cases Cited
- People v. Phelps, 211 Ill. 2d 1 (2004) (a factor inherent in an offense generally cannot be used again to enhance sentence, but rule not applied rigidly)
- People v. Huddleston, 212 Ill. 2d 107 (2004) (children are particularly vulnerable and sexual abuse commonly causes long‑term psychological harm)
- People v. Kerwin, 241 Ill. App. 3d 632 (1993) (emotional harm to child victim may be properly considered in aggravation)
- People v. Fisher, 135 Ill. App. 3d 502 (1985) (medically diagnosed psychological harm is not required; probability of harm can justify consideration)
- People v. Calva, 256 Ill. App. 3d 865 (1993) (holding it improper to consider psychological harm where no evidence of such harm was offered at sentencing)
- People v. Perruquet, 68 Ill. 2d 149 (1977) (sentences within statutory limits reviewed for abuse of discretion)