Opinion
No. 2-15-0588
09-29-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT R. SCHAMNE, Defendant-Appellant.
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).
Appeal from the Circuit Court of Kane County.
No. 13-CF-602
Honorable John A. Barsanti, Judge, Presiding.
PRESIDING JUSTICE HUDSON delivered the judgment of the court.
Justices Hutchinson and Spence concurred in the judgment.
ORDER
¶ 1 Held: In sentencing defendant for sex offenses, the trial court did not abuse its discretion by considering in aggravation the psychological harm to the victim: the State presented evidence of such harm, and defendant did not establish that such harm was only that which was implicit in the offenses.
¶ 2 Defendant, Robert R. Schamne, entered a plea of guilty in the circuit court of Kane County to a single count each of child pornography (720 ILCS 5/11-20.1(a)(1)(i) (West 2012)) and criminal sexual assault (720 ILCS 5/11-1.20(a)(3) (West 2012)). In exchange for defendant's plea, other charges were nol-prossed, but there was no agreement as to defendant's sentence. Following defendant's sentencing hearing, the trial court imposed consecutive prison
terms of eight years for child pornography and six years for criminal sexual assault. On appeal, defendant argues that the trial court erred by considering psychological harm to the victim to be a factor in aggravation for sentencing purposes. We affirm.
¶ 3 As pertinent here, defendant was charged with criminal sexual assault under section 11-1.20(a)(3) of the Criminal Code of 2012 (Code) (720 ILCS 5/11-1.20(a)(1) (West 2012)), which provides that a person commits that offense by committing an act of sexual penetration when the victim is a family member and is under 18 years of age. Defendant was charged with child pornography under section 11-20.1(a)(1)(3) of the Code (720 ILCS 5/11-20.1(a)(3) (West 2012)), which provides, in pertinent part, that a person commits that offense by "produc[ing] any *** videotape or other similar visual portrayal or depiction by computer which includes a child whom the person knows or reasonably should know to be under the age of 18 *** engaged in [specified activities]." The victim of the offenses was defendant's half-brother, A.S.
¶ 4 Defendant entered his guilty plea on September 26, 2014. As the factual basis for the plea, it was stipulated that, if the matter proceeded to trial, A.S. would testify that between November 18, 2012, and April 3, 2013, he was under the age of 18 and lived with defendant as a household or family member. Between those dates, defendant knowingly placed his penis in A.S.'s anus. Defendant was interviewed by investigators and he admitted having sexual contact with A.S. Additionally, defendant's computer was searched and was found to contain a video recording of defendant placing his penis in A.S.'s mouth.
¶ 5 At defendant's sentencing hearing, the State presented evidence that a video recording found on defendant's computer showed defendant and A.S. engaging in acts of oral and anal penetration. The video recording was admitted into evidence and the trial court viewed it. Detective Matthew Dean of the Geneva police department testified that the police initiated an
investigation of defendant based on information obtained during a meeting of a youth counseling program called Operation Snowball. At least two of A.S.'s friends approached Sergeant Baker of the Geneva police department, who was leading the meeting. One of A.S.'s friends, Andryi McFarland, relayed to Baker that A.S. had told him that he was being sexually abused at home and that he was engaging in self-harm that consisted of scalding himself in the shower so that he could feel something. Dean spoke with A.S. in April 2013. A.S. was 15 years old. Although they discussed the sexual abuse by defendant, they did not discuss whether A.S. was harming himself. Dean also spoke with defendant, who indicated that he had been sexually abused himself.
¶ 6 Pam Ely, an investigator with the Kane County Children's Advocacy Center, testified that she spoke with A.S. According to Ely, A.S. was quiet, tearful, and hesitant in answering her questions. A.S. told her that defendant had been sexually abusing him for years. They would put their penises in one another's mouths. Ely testified that defendant was approximately five years older than A.S. A.S. believed that the abuse could have started when he was eight years old. Ely also spoke with McFarland. McFarland showed Ely a text message from A.S. saying that he had been sexually assaulted by his brother. A.S. did not want McFarland to tell the police or his family members. A.S. told McFarland that he hated his brother and was scared of him. The text message also indicated that A.S. was engaging in self-harming behavior involving hot showers.
¶ 7 In pronouncing sentence, the trial court reviewed the applicable statutory factors in aggravation and mitigation. In mitigation, the court found that defendant's conduct did not cause or threaten serious physical harm (730 ILCS 5/5-5-3.1(a)(1) (West 2012)) and that defendant did not contemplate that his conduct would cause or threaten serious physical harm (730 ILCS 5/5-5
3.1(a)(2) (West 2012)). The court explained that, because penetration was an element of the offenses, it could not be considered to be serious physical harm for sentencing purposes. In aggravation, the trial court found that defendant's conduct caused or threatened serious harm (730 ILCS 5/5-5-3.2(a)(1) (West 2012)). The court noted that it was proper to consider psychological harm. The court added:
"We didn't get a lot of testimony about psychological damage. Just what the professionals have observed with [A.S.] when they interviewed him, when they talked to him, with this testimony concerning him trying to hurt himself. I think he was reaching out at some point to people to try to let them know what was going on.
I think [A.S.] is damaged. I think from what I can tell right now, it has caused [A.S.] serious and—caused and threatened him serious psychological harm."
The court found that defendant had a history (albeit not a serious one) of delinquency or criminal activity (730 ILCS 5/5-5-3.2(a)(3) (West 2012)). The court also found that defendant held a position of trust or supervision in relation to A.S. (730 ILCS 5/5-5-3.2(a)(14) (West 2012)). The court also noted that defendant had been abusing A.S. for a long period and did not stop until he was caught. As noted, the court sentenced defendant to consecutive prison terms of eight years for child pornography and six years for criminal sexual assault. Defendant moved to reconsider the sentences. The court denied the motion, and this appeal followed.
¶ 8 Defendant argues that the trial court erred in considering psychological harm to A.S. as a factor in aggravation for purposes of sentencing. Citing People v. Calva, 256 Ill. App. 3d 865, 875 (1993), defendant contends that psychological harm is implicit in sex crimes committed against children and may not be considered a factor in aggravation. In Calva, the defendant pleaded guilty to six counts of aggravated criminal sexual assault. The six counts were based on
only three physical acts. For each act, the defendant was charged under two theories. Three counts charged that the defendant committed an act of sexual penetration by the use of force or threat of force and caused bodily harm. Instead of charging bodily harm, the other three counts charged that the defendant was 17 or older and that the victim was under the age of 13. The Calva court held that, because the defendant had committed only three physical acts, only three convictions could stand, and three would have to be vacated. Although the court did not decide which convictions to vacate, it did consider sentencing issues applicable to counts charged under each theory. Of relevance here, the court considered whether psychological harm could be considered in aggravation with respect to the convictions under each theory.
¶ 9 With respect to the convictions under the theory of force and bodily harm, the court observed:
"[C]ases have held that it can be inferred that a child who is the victim of sexual assault has sustained psychological damage. [Citation.] However, no evidence was offered to show any psychological harm to [the victim]. Therefore, it would seem that the degree of any psychological harm used in aggravation would be minimal, as it would be limited to the degree of harm inherent in any aggravated criminal sexual assault of a child." Id. at 875.
¶ 10 With respect to the convictions based on the age of the defendant and of the victim, the Calva court held that, because the victim's age was an element of the offense, psychological harm could not be considered in aggravation without evidence of psychological harm "beyond the harm implicit in any sexual assault against a child." Id. at 877. In support of this holding, the Calva court cited People v. Conover, 84 Ill. 2d 400 (1981). In Conover, our supreme court considered the application of the statutory factor in aggravation that "the defendant received
compensation for committing the offense." Ill. Rev. Stat. 1978 Supp., ch. 38, ¶ 1005-5-3.2(a)(2). At issue was whether proceeds from a theft or a burglary with intent to commit theft qualified as "compensation." In holding that they did not, the court reasoned as follows:
"The legislature has established the range of penalties to be imposed in burglary [citation] and in theft [citation] ***. Inasmuch as most burglaries and every theft involve proceeds, it is reasonable to conclude that the legislature already considered that factor in establishing the penalties. If the General Assembly had intended that proceeds be utilized again to impose a more severe penalty for those offenses, such intent would be more clearly expressed. Consequently, we believe receiving compensation for committing the offense under the statute applies only to a defendant who receives remuneration, other than proceeds from the offense itself, to commit a crime. It is reasonable to conclude that *** the legislature intended to impose a harsher sentence on one who is paid to commit a burglary or theft than on one who commits it on his own volition. As the State recognized, the statute at issue is general in nature and applies to all violations of the Criminal Code. We hold that section 5-5-3.2(a)(2) of the Unified Code of Corrections may be considered as a factor in aggravation only when one is remunerated, as explained above, to commit an offense, whether the offense is burglary or theft, where proceeds may be taken, or the crime is one that does not involve proceeds, e.g., aggravated battery." Id. at 404-05.
¶ 11 Consonant with Conover, when harm is implicit in an offense, the mere fact that the victim has been harmed cannot be considered as evidence in aggravation. However, our supreme court has made clear that the degree of harm may be taken into consideration. People v. Saldivar, 113 Ill. 2d 256, 269 (1986). As stated in Saldivar, "the commission of any offense,
regardless of whether the offense itself deals with harm, can have varying degrees of harm or threatened harm. The legislature clearly and unequivocally intended that this varying quantum of harm may constitute an aggravating factor." Id. Thus, where age is an element of a sex offense—as it was here—the trial court may not simply rely on the implicit inference of psychological harm as an aggravating factor. Under Saldivar, however, other evidence of harm may be considered to evaluate the degree of harm, which may then be considered as evidence in aggravation.
¶ 12 The trial court's ruling here is consistent with these principles. The court did not merely infer that, because A.S. had been sexually assaulted, he had been psychologically harmed. Rather, the court's determination that A.S. was psychologically harmed was based on A.S.'s reports, in text messages to a friend, that he engaged in a form of self-harm, namely that he was scalding himself with hot water in the shower. According to defendant, Calva requires "specific evidence" of psychological harm. However, Calva held merely that the inference of harm that is implicit in the crime itself is insufficient. Although Calva requires an independent showing of psychological harm, the court did not opine on what sort of independent showing of psychological harm would suffice.
¶ 13 Defendant argues that "the State's evidence failed to demonstrate psychological harm to A.S. beyond the harm inherent in the underlying offenses." We note that the argument presupposes some ascertainable baseline of harm against which to compare the particular harm in this case. However, defendant makes no effort to establish the baseline. Thus, the question raised by defendant's argument is not really whether A.S. suffered more harm than the baseline, but whether the evidence supports the trial court's finding as to the harm that A.S. suffered. We preface our discussion of the question with the observation that "evidentiary standards used in
sentencing are much less rigid than those used in the guilt-innocence phase of trial." People v. Rose, 384 Ill. App. 3d 937, 940 (2008).
¶ 14 In arguing that the evidence does not support the trial court's finding, defendant points out that neither Dean nor Ely personally spoke with A.S. about his self-harming behavior. In their testimony, they merely related what they had learned from text messages between A.S. and his friend. We acknowledge (as did the trial court) that the evidence of psychological harm was not abundant. We cannot say, however, that it was error to find that a 15-year-old boy who was reaching out to a friend with a report of self-harming behavior was exhibiting signs of psychological harm. Accordingly, we find no error in the trial court's consideration of psychological harm as a factor in aggravation.
¶ 15 For the foregoing reasons, the judgment of the circuit court of Kane County is affirmed. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).
¶ 16 Affirmed.