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09/15/95 PEOPLE STATE ILLINOIS v. REX BIRT

September 15, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
REX BIRT, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Vermilion County. No. 93CF295. Honorable John P. O'Rourke, Judge Presiding.

As Corrected December 6, 1995.

Honorable Robert J. Steigmann, J., Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Steigmann

JUSTICE STEIGMANN delivered the opinion of the court:

In November 1993, defendant, Rex Birt, pleaded guilty to aggravated criminal sexual abuse (720 ILCS 5/12-16(c)(1) (West 1992)) pursuant to an agreement with the State that the trial court would sentence him to three years' probation, subject to various conditions. The court later imposed the recommended sentence.

In February 1994, the State filed a motion to amend the terms of defendant's probation by adding the condition that he undergo sex-offender counseling and cooperate with any recommendations the counselors might make. The State subsequently amended its motion again to include conditions that (1) defendant sign releases of confidentiality, enabling the probation office and the agency providing the counseling to communicate with each other; and (2) defendant not consume alcoholic beverages while on probation. Defendant objected to the State's motion, and the trial court conducted a hearing and granted it. Defendant appeals, arguing that (1) the State's Attorney had no statutory authority to file a motion to amend the conditions of defendant's probation; and (2) the trial court erred in allowing the State's motion in the absence of some showing of either a violation of probation or a change of circumstances necessitating a change in his probationary conditions.

We affirm.

I. BACKGROUND

The aggravated criminal sexual abuse charge to which defendant pleaded guilty alleged that he committed an act of sexual conduct with N.L.G., a victim under 13 years of age when the act was committed. As a factual basis for defendant's plea of guilty, the prosecutor represented to the trial court that N.L.G. was 10 years old at the time of the incident, which occurred when she and her mother visited in defendant's home. On the date in question, N.L.G. thought defendant appeared drunk, and several times that day he "pawed" her, kissed her on the mouth using his tongue, and placed his hand underneath her skirt.

In February 1994, the State's Attorney filed a motion to amend the terms of defendant's probation. Defendant objected on the ground that the State's motion, which asked the trial court to impose more restrictive probationary conditions, was filed more than 30 days after sentencing. The court reserved ruling on that objection and conducted a hearing on the State's motion.

Defendant's probation officer, Mark Learnard, and Mary Lou Cooley, a program supervisor with the Center for Children's Services (CCS), the facility where defendant would receive counseling, both testified. Learnard said that at defendant's first interview, he madeno admission of guilt and gave Learnard the impression that he thought N.L.G. was responsible for what happened. During defendant's later visits with Learnard, defendant eventually acknowledged that he did put his hand between N.L.G.'s legs. Nonetheless, Learnard believed that defendant still was being manipulative, trying to protect himself, and not giving honest answers.

Learnard also discussed with defendant his need to avoid alcohol consumption, particularly in the presence of minors. Defendant ultimately agreed. Learnard then recommended that the conditions of defendant's probation be amended to require that he not consume alcohol and that he also undergo sex offender counseling. Learnard deemed the latter condition "exceptionally important in the sense that the defendant still has some issues he has to work out." Learnard further stated that it was extremely important for him to exchange information with CCS to facilitate its counseling of defendant, as well as Learnard's probationary supervision.

Cooley, the CCS supervisor, testified that defendant exhibited characteristics typically displayed by sex offenders, such as feeling sorry for himself that he got caught and having very little empathy for the victim. She thought group counseling would be most effective for him because sometimes "the other offenders help them work through some of their issues." She further explained that sex offenders can sometimes fool the general public, but they "can't buffalo other sex ...


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