NOTICE 2021 IL App (5th) 200328-U NOTICE Decision filed 08/03/21. The This order was filed under text of this decision may be NO. 5-20-0328 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for Rehearing or the disposition of IN THE limited circumstances allowed under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
MEGAN BUSH, ) Appeal from the ) Circuit Court of Petitioner-Appellee, ) Shelby County. ) v. ) No. 20-OP-111 ) TIMOTHY PEDIGO, ) Honorable ) Amanda S. Ade-Harlow, Respondent-Appellant. ) Judge, presiding. ________________________________________________________________________
PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Cates and Moore concurred in the judgment.
ORDER
¶1 Held: The circuit court’s plenary civil no contact order was not against the manifest weight of the evidence where the evidence established that the respondent engaged in nonconsensual sexual conduct for the petitioner’s gratification.
¶2 The petitioner, Megan Bush, filed a pro se petition pursuant to the Illinois Domestic
Violence Act of 1986 (Domestic Violence Act) (750 ILCS 60/101 et seq. (West 2020)),
requesting the circuit court to enter an emergency order of protection and a plenary order
of protection against the respondent, Timothy Pedigo. The circuit court determined that
Pedigo did not qualify as a family member as that term is defined in the Domestic Violence
Act. Therefore, the circuit court concluded that the Domestic Violence Act did not apply
1 and treated Bush’s pro se petition as a proceeding under the Civil No Contact Order Act
(740 ILCS 22/101 et seq. (West 2020)), rather than the Domestic Violence Act. After an
evidentiary hearing, the circuit court entered a plenary civil no contact order in favor of
Bush and against Pedigo. Pedigo now appeals from the circuit court’s civil no contact
order. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 Bush and Pedigo knew each other when they were children in the mid- to late-
1990s. Bush’s grandfather had been Pedigo’s stepfather during this time. The record
established that Bush and Pedigo, along with Bush’s two brothers, spent a lot of time
together as children, catching a bus to school from Pedigo’s house and playing together
after school. Bush and Pedigo parted ways when Bush’s grandfather died in 2000, and they
did not maintain any relationship afterwards.
¶5 Twenty years later, on September 8, 2020, Bush filed a petition pursuant to the
Domestic Violence Act seeking emergency and plenary orders of protection against
Pedigo. In her petition, Bush described the need for the order of protection as follows: “fild
[sic] sexual abuse against [Pedigo]. He has been trying to contact me in last 24 hours. Him
and his mother over the sexual abuse charges being filed with Shelby County *** for
something that happen [sic] when I was a child.”
¶6 On the same day, the circuit court conducted an ex parte hearing on Bush’s request
for an emergency order of protection. Bush testified at the hearing, but the record does not
include a transcript of the ex parte hearing. In a docket entry, the circuit court noted that
Pedigo did not qualify as a family member as defined under the Domestic Violence Act. 2 Therefore, the circuit court stated in its docket entry that it converted Bush’s petition into
a request for a civil no contact order1 and entered an emergency civil no contact order
against Pedigo instead of an emergency order of protection. The emergency civil no contact
order prohibited Pedigo from, among other things, coming within 1000 feet of Bush or
entering Bush’s place of residence or place of employment. The circuit court scheduled a
September 29, 2020, hearing on Bush’s request for a plenary civil no contact order.
¶7 The parties appeared in court on September 29, 2020, for an evidentiary hearing on
Bush’s petition. Bush appeared pro se and Pedigo was represented by counsel. At the
hearing, Bush testified that when she was five years old, she was “molested” by Pedigo at
her grandfather’s house and that the abuse continued until she was eight or nine years old.
The incidents took place between 1995 and 1998. In 1995, Pedigo would have been 11 or
12 years old. Specifically, Bush testified about an incident during this period when she was
walking home from a friend’s house when she encountered Pedigo and one of his friends
and they all ended up at Pedigo’s house. Bush testified that Pedigo “proceeded to pull my
pants off and examine me. And [Pedigo] was trying to explain to his friend how girls liked
to be touched.” Bush also described another incident when Pedigo, Bush, and Bush’s
brothers were playing hide-and-go-seek, and Pedigo forced Bush to hide with him. Bush
testified, “He would try to get me to touch him as he was touching me.” Bush testified that
when she told Pedigo that she did not want to touch him, Pedigo convinced Bush’s brother
1 The Domestic Violence Act allows for the issuance of a civil order of protection for persons in a dangerous dating or familial relationship (see 750 ILCS 60/201(a) (West 2020)), and section 213 of the Civil No Contact Order Act provides that civil no contact orders are also available for victims of sexual assault. See 740 ILCS 22/213 (West 2020). 3 to tie her to a swing set. According to Bush, she was left tied up for 45 minutes and
dislocated her shoulder trying to escape from being tied up. Bush also told the circuit court
about an incident where she “had refused” and Pedigo told her that he would push her
brothers in front of a train if she told anyone. Bush testified that the “abuse didn’t stop until
after [her] grandpa passed away. We had moved.” The grandfather passed away in 2000,
and Bush and Pedigo parted ways and did not maintain any relationship. Bush told the
circuit court that she never reported the incidents because Pedigo had told her that he would
hurt her brothers if she did, although she talked about the incidents with her friends
throughout her childhood. According to Bush, she first mentioned the incidents to her
mother in 2006 or 2007 when she was a junior in high school.
¶8 These past incidents resurfaced in Bush’s life in early September 2020 when one of
Bush’s acquaintances, Brandon Bierman, began asking Bush questions about Pedigo.
Brandon was divorcing his wife, Natasha Bierman, who had begun dating Pedigo a few
months earlier. According to Bush, Brandon was concerned about the custody of his
children and Bush volunteered to prepare a statement about her past incidents with Pedigo
for Brandon to use in his custody battle with his ex-wife. Bush prepared the statement, but
the record on appeal does not include Bush’s statement or a description of its contents.
After writing the statement for Brandon, Pedigo began sending Bush messages through the
Facebook messenger application. Specifically, Pedigo asked Bush in a Facebook message,
“Are you going to put me in jail im [sic] not running if so I just need to prepare my 11 yr
old son for it is all.” In a second message Pedigo wrote, “Plz one way or another answer
for his sake plz.” Bush testified that she did not reply. After receiving these messages, Bush 4 decided to speak with law enforcement officers and seek an order of protection. According
to Pedigo, he sent Bush the messages a few days before Bush filed her petition seeking an
order of protection. Bush told the court that she wanted Pedigo to leave her and her family
alone, adding “I have lived through enough.”
¶9 At the hearing on Bush’s petition, Bush’s brother, Matt Musson, testified about text
messages he exchanged with Pedigo over the course of two days in September 2020,
around the time Bush filed her petition. Musson explained that he had been friends with
Pedigo since they were kids. In a text to Musson, Pedigo wrote that Bush was “pressing
charges on me cause of this.” Pedigo also wrote, “just being prepared for it need to know
if I need to expect the cops at the door is all.” Musson responded in a text that he did not
know and that no one was talking to him about it. Pedigo then mentioned in a text to
Musson that he was afraid of losing his son and that he was going to assume he needs to
get ready “to get picked up at some point.” Musson also testified that when he and Bush
were children, there were “plenty of times” when they were alone with Pedigo with no
adults around.
¶ 10 In his defense, Pedigo presented the testimony of his mother, Mary Gordon. As
explained above, Gordon was married to Bush’s grandfather prior to the grandfather’s
death in 2000. Gordon testified that she got to know Bush in the 1990s when Bush spent
time at Gordon’s home while Pedigo lived at the home as well. Gordon told the court that
Bush was at her home “all of the time.” Bush, Pedigo, Musson, and Bush’s other brother
caught a school bus from Gordon’s home and the children often returned to Gordon’s home
after school. Gordon also worked with Bush’s mom at the same place of employment. 5 According to Gordon, Bush never mentioned to her that Pedigo had acted inappropriately
at any time. In addition, no one else ever told Gordon that something inappropriate might
have happened or had been happening between Bush and Pedigo. Gordon did not see any
signs that something was happening between them, and she noticed no changes in Bush’s
behavior during this period. Gordon testified that she first learned of Bush’s allegations
when Pedigo told her.
¶ 11 Pedigo also presented the testimony of his girlfriend, Natasha Bierman, who was
previously married to Brandon. Natasha testified that she learned about Bush’s allegations
against Pedigo when Brandon sent her a message telling her that Bush was going to go
after Pedigo.
¶ 12 Pedigo testified that he had one 11-year-old son who he saw on weekends during
the school year. He testified that he started dating Natasha Bierman when she was still
going through her divorce from Brandon. According to Pedigo, growing up, his
relationship with Bush and her brothers was that of brothers and sisters. Pedigo explained
that Bush and her brothers were dropped off at his house to catch a bus for school, and
sometimes Bush and her brothers were dropped off at his house after school. According to
Pedigo, during this period, his stepfather (Bush’s grandfather) was “always present.” On
cross-examination, Pedigo admitted that “as kids living in the country, of course, we’re
going to run around in the country and be alone.”
¶ 13 Pedigo denied ever inappropriately touching Bush. He testified that, upon learning
of Bush’s allegations, he reached out to Bush and to Bush’s brother, Matt Musson, because
he was concerned about how the allegations might impact his relationship with his 11-year- 6 old son. He was also concerned that the allegations could impact his career and lead to his
arrest. Pedigo told the court that the allegations against him were false and that he believed
the allegations were merely for Brandon to use against him and Natasha and for Brandon
to gain an advantage in his custody battle with Natasha.
¶ 14 At the conclusion of the hearing, the circuit court noted that the case centered on a
credibility determination, i.e., whether or not Bush’s testimony was credible. The circuit
court specifically found Bush’s testimony to be credible. The circuit court also found
Pedigo’s texts to be significant as the texts caused the court “significant concern that these
events that [Bush] has testified to did in some way, shape, or form occur.” The circuit court
granted Bush’s request for a plenary no contact order, entering a no contact order that was
in effect for a period of two years, until September 22, 2022. Pedigo now appeals from the
plenary civil no contact order.
¶ 15 ANALYSIS
¶ 16 The purpose of the Civil No Contact Order Act is to provide a civil remedy to protect
victims of sexual assault from future interactions with the offender. 740 ILCS 22/102 (West
2020). Under the Act, a petition may be filed “by any person who is a victim of non-
consensual sexual conduct or non-consensual sexual penetration, including a single
incident of non-consensual sexual conduct or non-consensual sexual penetration.” Id.
§ 201(b)(1). The statute defines “non-consensual” as a “lack of freely given agreement.”
Id. § 103. “Sexual conduct” means “any intentional or knowing touching or fondling by
the petitioner or the respondent, either directly or through clothing, of the sex organs, anus,
or breast of the petitioner or the respondent, or any part of the body of a child under 13 7 years of age, *** for the purpose of sexual gratification or arousal of the petitioner or the
respondent.” (Emphasis added.) Id. The standard of proof in a civil no contact order
proceeding is a preponderance of the evidence. Id. § 204(a). Section 213(a) of the Civil No
Contact Order Act states that “[i]f the court finds that the petitioner has been a victim of
non-consensual sexual conduct or non-consensual sexual penetration, a civil no contact
order shall issue.” (Emphasis added.) Id. § 213(a).
¶ 17 On appeal, the respondent argues that our review of the circuit court’s order is under
the de novo standard of review. This is incorrect. Under the statute, the sole issue is whether
nonconsensual sexual conduct occurred. See id. A “single incident” is sufficient to prove
the petition. See id. § 201(b)(1). The circuit court must consider the evidence and determine
whether Bush proved that nonconsensual sexual conduct occurred between her and Pedigo.
See id. § 204(a). This is a factual inquiry that we will not overturn unless the circuit court’s
finding is contrary to the manifest weight of the evidence. J.M. v. Briseno, 2011 IL App
(1st) 091073, ¶ 39; see also McNally v. Bredemann, 2015 IL App (1st) 134048, ¶ 12;
Nicholson v. Wilson, 2013 IL App (3d) 110517, ¶ 22. “A finding is against the manifest
weight of the evidence only if the opposite conclusion is clearly evident or if the finding
itself is unreasonable, arbitrary, or not based on the evidence presented.” Best v. Best, 223
Ill. 2d 342, 350 (2006).
¶ 18 Pedigo argues that the circuit court erred in issuing the plenary civil no contact order
because Bush “offered absolutely no evidence that the conduct was done for the sexual
gratification of [Pedigo] or [Bush] as required under the statute and caselaw.” As noted
above, in order to be protected under the Civil No Contact Order Act, Bush had the burden 8 of proving that Pedigo committed an act of nonconsensual “sexual conduct” and the statute
defines “sexual conduct” as sexual acts committed “for the purpose of sexual gratification
or arousal of the petitioner or the respondent.” 740 ILCS 22/103, 213(a) (West 2020).
Accordingly, we agree with Pedigo that part of Bush’s burden of proof was proving by a
preponderance of the evidence that Pedigo’s acts were committed for purposes of sexual
gratification or arousal. We disagree, however, with Pedigo’s assertion that Bush failed to
present sufficient evidence from which the trier of fact could find that she proved this
element of her claim.
¶ 19 As noted by the circuit court, the issues in this case center on Bush’s credibility, and
the circuit court specifically found Bush to be a credible witness. “A reviewing court will
not substitute its judgment for that of the trial court regarding the credibility of witnesses,
the weight to be given to the evidence, or the inferences to be drawn.” Best, 223 Ill. 2d at
350-51. We give deference to the trial court as the finder of fact because it is in the best
position to observe the conduct and demeanor of the parties and witnesses. In re D.F., 201
Ill. 2d 476, 498-99 (2002).
¶ 20 Bush testified about an incident that occurred when Pedigo was between 11 and 16
years old; Pedigo pulled Bush’s pants down and examined her private areas in front of his
friend, explaining to his friend “how girls liked to be touched.” The circuit court considered
this testimony and concluded that it was sufficient evidence to establish that Pedigo
committed the specific acts described by Bush for purposes of Bush’s sexual gratification.
The circuit court explained its ruling as follows:
9 “The question―and then the question becomes the sexual conduct. You are
correct. There must be testimony with regards to some kind of sexual gratification.
A failure to provide sexual gratification, or something to suggest that there was a
sexual gratification gives the court the power to deny the request for the order of
protection.
*** There was that testimony, and I will tell you where it comes from. I do
find [Bush’s] testimony to be credible. And when she testified as to Mr. Pedigo and
his friend and showing his friend ‘this is how girls like to be touched’ that testimony
right there. It is not for the sexual gratification necessarily of the respondent, but it
is also for the purpose of the sexual gratification of the petitioner, of the victim. And
that is where the statute gets lost sometimes. We all assume that it is always the
person that does the act, or is alleged to have done the act. If they are doing it for
their own sexual gratification. But the law was written to understand that it is quite
possible that the defendant doesn’t do it for their [sic] own, but that they believe that
they are doing it for the victim.
And that, to a certain extent, is where this court is at with the testimony
provided, coupled with the concerns or the text messages and the FaceBook
messages from Mr. Pedigo to Ms. Bush. For the purposes of this type of hearing,
certainly is not made beyond a reasonable doubt, because that is not my job here.”
¶ 21 Considering Bush’s testimony in light of the statutory language, we cannot reverse
the circuit court’s finding that Pedigo engaged in sexual conduct for Bush’s gratification.
Pedigo pulled Bush’s pants down and explained to his friend how girls liked to be touched 10 while doing so. This is evidence from which a trier of fact can find that Pedigo touched
Bush “for the purpose of sexual gratification or arousal of the petitioner.” 740 ILCS 22/103
(West 2020). Pedigo’s statement while committing the act at issue provided evidence from
which the trier of fact could find that Pedigo’s actions were overtly sexual. As a result, the
trial court’s finding that Pedigo acted with the purpose of sexually gratifying Bush was not
against the manifest weight of the evidence, and we have no basis to reverse this factual
finding.
¶ 22 In support of his argument that the circuit court erred in entering the plenary civil
no contact order, the respondent cites In re Matthew K., 355 Ill. App. 3d 652 (2005), and
In re E.R.E., 245 Ill. App. 3d 669 (1993). Both cases involved minors who were adjudged
delinquent of aggravated criminal sexual abuse, and similar to the present case, they
involved minors accused of touching other minors. These cases are distinguishable.
¶ 23 The adjudications in each case were reversed based on the finding that the State had
presented insufficient evidence of the minor’s intent. In re Matthew K., 355 Ill. App. 3d at
653; In re E.R.E., 245 Ill. App. 3d at 670. In each case, the appellate court based its
reasoning on the proposition that “it is not justified to impute the same intent into a child’s
action that one could reasonably impute into the actions of an adult.” (Internal quotation
marks omitted.) In re Matthew K., 355 Ill. App. 3d at 655; In re E.R.E., 245 Ill. App. 3d at
673. The courts held that when a case involves alleged sexual conduct by a minor, the act
itself does not stand to show a purpose of sexual gratification. In re Matthew K., 355 Ill.
App. 3d at 655; In re E.R.E., 245 Ill. App. 3d at 673. Instead, the State must present
11 sufficient evidence to show that a minor acted with the intent of sexual gratification. In re
Matthew K., 355 Ill. App. 3d at 655.
¶ 24 In the present case, the fact finder did not impute Pedigo’s intent merely from his
actions alone. Instead, the circuit court considered all the evidence presented at the hearing,
including statements Pedigo made at the time of his acts from which the trier of fact could
infer that Pedro committed the acts with the required intent, i.e., Pedigo expressly stating
that he was showing how girls like to be touched. In addition, the circuit court considered
evidence of Pedigo’s consciousness of guilt as reflected in his threats to harm Bush’s
brothers if she reported him. In re D.H., 381 Ill. App. 3d 737, 741 (2008) (“Statements that
show a consciousness of guilt can support the inference that the accused intended to gratify
his sexual desires.”). The circuit court also considered Pedigo’s Facebook messages to
Bush as corroborating evidence as follows:
“[Pedigo’s statement to Bush in his Facebook message] starts off, ‘Are you going
to put me in jail?’ It is not an innocent statement necessarily *** and coupled with
the idea that, ‘I am not running. So I just need to prepare my 11-year-old son for it
is all.’ It causes this court some significant concern that these events that [Bush] has
testified to did in some way, shape, or form occur.”
¶ 25 Also, we note that in both In re Matthew K. and In re E.R.E., the State was obligated
to prove intent of sexual gratification with proof beyond a reasonable doubt. In re Matthew
K., 355 Ill. App. 3d at 655; In re E.R.E., 245 Ill. App. 3d at 673. In the present case, we
offer no opinion on whether the evidence adduced at the hearing would be sufficient to
establish that Pedigo committed an act of “sexual conduct” with proof beyond a reasonable 12 doubt. In the present case, in order for Bush to be entitled to a civil no contact order, she
was required to prove Pedigo’s intent only by a preponderance of the evidence, not beyond
a reasonable doubt. As noted above, Bush presented sufficient evidence from which a
rational trier of fact could infer the necessary findings for the issuance of a civil no contact
order. The record is devoid of any contrary evidence that would support a finding that
Pedigo’s actions were merely curiosity-satisfying and not intended for either his or Bush’s
sexual gratification or arousal.
¶ 26 We also note that in In re Matthew K., a child psychiatrist deemed “eminently
qualified” by the circuit court opined that the respondent was a socially inept 12-year-old
whose motive in touching the victim was unclear. The doctor said his “strong opinion” was
that the respondent had no interest in sexual gratification or arousal. In re Matthew K., 355
Ill. App. 3d at 654. In reversing the aggravated criminal sexual abuse, the In re Matthew
K. court concluded that the intent of sexual gratification could not be inferred from the acts
of the “socially deficient” boy. Id. at 655. In the present case, unlike the facts in In re
Matthew K., there was no testimony from an expert witness who believed that the requisite
intent should not be attributed to Pedigo. In addition, as noted above, the circuit court did
not infer intent based only on Pedigo’s act but also based intent on Pedro’s expressly
declared intent in performing the act as well as threats he made to keep Bush quiet about
his conduct.
¶ 27 We further note that in In re E.R.E., there was no evidence of statements revealing
the respondent’s intent before, during, or after the alleged touching. Here, as we noted
above, Pedigo specifically declared his intent to show his friend how girls like to be 13 touched. Nor was there evidence in In re E.R.E. of the respondent acting as if he had done
something wrong. Here, Pedigo threatened harm to Bush’s brothers if she said anything
about his actions.
¶ 28 “[T]he issue of intent of sexual gratification in minors must be determined on a case-
by-case basis.” In re Matthew K., 355 Ill. App. 3d at 656-57. There is “no bright-line test.”
Id. at 657. The trier of fact must consider all of the evidence before deciding whether intent
can be inferred. Id. In the present case, viewing all of the evidence presented at the hearing,
we conclude that a factfinder could rationally find by a preponderance of the evidence that
Pedigo engaged in sexual conduct against Bush for the purpose of Bush’s sexual
gratification. Therefore, the evidence presented at the hearing sufficiently supported the
circuit court’s issuance of a plenary civil no contact order, and we must affirm.
¶ 29 CONCLUSION
¶ 30 For the foregoing reasons, we affirm the circuit court’s judgment.
¶ 31 Affirmed.