People v. Bishop

Docket No. 99403.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
ROBBIE BISHOP, Appellee.
Opinion filed January 20, 2006.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, McMorrow,
Fitzgerald, Kilbride, and Karmeier concurred in the judgment and
opinion.
OPINION
Following a jury trial in the circuit court of Lake County,
defendant Robbie Bishop was convicted of four counts of criminal
sexual assault (720 ILCS 5/12B13(a)(1), (a)(3) (West 1998)) and four
counts of aggravated criminal sexual assault (720 ILCS 5/12B14(a)(2)
(West 1998)). The circuit court sentenced him to concurrent terms of
30 years= imprisonment for the aggravated criminal sexual assault
convictions and concurrent terms of 15 years= imprisonment for the
criminal sexual assault convictions. On appeal, the appellate court
concluded that convictions were proper on only two of the counts of
aggravated criminal sexual assault. Thus, the court vacated the
convictions for criminal sexual assault, and remanded to the circuit
court to enter convictions on two of the four remaining counts. The
appellate court vacated defendant=s concurrent sentences as void and
remanded for a new sentencing hearing and imposition of consecutive
terms of imprisonment. 352 Ill. App. 3d 195. We allowed the State=s
petition for leave to appeal. 177 Ill. 2d R. 315.
BACKGROUND
Defendant was charged by indictment with sexually assaulting his
minor daughter, Q.B., between September 1998 and December 2000.
Count I of the indictment alleged that between September 5,
1998, and December 5, 2000, defendant placed his penis in Q.B.=s
vagina by the threat of force and caused her bodily harm by causing
her to become pregnant (aggravated criminal sexual assault).
Count II alleged that between September 5, 1998, and December
5, 2000, defendant, being a family member of Q.B., placed his penis
in Q.B.=s vagina and caused bodily harm by causing her to become
pregnant (aggravated criminal sexual assault).
Count III alleged that between September 5, 1998, and December
5, 2000, defendant committed an act of sexual penetration by placing
his penis in Q.B.=s vagina by the threat of force (criminal sexual
assault).
Count IV alleged that between September 5, 1998, and December
5, 2000, defendant, being a family member of Q.B., who was under
the age of 18 years, committed an act of sexual penetration by placing
his penis in Q.B.=s vagina (criminal sexual assault).
Count V alleged that between September 1, 2000, and December
5, 2000, defendant placed his penis in Q.B.=s anus by the threat of
force, thereby injuring her anus and causing her bodily harm
(aggravated criminal sexual assault).
Count VI alleged that between September 5, 1998, and December
5, 2000, defendant, being a family member of Q.B., placed his penis
in Q.B.=s anus, thereby injuring her anus and causing her bodily harm
(aggravated criminal sexual assault).
Count VII alleged that between September 1, 2000, and
December 5, 2000, defendant committed an act of sexual penetration
by placing his penis in Q.B.=s anus by the threat of force (criminal
sexual assault).
Count VIII alleged that between September 1, 2000, and
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December 5, 2000, defendant, being a family member of Q.B.,
committed an act of sexual penetration with Q.B., who was under the
age of 18 years, by placing his penis in Q.B.=s anus (criminal sexual
assault).
Defendant=s conduct came to light when Q.B., then 15 years old,
told police on December 5, 2000, that defendant had sexually
assaulted her the previous night. She advised officers of the location
in defendant=s bedroom where they would find a soiled condom, a jar
of Vaseline, and birth control pills that Q.B. claimed defendant forced
her to take. The officers went to defendant=s house with Q.B. and
found the items in the described locations in defendant=s bedroom.
Subsequently, defendant was arrested and charged.
At defendant=s trial, Terri DeWees, an emergency room nurse
with training in sexual assault examinations, testified that she
performed a physical examination of Q.B. for a sexual assault
evaluation. Q.B. told DeWees that defendant had anally penetrated
her and that the sexual assaults had been occurring Amost every night@
since Q.B. was nine years old. DeWees found nothing unusual in a
vaginal examination of Q.B. However, a rectal examination revealed
a two-millimeter abrasion near the bottom of Q.B.=s anus at the six
o=clock position and some apparent scar tissue at the three o=clock
position. DeWees explained that when the body suffers an injury,
scar tissue develops during the healing process.
Q.B., who was born on September 5, 1985, testified that
defendant gained custody of her and her sister in 1997 and that when
she was approximately 12 years old, defendant began to touch her in
a sexual manner with his hands and his penis. He would rub his penis
on her between her legs. The incidents took place in defendant=s
bedroom; defendant would call Q.B. into his bedroom and say that he
wanted to Ado something,@ or he would tell her to remove her clothes.
Because defendant threatened to hurt her if she did not comply with
his demands, she went along with it. These incidents would take
place two or three times a week. Although she never had a boyfriend
and did not go out with friends, Q.B. discovered in July 2000 that she
was pregnant. She was 14 years old at the time. Defendant was the
only person she was having sexual contact with, although defendant
had never put his penis inside her vagina. Defendant took her to an
abortion clinic where she registered under a fictitious name.
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Subsequently, an abortion was performed.
Q.B. testified that she and defendant were having sexual contact
about three times a week before Q.B. discovered she was pregnant.
After that, defendant promised that he would never have sexual
contact with her again. However, a couple of weeks after the
abortion, defendant began to penetrate her anally, which would cause
her to cry. Periodically, defendant would apologize and promise to
stop abusing Q.B., but he never kept his promises. On December 4,
2000, Q.B. got into trouble with defendant and he paddled her more
than 20 times with a wooden paddle. That night, defendant anally
penetrated Q.B. The next day, tired of defendant=s sexual abuse and
his broken promises, Q.B. wrote a note to her gym teacher about the
sexual abuse.
Q.B. acknowledged that she had not told anyone of the sexual
abuse prior to telling the police on December 5, 2000. She admitted
she had opportunities to tell her aunt and grandmother, who had
asked if defendant was sexually abusing her. She spoke with
personnel from the Illinois Department of Children and Family
Services (DCFS) when defendant gained custody of her and her
sister, but she did not tell them that she was being sexually abused.
When the prosecutor asked why she had not done so, Q.B. testified
that the reason she did not reveal the abuse earlier was that she liked
living with defendant and did not want him Ato go back to jail.@ On
cross-examination, Q.B. stated that she did not recall telling Sergeant
Mullen, a police officer, that the sexual abuse had taken place about
20 times since she was 12 years old. Later, the officer confirmed in
his testimony that Q.B. had initially made that statement to him.
At the close of the State=s evidence, defense counsel moved to
dismiss counts I through IV and count VI on the basis that the
evidence failed to show that defendant=s penis penetrated Q.B.=s
vagina and that counts II and VI failed to allege that Q.B. was under
the age of 18 years when the acts were committed. The trial court
denied the motion as well as defense counsel=s motion for acquittal.
During defendant=s testimony, he denied sexually touching Q.B.
or assaulting her vaginally or anally. The night before Q.B. went to
the police, defendant had spanked her for breaking a house rule. He
told her he was going to paddle her all week. Defendant explained
that the night before Q.B. went to the police, he had used the soiled
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condom found in his room while watching an adult video alone. He
used the Vaseline to shine his head after he shaved it; he also used it
when he had sexual intercourse with his adult female friends.
Defendant testified that Q.B. obtained the birth control pills from the
abortion clinic.
During closing argument, the prosecutor urged the jury to find
defendant guilty on all counts of the indictment. The jury was
instructed on all counts of the indictment and was given eight general
verdict forms. It returned guilty verdicts on all eight counts.
At the sentencing hearing, defense counsel argued that several of
the offenses as set forth in the indictment were duplicative. Counsel
argued that the counts charging criminal sexual assault should merge
into the counts charging aggravated criminal sexual assault and that
defendant should be sentenced on only two of the aggravated
criminal sexual assault convictions, one for penis to vagina
penetration and one for penis to anus penetration. The prosecutor
noted that some of the eight counts of the indictment were charged in
different ways that defendant had sexually abused Q.B. She argued
that defendant should be sentenced on Aat least two, if not three,@ of
the counts of the indictment and that his sentences should run
consecutively. At another point, she urged the trial court to impose
consecutive sentences on Aat least three@ of defendant=s convictions.
The trial court did not address these specific arguments when
sentencing defendant on all eight convictions.
Defendant appealed. The appellate court addressed a number of
issues. Pertinent to the instant appeal, defendant argued before the
appellate court that six of his convictions should be vacated because
the eight counts of the indictment did not distinguish the acts alleged
in such a manner as to notify him that the State was seeking separate
convictions, rather than merely relating alternative theories of
liability for each type of penetration alleged. Noting that a defendant
must be able to prepare a defense and not merely defend against the
charges, the appellate court observed that nothing in the record
established that defendant was put on notice prior to trial that he was
being charged with eight separate offenses. Relying on this court=s
decision in People v. Crespo, 203 Ill. 2d 335 (2001), the appellate
court found that defendant could be convicted on only two counts of
aggravated criminal sexual assault, one for each type of penetration.
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It vacated defendant=s four convictions for criminal sexual assault and
remanded the counts of aggravated criminal sexual assault to the
circuit court for a determination of the counts on which convictions
should be entered. We note, parenthetically, that the appellate court=s
opinion stated the court was vacating defendant=s conviction on, inter
alia, count IV of the indictment (criminal sexual assault), yet in the
next sentence, the court remanded that count to the circuit court,
along with counts I, II, and V. 352 Ill. App. 3d at 213. We assume,
based upon a reading of the majority opinion as a whole, that this is a
typographical error and that the court intended to remand count VI
(aggravated criminal sexual assault) to the circuit court, rather than
count IV.
The appellate court also vacated defendant=s concurrent
sentences, finding that consecutive sentences were mandated. 352 Ill.
App. 3d at 212.
One justice dissented in part, believing that a fair reading of the
indictment put defendant on notice of the need to defend against
multiple acts of sexual assault and that the State=s treatment of the
crimes during the trial, coupled with the indictment, provided clear
evidence of the State=s intention to treat defendant=s conduct as
multiple separate acts. 352 Ill. App. 3d at 216. (Bowman, J.,
dissenting in part).
ANALYSIS
I
AWhere a defendant challenges the sufficiency of an
indictment or information for the first time on appeal, a
reviewing court need only determine whether the charging
instrument apprised the defendant of the precise offense
charged with enough specificity to prepare his or her defense
and allow pleading a resulting conviction as a bar to future
prosecution arising out of the same conduct. [Citations.] In
making this determination, the reviewing court may resort to
the record.@ People v. Maggette, 195 Ill. 2d 336, 347-48
(2001), citing People v. Gilmore, 63 Ill. 2d 23, 30 (1976).
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II
The State argues that the indictment sufficiently apprised
defendant of its intent to charge him with eight separate acts of sexual
assault against Q.B. In addition, the State argues that the appellate
court erroneously considered solely the adequacy of the notice in the
indictment, rather than the indictment together with the State=s
treatment of the charges during trial.
The appellate court concluded that the indictment failed to
adequately notify defendant that the State was charging him with
eight separate acts of sexual assault. According to the court, the fact
that the acts were alleged to have occurred over a long period of time
does not establish that each of the two types of acts alleged happened
more than once. The appellate court found this court=s decision in
Crespo to be controlling. In Crespo, the defendant was convicted of
murder, aggravated battery with a deadly weapon, aggravated battery
causing great bodily harm, and armed violence, which was predicated
on the great-bodily-harm aggravated battery charge. The defendant
had stabbed one victim to death and stabbed the other victim three
times in rapid succession. In the appellate court, the defendant argued
that his aggravated battery conviction must be vacated because it was
based on the same physical act as the armed violence conviction. The
appellate court rejected that argument, but it ordered the circuit court
to amend the mittimus to reflect only one conviction for aggravated
battery. The defendant renewed his argument in this court. The State
argued for the first time that since the defendant stabbed the victim
three times, each act of stabbing constituted a separate offense. This
court concluded that under People v. King, 66 Ill. 2d 551 (1977), and
People v. Dixon, 91 Ill. 2d 346 (1982), each of the three stab wounds
could support a separate offense. However, the State did not charge
the defendant under this theory. The counts of the indictment did not
differentiate among the stab wounds; rather, they charged the
defendant with the same conduct under different theories of
culpability. This court determined that to apportion the charged
offenses among the stab wounds for the first time on appeal would be
Aprofoundly unfair.@ Crespo, 203 Ill. 2d at 343.
The Crespo court also noted that the State=s theory at trial was to
treat the three stab wounds as one offense, as illustrated by its closing
argument to the jury. This fact supported the court=s conclusion that
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the State=s intent was to portray the defendant=s conduct as a single
attack. Constitutional considerations also played a part in the court=s
decision. Under Illinois law, a defendant has a fundamental right to
be informed of the nature and cause of the charges brought against
him so that he may prepare a defense and so that the charges may
serve as a bar to subsequent prosecution arising out of the same
conduct. Accordingly, Crespo held that, Ain cases such as the one at
bar, the indictment must indicate that the State intended to treat the
conduct of defendant as multiple acts in order for multiple
convictions to be sustained.@ Crespo, 203 Ill. 2d at 345.
The appellate court in the instant case interpreted Crespo to
require that a defendant must be apprised prior to trial of the fact that
multiple separate offenses are being charged:
AWe recognize that the prosecutor may have indicated in
the opening and closing statements that separate offenses
occurred over a period of time. The jury instructions may also
have indicated that the State was seeking convictions for
eight separate acts. However, the alleged notice was
insufficient because it was not prior to trial and therefore does
not satisfy Crespo.@ 352 Ill. App. 3d at 212.
The State argues before this court that Crespo=s holding should be
limited to situations in which a defendant commits a series of closely
related but separate acts and the indictment or information reflects the
State=s intention to treat those acts as one offense. According to the
State, this is so because it is the close relationship between the acts
that requires that they be explicitly treated separately prior to appeal.
As an example, the State cites People v. Lee, 343 Ill. App. 3d 431
(2003), aff=d in part & rev=d in part on other grounds, 213 Ill. 2d 218
(2004), where the defendant shot the victim three times, once in the
chest and twice in the leg. He was convicted of murder and
aggravated battery with a firearm. On appeal, he argued that both
convictions were based on the same act and thus violated the one-act,
one-crime principle of King. The appellate court agreed, noting that,
as in Crespo, the defendant committed three separate but closely
related acts and the State had not apportioned the acts in the charging
instrument so that each could support a separate offense. At trial, the
prosecutor treated all three gunshots as one act. Accordingly, the
State could not change its theory of the case on appeal. Lee, 343 Ill.
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App. 3d at 439.
The State argues that the instant case is distinguishable from Lee
and is more analogous to People v. Olivieri, 334 Ill. App. 3d 311
(2002), and People v. Marston, 353 Ill. App. 3d 513 (2004). In
Olivieri, the defendant was charged with three counts of aggravated
criminal sexual assault, allegedly committed during an attack that
occurred on November 27, 1999. One count alleged bodily harm,
another count alleged that the defendant threatened or endangered the
life of the victim, and the third count alleged that the defendant
committed the sexual assault in the commission of another felony,
i.e., home invasion. The defendant was convicted on all three counts.
On appeal, the defendant argued that the information charged him
with one offense under three different theories, yet he was sentenced
on three separate offenses. The appellate court held that the
information clearly charged the defendant with three separate sexual
assaults: (1) by threatening the victim, (2) by causing bodily harm,
and (3) by acting during a home invasion. The offenses were not
charged in the alternative. The court also noted that evidence at the
preliminary hearing, trial, and sentencing consistently referred to
three separate assaults, i.e., oral, vaginal, and anal. The court
distinguished Crespo, noting that, there, the State portrayed the stab
wounds as a single attack. Olivieri, 334 Ill. App. 3d at 318.
In Marston, count I of the indictment charged the defendant with
home invasion in that he, knowing that William Cook was inside the
dwelling, intentionally caused injury to Cook by striking him with a
metal pole. Count II charged the defendant with aggravated battery in
that, by the use of a deadly weapon, he knowingly caused bodily
harm to Cook by striking him with a metal pole. On appeal, the
defendant argued that his conviction of aggravated battery must be
vacated because it was based on the same physical act of striking
Cook with the metal pole on which the home invasion charge was
based. The State argued that the home invasion charge was based on
the defendant=s unauthorized entry into the home. It also argued
alternatively that the defendant struck Cook three times with the
metal pole and that each injury would support a separate conviction.
The appellate court concluded that the one-act, one-crime doctrine
was not violated by the defendant=s convictions because, although
there was a common act underlying both offenses, the home invasion
charge was based on the additional act of the defendant=s
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unauthorized entry into the home. The court distinguished Crespo on
the ground that, there, the indictment did not differentiate among the
acts that supported the aggravated battery charges. Marston, 353 Ill.
App. 3d at 520.
We agree with the State that Crespo does not control the outcome
of the instant case. The concern in Crespo was the State=s treatment
of three closely related acts as one act in the indictment and at trial,
then changing course on appeal to contend that the three acts were
separate and would support three separate convictions. It was this
action that the Crespo court found prejudicial to the defendant. Here,
in contrast, the State=s treatment of the charges against defendant has
been consistent throughout the pendency of these proceedings. The
State has not suddenly changed its position to defendant=s detriment,
as was the case in Crespo.
Defendant was charged with four counts of criminal sexual
assault. Section 12B13 of the Criminal Code of 1961 (Code) states in
relevant part:
A(a) The accused commits criminal sexual assault if he or
she:
(1) commits an act of sexual penetration by the use of
force or threat of force; or
***
(3) commits an act of sexual penetration with a victim
who was under 18 years of age when the act was committed
and the accused was a family member[.]@ 720 ILCS
5/12B13(a)(1), (a)(3) (West 1998).
Defendant was also charged with four counts of aggravated
criminal sexual assault. Section 12B14 of the Code states in relevant
part:
A(a) The accused commits aggravated criminal sexual
assault if he or she commits criminal sexual assault and any
of the following aggravating circumstances existed during
*** the commission of the offense:
***
(2) the accused caused bodily harm to the victim[.]@
720 ILCS 5/12B14(a)(2) (West 1998).
ABodily harm,@ for purposes of the above statutes, includes
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pregnancy. 720 ILCS 5/12B12(b) (West 1998).
As they were pled in the indictment, it is clear that the four counts
of criminal sexual assault are lesser-included offenses of the four
counts of aggravated criminal sexual assault. A lesser-included
offense is an offense proven by lesser facts or a lesser mental state, or
both, than the charged offense. People v. Davis, 213 Ill. 2d 459, 477
(2004). Count III is a lesser-included offense of count I, count IV is a
lesser-included offense of count II, count VII is a lesser-included
offense of count V, and count VIII is a lesser-included offense of
count VI. At defendant=s trial, the evidence showed that defendant
had committed multiple acts of sexual assault against Q.B. The
evidence as to the number of actual incidents of abuse was somewhat
contradictory. For instance, Q.B. testified that the abuse took place
two or three times a week between September 5, 1998, and December
5, 2000. This testimony was contradicted by Sergeant Mullen, who
testified that Q.B. initially told him the incidents had occurred about
20 times since she attained the age of 12 years (on September 5,
1998). DeWees, the nurse, testified that Q.B. said defendant had
assaulted her almost every night since she was nine years old. We
recognize that it is often difficult in the prosecution of child sexual
abuse cases to pin down the times, dates, and places of sexual
assaults, particularly when the defendant has engaged in a number of
acts over a prolonged period of time. However, we need not address
the question of what difficulties may or may not arise where the
State=s evidence is based exclusively on a generic pattern of abuse.
Here, the record shows that the main evidence at trial centered around
Q.B.=s pregnancy and the injuries to her anus. The evidence
specifically showed that defendant caused Q.B. to become pregnant
and that, following her abortion, he began to penetrate her anally,
causing the two injuries to her anus. Thus, the State=s focus at trial
was on these three acts of penetration. We emphasize that this is not a
case of a defective indictment. The State charged defendant in counts
I and II under alternative theories of criminal culpability. The other
counts were pled as greater and lesser offenses of each other. There is
nothing wrong with the way defendant was charged. For this reason,
defense counsel had no occasion to challenge the indictment before,
during, or after trial on the basis that it did not inform defendant of
the charges he faced. Defense counsel made his argument regarding
the number of offenses on which defendant should be sentenced at
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the first logical opportunityBthe sentencing hearing. We note that at
the sentencing hearing, the prosecutor urged the trial court to impose
consecutive sentences on Aat least two, if not three,@ of defendant=s
convictions. Conversely, defense counsel argued that the counts as
pled were duplicative and that defendant should be sentenced on only
two of the counts, one for vaginal penetration and one for anal
penetration. It is clear, then, from the record that, while the jury was
properly instructed on all eight counts of the indictment, both the
prosecutor and defense counsel believed that defendant should be
sentenced on only two or three offenses. We agree and conclude that
the four counts of criminal sexual assault in the indictment were
intended by the State to describe lesser-included offenses of the four
counts of aggravated criminal sexual assault. This conclusion is
supported by a reading of the indictment itself and by the record in
this case. Thus, defendant was not in any manner prejudiced by either
the indictment or the State=s handling of the case in the trial court.
In keeping with the prosecutor=s expressed intent in the trial court,
we note the State now concedes that one of defendant=s convictions
on counts I and II must be vacated, as only one such act led to Q.B.=s
pregnancy. Both counts allege that defendant placed his penis in
Q.B.=s vagina, causing her bodily harm. The harm identified in both
counts is the pregnancy. Both counts allege that this act occurred
between September 5, 1998, and December 5, 2000. There was no
evidence at the trial that Q.B. became pregnant more than once
during this time period. The only difference between the two counts
is that count II made the additional allegation that defendant was a
family member of Q.B. when the act occurred. Defendant cannot be
convicted of both these counts. Accordingly, we accept the State=s
concession. As to the other counts of the indictment, we hold that
defendant=s convictions for criminal sexual assault are lesser-included
offenses of the convictions for the greater offenses. Accordingly,
defendant=s convictions for criminal sexual assault must be vacated
and sentence imposed only on the three remaining convictions for
aggravated criminal sexual assault. See People v. Garcia, 179 Ill. 2d
55, 72 (1997) (where multiple convictions of greater and lesser
offenses are obtained for offenses arising from a single act, a
sentence should be imposed on the most serious offense and the
convictions on the less serious offenses should be vacated).
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III
Defendant argues that the evidence at trial supported only one
instance of injury to Q.B.=s anus. He argues that DeWees= testimony
was insufficient to establish that the scar tissue located on Q.B.=s anus
resulted from an act of penetration by defendant. He does not dispute
that the evidence was sufficient to convict him of one instance of
penetration resulting in the abrasion found on Q.B.=s anus. Defendant
argues that DeWees is not a medical expert and offered no testimony
as to the age or cause of the scar tissue. We note that defendant offers
no authority in support of his arguments.
When reviewing the sufficiency of the evidence, Athe relevant
question is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.@
(Emphasis in original.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L.
Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979); People v. Collins, 106
Ill. 2d 237, 261 (1985). ABodily harm,@ for purposes of aggravated
criminal sexual assault, has the same meaning given to Abodily harm@
under the battery statute. People v. Haywood, 118 Ill. 2d 263, 276
(1987). Bodily harm consists of Aphysical pain or damage to the
body, like lacerations, bruises or abrasions, whether temporary or
permanent.@ People v. Mays, 91 Ill. 2d 251, 256 (1982). In
determining whether a defendant=s actions caused bodily harm, direct
evidence of injury may be considered or the trier of fact may infer
injury based upon circumstantial evidence in light of common
experience. People v. Jenkins, 190 Ill. App. 3d 115, 138 (1989).
In the instant case, Q.B. testified that when defendant began to
penetrate her anally, it caused her to cry. From this statement, the
jury could have inferred that defendant=s acts caused pain to Q.B. and
that the pain accompanied some physical injury. Q.B. further testified
that defendant began to penetrate her anally after her abortion in July
2000. She also testified that defendant penetrated her anally on
December 4, 2000, the night before she went to the police. From this
testimony, together with the testimony of DeWees, the jury could
infer that defendant=s act of penetration in July 2000 caused the injury
from which the scar tissue formed and that his act of penetration in
December 2000 caused the abrasion on Q.B.=s anus. Thus,
considering the evidence in the light most favorable to the
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prosecution, we conclude that two separate injuries to Q.B.=s anus
were proven to have been caused by defendant=s acts as alleged in
counts V and VI of the indictment.
IV
Defendant has cross-appealed, arguing that improper testimony
by Q.B. denied him a fair trial. Prior to trial, the circuit court granted
defendant=s motion in limine to exclude any Atestimony, discussion,
statements, arguments or innuendo@ regarding defendant=s prior
convictions. At trial, Q.B. testified that, although she had the
opportunity to tell her aunt, grandmother, and DCFS about the sexual
abuse, she said nothing. The prosecutor asked why Q.B. had not told
them about the abuse and Q.B. testified that she did not want
defendant to go back to jail. Defense counsel objected and moved for
a mistrial. The circuit court denied the motion, but sustained defense
counsel=s objection and instructed the jury to disregard Q.B.=s answer
to the prosecutor=s question. The appellate court rejected defendant=s
argument that he was denied a fair trial by the reference to his
previous incarceration, noting that the circuit court sustained
defendant=s objection and gave a curative instruction to the jury and
that the matter was not mentioned again at trial or in closing
arguments. 352 Ill. App. 3d at 210.
Defendant argues that the circuit court abused its discretion in
denying his motion for mistrial. Generally, a mistrial should be
granted where an error of such gravity has occurred that it has
infected the fundamental fairness of the trial, such that continuation
of the proceeding would defeat the ends of justice. The trial court=s
denial of a defendant=s motion for a mistrial will not be disturbed
unless the denial was a clear abuse of discretion. People v. Sims, 167
Ill. 2d 483, 505 (1995).
Defendant argues that this was a close case, depending, as it did,
on a determination of the credibility of himself and of Q.B. He argues
that Q.B.=s statement could have led the jury to speculate that
defendant had previously been incarcerated for a crime similar to the
ones with which he is charged in this case. Defendant relies on two
cases for support. In People v. Goodwin, 69 Ill. App. 3d 347 (1979), a
police officer, acting as a security guard for a department store,
observed the defendant shoplifting some clothes from the store. As
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the officer was escorting the defendant to the security office, the
defendant pulled a knife, threatened to cut the officer and ran when
the officer pulled away. The officer gave chase and cornered the
defendant, who put the knife to his own throat and asked to be let go
because he did not want to go back to prison. The defendant was
charged with armed violence. At trial, the prosecutor asked the
officer what the defendant did when cornered after the chase ended.
The officer answered that the defendant asked him to let defendant
go, that he did not want to go back to prison again. The trial court
denied defense counsel=s motion for a mistrial and refused to strike
the testimony and to have the jury admonished to disregard the
testimony. The appellate court found that the trial court abused its
discretion in light of the fact that material portions of the officer=s
testimony were in dispute. The officer=s testimony that defendant
threatened him with a knife was disputed by a store employee who
testified that he saw no knife. The appellate court held that, in these
circumstances, it could not be said that the officer=s testimony did not
affect the jury=s resolution of the issues. Goodwin, 69 Ill. App. 3d at
350.
In People v. McCray, 60 Ill. App. 3d 487 (1978), the defendant
was convicted of robbery. During his testimony, he denied robbing or
hitting the victim. On cross-examination, the prosecutor asked
whether the defendant had any occupation other than robbing people.
Defense counsel objected and moved for a mistrial. The trial court
denied the motion, but sustained the objection and the subject was not
raised again. The appellate court found the comment to be so
prejudicial as to require a new trial. The court characterized the
prosecutor=s comment as inexcusable and, within the context of the
testimony, characterizing the defendant as a professional robber
strongly tended to lessen the credibility of the defendant and that
striking the comment from the record was insufficient. McCray, 60
Ill. App. 3d at 490.
As defendant admits in his brief, Goodwin is distinguishable from
the instant case. Here, although the circuit court denied defendant=s
motion for a mistrial, it did sustain defendant=s objection and it
instructed the jury to disregard Q.B.=s answer to the prosecutor=s
question. The revelation that defendant had previously been in jail is
not comparable to suggesting that a defendant is a professional
robber, when robbery is the very crime with which the defendant is
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charged, as happened in McCray. Further, we reject defendant=s
argument that the evidence against him was closely balanced.
Defendant points out that he gave an explanation for the items found
in his bedroom by police officers and suggested a motive for Q.B.=s
statements to the police when he testified that he paddled Q.B. on
December 4, 2000, and told her that she would be paddled for a week
thereafter. However, Q.B. told officers the exact location of the items
in defendant=s bedroom, the truth of which was confirmed by the
search. Moreover, Q.B. testified that defendant had penetrated her
anally at least twice between July 2000 and December 5, 2000. Q.B.=s
physical examination revealed an abrasion and scar tissue in two
different places on her anus, which tended to support her testimony in
this regard. We also disagree with defendant that the revelation of his
previous incarceration would lead the jury to speculate that he had
earlier been convicted of similar sexual crimes. The mere fact,
without more, that defendant had previously been in jail says nothing
about the type of offense involved. There would be no particular
reason for the jury to think that defendant had a history of committing
sexual offenses.
The prosecutor=s question as to why Q.B. had not told anyone of
the sexual abuse was a natural follow-up to Q.B.=s admission that she
had told no one of the abuse, despite having the opportunity to tell
DCFS, her grandmother, and her aunt. The question does not appear
to have been asked for the purpose of eliciting improper information.
The question of why Q.B. did not reveal the abuse earlier would
likely have been asked by defense counsel on cross-examination. It
was not unreasonable for the prosecutor to anticipate such a question
and to seek to remove any tactical advantage by asking the question
herself.
We conclude that defendant was not so prejudiced by Q.B.=s
statement that he was denied a fair trial. The trial court did not abuse
its discretion in denying the motion for mistrial.
V
The trial court imposed concurrent sentences of 30 years for each
of the aggravated criminal sexual assault convictions and 15 years for
each of the criminal sexual assault convictions. The parties concede
this was error. Because defendant was convicted of offenses under
sections 12B13 and 12B14 of the Code, the trial court was required to
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impose consecutive sentences. See 730 ILCS 5/5B8B4(b) (West
1998); see also People v. Harris, 203 Ill. 2d 111, 116 (2003).
Accordingly, defendant=s concurrent sentences are void (see People v.
Arna, 168 Ill. 2d 107, 113 (1995)) and the cause must be remanded
for resentencing.
AWhen multiple convictions of greater and lesser offenses
are obtained for offenses arising from a single act, a sentence
should be imposed on the most serious offense and the
convictions on the less serious offenses should be vacated.
[Citation.] However, when multiple convictions for
aggravated criminal sexual assault are obtained from a single
act of penetration, there is no way to determine the most
serious conviction because none of the convictions involve
either a more or less culpable mental state. [Citation.] In such
cases, reviewing courts have remanded to the trial court for a
determination as to which >counts of aggravated criminal
sexual assault are retained.= [Citations.]@ People v. Garcia,
179 Ill. 2d 55, 71-72 (1997).
We therefore remand to the trial court for resentencing and for a
determination as to which of defendant=s convictions on count I and
count II is the more serious offense.
CONCLUSION
For the reasons stated, the judgments of the circuit and appellate
courts are affirmed in part and reversed in part. We affirm three of
defendant=s convictions for aggravated criminal sexual assault. We
vacate defendant=s convictions on counts III, IV, VII, and VIII
(criminal sexual assault) and remand counts I, II, V, and VI
(aggravated criminal sexual assault) to the circuit court. Upon
remand, the circuit court shall hold a new sentencing hearing and
shall determine whether conviction shall be entered on count I or
count II of the indictment for aggravated criminal sexual assault
resulting in pregnancy. The count upon which conviction is not
entered shall be vacated. The circuit court shall impose consecutive
sentences for all three of defendant=s convictions.
Judgments affirmed in part
and reversed in part;
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cause remanded with directions.
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