People v. Gray

Filed 11/25/09 NO. 4-07-0696
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Champaign County
TED GRAY, ) No. 01CF1310
Defendant-Appellant. )
) Honorable
) Thomas J. Difanis,
) Judge Presiding.
JUSTICE APPLETON delivered the opinion of the court:
In April 2007, a jury convicted defendant, Ted Gray, of four counts of
predatory criminal sexual assault of a child for performing sexual acts with his minor
daughters, A.G. and J.G. The trial court sentenced defendant to four consecutive 10-
year prison terms. Defendant appeals his convictions, claiming (1) they are barred by
the applicable statute of limitations, (2) his trial counsel was ineffective, and (3) his
conviction on one of the counts violated the principles of the one-act, one-crime
doctrine. For the reasons that follow, we affirm.
I. BACKGROUND
The State alleged that in 1998 and 1999, defendant sexually assaulted his
11- and 12-year-old daughters in Coles County and Champaign County. Ultimately,
charges were filed in both counties. First, in Coles County, the State charged defendant
with four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 1998))
and one unrelated count of unlawful possession of a weapon without a valid firearm
owner's identification card (430 ILCS 65/2(a)(1) (West 1998)). Defendant pleaded
guilty to two counts of criminal sexual assault and to the weapons charge in exchange
for the State's dismissal of the other two criminal-sexual-assault charges. The trial court
sentenced defendant to five years in prison.
On July 25, 2001, while defendant was in prison serving his Coles County
sentence, the Champaign County State's Attorney charged defendant, by information,
with five counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1)
(West 2000)). On September 6, 2001, the grand jury returned superseding indictments
on all five counts. The State conceded that four of the five Champaign County offenses
were based on the same conduct for which defendant was prosecuted in Coles County.
(Count III in the Champaign County indictment alleged an act that was not previously
charged in Coles County.) Defendant filed a motion to dismiss the other four charges,
claiming they were barred by double jeopardy. The Champaign County circuit court
denied the motion, and defendant filed an interlocutory appeal.
This court affirmed the trial court's order denying defendant's motion to
dismiss, finding that the statutory elements for predatory criminal sexual assault of a
child (720 ILCS 5/12-14.1(a)(1) (West 2000)) differ from those of criminal sexual assault
(720 ILCS 5/12-13(a) (West 2000)), and one offense was not a lesser-included of the
other. Therefore double jeopardy concerns were not implicated. See People v. Gray,
336 Ill. App. 3d 356, 364-65, 783 N.E.2d 170, 177-78 (2003). We found that even
though the Coles County prosecutor was not the "proper prosecuting officer" for the
charges filed in his county because the conduct allegedly occurred in Champaign
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County, by pleading guilty to the charges in Coles County, defendant had waived any
objection to the improper venue. Gray, 336 Ill. App. 3d at 366-67, 783 N.E.2d at 179.
The supreme court affirmed this court's decision and remanded the cause to Champaign
County for further proceedings. People v. Gray, 214 Ill. 2d 1, 3, 823 N.E.2d 555, 556
(2005).
On remand, defendant filed a motion to dismiss the Champaign County
charges on the grounds that (1) the statute of limitations had expired (see 725 ILCS
5/114-1(a)(2) (West 2000)), (2) the grand jury was not informed that defendant had
been convicted and punished in Coles County for the same conduct, (3) the State had
failed to set forth in the indictments the nature and elements of each offense, and (4)
the allegations were too vague in terms of the dates of the occurrences.
On June 23, 2006, at the hearing on defendant's motion, defendant's
counsel informed the trial court that by "way of an oral motion to dismiss," he was
withdrawing the motion as to count V because the conduct for which defendant was
charged in that count had allegedly occurred in 1999, not 1998, meaning it was not
barred by the applicable statute of limitations. The court took the matter under
advisement.
On June 29, 2006, the State filed an additional four-count indictment
against defendant (counts VI through IX--those subject to this appeal). While the
charges were identical to counts I through IV, the State corrected the pleading by adding
an allegation that the applicable statute of limitations should be extended due to the
familial relationship between defendant and the victims. The State also alleged the
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statute of limitations had been tolled as of July 25, 2001, the filing date of the original
charging instruments.
On June 30, 2006, the trial court found "the statute of limitations
exception [was] fatal" and granted defendant's motion as to counts I through IV because
the State had failed to specifically plead the extension of the statute of limitations due to
the victims being defendant's family members. See 720 ILCS 5/3-6(c) (West 2000).
The State proceeded to a bench trial on count V only. The State alleged
defendant had committed predatory criminal sexual assault in July 1999 by placing his
finger in A.G.'s vagina. The trial court convicted defendant of that offense and sen-
tenced him to 30 years in prison to be served consecutively to his Coles County sen-
tence. Defendant appealed, claiming that this count involved the same conduct as
alleged, and to which he pleaded guilty, in count I of the Coles County information. He
claimed (1) his conviction constituted a violation of double jeopardy, (2) his trial
counsel was ineffective for failing to contest venue, and (3) his conviction constituted a
violation of the one-act, one-crime doctrine. Rejecting all three of defendant's claims,
this court affirmed defendant's conviction. See People v. Gray, No. 4-07-0117 (July 28,
2008) (unpublished order under Supreme Court Rule 23).
In April 2007, while his appeal in case No. 4-07-0117 was pending, the
State proceeded to a jury trial on counts VI through IX. Prior to the start of the trial, the
public defender, Randall Rosenbaum, moved to dismiss the indictments for violating
the applicable statute of limitations. Rosenbaum argued that section 3-6(c) of the
Criminal Code of 1961 (Criminal Code) (720 ILCS 5/3-6(c) (West 2006)) required that
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the indictments be filed no later than March 25, 2005, for the allegations concerning
J.G., as that was the date she turned 19 years old, and May 27, 2006, for the allegation
concerning A.G., as the date she turned 19. (He argued the State had one year from each
child's eighteenth birthday to file charges against defendant.) Counts VI through IX
were not filed until June 2006. In response, the State argued that section 3-7(c) of the
Criminal Code (720 ILCS 5/3-7(c) (West 2006)) tolled the limitations period because
defendant had been initially charged with the same conduct in counts I through IV in
September 2001. The trial court denied Rosenbaum's motion, stating: "Well, I'm gonna
deny the motion to dismiss, and that will allow the [a]ppellate [c]ourt to make a
determination as to whether or not these offenses are barred." The court proceeded to
trial.
A.G. testified first for the State, stating that she was born on May 27, 1987.
In the summer of 1998 (she was 11 years old at the time), she went fishing with defen-
dant and J.G. During the trip, defendant took the girls underneath a bridge where they
took turns putting his penis in their mouths. A.G. said: "We did what he said." She did
not tell her mother about the incident for two years because she was "scared and
embarrassed."
J.G. testified that she was born on March 25, 1986. She described the
same fishing incident in the summer of 1998 and the same occurrence under the bridge.
She was 12 years old at the time. She also described an incident a month later when
defendant made her put his penis in her mouth in his bedroom. He then made her lay
on the bed with her pants off while he put his mouth on her vagina. Defendant gave
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J.G. money so she would not tell anyone.
Dwayne Roelfs, an investigator with the Champaign County sheriff's office,
testified that in April 2001, he learned about and followed up on the Coles County
investigation of the allegations of sexual abuse. He spoke with A.G. and J.G., who told
him that in the summer of 1998, defendant and his family resided in Champaign
County. He said he was familiar with the bridge the girls described and confirmed that
it was in Champaign County.
Darrell Cox, the Coles County sheriff, testified that he investigated the
allegations beginning in November 2000. He conducted a recorded interview of
defendant, who was 35 years old at the time. Each juror was given a transcript of the
interview, and the recording was played for the jury. The State rested.
Defendant moved for a directed verdict, arguing that the charges were not
timely filed. The trial court denied defendant's motion. Defendant did not present any
evidence. The jury found defendant guilty of all four charges.
In May 2007, defendant filed a motion for acquittal or, in the alternative, a
motion for a new trial. Defendant claimed (1) the charges were untimely, (2) portions of
defendant's recorded statement should not have been admitted into evidence, (3) the
trial court erred in denying his motion for a directed verdict, (4) the evidence was
insufficient to convict, and (5) his conviction on count IX violated the one-act, one-
crime rule as he had already pleaded guilty to the offense in Coles County.
In June 2007, the trial court denied defendant's posttrial motion and
sentenced him to four 10-year prison terms to be served consecutively to each other and
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to his 30-year sentence on count V. Defendant filed a motion to reconsider his sen-
tence, which the court denied. This appeal followed.
II. ANALYSIS
Defendant raises three claims on appeal: (1) the charges were barred by
the statute of limitations, (2) his trial counsel was ineffective for failing to raise the
statute-of-limitations issue at trial, and (3) his conviction on count IX violated the one-
act, one-crime doctrine.
A. Statute of Limitations
Defendant claims that section 3-5(b) of the Criminal Code (720 ILCS 5/3-
5(b) (West 2000)) bars prosecution of the charges filed in June 2006. That statutory
section sets forth, in relevant part, as follows:
"Unless the statute describing the offense provides
otherwise, or the period of limitation is extended by [s]ection
3-6 [(720 ILCS 5/3-6 (West 2000))], a prosecution for any
offense not designated in [s]ubsection (a) must be com-
menced within 3 years after the commission of the offense if
it is a felony, or within one year and 6 months after its com-
mission if it is a misdemeanor."
When the State refiled the original counts I through IV as counts VI
through IX, it added language to extend and toll the statute of limitations as follows:
"an extended statute of limitations applies herein pursuant
to 720 ILCS 5/3-6(c) [(West 2006)], since [the victim] and
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defendant are family members as defined in [s]ection 12-12
of the [Criminal] [C]ode and [the victim] would not have
reached her 18th birthday until [May 27, 2005, for A.G. and
March 25, 2004, for J.G.]. The statute of limitations herein
was tolled pursuant to 720 ILCS 5/3-7(c) [(West 2006)] on
July 25, 2001."
The extension statute, section 3-6(c), provides for the following exception
to the limitation period:
"(c) *** a prosecution for any offense involving sexual
conduct or sexual penetration, as defined in [s]ection 12-12
of this Code [(720 ILCS 5/12-12 (West 2006))], where the
victim and defendant are family members, as defined in
[s]ection 12-12 of this Code [(720 ILCS 5/12-12 (West
2006))], may be commenced within one year of the victim
attaining the age of 18 years." 720 ILCS 5/3-6(c) (West
2006).
Section 3-7(c) of the Criminal Code (720 ILCS 5/3-7(c) (West 2006))
provides that the applicable statute of limitations is tolled when: "A prosecution is
pending against the defendant for the same conduct, even if the indictment or informa-
tion which commences the prosecution is quashed or the proceedings thereon are set
aside, or are reversed on appeal[.]"
Throughout the trial court proceedings, defendant claimed the amended
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June 2006 charges filed against him were untimely. Nevertheless, the trial court denied
his motion to dismiss and the case proceeded to trial. Defendant renews his challenge
of the timeliness of the indictments.
The State initially charged defendant with this conduct, by information, on
July 25, 2001. The State alleged the crimes occurred in the "Summer 1998." Pursuant
to section 3-5(b) of the Criminal Code (720 ILCS 5/3-5(b) (West 2000)), these felony
charges were required to be commenced within three years of the commission of the
offense. On June 30, 2006, the trial court dismissed counts I through IV due to the
State's failure to specifically plead an extension of the applicable statute of limitations in
the original charging instrument.
On June 29, 2006, the State amended the charges and returned new
indictments, alleging the identical conduct, but pleading (1) an extended statute of
limitations due to the victims' ages and familial relationship with defendant, and (2)
that the limitations period had been tolled upon the filing of the original charges. Over
defendant's objection, the trial court allowed the State to refile the charges.
This court has previously addressed the issue of whether the trial court
properly allowed the State to amend its charging instrument to include language setting
forth the allegation tolling the statute of limitations. People v. Martin, 266 Ill. App. 3d
369, 640 N.E.2d 638 (1994). In finding no error, we stated:
"Section 111-5 of the Code of Criminal Procedure of 1963
(Procedural Code) (Ill. Rev. Stat. 1991, ch. 38, par. 111-5 [now
725 ILCS 5/111-5 (West 2006)]) provides that a charging
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instrument may be amended at any time to correct formal
defects. [Citation.] If the amendment does not involve a
material change in the allegations contained in the original
charging instrument, the amendment is merely technical in
nature and constitutes a formal defect within the meaning of
section 111-5. Furthermore, a defendant's lack of surprise by
the amendment strengthens the finding that the amendment
is merely technical. [Citation.] Where the defendant is
neither surprised nor prejudiced, the trial court commits no
error in allowing the State to amend the charging instru-
ment." Martin, 266 Ill. App. 3d at 373, 640 N.E.2d at 641-42.
Defendant cannot contend he was prejudiced or surprised by the June
2006 amendment charging him with precisely the same conduct that was the subject of
the proceedings then pending against him. The new charges alleged the extension of the
statute of limitations pursuant to section 3-6(c) of the Criminal Code (720 ILCS 5/3-
6(c) (West 2006)), which required the charges to be filed within one year of the victims'
eighteenth birthdays, by March 25, 2005, and May 27, 2006. Because the original
pending July 2001 charges tolled the statute of limitations, the June 2006 charges were
timely filed.
Defendant poses an alternative claim as follows: "Assuming arguendo,
that the State properly charged the extended term and tolling language, the State still
failed to present any evidence regarding either the extended term or a tolling of the
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limitation term at trial." (Emphasis in original.) In support, defendant cites People v.
Coleman, 245 Ill. App. 3d 592, 596, 615 N.E.2d 53, 55 (1993), for the following proposi-
tion: "[T]he facts upon which an extension of the limitations period is sought are
material allegations to the criminal charge which not only must be proved but must be
pleaded as well." Indeed, other courts have likewise held using similar language. See
People v. Stone, 374 Ill. App. 3d 980, 987, 871 N.E.2d 871, 877 (2007) (an element of the
State's case to allege and prove); People v. Meier, 223 Ill. App. 3d 490, 491, 585 N.E.2d
232, 234 (1992) (allegations must not only be proved but pleaded as well); People v.
Hawkins, 34 Ill. App. 3d 566, 568, 340 N.E.2d 223, 225 (1975) (an element which must
always be pleaded and proved). These holdings are derived from the supreme court's
decisions in People v. Strait, 72 Ill. 2d 503, 381 N.E.2d 692 (1978), and People v. Morris,
135 Ill. 2d 540, 554 N.E.2d 150 (1990). Both cases considered the State's appeal after
the appellate courts had reversed the defendants' convictions, finding that the charging
documents should have been dismissed as insufficient for failing to allege the tolling of
the limitation period. See Strait, 72 Ill. 2d at 506, 381 N.E.2d at 693; Morris, 135 Ill. 2d
at 548, 554 N.E.2d at 153-54.
In Strait, the court stated: "This court has consistently held that[,]
although the precise allegation and proof of time or date are not necessary, the charging
document must allege that the crime was committed at some time prior to the return of
the indictment or the filing of the information and within the period fixed by the statute
of limitations. [Citations.] Alternatively, facts may be alleged and proved which by
reason of the provisions of sections 3-6, 3-7[,] and 3-8 [(now 720 ILCS 5/3-6, 3-7, 3-8
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(West 2006))] would toll the running of the statute." Strait, 72 Ill. 2d at 505-06, 381
N.E.2d at 693.
In Morris, the court noted that Strait was "still controlling precedent in
Illinois" and reiterated the "long-established rule," stating: "Where an indictment on its
face shows that an offense was not committed within the applicable limitation period, it
becomes an element of the State's case to allege and prove the existence of facts which
invoke an exception to the limitation period." Morris, 135 Ill. 2d at 543, 546, 554 N.E.2d
at 151, 153.
We conclude that the principle, as stated in Strait and Morris, that the
State must plead and prove the circumstances justifying either an extension or tolling of
the limitation period, should not be interpreted to mean the State has to prove such
circumstances to the jury in every case. As discussed below, there may be times when
the State must prove to the fact finder at trial the allegations related to the applicable
statute of limitations. However, in the majority of cases, including the case before us,
the State must prove to the court before the trial, upon a challenge by the defendant,
typically in the form of a motion to dismiss pursuant to section 114-1(a)(2) of the
Procedural Code (725 ILCS 5/114-1(a)(2) (West 2006)), that particular circumstances
justify an extension or tolling of the limitation period. The court either decides the
question of law (725 ILCS 5/114-1(c) (West 2006)), or if questions of fact arise, the court
conducts a hearing to determine the issues (725 ILCS 5/114-1(d) (West 2006)). The
remedy for the State's failure to sufficiently plead and/or prove the circumstances is the
dismissal of the charging document, not an acquittal. Should the trial court find the
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charging documents insufficient in this regard, the State has the option to amend or
refile the charges. See People v. Cray, 209 Ill. App. 3d 60, 65, 567 N.E.2d 598, 601
(1991) (the State's failure to include tolling or extending information in the indictment is
a technical error and allows for reindictment). The case law referred to above requires
the State to specifically plead the facts upon which it relies in prosecuting the defendant
for a crime that appears to have been committed beyond the limitation period.
"[T]he purpose of requiring specificity [in the charging instrument] is to
provide notice to the defendant of precisely what the State will attempt to prove (and
therefore to allow the defendant an opportunity to prepare a defense)***." Morris, 135
Ill. 2d at 547, 554 N.E.2d at 153. There are a multitude of statutory reasons for the
possibility of extending or tolling the statute of limitations. See 720 ILCS 5/3-6, 3-7
(West 2006). For that reason, it necessarily follows that the State should be required to
sufficiently and specifically plead such circumstances in order to provide the defendant
notice. If those circumstances are not sufficiently and specifically pleaded, the defen-
dant may challenge the sufficiency of the indictment or information, as stated above, by
filing a motion to dismiss pursuant to section 114-1(a) of the Procedural Code (725 ILCS
5/114-1(a) (West 2006)). Upon such a challenge, the burden shifts to the State to prove
to the trial court that (1) the prosecution of the defendant is proceeding within the
applicable time frame, (2) the charging instrument is, in fact, valid, and (3) the case
should proceed to trial. The State's burden to "prove," as the term is used in the above-
cited case law, does not mean the jury must always determine whether the extension or
tolling applies. That, in and of itself, is a question of law for the trial court. See Barnett
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v. Clark, 113 Ill. App. 3d 1091, 1092-93, 448 N.E.2d 254, 254 (1983) (question of whether
a statute of limitation is tolled is a question of law). See also People v. Bruner, 343 Ill.
146, 156, 175 N.E. 400, 404 (1931) (long-established rule that jurors in a criminal trial
have no right to decide questions of law).
Our decision here that the State must allege and prove to the trial court,
not always to the jury, that the prosecution is proceeding within the applicable statute-
of-limitations period is supported, not only by the case law set forth above, but by the
section of the Procedural Code governing motions to dismiss. Section 114-1(a)(2) of the
Procedural Code (725 ILCS 5/114-1(a)(2) (West 2006)) provides that a defendant may
move to dismiss the charging instrument if he believes the charges are barred by the
limitation period and no extension or tolling provision applies. Here, no questions of
fact were open for resolution as to the circumstances justifying an extension of the
statute of limitations because the ages of the victims and their familial relationship to
defendant were not contested. Section 114-1(c) provides that the trial court shall
determine any question of law presented by a motion to dismiss. See 725 ILCS 5/114-
1(c) (West 2006). Thus, we find sections 114-1(a)(2) and (c) of the Procedural Code
(725 ILCS 5/114-1(a)(2), (c) (West 2006)) do not run afoul of the principle set forth in
Strait and Morris. Whether the prosecution of a defendant is barred by the applicable
statute of limitations and, likewise, whether the applicable statute of limitations has
been extended or tolled are generally questions of law that must be decided by the trial
court. The State has the burden of pleading and proving any element extending or
tolling the limitation period if the defendant challenges the timeliness of the charges in
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a pretrial motion to dismiss.
As defendant indicates, a jury instruction addresses the State's burden of
proving any exception to the applicable statute of limitations. See Illinois Pattern Jury
Instructions, Criminal, No. 24-25.23 (4th ed. 2000). However, we have found no
appellate decision referencing the use of this instruction at trial. The committee note
regarding this instruction quotes Morris as the basis for the instruction. See Morris, 135
Ill. 2d at 546, 554 N.E.2d at 153. Neither Morris nor any case referring to the State's
burden to prove this element addresses the issue in the context of a jury trial. See
Morris, 135 Ill. 2d at 546, 554 N.E.2d at 153 (question presented upon a motion to
dismiss); Strait, 72 Ill. 2d at 504, 381 N.E.2d at 693 (bench trial); People v. Carman, 385
Ill. 23, 24, 52 N.E.2d 197, 198 (1943) (jury trial, but the court noted the issue presented a
question of law); People v. Ross, 325 Ill. 417, 418, 156 N.E. 303, 303 (1927); Stone, 374
Ill. App. 3d at 981, 871 N.E.2d at 873 (guilty plea); Coleman, 245 Ill. App. 3d at 593, 615
N.E.2d at 54 (motion to dismiss); Meier, 223 Ill. App. 3d at 490, 585 N.E.2d at 233
(bench trial); Hawkins, 34 Ill. App. 3d at 567, 340 N.E.2d at 223 (bench trial); People v.
Munoz, 23 Ill. App. 3d 306, 306, 319 N.E.2d 98, 99 (1974) (motion to dismiss).
Although there have been no reported decisions in which the jury was
required to determine a statute-of-limitations issue, such a situation is possible. If the
information or indictment sufficiently alleges that the crime occurred within the
applicable limitations period, a defendant would have no basis to challenge the charging
document in a pretrial motion. See People v. Adams, 161 Ill. 2d 333, 342, 641 N.E.2d
514, 518 (1994) (pretrial motion was not required challenging venue as it was suffi-
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ciently alleged; failure to prove at trial was another matter). However, a factual issue
may arise at trial in the form of witness testimony or documentary evidence. In that
case, the factual issue would be resolved by the jury and the jury would be instructed
regarding the applicable law. This is not one of those cases. The State alleged the
extension and tolling of the statute of limitations. Although defendant challenged the
timeliness of the charges, he did not dispute the victims' birthdays were different than
those alleged in the charging instrument. He raised no factual dispute on the conditions
upon which the State relied in extending the limitation period. There was nothing in
this case for the jury to decide.
Simply put, the decision of whether circumstances exist that either extend
or toll the applicable statute of limitation is typically not one for a jury if that issue can
be raised and argued prior to trial. That is, if the question is raised by the allegations as
they appear in the charging instrument. The State's burden of proof does not always
extend to a responsibility to adduce evidence of the exception to the limitations period
before the jury. Again, the State must plead and subsequently prove to the trial court
the circumstances that would justify any extension or tolling of the general applicable
statute of limitations when the defendant challenges the timeliness in a pretrial motion.
Here, the State satisfied its burden when defendant challenged the
timeliness of the indictments. At a hearing, the State proved, to the satisfaction of the
trial court, that circumstances existed that effectively tolled and extended the applicable
statute of limitations. We find no error in the court's decision.
B. Ineffective Assistance of Counsel
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Defendant next contends his trial counsel was ineffective for failing to
present a defense and tender the appropriate jury instruction relating to the statute-of-
limitations issue. Defendant urges this court to consider his claim in the context of the
standards set forth in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674,
693, 104 S. Ct. 2052, 2064 (1984) (to succeed, a defendant must demonstrate counsel's
substandard performance and resulting prejudice). Our decision on the previous issue,
set forth above, precludes further discussion on this issue and is determinative of
defendant's claim of ineffective assistance of trial counsel. We found no error in the
trial court's decision allowing the State to proceed on the June 2006 indictments, which
sufficiently alleged the statute of limitations had been extended and tolled.
C. One-Act, One-Crime
Finally, defendant contends his conviction on "count IV" violated the one-
act, one-crime rule. (Throughout his argument in his opening brief, defendant refers to
"count IV" even though that count was dismissed prior to trial. In his reply brief, he
admits the reference to count IV was error and he intended the same argument with
regard to count IX. Therefore, we will address the matter with reference to count IX.)
Prior to the instant charges being filed against defendant in Champaign
County, defendant pleaded guilty to similar charges in Coles County. In 2000, Coles
County charged defendant with four counts of criminal sexual assault (720 ILCS 5/12-
13(a)(1), (a)(3) (West 1998)). Defendant pleaded guilty to two counts (counts I and II)
in exchange for the State's dismissal of the remaining two. Count II alleged that in 1998,
in Coles County, defendant sexually penetrated J.G. by placing his mouth over her
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vagina and his fingers in her vagina. Count IX of the Champaign County indictments
alleged defendant placed his mouth on J.G.'s "sex organ" in the summer of 1998 in
Champaign County. Throughout these proceedings, including the previous appeals, it
has been uncontested that the Coles County charges and the Champaign County charges
are based on the same acts.
Defendant argues that the one-act, one-crime rule has been violated in
that defendant has been punished twice for the same act. He acknowledges that
typically such violation is remedied by vacating the conviction of the lesser crime. The
lesser crime in this instance is his conviction in Coles County of criminal sexual assault
(720 ILCS 5/12-13(a)(1), (a)(3) (West 1998)), a Class 1 felony. As defendant admits, this
court lacks the authority to vacate that conviction because it is not before this court in
this appeal. Instead, he argues that, due to the "unique problem" before us, we should
vacate his Champaign County conviction and sentence on count IX for predatory
criminal sexual assault (720 ILCS 5/12-14.1(a)(1) (West 2000)), a Class X felony, despite
the fact that it is considered the more serious offense.
The case law makes clear that "[o]f course, when a defendant is charged in
several counts with a single offense and multiple convictions have been entered, the
'one-act, one-crime' doctrine provides that judgment and sentence may be entered only
on the most serious offense." People v. Smith, 233 Ill. 2d 1, 20, 906 N.E.2d 529, 540
(2009). See also People v. Artis, 232 Ill. 2d 156, 170, 902 N.E.2d 677, 686 (2009);
People v. Mack, 105 Ill. 2d 103, 137, 473 N.E.2d 880, 898 (1984). Some discussion of
the general principles regarding the application of the one-act, one-crime doctrine is
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necessary for an understanding of our disposition. In People v. King, 66 Ill. 2d 551, 363
N.E.2d 838 (1977), the supreme court held:
"Prejudice results to the defendant only in those
instances where more than one offense is carved from the
same physical act. Prejudice, with regard to multiple acts,
exists only when the defendant is convicted of more than one
offense, some of which are, by definition, lesser included
offenses. Multiple convictions and concurrent sentences
should be permitted in all other cases where a defendant has
committed several acts, despite the interrelationship of those
acts. 'Act,' when used in this sense, is intended to mean any
overt or outward manifestation which will support a differ-
ent offense. We hold, therefore, that when more than one
offense arises from a series of incidental or closely related
acts and the offenses are not, by definition, lesser included
offenses, convictions with concurrent sentences can be
entered." King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.
We find that none of the factors set forth in King apply here. First, we do
not have a situation where more than one offense is carved from the same physical act.
Regardless of any concession on the parties' behalf that the two different prosecutions
in two different counties were based on the same conduct, the concept with regard to a
particular act is an impossibility. Granted, some of the conduct alleged in the various
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counts in both counties may have overlapped in terms of where the incident actually
occurred. Some incidents may have occurred in Coles County, some in Champaign
County, and some in both counties. However, based on the record before us, we can
assume only that defendant, on more than one occasion, placed his mouth on J.G.'s
vagina. Defendant admitted that one such act occurred in Coles County. The State
proved at trial that one such act occurred in Champaign County. The same physical act
could not have occurred in both counties at the same time. Thus, based on this record,
we do not have before us the situation set forth in King where "more than one offense is
carved from the same physical act." King, 66 Ill. 2d at 566, 363 N.E.2d at 844.
Second, we do not have a situation where defendant has suffered prejudice
from being convicted of more than one offense for multiple acts because neither of the
two offenses for which he was convicted is, by definition, a lesser-included offense of the
other. See Gray, 214 Ill. 2d at 8, 823 N.E.2d at 559 (each offense required proof of an
element not required by the other). If the offense is not a lesser-included offense, then
multiple convictions are permissible. People v. Rodriguez, 169 Ill. 2d 183, 186, 661
N.E.2d 305, 306-07 (1996).
The evidence in this case has been muddled with inconsistencies about
where and when defendant actually sexually abused the victims. Evidence supports the
conclusion that the acts occurred in either or both counties. Our duty as a court of
review is not to determine where or when the conduct actually occurred. See In re Gino
W., 354 Ill. App. 3d 775, 777, 822 N.E.2d 592, 594 (2005) ("The fact finder, not a court
of review, must assess the credibility of the witnesses, resolve conflicts in the evidence,
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and decide what reasonable inferences to draw from the evidence"). We must assume,
given this record, that the act alleged in count IX occurred at least once in Coles
County, as defendant admitted by pleading guilty to count II there, and at least once in
Champaign County as the jury found based on the evidence presented during trial.
With more than one act at issue, the one-act, one-crime doctrine is inapplicable. See
People v. Simpson, 54 Ill. App. 3d 504, 506, 369 N.E.2d 915, 916 (1977) (one-act, one-
crime does not apply when "two offenses [that] constitute different acts *** arose from
different conduct occurring in different counties and at different times").
During the pendency of this appeal, defendant filed a motion to strike
portions of the State's brief. In particular, defendant claimed the State's citation to this
court's prior Rule 23 order in People v. Gray, No. 4-07-0117 (July 28, 2008) (unpub-
lished order under Supreme Court Rule 23), was improper. We ordered the motion to
be taken with the case and we now deny defendant's motion as the citation was not
made as a citation to the law enumerated in our previous Rule 23 order but rather a
reference to the prior proceedings before this court.
III. CONCLUSION
For the foregoing reasons, we affirm the trial court's judgment. As part of
our judgment, we award the State its $75 statutory assessment against defendant as
costs of this appeal.
Affirmed.
KNECHT and POPE, JJ., concur.
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