*1
allegations
prosecutorial
defendant’s
misconduct
that were not
properly
Johnson,
preserved. See
I further during believe that Weber’s misconduct argu- his rebuttal ment entirety viewed its was sufficient in require and of itself to reversal. I believe deprived that defendant was of what he was entitled to receive and constitutionally what State was required provide: a fair trial. For my original the reasons set forth in dissent and for now, these reasons I continue respectfully dissent. ILLINOIS,
THE PEOPLE OF THE Plaintiff-Appellee, STATE OF PALMER, Defendant-Appellant. NATHAN Second District No. 2—02—0592
Opinion filed March *3 JOHNSON, J., specially concurring. GILLERAN BOWMAN,J., dissenting part. in Miller, Joseph Appellate G. Darren of Weller and E. both Defender’s
Office, Elgin, of appellant. (Martin Meg Gorecki, Attorney, Moltz, of St. Charles P. of State’s State’s Roe, Attorneys Office, counsel), and of Appellate Prosecutor’s John R. Chicago, People. for the of the opinion
JUSTICE McLAREN delivered the court: trial, Palmer, defendant, Following jury a Nathan was convicted (720 4(a), ILCS attempted degree one count of first murder 5/8 — (720 1(a)(1) (West 2002)), home invasion ILCS two counts of 9— (720 (West ILCS. robbery 2002)), count of armed 5/18— 5/12—11 2(a) (West sexual as aggravated 2002)), and four counts 2002)). 14(a)(2) (West an (720 Adjudged 14(a)(1), ILCS sault 5/12 — life consecutive to seven criminal, was sentenced defendant habitual impos in erred that the court argues defendant appeal, sentences. On 1(c) sentences, section because life ing consecutive 33B — (720 statute) (the ILCS habitual criminal of 1961 Criminal Code 2002)) 1(c) (West connected that convictions mandates 5/33B — (720 ILCS as one conviction be counted the same transaction 5/33B— (West 2002)). 1(c) of the convic addition, argues that two defendant King, 66 People in one-act, rule set forth one-crime tions violate differentiate indictment failed to (1977), and that the Ill. 2d assault, required under acts of criminal sexual between (2001) opinion (supplemental Ill. 2d Crespo, People 2003). in and vacate part, reverse part, affirm filed March We part. 22, 2000, defendant was March indictment filed on
In an amended invasion, attempted one count counts of home charged with two assault, and one criminal sexual murder, four counts entered alleged I that defendant robbery. armed Count count of force the use of and used force or threatened dwelling place of M.J. alleged II that defendant dangerous weapon. Count while armed with a injury him intentionally caused of D.J. and dwelling place entered the defendant intended alleged Count III by slashing his throat. slashing his cord and him with an electrical by strangling kill D.J. defendant, a displaying while alleged IV and V throat. Counts by the use of vagina of M.J. knife, placed penis his the mouth bodily harm to caused alleged VII that defendant force. Counts VI and alleged VIII vagina. Count M.J. her mouth placing ring from knife, took cash and defendant, armed with a while threatening the use of force. force or byM.J. the use of purposes for the necessary recitation of the facts Only a brief 18, 1999, p.m., 12:30 approximately at appeal. July On M.J., apartment. of M.J. and D.J.’s two-bedroom knocked on the door time. at the apartment D.J., their children were inside two M.J. newspaper, and buy if M.J. she wanted Defendant asked at the sitting on the couch D.J., that she did not. who was replied At this buy newspaper. time, did not wish also indicated that he M.J. although standing apartment, inside the point, defendant was *4 him enter. had not invited neck. M.J.’s placed against knife it out a steak
Defendant took defendant get purse, and D.J. to M.J.’s instructed M.J. Defendant room, defendant living were given While the children was $50. then directed M.J. and D.J. bedroom, into the where he took M.J.’s wedding ring. Defendant then tied D.J.’s hands with an extension cord and had place pillow M.J. case over D.J.’s head. Defendant threatened kill D.J. if M.J. refused to comply.
Next, defendant unzipped his shorts and told M.J. to “suck” his penis. Defendant get made M.J. on her before “shov[ing] knees it in [her] mouth” for about 20 During time, minutes. this defendant held the knife at M.J.’s back. ejaculate. Defendant failed to When the children came to the door, bedroom defendant instructed M.J. to make them return to living room. Defendant then had M.J. suck his penis again, although ejaculate. he did not At point, defendant had M.J. clothes, remove her get bed, on the and “play her genitals.” Defendant fondled again but ejaculate. failed to himself
Defendant then directed get bed, D.J. to on the and told M.J. to “suck” penis. trial, D.J.’s At M.J. testified that placed defendant also his penis or his fingers into her vagina for a minute or two. After reviewing her taped police statement regarding incident, M.J. testified that she had police told that defendant penis inserted his into vagina. her
Next, defendant and M.J. went into the kitchen and defendant took some beer out of refrigerator. Upon returning bedroom, to the defendant “shoved” his mouth, into causing M.J.’s her to vomit. After defendant forced M.J. up vomit, to clean he had her sit on a chair where he tied her wrists with an electrical cord. Defendant again forced his penis into her mouth for about 15 minutes. After failing to ejaculate, placed defendant pillow head, case over M.J.’s hit her face, put a mouth, towel her put her in the bathroom.
While in bathroom, M.J. removed the pillow case from her head and observed defendant and D.J. struggling the bedroom. Ac- cording D.J., defendant attempted to him strangle with the exten- cord, sion pretended and D.J. that he dying. was After learning that D.J. trying him, was to trick defendant took the knife and slit his throat. M.J. then ran screaming apartment, out defendant exited stairwell, via the and a 911 operator called.
The jury found defendant guilty eight on all judgment counts and was entered February 27, May 14, 2002, 2002. On the State filed a petition to have adjudicated May an habitual criminal. On 30, 2002, defendant filed a motion for a trial and a new motion to (720 (West 2002)) declare the habitual criminal statute ILCS 5/33B—1 unconstitutional. The court denied these motions.
At hearing petition, on the presented the State copies certified of convictions showing that defendant was convicted of criminal sexual 14, 1987, assault on October criminal sexual assault
947 ac- information was 25, that this stipulated Defendant on March 1994. to be requirements necessary statutory met the and that he curate an adjudged The court an habitual criminal. adjudicated 30, counts The court then ordered that May habitual criminal merge of sentenc- purposes I for the and II as to home invasion would life for sentences to seven consecutive Defendant was sentenced ing. through II counts VIII. in imposing that the court erred appeal, defendant contends
On matter, the As we note that preliminary life consecutive sentences. at it was not raised issue waived because argues that this 615(a), may we review pursuant to Court Rule Supreme trial. they where were plain affecting rights errors substantial even 615(a). of trial court. 134 Ill. 2d R. brought to the attention the affecting a as matters sentencing regarded Because issues are from rights excepted are thus the doctrine defendant’s substantial waiver, People argument. of we consider the of defendant’s See merits (2000). Baaree, 1049, v. App. 315 Ill. 3d 1050-51 defendant,
According imposing the court erred in seven consecu sentences, prohibits tive life because the habitual criminal statute than one of life all imposition imprisonment more sentence when transaction, the convictions “are the same or result connected with (720 1(c) from offenses at same time” ILCS committed 5/33B — (West 2002)). that, Defendant maintains because all his convictions 1(c) transaction, were connected section same 33B — for they purposes mandated that be treated as “one conviction” conviction,” life sentencing. Thus, based on this “one statutory sentence been As an issue imposed. should have this is construction, Lieberman, de In re 201 our review is novo. Detention of (2002). 300, Ill. 2d 307 objective construing is primary meaning
Our
in
of a statute
Lieber
give
legislature.
ascertain and
effect to the intention of the
intent,
man,
Ill.
we
legislative
201
2d at 307.
order
determine
“
statute,
of the
‘the
reliable
language
examine
which is
most
”
particular
of the
in
law.’
legislature’s objectives
enacting
indicator
Lieberman,
308, quoting Michigan
201 Ill. 2d at
Avenue National
(2000).
Cook,
County
statutory
Bank v.
191
2d
Ill.
504
ordinary,
popularly
is to
its
understood
language
plain,
be afforded
Lieberman,
If
meaning.
language
(e) Except
penalty
imposed, anyone
when the death
adjudged
an
shall
habitual criminal
be sentenced to
imprisonment.”
life
720
(West2002).
ILCS 5/33B—1
Adjudication as an
subjects
habitual criminal
a
a defendant
to
mandatory sentence of
life imprisonment.
question
natural
The
before
us is whether an
may
habitual criminal
life
receive consecutive
sentences for offenses
were
that
connected with the same transaction.
While the habitual criminal statute has withstood numerous constitu
(see
tional
v.
People Dunigan,
(1995)),
attacks
It is the State’s that trial properly the court imposed life in The dispute consecutive sentences this case. State does not that defendant’s convictions were connected with the same transaction. Rather, the the State asserts that word “convictions” in section 33B— 1(c) convictions,” necessarily “prior refers to and not the offenses by present committed defendant in the further case. State asserts that apply present the term “conviction” cannot to defendant’s of- imposition a a requires fenses since “conviction” of sentence. We reject these arguments. both of 1(c) previously,
As stated section of the habitual criminal 33B— explicitly “[a]ny statute states that convictions which result from or transaction, are with the same or result from offenses com connected time, mitted same be for the of purposes at the shall counted this Sec 1(c) 2002). (West tion as one conviction.” 720 ILCS constru 5/33B— whole, a are ing together the of the statute as as we bound to sections 1(a) (b) do, language explicitly we that the sections note 33B— However, “2 prior the refers to a “2 convictions.” words defendant’s 1(c). Rather, noticeably that section prior” are absent section 33B—
949 *** counted for shall be “[a]ny convictions expressly states 1(c) ILCS of as one conviction.” 720 this Section purposes 5/33B — 2002). (West instance used certain words legislature When another, intended different results were and different words Governing Costello equivalents. as interpreted the terms cannot Ass’n, 558 App. Ill. 3d Special Lee Education County Board of (1993). convictions,” plain any prior to “2 Absent reference 1(c) “[a]ny convic explicitly of mandates that language section 33B— Moreover, legislature had the be counted as one conviction. tions” 1(c) prior “2 a defendant’s apply intended section 33B— convictions,” State, it could have said so. posited by easily strictly statutory compel of us to principles construction read into criminal in favor of the accused construe statutes exceptions, limitations, them or conditions. argument that defendant’s persuaded by
Nor are we State’s of may purposes current be considered “convictions” offenses State, According encompass finding a statute. “convictions” guilty found guilty a sentence. Because defendant here was counts, eight to the habitual except pursuant but never sentenced statute, argues the term “convictions” cannot present apply disagree. to the offenses. We The term “a or judgment “conviction” is defined as conviction upon upon finding sentence entered a or a verdict or plea guilty offense, of an or guilty legally jury rendered constituted competent jurisdiction try court of the case authorized without (West 2002). jury.” According principles to the ILCS 5/2—5 construction, disjunctive “or” statutory material to side of the either Franklin, Ill. separately. People must be viewed 2d (1990). Thus, itself plain language the definition indicates that “a “a judgment conviction” and sentence” are and distinct. *7 Franklin, result, 135 Ill. 2d at As a 106. defendant was “convicted” judgment present offenses when the trial court entered a on the 1(c) guilty, applies. verdict of and section 33B— required The also contends the trial court was that pursuant sentence defendant to consecutive life sentences to section 8—4(a) 8—4(a) of Section the Unified Code Corrections. 5— 5— provides: on a multiple imprisonment imposed “When are sentences of *** time, concur- at the the sentences shall run defendant same ***
rently The court consecutively or as determined the court. impose offenses were shall not consecutive sentences for which during there part single of a course of conduct which committed objective, change was no the nature of the criminal substantial unless:
950 (i) of the offenses for which defendant was convicted *** felony
was
a Class X or
1
Class
and the defendant inflicted
bodily injury,
severe
or
(ii) the defendant was convicted of a
violation
Section
***
14,
or 12—14.1 of the Criminal
Code
12— 12—
in which event
court
shall enter
sentences
run
8—4(a) (West 2002).
consecutively.” 730 ILCS 5/5—
all of
Because
the offenses
committed
defendant
X
were Class
felonies, and because defendant
inflicted
bodily injury
severe
to both
D.J.,
M.J. and
it
position
is the State’s
that consecutive sentences in
were mandatory.
disagree.
case
We
In imposing
sentences,
seven consecutive life
the trial court
8—4(a)
that it
indicated
relied
section
and People Curry,
5—
(1997). However,
Ill. 2d 509
Curry
the court’s reliance on
misplaced.
Curry,
court held that consecutive sentences are
mandatory only for those
that
trigger
application
offenses
of sec
8—4(a).
tion
Curry,
There,
2d
Ill.
at 538.
the defendant was
5—
convicted
one count of
burglary,
nontriggering offense,
residential
assault,
two counts of criminal sexual
triggering
Curry,
offense.
8—4(a)
178 Ill. 2d at
court held that section
must be
5—
so
any
construed
that
consecutive
imposed
triggering
sentences
of
to,
of,
prior
independent
fenses be served
any
imposed
sentences
for nontriggering
Curry,
offenses.
consecutive sentences this case. Section concerns the 5— imposition of concurrent or consecutive terms when a defendant multiple imprisonment. receives sentences of Because the habitual precludes criminal receiving statute defendant from multiple sentences case, in this not triggered. already section is As we have 1(c) determined, section of the habitual statute 33B — mandates defendant’s convictions be counted as “one conviction” they since were all connected with same transaction. Because conviction,” can defendant be sentenced for “one section 5—8— 4(a) Moreover, apply required adjudge does court was criminal, an provisions habitual of that statute (1989) Sookhakitch, govern. App. See Antunes Ill. 3d (Illinois long principle statutory courts have followed the construc specific statutory tion provisions general statutory control over provisions). argument
The State’s final that defendant should
951 offenses, all multiple committed conviction when he for one sentenced legislative the criminal statute. While trigger the habitual of which in section currently contained language to the history is silent as 1(c) (the (b)), our part of subsection language originally 33B— related multiple, treat state courts has revealed that other research offender 1998) (in of habitual purposes conviction for convictions as one (Ind. 834, State, 839 Carter v. 686 N.E.2d enhancements. See finding of and a multiple-felony convictions the event of simultaneous resulting penalty status, impose must the trial courts habitual offender specify the only of the convictions and must upon enhancement one Dietrich, enhanced); 183 W. Va. Hutchinson conviction to so (1990) on the convictions rendered (multiple 666 S.E.2d for of the single purposes treated as a conviction day same should be statute, convictions can be enhanced multiple habitual criminal It the sentencing). for of purposes under the statute once court, the this to declare define province legislature, of and not and extent constituting conduct a crime and determine nature Consequently, Dunigan, a 165 Ill. 2d at of criminal sentence. conviction convictions should be treated multiple defendant’s As sentencing for the under the habitual criminal statute. purposes such, sentencing imposing trial order seven we vacate the court’s authority Supreme life to our under consecutive sentences. Pursuant (134 615(b) 615(b)), we term Court Rule Ill. 2d R. reduce defendant’s to one life sentence. matter,
As a final defendant asks this court to vacate follow- (1) (count (2) I); the conviction ing: the conviction home invasion (count (3) V); for aggravated sentence criminal sexual assault of and criminal sexual assault conviction sentence (count IV). error as to all three counts. Under State confesses I, particular case, agree facts of and V we and vacate counts IV count I be requests Defendant first conviction on one-act, vacated under one-crime doctrine. Defendant was alleged convicted of counts of home invasion. Count I two dwelling defendant entered the of M.J. and used force or place dangerous against threatened the use of force her while armed with alleged dwelling place weapon. Count II that defendant entered slashing intentionally injury by D.J. and him his throat. While caused merged sentencing, the purposes the court counts I and II for thé have conviction on argues court should vacated the (1996) Cole, 85, Ill. 2d agree. People count I as well. See We (a conviction, single entry regardless of the support only single will statute). Ac respect number the home invasion occupants count I. cordingly, we vacate conviction on requests Defendant also us to vacate conviction on count V one-act, under the one-crime doctrine. Defendant was convicted two of aggravated counts criminal sexual against assault M.J. forcibly into placing vagina. her Count V alleged that defendant com mitted assault while displaying dangerous weapon, and count *9 alleged VII that bodily defendant inflicted harm M.J. while commit ting the assault. Defendant that maintains the conviction for count V was based on penile penetration the same incident of alleged VII, thereby one-act, count violating one-crime rule forth in set Ill. King, agree. 66 2d at 566. We
Multiple convictions cannot be carved from the same physical act. Thus, King, 66 Ill. 2d 566. at defendant cannot convicted two aggravated counts of criminal sexual assault there only where one Daniels, act penetration. People of sexual v. Ill. App. 331 3d 386 (2002). The State concedes that there was one incident involving the penile penetration Therefore, of M.J. we vacate the conviction of aggravated criminal sexual upon display assault based a danger (between weapon. Daniels, ous See 3d App. 331 Ill. at 386-87 two aggravated convictions for criminal predicated upon sexual assault penetration, act of sexual aggravating conviction that has as its factor the display dangerous of a weapon is less serious than conviction harm). upon causing bodily based Accordingly, defendant’s conviction on count V is vacated.
Last, requests defendant this court to vacate the conviction (2001) upon Crespo, count based Ill. People 2d 335 IV 2003). (supplemental opinion filed March Defendant was convicted aggravated two counts of criminal sexual upon assault based placing defendant use by M.J.’s mouth of force. Count alleged IV that displayed dangerous weapon defendant com while offense, mitting and count VI that alleged defendant caused M.J. bodily committing harm while dispute offense. Defendant does not that multiple there were instances of forcible sex this case. As a result, arguing one-act, a violation of the one-crime Rather, King. rule set forth in defendant maintains that the convic tion on count IV should be vacated because IV and did not counts VI distinguish way in a him that acts that notified the State was seeking separate rather merely relating convictions than alternative liability theories one act. argument Crespo,
Defendant’s
is based on
a recent decision
our
supreme
Crespo,
court. In
the defendant
stabbed the victim three
times, and each
been
stabbing
separate
could have
the basis of a
charged
conviction.
203 Ill.
at
Crespo,
2d
344.
the counts as
wounds,
did
the separate
merely
not differentiate between
stab
but
of-
2d
203 Ill.
at
culpability. Crespo,
theories
fered different
right to be informed
reiterating
fundamental
In
a defendant’s
342.
against him so that
accusations
of the criminal
the nature and cause
would
defense,
the defendant
the court noted that
may prepare
he
that
the State
appeal
was on
have known until
the cause
Crespo,
offense.
separate
separate
to be a
each of the
stabs
considered
must
that an indictment
Accordingly,the court held
ficiently sustain Olivieri, App. Ill. 3d People each count. sentencing for (2002). However, defendant was majority the Olivieri noted that the prior hearing at a that the State intended preliminary notified to trial Olivieri, 334 3d at 315. multiple App. convictions. Ill. to seek reasoning reject us in Olivieri and urges Defendant distinguish determine that counts IV and VI in this case did not in a him convictions rather than way apprised acts alternative were intended the State. The State confesses *10 theories Olivieri, point. agree. Crespo error on this We Like unlike trial, apprised, prior not that the State intended to defendant was prosecute separate him for acts. reasons, counts
For the above we vacate defendant’s convictions on I, remaining convictions, they Of are to be and V defendant’s IVJ sentencing for under the purposes counted as “one conviction” the result, habitual criminal statute. As a we reverse the trial court’s life judgment imposing seven consecutive sentences sentence upon the most seri- imprisonment defendant to one of life based term conviction, attempted degree ous first murder. in foregoing reasons, part, part,
For we reverse the affirm judgment County. vacate in the of the circuit court of Kane part part, part, part. and vacated in Affirmed reversed JOHNSON, concurring: specially GILLERAN JUSTICE my colleague, I write Although agree by I with the result reached that, case, unique separately explain my under the facts this view under the conviction of criminal sexual assault defendant’s count IV of the indictment should be vacated. multiple
In
that in order to
Crespo,
supreme
our
court held
sustain
convictions, the
inform the defendant
it intends to
State must
that
treat
or her
as separate
Crespo,
his
conduct
acts.
In conceded, the State appellate both its brief and during argument, oral that the defendant here sufficiently was not informed that the was charging State him with separate two acts of view, forcible oral In the sex. State’s it not was unreasonable charged crime, defendant to believe that he being was with the same based on alternate theories. In making error, its confession State admits that it did not properly argue separate jury acts sufficiently concedes that the trial court did jury not instruct the that charges separate were on I agree. based acts. The defendant charged here with sex, two counts of oral forcible under IV counts and V of the closing indictment. its during argument, State failed to explain separate. the defendant’s acts were Instead of arguing that the defendant separate committed two acts forcible sex, oral argued the State that it was on proceeding “two different theories.” The argued State further that “the defendant committed an penetration, act sexual both entering [the victim’s] mouth penis, with as well as entering vagina penis.” her with his Finally, the trial court instructed if jury proceed- were State ing on alternate explained jury theories. trial court to the that the charged defendant was “in ways” different with the ag- offense of gravated sexual assault. conclusion, I that the did properly represent believe jury
to the defendant was being charged separate with two Furthermore, acts of forcible oral sex. the trial court did suf- ficiently instruct the jury being charged the defendant was Accordingly, acts of forcible oral sex. as the lesser count of I two, agree with my colleague that the defendant’s conviction of aggravated criminal sexual assault based count IV of the indict- ment must be vacated. *11 BOWMAN,
JUSTICE in dissenting part: I respectfully Specifically, -disagree I dissent. with the conclusion that aggravated defendant’s conviction of criminal sexual assault (count IV) indictment, I respect should vacated. With to the believe against that defendant to multiple was notice of the need defend all, charges aggravated criminal In sexual assault. defendant was with charged aggravated four counts of While sexual assault. alleged oral the other two vaginal penetration, alleged of the counts two knife, defendant, displaying while alleged that Count IV penetration. alleged Count VI his in M.J.’s mouth. forcibly placed penis in penis his her forcibly bodily placing her harm defendant caused Olivieri, and charges Crespo Unlike the in mouth. the sexual specifically here referenced charges
criminal sexual assault charging facts, my that the opinion on these it is penetration. Based on notice that he sufficiently put to specific instrument was qf oral separate offenses forcible sex. being charged was with two Crespo, satisfied I that the indictment in this case Consequently, believe I conclusion that defendant here disagree Justice McLaren’s with being charged multiple to that he was prior did not have notice trial offenses. a defendant’s addition,
In I do that a detailed notice of not believe satisfy in to Cres- to is manner which specific prior acts trial great to requirement. appears place Justice McLaren po’s process due hearing support position in Olivieri to his weight preliminary on the prior notice to trial that Crespo requires defendant have view, was seeking separate convictions. In his there no the State distinguish- hearing in this case and Olivieri is therefore preliminary interpretation I that this able on that basis alone. believe discussing the State’s ignores analysis Crespo in both and Olivieri treatment of the at crime trial. my opinion,
In of the State’s treat Crespo allows consideration Crespo, ment the crime at is clear that the court based its trial. it in which the crime way decision on the indictments as well as the was Olivieri, argued Crespo, Similarly, Ill. at 344. jury. 2d hear charging preliminary court considered the instruments and jury, find ing, presentation as well as the State’s evidence prosecuting had that the State was ing that the defendant fair notice determining whether separate Accordingly, for three acts. criminal ac and cause of the defendant was informed the nature indictments, as against him, it is to consider the appropriate cusations during before and trial. treatment of the crime both well as State’s at trial Here, I of the crime believe that the State’s treatment prosecuted he acts. being informed defendant that statement, that defendant First, the State stated opening give him oral sex.” “pull[ed] penis force[d] [M.J.] and he out his kitchen, he M.J. to the where continued that defendant took then he beers, to the bedroom. “And grabbed two and then returned come, again he takes out goes again says, make me [M.J.] into mouth. But this time she again [M.J.’s] forces it his shorts.” up up throws and she throws all over *12 Second, in closing argument, its the State treated defendant’s separate example, conduct as acts. For prosecutor the stated the fol- lowing: I “The last will talk of Aggravated about are those offenses Assault, again,
Criminal Sexual and once there four are counts of Aggravated Assault; Criminal Sexual and in relation to those four counts, there are I two different theories and will also talk about go the verdict forms that with the theories. Clearly already talked I apologize about this and I keep if —I repeating myself were issued from the point put that he —threats
the put [D.J.’s] cord around pillow wrists and the case over his began head. That’s when he demanding to perform [M.J.] oral sex him, and that’s began when the defendant I saying, going am to you kill if you your don’t—kill you it, husband if do am go- don’t I ing you, children, to kill I am going your to kill I going am to have your sex with children.
In this case there are two types penetration different sexual charged: one, penis mouth; two, that are to and, penis vagina. overwhelming defendant, The evidence here is the while knife, displaying repeatedly perform [M. the toJ.] forced oral sex on him. cry initially. She started to he That’s when started to threaten. He, times, mouth; placed penis numerous his in her even on one causing up, occasion causing her to throw her to vomit his shorts. is clear and overwhelming evidence that the defendant com- mitted acts of penetration, placed penis sexual in that he in her added.) displaying mouth while a weapon.” (Emphasis In support of her position, Justice Gilleran Johnson isolates individual comments made by the State that are not reflective the overall treatment of defendant’s conduct at trial. When entirety, viewed its the closing argument clearly State’s treated defendant’s conduct as separate acts.
Finally, jury carefully regard- instructed the trial court ing all four counts Specifically, criminal sexual assault. the verdict jury respect form submitted with to counts IV and VI stated as follows:
“We, jury, guilty Aggravated [defendant] find the not Assault, placed displaying dangerous Criminal Sexual and weapon [M.J.]; we, penis jury, in the mouth of find [defendant] guilty Assault, dangerous Aggravated displaying Criminal Sexual [M.J.], weapon placed penis in mouth of We, jury Aggravated guilty [defendant] find the placed Assault, bodily [M.J] harm caused Criminal Sexual [defendant] [M.J.]; we, jury, find the mouth of penis in Assault, bodily harm caused Sexual Criminal guilty Aggravated [M.J.].” in mouth of placed [M.J.] conclusion that Johnson’s Justice Gilleran Thus, disagree I was be- jury that defendant sufficiently instruct trial court did Moreover, as of forcible oral sex. charged acts ing with two made individual statements previously, isolating mentioned of the overall results in an inaccurate view State or the trial court at trial. defendant’s conduct treatment of referenced the sexual sum, specifically and VI both counts IV *13 jury argued the case to presented penetration, reasons, I believe that oral sex. For these separate acts forcible being treated as that the acts were defendant was informed offenses, on both counts. I would affirm convictions COMPANY,Plaintiff-Appellant Cross-Appellee, v. R.J. MANAGEMENT CORPORATION, Cross- Defendant-Appellee and SRLB DEVELOPMENT
Appellant. 2—02—0842
Second District No. February 10, Rehearing April filed denied 2004. Opinion