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People v. Daniel, No. 2-98-0786

2nd District, 3 February 2000

JUSTICE RAPP delivered the opinion of the court:

In July 1997, a jury convicted defendant, Wilbert Daniel, of two counts of aggravated criminal sexual assault (720 ILCS5/12--14(a)(1), (a)(4) (West 1994)) and one count each of aggravated robbery (720 ILCS 5/18--5 (West 1994)), unlawfulrestraint (720 ILCS 5/10--3 (West 1994)), and criminal sexual assault (720 ILCS 5/12--13 (West 1994)). Defendant wassentenced in March 1998 to consecutive 11-year and 4-year prison terms and a concurrent 2-year prison term. Defendantappeals (see 134 Ill. 2d Rs. 602, 603; Official Reports Advance Sheet No. 22 (November 3, 1999), R. 606, eff. December 1,1999), arguing (1) that he was not proved guilty of the offenses beyond a reasonable doubt; (2) that, even if he was provedguilty of some of the offenses, the State nevertheless failed to prove the element necessary to enhance criminal sexualassault to aggravated criminal sexual assault; (3) that the trial court erroneously sentenced him under the mandatoryconsecutive sentencing provision of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5--8--4(a) (West 1994));(4) that he is entitled to a new sentencing hearing because the trial court erroneously awarded him more sentence credit thanauthorized; and (5) that his conviction for unlawful restraint must be vacated because it was not charged independently ofthe sexual assault allegations. We affirm in part, vacate in part, and remand with directions.

I. FACTS

Defendant was charged in a five-count indictment with the October 1995 sexual assault and robbery of M.M. Counts I andII of the indictment charged defendant with aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1), (a)(4) (West1994)); count III charged defendant with aggravated robbery (720 ILCS 5/18--5 (West 1994)); count IV charged defendantwith unlawful restraint (720 ILCS 5/10--3 (West 1994)); and count V charged defendant with criminal sexual assault (720ILCS 5/12--13 (West 1994)).

At defendant's trial, the jury heard testimony from various witnesses, including M.M. and defendant. M.M. testified that onOctober 13, 1995, her boyfriend, James Brunner, was working at the Lose Marathon station in Elgin, Illinois. As was herroutine, M.M. went to the station that evening to visit Brunner. It was just after 9 p.m. Upon M.M.'s arrival, she agreed toget dinner for Brunner and another employee, Alan Rodriguez, at a nearby McDonald's restaurant.

According to M.M., while she was waiting in the drive-through lane of McDonald's, defendant approached her and askedfor a ride because it was raining and he needed to get home to his young son. M.M. initially refused. However, afterdefendant persisted, M.M. relented and invited defendant into her car. M.M. drove defendant to the location he indicatedand pulled to the curb to let defendant out. M.M. testified that once the car was stopped defendant thanked her for the ride,opened the car door, and began to exit. When defendant was halfway out of the car, he suddenly reached into the backseat,grabbed M.M.'s backpack, which she used as a purse, and stated, "Now, I'm going to rip you off." M.M. told defendant thatshe had no money, but defendant insisted that she did. Defendant got back in the car and ordered M.M. to turn off the car'sengine and lights. An argument ensued, during which defendant allegedly showed M.M. a cocaine pipe and a white paperbag. Defendant also reached down by his feet and told M.M. that he had a pistol and he needed the money to buy cocaine.M.M. testified, however, that she never saw the gun but felt threatened by defendant's statement.

M.M. informed the jury that after the threat she told defendant that her boyfriend worked at the nearby Marathon station andshe could probably get some money from him. Defendant allegedly asked M.M. if she valued her life and told her that shewould have to do something for "collateral" so she wouldn't try to escape. M.M. thought defendant wanted her car and toldhim that he could not have it. Defendant replied that he did not want the car and then ordered M.M. to take off her pants andunderwear. M.M. initially refused and started to reach for the door handle. Defendant told M.M. that if she tried to run hewould shoot her in the back. M.M. gave in to defendant's demands and took off her pants and underwear and threw them inthe backseat. M.M. testified that she complied with defendant's demand because defendant told her that he had a gun andshe was afraid.

M.M. testified that after she was naked from the waist down, defendant told her to move over next to him and turn over onher stomach. M.M. tried to resist until defendant made a motion toward where he claimed the gun was located. M.M. thencomplied with defendant's order to "put this dick in you." Defendant had intercourse with M.M. M.M. did not yell outbecause "there was no one to yell out to." During the encounter defendant did not use any physical force. After defendantfinished he sat back on the seat, and M.M. returned to the driver's seat. Defendant did not let M.M. get dressed, but insteadhad her drive to the Marathon station without wearing pants or underwear in order to get "his" money.

Upon arriving at the station M.M. and defendant encountered Brunner, Rodriguez, and Greg Irish, a friend of both M.M.and Brunner. Brunner approached the car and M.M. told him that she needed $60. Rodriguez and Irish remained near thedoor of the station. Brunner tried to give the money to defendant but defendant told Brunner to give it to M.M. instead. AsBrunner complied with defendant's demand, M.M. attempted to mouth to Brunner that defendant had raped her.

Defendant took the money from M.M. and ordered her to drive away. M.M. testified that she obeyed defendant because shedid not want him to hurt Brunner or her. M.M. further testified that, while they were driving, defendant said "that he wassorry he had to rape [her], and [she] better not call the police, because he knows where [her] boyfriend works now and hewill kill him." M.M. dropped defendant off a few blocks from the station.M.M. then returned to the Marathon station,parked, got dressed, and "just sat there." Shortly thereafter, Mike McGraw, another friend of Brunner and M.M., got intothe car and asked M.M. if she was okay. M.M. responded that she had just been raped. As M.M. and McGraw were talking,the police arrived, and a short time later Brunner showed up. The police transported M.M. to the hospital, where she toldher story to various police and hospital personnel. A physical examination revealed no trauma to M.M.

Several days after the incident, M.M. gave a taped statement to detectives in which she insisted that defendant entered hercar without permission. However, in January 1996, M.M. recanted and instead admitted that she had invited defendant intothe car. M.M. indicated that she initially lied because she did not want her family and friends to know that she voluntarilyallowed a stranger into her car.

Much of M.M.'s testimony regarding events that transpired at the Marathon station was corroborated through the testimonyof Rodriguez, Irish, McGraw, and Brunner. Only Brunner's testimony warrants discussion.

Brunner told the jury that, when M.M. returned to the station after going to McDonald's, there was a black man in her car.When Brunner approached the car, he observed that the man's pants were unfastened and that M.M. was naked from thewaist down and her clothes were in the backseat. Brunner also noticed that M.M.'s makeup was smeared and she appearedfrightened but was not crying. Brunner did not see a weapon. Brunner testified that he was confused by what washappening, particularly when defendant demanded $60 from him. When Brunner attempted to give the money to defendant,defendant ordered him to give the money to M.M. instead. Defendant's hands were concealed between his legs. Brunnercomplied with the orders because he was frightened at M.M.'s actions and concerned for her safety. Once Brunner handedM.M. the money, M.M. pulled away from the station at a normal rate of speed. Brunner then got in his car and chased afterM.M. and defendant.

Defendant testified on his own behalf. He told the jury that on the evening in question he went to McDonald's to get dinner.He had a little over $8 but was not carrying a pipe, a gun, or a white paper bag. According to defendant, as he was leavingMcDonald's with his food, M.M. waived him over to her car and asked if he wanted a ride. Defendant claimed that he said"no" and that he was only going a couple blocks up the street. Defendant then claimed that M.M. asked if he was willing tohelp her get even with her boyfriend. According to defendant, he did not know what was going on but was interestednonetheless. M.M. then allegedly invited defendant into her car and defendant accepted the offer. Defendant walked aroundthe front of the car, and got in. M.M. introduced herself and shook defendant's hand.

As they left McDonald's, M.M. again told defendant that she wanted to get back at her boyfriend. Defendant then told thejury that, without direction from him, M.M. drove to the corner of Liberty and Grand and parked the car. Once parked,M.M. allegedly again asked defendant for his help. He responded, "I don't know. I don't want to get into any trouble." M.M.then offered to pay defendant for his assistance. Interested, defendant began arguing with M.M. over the amount of moneyshe would pay him despite not knowing what exactly he would be paid to do. During the argument, M.M. allegedlymentioned that, while she did not have any money, her boyfriend worked at Marathon and she could get money from him.According to defendant, when he realized that M.M. had no money he said "forget it" and began to exit the car. M.M. thengrabbed the back of defendant's jacket, pointed to a couple standing on a porch of a nearby house, and told him that if heleft she would yell "rape."

Defendant testified that the couple came off their porch and down their driveway. The couple looked at defendant. Fearingthey were members of M.M.'s family, defendant reentered the car and closed the door. Defendant stated that he watched thecouple for a short time. When they returned to their house, defendant looked over at M.M. and discovered that she hadremoved her pants and underwear and thrown them in the backseat. M.M. then allegedly moved closer to defendant andbegan fondling his penis through his pants until it was erect. According to defendant, M.M. then unzipped his pants andproceeded to have intercourse with him. M.M. allegedly offered no resistence or objection but instead instigated the sexualencounter. Defendant denied ever telling M.M. that he had a gun, threatening her in any way, or telling her that he neededmoney for cocaine. Defendant also denied that he used the word "collateral" during their conversation or that he struggledwith M.M. for her purse.

After having intercourse, defendant testified that he rolled back into the passenger seat and pulled his pants back up but didnot fasten them. M.M. returned to the driver's seat. She did not put her clothes back on. Instead, defendant claimed thatM.M. stated, "I told you that I would pay you," to which he replied, "what makes you think your boyfriend is going to giveyou some money with me in the car." M.M. then stated that she would get the money and drove naked to the Marathonstation without objection from defendant. Defendant claimed that after getting the money at the station, M.M. giggled asshe drove away. M.M. then handed $60 to defendant and dropped him off a short time later. Defendant denied apologizingto M.M. for raping her.

Defendant admitted that he initially lied to police about the incident because he was afraid that he would be charged withrobbing the gas station. Defendant claimed that he never thought he would be charged with rape because in his mind he hadconsensual intercourse with M.M.

After hearing all the evidence, the jury convicted defendant on all counts. The convictions on counts II and V of theindictment were vacated based on the doctrine of merger, and defendant was sentenced as indicated. The trial courtconcluded that the consecutive sentences imposed on counts I and III were mandatory under section 5--8--4(a) of theUnified Code (730 ILCS 5/5--8--4(a) (West 1994)). The trial court determined that defendant was entitled to 931 days'credit for time spent in custody awaiting trial and sentencing. Relying on People v. Johnson, 286 Ill. App. 3d 597 (1997),the trial court applied the credit to each of the sentences on counts I and III, effectively giving defendant an aggregate of1,862 days' credit toward his combined 15-year sentence. Defendant's motion to reconsider the sentences was denied andthis appeal followed.

II. ANALYSIS

A. Sufficiency of the Evidence

Defendant makes two related arguments regarding the sufficiency of the evidence. He first contends that the State failed toprove him guilty of any of the charged offenses beyond a reasonable doubt. Specifically, defendant argues that the State didnot prove that he used or threatened to use force in committing the offenses. We find defendant's argument unpersuasive.

The test applied in an appeal challenging a criminal conviction based upon the sufficiency of the evidence is whether, afterviewing the evidence in a light most favorable to the prosecution, any rational trier of fact could find the essential elementsof the offense beyond a reasonable doubt. People v. Schott, 145 Ill. 2d 188, 203 (1991). This standard of review is one ofgreat deference to the trier of fact; it is not our function to retry the defendant. People v. Smith, 177 Ill. 2d 53, 73 (1997).Instead, we defer to the trier of fact on issues of witness credibility, the weight to be accorded testimony, and reasonableinferences to be drawn from the evidence. People v. Wittenmyer, 151 Ill. 2d 175, 191 (1992). Defendant's arguments arebased entirely upon the credibility of the witnesses.

Both defendant and M.M. testified at trial. Their versions of the events differed significantly. Defendant testified he did notuse or threaten to use force at any time. He claims that M.M. initiated the contact and engaged in consensual intercoursewith him and voluntarily gave him $60 to "help her get back at her boyfriend." Defendant denied ever possessing a gun onthe night in question or even telling M.M. that he had a gun. Defendant denied threatening to shoot M.M. in the back if shetried to escape. Defendant inferred that it was he who was the victim because M.M. threatened to yell "rape" if he did nothelp her.

In contrast, M.M. testified that defendant initiated the contact by asking her for a ride to his house a few blocks fromMcDonald's. After initially refusing, M.M. relented and voluntarily let defendant into her car. According to M.M., oncedefendant was in the car he directed her to a side street a few blocks from McDonald's. As he was exiting the car he reachedfor M.M.'s purse in the backseat and said, "Now, I'm going to rip you off." When M.M. insisted that she had no money,defendant apparently reached between his legs and told her that he had a pistol and he needed the money for cocaine.Defendant also threatened to shoot M.M. if she attempted to flee. Neither M.M. nor any other witness ever saw the gun.Nevertheless, M.M. testified that she felt threatened by the statement, so she acceded to wishes of doing something for"collateral." That "collateral" turned out to be sexual intercourse.

While both defendant's and M.M.'s stories are reasonable, it is evident that one or the other was not truthful. Neither story isso improbable as to call its veracity into question. Therefore, the decision about which version to believe rests squarely withthe trier of fact--the jury in this case. See Wittenmyer, 151 Ill. 2d at 191. After hearing both stories and viewing thewitnesses while testifying, the jury chose to believe M.M. over defendant. Because the jury is in a superior position toassess witness credibility, we will not disturb its determination. We affirm defendant's convictions.

Defendant's second contention is that even if the evidence was sufficient to prove him guilty of aggravated robbery andunlawful restraint it was not sufficient to prove him guilty of aggravated criminal sexual assault. Defendant maintains thatat most he committed criminal sexual assault because neither the victim nor any other witness actually observed defendantin possession of a dangerous weapon. And, according to defendant, section 12--14(a)(1) of the Criminal Code of 1961(Criminal Code) (720 ILCS 5/12--14(a)(1) (West 1994)) requires the accused to actually possess a dangerous weapon inorder to sustain a conviction. This is an issue of statutory construction.

In construing a statute our primary objective is to ascertain and give effect to the intent of the legislature. People v.Robinson, 172 Ill. 2d 452, 457 (1996). The most reliable indicator of legislative intent is the plain and ordinary meaning ofthe language used in the statute. Robinson, 172 Ill. 2d at 457. Where the language is clear and unambiguous, the statutemust be applied without further aids of statutory construction. Robinson, 172 Ill. 2d at 457. Statutory construction is aquestion of law, so our standard of review is de novo. Robinson, 172 Ill. 2d at 457.

Defendant argues that the plain language of section 12--14(a)(1) of the Criminal Code reveals that "[a] defendant's merethreat to use a dangerous weapon, when none is observable or otherwise shown to be present, cannot be sufficient to sustaina conviction" (720 ILCS 5/12--14(a)(1) (West 1994)). Section 12--14(a)(1) of the Criminal Code provides that an accused isguilty of aggravated criminal sexual assault if he commits criminal sexual assault and during the commission of the offense: