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No. 3--98--0048

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2000

JUSTICE LYTTON delivered the opinion of the court:

A jury found defendant Orrin Dressler guilty of robbery,armed robbery, kidnaping, aggravated kidnaping with a canister ofMace, aggravated stalking and theft (720 ILCS 5/18--1(a), 18--2(a), 10--1(a)(1), 10--2(a)(5), 12--7.4(a)(2), 16--1(a)(1)(A)(West 1996)). The jury found defendant not guilty of aggravatedkidnaping with a gun. The judge imposed consecutive sentences of14 and 11 years for armed robbery and aggravated kidnaping,respectively, and concurrent 5-year sentences for aggravatedstalking and theft to run concurrently with the longer sentences. No sentences were imposed for robbery and kidnaping. Defendant raises the following issues on appeal: (1) whether the trialcourt erred in denying defendant's motion to suppress evidence;(2) whether Mace is a "dangerous weapon" that can support acharge of aggravated kidnaping; (3) whether the court erroneouslydenied defendant's motion to dismiss charges of kidnaping andtheft on speedy trial grounds; (4) whether the State failed toprove a material element of aggravated stalking; (5) whether thetrial court erred in overruling defendant's objection to a tape-recorded 9-1-1 call; (6) whether the prosecution of kidnaping andaggravated kidnaping was barred by principles of double jeopardy;(7) whether all charges should have been dismissed for violationof defendant's speedy trial rights; and (8) whether there was afatal variation between the charges for theft, robbery, armedrobbery and aggravated stalking and the proof at trial. Wevacate defendant's convictions for aggravated kidnaping, robberyand theft and the sentences imposed for aggravated kidnaping andtheft. In all other respects, we affirm. We remand the causefor sentencing on kidnaping.

On February 23, 1996, a search warrant was issued fordefendant and the premises he occupied at 11245 South Joliet Roadin Lemont, Illinois. The warrant authorized seizure of itemsallegedly used in the kidnaping, aggravated kidnaping, unlawfulrestraint and aggravated unlawful restraint of defendant's ex-wife, Cook County sheriff's deputy Mary Jo Senese. The warrantspecified the following items: a lady's purse and contents, aSmith and Wesson .357 revolver, a Cook County sheriff's deputystar, car keys for a Toyota, handcuffs and chains. That sameday, the police executed the warrant and arrested defendant. Hewas held without bond on charges of armed robbery, aggravatedkidnaping (two counts), robbery, aggravated stalking, unlawfuluse of a weapon and violation of an order of protection.

On April 22, 1996, the date the cause was initially set fortrial, defendant moved for a continuance, which was granted. Thetrial was also continued on defendant's motion on May 14 andAugust 19, 1996.

On September 23, 1996, defendant moved to suppress based onthe allegedly unlawful seizure of items not specified in theFebruary 23 search warrant. At the hearing on the motion, thepolice testified that their search of the house in Lemont failedto uncover the gun, purse and star specified in the warrant. However, during the course of their search, the officers foundand seized numerous other items from drawers, closets andcabinets which they believed to have evidentiary value. Suchitems included a wig, which an investigator believed thedefendant used as a disguise; a notebook with dated entriesnaming the victim; a microcassette tape from an answeringmachine; adult videotapes; and a stack of nude photographs. Theofficers explained that they thought the videotapes and thephotographs might be of value in establishing defendant's "mindset." After taking the matter under advisement, the trial courtdenied the motion to suppress.

On December 18, 1996, the State filed an amended indictmentin 12 counts charging the original felony charges and several newcharges, including theft, kidnaping and unlawful possession ofexplosives. Following several more continuances, defendant movedfor a discharge based on violations of his right to a speedytrial. The court denied the motion. Prior to trial, charges ofunlawful possession of weapons and explosives were severed. OnAugust 25, 1997, the cause proceeded to trial on the sevenremaining felony counts.

Mary Jo Senese testified that she obtained an order ofprotection against defendant during divorce proceedings thatcommenced in June of 1995. On the morning of July 28, she fileda complaint in Will County alleging that defendant violated anorder of protection because he failed to return certain personalproperty to her. That evening, while Senese was walking betweenthe garage and her condominium, defendant drove his car towardher at a high rate of speed and nearly hit her.

Around 6:45 a.m. on February 23, 1996, as Senese was aboutto enter her car for work, a man whom she did not recognizegrabbed her, sprayed Mace in her face and forced her into avehicle. During the ensuing struggle, Senese pulled a wig offthe man and recognized the defendant. Defendant handcuffedSenese's hands behind her and removed her service revolver. Defendant then drove her to the house in Lemont, where hehandcuffed and chained her to the wall in a small, cement-blockroom in the basement.

After defendant left the house, Senese worked one handcuffloose and broke another. She proceeded upstairs and called 9-1-1. Over defendant's objection, the tape-recorded 9-1-1 call wasplayed to the jury. The court admonished the jury that theevidence was to be considered solely to show the witness' stateof mind at the time.

Senese said she left the house through the bathroom windowbefore the police arrived and ran to a business on the adjoiningproperty. Store manager Karen Bartleman testified that Senese,whom she did not know, entered the business around 11:45 a.m.with handcuffs on both wrists and a heavy chain hanging from oneof the cuffs. Bartleman summoned help.

Later that day, after the police had secured defendant'shouse in anticipation of a search warrant, defendant drove up. He was immediately arrested. Police officers testified thatafter the warrant arrived, they reentered the house and seizednumerous items, including an officer's gun belt and miscellaneousitems consistent with the contents of a woman's purse, from thesmall room in the basement. In a bedroom closet, the officersfound a brown wig. They also found a notebook with datedentries, a case containing handcuffs and a small canister of Macepersonal defense spray in a dresser drawer. Senese's revolverwas subsequently turned over to the police in April 1996 bydefendant's son, Robert, who said he found it in the house underdefendant's bed.

After the State rested, defendant testified on his ownbehalf. He admitted that he drove by Senese's condominium inOrland Park on the evening of July 28, 1995, but he denied thathe tried to hit her with his car. He said that on February 23,1996, he got up around 7 a.m. and worked in his office untilaround 10:30 a.m., when he left for a doctor's appointment. Hesaid that a friend, Susan Katauskas, stopped by around 9 a.m. andleft a pound cake. When he returned to the house later that day,he encountered the police and was arrested. He admitted that thedated-entry notebook was a journal of his daily activities, buthe denied committing any of the February 23, 1996, offensesalleged by Senese. Katauskas corroborated defendant's testimonywith respect to her visit on the morning of February 23.

During jury deliberations, the jurors asked to review the 9-1-1 call. Over defendant's objection, the court played the tapeagain and repeated its admonishment that the evidence was to beconsidered only to show the caller's state of mind. The jurysubsequently returned verdicts finding defendant guilty of allcharges except aggravated kidnaping while armed with a gun.

Convictions were entered and defendant was sentenced.

Defendant first contends that the trial court erred indenying his motion to suppress evidence, because certain itemsnot specified on the face of the search warrant were seized eventhough their evidentiary value was not readily apparent. Defendant claims that he was prejudiced by the admission intoevidence of some of these items, particularly the wig and thedated-entry notebook. The State argues that the items wereproperly seized under the plain view exception to the fourthamendment's warrant requirement.

The fourth amendment protects against the issuance of searchwarrants that grant the police broad discretion to conduct a"general, exploratory rummaging in a person's belongings." Coolidge v. New Hampshire, 403 U.S. 443, 467, 29 L. Ed. 2d 564,583, 91 S. Ct. 2022, 2038 (1971). However, under the plain viewdoctrine, a police investigator with prior justification for anintrusion is entitled to seize evidence that is in plain view, solong as such evidence is of an "apparently incriminating nature."

People v. Stewart, 105 Ill. 2d 22, 52, 473 N.E.2d 840, 855(1984). An item is in plain view if it is found during thesearch of an area that could contain or conceal articles listedon the face of the warrant. People v. Edwards, 144 Ill. 2d 108,579 N.E.2d 336 (1991). Because the question of the legality ofthe seizure of the items in this case depended in part on thecredibility of witnesses, we give deference to the trial court'sruling and will not reverse unless the ruling was manifestlyerroneous. Stewart, 105 Ill. 2d 22, 473 N.E.2d 840.

Initially, we note that at the time the contested items wereseized, the victim's gun, star and purse had not yet been found. The officers testified that all of the items seized outside thescope of the warrant were located in places that could haveaccommodated the gun, star and purse. Under the circumstances,all of the items in dispute were in "plain view." See Edwards,144 Ill. 2d 108, 579 N.E.2d 336.

Further, evidence at the suppression hearing establishedthat the search warrant and information available to the officersexecuting it provided the victim's name and the fact thatdefendant may have disguised himself during the commission of theoffenses. Because the wig could have been used as a disguise, itwas an item of apparently incriminating nature.

The officers were also justified in seizing the dated-entrynotebook. The officers testified that the notebook lay open whenit was found in the dresser drawer. They observed Senese's namein the notebook and saw that it chronicled defendant'ssurveillance of Senese on dates close in time to the offense; tothe officers, it appeared to be incriminating evidence of thekidnaping offense cited on the face of the warrant.

Defendant does not argue that he was prejudiced by thewarrantless seizure of other items. Accordingly, we hold thatthe trial court did not err in denying defendant's motion tosuppress evidence.

Next, defendant argues that his conviction for aggravatedkidnaping cannot stand because a canister of Mace is not a"dangerous weapon" as contemplated by the statute defining theoffense.

Section 10--2(a)(5) of the Criminal Code of 1961 (Code)states that "[a] kidnaper *** is guilty of the offense ofaggravated kidnaping when he *** [c]ommits the offense ofkidnaping while armed with a dangerous weapon, as defined inSection 33A--1 of the 'Criminal Code of 1961'." 720 ILCS 5/10--2(a)(5) (West 1996). Section 33A--1 defines "dangerous weapons"as those objects that fall within any one of three categories. 720 ILCS 5/33A--1(a) (West 1996). Category I weapons arefirearms--handguns, sawed-off shotguns, sawed-off rifles, otherfirearms small enough to be concealed upon a person,semiautomatic firearms and machine guns. Category II weapons areother firearms, knives, daggers, dirks, switchblades, stilettos,axes, hatchets or "other deadly or dangerous weapon[s] orinstrument[s] of like character." 720 ILCS 5/33A--1(b) (West1996). Category III weapons are bludgeons, black-jacks,slungshots, sand-bags, sand-clubs, metal knuckles, billies, "orother dangerous weapon[s] of like character. 720 ILCS 5/33A--1(c) (West 1996).

A canister of Mace cannot arguably fit into any of theforegoing categories of dangerous weapons. It does not firepenetrating projectiles (Category I); it cannot be used to cutthe victim (Category II); and it cannot be used to enhance abeating (Category III). Therefore, though noxious sprays may be"dangerous weapons" for purposes of armed robbery, (see People v.Elliott, 299 Ill. App. 3d 766, 702 N.E.2d 643 (1998)), they donot qualify as such for purposes of aggravated kidnaping. Armedrobbery does not depend the definition of dangerous weaponscontained in section 33A-1. Defendant's conviction foraggravated kidnaping based on the use of Mace must be vacated.

Next, defendant argues that he was entitled to a speedytrial discharge with respect to the charges of theft andkidnaping, because the State failed to bring him to trial onthese charges within 120 days of his arrest.

A defendant's right to a speedy trial is guaranteed by thesixth amendment and the due process clause of the Constitution ofthe United States. U.S. Const., amend. VI, XIV. It is furtherpreserved by section 103--5 of the Code of Criminal Procedure of1963 (725 ILCS 5/103--5 (West 1996)). By statute, an accusedshall be tried within 120 days from the date he was taken intocustody unless delay is caused by the accused. 725 ILCS 103--5(a) (West 1996). When, as in this case, new and additionalcharges are brought which are required by the compulsory joinderact (720 ILCS 5/3--3 (West 1996)) to be prosecuted together withthe original charges, the speedy trial period for the new chargesrelates back to the original charges. People v. Quigley, 183Ill. 2d 1, 697 N.E.2d 735 (1998); People v. Gooden, 189 Ill. 2d209, 725 N.E.2d 1248 (2000). However, in computing the periodwith respect to the new charges, continuances obtained by thedefendant in connection with the original charges are notattributed to the defendant "because these new and additionalcharges were not before the court when those continuances wereobtained." People v. Williams, 94 Ill. App. 3d 241, 248-49, 418N.E.2d 840, 846 (1981).

The question raised by the State in this case is whethertheft and kidnaping were "new and additional charges" subject tothe speedy trial computation envisioned by Williams. Anindictment for a particular offense serves as an indictment forall included offenses, even though the latter are notspecifically set forth in the indictment. People v. Gulley, 162Ill. App. 3d 545, 515 N.E.2d 1309 (1987). Thus, a conviction fora lesser offense may be sustained even if the State only chargesthe greater offense. For purposes of this rule, every element ofthe lesser offense must be included in the greater, chargedoffense. Gulley, 162 Ill. App. 3d 545, 515 N.E.2d 1309.

In this case, kidnaping was, by definition, a lesser-included offense of aggravated kidnaping. The originalindictment charging aggravated kidnaping served as an indictmentfor kidnaping; therefore, the included offense of kidnaping wasbefore the court when defendant obtained continuances inconnection with the original charges. Kidnaping was not a "newand additional" charge when the State filed its amendedindictment; thus, defendant is chargeable with all delayoccasioned by him between February 23, 1996, when he was takeninto custody, and August 19, 1997, when the cause proceeded totrial. Since defendant's trial commenced within the 120-daystatutory speedy trial period, the trial court correctly denieddefendant's motion to dismiss the kidnaping charge on speedytrial grounds.

Defendant argues that his theft conviction should be vacated because theft is a lesser included offense of armed robbery. Weagree. Theft, a specific intent offense, is an included offenseof general intent armed robbery for purposes of double jeopardy,compulsory joinder and one-act, one-crime analyses. People v.Jones, 149 Ill. 2d 288, 595 N.E.2d 1071 (1992); People v.Eggerman, 292 Ill. App. 3d 644, 685 N.E.2d 948 (1997); People v.Milton, 309 Ill. App. 3d 863, 723 N.E.2d 798 (1999). Thus, ifthe armed robbery conviction is sustained, this court must vacatethe theft conviction under one-act, one-crime principles if thearmed robbery conviction is sustained. See People v. Garcia, 179Ill. 2d 55, 688 N.E.2d 57 (1997).

Since we affirm defendant's armed robbery conviction for thereasons stated in sections V and VI below, we vacate theconviction and sentence entered for the lesser-included offenseof theft. Milton, 309 Ill. App. 3d 863, 723 N.E.2d 798.

We also note here that defendant's robbery conviction mustbe vacated as a lesser-included offense of armed robbery. Garcia, 179 Ill. 2d 55, 688 N.E.2d 57.

Defendant's next contends that the State failed to prove amaterial element of aggravated stalking, because his conduct ofJuly 28, 1995, did not take place in Will County. On that date,defendant argues, venue was a required element of the offense ofstalking; therefore, he posits, his conviction for aggravatedstalking, based in part on the July 28 incident, must bereversed.

Stalking is committed when a person "knowingly and withoutlawful justification, on at least 2 separate occasions *** places[another] person under surveillance *** and *** places thatperson in reasonable apprehension of immediate *** bodily harm,*** confinement or restraint." 720 ILCS 5/12--7.3(a)(2) (West1996). Aggravated stalking is committed when a person, inconjunction with committing stalking, confines or restrains thevictim. 720 ILCS 5/12--7.4(a)(2) (West 1996).

The indictment charging aggravated stalking in this casealleged that defendant stalked Senese by placing her undersurveillance and in reasonable apprehension of immediate bodilyharm on July 28, 1995, and February 23, 1996, and confining heron February 23, 1996. As alleged, the predicate offense ofstalking was not completed until February 23, 1996, the same datethat aggravated stalking was committed.

The venue statute, which formerly required the State toprove venue as a material element of an offense, was amendedeffective August 11, 1995. 720 ILCS 5/1--6(a) (West 1996). After that date, the State was not required to prove that anoffense occurred in any particular county of the State. Peoplev. Gallegos, 293 Ill. App. 3d 873, 689 N.E.2d 223 (1997). Inthis case, neither stalking nor aggravated stalking was allegedto have been committed until after the venue statute was amended. Thus, the State was not required to prove that the chargedoffense occurred in Will County. Defendant is not entitled to areversal of his aggravated stalking conviction for failure toprove venue.

Defendant also argues that the State was improperly allowedto introduce a hearsay audio tape recording of the victim's 9-1-1call. A declarant's out-of-court statement may be admitted as anexception to the hearsay rule if offered to show the declarant'sstate of mind at the time of the utterance. People v. Lawler,142 Ill. 2d 548, 568 N.E.2d 895 (1991). To be admissible underthe exception, the State was required to show that thedeclarant's state of mind was relevant to a material issue in thecase. People v. Davis, 254 Ill. App. 3d 651, 626 N.E.2d 1187(1993). On review, a trial judge's evidentiary ruling will notbe disturbed unless it was an abuse of discretion. People v.Kidd, 147 Ill. 2d 510, 591 N.E.2d 431 (1992).

In this case, the trial court admitted the taped 9-1-1 callunder the state-of-mind exception and cautioned the jury after itwas played both during the trial and during deliberations that itwas admitted solely to show the victim's state of mind. Theemotional recording was arguably material to the issue of thevictim's credibility, which defendant challenged by presenting adefense that he had been set up and framed for an offense thatnever happened.

Further, even if the recording was improperly admitted,defendant would not be entitled to a new trial. The evidence ofdefendant's guilt of armed robbery and aggravated stalking andkidnaping was overwhelming, and there is no reasonableprobability that the jury would have voted to acquit if therecording had been excluded. See People v. Trice, 217 Ill. App.3d 967, 577 N.E.2d 1195 (1991). Accordingly, no reversible errorresulted from its admission into evidence.

Defendant raises three additional issues which we havereviewed and found to be without merit. Specifically, defendantcontends that (1) prosecutions for kidnaping and aggravatedkidnaping were in violation of double jeopardy protections, basedon prior forfeiture proceedings against the vehicle used in thecommission of those offenses; (2) his speedy trial rights wereviolated with respect to all of the charges in this case; and (3)his convictions for offenses that the State's evidence showedwere committed in Cook County must be reversed because of avariation with the indictment, which alleged that all offenseswere committed in Will County. Based on our careful review ofapplicable law and the record on appeal, we conclude thatdefendant is not entitled to further relief based on any of theforegoing arguments.

We affirm defendant's convictions for armed robbery,kidnaping and aggravated stalking; we vacate defendant'sconvictions and sentences for aggravated kidnaping and theft; wevacate defendant's conviction for robbery. Since we have vacateddefendant's aggravated kidnaping conviction and affirmed hiskidnaping conviction, we remand the cause for sentencing on thekidnaping conviction. See People v. Claybourn, 221 Ill. App. 3d1071, 582 N.E.2d 1347 (1991).

Affirmed in part and vacated in part; cause remanded.

HOLDRIDGE and HOMER, JJ., concur.