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People v. Hawkins, No. 5-97-0811

4th District, 26 January 2000

JUSTICE MYERSCOUGH delivered the opinion of the court:

After a bench trial in July 1997, defendant, Shavun M. Hawkins, was convicted of criminal sexual assault (720 ILCS 5/12-13(a)(2) (West 1996)), attempt (criminal sexual assault) (720 ILCS 5-8/4(a), 12-13(a)(2) (West 1996)), and residential burglary (720 ILCS 5/19-3 (West 1996)). The trial court sentenced him to concurrent four-year terms for the sexual assault and residential burglary and three years for the attempt (criminal sexual assault). The truth-in-sentencing provision of section 3-6-3(a)(2)(ii) of the Unified Code of Corrections (Unified Code) (730 ILCS 5/3-6-3(a)(2)(ii) (West 1996)) was applied to the sentence for criminal sexual assault, and defendant was also fined $110 under the sexual-assault-fines statute (730 ILCS 5/5-9-1.7(b)(1) (West 1996)). On appeal, defendant claims (1) he was not proved guilty of attempt (criminal sexual assault) beyond a reasonable doubt; (2) if his first argument succeeds, his burglary conviction, predicated on the attempt (criminal sexual assault) must also be reversed; (3) the truth-in-sentencing statute is unconstitutional; and (4) he is entitled to credit against the $110 sexual-assault fine for time spent in custody. We affirm and remand with directions.

I. BACKGROUND

B.H. testified she was a student at Eastern Illinois University (Eastern) in May 1996 and was living in a house at 1528 Fourth Street in Charleston with two of her sorority sisters, Dorothy and Rachel. Rachel's bedroom was in the basement, while B.H. and Dorothy each had a bedroom on the second floor. A sheet hung across the doorway to B.H.'s room because the upstairs bedrooms had no doors. The front door to the house did not have a working lock.

According to B.H.'s testimony, on May 30, 1996, B.H. and her roommates went to Mother's Bar where she had three vodka and cranberry juice drinks. B.H. was also taking Claritin D, an allergy medication, which caused her to feel "shaky and groggy." She last took the medication at 6 or 7 p.m. B.H. and her roommates socialized with other university students at the bar until it closed at 1 a.m. When they got home, B.H. immediately fell asleep on the couch in the living room on the main floor of the house.

B.H.'s roommates testified to what happened while B.H. slept. An impromptu "after bars" party commenced shortly after they got home, with 15 to 20 people in attendance. Scott, Rachel's boyfriend (and a bartender at Mother's), testified he arrived after 2 a.m. He testified three black men were in attendance; two of them he knew, and one--later identified as defendant--he did not know. The party broke up at about 3 a.m.

B.H. testified she woke up at approximately 3:30 a.m. and was alone in the living room, where the lights were still on. She was unaware that a party had occurred or that one had been planned. After using the bathroom and pouring a glass of lemonade, she went upstairs. On the way to her bedroom, she peeked into Dorothy's room and saw that she was not there. B.H. took some aspirin, went to her room, and got into bed without changing out of her sundress. She fell asleep immediately.

B.H. woke again at 4 or 4:15 a.m. to find defendant on top of her, kissing her on the mouth and having intercourse with her. When she realized what was happening she told him to "get the f_ _ _ off of me" and pushed him away. He asked her if she was "sure." She rolled to the floor and got up. Her dress had been pulled up and her underpants were around her feet. Defendant's pants were around his ankles. No lights were on in the room, but ambient light came in from the hallway and streetlights that shined through the window. B.H. ran across the hall to Dorothy's room, turned on the light and tried to wake Dorothy. While B.H. was screaming to wake Dorothy, defendant stood at the doorway for approximately 15 seconds, then went downstairs. B.H. was able to see defendant more clearly at this point, as the lights were on. Scott and Rachel then came upstairs and tried to comfort B.H. B.H. did not tell them what happened, but started screaming again when she saw that defendant had come upstairs behind Scott and Rachel. Scott then escorted defendant out.

On B.H.'s request, Rachel, Dorothy, and Scott took B.H. to her best friend's apartment. There, B.H. revealed what had happened and one of her friends called the police. An officer arrived and took a description of defendant from B.H. B.H. was then taken to a hospital.

S.G. was also a student at Eastern Illinois University. In May 1996, she was living in a townhouse at 950 Edgar, No. 7, in Charleston. S.G. and Kristin both had bedrooms in the basement, and Kristin had to walk through S.G.'s bedroom to get to her own. Three other people, including Jennifer and Bonnie, also lived in the house, occupying the upstairs bedrooms. The front door to the house was commonly left unlocked because friends of the residents frequently came and went.

S.G. testified she did homework until about 11:30 p.m. on May 30, 1996, then went to Mother's Bar. After she returned home, she did more schoolwork before retiring between 2 and 2:30 a.m. Kristin was not home at the time. S.G. slept in a single bed, positioned against a wall.

At approximately 5 a.m., S.G. heard someone (later identified as defendant) coming downstairs. She assumed it was Kristin. S.G. then heard what sounded like someone bumping into things and feeling around in the dark. She thought perhaps Kristin was drunk. Then defendant bumped the edge of S.G.'s bed, leaned against it, and felt along the top of the bed with his hands. At one point, he grabbed S.G.'s foot underneath the covers. Defendant then went to the light switch and turned it on and off again rapidly. The light flashed so quickly S.G. was not able to see anything. S.G. then felt defendant sit on the side of the bed and heard his shoelaces being untied and his shoes hitting the floor. He started to get under the covers when S.G. asked what was "going on." Defendant leaned over, put his arm on her shoulder and said "what's the matter baby, I came to kick it with you." S.G. sprung out of bed and turned on the light. She saw defendant, still sitting on the bed, wearing black pants and a white shirt, but with his shoes off. She asked him who he was and what he was doing there. He said his name was Shavun and someone had sent him to the house. S.G. did not understand what defendant said, so she asked him again. This time he said Kristin had sent him. S.G. went upstairs, screaming.

S.G. woke Jennifer first, then they both went into Bonnie's room, closed the door, and called the police. From inside the room they heard defendant leave the house. When Officer Dave Chambers arrived, S.G. described defendant as a black male, 5 feet 10 or 11 inches tall, weighing about 185 pounds, with a muscular build, short hair, wearing black pants and a long-sleeve white pullover shirt. S.G. had no recollection of having seen defendant before.

Officer Chambers testified he was dispatched to S.G.'s address at 5:12 a.m. After S.G. described defendant to Chambers, he remembered he had seen a man who fit the description when on his way to S.G.'s address. He had seen a black male riding a bicycle, wearing black pants, with a white shirt draped over his shoulder. He was 5 feet 11 inches to 6 feet tall. Chambers estimated the distance between B.H. and S.G.'s addresses as roughly one mile.

Two days after these incidents B.H., S.G., and Scott picked defendant out of a photo lineup at the police station. Defendant was subsequently arrested and charged with two counts of criminal sexual assault of B.H. (count I under subsection (a)(2) of the statute, alleging defendant committed an act of sexual penetration on B.H., knowing she was unable to consent, and count II under subsection (a)(1), alleging defendant committed an act of sexual penetration on B.H. by force); and one count of attempt (criminal sexual assault) of S.G. and one count of residential burglary of S.G.'s residence. The trial judge found defendant guilty of all charges but criminal sexual assault of B.H. as drafted in count II (by force). This appeal followed.

II. ANALYSIS

A. Sufficiency of Evidence To Prove Defendant Committed a "Substantial Step" Toward Criminal Sexual Assault

Defendant contends he was not proved guilty of attempt (criminal sexual assault) of S.G. beyond a reasonable doubt because, as a matter of law, his acts did not constitute a substantial step toward commission of a criminal sexual assault. On review, we consider the evidence in the light most favorable to the prosecution and will affirm a conviction if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Schott, 145 Ill. 2d 188, 203, 582 N.E.2d 690, 697 (1991). Criminal convictions will not be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant's guilt. Schott, 145 Ill. 2d at 203, 582 N.E.2d at 697. Whether the uncontested facts constitute a substantial step under the applicable statute is a question of law requiring a de novo standard of review. People v. Garriott, 253 Ill. App. 3d 1048, 1050, 625 N.E.2d 780, 783 (1993).

"A person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense." 720 ILCS 5/8-4(a) (West 1996). Determining when mere preparation to commit an offense ends, and perpetration of an offense begins, is one of the most "troublesome" areas in the law of inchoate offenses. People v. Terrell, 99 Ill. 2d 427, 433, 459 N.E.2d 1337, 1340 (1984). Thus, what constitutes a substantial step is determined by the facts and circumstances of each particular case. People v. Smith, 148 Ill. 2d 454, 459, 593 N.E.2d 533, 535 (1992). Although the accused need not have completed the "last proximate act" to actual commission of a crime, mere preparation is not enough. Terrell, 99 Ill. 2d at 433, 459 N.E.2d at 1340. A substantial step should put the accused in a "dangerous proximity to success." People v. Morissette, 225 Ill. App. 3d 1044, 1046, 589 N.E.2d 144, 146 (1992).

The crime of attempt is complete upon the completion of a substantial step (with the requisite intent), and subsequent abandonment of the criminal purpose is no defense. People v. Myers, 85 Ill. 2d 281, 290, 426 N.E.2d 535, 539 (1981). Likewise, it is no defense to an attempt charge that because of a misapprehension of circumstances it would have been impossible for the accused to commit the offense attempted. 720 ILCS 5/8-4(b) (West 1996); Terrell, 99 Ill. 2d at 432, 459 N.E.2d at 1340. Illinois courts have relied on the Model Penal Code for guidance in determining whether an accused has taken a substantial step toward commission of a crime. See Terrell, 99 Ill. 2d at 435-36, 459 N.E.2d at 1341-42. Under the Model Penal Code, an attempt has occurred when a person, acting with the required intent, "purposely does or omits to do anything which, under the circumstances as he believes them to be, is an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime." Model Penal Code