People of The State of Ill. v. STRAWBRIDGE, 2-08-0701.

• Decision Date: 09 September 2010
• Docket Number: No. 2-08-0701.,2-08-0701.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jason N. STRAWBRIDGE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

404 Ill.App.3d 460

935 N.E.2d 1104

343 Ill.Dec. 876

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jason N. STRAWBRIDGE, Defendant-Appellant.

No. 2-08-0701.

Appellate Court of Illinois,Second District.

Sept. 9, 2010.

COPYRIGHT MATERIAL OMITTED.

Thomas A. Lilien, Deputy Defender, and Kathleen Weck (Court-appointed), Office of the State Appellate Defender, Elgin, for Jason N. Strawbridge.

Joseph P. Bruscato, Winnebago County State's Attorney, Rockford, Lawrence M. Bauer, Deputy Director, Marshall M. Stevens, Mary Beth Burns, State's Attorneys Appellate Prosecutor, Elgin, for the People.

Justice HUDSON delivered the opinion of the court:

Defendant, Jason N. Strawbridge, was convicted of four counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a) (West 2000)) and one count of aggravated stalking (720 ILCS 5/12-7.4(a)(3) (West 2000)), following a jury trial in the circuit court of Winnebago County. He was sentenced to 12 years' imprisonment on each of the predatory criminal sexual assault counts (subject to the truth-in-sentencing statute (730 ILCS 5/3-6-3 (West 2008))) and 2 years' imprisonment on the stalking count. All sentences run consecutively. Defendant now appeals, raising a number of issues. He first argues that one of his convictions of predatory criminal sexual assault must be vacated in accordance with one-act, one-crime principles. Second, defendant contends that he was not proven guilty of aggravated stalking. Third, he complains of the trial court's refusal to discharge a juror who was acquainted with the victim. Fourth, defendant alleges error in the trial court's decision to permit the State to introduce certain pornographic pictures into evidence. Fifth, he asserts that the sentences for two of his convictions of predatory criminal sexual assault must be reduced to nine years, as he had previously been sentenced on these counts before this court vacated an earlier guilty plea. We agree with defendant's first and fifth contentions; therefore, we vacate his conviction on the first count of predatory criminal sexual assault, reduce his sentence to nine years' imprisonment on the second count, and otherwise affirm the judgment of the trial court. As the issues raised by defendant are largely discrete, we will not set forth in detail the evidence presented at trial and will instead discuss it as it pertains to defendant's arguments.

I. ONE ACT, ONE CRIME

[1] [2] Defendant's first contention is that one of his convictions must be vacated pursuant to one-act, one-crime principles. This issue presents a question of law subject to de novo review. Village of Sugar Grove v. Rich, 347 Ill.App.3d 689, 698, 283 Ill.Dec. 559, 808 N.E.2d 525 (2004). The one-act, one-crime rule holds that multiple offenses may not be “carved from the same physical act.” People v. King, 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977). Defendant argues that the indictments, jury instructions, and verdict forms for counts I and II differed only in the time periods specified in them. Both counts alleged that defendant “placed his penis in the vagina of” the victim. Count I alleged conduct occurring between June 24, 1999, and March 20, 2000. Count II was based on conduct alleged to have occurred on or about March 20, 2000. Thus, defendant points out, the jury could have found that the State had proved one instance of such conduct, but convicted on both counts.

[3] Before proceeding further, we note that defendant concedes that this issue was not properly preserved for review. He asks that we reach the merits under the plain-error rule. See 134 Ill.2d R. 615(a). The plain-error rule permits a court of review to reach an unpreserved error where the evidence is closely balanced or where the error is of such a substantial nature that it implicates the integrity of the judicial process.

People v. Piatkowski, 225 Ill.2d 551, 565, 312 Ill.Dec. 338, 870 N.E.2d 403 (2007). We have little trouble concluding that an error that results in an improper conviction and leads to a 12-year sentence of imprisonment (actually 9, as we discuss later) is of sufficient magnitude to warrant plain-error review. In People v. Harvey, 211 Ill.2d 368, 369, 286 Ill.Dec. 124, 813 N.E.2d 181 (2004), our supreme court held that “an alleged one-act, one-crime violation and the potential for a surplus conviction and sentence affects the integrity of the judicial process, thus satisfying the second prong of the plain error rule.” We will therefore reach the merits of defendant's claim here.

Regarding the merits, we find the case of People v. Wasson, 175 Ill.App.3d 851, 125 Ill.Dec. 369, 530 N.E.2d 527 (1988), to be of considerable guidance in resolving this issue. In that case, the defendant was charged with and convicted of committing aggravated criminal sexual assault between January 1, 1983, and April 24, 1985. Wasson, 175 Ill.App.3d at 853, 125 Ill.Dec. 369, 530 N.E.2d 527. The statutory provision under which the defendant was charged, however, became effective on July 1, 1984. Wasson, 175 Ill.App.3d at 854, 125 Ill.Dec. 369, 530 N.E.2d 527. The reviewing court determined that, absent a limiting instruction stating that the defendant could not be convicted of conduct occurring before July 1, 1984, “it [was] impossible to know whether the jury instead convicted defendant for an act performed, as alleged in the complaint, during the period which predated the statute under which he was charged.” Wasson, 175 Ill.App.3d at 859-60, 125 Ill.Dec. 369, 530 N.E.2d 527. As “the information charged defendant for an offense which could have occurred before the corresponding statute was legally operative, [the Wasson court found] it necessary to invalidate the entire charging instrument and the resulting conviction.” Wasson, 175 Ill.App.3d at 860, 125 Ill.Dec. 369, 530 N.E.2d 527.

Similarly, in this case, it is impossible to determine whether the jury found that there was one instance of penile to vaginal contact and yet found defendant guilty with regard to both counts because that instance of conduct took place between June 24, 1999, and March 20, 2000, but also happened to occur on or about March 20, 2000, or if it determined that there were multiple instances of such conduct. We further note that the Wasson court relied in part upon the fact that there was “conflicting testimony as to when the offense was committed” ( Wasson, 175 Ill.App.3d at 860, 125 Ill.Dec. 369, 530 N.E.2d 527), while in this case, the victim testified to an act of intercourse occurring on March 17, 2000, which is within the time periods described in both counts. The State points out that there is adequate evidence in the record to support convictions on multiple counts. We do not disagree; however, it is not our prerogative to place ourselves in the position of the jurors and try to determine how they arrived at their verdict. The problem here is that we cannot tell what the jury based its verdict on, and it is that verdict that is challenged on appeal. It is, after all, the jury that must convict the defendant. See People v. Walker, 392 Ill.App.3d 277, 296, 331 Ill.Dec. 618, 911 N.E.2d 439 (2009). As we cannot say that multiple offenses (and here, multiple convictions) have not been “carved from the same physical act,” both of defendant's convictions on counts I and II cannot stand. See King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838. We therefore vacate defendant's conviction on the first count of the indictment.

II. AGGRAVATED STALKING-PROOF BEYOND A REASONABLE DOUBT

[4] [5] [6] [7] [8] Defendant next contends that he was not proven guilty of aggravated stalking.

This offense-as defendant was charged with it-required that the State prove he committed stalking and, in the course of so doing, violated an order of protection. See 720 ILCS 5/ 12-7.4(a)(3) (West 2000). To prove stalking, as alleged, the State had to prove that defendant placed the victim under surveillance on at least two occasions and placed her in reasonable apprehension of future confinement or restraint. See 720 ILCS 5/12-7.3 (West 2000). The stalking statute defines placing a person under surveillance as “(1) remaining present outside the person's school, place of employment, vehicle, other place occupied by the person, or residence other than the residence of the defendant.” 720 ILCS 5/12-7.3(d) (West 2000). It has been held that the requirement that a defendant “remain[ ] present outside” does not mean that the defendant must “ stop, stay or wait for a set period of time.” People v. Curtis, 354 Ill.App.3d 312, 318, 290 Ill.Dec. 49, 820 N.E.2d 1116 (2004). Defendant cites a number of cases where this element was satisfied when a defendant actually did remain present for a more extended period of time. See, e.g., People v. Sowewimo, 276 Ill.App.3d 330, 341-42, 212 Ill.Dec. 702, 657 N.E.2d 1047 (1995). We do not read such cases as establishing as a matter of law a minimum period that a defendant must place a victim under surveillance. Additionally, we use an objective standard to determine whether a victim is placed in “ reasonable apprehension of future confinement or restraint.” People v. Nakajima, 294 Ill.App.3d 809, 820, 229 Ill.Dec. 217, 691 N.E.2d 153 (1998) (making irrelevant defendant's claim that the victim did not testify that she was actually afraid of defendant in this case). Any history between a defendant and a victim may be relevant to assessing whether a reasonable person in the victim's position would be in apprehension of future confinement or restraint. See People v. Holt, 271 Ill.App.3d 1016, 1025, 208 Ill.Dec. 515, 649 N.E.2d 571 (1995). Thus, the State was required to prove that, on at least two occasions, after an order of protection was in place, defendant placed the victim under surveillance by remaining present outside a place occupied by the victim, thereby placing her in reasonable apprehension of future confinement or...