People v. Casiano

• Decision Date: 07 February 1991
• Docket Number: No. 1-88-1309,1-88-1309
• Citation: 212 Ill.App.3d 680,571 N.E.2d 742,156 Ill.Dec. 762
• Parties: , 156 Ill.Dec. 762 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Otilio CASIANO, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 742

571 N.E.2d 742

212 Ill.App.3d 680, 156 Ill.Dec. 762

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Otilio CASIANO, Defendant-Appellant.

No. 1-88-1309.

Appellate Court of Illinois,

First District, Fourth Division.

Feb. 7, 1991.

As Modified on Denial of Rehearing May 9, 1991.

Michael J. Pelletier, Deputy Defender, Chicago (Karen Daniel, Asst. Appellate Defender, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty., Chicago (Renee Goldfarb, Joseph Brent, Mary Kenney, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice LINN delivered the opinion of the court:

Defendant, Otilio Casiano, was convicted of one count of kidnapping (Ill.Rev.Stat.1985, ch. 38, par. 10-1(a)(2)), and three counts of aggravated criminal sexual assault, based on the kidnapping (Ill.Rev.Stat.1985, ch. 38, par. 12-14(a)(4)), following a bench trial in the circuit court of Cook County. Defendant was sentenced to the penitentiary for three concurrent terms of 16 years.

Defendant appeals, contending the State failed to prove him guilty beyond a reasonable doubt of both offenses. Focusing on the kidnapping conviction, defendant also argues that the evidence failed to establish that he "carried" the victim and, alternatively, that any asportation that did occur was merely incidental to the principal offense of criminal sexual assault. Defendant lastly assigns error to his sentence.

We affirm defendant's convictions and sentence.

Background

The record contains the following pertinent facts. Defendant was charged in a 15-count indictment with various offenses relating to criminal sexual assault and kidnapping. He was tried on all counts.

At trial, the victim testified as follows. On January 12, 1987, at between 1:00 and 2:00 a.m., the victim was waiting for a bus on Division Street in Chicago after visiting a friend. After waiting for a bus for at least one half hour, the victim began to walk west on Division Street. After she walked eight to ten blocks, defendant approached her from behind, stuck a sharp object in her back, grabbed her arm, and forced her to walk with him to his apartment, a distance of approximately 1 1/2 blocks.

Once inside the apartment, defendant began to push the victim, ordered her to remove her clothes, and threatened to kill her if she did not do so. Defendant displayed a butterknife and repeated his demand. The victim began to cry and asked defendant if she could telephone her mother to obtain a ride home. Defendant allowed the victim to use his telephone. However, instead of calling her mother, the victim telephoned the 911 emergency line. When the 911 operator answered the call, the victim said, "Mama, will you please come and get me?" Defendant then grabbed the telephone from the victim and hung up.

A short time later, defendant again demanded that the victim remove her clothes. Defendant snatched at the victim's sweatshirt and tore it. The victim removed her sweatshirt. Defendant granted the victim's second request to telephone her mother. For the second time, the victim dialed the 911 emergency line. When the 911 operator asked her what was wrong, the victim stated, "I can't tell you, I can't tell you." Defendant again hung up the telephone.

The victim pleaded with defendant not to hurt her. In response, defendant threatened to beat and kill the victim and throw her out of the window or back door. Defendant then undressed the victim at knifepoint and raped and sodomized her.

During this prolonged attack, the police arrived. Police officers rang the doorbell and flashed a spotlight on the window, but defendant prevented the victim from approaching the window. The police departed from the scene when they received no response.

A short time later, the victim again obtained defendant's permission to telephone her mother. The victim redialed the 911 emergency number and pretended to speak to her mother. Defendant hung up the telephone and again sodomized her. The police again returned to defendant's apartment building, interrupting the attack. They rang the doorbell, pounded on and kicked the door, shone a spotlight on the window, and sounded their horn and siren. Defendant again restrained the victim. After receiving no response, the police left the scene.

After the police departed, defendant ordered the victim to dress and leave his apartment. The victim complied, hailed a police squad car in the vicinity of the building, and informed the officers that she had been sexually assaulted. Accompanied by the police, the victim returned to defendant's apartment and identified him as the offender.

On cross-examination, the victim additionally testified as follows. Earlier that evening she drank three cans of beer. At defendant's apartment, the victim used cocaine; however, she did so at defendant's command and not voluntarily. She first saw the butterknife only when defendant removed her clothes. Also, the victim did not tell the police officers to whom she first spoke that defendant threatened her with a knife and threatened to throw her out of the window. The victim could not remember whether she subsequently gave this information to police detectives.

Chicago Police Officer Patrick Gillespie testified that he twice responded to reports of disturbances at defendant's apartment building. However, he did not receive any response each time he announced his presence. Chicago Police Officers Elijah Ortiz and Linda Gonzales testified that the victim hailed their squad car approximately one block from defendant's apartment. Officer Ortiz observed that the victim wore a torn sweatshirt. He also identified in court the knife that he recovered from the apartment. Officer Gonzales testified that the victim identified defendant as her assailant.

The parties then stipulated to the testimony of Rajeev Sareen, M.D., and Christine Anderson. Dr. Sareen, an emergency room physician, would testify as follows. He performed a physical examination of the victim subsequent to the attack. His examination disclosed superficial scratch marks on the right side of the neck and a swollen lower lip. Additionally, he prepared a Vitullo kit, a medical test used in sexual assault investigations. Christine Anderson, a police department criminologist, would testify that a vaginal swab taken from the victim revealed the presence of semen and type A activity. Defendant's blood and saliva samples indicated that he is a type A secretor. The victim's blood and saliva samples indicated that she is a type O non-secretor. The State rested.

Defendant's case consisted of a stipulation. Defendant and the State stipulated that if called to testify, a police detective would testify that the victim did not tell him that defendant threatened her with a knife in the apartment or threatened to throw her out of his window.

The trial court found that defendant used force to carry the victim from one place to another, i.e., from the street to his apartment, with the intent to confine her secretly against her will. Thus, the court convicted defendant of one count of kidnapping. (Ill.Rev.Stat.1985, ch. 38, par. 10-1(a)(2).) The court also found that defendant committed criminal sexual assault based on the forced sexual intercourse, and oral and anal sodomy. Further, the criminal sexual assault was aggravated by the kidnapping. Accordingly, the court convicted defendant of three counts of aggravated criminal sexual assault. Ill.Rev.Stat.1985, ch. 38, par. 12-14(a)(4).

At the sentencing hearing, the trial court denied defendant's post-trial motion. At the close of the hearing, the court sentenced defendant to three concurrent prison terms of 16 years for the three convictions of aggravated criminal sexual assault. The court stated:

"And I do, in fact, sentence you to [prison] for a term of 16 years on each of the charges, each of the three charges. Your terms will run concurrent; meaning, you'll be serving all the three sentences at the same time."

Defendant appeals.

Opinion

I

We first address defendant's claims relating to his kidnapping conviction. He was indicted for violating Criminal Code section 10-1(a)(2), which provides as follows:

"Sec. 10-1. Kidnaping. (a) Kidnaping occurs when a person knowingly:

* * * * * *

(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will,

* * * * * *

(c) Sentence.

Kidnaping is a Class 2 felony." (Ill.Rev.Stat.1985, ch. 38, par. 10-1.)

Additionally, it is elementary that the State must prove beyond a reasonable doubt every element of the crime charged. People v. Wolter (1979), 78 Ill.App.3d 32, 38, 33 Ill.Dec. 378, 382, 396 N.E.2d 1102, 1106.

A.

Defendant argues that the evidence failed to prove that he actually "carried" the victim from the street to his apartment. Thus, he argues, the kidnapping conviction should be reversed, the conviction for aggravated criminal sexual assault should be reduced to criminal sexual assault, and the cause remanded to the trial court for re-sentencing.

At common law, the offense of kidnapping had a narrow scope. It was the forcible abduction of a person and sending that person into another country. Kidnapping was merely an aggravated form of false imprisonment. Thus, kidnapping was a relatively unknown and inconsequential offense. (Model Penal Code § 212.1, Comment, at 210 (1980); 2 C. Torcia, Wharton's Criminal Law § 210 (14th ed. 1979); 2 W. Burdick, Law of Crime § 383 (1946).) Today, however, kidnapping is punished by statute and all states have progressively extended the scope of the offense. It is a crime of far broader definition and carries major felony sanctions. Model Penal Code § 212.1, Comment, at 210 (1980); Burdick, § 387.

Simple kidnapping is sometimes defined, as in Illinois, as a seizure with asportation or detention. (Note, A Rationale of the Law of Kidnapping, 54 Colum.L.Rev. 540, 541 (1953).) Asportation has long been...