People v. Cross

• Decision Date: 26 December 2019
• Docket Number: No. 1-16-2108,1-16-2108
• Citation: 2019 IL App (1st) 162108,147 N.E.3d 962,439 Ill.Dec. 287
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kerwinn CROSS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (1st) 162108

147 N.E.3d 962

439 Ill.Dec. 287

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

v.Kerwinn CROSS, Defendant-Appellant.

No. 1-16-2108

Appellate Court of Illinois, First District, FOURTH DIVISION.

Opinion filed December 26, 2019

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant Kerwinn Cross was convicted of aggravated criminal sexual assault, aggravated kidnapping, attempted sexual assault, attempted and aggravated criminal sexual abuse and sentenced to a total of 70 years with the Illinois Department of Corrections (IDOC). All the charges concerned one victim, C.C., age 15, and occurred during one night in June 2013.

¶ 2 On appeal, defendant raises numerous claims, challenging the grand jury proceedings, the jury trial, and the sentencing. In the case at bar, defendant was allowed to file three opening briefs: one original brief, plus two supplemental briefs. In return, the State was permitted to file a response brief in excess of the normal page limits and a second, additional response brief. Thus, numerous issues were raised. Our opinion addresses each one, in turn.

¶ 3 For the following reasons, we vacate defendant's conviction for aggravated criminal sexual abuse because it violates the one act, one crime rule and order the mittimus corrected accordingly. We affirm all his other convictions in this case, but we remand for resentencing for reasons explained below. In addition, we vacate his prior aggravated unlawful use of a weapon (AUUW) conviction, as well as his prior unlawful use of a weapon by a felon (UUWF) conviction, as required by our supreme court's decision in In re N.G. , 2018 IL 121939, 425 Ill.Dec. 547, 115 N.E.3d 102.

¶ 4 BACKGROUND

¶ 5 While the charges in the case at bar related solely to an assault of C.C. on June 25, 2013, the State also called two witnesses, N.L, age 16, and L.F., age 27, who testified at trial that defendant sexually assaulted them a few days earlier, on June 22, 2013, and June 20, 2013, respectively. None of the three women knew each other, and defendant did not claim that they did. Defendant took the stand in his own defense, admitting that he had sex with all three women but asserting that the sex in all three instances was consensual. Thus, the only issue here was consent.

¶ 6 Prior to trial, the State filed a motion to admit evidence of other crimes, namely, that between 2009 and 2013, 10 other women or girls, ranging in age from 13 to 25, had accused defendant of sexual assault or abuse. In seven of these instances, the offense was reported to the police but charges were not filed. The trial court found that the State could not use six of the uncharged offenses in its case-in-chief but that this ruling could change depending on whether defendant testified and what other evidence was presented. The trial court found that the State could use in its case-in-chief the three charged cases and one of the uncharged offenses. At trial, the State presented only two, and the trial court's ruling on this motion is not at issue on appeal.

¶ 7 Since the defense argued at trial about the inconsistencies between details of the women's trial testimony and details in their earlier statements, and the State argued about the similarities in the women's experiences, we provide the details of their narratives below.

¶ 8 At trial, C.C., the 15-year old victim in the case at bar, testified that, after spending the day at an amusement park in Waukegan with her best friend, her friend's father drove the girls back to Chicago, returning them to her friend's house at around 1 a.m. on June 25, 2013. The next day, June 26, was C.C.'s sixteenth birthday. C.C.'s friend went inside the home, but C.C. walked toward a gas station to purchase snacks, carrying a bag of clothes that she had had with her at the amusement park. C.C. testified that, while she was walking to the gas station, she "got stopped" by a vehicle. A passenger in the vehicle started talking to her, asking her name and introducing himself as "Cool." The passenger, whom C.C. identified as defendant, asked her if she wanted to smoke marijuana. After saying "yes, * * * it's my birthday," she entered the back seat of the vehicle, and she and defendant smoked marijuana together and she told him she "was 15 going on 16." The driver, who C.C. described as a black man with a thick beard and a bald head, drove them to a house, where defendant exited the vehicle, returning 5 or 10 minutes later. They drove to a restaurant, and defendant asked her what she wanted to eat. The driver and defendant exited the vehicle, returning with three sandwiches. After eating, they drove to another location, where the driver exited the vehicle and C.C. moved to the front passenger seat and defendant moved to the driver's seat.

¶ 9 C.C. testified that defendant drove to his house and parked, inviting her to come inside his house because he was "going to be a minute." Leaving her bag of clothes in the vehicle, C.C. exited and walked toward the house with him. C.C. left her bag in the vehicle because "the whole plan with him" was "we smoke, and he drop me back off." However, "something just told" her to ascertain where she was, so she counted six houses from the corner and they entered the sixth house. As they entered the back door of his house, C.C. heard dogs in the house. After heading up the stairs, defendant told her to go to the room on the left, which was his bedroom. They sat on the bed, talking for a while, when defendant suddenly asked if she had "ever been f*** in the a***." She felt uncomfortable and did not "want to do anything with him [like] that," so she told him no and that she had her period. Then they talked some more, and when she was talking, he said "shut up, b***" and started choking her, with his hands around her neck, and she had trouble breathing. Then he started smacking her around and trying to flip her over, but she resisted that. Defendant ripped off her pants and underwear, while she screamed for help.

¶ 10 C.C. testified that he removed her tampon, placed it on a window ledge and forced his penis into her vagina, while placing his lips all over her face. Defendant then put "his finger on [her] bootie hole," and tried to put his penis in her anus but she fought that off. C.C. testified: "I just went crazy, and I was fighting back, flipped him over the bed, and I bit his fingers." While he was trying to anally rape her, defendant said "say yes to daddy." After she bit his fingers, he took out a knife that was 6 to 10 inches long and placed it against her back. When the knife was against her back, she vomited. C.C. was screaming, and he told her "shut up, the police [are] coming" and then "we fitting to go." On their way out of the house, C.C. grabbed a red jacket out of his room that was not hers because she was wearing only a shirt and was naked from the waist down. So she wrapped the jacket around her waist.

¶ 11 C.C. testified that defendant still had the knife out, and he took her and "put" her in his vehicle. After driving around a few blocks, defendant stopped his vehicle in front of a church and said "get out, b***," while pushing her out of the vehicle. C.C. fell out of the vehicle, landing on the ground and injuring her knee and her foot. Then she jumped back into the vehicle, hit defendant twice, grabbed her bag from the back seat and jumped back out. When asked why she went back into the vehicle for her bag, she explained: "I had only a shirt on. * * * I knew I had my life back. * * * I had clothes in the bag. So I grabbed my bag so I could put some clothes on." After defendant drove off, she retrieved pants from the bag and put them on.

¶ 12 C.C. testified that she observed a man on the street and asked to use his phone because she had just been raped. He called 911, and she spoke with the 911 dispatcher, and then she called her mother. Shortly thereafter, the police and her mother arrived. An ambulance transported her to the hospital, where she told them what happened and they utilized a rape kit, swabbing different parts of her body. After she was released from the hospital, she met Detective Watkins who drove her around to identify the places where she had been. After finding the red jacket in the middle of the street, they were able to backtrack from there and locate defendant's house. With the red jacket were also the clothes that defendant had "ripped off of [her]." Later, on July 3, 2013, she viewed a lineup at the police station and picked out defendant as the person who had raped her. Prior to testifying at trial, C.C. viewed a video surveillance tape that depicted her entering defendant's vehicle, and it was admitted into evidence without objection. C.C. also identified several photos, including photos of her showing "[t]he prints around [her] neck from when he choked" her and the scar on her foot from when he pushed her out of the vehicle, and a photo of defendant from the lineup with wrapping around his hand. Prior to her testimony, she listened to the tape of the 911 call, which was also admitted into evidence and published to the jury without objection. C.C. testified that she did not know N.L.

¶ 13 On cross-examination, C.C. explained that she had dropped only the red jacket at the spot where defendant had thrown her out of his vehicle. However, the following morning, found at the same location, were the clothes that he had ripped off of her prior to the rape. On cross, C.C. testified that she was not sure what she grabbed from her bag to put on. She just "threw something on at the time." She put on "bottoms," which could have been a skirt. At the hospital, she handed the clothing that she was wearing to the nurse who inventoried them and C.C. signed the inventory. The inventory listed a beige skirt, a bra, a shirt and a black Adidas jacket. C.C. denied telling the nurse and responding police officer Cassandra Hawthorne...