People v. Gonzalez

• Citation: 392 Ill. App. 3d 323,910 N.E.2d 1214
• Decision Date: 08 June 2009
• Docket Number: No. 1-08-0869.,1-08-0869.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aurelia GONZALEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

910 N.E.2d 1214

392 Ill. App. 3d 323

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Aurelia GONZALEZ, Defendant-Appellant.

No. 1-08-0869.

Appellate Court of Illinois, First District, First Division.

June 8, 2009.

Marc R. Kadish, Heather Lewis Donnell, Nicole J. Hghland, Sarah E. Reynolds and Katrina A. Hochstetler, Mayer Brown LLP, Chicago, for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (James E. Fitzgerald and Nancy Colletti, of Counsel), for Appellee.

Justice WOLFSON delivered the opinion of the court:

Throughout the trial, defendant insisted she could not be found guilty of aggravated kidnapping. She claimed there was insufficient evidence she secretly confined the infant she carried away from the Stroger Hospital Fantus Clinic. Neither the jury nor the trial court agreed.

The jury found defendant Aurelia Gonzalez guilty but mentally ill of aggravated kidnapping and unlawful restraint. Defendant was sentenced to concurrent prison terms of six years and three years. On appeal, defendant contends the State failed to prove beyond a reasonable doubt she committed the offense of aggravated kidnapping. Defendant also contends she suffered prejudice when the prosecutor referred to the substance of her suppressed statement during rebuttal argument. We reverse the aggravated kidnapping conviction and affirm the conviction and sentence for unlawful restraint.

FACTS

State witnesses testified that on March 2, 2006, Mirabel and Joel Oceguera were in the waiting room at the Stroger Hospital Fantus Clinic (Fantus Clinic) with their three-week-old baby. Defendant sat next to them. Mirabel recognized defendant from the neighborhood. Defendant appeared pregnant.

Later, Mirabel excused herself from the waiting room to take a phone call, leaving the baby with Joel. While she was away, Joel was called to the reception desk to complete paperwork. When the Ocegueras' baby began crying, defendant offered to hold her. Joel agreed. After Joel finished the paperwork, defendant and the baby were gone. Joel left the waiting room and checked for his baby in the surrounding area of the hospital. He then exited the hospital and checked the outside grounds. Joel testified a stranger pointed him in the direction that defendant had gone. The stranger was standing at a stop sign 10 to 15 feet away from the hospital. When asked whether the stranger told him that a woman and a baby went in the designated direction, Joel replied yes.

When she completed her phone call, Mirabel returned to the waiting room. A man said something to her to make her begin searching for her baby. When asked whether that was the first time she learned her child had been taken from the waiting room, Mirabel testified the man had watched what happened. Mirabel called Joel. She confirmed he was looking for their missing baby. She called 911. Maribel then flagged down a police car. She rode with the police in their car to look for the baby near the hospital. The officers received a message on their radio that a suspect was being held at Rush University Medical Center (Rush).

Within 15 minutes of Joel realizing the baby was missing, Damien Hopkins, a Rush security guard, stopped defendant in a restricted section of the Rush emergency room. The area was accessible only to doctors and patients. Rush is located on Harrison Street, approximately two or three blocks from Fantus Clinic. Hopkins saw "a woman carrying a baby." The baby was wrapped in a white and pink "blanket." Defendant appeared nervous. When Hopkins approached her, she began to walk away. Damien Hopkins followed and stopped her. Defendant then attempted to bribe Hopkins with $20. Hopkins called for assistance. A nurse took the baby from defendant.

Officer Jackie Gregory testified that she picked Maribel up after being flagged down. When Officer Gregory received the radio announcement regarding the possible suspect, she brought Maribel to Rush. When they arrived, Officer Marianne Cullotta "was holding the baby and there were a lot of Rush security along with other Chicago Police Department personnel."

Officer Cullotta testified that she was in the area when she received a flash alert describing defendant and the baby. Officer Cullotta noticed a number of security guards running into a building at Rush. Officer Cullotta and her partner followed. When they entered Rush, Officer Cullotta saw "defendant, a lady, actually standing there with a baby."

The baby was returned to the Ocegueras. Maribel testified that her baby was wrapped in a white and pink baby towel covering her body and head.

After the close of the State's case, defendant moved for a directed verdict. The trial court denied the motion. Defendant appeals her aggravated kidnapping conviction.

DECISION

Defendant contends the State failed to prove her guilty of aggravated kidnapping beyond a reasonable doubt. Specifically, she contends the State failed to prove she "secretly confined" the Ocegueras' baby, as required by the statute.

We are not asked to resolve conflicts in testimony. Nor are there credibility issues to resolve. The only question before us is whether the uncontested evidence falls within the statutory elements of the aggravated kidnapping offense. We find it does not.

When reviewing the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Emphasis in the original.) Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573 (1979). Secret confinement is an essential element of kidnapping. People v. Riley, 219 Ill.App.3d 482, 487, 162 Ill.Dec. 194, 579 N.E.2d 1008 (1991).

An individual commits the offense of kidnapping when he or she knowingly "and secretly confines another against his will." 720 ILCS 5/10-1 (a)(1) (West 2006). An individual commits aggravating kidnapping when the victim is under 13-years-old. 720 ILCS 5/10-2 (a)(2) (West 2006).

No more than 15 minutes went by between the time defendant left the Fantus Clinic with the baby until she was arrested at Rush University Medical Center. She walked on a busy street to get to Rush. Everybody who saw her—strangers, hospital security guards, and police officers— immediately realized defendant was carrying a baby. Towel or not, everyone saw the baby. In fact, the State is frank in its brief: "That defendant was carrying a baby may have been obvious to those passing her on the street* * *" (page 13), and "While it may have been obvious to the public that Rebecca Oceguera was a tiny baby being carried down the street by the defendant* * *" (page 14).

Secret confinement is the "gist of kidnapping." People v. Lamkey, 240 Ill. App.3d 435, 438, 181 Ill.Dec. 333, 608 N.E.2d 406 (1993). It is demonstrated "by either the secrecy of confinement or the place of confinement." People v. Sykes, 161 Ill.App.3d 623, 628, 113 Ill.Dec. 444, 515 N.E.2d 253 (1987). Here, there was no secret confinement and there was no place of confinement, as those elements of proof are defined by the cases.

What happened here is not the child buckled in the back seat of a speeding van with tinted windows. People v. Goodwin, 381 Ill.App.3d 927, 320 Ill.Dec. 923, 888 N.E.2d 140 (2008). Nor is it the 12-year-old being kept in the offender's house for parts of four days. People v. George, 326 Ill.App.3d 1096, 261 Ill.Dec. 218, 762 N.E.2d 1145 (2002). It is not the child taken to a viaduct late at night, with no one else around. People v. Turner, 282 Ill.App.3d 770, 218 Ill.Dec. 226, 668 N.E.2d 1058 (1996). Nor is it the overgrown isolated dark field in People v. Franzen, 251 Ill.App.3d 813, 190 Ill.Dec. 847, 622 N.E.2d 877 (1993).

This case is closer to Lamkey and Sykes. In Lamkey, the defendant jumped out of a doorway, grabbed the wrists of a ten-year-old girl, pulled her into a hallway, and pushed her against a wall. The hallway was visible through a glass door. It was located a couple of steps from a busy thoroughfare. The court reversed defendant's aggravated kidnapping conviction, holding the State failed to prove the element of secret confinement. Lamkey, 240 Ill.App.3d at 439, 181 Ill.Dec. 333, 608 N.E.2d 406.

In Sykes, the defendant confronted a 10-year-old girl as she approached a school playground at 8:30 a.m. He pulled her into an alley. They went through two or three alleys, until they reached but did not enter a partially vacant building, then returned to the street. Reversing the defendant's aggravated kidnapping conviction, the court held that was not the secret confinement envisioned by the kidnapping statute. Sykes, 161 Ill.App.3d at 628-29, 113 Ill.Dec. 444, 515 N.E.2d 253 ("In the instant case, the victim simply was not confined or enclosed within any place or any thing.")

It is the constant "public view or awareness" of the child that takes this case out of the kidnapping statute. See People v. Trotter, 371 Ill.App.3d 869, 877, 309 Ill. Dec. 415, 864 N.E.2d 281 (2007), overruled on other grounds by People v. Harrison, 226 Ill.2d 427, 315 Ill.Dec. 680, 877 N.E.2d 432 (2007).

The prosecution in this case apparently was concerned about the paucity of secret confinement proof. During rebuttal argument the prosecutor reached into the defendant's previously suppressed statement to add two facts: "She covered it [the baby] in a blanket, put it in her jacket, and ran." There was no such evidence. Because of our conclusion in this case, we will not stop to consider the gravity of the prosecutor's misstatement.

The statute says what it says, and the "secretly confined another" element of the offense cannot be read out of the statute by making the obvious observation that the baby's parents did not know where the infant was during the critical 15 minutes. This was, as the jury found, a matter of unlawful restraint, since defendant ...