People v. Herring

Decision Date27 July 2001
Docket NumberNo. 1-00-1353.,1-00-1353.
Citation324 Ill. App.3d 458,754 N.E.2d 385,257 Ill.Dec. 727
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven HERRING, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Public Defender of Cook County, Chicago (Rita A. Fry, Michelle Thomas, of counsel), for Appellant.

State's Attorney of County of Cook, Chicago (Richard A. Devine, Renee Goldfarb, Mary P. Needham, Bonnie J. Greenstein, Alan J. Spellberg, of counsel), for Appellee.

Justice GALLAGHER delivered the opinion of the court:

Following a bench trial, defendant, Steven Herring, was convicted of two counts of home invasion and four counts of aggravated criminal sexual assault. He was sentenced to six years' imprisonment for each count of aggravated criminal sexual assault, with the terms to run consecutively, and one year's imprisonment for home invasion, to run concurrently. Defendant appeals his conviction arguing that he was not proved guilty beyond a reasonable doubt of four separate acts of aggravated criminal sexual assault where there was testimony as to only three acts of penetration. We also granted defendant's request to file a supplemental brief in which he contends that the recent decision by the United States Supreme Court, Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), requires his sentences to run concurrently because he was not afforded a jury determination of the aggravating factors used to enhance his sentence. We affirm.

The standard for reviewing the sufficiency of the evidence in a bench trial is the same as it is in a jury trial. People v. Howery, 178 Ill.2d 1, 38, 227 Ill.Dec. 354, 687 N.E.2d 836, 854 (1997). The reviewing court applies the reasonable doubt standard as set forth in People v. Collins, 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267 (1985). This standard of review is 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. Collins, 106 Ill.2d at 261, 87 Ill.Dec. 910, 478 N.E.2d at 277. This standard is applicable in all criminal cases, regardless of whether the evidence is direct or circumstantial, and allows the trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. People v. Campbell, 146 Ill.2d 363, 374-75, 166 Ill.Dec. 932, 586 N.E.2d 1261, 1266 (1992). Under this standard, we will not reverse a criminal conviction unless the evidence is so unreasonable, improbable, or so unsatisfactory as to justify a reasonable doubt of the defendant's guilt. Campbell, 146 Ill.2d at 375, 166 Ill.Dec. 932, 586 N.E.2d at 1266. This test has not been met in the present case.

In making its ruling, the trial court found that the victim in this case was absolutely and totally credible and that her testimony was compelling, honest, and straightforward. The court further noted that the victim's testimony was corroborated by both a security officer and a police officer, as well as the stipulated medical testimony. The court determined that these factors, in addition to the physical evidence and in further consideration of the "absolutely and totally incredible testimony of the defendant," led to the court's decision that the State had met its burden of proof.

The court went on to state as follows:

"I just want the record to be perfectly clear that I find there were 4 separate individual sex acts; the two that occurred in the apartment, and the two that occurred in the basement cellar, for lack of a better way of describing the room where those later in time sexual offenses occurred."

It is defendant's position that the State failed to sustain its burden as to the second of the two offenses that occurred in the apartment.

The victim in this case was a 31-year-old woman who lived alone in a second-floor apartment in Chicago. On April 27, 1998, the victim was sitting on the toilet with the bathroom door open. She heard a loud noise and saw defendant running towards her. She jumped up and tried to push the door closed, but defendant pushed it open. The victim screamed and banged on the wall to try to tell her neighbor to call the police. She then grabbed the toilet lid and hit defendant on the head with it. Defendant grabbed the victim by the neck and choked her. He told her that if she kept screaming, he would kill her. He punched her in the face with his closed fist. He hit her in her lip and face. As they were fighting, they fell to the floor. The victim then grabbed a bleach bottle from underneath the sink and threw bleach in defendant's face. She then tried to escape to the front door, but defendant grabbed her by the back of her hair and pulled her into the living room. The victim also testified that, at the time defendant was moving her to the living room, she saw a knife in his hands. Once in the living room, a struggle ensued. The defendant and the victim tripped over the coffee table, knocking out the glass top. The victim fell on the couch. Defendant told the victim to "shut up" and called her a "bitch."

It was at this point that the defendant then committed the first of the four sexual offenses. Regarding the first sexual offense that occurred inside the apartment, which is not at issue in this appeal, the victim testified as follows:

"Q. What happened next while you were in the living room on the couch?
A. He started trying to pull my shirt off.
Q. Now at the time that's going on, tell the Judge what it was that you were wearing at the time?
A. I was wearing a black, like a— like a black whole piece cat suit.
Q. Is it a whole one piece outfit?
A. Yes.
Q. When he started to remove your clothes what did he do?
A. He was pulling it, pulling it down.
Q. Did he manage to do anything with the clothes?
A. Yes.
Q. What did he do?
A. He ripped it.
Q. And then what happened?
A. That's what [sic] he started like unbuttoning his pants.
* * *
Q. When you say he was doing something with his pants, what did he do?
A. He unzipped him.
Q. He unzipped them? Did he lower them or just unzip them?
A. He unzipped them.
Q. Did he do anything once the pants were unzipped?
A. He took out his privates.
Q. When you say his `privates,' what part of his body did you see?
A. His penis.
Q. Once his penis was out did anything happen?
A. Yes. He tried to start putting it in my mouth.
Q. Did his penis ever actually make contact with your mouth?
A. Yes.
Q. What happened after his penis made contact with your mouth?
A. I was trying to bite it."

With respect to the second sexual offense that took place inside the apartment, the victim then continued to testify as follows:

"Q. Then what happened?
A. That's when I—we was struggling. And then when he got a chance to pull the rest of my stuff off like down to my lower area right here (indicating).
Q. How low?
A. Low being like to my waist.
THE COURT: Indicating for the record she's indicating her waist area.
MR. O'REILLY [Assistant State's Attorney]: Thank you.
Q. Then what happened? Or let me ask you this. Strike that. At this point are you still in the living room?
A. Yes.
Q. What happened next?
A. That when we was on the floor again. Then he was like over me then.
Q. Okay. Describe the positioning. If you were on the floor, who is where?
A. I was laying back. He was on top of me like his knees. I mean he was like over me. Like I was laying down; he was over me. And he had me still, like choking me and stuff.
Q. When you say he was over you, was each of his legs on either side of you lying over you?
A. Yes.
Q. And when you say you were lying on the ground, are you lying face up or face down?
A. Face up.
Q. With your face up. Is that in a position where you'd be able to see him?
A. Yes.
Q. What happened once you're on the floor and he was in that position?
A. He still was trying to pull my clothes. He was pulling my clothes down.
Q. Did he get your clothes lower?
A. Yes.
Q. How much lower did your clothes go?
A. To about here (indicating).
Q. Where is that? Describe it on your body?
A. Like below my knees.
Q. Below your knees?
A. Uh-huh.
Q. Okay. And what happened once your clothes were now below your knees?
A. He was pulling his clothes, pulling his clothes down, trying to stick his thing in.
Q. When you say stick his `thing,' what are you referring to.
A. His penis.
Q. Okay. Did he do anything with his penis at that point?
A. No because we was like fighting. So he never did get a chance to really do anything. And at that time I was tussling with him and—
Q. Let me ask you what you mean by tussling?
A. Like fighting, like fighting, scratching. He was like choking me. His hands on my mouth. So I was kind of like grabbing him so he would get off of me, like grabbing him.
Q. Okay. What happened now?
A. That's when I had a chance to get up."

Defendant argues that this testimony regarding the second of the four sexual offenses, viewed in the light most favorable to the prosecution, clearly does not prove any penetration occurred. Defendant is wrong.

In order to find a defendant guilty of the offense of aggravated criminal sexual assault, the trier of fact must find that the accused committed an act of sexual penetration by the use of force or threat of force, and the accused caused the victim bodily harm or has displayed, threatened to use, or has used, a dangerous weapon. People v. Washington, 240 Ill.App.3d 688, 704, 181 Ill.Dec. 473, 608 N.E.2d 546, 556 (1992). Sexual penetration is defined as:

"[A]ny contact, however slight, between the sex organ or anus of one person by an object, the sex organ, mouth or anus of another person, or any intrusion, however slight, of any part of the body of one person * * * or object into the sex organ or anus of another person * * *." 720 ILCS 5/12-12(f) (West 1998).

It has been noted that the inclusion by the legislature of the words "any...

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    ...inferences based on the evidence presented, and may find penetration in the absence of direct evidence. The case of People v. Herring, 324 Ill.App.3d 458, 257 Ill.Dec. 727, 754 N.E.2d 385 (2001), is instructive. The defendant in that case was convicted of two counts of home invasion and fou......
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