People v. Manning

• Decision Date: 22 October 2002
• Docket Number: No. 1-00-3242.,1-00-3242.
• Citation: 778 N.E.2d 1222,334 Ill. App.3d 882,268 Ill.Dec. 600
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Judson MANNING, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

778 N.E.2d 1222

334 Ill. App.3d 882

268 Ill.Dec. 600

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Judson MANNING, Defendant-Appellant.

No. 1-00-3242.

Appellate Court of Illinois, First District, Second Division.

October 22, 2002.

Michael Pelletier-Deputy Defender, Yasemin Eken, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, County of Cook, Chicago (Renee Goldfarb, Margaret J. Campos, Emily J. Grzanka, of counsel), for Appellee.

Justice CERDA delivered the opinion of the court:

On appeal, defendant, Judson Manning, contends that the State failed to prove him guilty of child abduction beyond a reasonable doubt, that the trial court erred in refusing to define the word "conceal" for the jury, and that he was rendered ineffective assistance of counsel.

Following a jury trial, defendant was found guilty of child abduction (720 ILCS 5/10-5(b)(6) (West 2000)) and sentenced to 20 months in prison. We affirm.

BACKGROUND

During opening arguments, defense counsel told the jury defendant would testify that he was concerned his wife was mistreating their child. Because of this mistreatment and defendant's concern for the child's "future well being," defendant decided the child should not see her mother. The defense provided no evidence at trial of any mistreatment by defendant's wife and defendant informed the court he did not wish to testify.

At trial, Olga Manning testified with the assistance of a translator. She stated she was married to defendant in December 1998, and they had a two-year-old daughter, T.M. Olga admitted that her marriage to defendant was troubled and the couple was considering separating. On the morning of December 23, 1998, Olga took T.M. to the babysitter and went to work. Defendant called her and said he would pick up T.M. and would help Olga fix her car after work. Around 4 p.m., Olga received a telephone call from the babysitter requesting permission to let T.M. leave with defendant. Olga told the babysitter that defendant had permission to pick up T.M.

After work, Olga waited for three hours, but defendant did not arrive. When she went home, defendant and the child were not in the apartment. Olga testified the apartment was in disarray and T.M.'s clothes, the stove, the refrigerator, and Olga's and T.M.'s passports were missing. Olga called the police.

Olga stated that she, defendant and T.M. had planned to spend Christmas in Iowa with defendant's mother, Trena Manning. Olga called Trena, who told her not to worry, defendant" was just buying some things." When Olga again called Trena on December 25, 1998, someone picked up the telephone, then hung up on her. Ten minutes later, Trena called Olga and told her never to call her home again.

Olga testified she went to Iowa twice to look for her daughter—once on December 28, 1998, and again on December 31, 1998. On December 28, 1998, Olga went to the police station and to Trena's home. T.M. was not at Trena's home, but Olga saw that the child's clothes were there. Trena did not give Olga a telephone number or an address where T.M. could be reached. When Olga returned to Iowa on December 31, 1998, she contacted Ethel Pierangelli, a friend of Trena's.

Trena Manning testified that defendant, Olga and T.M. were to spend Christmas at her house in Iowa. Because Olga and defendant were having marital problems, Trena arranged for defendant to stay at her friend Ethel's home, while Olga and T.M. stayed with her. However, defendant and T.M. arrived at her house without Olga on December 24, 1998.

Trena testified that Olga called her on December 25, 1998, but she did not tell Olga her husband and child were there because she hoped to convince defendant to return to Chicago and resolve his marital problems. Trena further testified that Olga and two of her friends, Yolanda and Hector, arrived at Trena's house on December 26, 1998. When Olga asked Trena where T.M. was, Trena responded that defendant had taken the child to McDonald's and would be back shortly. According to Trena, Olga threw herself on the floor and screamed, "what do these people want from me" and "my baby." She then began pulling out her hair. Yolanda and Ethel attempted to comfort Olga. Trena stated she was distraught and went to her room.

After Olga calmed down, Trena and Olga spoke in Trena's room. Olga told Trena that Hector and Yolanda had driven her to Iowa and they had to go back to Chicago because Yolanda was starting a new job that evening. Trena testified that Olga and her friends departed approximately one hour before defendant and T.M. returned to the house.

Trena stated that she received a telephone call from a police officer at some point, inquiring about defendant and T.M. She did not tell the officer defendant and T.M. were staying with her because she assumed the officer knew they were there.

Trena saw Olga again on January 2, 1999, at Ethel's home. Trena testified she was very upset and did not remember what she and Olga said to each other. The next day, Ethel went to her home and discovered that defendant and T.M. had left.

Ethel Pierangelli testified that Olga went to Trena's apartment on December 26, 1998, and asked where her baby was. Olga then threw herself on the floor and pulled at her own hair until Ethel and Yolanda calmed her down. Ethel stated that she and Olga were close friends and that Olga called her after she returned to Chicago to ask "is little [T.M.] all right or something like that." Ethel also stated that she "probably" called Olga in Chicago other times to tell her how T.M. was.

On the night of January 1, 1999, Olga, Yolanda and Hector returned to Iowa andwent to Ethel's house. Ethel took them to a motel for the night. The next day they moved to a vacant apartment in one of the buildings Ethel managed.

Ethel testified that on January 2, 1999, she went to Trena's home to wish Trena a happy birthday. Because Trena and defendant were arguing, Trena went to stay with Ethel. Ethel returned to Trena's the next day to get Trena's medication and discovered that defendant and T.M. were gone. Olga, Yolanda and Hector left Iowa on January 4, 1999.

At 11 p.m. on January 10, 1999, defendant was apprehended in Hidalgo, Texas, while attempting to cross the border from Mexico into the United States. Olga was reunited with T.M. on January 11, 1999, in Texas. Defendant had never contacted Olga during their absence.

During deliberations, the jury sent a note to the trial judge asking, "Is there a legal definition of the word `concealed.' If so what is it." The court responded, "There is no legal definition for the word concealed.' However, please use your own observations and experience in life and review the instruction which begins `to sustain the charge of child abduction the State must prove the following propositions * * *."' Defense counsel objected to the response, arguing that the judge should only tell the jury there is no legal definition of the word "concealed" and nothing more.

The jury deliberated for approximately another 1½ hours. Deliberations lasted a total of under three hours. Defendant was found guilty of child abduction and sentenced to 20 months in prison.

On appeal, defendant contends that the State did not prove he concealed T.M., the trial court erred in refusing to define the word "concealed" for the jury; and his trial counsel was ineffective for not delivering promised testimony.

ANALYSIS

Defendant first contends that the State failed to prove him guilty of child abduction beyond a reasonable doubt. He argues that the evidence was insufficient to show he intentionally or knowingly concealed T.M. from her mother for 15 days because Olga knew the child was at Trena's house until January 3, 1999. The State argues that Olga's knowledge does not preclude defendant's conviction because defendant intentionally kept the child away from her mother.

Where a defendant challenges the sufficiency of the evidence, a reviewing court must view the evidence in the light most favorable to the prosecution and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Taylor, 186 Ill.2d 439, 445, 238 Ill.Dec. 604, 712 N.E.2d 326 (1999). A conviction will not be set aside unless the evidence is so improbable or insufficient that there remains a reasonable doubt as to the defendant's guilt. Taylor, 186 Ill.2d at 445, 238 Ill.Dec. 604, 712 N.E.2d 326.

A person is guilty of child abduction when he:

"[b]eing a parent of the child, and where the parents of such child are or have been married and there has been no court order of custody, conceals the child for 15 days, and fails to make reasonable attempts within the 15 day period to notify the other parent as to the specific whereabouts of the child, including a means by which to contact such child, or to arrange reasonable visitation or contact with the child." 720 ILCS 5/10-5(b)(6) (West 2000).

Defendant does not deny that he was T.M.'s parent, he was married to Olga at the time of the incident, and he failed to make any attempt to contact Olga regarding T.M.'s whereabouts. He does argue, however, that the State did not prove he concealed T.M. because Olga knew T.M. was at Trena's home in Iowa. We disagree.

There was no evidence presented at trial showing that Olga definitively knew where T.M. was staying. Despite her efforts to locate the child, Olga never saw or spoke to T.M. Even if Trena and Ethel did tell Olga the child was in Iowa, Olga may not have believed them due to their relationships with defendant. Furthermore, defendant could have been moving T.M. to different locations. Regardless of where the child's clothes were stored, Olga could not have been sure where T.M. herself was living and sleeping. She had no assurance of the child's whereabouts without having actual contact with her.

In addition, we find...