People v. Perkins
| Citation | 2020 IL App (2d) 170963,179 N.E.3d 345,449 Ill.Dec. 426 |
| Decision Date | 10 August 2020 |
| Docket Number | No. 2-17-0963,2-17-0963 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel E. PERKINS, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
2020 IL App (2d) 170963
179 N.E.3d 345
449 Ill.Dec. 426
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Daniel E. PERKINS, Defendant-Appellant.
No. 2-17-0963
Appellate Court of Illinois, Second District.
Opinion filed August 10, 2020
James E. Chadd, Thomas A. Lilien, and Fletcher P. Hamill, of State Appellate Defender's Office, of Elgin, for appellant.
Eric Weis, State's Attorney, of Yorkville (Patrick Delfino, David J. Robinson, and David E. Mannchen, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
JUSTICE ZENOFF delivered the judgment of the court, with opinion.
¶ 1 Following a bench trial, defendant, Daniel E. Perkins, was found guilty of aggravated kidnapping with a firearm ( 720 ILCS 5/10-2(a)(6) (West 2014)), two counts of aggravated criminal sexual assault with a firearm ( 720 ILCS 5/11-1.30(a)(8) (West 2014)), attempted aggravated criminal sexual assault with a firearm ( 720 ILCS 5/8-4(a), 11-1.30(a)(8) (West 2014)), and armed violence ( 720 ILCS 5/33A-2(a) (West 2014)). The court sentenced defendant to an aggregate of 52 years in prison. Defendant appeals, arguing that (1) he is entitled to a new trial because two of the State's witnesses testified falsely and (2) the evidence was insufficient to support his conviction of armed violence. For the reasons that follow, we affirm.
¶ 2 I. BACKGROUND
¶ 3 Defendant and K.O. dated for approximately eight months before breaking up around the beginning of June 2015. Over the next few weeks, they discussed the possibility of getting back together. During that time, defendant heard rumors that K.O. had rekindled her relationship with Christopher Kleveno, who was the father of one of her children. Because of defendant's anger with K.O., on June 28, 2015, defendant allegedly forced K.O. at gunpoint to perform sexual acts on him before making her drive him around in her car for approximately two hours. The State charged defendant with aggravated kidnapping with a firearm, two counts of aggravated criminal sexual assault with a firearm, attempted aggravated criminal sexual assault with a firearm, and three counts of armed violence. Prior to trial, the court severed two of the armed violence charges that involved allegations that defendant possessed drugs. The matter proceeded to a bench trial on the remaining five charges.
¶ 4 A. Overview of the Trial Evidence
¶ 5 We will begin with an overview of the trial evidence. After doing so, we will focus more specifically on the testimony that defendant claims was perjured.
¶ 6 K.O. testified as follows. On June 28, 2015, she went to defendant's house to pick up some personal belongings. Once she entered the house, defendant pointed a gun at her head and told her to call Kleveno from her cell phone. Defendant and Kleveno exchanged heated words over the phone, and K.O. told Kleveno that defendant
had a gun. After the phone call, defendant threw K.O. into a stove when she attempted to grab her phone from him. Defendant also cocked his gun so that it ejected three bullets onto the kitchen floor. Defendant then told K.O. to "take care of him" sexually. She complied, and defendant held the gun in his hand during that activity. Immediately thereafter, K.O. received a call from her aunt, who, in the meantime, had received a call from Kleveno. K.O. picked up the phone, told her aunt that she was fine, and said that she had to call her aunt back. Defendant then told K.O. that they were going to leave his house and that he had somewhere to take her. As they walked from defendant's house to K.O.'s car, defendant had the gun in his hand and was "kind of * * * waving it around." K.O. got into the driver's seat of her car, and defendant got into the front passenger's seat.
¶ 7 According to K.O., defendant told her where to drive and she followed his instructions. At defendant's direction, she called Kleveno again from her phone while she and defendant drove around. After that conversation, defendant threw K.O.'s phone out of the passenger's side window at an intersection. Defendant continued to threaten K.O. in the car, including by putting the gun to her head. Over the next two hours, defendant told K.O. to stop at a gas station, a forest preserve, and another gas station. At the first gas station, defendant followed K.O. into the women's bathroom. Although defendant threatened K.O. multiple times during this ordeal, she eventually was able to placate him by kissing him, holding his hand, and assuring him that they would get back together. Defendant threw his gun into a lake in the forest preserve. After stopping at the second gas station, K.O. and defendant drove back to defendant's home, where a police officer was waiting (Kleveno had contacted the authorities). Defendant was arrested without incident.
¶ 8 Multiple witnesses—including police officers, Kleveno, and K.O.'s aunt—testified that K.O. appeared traumatized in the immediate aftermath of these events. Police officers testified that K.O. initially was reluctant to tell them everything that had happened, expressing fears that defendant would retaliate against her family. K.O.'s aunt corroborated K.O.'s testimony about their brief phone conversation on June 28, 2015. Kleveno corroborated K.O.'s testimony about his phone conversations with K.O. and defendant on June 28.
¶ 9 Upon searching defendant's home, the police found three unfired bullets on his kitchen floor and an open gun case on his bedroom floor. The police located K.O.'s phone approximately 40 feet off the road where K.O. said that defendant had thrown it out of the car. K.O. accompanied police officers to the location in the forest preserve where defendant threw his gun into the water. Divers recovered defendant's gun at that location.
¶ 10 When the police questioned defendant on the night of the incident, he denied having sexual contact with K.O. for several weeks. However, a swab of defendant's penis revealed the presence of deoxyribonucleic acid (DNA) other than his own. K.O. could not be excluded as the contributor of that DNA. The State introduced evidence that defendant may have attempted to tamper with this test after a police officer requested a DNA swab of defendant's penis. In this respect, the State's evidence came from a police officer's interpretation of what he saw on the surveillance video from the booking room. We have reviewed the relevant portion of the surveillance video. Because of the angle of the camera, it is difficult to tell what happened. Nonetheless, it does appear that defendant, while seated at a table, put his
right hand down his pants after that hand had been near his mouth. At trial, defendant acknowledged that he put his hand down his pants at the police station. He said that he did so not to tamper with the DNA test but because it was cold in the police station.
¶ 11 The State also introduced evidence that, while defendant was awaiting trial at the Kendall County jail, he solicited a fellow inmate to kill K.O. Defendant arranged for one of his friends to post bond for that inmate.
¶ 12 Defendant testified in his defense as follows. While K.O. was at his house on June 28, 2015, he wanted to speak with Kleveno on the phone to clear up rumors that K.O. was engaged to Kleveno. Defendant and Kleveno got into an argument over the phone, and Kleveno threatened to come over to defendant's house and "beat the s***" out of him. After that phone conversation, defendant went into his bedroom to change his shirt. K.O. followed him, apologized, and embraced him. They had "passionate makeup sex" but he was unable to get an erection. Defendant acknowledged lying to police officers when he told them that he did not have sexual contact with K.O. on June 28.
¶ 13 Defendant insisted that he did not retrieve his gun until after he and K.O. had sexual contact. Defendant testified that, because Kleveno had threatened him and he "didn't want any trouble," he grabbed his gun before he and K.O. left the house. Asked to explain the three bullets that were found on his kitchen floor, defendant said that "the gun was really not functioning properly," so he "slid the gun a couple times and it ejected the bullets out of the gun."
¶ 14 Defendant testified that he and K.O. decided to take her car for a drive because his car was blocked. In defendant's words:
"She wanted to get in the car. She said that she was starving. She hadn't aten [sic ] anything all day. She couldn't get out of the house fast enough with me."
Once they got in K.O.'s car, she asked him where to go, and he told her to head out of town. Defendant told K.O. to call Kleveno again from the car. Defendant thought that, during the earlier phone conversation, K.O. did not make a good attempt to clarify whether she and Kleveno were engaged. Defendant then got into another argument with Kleveno, during which Kleveno said that he had called the police. Defendant threw K.O.'s phone out of the car window. Defendant admitted lying to police officers when he told them that K.O. threw her phone out of the window.
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