People v. Reynolds, 1-95-3383

• Decision Date: 31 December 1997
• Docket Number: No. 1-95-3383,1-95-3383
• Citation: 294 Ill.App.3d 58,689 N.E.2d 335,228 Ill.Dec. 463
• Parties: , 228 Ill.Dec. 463 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin REYNOLDS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 335

689 N.E.2d 335

294 Ill.App.3d 58, 228 Ill.Dec. 463

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Melvin REYNOLDS, Defendant-Appellant.

No. 1-95-3383.

Appellate Court of Illinois,

First District, Third Division.

Dec. 31, 1997.

Steven L. Emanuel and Victor A. Worms, Larchmont, NY, and Sam Adam and Marc W. Martin, Chicago, for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Susan R. Schierl and Veronica X. Calderon, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Justice CAHILL delivered the opinion of the court:

Melvin Reynolds was indicted on 24 counts involving several charges. When the case went to the jury, 12 counts embracing 4 offenses remained: 3 for aggravated sexual abuse, 3 for sexual assault, 2 for child pornography, and 4 for obstruction of justice. The jury was given general verdict forms--"guilty" and "not guilty"--for each of the four offenses. The jury returned a general "guilty" verdict on each of the offenses.

Reynolds was sentenced to four years' imprisonment for sexual assault, a concurrent four years for child pornography, and a consecutive one year for obstruction of justice. The trial court found that the sexual abuse conviction merged with that for sexual assault and did not impose a sentence. We affirm.

A criminal investigation of defendant began when Beverly Heard told Chicago police, on June 3, 1994, that in 1992 and 1993 she had consensual sexual intercourse with defendant while she was 16 and 17 years of age.

In late June and early July, 1994 Heard appeared before a grand jury and repeated her allegations. On August 19, 1994, defendant was indicted.

The indictment alleged, on the three aggravated criminal sexual abuse charges, that defendant had sexual intercourse with Beverly Heard, beginning in June 1992, when Heard was 16 years old, and continuing until she turned 17 in November 1992. At trial, the State offered a tape recording of a conversation between Heard and defendant made in 1994. Defendant and Heard in this conversation allegedly discussed their sexual relationship. The case was under investigation with the cooperation of Heard at the time the recording was made.

Heard testified at trial that a relationship began with defendant when he introduced himself to her on the street in June 1992. She said that he asked her to dinner about a week later. About a week after that dinner she said they had sex at an apartment in Riverdale. This began a pattern in which they had sex two or three times each week from June 1992 until November 1992, and then less frequently from November 1992 until September 1993. Defendant gave her $100 or $150 almost every time they were together.

Heard testified that she met Sophia Green, a friend of defendant, in late November 1992. She testified that the three of them had sex together three times, twice in defendant's office and once at a hotel.

Heard testified that she worked as a political campaign volunteer for defendant in the summer of 1993 for about three weeks. Heard also testified that, in the fall of 1992, defendant suggested that Heard transfer to a private high school and that he would pay the tuition. She enrolled and graduated from the school, but never paid tuition.

Defendant testified. He denied having sexual intercourse with Heard. He admitted that the recorded conversation played to the jury happened, but said it was only "phone sex" or "fantasy sex."

The child pornography charge was also based on a taped conversation between Heard and defendant. On the tape, Heard said that she had a 15-year-old friend named Theresa she would like to introduce to defendant because Theresa might want to have sex with defendant. Theresa did not exist. She was fabricated at the suggestion of the police conducting the investigation. Defendant responded that he did not think he wanted to have sex with Theresa because she was too young. He then asked to see a picture of Theresa before meeting her. He suggested that Heard buy a Polaroid camera and take some pictures of Theresa. He told Heard he would reimburse her for the camera. Defendant then stated: "[T]hey [ (the pictures) ] [don't] have to be face shots * * * but mainly just * * * crotch and titties."

The State offered evidence that snapshots of women, never asserted to be underage, in various stages of undress, were found on defendant's office desk. The State argued that these photographs were relevant because they demonstrated the kind of photographs defendant asked Heard to take. The defense objected to this evidence as unduly prejudicial "other crimes or bad acts" evidence. The trial court allowed the photos to be described, but did not allow them to be published to the jury during the trial.

Defendant admitted in his testimony that he asked for the photographs of "Theresa," but he asserted that the conversation was fantasy sex talk and that he never intended or expected Heard to take photographs or do anything else. The prosecution argued that the offense of child pornography is defined in such a way that intent is not required, and that the jury should not be instructed that a mental state is required for the crime. Over defense objection, the judge tendered an instruction to the jury that is set out and discussed in our disposition of defendant's fifth issue on appeal.

The indictment charged defendant with four separate acts of obstruction of justice: (1) that he gave a false statement to the police and prosecutor in that he induced Beverly Heard to file a false statement (retracting her allegations as to sex with defendant) on or about June 22, 1994; (2) that he furnished a false statement to the police and prosecutor in that he induced Heard to file a false statement (retracting her allegations of sex with defendant) on or about June 29, 1994; (3) that he and codefendant Eddie McIntyre induced Heard to leave the state during a criminal investigation; and (4) that he and McIntyre induced Heard to conceal herself from authorities. Each of these charges was represented by a separate count.

Sarah Rodriguez, defendant's secretary, testified that defendant told her to type a statement that Barbara Ennis (Heard's mother) would dictate to her by telephone. Rodriguez did so. Rodriguez testified that she went to Tennessee, where she gave the statement to Ennis for Heard's signature. Rodriguez then faxed a copy of the signed statement dated June 22, 1994, to defendant in Washington, D.C., and gave the signed statement to Tavis Grant, an associate of defendant.

The State offered evidence that the June 29 statement was dictated to Rodriguez by defendant. The evidence showed that Heard signed the June 29 statement and gave it to her attorney. There was no evidence presented that this statement was ever "furnished" to the police or the State's Attorney until the State subpoenaed Heard's attorney to produce it.

To contradict the charge of concealing Heard by inducing her to leave Illinois, Heard testified that in the course of the investigation she went to Tennessee because she no longer wanted to be part of the investigation. She said the trip was her idea.

During deliberation, the jury asked for all photographic exhibits. Over defense objection, the court ruled that the jury could see those photographs that appeared to show underage naked women. Defendant then asked, and the court allowed, the photographs of all the women to go to the jury, including those that appeared to show women who were not minors.

The jury, during deliberations, asked for a "legal definition of a position of trust, authority or supervision in relation to the victim." The judge responded, "use your common sense understanding of those terms."

On August 22, 1995, the jury returned a general verdict of guilty on each of the charges.

Defendant raises eight issues on appeal:

(1) did the trial court improperly admit several items and instances of "other crimes or wrongful conduct" evidence?

(2) whether the evidence that defendant held a "position of trust, authority or supervision" in relation to the victim was sufficient to sustain defendant's conviction of criminal sexual assault; and, is the term "position of trust" unconstitutionally vague, and did the judge err in refusing the jury's request to define this term?

(3) was defendant denied his right under the United States and Illinois Constitutions to a unanimous jury verdict on the charge of obstruction of justice?

(4) was defendant denied his right under the United States and Illinois Constitutions to a unanimous jury verdict on the charges of sexual assault and aggravated sexual abuse?

(5) was defendant's conviction of child pornography invalid in light of both the indictment's failure to allege a mental state and the judge's failure to instruct the jury that a mental state is an element of the offense?

(6) did the prosecution use its peremptory challenges in a racially discriminatory way, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986)?

(7) was the jury improperly allowed to learn that a defense witness had taken and failed a polygraph test?

(8) did the court have jurisdiction and venue over the child pornography charge in light of the fact that defendant was not within Illinois when he spoke the words that were the basis for the charge?

We discuss issues two and three in this opinion. To comply with Supreme Court Rule 23 (166 Ill.2d R. 23), our disposition of the remaining issues is omitted from the published opinion. For a disposition of those issues, see the order filed with the clerk of the court in People v. Reynolds, 294 Ill.App.3d 58, 228 Ill.Dec. 463, 689 N.E.2d 335 (1997)

Nonpublishable material under Supreme Court Rule 23 omitted.

Defendant argues that his conviction for criminal sexual assault must be reversed because there was no evidence that he held a "position of trust, authority or supervision" in...