People v. Riley

• Decision Date: 11 September 1991
• Docket Number: No. 1-87-0716,1-87-0716
• Citation: 219 Ill.App.3d 482,162 Ill.Dec. 194,579 N.E.2d 1008
• Parties: , 162 Ill.Dec. 194 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis RILEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1008

579 N.E.2d 1008

219 Ill.App.3d 482, 162 Ill.Dec. 194

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis RILEY, Defendant-Appellant.

No. 1-87-0716.

Appellate Court of Illinois,

First District, Third Division.

Sept. 11, 1991.

Jack O'Malley, State's Attorney of Cook County, Chicago (Renee Goldfarb, James E. Fitzgerald, James Brown, of counsel), for plaintiff-appellee.

Randolph N. Stone, Public Defender of Cook County, Chicago (Evelyn G. Baniewicz, of counsel), for defendant-appellant.

Justice GREIMAN delivered the opinion of the court:

Following a bench trial, defendant, Dennis Riley, was convicted of aggravated criminal sexual assault, criminal sexual assault, and kidnapping. Defendant was sentenced to a single term of nine years' imprisonment.

On appeal, defendant contends that (1) the convictions for kidnapping were erroneous because the asportation of the victim in connection with intended sexual assault did not constitute kidnapping and the finding of guilty of kidnapping is legally inconsistent with the finding of not guilty of aggravated kidnapping; (2) the evidence was insufficient to establish proof beyond a reasonable doubt for conviction of the offenses of aggravated criminal sexual assault and kidnapping; (3) the aggravated criminal sexual assault convictions should be reduced to criminal sexual assault because the aggravating factors, i.e., kidnapping and being armed with a gun, were implicitly eliminated by other findings of the trial court; (4) the convictions on multiple counts of sexual assault are improper under the one-act-one-crime rule; (5) the absence of closing arguments was reversible error; and (6) the nine-year sentence is excessive.

We vacate the conviction for criminal sexual assault and the convictions for aggravated criminal sexual assault which were predicated on armed robbery and robbery. We affirm the convictions for kidnapping, two convictions for aggravated criminal sexual assault, and the nine-year sentence.

At trial the 15-year-old victim testified that at approximately 11 p.m. (the victim was not wearing a watch) on December 22, 1985, she decided to walk from a bus stop at 63rd Street and Halsted to her home which was about 3 or 4 blocks away. As she was walking, the victim observed defendant approach her from the rear of a restaurant. As she moved into the street and started to run, defendant grabbed her around the neck and threatened her with a gun. Defendant then forced the victim to accompany him from the street through a gangway, down an alley, and to a back porch area about a block away. The victim further testified that defendant took her earmuffs from her coat pocket and asked her for money but she had none.

When they reached the back porch, defendant ordered the victim at gunpoint to remove her coat, boots and pants. After the victim undressed, she told defendant that she was cold. Defendant, while still holding a gun, then ordered the victim to walk across the street in the snow and forced her into a van.

After they were inside the van, defendant made the victim lie down on a small folding bed, removed the rest of her clothes, set down the gun beside him, and placed his penis inside her mouth. After engaging in oral sex, defendant engaged in vaginal intercourse with the victim. The victim testified that she was frightened and asked defendant whether he intended to kill her. Defendant told the victim that he would not kill her as long as she did what he told her to do.

Defendant steadily spoke to her for about two hours. Thereafter she told defendant that she had to go home and she was cold in the unheated van. Defendant replied that she should stay the rest of the night because it was almost daylight and they would move from the van into his house. Defendant retrieved the victim's clothes which he had left outside the van and the victim dressed.

Defendant, with gun in hand, required that she exit the van and walk to the back of the house next to the van. Defendant then ordered her to stand with her face against a wall while he opened a basement door to the house. The victim did not move because she thought he was watching her to see if she would attempt to leave. Next she heard the back door of the house being opened. Defendant grabbed her and began pulling her inside the house when she heard a noise which sounded as if someone else was descending the stairs. Defendant then pushed her outside the door and told her to wait. She then ran to her home about two blocks away.

When she arrived home, the victim told her mother and older brother that she had been raped. Shortly thereafter the victim and her family reported the incident to the police.

Police Officer Timothy Koren testified that at approximately 5 a.m. on December 23, 1985, he and his partners responded to the call involving the victim. After recounting the events of the evening, the victim directed the police to the van and defendant's house where defendant was found and identified. In a search of the house, the police found defendant's clothing which matched the description given by the victim. The police also searched all areas where the events took place but found neither a gun nor the victim's earmuffs.

Detective Richard Bedran testified that after arrest, defendant initially denied ever seeing the victim. In a second interview, defendant stated that he had met the victim on 63rd Street at approximately 3 a.m. and she wanted to turn a "trick" for $50. After agreeing to her proposition, defendant and the victim went to the van, she undressed, but due to the cold, they went to his house and he left the victim standing at the back door while he entered through the front door in order to unlock the back door. Defendant stated that once he was inside the house, he decided to leave the victim outside because he did not have $50.

The State also presented, by stipulation between the parties, the results of the victim's medical examination. The victim had an abrasion on her right cheek. A vaginal smear taken from the victim tested positive for sperm and the underpants worn by the victim also revealed the presence of semen.

Defendant's case consisted of one stipulation between the parties. The parties agreed that the pelvic examination of the victim revealed no evidence of trauma and that the cervix was closed with no apparent semen in the vaginal vault.

From a 22-count indictment, defendant was convicted of the following 13 offenses: aggravated criminal sexual assault, for oral sodomy and vaginal penetration, predicated on the display of a dangerous weapon (Counts I and II), threatening a life by the display of a gun (Counts III and IV), robbery (Counts V and VI), armed robbery (Counts VII and VIII), and kidnapping (Counts IX and X); criminal sexual assault (Count XI); kidnapping based on asportation (Count XVI); and kidnapping based on knowing and secret confinement (Count XVII).

Defendant was not convicted of the following nine charges: armed robbery (Count XII); robbery (Count XIII); aggravated kidnapping based on criminal sexual assault (Count XIV) and on robbery (Count XV); aggravated criminal sexual abuse, for oral sodomy and vaginal penetration, predicated on the ages of the victim who was under 16 years old and defendant who was 5 years older than the victim (Counts XVIII and XIX); armed violence, for oral sodomy and vaginal intercourse (Counts XX and XXI); and unlawful restraint (Count XXII).

For the reasons which follow, we affirm the convictions for kidnapping (Counts XVI and XVII) and two convictions for aggravated criminal sexual assault. We vacate the conviction for criminal sexual assault (Count XI) and the convictions for aggravated criminal sexual assault which were predicated on armed robbery and robbery (Counts V through VIII). In addition, we find that the nine-year sentence imposed by the trial court was not an abuse of discretion and there is no need for a new sentencing hearing.

We first address defendant's challenge to his two kidnapping convictions (Counts XVI and XVII). Defendant was indicted and convicted under section 10-1(a)(1) of kidnapping based on secret confinement and under section 10-1(a)(2) of kidnapping based on asportation.

The Criminal Code of Illinois defines kidnapping as follows:

"(a) Kidnapping occurs when a person knowingly:

(1) And secretly confines another against his will, or

(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, * * * "

Ill.Rev.Stat.1985, ch. 38, par. 10-1(a)(1) and (2).

Defendant argues that his kidnapping conviction based on secret confinement, section 10-1(a)(1), is legally inconsistent with the trial court's finding of not guilty of aggravated kidnapping. Defendant submits that the not guilty finding of aggravated kidnapping implies that the trial court did not believe there was a secret confinement. We find defendant's argument unpersuasive.

"Secret confinement" is a necessary element of kidnapping under section 10-1(a)(1). (People v. Siefke (1990), 195 Ill.App.3d 135, 147, 141 Ill.Dec. 833, 551 N.E.2d 1361.) Secret confinement may be shown by proof of either the secrecy of confinement or the place of confinement. (People v. Mulcahey (1978), 72 Ill.2d 282, 285, 21 Ill.Dec. 176, 381 N.E.2d 254.) In Mulcahey the supreme court established that "secret" denotes concealed, hidden, or not made public. (Mulcahey, 72 Ill.2d at 285, 21 Ill.Dec. 176, 381 N.E.2d 254.) Confinement is established where the victim has been clearly enclosed within something, most commonly, a house or a car. (People v. Sykes (1987), 161 Ill.App.3d 623, 628, 113 Ill.Dec. 444, 515 N.E.2d 253 and cases cited therein.) In light of the concealment and enclosure of the victim in defendant's van, we find that there was sufficient evidence in the present case to establish the element of secret confinement.

Since the trial court expressly...