People v. Ross

• Citation: 917 N.E.2d 1111,335 Ill.Dec. 47
• Decision Date: 28 October 2009
• Docket Number: No. 1-06-0792.,1-06-0792.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kelly ROSS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

917 N.E.2d 1111 335 Ill.Dec. 47 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Kelly ROSS, Defendant-Appellant. No. 1-06-0792. Appellate Court of Illinois, First District, Third Division. October 28, 2009. Rehearing Denied November 24, 2009.

[917 N.E.2d 1115]

Edwin A. Burnette, Public Defender of Cook County, Emily Eisner, Assistant Public Defender, Chicago, IL, for Defendant-Appellant.

Anita Alvarez, State's Attorney, Cook County, James E. Fitzgerald, Alan J. Spellberg, Noah Montague, Asst. State's, Attys., Of Counsel, Chicago, IL, for Plaintiff-Appellee.

Presiding Justice MURPHY delivered the opinion of the court:

After a bench trial, defendant, Kelly Ross, was convicted of criminal sexual assault and sentenced to life imprisonment. On appeal, he contends that (1) an amendment to the indictment was untimely and improper, (2) evidence of a 17-year-old sexual assault was inadmissible, (3) his mother-in-law's testimony that he was "in over his head" and needed "car fare" was irrelevant and prejudicial, (4) foundation was lacking for a cell phone message that defendant was "in trouble," and (5) his sentence was improper for a number of reasons.

I. BACKGROUND A. Amendment to the Indictment

The record reveals that the grand jury returned a two-count indictment against defendant. Count I alleged that on January 8, 2004, defendant "knowingly committed an act of sexual penetration on [G.W.], to wit: contact between Kelly Ross' penis and [G.W.'s] anus, by the use of force or threat of force." Count II alleged that defendant "knowingly committed an act of sexual penetration on [G.W.], to wit: contact between Kelly Ross' penis and [G.W.'s] mouth, by the use of force or threat of force."

On December 20, 2005, after the victim, C.C., testified at trial, the State made an oral motion to amend the indictment to substitute the name C.C. for G.W.¹ as the

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victim. The State further sought to amend count I to allege penis-to-vagina contact instead of penis-to-anus contact in order to conform "with intentions of the grand jury transcript which stated, did you learn that the defendant committed an act of sexual penetration or conduct with the victim when he placed his penis in [C.C.'s] vagina by force." Third, the State sought to amend count II from penis-to-mouth contact to mouth-to-vagina contact, which would also conform with the intention of the grand jury.

The trial court noted that "maybe they should have done it before. * * * Well, they got the names of the people mixed up when they returned the indictment. I don't know why somebody didn't look at this stuff before. It's rather embarrassing to say the least." The trial court noted to defense counsel that the State "said [the] grand jury transcript actually supports what they're trying to do. You must have read the grand jury transcript." Defense counsel did not dispute that the amendment conformed with the intentions of the grand jury. The court found the State's actions "sloppy" but allowed the amendment over defendant's objections "because I believe I am required to by the law."

B. The State's Case

C.C. testified that on January 7, 2004, she spent the night at her boyfriend's, William Ross's, house. William's two brothers, Thomas and defendant, were staying there, as were three of William's children. C.C. slept with William in his upstairs bedroom.

C.C. testified that when she went to bed on January 7, she was wearing a shirt, pajama pants, and underwear. When she woke up on January 8, she was lying on her stomach wearing only a shirt. She felt someone's elbow "and a whole bunch of weight" on the top of her back, but she could not tell at that point if it was a man or a woman. She tried to get up, but the person held her down. The person opened her legs and penetrated her vagina with his penis. While his penis was inside her vagina, she was unsuccessfully "wrestling, moving, trying to get up off the bed."

The man took his penis out of her vagina but still held her down. C.C. was able to turn her head toward the doorway and became more frightened to discover that the door was open; when she was with William, the door was always closed.

The man then flipped her over onto her back and kissed her face, neck, and breast and worked his way down to her vagina. She was still trying to get up and saying, "Stop, no." He kissed, licked, and played with her vagina, then he put his penis back into her vagina for 10 to 20 minutes. He "got done," got off the bed, and turned on the light. When C.C. put on her glasses, she discovered that the person was defendant. Defendant told C.C. not to tell William and asked if it would be better if he found another place to live. He then left the room.

C.C. remained in the room, where she cried and yelled for someone to help her. Ten or fifteen minutes later, William arrived home and found her on the floor. He picked her up off the floor and asked her what happened. She responded, "Kelly raped me." William took her downstairs and called an ambulance.

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While the hospital records indicated that C.C. reported that her boyfriend's brother tried to rape her, she testified that she told that staff that her boyfriend's brother actually raped her. Defendant's DNA was found in C.C.'s vagina.

On cross-examination, C.C. testified that she was not sure whether defendant penetrated her vagina. She also told the hospital staff that she was unsure whether there had been penetration of her vagina or anus. On redirect, C.C. clarified that penetration means "when a man come" and when a penis is placed inside a vagina. Therefore, when the hospital asked if defendant penetrated C.C.'s vagina with his penis, she thought the question referred to whether he ejaculated and "did he force it in." On re-cross, she testified that she told the hospital that he entered her vagina with his penis but she was not sure whether he ejaculated inside.

William Ross testified that defendant slept on his couch in January 2004. C.C. slept at his house occasionally; during those times, they kept his bedroom door closed. On January 9, 2004, just before 8 a.m., he was preparing to take his son to school when he saw defendant sitting on the floor of the living room, drinking a beer and looking at a picture of himself and his wife. Defendant, who appeared sad, said that he lost a good woman. When William left to take his son to school, C.C. was sleeping in the upstairs bedroom and William's oldest brother, Thomas, was sleeping in the basement. William dropped his son off and stopped at the grocery store, but it was closed, so he returned home. He was gone 30 to 35 minutes.

When William returned home, defendant was no longer in the living room. When he went to the computer room, he heard whimpering sounds coming from upstairs, so he went upstairs and found C.C. balled up on the floor, crying. She was only wearing a shirt, with no bottoms. William asked her five or six times what was wrong, and she eventually said defendant's name. William helped her put on a pair of his pajama pants, carried her downstairs, and called 911. He was unable to converse with her because she was "crying, kind of fidgety, just not all there."

Renee Latham, defendant's cousin, testified that on January 10, 2004, the police came to her house and asked to listen to a message that defendant had left on her cell phone. She called her voice mail and played the message for the police. She had last spoken to defendant on a house phone on New Year's Eve.

Iola Buggs, defendant's mother-in-law, testified that defendant came to her house on January 8, 2004, shortly after 8:30 a.m. Defendant told her he was over his head, but she did not respond because she did not want to get involved. Later he asked whether she had car fare. When she said no, he left. She did not see him again after that.

On January 8, 2004, Chicago police detective Glenn Turner, who was assigned C.C.'s case, went to the house where defendant's wife and mother-in-law lived. There, Turner found the picture that defendant was holding earlier. He also went to Latham's house on January 8 and 10. The second time he was there, Latham told him that defendant had left a message on her cell phone. In the message, defendant stated that he heard he was in trouble and he needed help.

Defendant was arrested on November 9, 2004, after he was found hiding in the closet of an apartment.

Defendant was also charged with and convicted of criminal sexual assault in case number 87 CR 14082. Over defendant's objection, the State admitted a transcript

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of testimony given on July 1, 1988, for that case. S.H. testified that on September 22, 1987, she was living at 6154 South King Drive with her boyfriend and children. Around 5 p.m., defendant, who was S.H.'s boyfriend's sister's boyfriend, knocked on her apartment door and told her he had something for her boyfriend. She responded that her boyfriend was not home and then permitted him to use her bathroom.

Defendant called S.H. to the bathroom, saying that the toilet would not flush, so she went to the bathroom to fix the toilet. She got the toilet to flush, and when she turned around, defendant grabbed her by the neck and threw her down onto the floor, causing her to hit her head on the bathtub. Defendant took a carpet cutter out of his pocket and forced her to disrobe. He demonstrated how sharp the carpet cutter was by putting an X on her forehead and scratching her neck and shoulder. He then put his penis into her mouth, licked her vagina, and put his penis in her vagina. S.H. persuaded defendant to stop by telling him that she needed to take care of one of her children, who was crying and banging on the door.

Defendant forced S.H. and her children to his car by putting the carpet cutter to the two-year-old's throat and threatening to kill him. With two other men in the car, defendant drove S.H. and her children to his house. En route,...