People v. Spencer, 1–13–0020.

Decision Date29 October 2014
Docket NumberNo. 1–13–0020.,1–13–0020.
PartiesThe PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Krystal SPENCER, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

20 N.E.3d 785

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Krystal SPENCER, Defendant–Appellant.

No. 1–13–0020.

Appellate Court of Illinois, First District, Third Division.

Oct. 29, 2014.


20 N.E.3d 787

Michael J. Pelletier and Deborah K. Pugh, both of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Sari London, and Carol L. Gaines, Assistant State's Attorneys, of counsel), for the People.

20 N.E.3d 788

OPINION

Justice HYMAN delivered the judgment of the court, with opinion.

¶ 1 Defendant, Krystal Spencer, fraudulently acquired cellular telephones from T–Mobile and then sold them. During a sale of phones to Jesus Ruiz, he was robbed. The State accused Spencer of setting up the sale with Ruiz and then working with three individuals to stage Ruiz's robbery. The defense claimed Spencer's roommate, who was with her at the time of the robbery, set up the robbery without her knowledge. After a bench trial, Spencer was convicted of armed robbery with a dangerous weapon other than a firearm and aggravated unlawful restraint based on accountability.

¶ 2 Spencer contends the trial court violated her right to due process by convicting her of the uncharged offense of armed robbery with “a dangerous weapon other than a firearm” (720 ILCS 5/18–2(a)(1) (West 2010)), because the offense was not a lesser-included offense of the charged offense of armed robbery with a firearm (720 ILCS 5/18–2(a)(2) (West 2010)). We agree. The elements of the two offenses markedly differ. We vacate her conviction, enter judgment on the appropriate lesser-included offense of robbery, and remand for sentencing on that conviction.

¶ 3 Additionally, Spencer claims, and the State concedes, that her conviction for aggravated unlawful restraint must be vacated because it was based on the same physical act used to obtain her armed robbery conviction. We vacate Spencer's conviction and sentence for aggravated unlawful restraint, the lesser offense, as a violation of the one-act, one-crime rule.

¶ 4 BACKGROUND

¶ 5 The State charged Spencer by information with armed robbery while armed with a firearm and aggravated unlawful restraint. Under section 18–2(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/18–2(a)(2) (West 2010)), the information alleged Spencer, based on an accountability theory, knowingly took property—cash, wallet, credit cards and cell phone—from Ruiz “by the use of force or by threatening the imminent use of force and she carried on or about her person or was otherwise armed with a firearm.”

¶ 6 At trial, Jesus Ruiz testified he bought and sold electronics, including cellular telephones, as a side business. He often answered advertisements on Craig's List. Ruiz contacted the sellers by phone or text message, agreed on a price, and then would meet to complete the transaction. On April 4, 2011, Ruiz went to a parking lot on West Roosevelt to meet Spencer and purchase cell phones from her. Ruiz testified that earlier that day, Spencer text messaged him that she had phones she was willing to sell. The two agreed on a price and decided to meet. Ruiz arrived at the agreed location with his girlfriend, Veronica Delgado, at 12:30 p.m. He text messaged Spencer he was there. When Spencer arrived around 1:15 p.m., she approached Ruiz's car. He did not recall meeting Spencer before that day but testified he meets a lot of people in his business.

¶ 7 Ruiz testified Spencer held a bag with some boxes in it and that when he moved toward her to look at the phones, she said she had more in her car. She pointed to a blue Oldsmobile, which was parked about two lanes away. Spencer told Ruiz, “let's go to my car.” He walked over with her. A female was in the driver's seat of the Oldsmobile. Ruiz entered the front passenger seat of the car and asked where the other phones were. When he sat down, he noticed the driver had a bat and a wooden stick with her.

20 N.E.3d 789

Ruiz left the car door open “just in case.” Spencer came back from the trunk area and got in the backseat, behind the driver. Ruiz looked at Spencer to see what phones she had.

¶ 8 While looking at Spencer, Ruiz felt someone grab him from outside the passenger side of the car. The person grabbed Ruiz with one hand and pointed a gun at his chest. Ruiz testified he saw two black males. Ruiz testified the gun was pointed at his chest and he could feel it because it was heavy. Ruiz described the gun as “hard like metal.” He testified he could see the chamber and the wooden handle. Ruiz described the gun as a seven-inch-long revolver. With the gun at Ruiz's chest, the men told him to give them “everything he had.” They took his cash and his wallet with his credit cards. The woman in the driver's seat took his cell phone. The men yelled at him to get out of the car, which he did. Spencer remained in the backseat and said nothing as the men got into the car and drove away with Ruiz's belongings.

¶ 9 Ruiz returned to his car and called 911. Ruiz testified the entire incident lasted five minutes. He identified Spencer from a photographic array and in a lineup.

¶ 10 During cross-examination, Ruiz said he exchanged text messages with Spencer 15 to 20 times while they were setting up the April 4 sale. Ruiz then reviewed telephone records, which showed he received calls from Spencer's phone on Christmas Day in 2010. Ruiz could not recall the purpose of those calls. The phone records showed Ruiz and Spencer exchanged a total of 86 text messages between December 24, 2010, and April 4, 2011. Ruiz denied that he met Spencer 30 or 35 times to buy phones from her. He testified that he bought phones from 200 different people during the two-year period. He did not know if the cell phones Spencer sold him were stolen. She told him she obtained them from her account.

¶ 11 Veronica Delgado testified consistently with Ruiz's version of what happened. Delgado watched as Ruiz went with Spencer to the Oldsmobile. Delgado saw two black men walking quickly toward Spencer's car at the same time. Delgado testified she looked at Spencer, who was “kind of like shaking her head,” like she was saying “no” and that is when the two men stopped approaching. Delgado then lost sight of Spencer and Ruiz. When Ruiz returned five minutes later, he was pale and nervous. When she asked him what was wrong, he said he had been robbed. Ruiz called 911. Delgado identified Spencer from a lineup.

¶ 12 The State rested and defense counsel moved for a directed finding, which the court granted, in part:

“I'm going to grant it as it relates to the firearm. I don't believe at this time that I can find—no weapon was recovered—beyond a reasonable doubt that a firearm was in use during the course of this offense. So that aggravated factor which would enhance her sentence to a minimum of 21 years is now not present.”

¶ 13 Spencer testified that before her arrest in this case, she was living with a friend, Summer Smith. She denied taking part in the robbery and explained that she had met Ruiz 30 to 40 times to sell him cell phones, normally meeting him at the BP gas station at State and Roosevelt.

¶ 14 According to Spencer, the cell phones she resold were obtained by misrepresenting herself to T–Mobile as a representative to get existing customers' account numbers. She would then order the phones from T–Mobile and charge them to the accounts she misrepresented she was calling on behalf of. She had the phones

20 N.E.3d 790

delivered to her address. Spencer testified she kept all of the information and account numbers in a notebook at her apartment to which Smith had access. Sometimes Smith would order phones so that the voice would be different in case the same T–Mobile employee answered. Spencer did not advertise she sold phones, but Ruiz found her. She testified he advertised that he was a buyer of 3G HTC phones and he set the prices he would pay for certain phones. Spencer first sold phones to Ruiz in June 2010 and made between $6,000 and $7,000 from him. She claimed she usually contacted him by text message. Spencer reviewed the phone records and testified that she called Ruiz on Christmas to sell him two phones, so she could have holiday money. She recalled that they met on Christmas for the transaction.

¶ 15 Spencer's text messages to Ruiz on April 4, 2011, between 8 and 11 a.m. were not from Spencer because she had left her cell phone in her roommate's room to charge. Spencer testified her roommate, Smith, knew how to contact Ruiz because Smith normally drove her to meet Ruiz. The morning of April 4, Smith asked Spencer if she wanted to go shopping. Spencer told Smith she wanted to go to a PetSmart in Aurora. Smith insisted they go to a certain FedEx store to get directions beforehand. When they arrived at the parking lot for the FedEx store, Spencer got out of the car and walked toward the store. She saw Ruiz, who asked if she had any phones. At trial, Spencer claimed she was surprised to see Ruiz. She testified she told him she would not have anything for him until the end of the week. He responded that he had received text messages from her and she had called to schedule a...

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