The People Of The State Of Ill. v. Gray

• Decision Date: 25 November 2009
• Docket Number: No. 4-07-0696.,4-07-0696.
• Citation: 924 N.E.2d 1109,396 Ill.App.3d 216,338 Ill.Dec. 583
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Ted GRAY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

396 Ill.App.3d 216

924 N.E.2d 1109

338 Ill.Dec. 583

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Ted GRAY, Defendant-Appellant.

No. 4-07-0696.

Appellate Court of Illinois Fourth District.

Nov. 25, 2009.

COPYRIGHT MATERIAL OMITTED

Michael J. Pelletier, Gary R. Peterson, and Michael Delcomyn (argued), all of State Appellate Defender's Office, of Springfield, for appellant.

Julia Rietz, State's Attorney, of Urbana (Patrick Delfino, Robert J. Biderman, and Thomas R. Dodegge (argued), all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

Justice APPLETON delivered the opinion of the court:

In April 2007, a jury convicted defendant, Ted Gray, of four counts of predatory criminal sexual assault of a child for performing sexual acts with his minor daughters, A.G. and J.G. The trial court sentenced defendant to four consecutive 10-year prison terms. Defendant appeals his convictions, claiming (1) they are barred by the applicable statute of limitations, (2) his trial counsel was ineffective, and (3) his conviction on one of the counts violated the principles of the one-act, one-crime doctrine. For the reasons that follow, we affirm.

I. BACKGROUND

The State alleged that in 1998 and 1999, defendant sexually assaulted his 11-and 12-year-old daughters in Coles County and Champaign County. Ultimately, charges were filed in both counties. First, in Coles County, the State charged defendant with four counts of criminal sexual assault (720 ILCS 5/12-13(a)(1), (a)(3) (West 1998)) and one unrelated count of unlawful possession of a weapon without a valid firearm owner's identification card (430 ILCS 65/2(a)(1) (West 1998)). Defendant pleaded guilty to two counts of criminal sexual assault and to the weapons charge in exchange for the State's dismissal of the other two criminal-sexual-assault charges. The trial court sentenced defendant to five years in prison.

On July 25, 2001, while defendant was in prison serving his Coles County sentence, the Champaign County State's Attorney charged defendant, by information, with five counts of predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2000)). On September 6, 2001, the grand jury returned superseding indictments on all five counts. The State conceded that four of the five Champaign County offenses were based on the same conduct for which defendant was prosecuted in Coles County. (Count III in the Champaign County indictment alleged an act that was not previously charged in Coles County.) Defendant filed a motion to dismiss the other four charges, claiming they were barred by double jeopardy. The Champaign County circuit court denied the motion, and defendant filed an interlocutory appeal.

This court affirmed the trial court's order denying defendant's motion to dismiss, finding that the statutory elements for predatory criminal sexual assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2000)) differ from those of criminal sexual assault (720 ILCS 5/12-13(a) (West 2000)), and one offense was not a lesser-included of the other. Therefore double jeopardy concerns were not implicated. See People v. Gray, 336 Ill.App.3d 356, 364-65, 270 Ill.Dec. 595, 783 N.E.2d 170, 177-78 (2003). We found that even though the Coles County prosecutor was not the “proper prosecuting officer” for the charges filed in his county because the conduct allegedly occurred in Champaign County, by pleading guilty to the charges in Coles County, defendant had waived any objection to the improper venue. Gray, 336 Ill.App.3d at 366-67, 270 Ill.Dec. 595, 783 N.E.2d at 179. The supreme court affirmed this court's decision and remanded the cause to Champaign County for further proceedings. People v. Gray, 214 Ill.2d 1, 3, 291 Ill.Dec. 263, 823 N.E.2d 555, 556 (2005).

On remand, defendant filed a motion to dismiss the Champaign County charges on the grounds that (1) the statute of limitations had expired (see 725 ILCS 5/114-1(a)(2) (West 2000)), (2) the grand jury was not informed that defendant had been convicted and punished in Coles County for the same conduct, (3) the State had failed to set forth in the indictments the nature and elements of each offense, and (4) the allegations were too vague in terms of the dates of the occurrences.

On June 23, 2006, at the hearing on defendant's motion, defendant's counsel informed the trial court that by “way of an oral motion to dismiss,” he was withdrawing the motion as to count V because the conduct for which defendant was charged in that count had allegedly occurred in 1999, not 1998, meaning it was not barred by the applicable statute of limitations. The court took the matter under advisement.

On June 29, 2006, the State filed an additional four-count indictment against defendant (counts VI through IX-those subject to this appeal). While the charges were identical to counts I through IV, the State corrected the pleading by adding an allegation that the applicable statute of limitations should be extended due to the familial relationship between defendant and the victims. The State also alleged the statute of limitations had been tolled as of July 25, 2001, the filing date of the original charging instruments.

On June 30, 2006, the trial court found “the statute of limitations exception [was] fatal” and granted defendant's motion as to counts I through IV because the State had failed to specifically plead the extension of the statute of limitations due to the victims being defendant's family members. See 720 ILCS 5/3-6(c) (West 2000).

The State proceeded to a bench trial on count V only. The State alleged defendant had committed predatory criminal sexual assault in July 1999 by placing his finger in A.G.'s vagina. The trial court convicted defendant of that offense and sentenced him to 30 years in prison to be served consecutively to his Coles County sentence. Defendant appealed, claiming that this count involved the same conduct as alleged, and to which he pleaded guilty, in count I of the Coles County information. He claimed (1) his conviction constituted a violation of double jeopardy, (2) his trial counsel was ineffective for failing to contest venue, and (3) his conviction constituted a violation of the one-act, one-crime doctrine. Rejecting all three of defendant's claims, this court affirmed defendant's conviction. See People v. Gray, No. 4-07-0117 (July 28, 2008) (unpublished order under Supreme Court Rule 23).

In April 2007, while his appeal in case No. 4-07-0117 was pending, the State proceeded to a jury trial on counts VI through IX. Prior to the start of the trial, the public defender, Randall Rosenbaum, moved to dismiss the indictments for violating the applicable statute of limitations. Rosenbaum argued that section 3-6(c) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/3-6(c) (West 2006)) required that the indictments be filed no later than March 25, 2005, for the allegations concerning J.G., as that was the date she turned 19 years old, and May 27, 2006, for the allegation concerning A.G., as the date she turned 19. (He argued the State had one year from each child's eighteenth birthday to file charges against defendant.) Counts VI through IX were not filed until June 2006. In response, the State argued that section 3-7(c) of the Criminal Code (720 ILCS 5/3-7(c) (West 2006)) tolled the limitations period because defendant had been initially charged with the same conduct in counts I through IV in September 2001. The trial court denied Rosenbaum's motion, stating: “Well, I'm gonna deny the motion to dismiss, and that will allow the [a]ppellate [c]ourt to make a determination as to whether or not these offenses are barred.” The court proceeded to trial.

A.G. testified first for the State, stating that she was born on May 27, 1987. In the summer of 1998 (she was 11 years old at the time), she went fishing with defendant and J.G. During the trip, defendant took the girls underneath a bridge where they took turns putting his penis in their mouths. A.G. said: “We did what he said.” She did not tell her mother about the incident for two years because she was “scared and embarrassed.”

J.G. testified that she was born on March 25, 1986. She described the same fishing incident in the summer of 1998 and the same occurrence under the bridge. She was 12 years old at the time. She also described an incident a month later when defendant made her put his penis in her mouth in his bedroom. He then made her lay on the bed with her pants off while he put his mouth on her vagina. Defendant gave J.G. money so she would not tell anyone.

Dwayne Roelfs, an investigator with the Champaign County sheriff's office, testified that in April 2001, he learned about and followed up on the Coles County investigation of the allegations of sexual abuse. He spoke with A.G. and J.G., who told him that in the summer of 1998, defendant and his family resided in Champaign County. He said he was familiar with the bridge the girls described and confirmed that it was in Champaign County.

Darrell Cox, the Coles County sheriff, testified that he investigated the allegations beginning in November 2000. He conducted a recorded interview of defendant, who was 35 years old at the time. Each juror was given a transcript of the interview, and the recording was played for the jury. The State rested.

Defendant moved for a directed verdict, arguing that the charges were not timely filed. The trial court denied defendant's motion. Defendant did not present any evidence. The jury found defendant guilty of all four charges.

In May 2007, defendant filed a motion for acquittal or, in the alternative, a motion for a new trial. Defendant claimed (1) the charges were untimely, (2) portions of defendant's recorded statement should not have been admitted into evidence, (3) the trial court erred in denying his motion for a directed verdict, (4) the evidence was insufficient to convict, and (5) his conviction on count IX violated the...