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People v. Jones

OPINION FILED FEBRUARY 9, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

POSIE JONES, A/K/A POSIE DAY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. SKLODOWSKI, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant, Posie Jones, was convicted of two counts of unlawful use of weapons, unlawful restraint, and armed violence and sentenced to a term of 14 years for armed violence and an extended term of 9 years for unlawful use of weapons, the sentences to be served concurrently. On appeal, the defendant argues that: (1) the State failed to establish his guilt beyond a reasonable doubt; (2) he did not knowingly and understandingly waive his constitutional right to trial by jury; and (3) the trial court erred in entering a judgment of conviction for both unlawful restraint and armed violence and on both counts of unlawful use of weapons.

For the following reasons, we affirm in part and reverse in part.

The defendant was charged with six counts: unlawful use of weapons, unlawful use of weapons within five years of release from prison, unlawful restraint, armed violence predicated on the unlawful restraint, attempt armed robbery, and armed violence predicated on attempt armed robbery. The parties stipulated that the defendant was found guilty of rape on August 14, 1969, sentenced to a term of 15 to 30 years, and released from that sentence on September 29, 1978.

The complaining witness, Clara Porter, testified for the State that on October 23, 1978, at approximately 1 a.m. she was walking in the vicinity of 59th and Halsted in the City of Chicago. Ms. Porter testified that she had left her home to get something to eat and, upon finding that one restaurant was closed, decided to try a second restaurant in the neighborhood. As she was walking to the second restaurant, a man approached her from behind. He asked her "what would a lady like you be doing out on a night like this walking." At this point, Ms. Porter was in front of a blue building which was next to an abandoned gray building. There was a street light in front of the building according to the witness. She did not respond to the man's inquiry. The defendant then came up from behind her and grabbed her. He pulled a knife and told her not to scream or he would kill her. Ms. Porter next testified that the defendant began pulling her towards an abandoned building but she broke loose and ran to a nearby tavern in search of a police officer. She testified that from the time the defendant pulled a knife and the time she escaped approximately three to four seconds elapsed. When she did not find any help at the tavern she left. At this time she noticed her coat on the sidewalk near the site of her attack and decided to retrieve the coat as she didn't see anyone near it. She then ran to a gas station where a police car was parked. As she was telling the officers of the incident and giving them a description of her assailant, she spotted her assailant in an alley next to the gas station. According to Ms. Porter, when she pointed him out to the police officers, the defendant fled down an alley. He was apprehended a few minutes later by the police officers as he stood in an entranceway. After the arrest, the defendant told her in the presence of the officers that, if she would tell the officers that he was not her assailant, he would give her some money. Ms. Porter made an in-court identification of the defendant and also identified a wood-handled knife as the one involved in the incident.

Chicago police officers William Wright and James Spratt corroborated Ms. Porter's testimony. Officer Wright testified that on October 23, 1978, at about 1:30 a.m. he and his partner, Officer Spratt, were parked at a gas station at 59th and Peoria when they were approached by Ms. Porter, who informed them that she had been attacked. She then gave the officers a description of the man who had attacked her. As she gave the officers the description, they saw a man fitting her description near the gas station. However, when Ms. Porter pointed him out, the man turned around and proceeded in the direction he had just come from. After following the man a short distance, the officers apprehended him and placed him under arrest. Upon searching him the officers recovered a wood-handled knife from the man's inside coat pocket. After the arrest, the defendant asked Ms. Porter to tell the officers that she had made a mistake and that in return he would give her anything she wanted. Officer Spratt reiterated his partner's testimony. Both officers identified the knife they recovered on that date and identified the defendant as the man they had arrested on that occasion. After this testimony the defendant's motion for a directed verdict was granted relative to the attempt armed robbery charge and the armed violence charge based on that count.

The defendant, Posie Jones, testified on his own behalf that on October 23, 1978, he was residing with his mother after being released from prison on September 29, 1978. While he was unemployed at this time, the defendant stated that he had several job prospects. He further testified that at about 1 a.m. on October 23, 1978, he left his mother's home to buy some beer at a tavern. Before he left for the tavern, he placed one of his mother's knives in his pocket for protection as he had been robbed recently. On the way to the tavern, he encountered Ms. Porter. According to his testimony she was staggering as she walked. She asked him if he would "like to have some fun tonight." The defendant interpreted this remark to be an offer for sex and because he was not interested he rejected her offer. When he tried to walk away, however, Ms. Porter persisted in her request and so he pushed her away and flashed his knife to frighten her. At this point, Ms. Porter ran across the street. The defendant did not otherwise touch or threaten her. Nor did her coat come off. After this confrontation, the defendant stated that he continued on his way but before he reached the tavern, which was his original destination, two police officers arrested him at gunpoint. When they searched him they recovered his knife. When the defendant asked why he was arrested, the officers stated that he had attacked Ms. Porter. The defendant then told Ms. Porter that she had approached him but she said he should not have pulled the knife on her. The defendant denied offering to pay the complaining witness for dropping the charges. The court found the defendant guilty and after a sentencing hearing gave him concurrent 9- and 14-year sentences. The defendant filed a timely appeal.

The defendant urges that he was not proven guilty beyond a reasonable doubt because the testimony of the complaining witness lacked credibility in that it was implausible and contrary to human experience. The defendant points to the fact that the victim remained in the area of the crime instead of going home after the alleged attack, although she lived only two blocks away. Furthermore, the defendant notes that she didn't report her attack to anyone in the tavern which she visited immediately after the attack and only reported the attack to the police when she accidentally saw a squad car parked at a nearby gas station. The defendant also urges that the State failed to explain why, if the defendant committed a crime, he would remain in the area just waiting to be apprehended.

The credibility of a witness is for the trier of fact (People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182; People v. Flores (1979), 79 Ill. App.3d 869, 398 N.E.2d 1132), and a reviewing court should not disturb a conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313; People v. Mingo (1980), 89 Ill. App.3d 285, 411 N.E.2d 968; People v. Reed (1980), 84 Ill. App.3d 1030, 405 N.E.2d 1065.) It is quite clear in Illinois that the testimony of a single credible witness is sufficient to support a conviction. (People v. Jones (1975), 60 Ill.2d 300, 325 N.E.2d 601; People v. Novotny; People v. Mingo; People v. Flores.) Here, the testimony of the complaining witness was clear and corroborated by the testimony of the police officers. It was further corroborated by the fact that a knife conforming to the complaining witness' description was found on the defendant when he was arrested shortly after the incident. While the complaining witness had not known the defendant, her identification of him such a short time after the incident further strengthens her identification. After reviewing the facts on appeal, we conclude that it was not inherently improbable for the complaining witness to seek out the police rather than telling someone at the tavern she went into immediately after the incident. Nor do we believe that the defendant's presence in the neighborhood after the incident raises any inferences that he was not guilty.

• 1 The defendant also argues that the offense of unlawful use of weapons was not proven because, although he had a knife in his possession, he lacked the requisite intent to use the weapon unlawfully as required by law. (Ill. Rev. Stat. 1977, ch. 38, par. 24-1(a)(2).) We think that it is clear that if the court found the complaining witness' testimony credible it could determine that the defendant possessed the requisite intent to use the weapon unlawfully. Intent can be inferred from the surrounding circumstances, including the words and actions of the defendant. People v. Walker (1976), 44 Ill. App.3d 494, 358 N.E.2d 672; People v. Uselding (1969), 107 Ill. App.2d 305, 247 N.E.2d 35.

• 2 The defendant's last argument in this regard is that the unlawful restraint charge was not proven beyond a reasonable doubt because the evidence does not support a finding that he detained the complaining witness. Unlawful restraint, formerly known as false imprisonment, consists of the knowing confinement or detention of a person without sufficient legal authority. (Ill. Rev. Stat. 1977, ch. 38, par. 10-3; People v. Satterthwaite (1979), 72 Ill. App.3d 483, 391 N.E.2d 162; People v. Mulcahey (1977), 50 Ill. App.3d 421, 365 N.E.2d 1013.) Defendant's argument that no unlawful restraint occurred rests on his conclusion that because the complaining witness was only restrained for a few seconds there was no real confinement or detention as required by the statute. We do not agree. If a party is actually restrained without legal authority, the duration of the restraint, however short, is inconsequential. (35 C.J.S. 2d False Imprisonment § 13 (1960).) We note that in Satterthwaite, while no direct issue was raised as to the shortness of the duration of the restraint, a conviction for unlawful restraint was affirmed despite defendant's reasonable doubt argument, where the complaining witness' freedom was only impaired for approximately two minutes. The defendant has referred us to no decision where an actual unauthorized restraint was found insufficient merely because the duration of the restraint was minimal. Nor has our research disclosed any such case. Accordingly, we find that the defendant was proven guilty of unlawful use of weapons and unlawful restraint beyond a reasonable doubt.

The defendant next contends that his convictions must be reversed because he did not make a knowing and understanding waiver of his right to trial by jury. Under section 103-6 of the Code of Criminal Procedure of 1963, every person accused of an offense has the right to a trial by jury unless understandingly waived by the defendant in open court. (Ill. Rev. Stat. 1977, ch. 38, par. 103-6.) The trial court has a duty to see that the defendant's waiver of his right to trial by jury is expressly and understandingly made in open court. (People v. Clark (1964), 30 Ill.2d 216, 195 N.E.2d 631; People v. Bristow (1980), 80 Ill. App.3d 535, 400 N.E.2d 511; People v. Banks (1979), 71 Ill. App.3d 15, 389 N.E.2d 180.) There is no specific formula for determining whether a defendant's waiver of his right to a jury trial is understandingly made (People v. Palmer (1963), 27 Ill.2d 311, 189 N.E.2d 265; People v. Lewis (1980), 89 Ill. App.3d 840, 412 N.E.2d 565), and as such, this determination rests upon the particular facts of each case. People v. Richardson (1965), 32 Ill.2d 497, 207 N.E.2d 453; People v. Lewis; People v. Stolfo (1977), 46 Ill. App.3d 616, 361 N.E.2d 101; People v. Ruiz (1976), 42 Ill. App.3d 969, 356 N.E.2d 881.

In Richardson the defendant argued that his waiver was not understandingly made; however, a jury waiver form was included in the record, and both the common law record and a transcript indicated that the defendant was fully advised of his right to a jury trial, waived his right to same by his counsel, and signed the waiver form. In holding that the waiver was sufficient, the supreme court explained:

"Merely because the court did not at length discuss the consequences of the jury waiver does not necessarily require a holding that the waiver was not understandingly made. [Citation.] While the trial court might well have dwelt at more length on this matter in complying with its duty to insure that the jury waiver was expressly and understandingly made [citation], we believe that this ...


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