APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
541 N.E.2d 1336, 186 Ill. App. 3d 1, 133 Ill. Dec. 898 1989.IL.1056
Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ, J., concurs. JUSTICE PINCHAM, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendant Sammy (also known as Sammie) Robinson appeals his conviction for the crime of communicating with a witness, for which he received a four-year extended prison sentence. The following facts are pertinent to this appeal.
In December 1985, defendant was arrested and charged with the aggravated sexual assault of a 14-year-old girl. He was free on bond pending trial in May 1986 when the rape victim and her mother, Mildred Stephen, were approached by Lemual Taylor. Taylor told the mother that "Sammie sent me to [offer] you a thousand dollars for [your daughter] not to come to court," after which Taylor gave Stephen a piece of paper with a telephone number on it, telling her to call Sammie. That number was later shown by competent evidence to be the number assigned to defendant's car telephone.
Stephen returned to her apartment and dialed the number. The person answering the call identified himself as Sammie and proceeded to offer Stephen $1,000 if her daughter would not go to court. After Stephen stated to Sammie that he now offers her $1,000 after burning down her mother's house, almost killing her parents, defendant raised his offer to $3,000. Meanwhile, a police officer arrived, having been summoned by a call from a family member, and picked up a telephone extension at Stephen's direction and after she had informed him that Robinson was on the phone. The officer testified that he listened to the conversation for about 30 seconds and heard defendant say that he would give Stephen $1,000 to drop the sexual assault charges pending against him.
Prior to trial on the communicating with a witness charge, the court overruled defendant's motion to preclude mention of the sexual assault charge and any mention of arson. During the jury trial, defense counsel made various hearsay objections, which the court overruled when the State asserted that it would later prove the existence of a conspiracy. After the jury found defendant guilty of communicating with a witness, defendant filed this appeal, asserting that he was denied a fair trial by the admission of irrelevant other crimes evidence, hearsay statements should have been excluded because the State failed to prove the existence of a conspiracy, and the State's evidence did not prove the acts charged in the indictment.
There is no need to address the first two issues raised on appeal since we must reverse defendant's conviction because the State failed to prove an essential element of the crime charged.
The offense with which defendant was charged and convicted-communicating with a witness, a Class 4 felony-occurs when "[a] person who, with intent to deter any party or witness from testifying freely, fully and truthfully to any matter pending in any court . . ., forcibly detains such party or witness, or communicates, directly or indirectly, to such party or witness any knowingly false information or a threat of injury or damage to the property or person of such party or witness, . . . or offers or delivers money or another thing of value to such party or witness or to a relative of such party or witness." Ill. Rev. Stat. 1985, ch. 38, par. 32-4(b).
There is no evidence in this record that defendant offered money to Stephen to deter her or her daughter from testifying freely, fully and truthfully. Section 32-4(b) appears to be directed to the prevention of paying a witness to testify other than truthfully and of her own will. The offense defendant should have been charged with is compounding a crime: "A person compounds a crime when he receives or offers to another any consideration for a promise not to prosecute or aid in the prosecution of an offender." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 38, par. 32-1(a).) Compounding a crime is a petty offense.
Defendant's offer of money for the Stephens not to appear in court is in return for their nonaid in the prosecution of the sexual assault charge. Nonappearance is a refusal to aid in a prosecution rather than a refusal to testify other than freely, fully and truthfully. Furthermore, the police officer testified that defendant asked Stephen not to prosecute the case. Although the State argues that an offer of money not to appear in court can be equated to an offer of money not to testify freely, fully and truthfully, there is no supporting authority for this equation. If the Stephens had accepted defendant's offer, the State could still have proceeded with the prosecution, subpoenaing them as witnesses whereupon they could then testify freely, fully and truthfully.
The opinion in People v. Scribner (1982), 108 Ill. App. 3d 1138, is illuminative of the confusion between sections 32-1 and 32-4 of the Criminal Code of 1961. (Ill. Rev. Stat. 1985, ch. 38, pars. 32-1, 32-4.) In Scribner, the defendant was charged with communicating with a witness after offering the complainant money to request that criminal charges be dropped against defendant's nephews. The Scribner court found that the evidence did not show any payment to the complainant to not testify or to testify other than freely, fully and truthfully, and that defendant was instead guilty of the petty offense of compounding a crime. In so doing, the court noted that the power to dismiss criminal charges rests with the prosecuting officer. Scribner, 108 Ill. App. 3d at 1143.
We agree with the reasoning of the Scribner court that our legislature probably did not intend section 32--4 to be a duplicate of section 32--1, thus making the latter superflous, and further, that criminal statutes must be construed strictly in favor of an accused and nothing is to be taken by intendment or implication against a defendant beyond the literal and obvious meaning of the statute. Scribner, 108 Ill. App. 3d at 1144.
Accordingly, we conclude that the State did not prove that defendant offered Stephen money to not testify freely, fully and truthfully, but rather offered her money not to aid in the prosecution of the sexual assault charge against him. We must therefore reverse defendant's conviction and resultant sentence.
It is to be noted that during oral argument before this court, it was revealed by the attorneys that the aggravated sexual assault charge against defendant was nol-prossed by the State and that he is now on parole from his sentence in the present case.
JUSTICE PINCHAM, Dissenting:
I Dissent. I do not agree with the majority's Conclusion that:
"he State failed to prove an essential element of the crime charged.
There is no evidence in this record that defendant offered money to Stephen to deter her or her daughter from testifying ...