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12/05/89 the People of the State of v. Charles P. Cunningham

December 5, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLANT

v.

CHARLES P. CUNNINGHAM, DEFENDANT-APPELLEE

THE FACTS RELEVANT TO THE UNDERLYING OFFENSE ARE SET FORTH IN DETAIL IN PEOPLE

v.

RAMSEY (1986), 147 ILL. APP. 3D 1084, 496 N.E.2D 1054. THEY WILL, THEREFORE, BE REPEATED HERE ONLY AS NECESSARY TO AN UNDERSTANDING OF OUR DISPOSITION.



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

547 N.E.2d 765, 191 Ill. App. 3d 332, 138 Ill. Dec. 598 1989.IL.1880

Appeal from the Circuit Court of Vermilion County; the Hon. John P. O'Rourke, Judge, presiding.

APPELLATE Judges:

JUSTICE McCULLOUGH delivered the opinion of the court. SPITZ and GREEN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH

After a bench trial, defendant was convicted of two counts of aggravated criminal sexual assault and one count of criminal sexual assault. This court affirmed the convictions and sentence on direct appeal. (People v. Ramsey (1986), 147 Ill. App. 3d 1084, 496 N.E.2d 1054.) Defendant filed a post-conviction petition alleging ineffective assistance of trial counsel. The post-conviction court found trial counsel was ineffective and granted the petition. The State appeals, arguing the post-conviction court's determination was contrary to the manifest weight of the evidence.

We reverse.

Defendant's post-conviction petition alleged he received ineffective assistance of counsel and, as a result, his right to a jury trial was compromised. Kenneth Blan, defendant's trial counsel, attached an affidavit to the petition. Blan stated defendant's decisions to waive a jury trial and refrain from testifying were based upon erroneous advice of counsel.

Complainant testified Dwayne Ramsey and defendant forced her into defendant's vehicle, which was parked on a street near her home. She had previously dated Ramsey. Kim Poke was also in the car. During the journey, which lasted 10 to 15 minutes, she was lying facedown on the back seat of the vehicle. Defendant drove the car. Complainant did not know precisely where the vehicle stopped. After the vehicle stopped, Ramsey and defendant had sexual intercourse with her against her will. Poke was unable to penetrate her vagina due to her struggles. Ramsey threatened to kill her.

Complainant was lying down during the return trip. They let her out of the car on Johnson Street in Danville. The assistant State's Attorney asked complainant whether all of the events happened in Vermilion County. Each defense counsel objected to the question. The court sustained the objection. Complainant stated it took 10 minutes for them to return to Johnson Street after the rape. After she was initially put in the car, they went up an alley to the right side of the car. They stopped in a field where she could see lights from the back window.

Complainant testified that the car traveled on Bowman Street and turned onto Johnson Street during the return trip. She was not sure which street the car was on before it turned onto Bowman Street. The prosecutor argued that he should be allowed to continue questioning complainant about the location of the offense through leading questions. He maintained the prosecution was surprised by the trial testimony since previously complainant had indicated that the offense occurred in Vermilion County. He acknowledged that complainant was not certain of the precise location of the offense. Each defense counsel indicated that no surprise existed because the police reports indicated complainant was uncertain about the location of the offense. The court allowed further questioning. Complainant stated streets and directions of travel. The State then presented several other witnesses.

After the State rested, defendant, Ramsey, and Poke each made a motion for directed verdict of acquittal. Blan adopted the codefendants' argument. The other attorneys argued the State failed to establish the location of the offense beyond a reasonable doubt. They noted the victim could not identify the location of the offense, repeatedly said she did not see where they drove, and only in response to leading questions stated streets. They also argued that if her initial description of the route and the time of travel were correct, the offense could have occurred outside Vermilion County. Poke's attorney noted a case on point. The trial court took judicial notice of the State and county boundaries and stated that venue had been established with sufficient certainty to withstand the motion.

Defendant, Ramsey, and Poke did not present any evidence. The trial court found they were guilty and specifically noted that it found complainant's testimony clear, convincing, and corroborated. On October 18, 1985, defendant, Ramsey, and Poke argued their post-trial motions, concentrating on the venue issue. Blan argued the motion for all of the trial defendants. The motion raised the location of the offense as an issue. Blan first noted complainant stated she did not know where the vehicle stopped. Blan argued the court should take judicial notice that a 10- to 15-minute drive could take the vehicle out of the State and out of the county. He then argued a higher standard of proof is necessary to establish venue, referring to People v. Biella (1940), 374 Ill. 87, 28 N.E.2d 111. Blan also referred the court to several cases and argued that in those cases the location of the offense had been established because of specific reference points. Blan also distinguished People v. Frank (1981), 98 Ill. App. 3d 388, 424 N.E.2d 799, because it involved the death of a victim which occurred in the county of the trial.

Finally, Blan argued People v. Barksdale (1974), 24 Ill. App. 3d 489, 321 N.E.2d 489, and People v. Taylor (1970), 121 Ill. App. 2d 403, 257 N.E.2d 524, rev'd on other grounds (1971), 48 Ill. 2d 91, 268 N.E.2d 865, were distinguishable. Blan noted Barksdale involved an allegation of aggravated kidnapping, an offense which occurred in Chicago. He also argued the court could have believed that the time necessary to travel outside of Cook County from the City of Chicago was greater than the time of travel stated by the complainants in those cases. He noted no other jurisdiction had followed the reasoning presented in those cases. Blan also argued the court should follow the rationale of People v. McClain (1978), 60 Ill. App. 3d 320, 376 N.E.2d 774, which he believed required more ...


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