Appeal from the Circuit Court McHenry County. No. 90-CF-509. Honorable Henry L. Cowlin, Judge, Presiding.
As Modified on Denial of Rehearing June 14, 1994. Petition for Leave to Appeal Denied October 6, 1994.
The opinion of the court was delivered by: Quetsch
JUSTICE QUETSCH delivered the opinion of the court:
Following a jury trial in the circuit court of McHenry County, defendant, Walter Blanck, was convicted of aggravated kidnaping (Ill. Rev. Stat. 1989, ch. 38, par. 10-2(a)(5) (now 720 ILCS 5/10-2(a)(5) (West 1992))) and aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12-14(a)(2) (now 720 ILCS 5/12-14(a)(2) (West 1992))). Defendant was sentenced to a term of imprisonment of 13 years for aggravated kidnaping to be served consecutively to an extended-term sentence of 60 years' imprisonment for aggravated criminal sexual assault. Defendant raises the following issues on appeal: (1) whether the State failed to prove beyond reasonable doubt that the offense of aggravated criminal sexual assault was committed wholly or partly within the State of Illinois; (2) whether the jury received improper instructions on the burden of proof of jurisdiction and the definition of a continuing offense; (3) whether his motion for substitution of Judges was improperly denied; and (4) whether his 60-year, extended-term sentence for aggravated criminal sexual assault was an abuse of discretion.
The complainant, A.H., testified at trial that she had met defendant in December 1989, through a mutual acquaintance, Danny Pietrowski. A.H. saw defendant again at a New Year's Eve party and dated defendant on one occasion in January or February 1990. On their date, after they had a few drinks at a bar in Milwaukee, Wisconsin, defendant took A.H. to a motel room where they had a few more drinks and used cocaine. At some point, A.H. asked to be taken home, but defendant said that he suffered from night blindness and could not drive. A.H. remained in the motel room, and throughout the night defendant kept trying to touch her. A.H. testified that she finally agreed to have sexual intercourse with defendant so he would take her home.
Aside from three or four telephone conversations initiated by defendant, A.H. had no further contact with defendant until October 3, 1990, the date of the incidents giving rise to this prosecution. On October 3, A.H. was living in a house in Milwaukee, Wisconsin, with her father and her boyfriend, Brian. At about 12:30 p.m. defendant and his one-year-old daughter unexpectedly visited the house. A.H. and Brian were in the house at the time, but Brian left shortly thereafter. While at A.H.'s house, defendant made some telephone calls in an effort to find a baby-sitter for his daughter. He indicated that he had a business meeting in downtown Milwaukee. At around 2 p.m., defendant left A.H.'s house, stating that he was taking his daughter to a baby-sitter in Illinois. The baby-sitter, a resident of Hebron, Illinois, testified that defendant arrived at her home with his daughter at around 3:30 or 4 p.m.
At about 5:50 p.m., defendant telephoned A.H. and asked her to go out with him, but A.H. declined. At about 6:40 p.m., defendant came to A.H.'s house and indicated that he still wanted A.H. to go out for a drink with him. A.H. declined, but asked defendant to take her out to purchase cigarettes. Despite what had transpired during their date earlier that year, A.H. thought that going for a pack of cigarettes would be harmless. After driving to a convenience store, defendant stated that he had to go to a friend's residence in Mukwonago to drop off some money. At about 7:15 p.m., as they were driving on Route 164, defendant stopped the car and asked A.H. to help him put a suitcase (which he claimed was filled with money to be laundered) in the trunk. When A.H. stepped out of the car, defendant ordered her to get into the trunk. A struggle ensued, and defendant punched A.H. in the face and threw her into the trunk.
Defendant ordered A.H. to remove her clothing. He stopped the car two or three times, and during each stop A.H. handed defendant one or more items of clothing. At some point, defendant told A.H. that "the Outlaws" and Danny Pietrowski had paid him to kill her. After A.H. was completely undressed defendant told her that they were at the Outlaws' clubhouse and they had to see that she was dead. A.H. was familiar with the location of the Outlaws' clubhouse in Milwaukee and knew that she was not at that location. Defendant proceeded to wrap electrical or duct tape around A.H.'s head, covering her entire face, including her mouth and eyes. Defendant then bound A.H.'s wrists behind her back with tape. Defendant resumed driving, making several more stops. During one or more stops, defendant placed a baseball bat in A.H.'s vagina and pushed on it. Defendant told A.H. that she was making him mad because she was not "getting wet" or having an orgasm, and threatened to kill her if she did not do so. Defendant also urinated on A.H., poured beer on her, pulled on her breasts, and pulled her pubic hair out. While wrapping A.H. with tape, defendant accidentally cut his wrist with the knife he was using to cut the tape and smeared blood from the cut on A.H.'s body. During one of the stops, defendant ordered A.H. to insert her own fingers into her vagina or anus. Throughout the period of confinement, defendant called A.H. a "f bitch" or a "f whore" and said that she was "f with him and lying to him."
At 12:40 a.m. on October 4, a Spring Grove police officer stopped defendant's vehicle, which was travelling west, on Route 173 at a point just west of Winn Road in McHenry County. The police officer had observed the vehicle weaving and crossing the center line. When he approached the vehicle, the police officer heard screams for helpcoming from the trunk. That officer and a McHenry County deputy sheriff who joined him released A.H. from the trunk.
A.H. suffered scattered bruises and abrasions to her face and chest and reported tenderness in her vaginal area. One of A.H.'s shoes and her schedule of classes at Milwaukee Area Technical College were discovered by detectives with the sheriff's department of Waukesha County, Wisconsin, on the shoulder of Route 164, at a location in Waukesha County approximately a quarter mile north of the Racine County line.
Defendant first contends that the evidence presented at trial is insufficient to establish jurisdiction in Illinois over the charged offense of aggravated criminal sexual assault and his conviction for that offense must therefore be reversed. Illinois jurisdiction over criminal offenses is delimited by section 1-5 of the Criminal Code of 1961, which provides, in pertinent part:
"(a) A person is subject to prosecution in this State for an offense * * * if:
(1) The offense is committed either wholly or partly within the State; * * *
(b) An offense is committed partly within this State, if either the conduct which is an element of the offense, or the result which is such an element, occurs within the State." (Ill. Rev. Stat. 1989, ch. 38, par. 1-5 (now 720 ILCS 5/1-5 (West 1992)).)
Defendant cites People v. Holt (1982), 91 Ill. 2d 480, 64 Ill. Dec. 550, 440 N.E.2d 102, in support of his argument that jurisdiction is lacking in the case at bar. In Holt, the defendant kidnaped the victim in Illinois and drove her to Wisconsin where he raped and killed her. The defendant was convicted in Illinois of aggravated kidnaping and murder under the felony-murder rule. On appeal, the State argued that the kidnaping was an element of the murder as charged under the felony-murder rule, and the occurrence of the kidnaping in Illinois therefore conferred jurisdiction over the murder charge. Our supreme court disagreed, holding that pursuant to section 1-5 of the Criminal Code as then in effect (Ill. Rev. Stat. 1979, ch. 38, par. 1-5), the kidnaping in Illinois could not support jurisdiction in Illinois over the felony-murder charge, at least under circumstances where ...