Appeal from the Circuit Court of Kane County. No. 95--CF--2201 Honorable Donald C. Hudson, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp delivered the opinion of the court:
In July 1997, a jury convicted defendant, Wilbert Daniel, of two counts of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1), (a)(4) (West 1994)) and one count each of aggravated robbery (720 ILCS 5/18--5 (West 1994)), unlawful restraint (720 ILCS 5/10--3 (West 1994)), and criminal sexual assault (720 ILCS 5/12--13 (West 1994)). Defendant was sentenced in March 1998 to consecutive 11-year and 4-year prison terms and a concurrent 2-year prison term. Defendant appeals (see 134 Ill. 2d Rs. 602, 603; Official Reports Advance Sheet No. 22 (November 3, 1999), R. 606, eff. December 1, 1999), arguing (1) that he was not proved guilty of the offenses beyond a reasonable doubt; (2) that, even if he was proved guilty of some of the offenses, the State nevertheless failed to prove the element necessary to enhance criminal sexual assault to aggravated criminal sexual assault; (3) that the trial court erroneously sentenced him under the mandatory consecutive sentencing provision of the Unified Code of Corrections (Unified Code) (730 ILCS 5/5--8--4(a) (West 1994)); (4) that he is entitled to a new sentencing hearing because the trial court erroneously awarded him more sentence credit than authorized; and (5) that his conviction for unlawful restraint must be vacated because it was not charged independently of the sexual assault allegations. We affirm in part, vacate in part, and remand with directions.
Defendant was charged in a five-count indictment with the October 1995 sexual assault and robbery of M.M. Counts I and II of the indictment charged defendant with aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1), (a)(4) (West 1994)); count III charged defendant with aggravated robbery (720 ILCS 5/18--5 (West 1994)); count IV charged defendant with unlawful restraint (720 ILCS 5/10--3 (West 1994)); and count V charged defendant with criminal sexual assault (720 ILCS 5/12-- 13 (West 1994)).
At defendant's trial, the jury heard testimony from various witnesses, including M.M. and defendant. M.M. testified that on October 13, 1995, her boyfriend, James Brunner, was working at the Lose Marathon station in Elgin, Illinois. As was her routine, M.M. went to the station that evening to visit Brunner. It was just after 9 p.m. Upon M.M.'s arrival, she agreed to get dinner for Brunner and another employee, Alan Rodriguez, at a nearby McDonald's restaurant.
According to M.M., while she was waiting in the drive-through lane of McDonald's, defendant approached her and asked for a ride because it was raining and he needed to get home to his young son. M.M. initially refused. However, after defendant persisted, M.M. relented and invited defendant into her car. M.M. drove defendant to the location he indicated and pulled to the curb to let defendant out. M.M. testified that once the car was stopped defendant thanked her for the ride, opened the car door, and began to exit. When defendant was halfway out of the car, he suddenly reached into the backseat, grabbed M.M.'s backpack, which she used as a purse, and stated, "Now, I'm going to rip you off."
M.M. told defendant that she had no money, but defendant insisted that she did. Defendant got back in the car and ordered M.M. to turn off the car's engine and lights. An argument ensued, during which defendant allegedly showed M.M. a cocaine pipe and a white paper bag. Defendant also reached down by his feet and told M.M. that he had a pistol and he needed the money to buy cocaine. M.M. testified, however, that she never saw the gun but felt threatened by defendant's statement.
M.M. informed the jury that after the threat she told defendant that her boyfriend worked at the nearby Marathon station and she could probably get some money from him. Defendant allegedly asked M.M. if she valued her life and told her that she would have to do something for "collateral" so she wouldn't try to escape. M.M. thought defendant wanted her car and told him that he could not have it. Defendant replied that he did not want the car and then ordered M.M. to take off her pants and underwear. M.M. initially refused and started to reach for the door handle. Defendant told M.M. that if she tried to run he would shoot her in the back. M.M. gave in to defendant's demands and took off her pants and underwear and threw them in the backseat. M.M. testified that she complied with defendant's demand because defendant told her that he had a gun and she was afraid.
M.M. testified that after she was naked from the waist down, defendant told her to move over next to him and turn over on her stomach. M.M. tried to resist until defendant made a motion toward where he claimed the gun was located. M.M. then complied with defendant's order to "put this dick in you." Defendant had intercourse with M.M. M.M. did not yell out because "there was no one to yell out to." During the encounter defendant did not use any physical force. After defendant finished he sat back on the seat, and M.M. returned to the driver's seat. Defendant did not let M.M. get dressed, but instead had her drive to the Marathon station without wearing pants or underwear in order to get "his" money.
Upon arriving at the station M.M. and defendant encountered Brunner, Rodriguez, and Greg Irish, a friend of both M.M. and Brunner. Brunner approached the car and M.M. told him that she needed $60. Rodriguez and Irish remained near the door of the station. Brunner tried to give the money to defendant but defendant told Brunner to give it to M.M. instead. As Brunner complied with defendant's demand, M.M. attempted to mouth to Brunner that defendant had raped her.
Defendant took the money from M.M. and ordered her to drive away. M.M. testified that she obeyed defendant because she did not want him to hurt Brunner or her. M.M. further testified that, while they were driving, defendant said "that he was sorry he had to rape [her], and [she] better not call the police, because he knows where [her] boyfriend works now and he will kill him." M.M. dropped defendant off a few blocks from the station.
M.M. then returned to the Marathon station, parked, got dressed, and "just sat there." Shortly thereafter, Mike McGraw, another friend of Brunner and M.M., got into the car and asked M.M. if she was okay. M.M. responded that she had just been raped. As M.M. and McGraw were talking, the police arrived, and a short time later Brunner showed up. The police transported M.M. to the hospital, where she told her story to various police and hospital personnel. A physical examination revealed no trauma to M.M.
Several days after the incident, M.M. gave a taped statement to detectives in which she insisted that defendant entered her car without permission. However, in January 1996, M.M. recanted and instead admitted that she had invited defendant into the car. M.M. indicated that she initially lied because she did not want her family and friends to know that she voluntarily allowed a stranger into her car. Much of M.M.'s testimony regarding events that transpired at the Marathon station was corroborated through the testimony of Rodriguez, Irish, McGraw, and Brunner. Only Brunner's testimony warrants discussion.
Brunner told the jury that, when M.M. returned to the station after going to McDonald's, there was a black man in her car. When Brunner approached the car, he observed that the man's pants were unfastened and that M.M. was naked from the waist down and her clothes were in the backseat. Brunner also noticed that M.M.'s makeup was smeared and she appeared frightened but was not crying. Brunner did not see a weapon.
Brunner testified that he was confused by what was happening, particularly when defendant demanded $60 from him. When Brunner attempted to give the money to defendant, defendant ordered him to give the money to M.M. instead. Defendant's hands were concealed between his legs. Brunner complied with the orders because he was frightened at M.M.'s actions and concerned for her safety. Once Brunner handed M.M. the money, M.M. pulled away from the station at a normal rate of speed.
Brunner then got in his car and chased after M.M. and defendant. Defendant testified on his own behalf. He told the jury that on the evening in question he went to McDonald's to get dinner. He had a little over $8 but was not carrying a pipe, a gun, or a white paper bag. According to defendant, as he was leaving McDonald's with his food, M.M. waived him over to her car and asked if he wanted a ride. Defendant claimed that he said "no" and that he was only going a couple blocks up the street. Defendant then claimed that M.M. asked if he was willing to help her get even with her boyfriend. According to defendant, he did not know what was going on but was interested nonetheless. M.M. then allegedly invited defendant into her car and defendant accepted the offer. Defendant walked around the front of the car, and got in. M.M. introduced herself and shook defendant's hand.
As they left McDonald's, M.M. again told defendant that she wanted to get back at her boyfriend. Defendant then told the jury that, without direction from him, M.M. drove to the corner of Liberty and Grand and parked the car. Once parked, M.M. allegedly again asked defendant for his help. He responded, "I don't know. I don't want to get into any trouble." M.M. then offered to pay defendant for his assistance.
Interested, defendant began arguing with M.M. over the amount of money she would pay him despite not knowing what exactly he would be paid to do. During the argument, M.M. allegedly mentioned that, while she did not have any money, her boyfriend worked at Marathon and she could get money from him. According to defendant, when he realized that M.M. had no money he said "forget it" and began to exit the car. M.M. then grabbed the back of defendant's jacket, pointed to a couple standing on a porch of a nearby house, and told him that if he left she would yell "rape."
Defendant testified that the couple came off their porch and down their driveway. The couple looked at defendant. Fearing they were members of M.M.'s family, defendant reentered the car and closed the door. Defendant stated that he watched the couple for a short time. When they returned to their house, defendant looked over at M.M. and discovered that she had removed her pants and underwear and thrown them in the backseat. M.M. then allegedly moved closer to defendant and began fondling his penis through his pants until it was erect. According to defendant, M.M. then unzipped his pants and proceeded to have intercourse with him. M.M. allegedly offered no resistence or objection but instead instigated the sexual encounter. Defendant denied ever telling M.M. that he had a gun, threatening her in any way, or telling her that he needed money for cocaine. Defendant also denied that he used the word "collateral" during their conversation or that he struggled with M.M. for her purse.
After having intercourse, defendant testified that he rolled back into the passenger seat and pulled his pants back up but did not fasten them. M.M. returned to the driver's seat. She did not put her clothes back on. Instead, defendant claimed that M.M. stated, "I told you that I would pay you," to which he replied, "what makes you think your boyfriend is going to give you some money with me in the car." M.M. then stated that she would get the money and drove naked to the Marathon station without objection from defendant. Defendant claimed that after getting the money at the station, M.M. giggled as she drove away. M.M. then handed $60 to defendant and dropped him off a short time later. Defendant denied apologizing to M.M. for raping her.
Defendant admitted that he initially lied to police about the incident because he was afraid that he would be charged with robbing the gas station. Defendant claimed that he never thought he would be charged with rape because in his mind he had consensual intercourse with M.M. After hearing all the evidence, the jury convicted defendant on all counts. The convictions on counts II and V of the indictment were vacated based on the doctrine of merger, and defendant was sentenced as indicated. The trial court concluded that the consecutive sentences imposed on counts I and III were mandatory under section 5--8--4(a) of the Unified Code (730 ILCS 5/5--8--4(a) (West 1994)). The trial court determined that defendant was entitled to 931 days' credit for time spent in custody awaiting trial and sentencing. Relying on People v. Johnson, 286 Ill. App. 3d 597 (1997), the trial court applied the credit to ...