Appeal from the Circuit Court of Cook County. Honorable Kenneth J. Wadas, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
Following a bench trial in the circuit court of Cook County, defendant Terrin Lee was convicted of one count of armed robbery and three counts of aggravated unlawful restraint. He was then sentenced to concurrent prison terms of 19 years for armed robbery and 10 years for each conviction of aggravated unlawful restraint. On appeal, defendant contends that the State failed to prove him guilty of armed robbery beyond a reasonable doubt and that his convictions for aggravated unlawful restraint must be vacated under the one-act, one-crime doctrine. In a supplemental brief, defendant contends that the armed robbery statute under which he was convicted is void because the penalty provision of that statute violates the proportionate penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, §11), thereby rendering his armed robbery conviction void.
When we initially issued this decision, we affirmed the defendant's convictions for armed robbery and for two counts of aggravated unlawful restraint and we vacated the defendant's sentences and remanded the case to the circuit court. Based on our holding that the decision in People v. Sharpe, 216 Ill. 2d 481 (2005), rendered the defendant's nonenhanced sentences void, we ordered the circuit court to impose a sentence that included the 15-year enhancement for armed robbery while in possession of a firearm (720 ILCS 5/18-2(a)(2)(b)(West 2000)). Defendant filed a petition for rehearing and this court ordered the State to file an answer and allowed the defendant to file a reply to the State's answer. After this court wrote and circulated an amended opinion that agreed with the reasoning of the petition for rehearing, but before the amended opinion was filed, our supreme court issued their opinion in People v. Hauschild, 226 Ill. 2d 63 (2007). This opinion applies the holding in Hauschild, but in doing so, we raise some concerns regarding some of the aspects of that case. We now withdraw our prior opinion and vacate our order remanding this case to the circuit court for purposes of resentencing the defendant.
Defendant was charged with the armed robbery of Duncan Ellington and the aggravated unlawful restraint of Duncan, his wife Claudina and their 11-year-old son Christopher. The incident occurred in the 2000 block of West 79th Street in Chicago on September 1, 2001. At trial, Duncan testified that about 12:45 on the morning in question, he entered a liquor store in that area with Claudina and Christopher to purchase some items and to withdraw money from a cash machine. They left the store with their purchases and walked northbound across 79th Street. As they approached the median, Duncan heard his wife scream, then saw her take a step back. Duncan stopped when he heard someone behind him say, "[G]ive me all your money." Without turning around, he gave $10 to this person, who then demanded the rest of his money. Duncan then turned and saw his assailant, whom he identified as defendant.
Duncan also testified that defendant was carrying a chrome or silver-colored weapon at his side, which looked like a gun. After taking the rest of Duncan's money, defendant crossed the street, entered a waiting vehicle and drove away. Duncan notified police of the incident and subsequently identified defendant in a lineup at the police station. On cross-examination, Duncan acknowledged that he did not know if the chrome weapon in defendant's hand was a gun and that he never saw defendant point anything at himself or anyone else.
Claudina Ellington testified that she was using drugs during most of 2001 and that she had since gone through rehabilitation. She further testified that as she and her family were crossing 79th Street after leaving the liquor store, she heard someone behind her say, "[G]ive me your money motherfucker. I'm going to shoot you." She turned around and screamed when she saw defendant pointing a 9-millimeter, chrome-plated gun at her husband. Claudina stated that her vision was not impaired in any way during this incident.
On cross-examination, Claudina acknowledged that she free-based cocaine in the past and that she had purchased narcotics on the night in question. She denied ever meeting defendant or purchasing narcotics from him.
Christopher Ellington testified that he and his parents were crossing the street when defendant approached his dad and said, "[G]ive me your money." Christopher also testified that the man was carrying "a gun, I think," that was silver in color. Christopher ran back across the street to the sidewalk and saw defendant take his father's money and flee in a waiting car.
Detective Jenny Christoforakis testified that in the early morning hours of September 1, 2001, she was called to 75th and Honore Streets, where a car had been stopped and police had defendant in custody. She also testified that no weapon was found in this vehicle. The detective noted in her supplemental police report that Claudina heard defendant say, "I am going to shoot you in the back if you don't give me that money."
The parties stipulated that, if called to testify, Officer Demato would testify that on the date in question, he stopped the vehicle in which defendant was riding and that no handgun was found on defendant's person or inside that vehicle.
The State rested, and the defense recalled Claudina. She testified that she did not know an individual named Timothy Collins, but knew a Tim who had an eye impairment. She denied ever commenting to Tim or anyone else that she did not believe defendant had a gun in his possession during the robbery. On cross-examination, Claudina testified that she spoke to Tim prior to trial, that he identified himself as defendant's brother-inlaw, and that he offered her $100 not to testify against defendant.
Adrian Anderson testified that he accompanied defendant to the liquor store on the day in question. Anderson stated that defendant always carried the faceplate of his radio with him, that defendant had this plate in his hands during the incident, and that he never pointed it at anyone.
Timothy Collins testified that he had gotten "high" in the same room as Claudina on past occasions. He also testified that he spoke to Claudina twice prior to defendant's trial and that she told him that she did not actually see defendant with a gun. Collins also testified that defendant had told him that the only thing he had in his hands during the incident was the faceplate to his radio. Collins denied offering Claudina money not to testify at defendant's trial.
The trial court found defendant guilty of one count of armed robbery and three counts of aggravated unlawful restraint. In doing so, the court specifically found that both Claudina and Christopher credibly testified that defendant was carrying a gun in his hand. The court sentenced defendant to concurrent prison terms of 19 years for armed robbery and 10 years for each count of aggravated unlawful restraint. Defendant now appeals.
Sufficiency of the Evidence On appeal, defendant first challenges the sufficiency of the evidence to convict him of armed robbery. When a court reviews a challenge to the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in a light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). A criminal conviction will not be set aside on appeal unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt as to the defendant's guilt. People v. Cox, 195 Ill. 2d 378, 387 (2001). We do not find this to be such a case. In order for defendant's conviction for armed robbery to be sustained, the State was required to prove that defendant committed robbery (720 ILCS 5/18-1 (West 2000)) while carrying a firearm (720 ILCS 5/18-2(a)(2) (West 2000)). Defendant does not dispute the sufficiency of the evidence to establish the elements of robbery, but contends that the State failed to prove beyond a reasonable doubt that he committed the robbery while carrying a firearm.
In this case, Claudina unequivocally testified that defendant was holding a chrome-plated, 9-millimeter handgun while he robbed her husband. The trial court found Claudina to be a credible witness, and her testimony alone was sufficient to establish that defendant was armed during the robbery. People v. Thomas, 189 Ill. App. 3d 365, 371 (1989). In addition, Claudina's version of events was corroborated by Duncan and Christopher, who testified that defendant was carrying a silver object in his hand. Finally, defendant's threat to shoot Duncan was circumstantial evidence that he was carrying a firearm during the robbery. See People v. Garcia, 229 Ill. App. 3d 436, 439 (1992) (defendant's repeated threats to shoot the victim were circumstantial evidence that he was armed with a dangerous weapon). We thus conclude that this evidence, considered in the light most favorable to the State, was sufficient to find defendant guilty of armed robbery beyond a reasonable doubt. People v. Coleman, 345 Ill. App. 3d 1029, 1032 (2004).
Nonetheless, defendant argues that Claudina's testimony was incredible and unconvincing and therefore insufficient to support his conviction for armed robbery. In support of his assertion, defendant cites Claudina's admitted prior drug use, Collins' testimony that Claudina told him that she did not actually see a gun, and Anderson's testimony that defendant was carrying the faceplate to his radio. We note, however, that it was the responsibility of the trial court to assess the credibility of the witnesses and to resolve conflicts in their testimony. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). Here, the trial court was aware of Claudina's drug use, but chose to believe her version of events over that of defendant's alibi witness, and specifically found her to be credible. We will not substitute our judgment for that of the trier of fact in these matters (Ortiz, 196 Ill. 2d at 259), and we find that defendant's attack on the credibility of this witness does not raise a reasonable doubt of his guilt (People v. Hall, 114 Ill. 2d 376, 410 (1986); People v. Berland, 74 Ill. 2d 286, 307 (1978)).
Defendant further argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt because the victim, Duncan, did not know if defendant had a gun and he was unable to give a description of the object in defendant's hand except for its color. We disagree. A conviction for armed robbery may be sustained " 'even though the weapon itself was neither seen nor accurately described by the victim.' " Coleman, 345 Ill. App. 3d at 1033, quoting People v. Elam, 50 Ill. 2d 214, 220 (1972).
Finally, defendant argues that there is insufficient circumstantial evidence that he was armed with a firearm because all three Ellingtons testified inconsistently as to the exact threat that he made to Duncan. We have already found there was sufficient direct evidence to support defendant's armed robbery conviction, and further note that the three members of the Ellington family testified consistently that defendant demanded Duncan's money, and Claudina testified that defendant threatened to shoot her husband. The trier of fact is not required to disregard the inferences that flow from the evidence in order to find guilt beyond a reasonable doubt (Hall, 114 Ill. 2d at 409), and in this case, we find that the circumstances described by the witnesses support the inference that defendant was armed with a gun (Coleman, 345 Ill. App. 3d at 1033). Moreover, we find that the alleged inconsistencies were minor in nature and fully explored at trial, and that they do not create a reasonable doubt of defendant's guilt. People v. Crespo, 118 Ill. App. 3d 815, 819 (1983).
In reaching this conclusion, we find People v. Fiala, 85 Ill. App. 3d 397 (1980), cited by defendant, distinguishable from the case at bar. In Fiala, the State's case was based entirely on circumstantial evidence, and none of the eyewitnesses to the robbery actually saw a gun in defendant's possession. Fiala, 85 Ill. App. 3d at 400-01. Here, on the other hand, there was direct evidence in the form of Claudina's positive and credible eyewitness testimony that defendant was carrying a firearm and threatened to shoot Duncan. Therefore, Fiala provides no basis for reversal.
Defendant next contends that his convictions for aggravated unlawful restraint must be vacated because they violate the oneact, one-crime doctrine. Initially, we note that defendant waived this issue by failing to raise it at trial or in a posttrial motion (People v. Enoch, 122 Ill. 2d 176, 186 (1988)); however, we may review this ...