Defendant’s conviction for child abduction was reversed and the cause was remanded for a new trial on the ground that the trial court responded to a question from the deliberating jury by improperly giving an instruction on the uncharged offense of distributing harmful materials to a minor, since the evidence was not overwhelming, the instruction presented a new theory that defendant showed the minor pornography in order to lure him into his car, and, absent the instruction, the jury would not have known that it could make the inference that defendant’s attempt to lure the minor into his vehicle was for an unlawful purpose.
Appeal from the Circuit Court of McLean County, No. 10-CF-1221; the Hon. James E. Souk, Judge, presiding.
Michael J. Pelletier, Karen Munoz, and Amber Corrigan, all of State Appeal Defender's Office, of Springfield, for appellant.
William A. Yoder, State's Attorney, of Bloomington (Patrick Delfino, Robert J. Biderman, and John E. Teefey, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Panel JUSTICE POPE delivered the judgment of the court, with opinion. Justices Appleton and Turner concurred in the judgment and opinion.
¶ 1 Following a June 2011 trial, a jury convicted defendant, Michael Williams, of one count of child abduction (720 ILCS 5/10-5(b)(10) (West 2010)). In July 2011, defendant filed a motion for judgment of acquittal or, in the alternative, motion for a new trial, asserting the trial court erred in giving its own jury instruction in response to a question posed by the jury during deliberations. In August 2011, the court denied defendant's motion and sentenced him to an extended term of five years' imprisonment. Defendant filed a motion to reconsider sentence, which the trial court denied.
¶ 2 Defendant appeals, arguing the trial court committed reversible error by giving its own instruction to the jury after deliberations began. We agree and reverse and remand with directions.
¶ 3 I. BACKGROUND
¶ 4 In December 2010, the State charged defendant by information with two counts of child abduction (720 ILCS 5/10-5(b)(10) (West 2010)) for attempting to lure a child under the age of 16 into his vehicle for an unlawful purpose on two separate occasions. Count I alleged defendant attempted to lure T.F. into his vehicle for an unlawful purpose on or about December 15, 2010, and count II alleged defendant attempted to lure K.S. into his vehicle for an unlawful purpose on or about December 18, 2010.
¶ 5 A. Trial Testimony
¶ 6 At defendant's June 2011 jury trial, T.F., who was 14 years old at the time of the incident, testified he was walking to school on December 15, 2010, when a man in a white, four-door car pulled up next to him and called him over to the vehicle. T.F. approached the vehicle on the passenger side, at which time the man showed him a pair of shoes ("Jordans") and asked him if he wanted to buy them. As T.F. was speaking to the man, out of the corner of his eye he noticed pornography playing on a laptop in the vehicle, which T.F. described as a female performing oral sex on a male. The laptop was "at an angle" and "[s]lanted toward the passenger's window." T.F. told the man he did not have any money to buy the shoes and the man said, "cool" and drove off; however the man turned around and pulled back up alongside T.F. and asked him if he wanted a ride. T.F. told him "no" and kept walking. T.F. was unable to identify defendant as the man in the white car, but he did identify the shoes seized from defendant's residence as those the man asked him to buy and recalled the man was wearing a hat. T.F. further testified at the time of the incident, rumors about a "guy" in a white car driving around the area were going around his school.
¶ 7 T.F.'s mother, Bernice, testified she did not give defendant or anyone else permission to give T.F. a ride.
¶ 8 K.S., who was also 14 years old at the time of the incident, testified he was riding his bicycle around 10:30 or 11 p.m. on December 18, 2010, when he noticed a white four-door Buick following him. K.S. started riding faster and the car "zoomed off" but then returned shortly after and pulled up next to him at which time K.S. was on the driver's side. K.S. stated the man in the car asked him if he needed a ride home and told him he could "just throw the bike in the trunk." K.S. was unable to see the driver's face due to a glare from a computer screen. K.S. testified the computer was "sitting like in the middle" facing the driver and had a "porno on it." When asked to describe specifically what he saw on the computer screen, K.S. responded "a girl having sex in a bed." K.S. declined a ride and "rode off fast." K.S. further testified he saw the same car the next school day.
¶ 9 K.S.'s grandmother, Sandra, testified K.S. lived with her in December 2010 and she did not give defendant or anyone else permission to give K.S. a ride.
¶ 10 Bloomington police detective Michael Burns testified in December 2010 he had received information regarding attempts by an individual to get kids into a car. After receiving this information, Burns interviewed the individuals making the allegations, including T.F. and K.S. K.S. told him he saw the white car, which had some damage "behind the left headlight, " approach T.F. The information received from these interviews and the resulting investigation ultimately led Burns to defendant.
¶ 11 Burns interviewed defendant regarding his involvement in the allegations. This interview was audio- and video-recorded. An edited version of the interview was played and ...