Court of Appeals of Illinois, First District, Third Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 11 CR 10027. The Honorable Nicholas Ford, Judge, presiding.
Where defendant was charged with armed robbery with a firearm but was convicted of the uncharged offense of armed robbery with a dangerous weapon other than a firearm after the trial court erred in sua sponte considering the uncharged offense, defendant's conviction was vacated on the ground that her counsel was ineffective in failing to object to the improper finding of guilt on the uncharged offense, and the cause was remanded for resentencing on a simple charge of robbery, a lesser-included offense of the charged offense; furthermore, her conviction for aggravated unlawful restraint was vacated under the one-act, one-crime rule, since both offenses arose from the single act of robbing the victim and aggravated unlawful restraint was the lesser offense.
FOR PLAINTIFF-APPELLEE: Anita Alvarez, State's Attorney, Cook County, Alan Spellberg, Sari London, Carol L. Gaines, Chicago, Illinois.
FOR DEFENDANT-APPELLANT: Michael J. Pelletier, State Appellate Defender, Deborah K. Pugh, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Justices Lavin and Mason concurred in the judgment and opinion.
[¶1] Defendant, Krystal Spencer, fraudulently acquired cellular telephones from T-Mobile and then sold them. During a sale of phones to Jesus Ruiz, he was robbed. The State accused Spencer of setting up the sale with Ruiz and then working with three individuals to stage Ruiz's robbery. The defense claimed Spencer's roommate, who was with her at the time of the robbery, set up the robbery without her knowledge. After a bench trial, Spencer was convicted of armed robbery with a dangerous weapon other than a firearm and aggravated unlawful restraint based on accountability.
[¶2] Spencer contends the trial court violated her right to due process by convicting her of the uncharged offense of armed robbery with " a dangerous weapon other than a firearm" (720 ILCS 5/18-2(a)(1) (West 2010)), because the offense was not a lesser-included offense of the charged offense of armed robbery with a firearm (720 ILCS 5/18-2(a)(2) (West 2010)). We agree. The elements of the two offenses markedly differ. We vacate her conviction, enter judgment on the appropriate lesser-included offense of robbery, and remand for sentencing on that conviction.
[¶3] Additionally, Spencer claims, and the State concedes, that her conviction for aggravated unlawful restraint must be vacated because it was based on the same physical act used to obtain her armed robbery conviction. We vacate Spencer's conviction and sentence for aggravated unlawful restraint, the lesser offense, as a violation of the one-act, one-crime rule.
[¶5] The State charged Spencer by information with armed robbery while armed with a firearm and aggravated unlawful restraint. Under section 18-2(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/18-2(a)(2) (West 2010)), the information alleged Spencer, based on an accountability theory, knowingly took property--cash, wallet, credit cards and cell phone--from Ruiz " by the use of force or by threatening the imminent use of force and she carried on or about her person or was otherwise armed with a firearm."
[¶6] At trial, Jesus Ruiz testified he bought and sold electronics, including cellular telephones, as a side business. He often answered advertisements on Craig's List. Ruiz contacted the sellers by phone or text message, agreed on a price, and then would meet to complete the transaction. On April 4, 2011, Ruiz went to a parking lot on West Roosevelt to meet Spencer and purchase cell phones from her. Ruiz testified that earlier that day, Spencer text messaged him that she had phones she was willing to sell. The two agreed on a price and decided to meet. Ruiz arrived at the agreed location with his girlfriend, Veronica Delgado, at 12:30 p.m. He text messaged Spencer he was there. When Spencer arrived around 1:15 p.m., she approached Ruiz's car. He did not recall meeting Spencer before that day but testified he meets a lot of people in his business.
[¶7] Ruiz testified Spencer held a bag with some boxes in it and that when he moved toward her to look at the phones, she said she had more in her car. She pointed to a blue Oldsmobile, which was parked about two lanes away. Spencer told Ruiz, " let's go to my car." He walked over with her. A female was in the driver's seat of the Oldsmobile. Ruiz entered the front passenger seat of the car and asked where the other phones were. When he sat down, he noticed the driver had a bat and a wooden stick with her.
Ruiz left the car door open " just in case." Spencer came back from the trunk area and got in the backseat, behind the driver. Ruiz looked at Spencer to see what phones she had.
[¶8] While looking at Spencer, Ruiz felt someone grab him from outside the passenger side of the car. The person grabbed Ruiz with one hand and pointed a gun at his chest. Ruiz testified he saw two black males. Ruiz testified the gun was pointed at his chest and he could feel it because it was heavy. Ruiz described the gun as " hard like metal." He testified he could see the chamber and the wooden handle. Ruiz described the gun as a seven-inch-long revolver. With the gun at Ruiz's chest, the men told him to give them " everything he had." They took his cash and his wallet with his credit cards. The woman in the driver's seat took his cell phone. The men yelled at him to get out of the car, which he did. Spencer remained in the backseat and said nothing as the men got into the car and drove away with Ruiz's belongings.
[¶9] Ruiz returned to his car and called 911. Ruiz testified the entire incident lasted five minutes. He identified Spencer from a photographic array and in a lineup.
[¶10] During cross-examination, Ruiz said he exchanged text messages with Spencer 15 to 20 times while they were setting up the April 4 sale. Ruiz then reviewed telephone records, which showed he received calls from Spencer's phone on Christmas Day in 2010. Ruiz could not recall the purpose of those calls. The phone records showed Ruiz and Spencer exchanged a total of 86 text messages between December 24, 2010, and April 4, 2011. Ruiz denied that he met Spencer 30 or 35 times to buy phones from her. He testified that he bought phones from 200 different people during the two-year period. He did not know if the cell phones Spencer sold him were stolen. She told him she obtained them from her account.
[¶11] Veronica Delgado testified consistently with Ruiz's version of what happened. Delgado watched as Ruiz went with Spencer to the Oldsmobile. Delgado saw two black men walking quickly toward Spencer's car at the same time. Delgado testified she looked at Spencer, who was " kind of like shaking her head," like she was saying " no" and that is when the two men stopped approaching. Delgado then lost sight of Spencer and Ruiz. When Ruiz returned five minutes later, he was pale and nervous. When she asked him ...