Court of Appeals of Illinois, First District, Third Division
[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 10 CR 21697. Honorable Kenneth J. Wadas, Judge Presiding.
Defendant's convictions for aggravated kidnapping and two counts of aggravated criminal sexual assault were upheld on appeal, notwithstanding his contentions, inter alia, that the aggravated kidnapping conviction should be reversed because his asportation of the victim was incidental to the criminal sexual assault and not an independent offense, and that the aggravated criminal sexual assault should be reduced to criminal sexual assault where bodily harm was not established beyond a reasonable doubt and the indictment for that offense contained a material variance that prevented him from preparing his defense since the facts in his case supported his conviction for aggravated kidnapping, the offense was not merely incidental, and the State's theory at trial included argument and evidence with respect to bruising as a physical manifestation of the victim's bodily harm.
For Appellant: Michael J. Pelletier, Alan D. Goldberg, Deepa Punjabi, of counsel, Office of the State Appellate Defender, Chicago, IL.
For Appellee: Anita Alvarez, Alan J. Spellberg, Mary Needham, Marci Jacobs, of counsel, Cook County State's Attorney, Chicago, IL.
JUSTICE MASON delivered the judgment of the court, with opinion. Justices Lavin and Hyman concurred in the judgment and opinion.
[¶1] Defendant June Johnson appeals his convictions of one count of aggravated kidnapping and two counts of aggravated criminal sexual assault. On appeal, Johnson contends his aggravated kidnapping conviction should be reversed because his asportation of the victim was incidental to the criminal sexual assault and not an independent offense. Johnson similarly claims that his aggravated criminal sexual assault conviction should be reduced to criminal sexual assault because the aggravating factor of bodily harm was not proved beyond a reasonable doubt where the victim did not testify that she felt any physical pain from Johnson choking her and no evidence was presented that Johnson caused bruises on her arms. Johnson also claims the indictment charging him with the offense of aggravated criminal sexual assault contained a material variance because the bruises on the victim's arms were not included in the indictment as bodily harm, which precluded him from adequately preparing his defense. Finally, Johnson raises numerous trial errors that include: (1) prosecutorial misconduct during rebuttal closing argument where jurors were asked to place themselves in the victim's shoes; (2) erroneous trial court rulings relating to objections made during closing arguments; and (3) ineffective assistance of counsel. Finding no error, we affirm.
[¶3] Johnson's convictions for aggravated kidnapping and aggravated criminal sexual assault arose from the victim J.B.'s allegations that he choked her while moving her from a sidewalk to a vacant lot where he placed his hand between her legs and inside her vagina. J.B. also alleged that Johnson then moved her--again choking her--from the vacant lot to an area between two garages where he sexually assaulted her by forcing her to engage in two separate acts of sexual intercourse. The following relevant testimony was adduced at trial.
[¶4] J.B. testified that in June of 2010 she was 18 years old and 2 1/2 months pregnant. J.B. stayed at times with her cousin at 75th and Eberhart in Chicago and at other times with Mario Perkins, her boyfriend and the father of her baby, who lived at 89th and Normal in Chicago. It would take J.B. approximately 1 1/2 hours to walk between the two houses.
[¶5] On June 12, 2010, around 1 a.m., J.B. left her cousin's house and started walking toward Perkins' house. En route to Perkins' house near 87th and Normal, J.B. walked past a tall black male, whom she identified as Johnson. J.B. continued to walk, but stopped at one point to look back and saw Johnson walking behind her. J.B. let Johnson walk past her. J.B. turned onto Normal and she noticed Johnson behind her again. When she was in the middle of the block, Johnson approached her from behind, started choking her by putting his arm around her neck, told her to be quiet and said he would kill her if she screamed. Johnson's arm around her neck felt " tight" and she had " a little bit" of trouble breathing. Initially, J.B. thought the person who approached her might have been Perkins because he would sometimes grab her from behind by putting his hand around her waist and accuse her of not paying attention.
[¶6] Johnson moved J.B. from the sidewalk to an adjacent vacant lot. A couple of cars drove past and someone walked just inches away from them. Johnson threatened to kill J.B. if she started screaming or made a sound. Johnson forced J.B. down on the ground and she was trying to get him off of her. J.B. was crying, asking Johnson to let her go and told him she was pregnant. J.B. tried to close her legs so Johnson could not touch her, but Johnson told her the longer she kept resisting him, the longer it was going to take. While they were on the ground, Johnson put his hand under her pants, under her underwear and inside her vagina.
[¶7] J.B. and Johnson then got up and while Johnson again choked her with his arm around her neck, he pushed J.B. toward the nearby alley and ultimately took her to an area between two garages off of the alley. According to J.B., this area was not far from the vacant lot " like a couple of feet away, a foot or so somewhere." But photographs admitted into evidence show the distance between the vacant lot and the area between the two garages was greater than J.B.'s estimate. When they got to the area between the two garages, Johnson was still standing behind J.B. with his arm around her neck applying pressure making it " a little bit" difficult to breathe. Johnson proceeded to forcibly bend J.B. over by placing both of his hands on J.B.'s shoulders and then he pulled her pants down, ripped her underwear off and raped her from behind. Johnson then told her to turn around. Johnson lifted J.B.'s leg up, put his hand over her mouth so she could not scream and raped her from the front while facing her. After raping J.B., Johnson ran away. A photograph admitted into evidence showed a pair of bright green polka dot underwear, which J.B. identified as hers, ripped and lying on the ground in between the two garages.
[¶8] The sexual assault occurred approximately one block from Perkins' house and J.B. went there after Johnson ran away. J.B. found Perkins and told him someone raped her describing her assailant as tall, dark skinned and wearing a hoodie. Perkins left to look for J.B.'s assailant, but called the police when he could not find him. An ambulance arrived and transported J.B. to the hospital where medical personnel completed a sexual assault kit. J.B. denied describing her assailant to someone at the hospital as 5 feet 5 inches tall with a caramel complexion and testified that she described him as taller than her, weighing about 170 to 180 pounds and wearing a hoodie. J.B. also denied telling a detective two days after the assault that her assailant was 5 feet 6 inches tall.
[¶9] Several months later in November, a detective showed J.B. photographs of men who were in police custody and asked if she could identify her assailant from the photographs. J.B. could not identify her assailant, but stated that if she saw him again in person, she would be able to identify him. A few days later, J.B. viewed a lineup at the police station and identified Johnson as her assailant.
[¶10] Renee Biddle was the emergency room nurse who completed a sexual assault kit on J.B. J.B. told Biddle a man came from behind and grabbed her. Biddle also testified that J.B. described her assailant as a " black male, 5 foot 5 inches, 170 to 180, red hoodie, blue jeans, caramel complexion, short braids."
[¶11] Dr. Ahmad Shaher was the emergency room physician who examined J.B. after the assault. Dr. Shaher testified that during his general examination of J.B., he looked for potential trauma from head to toe. Dr. Shaher observed finger marks on the upper portion of J.B.'s arms.
Dr. Shaher did not document any trauma to J.B.'s neck.
[¶12] Johnson testified in his defense and admitted that he had sex with J.B. on June 12, but claimed it was consensual. Johnson first met J.B. at the bus terminal located at 95th and the Dan Ryan when he was on his way home from work. Johnson agreed to pay J.B.'s subway fare and they rode the train together. J.B. and Johnson exited at the same stop because he did not want her walking by herself that late at night while pregnant.
[¶13] As they walked together, Johnson had his hand around J.B.'s shoulders and he became more flirtatious and physical by touching her. When they arrived to where Johnson thought J.B. was staying, Johnson asked to go inside, but she refused; instead, they went to the rear of the house and had sex. Johnson grabbed J.B.'s legs lifting her up in the air and they had sex for approximately three to four minutes. Johnson stopped after he heard someone ask, " Who is that out there in the back?" Johnson panicked, put J.B. down, pulled up his clothes and ran because he did not want to get ...