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People v. Cole

Court of Appeals of Illinois, Second District

June 29, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MICHAEL T. COLE, Defendant-Appellant.

         Appeal from the Circuit Court of Kane County. No. 14-CF-29 Honorable James C. Hallock, Judge, Presiding.

          SCHOSTOK JUSTICE delivered the judgment of the court, with opinion. Justices Zenoff and Birkett concurred in the judgment and opinion.

          OPINION

          SCHOSTOK JUSTICE

         ¶ 1 Defendant, Michael T. Cole, was found guilty of one count of child abduction by a noncustodial parent (720 ILCS 5/10-5(b)(3) (West 2014)). He argues that the State failed to present sufficient evidence that he took the child without the mother's consent. We agree, and thus we reverse his conviction.

         ¶ 2 I. BACKGROUND

         ¶ 3 Defendant was indicted on the count of child abduction of which he was ultimately convicted. The indictment charged that defendant, whose paternity of D.C. was legally established, but who lacked legally established custodial rights, intentionally removed D.C. without the consent of Evonne Bishop, D.C.'s mother.

         ¶ 4 Defendant had a bench trial. During its opening statement, the State said that the evidence would show that defendant did not have Bishop's permission to take D.C. anywhere. Further, "immediately" after defendant left with D.C., Bishop tried to call defendant on his cell phone, "but the phone was going straight to voicemail so she couldn't reach defendant on the phone, [so she] tried making a few calls to family members." When "nothing *** pann[ed] out, " she called the police.

         ¶ 5 Bishop was the State's first and principal witness. Her testimony was not what the State told the court to expect. Critically, she said that she had given defendant permission to take D.C. to breakfast the morning of the incident. Further, she denied making any attempt to contact defendant after he left with D.C.

         ¶ 6 Bishop testified that she and defendant had been in an on-and-off dating relationship for about 20 years. D.C. was born on July 6, 2012; defendant had signed an Illinois voluntary acknowledgment of paternity and was listed as D.C.'s father on the certificate of live birth. Bishop also had three children with her former husband. Defendant had lived on-and-off with Bishop for four years; when she "had problems with him, " she would ask him to leave. Other than the acknowledgment of paternity, all of the agreements that she and defendant had about D.C. were informal.

         ¶ 7 In January 2014, Bishop had asked defendant to leave the house and to get counseling, but he was visiting daily. On January 7, defendant came over in the evening to visit D.C. Bishop would not permit him to stay the night, but she agreed that he could come over in the morning to take D.C. to breakfast. To her surprise, defendant arrived at her front door at about 3:30 a.m. The State asked, "Had you called and invited him to come over at that hour of the morning?" She responded, "He was supposed to come over that morning, but I didn't anticipate it to be 3:30 in the morning." She opened the door to him; he came in, walked to D.C.'s bedroom, and took D.C. from his bed. D.C., then about a year and a half old, shared a bedroom with his older half-sister. He was asleep in a twin bed, wearing one-piece pajamas with feet. Defendant picked him up while he slept and carried him out of the house. The only thing that defendant said while he was in the house was that "it didn't have to be this way." Defendant carried D.C. to his truck, which was parked in front of Bishop's house. Bishop thought that defendant had not put D.C. in a car seat. The State asked, "Did the defendant have your permission to be taking [D.C.] anywhere?" Bishop responded, "Not at that point in time." Defendant did not say anything about where he was taking D.C. or when he would return him. Bishop testified that she had not said anything to defendant; she explained that things had happened too fast, but she did not testify to having felt any fear.

         ¶ 8 When defendant left, Bishop did not try to contact defendant but did call the South Elgin police. A few hours later, defendant called. Bishop told him to bring D.C. home, which he did. However, defendant had also called once while Bishop was speaking with the police, a call that she did not answer. (Bishop later explained that the phone was in another room.) The call in which Bishop asked defendant to bring D.C. home came about 10 minutes after the police had left. Defendant's two calls were about 20 minutes apart and came after defendant had been gone with D.C. for "a few hours." The State asked Bishop how she felt after the second call: "Did you even know if they were gonna come back?" Bishop said that she was reassured: "I trusted that he was gonna bring him home after he called." The State concluded its direct examination shortly after Bishop answered.

         ¶ 9 Near the start of cross-examination of Bishop, defense counsel questioned her about the agreement she had with defendant that he and D.C. could go to breakfast:

"Q. [Defense counsel:] As [defendant] was visiting, arrangements were made at that time that he would *** come and get [D.C.] the next day to take him to breakfast or to take him out; correct?
A. [Bishop:] Correct.
Q. And there was some other conversation and he left; correct?
A. Yes.
Q. And he wanted to stay the night. He wanted to spend the night there with you and [D.C.] and take [D.C.] in the morning; correct?
A. He did, yes.
Q. So the only surprise in relation to your surprise when he came there was there was an agreement that he have [D.C.] the next day; correct?
A. Correct.
Q. And it was going to be for breakfast; correct?
A. Yes.
Q. It was just that he came there at approximately sometime after 3:00 in the morning; correct?
A. Yes."

         ¶ 10 Defense counsel also confirmed that Bishop had not objected to defendant's removal of D.C.:

"Q. [Defense counsel:] He removed [D.C.], and you didn't say ...

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