Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County No. 11 CR 2581 (01)
Honorable Nicholas Ford, Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court, with
opinion. Presiding Justice Burke and Justice Gordon concurred
in the judgment and opinion.
1 Defendant Ned James, along with Cortez Moore, Rashawn
Coleman, and Henry Sistrunk, broke into a south-side
apartment around 4 o'clock in the morning on January 17,
2011. The men attacked two male occupants and bound them with
duct tape; forced a female occupant, A.W., to undress at
gunpoint; and herded everyone into the kitchen. While
defendant, Sistrunk, and Moore ransacked the apartment in
search of money or drugs-neither of which they found-Coleman
stood guard over the occupants with a rifle and sexually
2 Defendant and his confederates were charged with home
invasion, armed robbery with a firearm, and aggravated
criminal sexual assault. Sistrunk died while awaiting trial.
The other codefendants were convicted of all charges after
simultaneous but severed trials-defendant and Moore by
separate juries, and Coleman before the bench. Defendant was
sentenced to an aggregate prison term of 90 years.
3 Defendant raises several issues on appeal. Briefly, he
contends that: (1) the evidence was insufficient to prove him
accountable for A.W.'s sexual assault; (2) the
prosecutors committed misconduct during their opening
statements and closing arguments; (3) the trial court erred
in omitting the bracketed language in Illinois Pattern Jury
Instructions, Criminal, No. 3.06-3.07 (4th ed. 2000)
(hereinafter IPI Criminal 4th No. 3.06-3.07) when
instructing the jury; (4) the trial court abused its
sentencing discretion; (5) the statute authorizing his
sentence for home invasion to be served at 85% time upon a
judicial finding of great bodily harm is facially
unconstitutional under Alleyne v. United States, 570
U.S. ___, 133 S.Ct. 2151 (2013), and Apprendi v. New
Jersey, 530 U.S. 466 (2000); (6) the trial court failed
to conduct an adequate preliminary Krankel inquiry;
and (7) his mittimus contains errors.
4 Some of these issues are identical to, and others
significantly overlap with, issues raised by Moore and
Coleman in their own pending appeals. See People v.
Moore, 2017 IL App (1st) 1150208; People v.
Coleman, 2017 IL App (1st) 1143470-U. Here, we resolve
these issues only as they pertain to defendant. For the
reasons we explain below, we hold that defendant is eligible
for day-for-day credit on his home-invasion sentence, and we
correct the mittimus as he has requested. We otherwise affirm
defendant's convictions and sentences.
6 Believing they were robbing a drug house, defendant,
Coleman, Moore, and Sistrunk broke into an apartment on South
Wentworth Avenue in Chicago. The apartment was home to two
couples and a baby: Maritza Morales, Khalil Cromwell Sr., and
their eight-month-old son, Khalil Jr.; as well as A.W. and
7 Morales, Andrews, and A.W. testified for the State, as did
several responding police officers and forensics experts.
None of the codefendants testified or presented any
witnesses. The State's theory was that the codefendants
shared a common design to rob the victims of drugs and money,
and that every act or threat of force by any of
them-including Coleman's sexual assault of A.W.-was an
act in furtherance of that common design. The State thus
proceeded on accountability theories of guilt as to all
charges. The defense theory was that although defendant was
admittedly in the apartment during the offenses-indeed, the
police arrested him there-he did not participate in them;
rather, he was visiting a known drug house when his
codefendants arrived with their own criminal agenda.
8 I. Victims' Testimony
9 Morales, Cromwell, and their baby stayed in the rear
bedroom of the apartment, off the kitchen. Andrews and A.W.
stayed in the front bedroom, off the living room. Morales
testified that she awoke to a loud noise around 3:45 a.m. She
roused Cromwell, who went to the kitchen to see what was
happening. Morales peeked out of the bedroom door and saw
Cromwell on the kitchen floor. Two men in masks were beating
him with their fists and kicking him in the face and back.
10 Morales hid in the bedroom closet with the baby. A man
wearing a "scary Halloween mask" came into the
bedroom and rummaged through the drawers. Defendant's DNA
was found on the mask Morales identified. After the baby made
a noise, the man opened the closet door, pulled Morales and
the baby into the kitchen, and told Morales to sit on the
floor and stare at the wall. She glanced at Cromwell: He was
lying on his stomach, with his hands, feet, and face
duct-taped; and there was blood around him on the floor. The
men brought Andrews and A.W. into the kitchen and ordered
them to get down on the floor. They duct-taped Andrews's
hands, feet, and face. A.W. was naked.
11 Andrews and A.W. also woke up when they heard noise in the
apartment. Andrews got out of bed and cracked open the
bedroom door, where he was confronted by a man dressed all in
black, brandishing a handgun, and wearing a "Halloween
scream" mask. Andrews identified the same mask as
Morales. According to Andrews, the man in the
mask, and two others, who were also
dressed in black, came into the bedroom. A.W. testified that
she saw two men: a taller man wearing a mask; and a shorter,
heavier man, who was not wearing a mask, and whom she
identified as Coleman. One of the men, according to A.W., was
pointing a "long wooden gun" (the exhibits depict
what appears to be a rifle) at Andrews.
12 The men-however many there were-ordered Andrews to get on
the floor and keep his head down. A.W. tried, unsuccessfully,
to hide under the covers. The men ordered her to get out of
bed, take off her clothes, and lie down on the floor with
Andrews. A.W. testified that both of the men she saw-Coleman
and the taller man in the mask-told her to take off her
clothes. A.W. removed her bra and pajama shorts. She
testified that one of the men was pointing a gun at her.
Andrews testified that while A.W. was lying naked on the
floor next to him, the men- Andrews could not be more
specific, but he used the plural "they"-told A.W.
to open her legs and said "fat as[s] pussy" or
something like that.
13 The men asked where the "shit" or
"white" was, and they threatened to drop a barbell
on Andrews's head if he did not tell them. Andrews looked
up, and one of them hit him in the face with a crowbar or
tire iron. While Andrews was being attacked, A.W. was being
taken to the kitchen. A.W. could not remember which of the
men took her to the kitchen, but she testified that it was
only one. Soon after that, Andrews was taken separately to
14 In the kitchen, Andrews and A.W. were told to lie down on
the floor with Cromwell and Morales (who was holding Khalil
Jr.). Andrews was duct-taped in the same fashion as Cromwell,
and A.W. was still naked. The victims saw a total of four
men, three of whom were masked: two of the masks were
"Halloween" or "scream" masks of
different varieties, and the third was a black ski mask.
Morales, Andrews, and A.W. all identified the fourth man,
whose face they said was visible, as Coleman.
15 The men repeatedly threatened to "cut" or
"stab" the victims if they did not say where the
money and the "stuff" or "white" was.
Everyone understood the men to be asking for drugs, which the
victims denied having. There was no evidence that any drugs,
paraphernalia, or large sums of cash were ever found in the
apartment. The men took the victims' wallets, phones, and
video games instead.
16 While the others ransacked the apartment, Coleman stood
guard over the victims in the kitchen with a rifle. A.W.
testified that Coleman, whose voice she recognized, hovered
over her while she was lying on her stomach. He smacked or
grabbed her buttocks, and put his fingers into her vagina.
A.W. testified that no one else touched her, but she
acknowledged that, in her handwritten statement, she had
previously said that "the biggest man"-who, she
said, was not Coleman-had grabbed her buttocks before Coleman
walked over and digitally penetrated her several times.
17 Andrews testified that he saw one of the men bend over
A.W. in the kitchen, but he could not see which man it was or
what he was doing. He heard the man tell A.W. to spread her
legs and say, "[t]hat's a big old fat pussy, "
or some such "little vulgar words towards her
pussy." Andrews acknowledged that he did not mention
this in his statement to the police.
18 Morales, who remained in the kitchen until the police
arrived, did not testify that anyone touched A.W. or made
vulgar comments about her.
19 Neighbors had called the police, who responded within 20
or 25 minutes of the intruders' initial entry. A.W. and
Morales (along with Khalil Jr.) hid in a utility closet when
they heard a police radio. Andrews testified that when the
officers entered, Coleman was still in the kitchen; two of
the men were in the front of the apartment, near his bedroom;
and the fourth man, whom Andrews identified as defendant, ran
into the bedroom adjoining the kitchen and pretended that he
lived in the apartment.
20 II. Police Officers' Testimony
21 The first-responders were Officers Buckhalter and Randall
(who testified), and Sergeant Cruz (who did not). Upon
entering the apartment, Randall and Cruz went to the kitchen;
Buckhalter went toward Andrews's bedroom. Officer Randall
testified that when he entered the kitchen, he saw a man in a
mask holding a handgun and kicking one of the male victims.
At Randall's command, the man-Coleman-took off the mask.
He put the gun inside the mask, tossed those items into the
adjoining bedroom, and was detained in the kitchen.
22 Randall ordered another man to come out of the adjoining
bedroom. Defendant walked into the kitchen and was detained
there. Cromwell's ring and identification card were later
recovered from defendant's pocket.
23 Morales and A.W. emerged from the utility closet. A.W.
hugged Officer Randall and said, "God is good."
24 Meanwhile, Officer Buckhalter had approached the front
bedroom. There, she saw two men. One opened the bedroom door
and said, "help, we are being robbed." The other
was lurking in the dark. She told the men to come out, but
they slammed the door. Buckhalter did not think it was safe
to enter the bedroom until reinforcements arrived. When they
did, the men were gone, and the window-the only other egress
in the bedroom-was open.
25 Outside, several officers had pulled up along Wentworth
Avenue and in the rear alley. The building was surrounded by
vacant lots, and the officers saw only two men in the
vicinity: Sistrunk and Moore. At first, Sistrunk was seen
hanging from a window; he was later found crawling in a
vacant lot, 20 or 30 feet from the building, with severe leg
26 Officers Powell, Polonio, and Calhoun were among those who
chased and apprehended Moore. They testified, in sum, that
Moore came running around the building onto Wentworth Avenue,
headed north, turned into an empty lot, and slipped on a
patch of ice. Officer Calhoun testified that Moore tossed a
plastic bag while he was running; inside the bag were some
number of smaller plastic bags. Calhoun's partner,
Griggs, handcuffed Moore after he slipped and patted him
down. Griggs removed a "scream" mask, a neck wrap,
and A.W.'s wallet from Moore's front pocket. Morales,
Andrews, and A.W. identified that mask as having been worn by
one of the intruders.
27 III. Forensic Evidence
28 Several items recovered from the apartment were examined
for forensic evidence by the Illinois State Police.
29 A rubber mask was recovered from the bedroom adjoining the
kitchen. It contained two DNA profiles. The major profile
matched defendant, and the other codefendants were excluded
from the minor profile.
30 A ski mask was recovered from the same bedroom. It
contained a DNA mixture from at least three people. Coleman
could not be excluded from the major profile, but the other
31 The mask recovered from Moore's pocket contained a
mixture of three DNA profiles, from which all four
codefendants were excluded. Moore's DNA was found on the
black neck fleece that was also recovered from his pocket.
32 Officer Buckhalter found a rifle just outside the front
bedroom. A handgun was recovered from the floor of the rear
bedroom, right next to the black ski mask. A knife with
reddish stains was found on the kitchen floor. No latent
fingerprints suitable for comparison were found on any of
these items. DNA profiles found on the knife excluded all
33 DNA recovered from the edge of a roll of duct tape
excluded all four codefendants but matched Cromwell. The DNA
recovered from the crow bar or tire iron was insufficient to
make a comparison.
34 IV. Jury Deliberations and Verdicts
35 During deliberations, the jury sent three notes to the
trial judge. The first requested transcripts of A.W.'s
testimony. The second and third asked, "What happens if
we are hung on one count/verdict, " and "If we are
hung on the aggravated sex assault charge, can he be tried
again on that charge?" Those notes were sent during
closing arguments in codefendant Moore's case, and
defendant's jury returned its verdicts before the trial
judge could answer them.
36 The jury found defendant guilty on five counts of home
invasion (one count against each of the apartment's
occupants), two counts of armed robbery (against Cromwell and
A.W.), and one count of aggravated criminal sexual assault.
37 The trial court sentenced defendant to an aggregate term
of 90 years in prison: an extended term of 35 years for home
invasion, plus a 15-year firearm enhancement; a concurrent
term of 21 years for armed robbery; and a consecutive term of
25 years for aggravated criminal sexual assault, plus a
15-year firearm enhancement. The trial judge did not make any
findings of great bodily harm to the victims, but nonetheless ordered the entire aggregate
term to be served at "85 percent" time.
40 Defendant first challenges the sufficiency of the evidence
to sustain his conviction for aggravated criminal sexual
assault. Since A.W. identified Coleman as the man who
inserted his fingers into her vagina, the only question is
whether defendant was accountable for Coleman's offense.
41 In reviewing a conviction based on a theory of
accountability, we ask whether a rational trier of fact,
viewing the evidence in the light most favorable to the
State, could have found the essential elements of the crime
beyond a reasonable doubt. People v. Fernandez, 2014
IL 115527, ¶ 13; see Jackson v. Virginia, 443
U.S. 307, 319 (1979). The trier of fact's findings on
witness credibility, and the reasonable inferences to be
drawn from the evidence-including inferences about a
defendant's intent-are entitled to significant deference,
but they are not conclusive. People v. Ross, 229
Ill.2d 255, 272 (2008); see People v. Perez, 189
Ill.2d 254, 266-67 (2000); People v. Calderon, 393
Ill.App.3d 1, 7-11 (1st Dist. 2009).
42 A person commits aggravated criminal sexual assault when
he knowingly commits an act of sexual penetration by the use
or threat of force, while armed with a firearm. 720 ILCS
5/12-14(a)(8) (West 2010).
43 A person is accountable for another's criminal conduct
when, "either before or during the commission of an
offense, and with the intent to promote or facilitate that
commission, he or she solicits, aids, abets, agrees, or
attempts to aid that other person in the planning or
commission of the offense." 720 ILCS 5/5-2(c) (West
2010). To prove that the defendant intended to promote or
facilitate the crime, the State must prove beyond a
reasonable doubt either: (1) that the defendant shared the
principal's criminal intent; or (2) that there was a
common criminal design. Perez, 189 Ill.2d at 266.
44 At trial and on appeal, the State has relied on a
common-design theory of accountability. Any party to a
"common design or agreement" to commit an offense
is accountable for any other party's "acts in the
furtherance of" the design or agreement to commit that
offense. 720 ILCS 5/5-2(c) (West 2010); Fernandez,
2014 IL 115527, ¶ 13.
45 The State argues that Coleman's sexual assault of A.W.
was an act in furtherance of a common design to rob the
victims, because it was just one among many acts of violence
meant to coerce them into giving up their (supposed) money
and drugs. If the State's theory is right, then all of
Coleman's confederates in that undisputed plan are
necessarily accountable for the sexual assault, too.
46 Defendant concedes that he shared a common design with his
codefendants to rob the victims, but he contends that the
sexual assault was not part of, or an act in furtherance of,
that design. Thus, he argues, he cannot be held accountable
for Coleman's "independent" offense on a
47 For the reasons we will discuss below, we agree with
defendant's argument but hold that defendant was properly
convicted of aggravated criminal sexual assault based on a
different theory of accountability than that argued by the
State on appeal. While we agree with defendant that the
evidence did not show that the sexual assault was in
furtherance of the common design to rob the
occupants, the evidence did show that the sexual assault
was undertaken as part of a second, independent common
criminal design to sexually assault A.W., in which
defendant actively participated. Defendant was thus properly
convicted of aggravated criminal sexual assault based on
48 First, we agree with defendant that the evidence, taken in
the light most favorable to the State, did not show that the
sexual violence here was part of a common criminal design to
rob the victims. While it was undoubtedly a criminal act, the
evidence does not show that it was undertaken to further the
original plan to rob the occupants.
49 No doubt, defendant and his accomplices used various
methods of coercion to induce the occupants of the house to
tell them where the (supposed) money and drugs were located,
such as repeated threats to stab everyone or to drop a
barbell on Andrews's head. And sexual violence, like any
other form of violence, can certainly be used for coercive
purposes. But there was no evidence that the sexual assault
here was used for coercive purposes. The sexual assault was
accompanied by lewd comments, but not by requests for
information about the whereabouts of drugs or money or
threats or warnings associated with the goals of the robbery.
50 And while we also acknowledge that stripping someone of
their clothes could be used to further the commission of a
robbery, to render a victim defenseless or less likely to
flee, there was no evidence suggesting that the men disrobed
A.W. for that reason. The men did not disrobe anyone else,
nor did they sexually assault or even threaten to sexually
assault anyone else.
51 There was simply no evidence that this sexual assault was
part of any original plan to commit the robbery, or that it
did anything to further the robbery. The evidence showed,
instead, that the men's entire course of conduct with
A.W.-from stripping her, forcing her to spread her legs and
ogling her and making lewd comments about her genitalia, to
Coleman's sexual penetration-was an act of sexual
violence and degradation unrelated to any initial plan to rob
52 But that does not mean that defendant can wash his hands
of this sexual assault. It only means that the sexual
violence was not part of the original criminal
design to commit the robbery. Even if it had nothing to do
with the robbery, the sexual violence was an independent
crime, and defendant can be just as accountable for that
crime as he can for any other offense, provided the elements
of the accountability statute are met. And here, we find
sufficient evidence for the jury to conclude that defendant
shared a separate common criminal design with Coleman to
sexually assault A.W. To paraphrase the accountability
statute, "before *** the commission of" the sexual
assault, "and with the intent to promote or facilitate
that commission, " defendant "aid[ed]" or
"abet[ted]" Coleman "in the planning or
commission of" that sexual assault. 720 ILCS 5/5-2(c)
53 Taken in the light most favorable to the State, the
evidence showed that defendant played a role in the
commission of the sexual assault. Coleman did not act alone
in sexually assaulting A.W. It is reasonable to infer that
defendant was one of the men who barged into A.W.'s
bedroom. Andrews saw a total of three men in the room, though
A.W. only recalled two. Andrews testified that one of those
men wore a "Halloween scream" mask. Later, when the
police arrived, the man in that mask ran into the other
bedroom, adjoining the kitchen. When Officer Randall ordered
the man to come out, defendant emerged, alone; and the mask,
which was recovered from the same room, had his DNA on it.
Thus, it is reasonable to infer that defendant was the man in
that mask. As for the others, A.W. identified the unmasked
Coleman as one of them; and for reasons we need not delve
into here, it is reasonable to infer that Moore was the
third. See Moore, 2017 IL App (1st) 150208, ¶
54 In the bedroom, the men found A.W. hiding under the
covers, wearing only a bra and pajama shorts. Two of the men
brandished guns: the man who confronted Andrews at the
bedroom door had a handgun, and someone else had a rifle.
Some of the men dragged A.W. out of bed. She noticed one of
the men pointing ...