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People v. James

Court of Appeals of Illinois, First District, Fourth Division

December 21, 2017

NED JAMES, Defendant-Appellant.

         Appeal 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.


          ELLIS, JUSTICE

         ¶ 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 assaulted A.W.

         ¶ 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.

         ¶ 5 FACTS

         ¶ 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 Isaac Andrews.

         ¶ 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 the kitchen.

         ¶ 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 injuries.

         ¶ 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 codefendants were.

         ¶ 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 four codefendants.

         ¶ 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.

         ¶ 38 ANALYSIS

         ¶ 39 I

         ¶ 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 common-design theory.

         ¶ 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 accountability.

         ¶ 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 the occupants.

         ¶ 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) (West 2010).

         ¶ 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, ¶ 81.

         ¶ 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 ...

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