People v. Burgess

40 N.E.3d 284

PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Herbert BURGESS, Defendant–Appellant.

No. 1–13–0657.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 14, 2015.

Michael J. Pelletier, Alan D. Goldberg, and James J. Morrissey, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Michelle Katz, and Christine Cook, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice GORDON delivered the judgment of the court, with opinion.

¶ 1 After a jury trial, defendant Herbert Burgess was found guilty of aggravated criminal sexual assault, criminal sexual assault, and unlawful restraint. 720 ILCS 5/11–1.30(a)(4), 11–1.20(a)(4), 10–3 (West 2010). After hearing arguments in mitigation and aggravation, defendant was sentenced to 24 years with the Illinois Department of Corrections (IDOC) for aggravated criminal sexual assault, 15 years for criminal sexual assault, and 3 years for unlawful restraint. All sentences were to run concurrently.

¶ 2 On this direct appeal, defendant claims that: (1) he was denied the ability to present a complete defense; (2) the trial court's prejudice denied him a fair trial; (3) prosecutorial misconduct denied him a fair trial; (4) the trial court erred in allowing the State to rehabilitate witnesses with prior consistent statements; (5) the trial court considered improper aggravating factors during sentencing; (6) defendant's aggravated criminal sexual assault conviction was the result of a double enhancement; and (7) the trial court erred in not vacating the conviction for criminal sexual assault, as it resulted from the same act as the conviction for aggravated criminal sexual assault.

¶ 3 For the following reasons, we find convincing only defendant's seventh claim, that the aggravated criminal sexual assault and criminal sexual assault resulted from the same act, and therefore vacate the conviction for criminal sexual assault. We affirm, and correct the mittimus to reflect only convictions for aggravated criminal sexual assault and unlawful restraint.

¶ 4 BACKGROUND

¶ 5 We provide a detailed version of the testimony in full below, but in sum, the State's evidence established that on August 8, 2011, the victim, age 15, hereinafter referred to as “the minor,” was a male summer employee working for defendant's employer. Defendant worked for this company as a human resources director. Defendant was driving the minor home when they stopped at defendant's apartment. The minor tried to leave the apartment and defendant slammed the door and locked it, preventing him from leaving. Defendant then sexually assaulted the minor and ejaculated onto the minor's shirt. A few days later, defendant allegedly sexually assaulted the minor again, this time at defendant's workplace, which is located in Lake County. This alleged assault is the subject of a separate criminal case in Lake County. The minor told his parents about the sexual assaults and defendant was ultimately arrested and charged. During trial, defendant maintained that the minor's father had stolen a T-shirt, which defendant had previously masturbated into, and then coerced the minor into bringing false claims in order to extort defendant and defendant's employer. The minor's family had made a monetary demand to the company that defendant worked for in response to the alleged assault that took place at the company, which was settled out of court.

¶ 6 Defendant cites over 100 interactions that he claims show prosecutorial misconduct, comments from the trial court showing bias, and other judicial errors. It would be overly burdensome to list all of these in full, but we provide examples of the general type of interactions to which defendant objects in our analysis.¹ To preserve anonymity, we refer to the individual, whom defendant allegedly sexually assaulted in this case, only as “the minor.” The minor's relatives are referred to by their familial connection to the minor, such as “the father” or “the uncle.” This is done because the initials of the family members could be used to identify the victim, if viewed by someone familiar with the family.

¶ 7 I. Pretrial Motions

¶ 8 A. State's Motion to Use Proof of Other Crimes

¶ 9 On September 4, 2012, the State filed a motion to use proof of other crimes as evidence pursuant to section 115–7.3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115–7.3 (West 2010) ). At the hearing on September 20, 2012, the court heard the State's motion. Through the motion, the State sought to introduce evidence that defendant had previously inappropriately touched the minor, made sexually suggestive remarks to the minor, sexually assaulted the minor (for which a Lake County criminal case was ongoing,) and sexually assaulted another underaged individual, M.M. Defense counsel objected, arguing that the incident alleged by M.M. was factually different from the case at bar. Defense counsel also argued that the minor's father had conspired against defendant to frame him for sexual assault, and, therefore, the previous alleged inappropriate remarks and touches were inadmissible. Finally, defense counsel argued that introduction of this evidence would be prejudicial against defendant.

¶ 10 The trial court granted the State's motion in part and denied it in part. The trial court found that, for the evidence involving incidents involving the minor, the proximity in time and degree of factual similarity satisfied section 115–7.3 of the Code of Criminal Procedure (725 ILCS 5/115–7.3 (West 2010) ). For this same evidence, the trial court also stated that it had weighed the probative value of the evidence against any undue prejudice it may cause defendant. Therefore, the trial court found that the State could introduce evidence from the sexual assault that defendant was charged with committing against the same minor in Lake County. However, using the same analysis, the trial court barred the State from introducing evidence involving the alleged sexual assault by defendant against M.M.

¶ 11 B. State's Motion In Limine

¶ 12 On December 10, 2012, the State filed a motion in limine, seeking to bar defense counsel from introducing during voir dire, trial, and in opening and closing statements, any hearsay evidence that defense counsel might try to elicit through the testimony of the minor's uncle. In the motion, the State claimed that the uncle would allegedly present testimony that: (1) the minor received a T-shirt stained with defendant's ejaculate from his father's girlfriend's brother; (2) the minor's father had told the minor to “act gay” around defendant; (3) the minor's father had told the minor, while driving him to the hospital, to place the minor's finger in the minor's own anus; (4) the minor's father had blackmailed defendant at a previous time by coaxing defendant into inebriation and taking nude photographs of defendant with an unnamed individual; (5) the minor's father had blackmailed defendant at some other unidentified time for an unidentified reason; (6) the minor's father had threatened the minor's uncle's life; and (7) the minor's father had a past history of fraud and possession of firearms. In the motion, the State claimed these allegations from the minor's uncle were uncorroborated hearsay.

¶ 13 On the same day, the trial court held a hearing on this motion. In regards to the T-shirt, the trial court asked defense counsel, “you are maintaining that [the uncle] had a conversation with [the father] in which [the father] said that [the T-shirt] came from an encounter with an unidentified brother of the father's girlfriend?” Defense counsel replied affirmatively, and the trial court stated that this testimony sounded like “double, triple hearsay.” However, the trial court held that it would allow defense counsel to submit an offer of proof. In regards to the uncle testifying that the father had a history of fraudulent behavior, the trial court held that it would allow the reputation testimony, assuming a proper foundation was laid at trial. Defense counsel was unable to recall the specific details of how the uncle learned the information included in the other allegations, and the trial court gave defense counsel leave to “get some more specifics” regarding the allegations.

¶ 14 On December 11, 2012, the trial court reconvened to hear arguments on the State's motion in limine. Defense counsel made an offer of proof regarding the testimony that the uncle was prepared to give. The offer of proof listed a number of allegations that the uncle had heard the father discussing the case as a means to frame defendant. The offer of proof never stated that the uncle heard the father pressuring the minor to continue with his allegations, but it does state that “[t]hroughout his stay with his family, [the uncle] observed [the father] berate and yell at [the minor] repeatedly and that in [the uncle's] lay opinion, [the father] plays ‘mind games' with [the minor].” The court stated “[p]resumably the statements of the uncle are being offered by you to impeach the [minor's] father.” However, because no offer of proof was made as to what the father would testify to, the court held that it could not yet rule on whether the uncle would be allowed to rebut it. The court did find that if the father denied having these specific conversations with the uncle, then the uncle's testimony could be allowed to impeach the father as to what the father said, but that this would not be considered substantive evidence.

¶ 15 Defendant also made an offer of proof that the uncle overheard the minor telling the father that the minor did not want to lie anymore. Defense counsel stated that he did want to be able to ask the minor if he had told his father that he did not want to lie anymore. The trial court responded, “* * * if [the minor] is on the stand * * * ask him whether he told his uncle he didn't want to lie anymore, and if he denies it, then...