People v. Charles

2018 IL App (1st) 153625

138 N.E.3d 785

435 Ill.Dec. 171

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Jamaal CHARLES, Defendant-Appellant.

No. 1-15-3625

Appellate Court of Illinois, First District, Second Division.

December 26, 2018

Michael J. Pelletier, Patricia Mysza, and Rebecca Cohen, of State Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Smreti Didwania, Assistant State’s Attorneys, of counsel), for the People.

PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, defendant Jamaal Charles was convicted of aggravated criminal sexual assault with a firearm and aggravated kidnapping with a firearm and sentenced to two consecutive 22-year prison terms. On appeal, he contends that the evidence was insufficient to establish that he was armed with a firearm during the offenses. He also maintains that the court abused its discretion in allowing the State to introduce, as impeachment, his prior conviction for aggravated unlawful use of a weapon (AUUW), and claims that counsel was ineffective for not properly challenging the admission of that prior conviction. Lastly, he contends that his sentences are excessive. We disagree that the evidence was insufficient to support the jury's finding that Charles was armed with a firearm and find that admission of respondent's AUUW conviction, while erroneous, was harmless beyond a reasonable doubt. We further reject the challenge to the length of Charles's sentence. Accordingly, we affirm.

¶ 2 Charles was charged with aggravated criminal sexual assault for committing an act of sexual penetration upon R.G. by force or threat of force. One count alleged that Charles was armed with a firearm, and another alleged that he threatened or endangered R.G.'s life by pointing a gun at her. Charles was also charged with aggravated kidnapping for allegedly carrying R.G. from one place to another by force or threat of force with the intent to secretly confine her against her will. One count alleged that he was armed with a firearm, and another alleged that he kidnapped R.G. while committing criminal sexual abuse against her.

¶ 3 At about 4 a.m. on August 10, 2010, R.G. left her sister's home at 2815 East 81st Street in Chicago to go to work at a retail store on north Michigan Avenue, where she had to arrive before 6 a.m. As she waited alone for a bus, with nobody else on the street, a car passed her, turned around, and stopped in front of her.

Charles, the driver and sole occupant, tried to get her attention but she ignored him. He then pointed a black gun at her and ordered her into his car. Charles pointed the gun at her from "[o]nly a few feet" away and she saw "[t]he barrel of the gun," where "bullets" come out. She entered the car "[b]ecause I was scared * * * for my life." When she did so, the gun was in Charles's lap. He put the gun in the back seat behind the driver's seat, not in a case or holster, where it was "[n]ot far at all" from him and "[i]n arm's reach." As he drove, he said he "wasn't going to hurt" her. He stopped the car on a deserted residential street and ordered her to remove her pants and lift her shirt. "Because he had a gun," R.G. did exactly as he said. He placed his mouth and tongue on her breasts, and then on and into her vagina, over several minutes. She obeyed him "[b]ecause I was scared for my life." Afterwards, she put her pants on and Charles drove the car away. Charles tried to start a conversation with R.G., but she said that she needed to be at work so he should let her go. Charles offered to take her to work, but she said that dropping her at the Red Line would suffice as they were near a station. As they went towards the station, Charles gave his name as Marlon and offered his telephone number. R.G. entered it into her telephone because it could be evidence. Charles asked her to call him at that number, and R.G. did.

¶ 4 When they reached the station, R.G. went inside "as fast as I could." Realizing she did not have her transit card, she bought one so she could pass through the turnstile into the station. She called her sister, "crying and just really shooken up." As she was on the telephone, Charles entered the station and told her that she had left her transit card in his car. She noticed that Charles walked with a limp. She was "frozen" and did not scream or flee but took the card from him. He then left. At her sister's urging, she went to the station agent's booth. She then called 911, and called her father to pick her up at the station. Both R.G.'s sister, who was speaking to R.G. when Charles returned to the station, and her father confirmed that she was "hysterical" when she called them. The police came to the station and spoke with R.G. Her father arrived and took her to a hospital. She was examined and swabs were taken from her breasts and vagina. R.G. described the attack to the nurse who took the samples. After police spoke with R.G. at the hospital, they were looking for a gray Chevrolet Monte Carlo and a man fitting a description R.G. had given them. When a coworker arrived at R.G.'s house later that day, R.G., who was "very dependable," "hardworking," and "responsible," "couldn't stop crying."

¶ 5 In January 2011, police showed R.G. a photographic array, and she identified Charles as her assailant. She viewed a lineup in March 2011 and likewise identified Charles as her assailant.

¶ 6 DNA on "bite mark swabs" from R.G. matched Charles's DNA, with such a match occurring in one in 1.5 quadrillion black persons, 150 quadrillion Hispanic persons, or 240 quadrillion white persons.

¶ 7 Before trial, the State filed a motion in limine to introduce as impeachment, if Charles testified, his prior conviction for AUUW in case 07 CR 10826, for which he received two years' probation in 2008. The State argued the conviction's probative value outweighed any unfair prejudice. Charles contended that (i) AUUW "could be as benign as possessing a handgun on the CTA," (ii) AUUW "has been declared in another form to be unconstitutional under the Second Amendment to the US Constitution by the 7th Circuit Court of Appeals," and (iii) no scientific evidence links gun ownership to untruthfulness. The court granted the motion, finding the conviction to be more probative than prejudicial.

The court instructed the State to ensure that the certified copy of the AUUW conviction did not specify the weapon and noted that the jury would be instructed on the limited purpose of impeachment for which the conviction would be admitted. After presenting witnesses who testified to the evidence summarized above, the State rested.

¶ 8 Charles moved for a directed verdict, arguing in part that no gun was recovered and so the State had not sustained its burden to prove that a weapon was used in the commission of the offense. The court denied the motion, finding that a reasonable trier of fact could find every element of the charged offenses.

¶ 9 Charles elected to testify and related that at about 3 or 4 a.m. on August 10, 2010, he went alone in his Monte Carlo coupe to an all-night restaurant to get a meal. He was driving from the restaurant when he saw "a female" standing at a bus stop, who he identified at trial as R.G. He stopped and chatted with her, and she gave her nickname as ReRe and said she was going to a friend's house and was not in a "hurry" to get there. He gave his proper name, Jamaal, and denied identifying himself as Marlon. He offered her a ride, and she accepted. He took her to his aunt's home, where his aunt, irritated that he had arrived in the middle of the night, admitted him and R.G. After the aunt returned to her bedroom, Charles and R.G. ate together and then went to another bedroom where she provided him a condom and they voluntarily had "sexual activity" with "foreplay" beforehand. He admitted that he placed his mouth on her breasts and vagina during this activity. Afterwards, Charles offered to drive R.G. elsewhere and she asked to be brought to a Red Line station. As he drove to the station, he asked for her telephone number and she gave it to him. She did not ask for his number. R.G. asked him for $150 or $175 and they had a "verbal altercation" regarding Charles's inability to pay her. After leaving her at the station, Charles realized that R.G.'s transit card was in his car. He returned to the station to give R.G. her card. When he did so, she was not crying or talking on the telephone, and she did not flee or cry out upon seeing him. Charles denied showing R.G. a gun at any time.

¶ 10 In rebuttal, the State offered into evidence a certified copy of Charles's 2008 AUUW conviction in case 07 CR 10826. Defense counsel made no objection, and the court admitted the conviction into evidence. The offense was named on the record as aggravated unlawful use of a weapon, but no reference to a firearm was made by the court, the prosecutor, or defense counsel.

¶ 11 In closing argument, the State argued that Charles's conduct in displaying a firearm created fear in R.G. that induced her compliance during the offense and her "frozen" state when he reappeared at the CTA station. After summarizing the State's evidence in detail, the State argued that Charles's account of events was impeached by the State's evidence and by Charles's status as "a convicted felon." Defense counsel, arguing at length that Charles's version of events was credible, emphasized that no gun was ever recovered: "There is no gun in this case." Charles's theory in closing was that R.G. had succumbed to her "desires" and, having regrets afterwards, made up the story about the attack. In rebuttal argument, the State labeled Charles's account "ridiculous" and argued that (i) Charles's timeline of events was contradicted by various State witnesses and (ii) the jury should not find "a convicted felon" more credible than the State's witnesses.

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