People v. Moreland

THIRD DIVISION
November 12, 1997

No. 1-94-3401

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

DENNIS MORELAND,

Defendant-Appellant.)
)
)
)
)
)
)
)
)Appeal from the
Circuit Court of
Cook County

No. 94 CR 11306

Honorable
Paul Nealis,
Judge Presiding.

MODIFIED ON DENIAL OF PETITION FOR REHEARING
JUSTICE CAHILL delivered the opinion of the court:
Defendant, Dennis Moreland, was tried and convicted by a
jury. He was then sentenced to 60 years in prison for first
degree murder, 30 years for armed robbery, consecutive to the
murder sentence, and 30 years for aggravated criminal sexual
assault, consecutive to the murder sentence but concurrent with
the armed robbery. He was also sentenced to 15 years'
imprisonment for aggravated kidnapping, to run concurrently with
the murder sentence. We reverse the conviction for aggravated
criminal sexual assault. We affirm the other convictions and the
sentences imposed.
The events that led to these convictions began at a party in
a home located in Gary, Indiana, on January 12, 1994, and
concluded with the discovery of the body of Estelle Jones in
Riverdale, Illinois, on January 13.
Moreland makes four arguments for reversal: (1) the
aggravated criminal sexual assault happened in Indiana; (2) the
armed robbery happened in Indiana; (3) the aggravated kidnaping
was incidental to the murder; and (4) there must be a remand for
a new sentencing hearing on the murder conviction because we
cannot know what part the erroneous convictions played in the
trial court's decision to impose the maximum sentence for murder.
We agree with Moreland on his first point. We reverse the
conviction and vacate the sentence for aggravated criminal sexual
assault. We reject his remaining arguments and affirm the
convictions for murder, armed robbery and kidnapping, and the
sentences imposed.
In this appeal Moreland does not contest participation in,
or accountability for, the crimes charged, so we set out only
those facts relevant to the four issues he raises.
The victim, Estelle Jones, was a guest at a party where
Moreland was present and drugs were being sold. In the course of
the evening Jones was accused of stealing drugs from Moreland and
his companions. Moreland sexually assaulted and beat her. After
a discussion between Moreland and a companion, the companion put
a pillowcase over Jones' head and placed her in the trunk of a
car Jones had borrowed to attend the party. A witness testified
Jones was alive when placed in the trunk. Armed with a shotgun
given to him by Moreland, Moreland's companion drove off with
Jones in the trunk. Her body was discovered the following day at
136th and Michigan in Riverdale in Cook County, Illinois. A
pillowcase was over her head. Cause of death was a shotgun wound
to the head.
Moreland first argues that the record conclusively
establishes that the sexual assault happened in Indiana. The
State admits this, but argues that section 1-5(a)(3) of the
Criminal Code of 1961 (720 ILCS 5/1-5 (West 1994)) is broad
enough to invest Illinois with jurisdiction. The subsection
reads:
"(a) A person is subject to prosecution in this
State *** if:
***
(3) The conduct outside the State constitutes a
conspiracy to commit an offense within the State, and
an act in furtherance of the conspiracy occurs in the
State[.]" 720 ILCS 5/1-5 (West 1994).
The State argues that Moreland and his companion were
punishing Jones for stealing their drugs and that they intended
to send a message to anyone who interfered with their drug
business. The State suggests that the sexual assault, the
beating, the kidnapping, and the murder should be seen as part of
a common design to act in furtherance of a common criminal
purpose: the murder of Jones for interfering with a drug
business.
The trial court in the case before us said at sentencing:
"They subjected her to sexual assault, and they totally
dehumanized her and they beat her and beat her, and the
whole scheme of this was to carry out this plan once
Estelle Jones made the mistake of taking some cocaine
***. The whole plan was to get rid of her and
eliminate her and send a message to the people that
were involved in these drugs, that were partying there,
that would be present in the future purchases of drugs
from the defendant and his confederates in this
business, send a message out[:] kill her. But before
you kill her, make sure that everybody knows, and make
her pay."
Other than the language of the statute and the sentencing remarks
of the trial judge, the State, in support of its argument, cites
to People v. Collins, 70 Ill. App. 3d 413, 387 N.E.2d 995 (1979).
In Collins a conspiracy was charged. Moreland was not charged
with conspiracy. The State cites to no case where a conspiracy
not charged may be inferred from the evidence or the remarks of
the sentencing court to confer jurisdiction over a crime in
another State.
The State must prove jurisdiction beyond a reasonable doubt.
People v. Blanck, 263 Ill. App. 3d 224, 227, 635 N.E.2d 1356
(1994). Moreland relies on this case and People v. Holt, 91 Ill. 2d 480, 440 N.E.2d 102 (1982), to support his argument that the
court lacked jurisdiction over the sexual assault. Holt stands
for the proposition that:
"[I]t is not enough that some part of a course of
criminal conduct, some related crime, be committed in
Illinois; the particular crime charged must be
committed partly within this State." Holt, 91 Ill. 2d
at 484.
The evidence here establishes that the aggravated criminal
sexual assault took place at a home in Gary, Indiana. The State
failed to prove jurisdiction beyond a reasonable doubt and the
conviction for aggravated criminal sexual assault must be
reversed.
Moreland next argues that his robbery conviction must be
reversed because the evidence failed to prove beyond a reasonable
doubt that the robbery happened in whole or in part in Illinois.
He maintains that the armed robbery was complete when the car was
seized in Indiana.
In People v. Smith, 78 Ill. 2d 298, 399 N.E.2d 1289 (1980),
our supreme court held that "[t]he offense of robbery is complete
when force or threat of force causes the victim to part with
possession or custody of property against his will." Smith, 78 Ill. 2d at 303. Moreland then reasons that robbery can never be
viewed as a continuing offense, such as theft, where a person may
be tried wherever he exerts control over the property. See 720
ILCS 5/1-6(g) (West 1994).
We disagree. In People v. Gilliam, 172 Ill. 2d 484, 670 N.E.2d 606 (1996) our supreme court, on facts almost identical to
those before us, considered whether robbery could ever be a
continuing offense. The victim was placed in the trunk of her
car in Cook County and transported to Jefferson County, where she
was found murdered. The court wrote:
"Of course, the offense of robbery is complete when
force or threat of force causes the victim to part with
possession or custody of property against the victim's
will. [Citation.] Thus, defendant's robbery of the
victim's car was completed in Cook County, in the alley
behind the victim's home when he forced her into the
car to drive him away. However, defendant's taking of
the victim's car, with the victim forced in the car
trunk, continued the essence of the robbery, i.e., the
use of force. We note that other states commonly
include robbery in their venue rules for theft.
[Citation]." (Emphasis in original.) Gilliam, 172 Ill. 2d at 508.
Here, Jones was forcibly carried to and placed in the trunk
of her car in Indiana. The forcible taking continued as
Moreland's companion entered Illinois with Jones in the trunk of
her vehicle. Moreland, on appeal, does not contest his
accountability for this crime or that his companion drove the car
to Illinois with Jones in the trunk and then murdered her. We
believe jurisdiction for robbery was proven beyond a reasonable
doubt based upon the holding in Gilliam.
Moreland next argues that his conviction for aggravated
kidnapping must be reversed because the acts of taking Jones to
Illinois and confining her there were incidental to the murder.
"[A]n aggravated kidnapping conviction should not be
sustained where the asportation or confinement may constitute
only a technical compliance with the statutory definition but is,
in reality, incidental to another offense." People v. Eyler, 133 Ill. 2d 173, 199-200, 549 N.E.2d 268 (1989), quoting People v.
Enoch, 122 Ill. 2d 176, 197, 522 N.E.2d 1124 (1988).
Illinois employs a four-part test to decide whether an act
of detention or asportation is incidental to another crime or
will support an independent charge of kidnapping:
"'(1) [T]he duration of the detention or asportation;
(2) whether the detention or asportation occurred
during the commission of a separate offense; (3)
whether the detention or asportation which occurred is
inherent in the separate offense; and (4) whether the
asportation or detention created a significant danger
to the victim independent of that posed by the separate
offense.'" People v. Smith, 91 Ill. App. 3d 523, 529,
414 N.E.2d 1117 (1980), quoting Government of the
Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir.
1979).
The first element, duration, may include not only time, but
distance, or both. In People v. Riley, 219 Ill. App. 3d 482,
489, 579 N.E.2d 1008 (1991), the court found an asportation of
about one block sufficient to support a separate kidnapping
charge. In People v. Casiano, 212 Ill. App. 3d 680, 687-88, 571 N.E.2d 742 (1991), 1 1/2 blocks were enough. A detention of a
few minutes was enough to sustain a conviction for kidnapping in
People v. Pugh, 162 Ill. App. 3d 1030, 516 N.E.2d 396 (1987).
Here, defendant transported the victim from Gary, Indiana, to
Riverdale, Illinois. We take judicial notice that the distance
between the towns is approximately 25 miles, well within the
parameters of Riley, Casiano, and Pugh.
The next element is whether the detention occurred "during"
the murder. In People v. Gully, 151 Ill. App. 3d 795, 800, 502 N.E.2d 1091 (1986), the court found that the kidnapping was a
separate offense based on the Smith test. The victim was robbed,
transported in a car to a different location, then raped. The
detention and asportation lasted about 45 minutes. Gully, 151
Ill. App. 3d at 800. This is distinguishable from People v.
Lamkey, 240 Ill. App. 3d 435, 440, 608 N.E.2d 406 (1992), cited
by Moreland. In Lamkey, the defendant, dressed only in a shirt,
was able to reach out and grab the victim from the street, pull
her into a hallway and sexually assault her, all within a few
minutes. The court concluded the detention happened in the
course of the sexual assault. Lamkey, 240 Ill. App. 3d at 440.
The kidnapping of the victim in this case began before, rather
than during, the murder, and lasted more than a few minutes.
The third element is whether the asportation is "inherent"
in the murder. The act of forcing Jones into her car trunk and
transporting her over state lines is not inherent in the offense
of murder. 720 ILCS 5/9-1 (West 1994); see People v. Jackson,
281 Ill. App. 3d 759, 769, 666 N.E.2d 854 (1996) ("the forced
movement of a victim from one location to another is not inherent
in the offense of murder").
Finally, we determine whether the asportation created
significant dangers independent of the murder. The asportation
allowed yet another opportunity for battery and sexual assault.
See Casiano, 212 Ill. App. 3d at 688; Riley, 219 Ill. App. 3d at
489-90.
We conclude that the kidnapping was not incidental to the
murder.
Last, Moreland argues that if we vacate one or more of the
convictions, we must remand the case for a new sentencing hearing
on the murder conviction because we cannot know what part the
erroneous convictions played in the trial court's decision to
impose the maximum sentence for murder.
The State argues that Moreland waived the issue by not
filing a post-trial motion challenging his sentence. People v.
McCleary, 278 Ill. App. 3d 498, 501, 663 N.E.2d 22 (1996);
People v. Moncrief, 276 Ill. App. 3d 533, 535, 659 N.E.2d 106
(1995). Moreland is not asking for a review of the length of a
sentence he could have challenged in a post-trial motion. He
argues that if appellate review results in vacatur, the trial
court must be given the opportunity to determine what impact the
vacatur may have on the length of the sentences we did not
disturb. He cannot waive an issue not available to him until
after appellate review.
We have vacated one of four convictions. If one of several
convictions is vacated, a new sentencing hearing is not required
where nothing in the record shows that the remaining sentences
were influenced by the conviction vacated. People v. Roby, 202
Ill. App. 3d 143, 147, 559 N.E.2d 840 (1990), citing People v.
Payne, 98 Ill. 2d 45, 456 N.E.2d 44 (1983). In Payne the trial
court remarked at sentencing on the need to deter armed home
invaders by imposing lengthy sentences. We reversed the home
invasion conviction but held that there was no need to remand for
a new sentencing hearing because the comments applied equally to
the crimes of armed robbery and burglary, which were upheld.
Payne, 98 Ill. 2d at 57.
Here the court, during the sentencing of the murder, stated:
"Does this case fall into the extended term? Is it
accompanied by exceptionally brutal and heinous
behavior indicative of wanton cruelty? It sure is. ***
He is eligible for extended term. I'm not going to
give the defendant extended term, but I want the record
to be clear that he is eligible for an extended term."
Moreland has not appealed the act of aggravated criminal
sexual assault in this case, but the jurisdiction of Illinois to
try it. The record supports an act of aggravated criminal sexual
assault in Indiana. A sentencing judge is not confined to the
convictions before him in assessing aggravation at sentencing.
730 ILCS 5/5-5-3.2 (West 1994). Under these circumstances, the
uncontested act of aggravated criminal sexual assault was an
aggravating element to be considered in imposing sentences for
murder, armed robbery and kidnapping, though the act was not
subject to prosecution in Illinois. People v. Gomez, 247 Ill.
App. 3d 68, 74, 617 N.E.2d 320 (1993) (sentencing court may
consider evidence of criminal conduct for which no prosecution or
conviction ensued, provided that evidence is both relevant and
reliable). Under these circumstances, the aggravated criminal
sexual assault in Indiana was a proper aggravating factor in the
murder sentence.
The State asks us to correct the sentencing to have all
sentences run consecutively under section 5-8-4 of the Criminal
Code of Corrections. 730 ILCS 5/5-8-4 (West 1994). The statute
reads:
"When multiple sentences of imprisonment are
imposed on a defendant at the same time *** the
sentences shall run concurrently or consecutively as
determined by the court. *** The court shall not
impose consecutive sentences for offenses which were
committed as part of a single course of conduct during
which there was no substantial change in the nature of
the criminal objective, unless, one of the offenses for
which defendant was convicted was a Class X or Class 1
felony and the defendant inflicted severe bodily
injury, or where the defendant was convicted of a
violation of 12-13 or 12-14 [criminal sexual assault or
aggravated criminal sexual assault] of the Criminal
Code of 1961, in which event the court shall enter
sentences to run consecutively." 730 ILCS 5/5-8-4(a)
(West 1994).
People v. Curry, No. 81877 (September 18, 1997), resolved a
difference among the districts in the interpretation of this
section: People v. Williams, 263 Ill. App. 3d 1098, 638 N.E.2d 207 (1st Dist. 1994); People v. Medrano, 282 Ill. App. 3d 887,
669 N.E.2d 114 (1st Dist. 1996); People v. Ivey, 267 Ill. App. 3d
310, 642 N.E.2d 157 (3rd Dist. 1994); and People v. Childs, 278
Ill. App. 3d 65, N.E.2d (4th Dist. 1996). The supreme court held
that consecutive sentences are mandatory only for those offenses
that trigger the application of section 5-8-4(a). Curry, slip
op. at 24.
The conviction of aggravated kidnapping is a class 1 felony,
but the crime here was a prelude to the murder. Severe bodily
harm did not arise from the act of kidnapping. See Medrano, 282
Ill. App. 3d at 898. So it was not mandatory that the aggravated
kidnapping conviction be sentenced consecutively.
The sentences for murder, aggravated kidnapping, and armed
robbery are affirmed. The conviction for aggravated criminal
sexual assault is reversed and the sentence vacated. As part of
our judgment, we grant the State's request and assess defendant
$150 in costs for defending this appeal under People v. Nicholls,
71 Ill. 2d 166, 374 N.E.2d 194 (1978), and People v. Agnew, 105 Ill. 2d 275, 473 N.E.2d 1319 (1985).
Affirmed in part and reversed in part.
COUSINS, P.J., and GORDON, J., concurring.