People v. Reynolds
Annotate this Case
THIRD DIVISION
December 31, 1997
No. 1-95-3383
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
MELVIN REYNOLDS,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
94 CR 23498
Honorable
Fred G. Suria,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
Melvin Reynolds was indicted on 24 counts involving several
charges. When the case went to the jury, 12 counts embracing 4
offenses remained: 3 for aggravated sexual abuse, 3 for sexual
assault, 2 for child pornography, and 4 for obstruction of
justice. The jury was given general verdict forms--"guilty" and
"not guilty"--for each of the four offenses. The jury returned a
general "guilty" verdict on each of the offenses.
Reynolds was sentenced to four years' imprisonment for
sexual assault, a concurrent four years for child pornography,
and a consecutive one year for obstruction of justice. The trial
court found that the sexual abuse conviction merged with that for
sexual assault and did not impose a sentence. We affirm.
A criminal investigation of defendant began when Beverly
Heard told Chicago police, on June 3, 1994, that in 1992 and 1993
she had consensual sexual intercourse with defendant while she
was 16 and 17 years of age.
In late June and early July, 1994 Heard appeared before a
grand jury and repeated her allegations. On August 19, 1994,
defendant was indicted.
The indictment alleged, on the three aggravated criminal
sexual abuse charges, that defendant had sexual intercourse with
Beverly Heard, beginning in June 1992, when Heard was 16 years
old, and continuing until she turned 17 in November 1992. At
trial, the State offered a tape recording of a conversation
between Heard and defendant made in 1994. Defendant and Heard in
this conversation allegedly discussed their sexual relationship.
The case was under investigation with the cooperation of Heard at
the time the recording was made.
Heard testified at trial that a relationship began with
defendant when he introduced himself to her on the street in June
1992. She said that he asked her to dinner about a week later.
About a week after that dinner she said they had sex at an
apartment in Riverdale. This began a pattern in which they had
sex two or three times each week from June 1992 until November
1992, and then less frequently from November 1992 until September
1993. Defendant gave her $100 or $150 almost every time they
were together.
Heard testified that she met Sophia Green, a friend of
defendant, in late November 1992. She testified that the three
of them had sex together three times, twice in defendant's office
and once at a hotel.
Heard testified that she worked as a political campaign
volunteer for defendant in the summer of 1993 for about three
weeks. Heard also testified that, in the fall of 1992, defendant
suggested that Heard transfer to a private high school and that
he would pay the tuition. She enrolled and graduated from the
school, but never paid tuition.
Defendant testified. He denied having sexual intercourse
with Heard. He admitted that the recorded conversation played to
the jury happened, but said it was only "phone sex" or "fantasy
sex."
The child pornography charge was also based on a taped
conversation between Heard and defendant. On the tape, Heard
said that she had a 15-year-old friend named Theresa she would
like to introduce to defendant because Theresa might want to have
sex with defendant. Theresa did not exist. She was fabricated
at the suggestion of the police conducting the investigation.
Defendant responded that he did not think he wanted to have sex
with Theresa because she was too young. He then asked to see a
picture of Theresa before meeting her. He suggested that Heard
buy a Polaroid camera and take some pictures of Theresa. He told
Heard he would reimburse her for the camera. Defendant then
stated: "[T]hey [(the pictures)] [don't] have to be face shots
*** but mainly just *** crotch and titties."
The State offered evidence that snapshots of women, never
asserted to be underage, in various stages of undress, were found
on defendant's office desk. The State argued that these
photographs were relevant because they demonstrated the kind of
photographs defendant asked Heard to take. The defense objected
to this evidence as unduly prejudicial "other crimes or bad acts"
evidence. The trial court allowed the photos to be described,
but did not allow them to be published to the jury during the
trial.
Defendant admitted in his testimony that he asked for the
photographs of "Theresa," but he asserted that the conversation
was fantasy sex talk and that he never intended or expected
Heard to take photographs or do anything else. The prosecution
argued that the offense of child pornography is defined in such a
way that intent is not required, and that the jury should not be
instructed that a mental state is required for the crime. Over
defense objection, the judge tendered an instruction to the jury
that is set out and discussed in our disposition of defendant's
fifth issue on appeal.
The indictment charged defendant with four separate acts of
obstruction of justice: (1) that he gave a false statement to the
police and prosecutor in that he induced Beverly Heard to file a
false statement (retracting her allegations as to sex with
defendant) on or about June 22, 1994; (2) that he furnished a
false statement to the police and prosecutor in that he induced
Heard to file a false statement (retracting her allegations of
sex with defendant) on or about June 29, 1994; (3) that he and
codefendant Eddie McIntyre induced Heard to leave the state
during a criminal investigation; and (4) that he and McIntyre
induced Heard to conceal herself from authorities. Each of these
charges was represented by a separate count.
Sarah Rodriguez, defendant's secretary, testified that
defendant told her to type a statement that Barbara Ennis
(Heard's mother) would dictate to her by telephone. Rodriguez
did so. Rodriguez testified that she went to Tennessee, where
she gave the statement to Ennis for Heard's signature. Rodriguez
then faxed a copy of the signed statement dated June 22, 1994, to
defendant in Washington, D.C., and gave the signed statement to
Tavis Grant, an associate of defendant.
The State offered evidence that the June 29 statement was
dictated to Rodriguez by defendant. The evidence showed that
Heard signed the June 29 statement and gave it to her attorney.
There was no evidence presented that this statement was ever
"furnished" to the police or the State's Attorney until the State
subpoenaed Heard's attorney to produce it.
To contradict the charge of concealing Heard by inducing her
to leave Illinois, Heard testified that in the course of the
investigation she went to Tennessee because she no longer wanted
to be part of the investigation. She said the trip was her idea.
During deliberation, the jury asked for all photographic
exhibits. Over defense objection, the court ruled that the jury
could see those photographs that appeared to show underage naked
women. Defendant then asked, and the court allowed, the
photographs of all the women to go to the jury, including those
that appeared to show women who were not minors.
The jury, during deliberations, asked for a "legal
definition of a position of trust, authority or supervision in
relation to the victim." The judge responded, "use your common
sense understanding of those terms."
On August 22, 1995, the jury returned a general verdict of
guilty on each of the charges.
Defendant raises eight issues on appeal:
(1) did the trial court improperly admit several items
and instances of "other crimes or wrongful conduct"
evidence?
(2) whether the evidence that defendant held a
"position of trust, authority or supervision" in
relation to the victim was sufficient to sustain
defendant's conviction of criminal sexual assault; and,
is the term "position of trust" unconstitutionally
vague, and did the judge err in refusing the jury's
request to define this term?
(3) was defendant denied his right under the United
States and Illinois Constitutions to a unanimous jury
verdict on the charge of obstruction of justice?
(4) was defendant denied his right under the United
States and Illinois Constitutions to a unanimous jury
verdict on the charges of sexual assault and aggravated
sexual abuse?
(5) was defendant's conviction of child pornography
invalid in light of both the indictment's failure to
allege a mental state and the judge's failure to
instruct the jury that a mental state is an element of
the offense?
(6) did the prosection use its peremptory challenges in
a racially discriminatory way, in violation of Batson
v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)?
(7) was the jury improperly allowed to learn that a
defense witness had taken and failed a polygraph test?
(8) did the court have jurisdiction and venue over the
child pornography charge in light of the fact that
defendant was not within Illinois when he spoke the
words that were the basis for the charge?
We discuss issues two and three in this opinion. To comply
with Supreme Court Rule 23 (166 Ill. 2d R. 23), our disposition
of the remaining issues is omitted from the published opinion.
For a disposition of those issues, see the order filed with the
clerk of the court in People v. Reynolds, Docket No. 1-95-
3383.(ADD Filing DATE.)
Nonpublishable material under Supreme Court Rule 23 omitted.
Defendant argues that his conviction for criminal sexual
assault must be reversed because there was no evidence that he
held a "position of trust, authority or supervision" in relation
to Heard. Defendant contends that the only reason for alleging
he held a position of trust was his role as a public figure.
The standard for reviewing the sufficiency of evidence
supporting a criminal conviction is whether, after considering
the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. People v. Wittenmyer, 151 Ill. 2d 175, 190, 601 N.E.2d 735 (1992).
The Criminal Code of 1961 provides that a person commits
criminal sexual assault if he "commits an act of sexual
penetration with a victim who was at least 13 years of age but
under 18 years of age when the act was committed and the accused
was 17 years of age or over and held a position of trust,
authority or supervision in relation to the victim." 720 ILCS
5/12-13(a)(4) (West 1994). The phrase "position of trust,
authority or supervision" is not defined in the statute.
Defendant argues in his brief that the phrase "position of
trust, authority or supervision" was intended to reach only
relationships that are in loco parentis. But defendant conceded
during oral argument before this court that the term is not so
limited, and we agree. The term in loco parentis describes "a
person who has put himself in the situation of a lawful parent by
assuming the obligations incident to the parental relation."
People v. Warner, 98 Ill. App. 3d 433, 437, 424 N.E.2d 747
(1981); Busillo v. Hetzel, 58 Ill. App. 3d 682, 684, 374 N.E.2d 1090 (1978). Had the legislature intended to reach only in loco
parentis relationships, it would have said so, as it has in other
statutes. See, e.g., 750 ILCS 60/103(1) (West 1994) (Illinois
Domestic Violence Act of 1986); 735 ILCS 5/13-203.1 (West 1994)
(Code of Civil Procedure); 725 ILCS 5/112A-14(b)(5)(ii) (West
1994) (Code of Criminal Procedure of 1963); 755 ILCS 5/9-8(e)
(West 1994) (Probate Act of 1975).
Defendant next urges us to borrow the meaning of "position
of trust" from section 5-5-3.2 of the Unified Code of Corrections
(730 ILCS 5/5-5-3.2(a)(14) (West 1994)), which gives the
following nonexclusive list of relationships that the legislature
intended to cover in the term "position of trust or supervision":
"family member ***, teacher, scout leader, baby sitter, or day
care worker." Defendant argues that each of these figures is
entrusted with parental-type responsibilities for the welfare of
the child. He argues that Illinois cases recognize that section
12-13(a)(4) of the Criminal Code, like section 5-5-3.2 of the
Unified Code of Corrections, protects a child from two types of
relationships: (1) those in which it can be expected that the
adult will be able to exert undue influence over the child; and
(2) those in which the adult's position affords a heightened
opportunity for a sexual assault to happen.
Defendant then argues that his conviction is "completely at
odds" with many Illinois cases in which defendants were found to
occupy a position of trust, authority or supervision under either
section 12-13(a)(4) of the Criminal Code of 1961 or section 5-5-
3.2(a)(14) of the Unified Code of Corrections.
Nonpublishable material under Supreme Court Rule 23 omitted.
Defendant points out that in each of the cases cited in his
brief the relationship between the defendant and the victim
predated the sexual encounter and also involved an entrustment of
the victim, by a parent or society at large, to the care of
defendant.
None of the cases defendant cites interprets section 12-
13(a)(4) in a manner that precludes its application here. Our
research reveals that no Illinois court has addressed the
statute's application to a relationship such as the one before
us.
In interpreting section 12-13(a)(4), the language of the
statute must be given its plain and ordinary meaning. DeClerck
v. Simpson, 143 Ill. 2d 489, 492, 577 N.E.2d 767 (1991).
Accordingly, Illinois courts construing section 12-13(a)(4) have
given the terms "trust," "authority" and "supervision" their
common dictionary meanings. See People v. Secor, 279 Ill. App.
3d 389, 396, 664 N.E.2d 1054 (1996); People v. Kaminski, 246 Ill.
App. 3d 77, 81, 615 N.E.2d 808 (1993). In People v. Kaminski,
the court stated that "supervise" has been defined to mean
"'superintend, oversee.'" 246 Ill. App. 3d at 81, quoting
Webster's Ninth New Collegiate Dictionary 1185 (1985). In Secor,
the court defined "trust" as "'[c]onfidence in the integrity,
ability, character, and truth of a person ***[;] [s]omething
committed into the care of another.'" Secor, 279 Ill. App. 3d at
396, quoting American Heritage Dictionary 1300 (2d coll. ed.
1985). The Secor court defined "authority" as "'[t]he power to
command, enforce laws, exact obedience, determine, or judge.'"
Secor, 279 Ill. App. 3d at 396, quoting American Heritage
Dictionary 142 (2d coll. ed. 1985).
In finding that a one-time overnight host fell within
section 12-13(a)(4), the Secor court placed great weight on facts
that were "likely to generate mutual trust." Secor, 279 Ill.
App. 3d at 394. The court noted:
"[The victim] was not a stranger to the defendant;
he was the child of neighbors of long standing and a
friend of his son. Moreover, the circumstances of the
crime suggest that defendant was aware of his influence
over [the victim]." Secor, 279 Ill. App. 3d at 394.
We agree with defendant that his role as a public official
does not alone create a position of trust, authority or
supervision in relation to Heard. The language of the statute
does not suggest that the position of trust, authority or
supervision may result from the role of the offender alone, but
that it must exist "in relation to the victim." 720 ILCS 5/12-
13(a)(4) (West 1994). But there was ample evidence introduced at
trial to support a finding that defendant developed a position of
trust, authority or supervision in relation to Heard. Heard
worked as a volunteer on defendant's campaign for three weeks.
Defendant sometimes served as her "mentor," a word used in his
own statements to describe their relationship. He arranged for
her enrollment in a private school and, according to Heard's
testimony, said he would pay the tuition. Evidence was
introduced that he was the person the school would call when
Heard had problems there. Defendant testified that he counseled
Heard when notified by school officials that she might drop out
of school. Defendant gave Heard money virtually every time they
met. We are aware that more than one inference can be drawn from
this passing of money, but among the inferences is that defendant
was assuming some financial responsibility for Heard. When more
than one inference may be drawn, the question is one of fact for
the jury. See People v. Besser, 273 Ill. App. 3d 164, 167, 657 N.E.2d 454, 456 (1995). These aspects of the relationship show
that a jury could have found that defendant developed and
occupied a position of trust, authority, or supervision in
relation to Heard.
We reject defendant's next argument that the statute does
not apply to positions of trust, authority, or supervision that
develop after the onset of a sexual relationship. A plain
reading of the statute does not reveal such a restriction.
Defendant argues that "[t]o hold that this situation falls within
the ambit of the *** statute would mean that virtually every
more-than-short-term relationship between an older man and a
teenage girl would necessarily violate the statute, since some
sort of 'trust' almost always develops between two parties to
such a relationship."
The argument includes a debatable assumption rooted in
psychology, not law, and one that we are not prepared to read
into the statute.
We hold only that an adult who has a sexual relationship
with a minor cannot shield himself from this statute by showing
that his first sex with the minor took place before there was
evidence of trust, authority, or supervision. Under this
reading, if a defendant occupies a position of trust, authority
or supervision at any time when he engages in sexual intercourse
with a minor 13 to 17 years old, his conduct is prohibited by
section 12-13(a)(4). If the evidence establishes that the first
sexual act happens before trust is established, or authority or
supervision is exercised, the defendant is not prohibited from
arguing to the trier of fact that the sexual relationship alone
is the reason for claiming a relationship of trust, authority or
supervision. But here the State offered evidence of ongoing
financial and educational support and nonsexual mentoring. The
trier of fact must decide whether these nonsexual elements of the
relationship amounted to trust, authority or supervision when the
sexual abuse happened and placed the conduct within the scope of
the statute.
Defendant next argues that the term "position of trust" is
unconstitutionally vague as applied to him. He stresses the term
"position of trust" because he asserts that the State relied only
on this term in trying the case. We reject this contention
because the State set out all three terms in the indictment and
introduced evidence to support all three.
Under both the United States and Illinois Constitutions, a
law will be held unconstitutionally vague if a person of ordinary
intelligence is not given a reasonable opportunity to know what
is prohibited so that he can act accordingly, or if the statute
fails to provide explicit standards for application such that law
enforcement officials are free to use arbitrary and
discriminatory enforcement methods. Grayned v. City of Rockford,
408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99
(1972); People v. Burpo, 164 Ill. 2d 261, 265-66, 647 N.E.2d 996
(1995). Absent contrary legislative intent, a court will assume
the words used in a statute have their ordinary and popularly
understood meanings when assessing the constitutionality of the
statute. People v. Fabing, 143 Ill. 2d 48, 54, 570 N.E.2d 329
(1991). Section 12-13(a)(4) uses plain language and cannot be
considered so vague that people of "common intelligence must
necessarily guess at its meaning and differ as to its
applicability." People v. Williams, 133 Ill. 2d 449, 454, 551 N.E.2d 631 (1990).
To support his position that the statute is
unconstitutionally vague, defendant cites Representative
Countryman's comments during House debates on the bill.
Countryman stated, "we don't know what a position of trust or
authority is" and "[the committee has not] met the Constitutional
requirement of being sufficiently definite *** for this to be an
enforceable law under the Constitution of the State of Illinois."
85th Ill. Gen. Assem., House Proceedings, June 30, 1988, at 20
(statements of Representative Countryman). The State points out
that Representative Olson disagreed and stated "I think the
definitions are in a phase where they can be readily
interpreted." 85th Ill. Gen. Assem., House Proceedings, June 30,
1988, at 21 (statements of Representative Olson). The differing
opinions of these two legislators illustrate why courts generally
give conflicting statements by legislators in a floor debate
little weight in searching for the intent of the entire
legislative body. People v. R.L., 158 Ill. 2d 432, 442, 634 N.E.2d 733 (1994).
We find Secor instructive. Secor, 279 Ill. App. 3d 389, 664 N.E.2d 1054. In Secor, the defendant was convicted of criminal
sexual assault after sex with a teenager who was a "one-time
over-night" guest at his house. Secor, 279 Ill. App. 3d 389, 664 N.E.2d 1054. In rejecting defendant's vagueness argument, the
court held that the terms "trust," "authority," and "supervision"
are sufficiently definite both to warn potential defendants of
the type of conduct prohibited and to channel the discretion of
police, judges and juries. Secor, 279 Ill. App. 3d at 396. The
Secor court concluded:
"[I]n enacting section 12-13(a)(4), the legislature
sought to prevent sex offenses by those whom a child
would tend to obey *** as well as those in whom the
child has placed his trust ***. It is the trust that
makes the child particularly vulnerable, and it is the
betrayal of that trust that makes the offense
particularly devastating. Due process does not require
a 'laundry list' of all such positions of trust,
authority or supervision; where enumeration of all such
positions is impractical, the legislature may
reasonably choose sufficiently broad language to
encompass such situations." Secor, 279 Ill. App. 3d at
396.
Here defendant was a host to Heard several times: at the
Riverdale apartment, at a hotel, and at his office. He engaged
in acts that would tend to establish trust: career advice or
mentorship, educational help, and financial support. The statute
was sufficient to notify defendant that his conduct could result
in a "position of trust, authority or supervision" in relation to
Heard.
Defendant next argues that the court abused its discretion
when it refused to respond to the jury's request for a legal
definition of "trust, authority or supervision in relation to the
victim." A trial court has a duty to provide instruction to the
jury when it asks a specific question or requests clarification
on a point of law. People v. Childs, 159 Ill. 2d 217, 228, 636 N.E.2d 534 (1994).
The court instructed the jury to "use your common sense
understanding of those terms." We have already established that
the terms are to be given their plain and ordinary meanings. The
court's response was appropriate.
Defendant next contends that the convictions of obstruction
of justice, sexual assault, and aggravated sexual abuse must be
reversed because he was denied his rights under the United States
and Illinois Constitutions to unanimous jury verdicts. The jury
was given general verdict forms for each crime.
We first note that the record contains no alternate
instructions or verdict forms tendered by defendant. Unless all
instructions, both given and refused, are contained in the
record, "a claim of error based on the giving or refusal of
instructions will not be heard." People v. Daily, 41 Ill. 2d 116, 121, 242 N.E.2d 170 (1968). This argument is waived.
Even if the issue were properly before us, the trial court
did not err. When several counts are charged, a general verdict
form is sufficient when the various counts state the same
transaction. People v. Travis, 170 Ill. App. 3d 873, 892, 525 N.E.2d 1137 (1988); People v. Josephine, 165 Ill. App. 3d 762,
767, 520 N.E.2d 745 (1987). Defendant cites several Illinois and
federal cases for the proposition that separate verdicts are
required for each separate incident alleged. United States v.
Holley, 942 F.2d 916 (5th Cir. 1991); United States v. Echeverri,
854 F.2d 638, 643 (3d Cir. 1988); United States v. Gipson, 553 F.2d 453, 456 (5th Cir. 1977); People v. Scott, 243 Ill. App. 3d
167, 612 N.E.2d 7 (1993); Josephine, 165 Ill. App. 3d 762; People
v. Wurbs, 38 Ill. App. 3d 360, 347 N.E.2d 879 (1976); People v.
Diekelmann, 367 Ill. 372, 11 N.E.2d 420 (1937). As defendant
acknowledges, these cases involved multiple transactions.
Our research reveals no Illinois case defining the "same
transaction" in the context of general verdicts. The State
directs us to several instructive cases involving the joinder
provision of the Code of Criminal Procedure of 1963, which
provides that separate counts may be charged in a single
indictment if they "are based on the same act or on [two] or more
acts which are part of the same comprehensive transaction." 725
ILCS 5/111-4(a) (West 1994). Under this statute, courts consider
several factors in determining when multiple acts constitute one
transaction: (1) proximity of time and location; (2) existence of
a shared common purpose; and (3) similarity of the evidence to
establish elements of the offense. People v. Jackson, 233 Ill.
App. 3d 1089, 1098, 599 N.E.2d 1192 (1992); People v. Mays, 176
Ill. App. 3d 1027, 1037, 532 N.E.2d 843 (1988).
The reasoning of other states is helpful. Other states have
concluded that when the state proceeds on a theory that defendant
engaged in a continuous course of conduct, a separate verdict is
not required for each individual occurrence. See Soper v. State,
731 P.2d 587 (Alaska App. 1987); People v. Winkle, 206 Cal. App. 3d 822, 253 Cal. Rptr. 726 (1988); State v. Spigarolo, 556 A.2d 112, 210 Conn. 359 (1989). In Winkle, the California Court of
Appeals held that a unanimity instruction was not required where
the victim testified about a series of similar molestations
without identifying specific dates. Winkle, 206 Cal. App. 3d at
830, 253 Cal. Rptr. at 730. In Spigarolo, the supreme court of
Connecticut concluded that the lack of a unanimous jury
instruction did not deprive the defendant of his right to a
unanimous verdict when the state had proceeded under a theory
that the defendant's conduct was "in the nature of a continuing
offense." Spigarolo, 556 A.2d at 129, 210 Conn. at 391. In
Soper, the Alaska Court of Appeals held that the trial court did
not err in failing to instruct the jury that it must agree on a
particular incident of sexual abuse when the victim testified to
a "general course of conduct." Soper, 731 P.2d at 591.
We first address defendant's argument relating to the
criminal sexual assault and aggravated sexual abuse verdict
forms. Defendant argues that the jury should have been given
separate forms for each type of sexual penetration and for each
of three identifiable "episodes" of sexual interaction. He
argues that the signed verdicts may not have reflected unanimous
agreement on a particular "episode."
The jury was not required to agree on the specific type of
penetration or the specific incident of sexual interaction.
Unable to assert specific dates of sexual activity between
defendant and Heard, the State proceeded on a theory that
defendant engaged in a continuous course of conduct in violation
of section 12-16(d) of the Criminal Code (720 ILCS 5/12-16(d)
(West 1994) and section 12-13(a)(4) (West 1994) of the Criminal
Code (720 ILCS 5/12-13(a)(4)). Although defendant asserts there
were at least three "episodes" of unlawful conduct alleged, the
testimony at trial established an ongoing sexual relationship
between defendant and Heard. The general verdict form was
proper.
The State proceeded on a similar theory in relation to the
obstruction of justice counts. The State introduced testimony
to show that defendant's efforts to remove Heard from Illinois
and to obtain retractions of her statements were part of a
continuous course of conduct to thwart a single prosecution. The
evidence supported obstruction of justice counts as parts of the
same transaction, and the general verdict form was proper.
Nonpublishable material under Supreme Court Rule 23 omitted.
Affirmed.
LEAVITT, P.J., and GORDON, J., concur.
December 31, 1997
No. 1-95-3383
THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
v.
MELVIN REYNOLDS,
Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County
94 CR 23498
Honorable
Fred G. Suria,
Judge Presiding.
JUSTICE CAHILL delivered the opinion of the court:
Melvin Reynolds was indicted on 24 counts involving several
charges. When the case went to the jury, 12 counts embracing 4
offenses remained: 3 for aggravated sexual abuse, 3 for sexual
assault, 2 for child pornography, and 4 for obstruction of
justice. The jury was given general verdict forms--"guilty" and
"not guilty"--for each of the four offenses. The jury returned a
general "guilty" verdict on each of the offenses.
Reynolds was sentenced to four years' imprisonment for
sexual assault, a concurrent four years for child pornography,
and a consecutive one year for obstruction of justice. The trial
court found that the sexual abuse conviction merged with that for
sexual assault and did not impose a sentence. We affirm.
A criminal investigation of defendant began when Beverly
Heard told Chicago police, on June 3, 1994, that in 1992 and 1993
she had consensual sexual intercourse with defendant while she
was 16 and 17 years of age.
In late June and early July, 1994 Heard appeared before a
grand jury and repeated her allegations. On August 19, 1994,
defendant was indicted.
The indictment alleged, on the three aggravated criminal
sexual abuse charges, that defendant had sexual intercourse with
Beverly Heard, beginning in June 1992, when Heard was 16 years
old, and continuing until she turned 17 in November 1992. At
trial, the State offered a tape recording of a conversation
between Heard and defendant made in 1994. Defendant and Heard in
this conversation allegedly discussed their sexual relationship.
The case was under investigation with the cooperation of Heard at
the time the recording was made.
Heard testified at trial that a relationship began with
defendant when he introduced himself to her on the street in June
1992. She said that he asked her to dinner about a week later.
About a week after that dinner she said they had sex at an
apartment in Riverdale. This began a pattern in which they had
sex two or three times each week from June 1992 until November
1992, and then less frequently from November 1992 until September
1993. Defendant gave her $100 or $150 almost every time they
were together.
Heard testified that she met Sophia Green, a friend of
defendant, in late November 1992. She testified that the three
of them had sex together three times, twice in defendant's office
and once at a hotel.
Heard testified that she worked as a political campaign
volunteer for defendant in the summer of 1993 for about three
weeks. Heard also testified that, in the fall of 1992, defendant
suggested that Heard transfer to a private high school and that
he would pay the tuition. She enrolled and graduated from the
school, but never paid tuition.
Defendant testified. He denied having sexual intercourse
with Heard. He admitted that the recorded conversation played to
the jury happened, but said it was only "phone sex" or "fantasy
sex."
The child pornography charge was also based on a taped
conversation between Heard and defendant. On the tape, Heard
said that she had a 15-year-old friend named Theresa she would
like to introduce to defendant because Theresa might want to have
sex with defendant. Theresa did not exist. She was fabricated
at the suggestion of the police conducting the investigation.
Defendant responded that he did not think he wanted to have sex
with Theresa because she was too young. He then asked to see a
picture of Theresa before meeting her. He suggested that Heard
buy a Polaroid camera and take some pictures of Theresa. He told
Heard he would reimburse her for the camera. Defendant then
stated: "[T]hey [(the pictures)] [don't] have to be face shots
*** but mainly just *** crotch and titties."
The State offered evidence that snapshots of women, never
asserted to be underage, in various stages of undress, were found
on defendant's office desk. The State argued that these
photographs were relevant because they demonstrated the kind of
photographs defendant asked Heard to take. The defense objected
to this evidence as unduly prejudicial "other crimes or bad acts"
evidence. The trial court allowed the photos to be described,
but did not allow them to be published to the jury during the
trial.
Defendant admitted in his testimony that he asked for the
photographs of "Theresa," but he asserted that the conversation
was fantasy sex talk and that he never intended or expected
Heard to take photographs or do anything else. The prosecution
argued that the offense of child pornography is defined in such a
way that intent is not required, and that the jury should not be
instructed that a mental state is required for the crime. Over
defense objection, the judge tendered an instruction to the jury
that is set out and discussed in our disposition of defendant's
fifth issue on appeal.
The indictment charged defendant with four separate acts of
obstruction of justice: (1) that he gave a false statement to the
police and prosecutor in that he induced Beverly Heard to file a
false statement (retracting her allegations as to sex with
defendant) on or about June 22, 1994; (2) that he furnished a
false statement to the police and prosecutor in that he induced
Heard to file a false statement (retracting her allegations of
sex with defendant) on or about June 29, 1994; (3) that he and
codefendant Eddie McIntyre induced Heard to leave the state
during a criminal investigation; and (4) that he and McIntyre
induced Heard to conceal herself from authorities. Each of these
charges was represented by a separate count.
Sarah Rodriguez, defendant's secretary, testified that
defendant told her to type a statement that Barbara Ennis
(Heard's mother) would dictate to her by telephone. Rodriguez
did so. Rodriguez testified that she went to Tennessee, where
she gave the statement to Ennis for Heard's signature. Rodriguez
then faxed a copy of the signed statement dated June 22, 1994, to
defendant in Washington, D.C., and gave the signed statement to
Tavis Grant, an associate of defendant.
The State offered evidence that the June 29 statement was
dictated to Rodriguez by defendant. The evidence showed that
Heard signed the June 29 statement and gave it to her attorney.
There was no evidence presented that this statement was ever
"furnished" to the police or the State's Attorney until the State
subpoenaed Heard's attorney to produce it.
To contradict the charge of concealing Heard by inducing her
to leave Illinois, Heard testified that in the course of the
investigation she went to Tennessee because she no longer wanted
to be part of the investigation. She said the trip was her idea.
During deliberation, the jury asked for all photographic
exhibits. Over defense objection, the court ruled that the jury
could see those photographs that appeared to show underage naked
women. Defendant then asked, and the court allowed, the
photographs of all the women to go to the jury, including those
that appeared to show women who were not minors.
The jury, during deliberations, asked for a "legal
definition of a position of trust, authority or supervision in
relation to the victim." The judge responded, "use your common
sense understanding of those terms."
On August 22, 1995, the jury returned a general verdict of
guilty on each of the charges.
Defendant raises eight issues on appeal:
(1) did the trial court improperly admit several items
and instances of "other crimes or wrongful conduct"
evidence?
(2) whether the evidence that defendant held a
"position of trust, authority or supervision" in
relation to the victim was sufficient to sustain
defendant's conviction of criminal sexual assault; and,
is the term "position of trust" unconstitutionally
vague, and did the judge err in refusing the jury's
request to define this term?
(3) was defendant denied his right under the United
States and Illinois Constitutions to a unanimous jury
verdict on the charge of obstruction of justice?
(4) was defendant denied his right under the United
States and Illinois Constitutions to a unanimous jury
verdict on the charges of sexual assault and aggravated
sexual abuse?
(5) was defendant's conviction of child pornography
invalid in light of both the indictment's failure to
allege a mental state and the judge's failure to
instruct the jury that a mental state is an element of
the offense?
(6) did the prosection use its peremptory challenges in
a racially discriminatory way, in violation of Batson
v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986)?
(7) was the jury improperly allowed to learn that a
defense witness had taken and failed a polygraph test?
(8) did the court have jurisdiction and venue over the
child pornography charge in light of the fact that
defendant was not within Illinois when he spoke the
words that were the basis for the charge?
We discuss issues two and three in this opinion. To comply
with Supreme Court Rule 23 (166 Ill. 2d R. 23), our disposition
of the remaining issues is omitted from the published opinion.
For a disposition of those issues, see the order filed with the
clerk of the court in People v. Reynolds, Docket No. 1-95-
3383.(ADD Filing DATE.)
Nonpublishable material under Supreme Court Rule 23 omitted.
Defendant argues that his conviction for criminal sexual
assault must be reversed because there was no evidence that he
held a "position of trust, authority or supervision" in relation
to Heard. Defendant contends that the only reason for alleging
he held a position of trust was his role as a public figure.
The standard for reviewing the sufficiency of evidence
supporting a criminal conviction is whether, after considering
the evidence in the light most favorable to the prosecution, a
rational trier of fact could have found the essential elements of
the offense beyond a reasonable doubt. People v. Wittenmyer, 151 Ill. 2d 175, 190, 601 N.E.2d 735 (1992).
The Criminal Code of 1961 provides that a person commits
criminal sexual assault if he "commits an act of sexual
penetration with a victim who was at least 13 years of age but
under 18 years of age when the act was committed and the accused
was 17 years of age or over and held a position of trust,
authority or supervision in relation to the victim." 720 ILCS
5/12-13(a)(4) (West 1994). The phrase "position of trust,
authority or supervision" is not defined in the statute.
Defendant argues in his brief that the phrase "position of
trust, authority or supervision" was intended to reach only
relationships that are in loco parentis. But defendant conceded
during oral argument before this court that the term is not so
limited, and we agree. The term in loco parentis describes "a
person who has put himself in the situation of a lawful parent by
assuming the obligations incident to the parental relation."
People v. Warner, 98 Ill. App. 3d 433, 437, 424 N.E.2d 747
(1981); Busillo v. Hetzel, 58 Ill. App. 3d 682, 684, 374 N.E.2d 1090 (1978). Had the legislature intended to reach only in loco
parentis relationships, it would have said so, as it has in other
statutes. See, e.g., 750 ILCS 60/103(1) (West 1994) (Illinois
Domestic Violence Act of 1986); 735 ILCS 5/13-203.1 (West 1994)
(Code of Civil Procedure); 725 ILCS 5/112A-14(b)(5)(ii) (West
1994) (Code of Criminal Procedure of 1963); 755 ILCS 5/9-8(e)
(West 1994) (Probate Act of 1975).
Defendant next urges us to borrow the meaning of "position
of trust" from section 5-5-3.2 of the Unified Code of Corrections
(730 ILCS 5/5-5-3.2(a)(14) (West 1994)), which gives the
following nonexclusive list of relationships that the legislature
intended to cover in the term "position of trust or supervision":
"family member ***, teacher, scout leader, baby sitter, or day
care worker." Defendant argues that each of these figures is
entrusted with parental-type responsibilities for the welfare of
the child. He argues that Illinois cases recognize that section
12-13(a)(4) of the Criminal Code, like section 5-5-3.2 of the
Unified Code of Corrections, protects a child from two types of
relationships: (1) those in which it can be expected that the
adult will be able to exert undue influence over the child; and
(2) those in which the adult's position affords a heightened
opportunity for a sexual assault to happen.
Defendant then argues that his conviction is "completely at
odds" with many Illinois cases in which defendants were found to
occupy a position of trust, authority or supervision under either
section 12-13(a)(4) of the Criminal Code of 1961 or section 5-5-
3.2(a)(14) of the Unified Code of Corrections.
Nonpublishable material under Supreme Court Rule 23 omitted.
Defendant points out that in each of the cases cited in his
brief the relationship between the defendant and the victim
predated the sexual encounter and also involved an entrustment of
the victim, by a parent or society at large, to the care of
defendant.
None of the cases defendant cites interprets section 12-
13(a)(4) in a manner that precludes its application here. Our
research reveals that no Illinois court has addressed the
statute's application to a relationship such as the one before
us.
In interpreting section 12-13(a)(4), the language of the
statute must be given its plain and ordinary meaning. DeClerck
v. Simpson, 143 Ill. 2d 489, 492, 577 N.E.2d 767 (1991).
Accordingly, Illinois courts construing section 12-13(a)(4) have
given the terms "trust," "authority" and "supervision" their
common dictionary meanings. See People v. Secor, 279 Ill. App.
3d 389, 396, 664 N.E.2d 1054 (1996); People v. Kaminski, 246 Ill.
App. 3d 77, 81, 615 N.E.2d 808 (1993). In People v. Kaminski,
the court stated that "supervise" has been defined to mean
"'superintend, oversee.'" 246 Ill. App. 3d at 81, quoting
Webster's Ninth New Collegiate Dictionary 1185 (1985). In Secor,
the court defined "trust" as "'[c]onfidence in the integrity,
ability, character, and truth of a person ***[;] [s]omething
committed into the care of another.'" Secor, 279 Ill. App. 3d at
396, quoting American Heritage Dictionary 1300 (2d coll. ed.
1985). The Secor court defined "authority" as "'[t]he power to
command, enforce laws, exact obedience, determine, or judge.'"
Secor, 279 Ill. App. 3d at 396, quoting American Heritage
Dictionary 142 (2d coll. ed. 1985).
In finding that a one-time overnight host fell within
section 12-13(a)(4), the Secor court placed great weight on facts
that were "likely to generate mutual trust." Secor, 279 Ill.
App. 3d at 394. The court noted:
"[The victim] was not a stranger to the defendant;
he was the child of neighbors of long standing and a
friend of his son. Moreover, the circumstances of the
crime suggest that defendant was aware of his influence
over [the victim]." Secor, 279 Ill. App. 3d at 394.
We agree with defendant that his role as a public official
does not alone create a position of trust, authority or
supervision in relation to Heard. The language of the statute
does not suggest that the position of trust, authority or
supervision may result from the role of the offender alone, but
that it must exist "in relation to the victim." 720 ILCS 5/12-
13(a)(4) (West 1994). But there was ample evidence introduced at
trial to support a finding that defendant developed a position of
trust, authority or supervision in relation to Heard. Heard
worked as a volunteer on defendant's campaign for three weeks.
Defendant sometimes served as her "mentor," a word used in his
own statements to describe their relationship. He arranged for
her enrollment in a private school and, according to Heard's
testimony, said he would pay the tuition. Evidence was
introduced that he was the person the school would call when
Heard had problems there. Defendant testified that he counseled
Heard when notified by school officials that she might drop out
of school. Defendant gave Heard money virtually every time they
met. We are aware that more than one inference can be drawn from
this passing of money, but among the inferences is that defendant
was assuming some financial responsibility for Heard. When more
than one inference may be drawn, the question is one of fact for
the jury. See People v. Besser, 273 Ill. App. 3d 164, 167, 657 N.E.2d 454, 456 (1995). These aspects of the relationship show
that a jury could have found that defendant developed and
occupied a position of trust, authority, or supervision in
relation to Heard.
We reject defendant's next argument that the statute does
not apply to positions of trust, authority, or supervision that
develop after the onset of a sexual relationship. A plain
reading of the statute does not reveal such a restriction.
Defendant argues that "[t]o hold that this situation falls within
the ambit of the *** statute would mean that virtually every
more-than-short-term relationship between an older man and a
teenage girl would necessarily violate the statute, since some
sort of 'trust' almost always develops between two parties to
such a relationship."
The argument includes a debatable assumption rooted in
psychology, not law, and one that we are not prepared to read
into the statute.
We hold only that an adult who has a sexual relationship
with a minor cannot shield himself from this statute by showing
that his first sex with the minor took place before there was
evidence of trust, authority, or supervision. Under this
reading, if a defendant occupies a position of trust, authority
or supervision at any time when he engages in sexual intercourse
with a minor 13 to 17 years old, his conduct is prohibited by
section 12-13(a)(4). If the evidence establishes that the first
sexual act happens before trust is established, or authority or
supervision is exercised, the defendant is not prohibited from
arguing to the trier of fact that the sexual relationship alone
is the reason for claiming a relationship of trust, authority or
supervision. But here the State offered evidence of ongoing
financial and educational support and nonsexual mentoring. The
trier of fact must decide whether these nonsexual elements of the
relationship amounted to trust, authority or supervision when the
sexual abuse happened and placed the conduct within the scope of
the statute.
Defendant next argues that the term "position of trust" is
unconstitutionally vague as applied to him. He stresses the term
"position of trust" because he asserts that the State relied only
on this term in trying the case. We reject this contention
because the State set out all three terms in the indictment and
introduced evidence to support all three.
Under both the United States and Illinois Constitutions, a
law will be held unconstitutionally vague if a person of ordinary
intelligence is not given a reasonable opportunity to know what
is prohibited so that he can act accordingly, or if the statute
fails to provide explicit standards for application such that law
enforcement officials are free to use arbitrary and
discriminatory enforcement methods. Grayned v. City of Rockford,
408 U.S. 104, 108, 33 L. Ed. 2d 222, 227, 92 S. Ct. 2294, 2298-99
(1972); People v. Burpo, 164 Ill. 2d 261, 265-66, 647 N.E.2d 996
(1995). Absent contrary legislative intent, a court will assume
the words used in a statute have their ordinary and popularly
understood meanings when assessing the constitutionality of the
statute. People v. Fabing, 143 Ill. 2d 48, 54, 570 N.E.2d 329
(1991). Section 12-13(a)(4) uses plain language and cannot be
considered so vague that people of "common intelligence must
necessarily guess at its meaning and differ as to its
applicability." People v. Williams, 133 Ill. 2d 449, 454, 551 N.E.2d 631 (1990).
To support his position that the statute is
unconstitutionally vague, defendant cites Representative
Countryman's comments during House debates on the bill.
Countryman stated, "we don't know what a position of trust or
authority is" and "[the committee has not] met the Constitutional
requirement of being sufficiently definite *** for this to be an
enforceable law under the Constitution of the State of Illinois."
85th Ill. Gen. Assem., House Proceedings, June 30, 1988, at 20
(statements of Representative Countryman). The State points out
that Representative Olson disagreed and stated "I think the
definitions are in a phase where they can be readily
interpreted." 85th Ill. Gen. Assem., House Proceedings, June 30,
1988, at 21 (statements of Representative Olson). The differing
opinions of these two legislators illustrate why courts generally
give conflicting statements by legislators in a floor debate
little weight in searching for the intent of the entire
legislative body. People v. R.L., 158 Ill. 2d 432, 442, 634 N.E.2d 733 (1994).
We find Secor instructive. Secor, 279 Ill. App. 3d 389, 664 N.E.2d 1054. In Secor, the defendant was convicted of criminal
sexual assault after sex with a teenager who was a "one-time
over-night" guest at his house. Secor, 279 Ill. App. 3d 389, 664 N.E.2d 1054. In rejecting defendant's vagueness argument, the
court held that the terms "trust," "authority," and "supervision"
are sufficiently definite both to warn potential defendants of
the type of conduct prohibited and to channel the discretion of
police, judges and juries. Secor, 279 Ill. App. 3d at 396. The
Secor court concluded:
"[I]n enacting section 12-13(a)(4), the legislature
sought to prevent sex offenses by those whom a child
would tend to obey *** as well as those in whom the
child has placed his trust ***. It is the trust that
makes the child particularly vulnerable, and it is the
betrayal of that trust that makes the offense
particularly devastating. Due process does not require
a 'laundry list' of all such positions of trust,
authority or supervision; where enumeration of all such
positions is impractical, the legislature may
reasonably choose sufficiently broad language to
encompass such situations." Secor, 279 Ill. App. 3d at
396.
Here defendant was a host to Heard several times: at the
Riverdale apartment, at a hotel, and at his office. He engaged
in acts that would tend to establish trust: career advice or
mentorship, educational help, and financial support. The statute
was sufficient to notify defendant that his conduct could result
in a "position of trust, authority or supervision" in relation to
Heard.
Defendant next argues that the court abused its discretion
when it refused to respond to the jury's request for a legal
definition of "trust, authority or supervision in relation to the
victim." A trial court has a duty to provide instruction to the
jury when it asks a specific question or requests clarification
on a point of law. People v. Childs, 159 Ill. 2d 217, 228, 636 N.E.2d 534 (1994).
The court instructed the jury to "use your common sense
understanding of those terms." We have already established that
the terms are to be given their plain and ordinary meanings. The
court's response was appropriate.
Defendant next contends that the convictions of obstruction
of justice, sexual assault, and aggravated sexual abuse must be
reversed because he was denied his rights under the United States
and Illinois Constitutions to unanimous jury verdicts. The jury
was given general verdict forms for each crime.
We first note that the record contains no alternate
instructions or verdict forms tendered by defendant. Unless all
instructions, both given and refused, are contained in the
record, "a claim of error based on the giving or refusal of
instructions will not be heard." People v. Daily, 41 Ill. 2d 116, 121, 242 N.E.2d 170 (1968). This argument is waived.
Even if the issue were properly before us, the trial court
did not err. When several counts are charged, a general verdict
form is sufficient when the various counts state the same
transaction. People v. Travis, 170 Ill. App. 3d 873, 892, 525 N.E.2d 1137 (1988); People v. Josephine, 165 Ill. App. 3d 762,
767, 520 N.E.2d 745 (1987). Defendant cites several Illinois and
federal cases for the proposition that separate verdicts are
required for each separate incident alleged. United States v.
Holley, 942 F.2d 916 (5th Cir. 1991); United States v. Echeverri,
854 F.2d 638, 643 (3d Cir. 1988); United States v. Gipson, 553 F.2d 453, 456 (5th Cir. 1977); People v. Scott, 243 Ill. App. 3d
167, 612 N.E.2d 7 (1993); Josephine, 165 Ill. App. 3d 762; People
v. Wurbs, 38 Ill. App. 3d 360, 347 N.E.2d 879 (1976); People v.
Diekelmann, 367 Ill. 372, 11 N.E.2d 420 (1937). As defendant
acknowledges, these cases involved multiple transactions.
Our research reveals no Illinois case defining the "same
transaction" in the context of general verdicts. The State
directs us to several instructive cases involving the joinder
provision of the Code of Criminal Procedure of 1963, which
provides that separate counts may be charged in a single
indictment if they "are based on the same act or on [two] or more
acts which are part of the same comprehensive transaction." 725
ILCS 5/111-4(a) (West 1994). Under this statute, courts consider
several factors in determining when multiple acts constitute one
transaction: (1) proximity of time and location; (2) existence of
a shared common purpose; and (3) similarity of the evidence to
establish elements of the offense. People v. Jackson, 233 Ill.
App. 3d 1089, 1098, 599 N.E.2d 1192 (1992); People v. Mays, 176
Ill. App. 3d 1027, 1037, 532 N.E.2d 843 (1988).
The reasoning of other states is helpful. Other states have
concluded that when the state proceeds on a theory that defendant
engaged in a continuous course of conduct, a separate verdict is
not required for each individual occurrence. See Soper v. State,
731 P.2d 587 (Alaska App. 1987); People v. Winkle, 206 Cal. App. 3d 822, 253 Cal. Rptr. 726 (1988); State v. Spigarolo, 556 A.2d 112, 210 Conn. 359 (1989). In Winkle, the California Court of
Appeals held that a unanimity instruction was not required where
the victim testified about a series of similar molestations
without identifying specific dates. Winkle, 206 Cal. App. 3d at
830, 253 Cal. Rptr. at 730. In Spigarolo, the supreme court of
Connecticut concluded that the lack of a unanimous jury
instruction did not deprive the defendant of his right to a
unanimous verdict when the state had proceeded under a theory
that the defendant's conduct was "in the nature of a continuing
offense." Spigarolo, 556 A.2d at 129, 210 Conn. at 391. In
Soper, the Alaska Court of Appeals held that the trial court did
not err in failing to instruct the jury that it must agree on a
particular incident of sexual abuse when the victim testified to
a "general course of conduct." Soper, 731 P.2d at 591.
We first address defendant's argument relating to the
criminal sexual assault and aggravated sexual abuse verdict
forms. Defendant argues that the jury should have been given
separate forms for each type of sexual penetration and for each
of three identifiable "episodes" of sexual interaction. He
argues that the signed verdicts may not have reflected unanimous
agreement on a particular "episode."
The jury was not required to agree on the specific type of
penetration or the specific incident of sexual interaction.
Unable to assert specific dates of sexual activity between
defendant and Heard, the State proceeded on a theory that
defendant engaged in a continuous course of conduct in violation
of section 12-16(d) of the Criminal Code (720 ILCS 5/12-16(d)
(West 1994) and section 12-13(a)(4) (West 1994) of the Criminal
Code (720 ILCS 5/12-13(a)(4)). Although defendant asserts there
were at least three "episodes" of unlawful conduct alleged, the
testimony at trial established an ongoing sexual relationship
between defendant and Heard. The general verdict form was
proper.
The State proceeded on a similar theory in relation to the
obstruction of justice counts. The State introduced testimony
to show that defendant's efforts to remove Heard from Illinois
and to obtain retractions of her statements were part of a
continuous course of conduct to thwart a single prosecution. The
evidence supported obstruction of justice counts as parts of the
same transaction, and the general verdict form was proper.
Nonpublishable material under Supreme Court Rule 23 omitted.
Affirmed.
LEAVITT, P.J., and GORDON, J., concur.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
