People v. Blake

                                                                SIXTH DIVISION
                                                                March 31, 1997











No. 1-95-3823


THE PEOPLE OF THE STATE OF ILLINOIS,    )       Appeal from
                                        )    the Circuit Court
          Plaintiff-Appellee,           )     of Cook County.
                                        )
     v.                                 )     No. 93-CR-23609
                                        )
GLENNELL BLAKE,                         )        Honorable
                                        )       Ralph Reyna,
          Defendant-Appellant.          )     Judge Presiding.



     JUSTICE THEIS delivered the opinion of the court:

     Following a bench trial, defendant was found guilty of six counts
of criminal sexual assault.  The trial court sentenced defendant to
two consecutive terms of eight years' imprisonment.  On appeal,
defendant initially argues that double jeopardy barred prosecution of
three counts where the State nolled those counts, and then attempted
to reinstate them.  We agree and vacate defendant's conviction for
counts 6, 7, and 8, and remand for resentencing.
     The State charged defendant with two counts of aggravated
criminal sexual assault, six counts of criminal sexual assault, four
counts of aggravated criminal sexual abuse, and two counts of unlawful
restraint.  The charges arose out of two attacks against a minor on
August 9, 1993.  The victim, a 13-year-old girl with a learning
disability, attended a family party where the defendant was present. 
Defendant knew the victim for approximately five years prior to the
attack.  Both the victim and the defendant spent the night at the
hostess's home.  The victim shared a bed with the hostess's four-year-
old grandchild.  The victim claimed that she awoke in the middle of
the night to discover her hands tied behind her head, and the
defendant on top of her.  Defendant removed his pants and warned the
victim not to tell anyone about the attack.  Defendant raped the
victim.
     The victim awoke the hostess's niece, Janet Eason, and told her
that the defendant was "messing with me."  Unaware of the severity of
the situation, Eason told the victim to tell the defendant to stop
messing with her.  The victim returned to her bedroom to find that the
defendant had left.  Later in the evening, however, the defendant
returned to the victim's room and repeated the assault.  The victim
again ran to Eason, who awoke the hostess, Ruby Woods.  Eason and
Woods asked the victim if the defendant had sex with her, and the
victim replied that he did not.  
     Approximately one month later, the victim informed family friend
Daniella Adams that the defendant had raped her and warned her not to
tell anyone.  Adams informed the victim's mother, who brought the
victim to the hospital.  Dr. Vera Davis examined the victim and found
that she had been penetrated and had sustained vaginal trauma.  The
defendant turned himself into police but denied raping the victim.
     The State called Eason, Adams, and the victim's mother to
testify.  In addition, the parties stipulated to the findings of Dr.
Davis.  Following this stipulation, the State rested.  On the Friday
prior to the defendant's presentation of its case, the assistant
State's Attorney went through the charges in open court to determine
whether any duplicate charges should be nolled.  
     The assistant State's Attorney initially stated that counts 1 and
2 were identical.  The State nolled count 2, despite the trial court's
interjection that, because defendant allegedly committed two acts,
perhaps counts 1 and 2 could remain.  In addition, the assistant
State's Attorney nolled all of the aggravated criminal sex abuse
charges, and one count of unlawful restraint.  The trial court
surmised that only counts 1, 3-8, and 13 remained.  The parties then
addressed the six counts of criminal sexual assault contained in
counts 3, 4, 5, 6, 7, and 8.  The following colloquy occurred:
               "[ASSISTANT PUBLIC DEFENDER]:  I see [counts]
          three and six are the same.
               [ASSISTANT STATE'S ATTORNEY]:  Judge, I think
          that with respect to Count 3 --
               THE COURT:  Three and six are the same, right?
               [ASSISTANT STATE'S ATTORNEY]:  Yeah, I think
          3, 4, 5, 6, 7 and 8 are probably going to be
          duplicative of 3, 4, and 5.
               THE COURT:  3 and 6 are the same.  4.
               [ASSISTANT STATE'S ATTORNEY]:  And 7 are
          probably the same.
               THE COURT:  4 and 7 are the same.
               [ASSISTANT STATE'S ATTORNEY]:  Okay, and I
          would venture to say that 5 and 8 are the same. 
          They are.  So I would nolle 6, 7 and 8.
               THE COURT:  Okay, you're directing counts
          number 6, 7, 8?
               [ASSISTANT STATE'S ATTORNEY]:  Correct.
               THE COURT:  Motion [S]tate nolle prosse. 
          Defendant demands trial on those counts."
     The assistant State's Attorney then stated that she misspoke as
to counts 1 and 2, and asked the trial court to reinstate count 2. 
The court agreed and the defendant did not object.  Defense counsel
did, however, make a motion for a directed finding of acquittal on
counts 1 and 2, claiming that unlawful restraint could not be used as
a felony to aggravate criminal sexual assault.  
     The court continued the case until the following Wednesday.  On
Wednesday, the trial court granted the defendant's motion for a
directed verdict as to counts 1 and 2.  The assistant State's Attorney
nolled count 13, but stated that she had nolled counts 6, 7, and 8 in
error.  Over defense counsel's objection, the trial court reinstated
counts 6, 7, and 8.  The trial proceeded as to counts 3 through 8.   
     Defendant testified in his own behalf and denied raping or
otherwise assaulting the victim.  Defendant's aunt, Ruby Woods,
testified that, on the night of the alleged attack, the victim denied
that the defendant raped her.  The defense rested and the trial court
found defendant guilty on all six counts of criminal sexual assault.  
     Defendant filed a motion for a new trial, claiming that double
jeopardy barred prosecution of counts 6, 7, and 8.  The court denied
defendant's motion, finding that defendant was not prejudiced by the
reinstatement of the counts.  The court sentenced defendant to eight
years' imprisonment on counts 3, 4, and 5, and eight years'
imprisonment on counts 6, 7, and 8.  Although the court was silent as
to whether the sentences would run consecutively or concurrently, the
sentencing order states that the sentences are to be served
consecutively.
     On appeal, defendant reasserts his claim that double jeopardy
barred the State from proceeding on counts 6, 7, and 8 after the
assistant State's Attorney had nolled those counts.  Section 3-4(a)(3)
of the Criminal Code of 1961 provides that:
               "(a)  A prosecution is barred if the defendant
          was formerly prosecuted for the same offense, based
          upon the same facts, if such former prosecution: 
                                  *   *   *
               (3)  Was terminated improperly after the jury
          was impaneled and sworn or, in a trial before a
          court without a jury, after the first witness was
          sworn but before findings were rendered by the
          trier of facts, or after a plea of guilty was
          accepted by the court."   720 ILCS 5/3-4(a)(3) 
          (West 1994).  
Shortly after the Criminal Code of 1961 was enacted, this court
interpreted section 3-4 as being consistent with the common law rule
that a nolle prosequi after jeopardy attaches amounts to an acquittal
and a bar to further prosecution.  See People v. Miller, 55 Ill. App.
2d 146, 204 N.E.2d 305 (1965), rev'd in part on other grounds, 35 Ill. 2d 62, 219 N.E.2d 475 (1966).
     In a bench trial, jeopardy attaches after the first witness is
sworn in and the court hears the evidence.  People v. Wallace, 210
Ill. App. 3d 325, 568 N.E.2d 1332 (1991).  Accordingly, while the
State may refile charges nolled before jeopardy attaches (People v.
Mooar, 92 Ill. App. 3d 852, 416 N.E.2d 81 (1981)), the State is barred
from subsequently prosecuting charges nolled after jeopardy has
attached.  People v. Yarbrough, 179 Ill. App. 3d 198, 534 N.E.2d 695
(1989), citing People v. Jackson, 132 Ill. App. 2d 1059, 271 N.E.2d 673 (1971).
     In the case at bar, the State nolled counts 6, 7, and 8 after
presenting its case in chief.  The State does not dispute that
jeopardy had attached, but argues that such a determination merely
begins rather than ends the inquiry as to whether double jeopardy bars
subsequent prosecution, citing People v. Mulcahey, 155 Ill. 2d 549,
617 N.E.2d 1176 (1993).  In Mulcahey, the State nolled felony charges
against the defendant after the defendant agreed to plead guilty to a
misdemeanor.  The State refiled the felony charges when the defendant
refused to plead guilty to the misdemeanor charge.  The Illinois
Supreme Court held that while jeopardy had attached, the State was
free to refile the felony charges noting that "the defendant ***
voluntarily chose to seek termination of his trial *** prior to a
verdict."  Mulcahey, 155 Ill. 2d  at 557, 617 N.E.2d  at 1180.
Finding that the nolle was expressly conditioned upon the defendant's
guilty plea, the court ruled that double jeopardy afforded the
defendant no protection from the reinstatement of the felony charges.  
Mulcahey, 155 Ill. 2d 549, 617 N.E.2d 1176.
     We note that all of the cases relied upon by the Mulcahey court
in support of its finding that double jeopardy did not apply involved
the defendant's voluntary election to terminate the trial on grounds
"unrelated to guilt or innocence."  United States v. Scott, 437 U.S. 82, 96, 57 L. Ed. 2d 65, 77, 98 S. Ct. 2187, 2196 (1978).  In
discussing the Scott decision, the Mulcahey court stated that:  "The
[United States Supreme] Court found that by deliberately choosing to
seek termination of the proceedings prior to a verdict, the defendant
suffered `no injury cognizable under the Double Jeopardy Clause. " 
Mulcahey, 155 Ill. 2d 549, 556-57, 617 N.E.2d 1176, 1180, quoting
Scott, 437 U.S.  at 99, 57 L. Ed. 2d  at 79, 98 S. Ct.  at 2198.  
     Conspicuously absent from the present case is any deliberate or
voluntary conduct by the defendant to secure the nolle.  The defendant
did not agree to plead guilty to a lesser offense (People v. Mulcahey,
155 Ill. 2d 549, 617 N.E.2d 1176 (1993)), or to testify in another
proceeding (Ricketts v. Adamson, 483 U.S. 1, 97 L. Ed. 2d 1, 107 S. Ct. 2680 (1987)) in exchange for the nolle.  Because we find that the
only circumstances in which the Illinois or United States Supreme
Courts have departed from the common law rule against reinstatement
involved such voluntary conduct, we hold that double jeopardy bars the
State from reasserting counts 6, 7, and 8 against this defendant. 
Accordingly, we vacate the defendant's conviction on counts 6, 7, and
8.
     Defendant argues that under the Illinois Supreme Court's holding
in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977), we must also
vacate his convictions on counts 4 and 5 as they are based upon the
identical physical act as found in count 3.  We acknowledge that "[i]f
the offenses were based on a single act ***, then only the conviction
for the most serious offense [is] permitted."  King, 66 Ill. 2d  at
562, 363 N.E.2d  at 842.  However, the State presented evidence of two
separate attacks.  Counts 3, 4, and 5 do not distinguish between the
first and the second attacks.  Because we cannot determine with any
degree of certainty whether the current sentence is appropriate, we
remand this case for resentencing.  See People v. Olsen, 161 Ill. App.
3d 945, 514 N.E.2d 233 (1987).
     Finally, defendant argues that counts 4 and 5 must be vacated
because the State failed to present sufficient evidence to sustain
convictions on these counts.  In count 4, the State alleged that the
defendant penetrated the victim and "he knew that T.L. was unable to
understand the nature of the act."  In count 5, the State alleged the
same conduct and further stated that the victim was "unable to give
knowing consent."  Defendant argues that the State presented
insufficient evidence as to whether the victim was unable to
understand the nature of the act or give knowing consent.  In support
of his position, defendant notes that the victim was cognizant enough
to protest the alleged attacks, and was knowledgeable enough to use
the terms vagina and penis.  
     We review defendant's sufficiency of the evidence argument under
the standard set forth in People v. Collins, 106 Ill. 2d 237, 478 N.E.2d 267 (1985).  Under the Illinois Supreme Court's decision in
Collins, we must determine whether, after viewing the evidence in a
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of first degree murder beyond
a reasonable doubt.  Collins, 106 Ill. 2d 237, 478 N.E.2d 267.  In
ruling whether a victim understood the nature of a sexual act, this
court has held that mere evidence the victim understood the physical
nature of sexual relations is not sufficient to establish that the
victim comprehended the social and personal costs involved.  People v.
Weiss, 263 Ill. App. 3d 725, 635 N.E.2d 635 (1994). 
     In reviewing the evidence presented by the State, we note that at
the time of the attack, the victim was 13 years old and the defendant
was 30 years old.  The victim was educationally mentally handicapped
and was enrolled in special education classes.  The victim's mother
testified that the victim's learning disability sometimes affected her
ability to articulate her feelings.  Defendant had known the victim
for approximately five years prior to the attack.  The trier of fact
is in the best position to judge the credibility of the witnesses, and
to determine the weight to be given their testimony and the reasonable
inferences to be drawn therefrom.  People v. Campbell, 146 Ill. 2d 363, 586 N.E.2d 1261 (1992).  After viewing the evidence in the light
most favorable to the prosecution, we cannot say that no rational
trier of fact could have found that the victim was unable to
understand or give consent to intercourse with the defendant. 
Accordingly, we reject defendant's challenge to the sufficiency of the
evidence.
     Affirmed in part and vacated in part; remanded for resentencing.
     GREIMAN, P.J., and ZWICK, J., concur.