A Bill Of Particulars Makes Sense In Multiple Count Sex Cases

People v. Campos, 2019 IL App (1st) 152613 (January). Episode 606 (Duration 8:46)

In a sex case you have to be careful with exactly what the allegations are and how it comes out at trial.

One-Act One Crime

The one-act, one-crime rule prohibits multiple convictions carved from the same physical act. See People v. Almond, 2015 IL 113817, ¶ 47; People v. King, 66 Ill. 2d 551, 566 (1977).

To determine whether simultaneous convictions violate the one-act, one-crime rule, this court performs a two-step analysis. People v. Miller, 238 Ill. 2d 161, 165 (2010).

First, we must determine if the offenses stem from multiple acts or a single act. Id. “Multiple convictions are improper if they are based on precisely the same physical act.” Id. An “act” is defined as any overt or outward manifestation that will support a different offense. King, 66 Ill. 2d at 566.

Second, if we determine that the offenses stem from separate acts, we move on to the second step of the analysis and determine whether any of the offenses are lesser-included offenses. Miller, 238 Ill. 2d at 165. “If an offense is a lesser-included offense, multiple convictions are improper.”

Charging Matters

In order for multiple convictions to stand, a charging instrument must indicate that the State intended to treat defendant’s conduct as multiple acts. People v. Crespo, 203 Ill. 2d 335, 342-45 (2001) (emphasizing that each stab wound made by defendant could have supported multiple convictions, but the indictment showed that the State intended to treat defendant’s conduct as a single attack because the State did not apportion the crimes among the stab wounds).

The record shows that the State charged defendant with multiple counts of aggravated criminal sexual abuse based on different physical acts that occurred during various time frames. Defendant was found guilty on eight of those counts (counts VI, VII, VIII, IX, XIV, XX, XXI, and XXII).

The Charges

Counts VI and XIV concern defendant’s touching of L.S.’s penis.

Count VI covers the time frame between August 26, 2010, and August 26, 2013. Count XIV covers the time frame between November 24, 2009, and August 26, 2013.

Counts VII, VIII, IX, XX, XXI, and XXII concern defendant’s touching of M.S.’s breasts and vagina with his hand and mouth. Counts VII, XIII, and IX cover the time frame between August 26, 2010, and August 26, 2013. Counts XX, XXI, and XXII cover the same conduct as counts VII, VIII, and IX, respectively, but concern the time frame between February 3, 2007, and August 25, 2010.

Issue

In this court, defendant argues that count VI should be vacated because it is duplicative of count XIV in that it alleges the same conduct and covers virtually the same time frame. He further argues that counts XX, XXI, and XXII are duplicative of counts VII, VIII, and IX, and should be vacated because the State’s evidence did not properly apportion his conduct to the different time periods covered by the charges.

Counts VI & XIV Distinct Acts

We begin our analysis by considering the evidence presented at trial to determine whether defendant’s convictions were based on the same physical act and occurred in the same period of time.

With respect to counts VI and XIV, we find that the trial court did not err in entering convictions on both counts of aggravated criminal sexual assault because the State’s evidence described separate acts, which occurred during the time frames specified in the charges. Stated differently, counts VI and XIV do not violate the one-act, one-crime rule because the State’s evidence showed two separate acts for which defendant was convicted.

Count VI alleged that defendant touched L.S.’s penis between the time frame of August 26, 2010, and August 26, 2013. During this time frame, L.S. was between 14 years old and 18 years old.

Count XIV alleged that defendant touched L.S.’s penis between the time frame of November 24, 2009, and August 26, 2013. During this time frame, L.S. was also between 14 years old and 18 years old.

At trial, the State’s witnesses testified that defendant touched L.S.’s penis on two separate occasions. There is no doubt that these are two separate and distinct acts, which occurred during the time frames specified in the charges. As such, because L.R. and M.S. both testified to different instances in which defendant touched L.S.’s penis, the convictions do not violate the one-act, one-crime rule. See also People v. Strawbridge, 404 Ill. App. 3d 460, 462-63 (2010).

Here, the trial court heard the testimony of M.S. and L.R., which described two separate acts that occurred at different points in time. Given this distinction, we cannot conclude that the trial court erred when it convicted defendant on counts VI and XIV.

Counts VIII & XXI Distinct Acts

Next, counts VIII and XXI are not duplicative because they are based on different acts that occurred during different periods of time.

Count VIII alleged that defendant touched M.S.’s vagina with his hand during the time frame between August 26, 2010, and August 26, 2013. During this time frame, M.S. was between 13 years old and 16 years old.

Count XXI alleged that defendant touched M.S.’s vagina with his hand during the time frame between February 3, 2007, and August 25, 2010. During this time frame, M.S. was between 10 years old and 13 years old. M.S. testified that, when she was 10 years old, defendant touched her vagina with his hand while she stood in a doorway in her underwear. This evidence supports defendant’s conviction on count XXI.

Likewise, M.S. testified to multiple instances of defendant touching her vagina with his hand when she was 14 years old and 16 years old. Any of these instances supports defendant’s conviction on count VIII.

Because the evidence shows that defendant was convicted based on separate physical acts that occurred during the specified time frames, these two convictions do not violate the one-act, one-crime rule.

Some Counts Must Be Vacated

However, we find that the trial court erred in convicting defendant of counts XX and XXII because the State’s evidence failed to establish that he committed separate acts during the specified time frame.

Counts XX and XXII alleged that defendant touched M.S.’s breasts with his hand or mouth, respectively, between February 3, 2007, and August 25, 2010. This time frame covered the period when M.S. was between the ages of 10 years old and 13 years old. The testimony at trial, however, only described instances that occurred when M.S. was 14 years old or older, which is the time period covered by counts VII and IX.

Specifically, M.S. testified that defendant touched her breasts with his mouth when she was 14 years old. Likewise, L.R. testified that she saw defendant touch M.S.’s breasts with his hands when M.S. was 15 years old. While defendant admitted, in his statement, that he started touching M.S. when she was “much younger” than 16 years old, there is no specific evidence that he touched her breasts in any way when she was younger than 14 years old as alleged in counts XX and XXII.

Holding

Accordingly, we conclude that defendant’s convictions on counts XX and XXII must be vacated for violating the one-act, one-crime rule because they are based on the same physical acts charged in counts VII and IX.

In sum, we affirm defendant’s convictions on counts VI, VII, VIII, IX, XIV, and XXI, and vacate defendant’s convictions and sentences on counts XX and XXII.