People v. Rahmouni

2021 IL App (1st) 191319-U

• Court: Appellate Court of Illinois
• Decided: June 11, 2021
• Docket: 1-19-1319
• Status: Unpublished

Opinion

2021 IL App (1st) 191319-U FIFTH DIVISION JUNE 11, 2021

No. 1-19-1319

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 15 CR 19991 ) WALID RAHMOUNI, ) Honorable ) William V. Raines, Defendant-Appellant. ) Judge Presiding. _________________________________________________________________________

JUSTICE CUNNINGHAM delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment.

ORDER

¶1 Held: The defendant’s conviction for aggravated kidnaping and sentence of 102 years’ imprisonment are affirmed.

¶2 Following a jury trial in the circuit court of Cook County, the defendant-appellant, Walid

Rahmouni, was convicted of home invasion, aggravated kidnaping, armed robbery, aggravated

criminal sexual assault, and aggravated criminal sexual abuse. He was sentenced to 102 years’

imprisonment. The defendant now appeals, arguing that his conviction for aggravated kidnaping

cannot stand and that the circuit court erred in his sentencing. For the reasons that follow, we 1-19-1319

affirm the judgment of the circuit court of Cook County.

¶3 BACKGROUND

¶4 The defendant was charged with two counts of home invasion, one count of aggravated

kidnaping, one count of armed robbery, eight counts of aggravated criminal sexual assault, and

two counts of aggravated criminal sexual abuse for an incident that occurred on November 7, 2015.

A jury trial commenced, and the following evidence was presented.

¶5 A.L. testified that in November 2015, she was 21 years old and lived alone in a second-

floor studio apartment on North Elston Avenue in Chicago. She was attending college at

Northwestern University and working at CVS Pharmacy. On November 6, 2015, A.L.’s shift at

CVS finished around 10:30 p.m. and her mother picked her up and drove her back to her apartment.

Once inside her apartment, she Skyped with her boyfriend, watched television, then fell asleep at

approximately 1 a.m. She testified that the weather was “nicer than normal” that night, so she slept

with her windows open, although they had screens on them.

¶6 A.L. awoke to “a large crashing noise.” She did not know how long she had been asleep

before hearing the crashing noise. She did not get out of bed because she thought the sound was

her cat knocking something over. Suddenly, A.L. saw a stranger standing next to her bed and

looking down at her. Then the stranger got on top of her body and placed something “cold and

sharp” that felt like a box cutter against her neck. A.L. screamed and the stranger told her to “shut

up and that it was going to happen.” In court, A.L. identified the defendant as the stranger.

¶7 A.L. testified that she stopped screaming and the defendant began to touch her and kiss her

neck. She tried to shove the defendant away and find her phone to call for help, but she was unable

to do so. The defendant remained on top of A.L. and touched her breasts and hips over her clothes

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with his hands and mouth. The defendant then pulled down A.L.’s pants and underwear and

inserted his finger inside her vagina. A.L. said “anything [she] could” to get the defendant to stop,

including telling him that she had various sexually transmitted diseases. The defendant was

undeterred. He touched her vagina with his mouth for a while and then got back on top of her. The

defendant took her shirt off, kissed her breasts, and forced her to kiss him. The defendant then put

his penis inside A.L.’s vagina. A.L. continued to tell the defendant “no” and “stop,” but the

defendant did not stop. The defendant also forced A.L. to perform oral sex.

¶8 The defendant led A.L. to the bathroom by forcibly grabbing her arm. He made her get into

the bathtub and told her to bathe herself. The defendant found a bottle of peroxide and told her to

wash herself with it. After removing her from the bathtub, the defendant took A.L.’s cell phone

and made her give him the passcode to unlock it. The defendant kept the phone.

¶9 The defendant forced A.L. out of the bathroom and back to the bed, where he pushed her

face down. The defendant then put his penis inside her anus and ejaculated. The defendant removed

his penis, but then put it back inside both her anus and vagina for a while. A.L. kept asking the

defendant to stop, and the defendant responded by telling her that she “liked it.”

¶ 10 Eventually, the defendant stood up and told A.L. to stay down on the bed. The defendant

grabbed A.L.’s laptop, went through her drawers and backpack, and removed a gold diamond ring

from her finger. The defendant then went back to the window and exited A.L.’s apartment through

the screen, taking with him A.L’s laptop, cell phone, ring, and debit card. At that point, A.L.

noticed that the window screen had been cut diagonally. After the defendant climbed out of the

window, he said to A.L. “you are not going to tell on me, right if you have my kid?” A.L. told the

defendant that she was not going to tell on him. A few seconds later, the defendant came back

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through the window and began looking for something on the floor. A.L. noticed a key on the floor

that she did not recognize and picked it up and gave it to the defendant in hopes that he would

leave. The defendant grabbed the key from her and left the apartment through the window.

¶ 11 After the defendant left her apartment, A.L. slammed the windows shut, put on some

clothes, and ran into her apartment hallway screaming for help. She knocked on different doors

until someone answered. Finally, a man opened his front door. A.L. told him that she had been

raped and he let her use his phone to call 911. The record shows that the 911 call was placed at

5:20 a.m.

¶ 12 A.L. was subsequently taken to the hospital in an ambulance. At the hospital, a rape kit

was conducted. Afterwards, police officers interviewed A.L. at the hospital and showed her a photo

array with a series of pictures. A.L. identified the defendant in the photo array as the stranger who

broke into her apartment and raped her. A.L. did not know the defendant before that night and did

not give him permission to enter her apartment.

¶ 13 Jose Zuniga testified that on November 7, 2015, he was living in an apartment on North

Elston Avenue in Chicago. A little after 5 a.m., there was a knock on his front door and he opened

it. He saw a “young lady” who looked “very sad.” She told him that she had been raped and that

“her phone had been taken away.” Mr. Zuniga brought her inside his apartment and gave her his

phone to call 911.

¶ 14 Heidi Ulreich, a registered nurse at Swedish Covenant Hospital, testified that in the early

morning hours of November 7, 2015, A.L. was brought into the emergency room for sexual assault.

Nurse Ulreich performed a rape kit on A.L. and collected anal, vaginal, and oral swabs from her.

She also collected swabs from A.L.’s breasts, lower back, nose, and mouth.

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¶ 15 Detective Demetrios Kolliopoulos testified that he was assigned to investigate A.L.’s

sexual assault. He arrived at the scene on North Elston Avenue at approximately 6 a.m. Detective

Kolliopoulos entered A.L.’s apartment and looked out the rear windows. He testified that the rear

windows in A.L.’s apartment faced a flat roof of another building. He further explained that the

flat roof butted up against A.L.’s apartment building and to a row of windows that led directly into

A.L.’s apartment. Detective Kolliopoulos testified that he went onto the flat roof via an exterior

stairwell that was not locked. A small fence separated the stairwell from the flat roof, but someone

could easily “just hop over it.” Detective Kolliopoulos was able to access A.L.’s apartment

windows by doing so and testified that he could have easily crawled through one of her apartment

windows. He saw that one of the window’s screens had been cut.

¶ 16 Detective Kolliopoulos testified that when he was standing outside A.L.’s apartment

windows, he observed a cell phone and an identification card laying on the flat roof. The

identification card belonged to the defendant. A.L. subsequently identified the cell phone as hers.

¶ 17 Detective Charles Hernandez testified that he went to Swedish Covenant Hospital on

November 7, 2015, and met A.L. in the emergency room. He showed her a photo array, which

contained six photographs. A.L. identified the defendant in the photo array “almost immediately.”

¶ 18 Investigator Rubin Delvalle, a member of the Chicago Police Department Fugitive Task

Force, testified that he was assigned to locate the defendant. On November 17, 2015, his team

located the defendant on board a Greyhound bus that was preparing to leave Chicago. The

defendant was then taken into custody.

¶ 19 Brian Schoon, an expert in forensic DNA analysis, testified that he was assigned to perform

DNA testing and analysis in this case. He received a blood sample from A.L., as well as samples

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from the vaginal, anal, and lower back swabs from her rape kit. He also received a buccal standard

swab from the defendant. The test results identified a human male DNA profile on the vaginal

swabs which matched the DNA profile of the defendant and a human male DNA profile from the

lower back swabs which matched the DNA profile of the defendant.

¶ 20 The State then rested. The defendant made a motion for a directed verdict, which the trial

court denied.

¶ 21 The defendant testified that his family owned and operated a restaurant where he often

spent his time. He testified that he occasionally met a woman at the restaurant, whom he referred

to by a common abbreviation of A.L.’s first name, but he did not specifically testify that A.L. was

that woman. The defendant testified that on November 7, 2015, at around 1:00 or 1:30 a.m., he

met the woman at the restaurant, and then they went to her apartment next door, where they

“chill[ed], smoke[d] weed,” and “had sex.” After they had sex, they had an argument about money.

The defendant left her apartment and never spoke to her again. He denied that he had a box cutter

or any weapon on him that night, and also denied that he climbed through any windows. Following

his testimony, the defendant rested.

¶ 22 After closing arguments, the jury found the defendant guilty on all counts.

¶ 23 The case proceeded to sentencing. In aggravation, the State informed the trial court that the

defendant had prior convictions for residential burglary and possession of a stolen motor vehicle.

A.L.’s victim impact statement told the defendant that the person she used to be “died the day [he]

chose to break into her apartment” and that he took her “body” and her “sanity.” A.L.’s statement

explained that she no longer had her apartment, job, or school program because the defendant had

“sexually assault[ed] [her] for hours.” A.L.’s statement said that she had become “afraid, [ ]

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depressed, and [ ] forever damaged.” The defendant declined to make a statement.

¶ 24 The trial court sentenced the defendant to an aggregate term of 102 years’ imprisonment:

16 years for six of the aggravated criminal sexual assault counts (a total of 96 years) plus 6 years

for aggravated kidnaping. The remaining counts were either merged into the other counts and/or

the sentences for those counts were ordered to run concurrently. The defendant did not move to

reconsider his sentence. This appeal followed.

¶ 25 ANALYSIS

¶ 26 We note that we have jurisdiction to consider this matter, as the defendant filed a timely

notice of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017).

¶ 27 The defendant presents the following issues on appeal: (1) whether his conviction for

aggravated kidnaping should be reversed; and (2) whether the trial court erred in sentencing him.

¶ 28 The defendant first argues that his aggravated kidnaping conviction cannot stand. He

claims that the kidnaping in this case was incidental to the other offenses of home invasion, armed

robbery, and sexual assault, and did not pose an additional danger to A.L. He accordingly requests

reversal of his conviction for aggravated kidnaping.

¶ 29 We review the operative offense of aggravated kidnaping:

“A person commits the offense of kidnapping when he or she knowingly:

(1) and secretly confines another against his or her will; (2) by force or threat of

imminent force carries another from one place to another with intent secretly to

confine that other person against his or her will; or (3) by deceit or enticement

induces another to go from one place to another with intent secretly to confine that

other person against his or her will.” 720 ILCS 5/10-1(a) (West 2016).

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And a person commits aggravated kidnaping when he or she commits another felony upon the

kidnaping victim. 720 ILCS 5/10-2(a)(3) (West 2016). A defendant should not be convicted of

kidnaping where the asportation or confinement of the victim was merely incidental to another

crime. People v. Eyler, 133 Ill. 2d 173, 199 (1989). This court has established four factors to

consider when determining whether an asportation or confinement is merely ancillary to another

offense, or whether it rises to the level of an independent crime of kidnaping. People v. Siguenza-

Brito, 235 Ill. 2d 213, 225–26 (2009). These factors include: (1) the duration of the asportation or

confinement; (2) whether the asportation or confinement occurred during the commission of a

separate offense; (3) whether the asportation or confinement is inherent in the separate offense;

and (4) whether the asportation or confinement created a significant danger to the victim

independent of that posed by the separate offense. Id.

¶ 30 The question of whether an asportation was incidental to another crime “challenges

incriminating inferences that may have been drawn by the trier of fact from the evidence,” and so

the correct standard of review is that which applies to a challenge of the sufficiency of the evidence.

People v. Sumler, 2015 IL App (1st) 123381, ¶ 53. When a defendant challenges the sufficiency

of the evidence, the proper standard of review is whether, after viewing the evidence in the light

most favorable to the State, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt. People v. Gray, 2017 IL 120958, ¶ 35. A criminal conviction

will not be reversed for insufficient evidence unless the evidence is so unreasonable, improbable,

or unsatisfactory that it justifies a reasonable doubt as to the defendant’s guilt. Id.

¶ 31 We begin our analysis of whether the kidnaping in this case was incidental to the other

offenses with the first factor, the duration of the asportation or confinement. Although A.L.

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testified that she did not know precisely what time the defendant broke into her apartment, it can

be reasonably inferred that the defendant confined her more than just a few minutes. A.L. fell

asleep at approximately 1 a.m., she was awakened by the defendant at some point after she fell

asleep, she stated that the defendant sexually assaulted her for hours, she called 911 almost

immediately after the defendant left, and her call was placed at 5:20 a.m. The most logical

presumption would be that the defendant confined A.L. inside her apartment for several hours

sometime between 1 a.m. and 5 a.m. Not to mention that the defendant sexually assaulted A.L.

numerous times in multiple ways, which also required a substantial amount of time. Furthermore,

the defendant confined A.L. for more time than he needed to sexually assault her, including forcing

her to take a bath in between the sexual assaults. See People v. Young, 115 Ill. App. 3d 455, 470

(1983) (the defendant’s aggravated kidnaping conviction could not stand where the duration of the

detention was only for the period of time necessary to accomplish the rape). Simply put, the

duration of time for which A.L. was confined by the defendant was significant.

¶ 32 In looking at the second factor, whether the asportation or confinement occurred during the

commission of a separate offense, we note that before the defendant began sexually assaulting and

robbing A.L., he held a box cutter (or a similar weapon) against her throat, told her not to scream,

and prevented her from leaving or calling for help. Moreover, between the episodes of sexual

assaults, the defendant confined A.L. to the bathroom, forced her to take a bath, give him the

passcode to her locked phone, and retained the phone. These activities are clearly not in and of

themselves part of the sexual assaults, so it cannot be said that the kidnaping only occurred during

the commission of the sexual assaults.

¶ 33 Turning to the third factor, neither the asportation nor means of confinement that occurred

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were inherent in the other offenses. In order for asportation or confinement to be inherent in a

separate offense, it must constitute an element of that offense.

Sumler, 2015 IL App (1st) 123381, ¶ 59. Clearly, asportation and confinement are not elements of

home invasion, armed robbery, or sexual assault.

¶ 34 Finally, we consider the fourth factor, whether the asportation or confinement created a

significant danger to the victim independent of that posed by the other separate offenses. As

discussed, before the defendant began sexually assaulting A.L., he held a box cutter (or a similar

weapon) to her throat and threatened her. He also confined her in the bathroom and forced her to

wash herself with peroxide. These acts created an independent danger to A.L. separate from the

home invasion, armed robbery, and sexual assault. This is especially true, since it has been well

established that an independent danger arises from the potential for more serious criminal activity

due to the privacy of the location where the victim is confined. A.L.’s apartment was such that the

defendant could confine her and carry out his activities without fear of interruption or discovery,

which created an independent danger to A.L. See People v. Ware, 323 Ill. App. 3d 47, 56 (2001)

(finding the difficulty in signaling for help and the diminished likelihood that a passerby would

observe the victim constituted an independent danger). Thus, after weighing all four factors, it is

clear that the aggravated kidnaping offense in this case was separate from the other offenses. We

accordingly reject the defendant’s argument and affirm his conviction for aggravated kidnaping.

¶ 35 The defendant next argues that the trial court erred in sentencing him to an aggregate term

of 102 years’ imprisonment. Specifically, he claims that the offenses for which he was convicted,

occurred as part of a single course of conduct with no substantial change in the criminal objective

and, as such, the consecutive sentencing statute’s limitation on aggregate terms applies. He argues

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that under the consecutive sentence statute, his maximum sentence is 80 years.

¶ 36 As an initial matter, the defendant concedes that he has forfeited this issue because he did

not challenge his sentence in the trial court. See In re Jovan A., 2014 IL App (1st) 103835, ¶ 16

(to preserve an issue for appeal, a defendant must object at trial and raise the issue in a posttrial

motion). Nonetheless, the defendant urges us to review the issue under the plain error doctrine,

which allows this court to bypass normal forfeiture principles and consider an unpreserved error

when either (1) the evidence is close, regardless of the seriousness of the error, or (2) the error is

serious, regardless of the closeness of the evidence. People v. Magallanes, 409 Ill. App. 3d 720,

727-28 (2011). The first step under either prong of the plain error doctrine is to determine whether

a clear or obvious error occurred at trial. People v. Anaya, 2017 IL App (1st) 150074, ¶ 58. We

will accordingly determine if the consecutive sentence statue applies to the defendant.

¶ 37 When multiple offenses are committed in a single course of conduct during which there

was no substantial change in the nature of the criminal objective, the sentence shall not exceed the

sum of the maximum terms for the two most serious felonies involved. 730 ILCS 5/5–8–4(f)(2)

(West 2016). The test to be used in determining whether multiple offenses were committed as part

of a single course of conduct is to ask: were the defendant’s acts independently motivated? People

v. Wilder, 325 Ill. App. 3d 987, 1001 (2001). When consecutive sentences are imposed pursuant

to the law and are supported by the record, they will not be reversed on review. People v. Biggs,

294 Ill. App. 3d 1046, 1053 (1998).

¶ 38 The defendant claims he maintained the same objective throughout the incident, which was

to rob and sexually assault A.L. The facts of this case cannot support such an argument. As

discussed, the defendant broke into A.L.’s apartment; held a box cutter (or a similar weapon) to

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her throat to keep her confined; trapped her inside her bathroom and forced her to wash herself

with peroxide; sexually assaulted her at different times in multiple ways; and robbed her. Clearly,

each of these were separate acts with distinct motivations. Thus it cannot be said that there was

just one criminal objective. See People v. Perruquet, 118 Ill. App. 3d 293, 296-97 (1983) (finding

that the defendant formed separate criminal objectives where “the defendant committed two acts

of rape against the victim that were separate in time and location” even though they occurred

during the same day). We therefore reject the defendant’s argument that his offenses were

committed as part of a single course of conduct. Consequently, the trial court did not err by failing

to sentence the defendant in accordance with the consecutive sentencing statute. Since there was

no error, there can be no plain error.

¶ 39 CONCLUSION

¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 41 Affirmed.

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