People v. Witherspoon

883 N.E.2d 725, 379 Ill. App. 3d 298, 318 Ill. Dec. 494, 2008 Ill. App. LEXIS 159
CourtAppellate Court of Illinois
DecidedFebruary 26, 2008
Docket4-06-0226
StatusPublished
Cited by33 cases

This text of 883 N.E.2d 725 (People v. Witherspoon) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Witherspoon, 883 N.E.2d 725, 379 Ill. App. 3d 298, 318 Ill. Dec. 494, 2008 Ill. App. LEXIS 159 (Ill. Ct. App. 2008).

Opinions

JUSTICE MYERSCOUGH

delivered the opinion of the court:

In a fit of jealousy, defendant, Marcelus Witherspoon, beat up his girlfriend. The State brought charges against him. A jury convicted him of several counts, and the trial court sentenced him to six years each on counts V and VI (attempt (aggravated criminal sexual assault)), three years for count VIII (aggravated domestic battery) and one year for count IX (domestic battery with a prior domestic-battery conviction) — all sentences to run consecutively, for a total of 16 years in prison. Defendant appeals, arguing (1) the State failed to prove him guilty beyond a reasonable doubt of count VI, attempt, because the evidence failed to demonstrate that he made a second attempt to commit aggravated criminal sexual assault with the board; and (2) the court erred in ordering consecutive sentences. The State concedes, and we agree, that the sentences on counts VIII and IX should be concurrent instead of consecutive; we remand the case with directions to amend the sentencing order accordingly. Otherwise, we affirm defendant’s convictions as modified.

I. BACKGROUND

A. The Information

The information contains nine counts, all of them alleging acts of violence that defendant perpetrated against K.D. on September 6, 2005. Counts I through IV charge him with aggravated criminal sexual assault, a Class X felony (720 ILCS 5/12 — 14(a)(2), (d)(1) (West 2004)). Count I alleges that by the use of the force, he placed a knife sharpener on K.D.’s vagina and in so doing, inflicted bodily harm upon her by striking her on the face with his hands. Count II is identical to count I except it alleges he placed the knife sharpener on her vagina “a second time.” Count III alleges he placed the knife sharpener on her vagina and in so doing, threatened her life by strangling her about the neck with his hands. Count IV is identical to count III except it alleges he placed the knife sharpener on her vagina “a second time.”

Counts V and VI charge defendant with attempt (aggravated criminal sexual assault), a Class 1 felony (720 ILCS 5/8 — 4(a), (c)(2), 12 — -14(a)(2) (West 2004)). We quote these two counts because, in our analysis, we refer to them in detail. Count V reads as follows:

“[D]efendant *** committed] the offense of attempt (aggravated criminal sexual assault), in that ***, with the intent to commit the offense of [aggravated [cjriminal [s]exual [a]ssault, *** [he] performed a substantial step toward the commission of that offense, in that ***, while holding a piece of wood, [he] grabbed [K.D.], held her, and tried to ram the board into the sex organ of [K.D.].”

Count VI is identical to count V except for the addition of the final adverbial phrase “tried to ram the board into the sex organ of [K.D.], a second time.” (Emphasis added.)

Counts VII and VIII charge defendant with aggravated domestic battery, a Class 2 felony (720 ILCS 5/12 — 3.3(a), (b) (West 2004)). Count VII alleges he caused “great bodily harm” to K.D., a family or household member, by striking her in both her legs with a board, inflicting contusions to her inner right thigh, right calf, left leg, and left ankle. Count VIII alleges he caused her “great bodily harm” by striking her approximately 12 times in the face with both of his open hands, inflicting contusions to her eyes, her chin, and the right side of her neck.

Count IX charges defendant with domestic battery with a prior domestic-battery conviction, a Class 4 felony (720 ILCS 5/12 — 3.2(a)(1), (b) (West 2004)), in that having been previously convicted of domestic battery in People v. Witherspoon, No. 01 — CF—853 (Cir. Ct. Macon Co.), he threw K.D. onto the couch and strangled her with his hands to the point where she could not breathe.

B. The Trial

In the jury trial, K.D. testified she had known defendant for years and dated him a couple of months. On September 5, 2005, he rang her cellular telephone repeatedly, but she did not answer, for she was unwilling to speak with him at the time. On September 6, 2005, she arrived home around 1:45 a.m. As she pulled into her driveway, defendant pounded on the windows of her truck, asking her where she had been and why she had not answered his calls. When she got out of the truck, he grabbed her by the hair on the back of her head and escorted her to the front door of her house. She unlocked the door, and they went inside. In the living room, he struck her in the face about a dozen times with his open hands, making her ears ring and her nose and mouth bleed. Then he calmed down momentarily and told her to go clean the blood off her face. When she emerged from the bathroom, he tried to cut her hair off with a knife, accusing her of being with someone else. She fought him off, and he calmed down again and ordered her to go to bed. She did so, and soon thereafter, he entered the bedroom, and they had sex (“I didn’t refuse him”). He then returned to the living room, and she slept.

Defendant woke her a couple of hours later and told her was going to leave and attend to some business. K.D. let him have the keys to her truck. He told her he would be back. She got out of bed and took a shower, trying to make herself feel better. While she was showering, defendant came back into her house. He had her purse, which he had taken out of her truck. He turned off the water in the shower and flung the purse at her, demanding to know why she had condoms in her purse. He grabbed her by the hair of her head and pulled her, wet and naked, out of the shower and into the living room. She testified:

“A. I’m on the ground, and he’s asking me why I have condoms, who[m] else am I fucking, stuff of that nature. He goes and grabs a [two- by four-inch] board that I use to lock my back [sliding-glass] door with, and I get up off the ground and go[ ] into the kitchen[ ] [be]cause I don’t know what he’s doing. I see him come back with a board, and I’m thinking!,] [W]hat are you doing? And he starts hitting me with it in the legs like a baseball bat.
Q. So, you were the baseball!,] and the board was the bat?
A. Evidently.
Q. Okay. Where did he hit you in the legs?
A. He struck me multiple times in my legs.
Q. Which ones? Both?
A. Both of them.
Q. Thighs?
A. Thighs, cal[ves], outside, inside, ankle.
Q. Okay.
A. All over my lower extremities.
A. I think he got me on the arm [good one] time with it.
Q. And at this point, what are you thinking?

A. I mean, I don’t know what to think.

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Cite This Page — Counsel Stack

Bluebook (online)
883 N.E.2d 725, 379 Ill. App. 3d 298, 318 Ill. Dec. 494, 2008 Ill. App. LEXIS 159, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-witherspoon-illappct-2008.