                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Kirkland, 2013 IL App (4th) 120343




Appellate Court             THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                     RONALD H. KIRKLAND, Defendant-Appellant.



District & No.              Fourth District
                            Docket No. 4-12-0343


Filed                       November 13, 2013


Held                        The trial court’s judgment that defendant was guilty of two counts of
(Note: This syllabus        aggravated criminal sexual abuse of his stepdaughters was upheld where
constitutes no part of      the record showed that the jury clearly intended to convict defendant on
the opinion of the court    both counts, even though the word “aggravated” was omitted on one of
but has been prepared       the verdict forms due to a typographical error, since defendant was not
by the Reporter of          prejudiced by the flawed verdict form; however, the Crime Stoppers fee,
Decisions for the           which is only applicable when a community-based sentence is imposed,
convenience of the          was vacated, because defendant was sentenced to prison.
reader.)


Decision Under              Appeal from the Circuit Court of Ford County, No. 11-CF-59; the Hon.
Review                      Stephen R. Pacey, Judge, presiding.



Judgment                    Affirmed as modified; cause remanded with directions.
Counsel on                 Michael J. Pelletier, Karen Munoz, and Arden J. Lang (argued), all of
Appeal                     State Appellate Defender’s Office, of Springfield, for appellant.

                           Matthew Fitton, State’s Attorney, of Paxton (Patrick Delfino, Robert J.
                           Biderman, and Luke McNeill (argued), all of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      JUSTICE HOLDER WHITE delivered the judgment of the court, with
                           opinion.
                           Justices Appleton and Pope concurred in the judgment and opinion.




                                              OPINION

¶1          In June 2011, the State charged defendant, Ronald H. Kirkland, by information with two
        counts of aggravated criminal sexual abuse (720 ILCS 5/12-16(b) (West 2010)) against his
        two stepdaughters, S.C. and B.C., both of whom were under the age of 17. The case
        proceeded to jury trial in January 2012. Following deliberations, the jury returned guilty
        verdict forms for both victims. The guilty verdict as to S.C. contained no errors. The guilty
        verdict form with regard to B.C., however, stated the offense as “criminal sexual abuse,”
        without the word “aggravated” preceding it. The parties did not bring the error to the trial
        court’s attention. The court entered judgment against defendant for both counts of aggravated
        criminal sexual abuse and sentenced defendant to five years in the Illinois Department of
        Corrections (DOC) on each count with the sentences to run concurrently. Additionally, the
        court ordered defendant to pay a $25 Crime Stoppers fee.
¶2          On appeal, defendant asserts (1) the jury wrongfully convicted him of the uncharged
        offense of criminal sexual abuse as to B.C., (2) if the verdict as to B.C. stands, defendant
        should be sentenced only for the offense of criminal sexual abuse, and (3) the trial court erred
        in imposing a Crime Stoppers fee. We affirm in part the trial court’s judgment and remand
        with directions to vacate the Crime Stoppers fee.

¶3                                       I. BACKGROUND
¶4          In June 2011, the State charged defendant by information with two counts of aggravated
        criminal sexual abuse (720 ILCS 5/12-16(b) (West 2010)) against his two stepdaughters, S.C.
        and B.C., both of whom were under the age of 17. The case proceeded to jury trial in January
        2012.
¶5          At trial, both victims testified defendant, over the course of a year, would take them
        individually into his bedroom, shut the door, and have them remove their clothes. He would

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       then proceed to rub his hands over their nude bodies, including their breasts and vaginal
       areas. B.C. testified defendant typically rubbed her body with vitamin E oil to “prevent
       stretch marks.” C.K., a friend of S.C., testified she observed defendant on several occasions
       enter his bedroom with B.C. and close the door. S.C. also confided in C.K. about defendant
       touching S.C. inappropriately. J.C., the teenage brother of S.C. and B.C., testified he
       observed defendant take S.C. and B.C. into the bedroom and lock the door. On one occasion,
       J.C. entered the bedroom to find defendant rubbing “something” on B.C.’s legs while she
       laid on the bed.
¶6         Sheree Foley, a caseworker from the Department of Children and Family Services
       (DCFS), testified defendant admitted rubbing the girls’ backs and rubbing B.C.’s body with
       vitamin E oil to prevent stretch marks. Defendant also admitted rubbing oil on the sides of
       B.C.’s breasts to prevent stretch marks on her breasts. He denied, however, making contact
       of a sexual nature with their breasts or vaginal areas. According to Foley, defendant said he
       received no sexual gratification or arousal from touching the girls. Defendant did not testify.
¶7         Following the presentation of evidence, the jury received a copy of the jury instructions
       from the trial court. The instructions included the definition of and issues related to
       aggravated criminal sexual abuse against both B.C. and S.C. The jury also received four
       verdict forms; a not guilty form and guilty form of verdict for each victim. Initially, the State
       provided erroneous verdict forms that provided two forms of guilty for S.C. and two forms
       of not guilty for B.C. Those initial verdict forms also contained a second error the parties
       failed to bring to the trial court’s attention–the verdict forms as to B.C. stated the offense as
       “criminal sexual abuse,” not as “aggravated criminal sexual abuse.” After the verdict forms
       were corrected to provide a “guilty” and “not guilty” verdict form as to both B.C. and S.C.,
       those forms were sent back to the jury room. The “corrected” instructions, however,
       continued to name criminal sexual abuse as the offense pertaining to B.C. The record does
       not reveal which party made the corrections to the verdict forms or whether the parties had
       the opportunity to review the corrected verdict forms before the court delivered them to the
       jury.
¶8         Following deliberations, the jury signed the guilty verdict forms as to both S.C. and B.C.
       However, the verdict form as to B.C. read, “We, the jury, find the defendant *** [g]uilty of
       [c]riminal [s]exual [a]buse with regard to [B.C.],” rather than aggravated criminal sexual
       abuse, as charged in the information. Neither party brought the erroneous verdict to the
       court’s attention.
¶9         In February 2012, defendant filed a posttrial motion challenging the sufficiency of the
       evidence, which the trial court denied. Defendant did not challenge the inaccurate verdict
       form in his posttrial motion. Following a March 2012 sentencing hearing, the court sentenced
       defendant to five years in DOC on each count of aggravated criminal sexual abuse, a Class
       2 felony, with the sentences to run concurrently. The court also imposed a $25 Crime
       Stoppers fee. Later that month, defendant filed a motion to reconsider sentence, which the
       court denied. That motion did not challenge the verdict form as to B.C.
¶ 10       This appeal followed.



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¶ 11                                      II. ANALYSIS
¶ 12       On appeal, defendant asserts (1) the jury wrongfully convicted him of an uncharged
       offense of criminal sexual abuse as to B.C., (2) if the verdict as to B.C. stands, defendant
       should be sentenced only for the offense of criminal sexual abuse, and (3) the trial court erred
       in imposing a Crime Stoppers fee. We address these issues in turn.

¶ 13             A. Whether the Error on the Verdict Form Requires Reversal
¶ 14      We begin by noting defendant does not challenge his conviction with regard to S.C., so
       we affirm that conviction and will address defendant’s conviction of aggravated criminal
       sexual abuse only as to B.C.

¶ 15                                 1. The Parties’ Arguments
¶ 16       Defendant argues the verdict form with respect to B.C. reflects the jury convicted him
       of the offense of criminal sexual abuse against B.C. which, defendant asserts, denied him due
       process because criminal sexual abuse (1) was an uncharged offense and (2) is not a lesser-
       included offense of aggravated criminal sexual abuse. The State contends the verdict form
       contained a scrivener’s error and the jury intended to find defendant guilty of aggravated
       criminal sexual abuse as to B.C. In order to address defendant’s argument that the jury found
       him guilty only of criminal sexual abuse, we must first examine whether the incorrect verdict
       form constituted error.

¶ 17                     2. Whether Review of the Erroneous Jury Verdict
                                      Form Has Been Forfeited
¶ 18       Both parties assert the other party forfeited review of the error contained within the jury
       verdict form, as neither party raised the issue before the trial court. We note it was incumbent
       upon both parties to bring the error to the court’s attention in order for the court to seek
       further emendations, i.e., clarification, from the jury. See People v. Crite, 261 Ill. App. 3d
       1041, 1047, 634 N.E.2d 487, 491 (1994). Instead, neither party objected to the incorrect
       verdict form at any time, clearly with the belief the jury returned guilty verdicts as to both
       charges of aggravated criminal sexual abuse, as demonstrated by further proceedings in
       which the State failed to file a motion to amend the verdict form and defendant failed to
       object to the court sentencing defendant on both counts of aggravated criminal sexual abuse.
¶ 19       Because it is defendant who challenges the verdict form for the first time on appeal, we
       conclude the burden of persuasion is on defendant to demonstrate the trial court committed
       plain error by entering judgment on the aggravated criminal sexual abuse charge as to B.C.;
       otherwise, the issue is forfeited. See Ill. S. Ct. R. 615(a); People v. Piatkowski, 225 Ill. 2d
       551, 565, 870 N.E.2d 403, 411 (2007). A defendant demonstrates plain error by showing a
       clear or obvious error occurred and (1) the error alone threatened to tip the scales of justice
       in a closely balanced case or (2) the error is so serious that it affected the fairness of the trial
       and integrity of the judicial process. Piatkowski, 225 Ill. 2d at 565, 870 N.E.2d at 410-11.
¶ 20       The State concedes the flawed verdict form constituted a clear or obvious error as it

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       named the incorrect charge for which the jury was to find defendant guilty. We accept the
       State’s concession. Therefore, we turn to whether (1) the evidence in the case was so closely
       balanced that the error alone threatened to tip the scales of justice or (2) the error prejudiced
       defendant by affecting the fairness of the trial and the integrity of the judicial process.

¶ 21                          a. Was the Evidence Closely Balanced?
¶ 22       Defendant argues this was a closely balanced case, as the evidence in this case relied
       largely on the credibility of witnesses, specifically, the testimony of defendant’s teenage
       stepdaughters, who claimed defendant regularly rubbed oil or lotion on their bodies,
       including their breasts. This case does not rest on the stepdaughters’ statements alone, but
       also on other witnesses’ testimony that they observed the girls individually enter the bedroom
       with defendant, which corroborated the testimony of B.C. and S.C. Notably, the DCFS
       caseworker testified that defendant told her he had, indeed, rubbed oil or lotion on the girls
       underneath their clothing to help them relax. Moreover, he indicated that in an effort to help
       prevent B.C. from getting stretch marks, he rubbed lotion on the sides of her breasts and on
       her inner thigh area. He went on to state B.C. would not wear underwear when he rubbed the
       lotion on her inner thighs. During the trial defendant did not deny rubbing the girls’ bodies
       with lotion or oil, he simply denied engaging in the conduct for the purpose of his own
       sexual gratification. The only disputed question for the jury to determine was whether it
       believed defendant engaged in the conduct for the purpose of his own sexual gratification.
       In light of the circumstances, we conclude the evidence was not closely balanced as
       defendant suggests, but rather heavily favored the State.

¶ 23                          b. Did the Error Affect the Fundamental
                                    Fairness of Defendant’s Trial?
¶ 24        The next issue we will address is whether the error in the verdict form prejudiced
       defendant by affecting the fairness of the trial or the integrity of the judicial process. “The
       test of the sufficiency of a verdict is whether the jury’s intention can be ascertained with
       reasonable certainty from the language used.” People v. Mack, 167 Ill. 2d 525, 537, 658
       N.E.2d 437, 443 (1995). “[A]ll parts of the record will be searched and interpreted together
       in determining the meaning of a verdict.” Mack, 167 Ill. 2d at 537, 658 N.E.2d at 443.
       However, “[p]roper jury instructions do not necessarily cure an improper verdict.” Mack, 167
       Ill. 2d at 536, 658 N.E.2d at 442 (citing People v. Crite, 261 Ill. App. 3d 1041, 634 N.E.2d
       487 (1994)). In situations where the jury returns an unambiguous verdict, the trial court must
       not attempt to venture into the minds and deliberations of the jury to speculate about the
       jury’s intentions. Crite, 261 Ill. App. 3d at 1046, 634 N.E.2d at 490.
¶ 25        In Crite, the appellate court held the trial court lacked the authority to amend the jury’s
       verdict form where the verdict form incorrectly but unambiguously stated the jury found the
       defendant guilty of the uncharged offense of aggravated discharge of a firearm, a Class 1
       felony, rather than the charged offense of aggravated battery with a firearm, a Class X felony.
       Crite, 261 Ill. App. 3d at 1046, 1049, 634 N.E.2d at 490, 492. The appellate court determined
       “once a verdict has been rendered, accepted by the court, and judgment entered thereon, and

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       the jury has separated, the court has lost control of the verdict.” Crite, 261 Ill. App. 3d at
       1047, 634 N.E.2d at 491. At that point, the trial court may only grant a mistrial, judgment
       notwithstanding the verdict, or a new trial. Crite, 261 Ill. App. 3d at 1047, 634 N.E.2d at 491.
       Though the State asserted the error in the verdict form constituted a typographical error, the
       appellate court rejected that argument, stating:
           “The distinction, here, between the aggravated discharge of a firearm and the aggravated
           battery with a firearm verdict forms resulted from more than an error in mechanics. The
           difference between the determinate sentence for a Class 1 felony and the determinate
           sentence for a Class X felony is significant and cannot be justified on the basis of a
           typographical error, as the State asserts here. Describing the distinction between the two
           offenses as a ‘typographical error’ deprecates the thought and deliberation by the
           legislature in making the distinction.” Crite, 261 Ill. App. 3d at 1046, 634 N.E.2d at 490.
       The admonition in Crite discouraging “speculative attempt[s] to reconstruct the jury’s
       deliberations and divine its unexpressed conclusions” was cited with approval by the Illinois
       Supreme Court in Mack, 167 Ill. 2d at 536-37, 658 N.E.2d at 437.
¶ 26       Similarly in this case, the verdict form incorrectly but unambiguously stated the jury
       found defendant guilty of criminal sexual abuse, a Class 4 felony, rather than aggravated
       criminal sexual abuse, a Class 2 felony. However, in this case, no evidence suggests the jury
       had any offense to consider other than the aggravated criminal sexual abuse charge. In Crite,
       the instructions were mixed with references to both aggravated battery with a firearm and
       aggravated discharge of a firearm. Crite, 261 Ill. App. 3d at 1048, 634 N.E.2d at 491. Though
       Mack does point out that a flawed verdict form cannot always be cured by proper jury
       instructions, Mack also states the reviewing court should examine and interpret all parts of
       the record to determine the meaning of a verdict. Mack, 167 Ill. 2d at 536-37, 658 N.E.2d at
       442-43.
¶ 27       The State argues the error on the verdict form as to B.C. constituted a harmless
       typographical error, a minor mistake not resulting from judicial reasoning or determination;
       thus defendant was not denied his right to a fair trial. See Schaffner v. 514 West Grant Place
       Condominium Ass’n, 324 Ill. App. 3d 1033, 1042, 756 N.E.2d 854, 862 (2001) (defining a
       scrivener’s or clerical error as a mistake or inadvertence that does not result from judicial
       reasoning or determination). The State notes the trial contained no reference to the offense
       of criminal sexual abuse–not from testimony, opening or closing arguments, or in the law as
       presented in the jury instructions. Therefore, the State contends, the jury was not confused
       or misled but intended to find defendant guilty of aggravated criminal sexual abuse as to B.C.
       The State also cites case law from other states in support of its argument, but those cases are
       not necessary to our holding.
¶ 28       Our review of the record is consistent with the State’s arguments. Because of the unique
       factual circumstances in this case, we are of the opinion that unlike the jury verdict form in
       Crite, the jury verdict form in this case contained a typographical error. In addition, unlike
       in Crite, the trial court in this case did not alter the jury’s verdict. Without objection by any
       party, the court sentenced defendant on aggravated criminal sexual abuse as to B.C. The
       question thus becomes, how should the jury’s verdict be interpreted? The potential for juror


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       confusion in Crite arose from the parties referring to the incorrect charge on multiple
       occasions. Moreover, in Crite, various jury instructions referred to both the correct and
       incorrect charge. Finally, in Crite, the difference in the verdict form submitted to the jury and
       the one the State intended to submit to the jury was significant. It is a strain to argue a verdict
       form that should have stated the offense of aggravated battery with a firearm ended up
       stating, as a result of a typographical error, aggravated discharge of a firearm.
¶ 29       The previously mentioned problems in Crite are not present in this case. Here, throughout
       the trial, the parties and the court always referred to the offense against B.C. as aggravated
       criminal sexual abuse. In this case there is no reference in the jury instructions to the offense
       of criminal sexual abuse, except for the single flawed verdict form. The evidence as to B.C.
       and S.C. was almost identical; in fact, the evidence as to aggravated criminal sexual abuse
       as to B.C. was perhaps even stronger due to corroborating witness testimony. When the trial
       court read the instructions to the jury, the verdict forms were not read to the jury due to a
       different error in the jury forms. It is clear the word “aggravated” was simply left off the
       verdict form as to B.C. The jury had no indication that criminal sexual abuse was a separate
       crime, nor that it was an available option for a verdict.
¶ 30       Therefore, after considering the record as a whole, with particular focus on the jury
       instructions and the conduct of the court and the parties throughout the trial, we conclude the
       jury clearly intended to convict defendant of aggravated criminal sexual abuse and, but for
       the typographical error, the jury would have returned a guilty verdict of aggravated criminal
       sexual abuse as to B.C. Thus, defendant cannot show he suffered prejudice due to the flawed
       verdict form and the conviction for aggravated criminal sexual abuse must stand. Because
       we have determined defendant’s conviction for aggravated criminal sexual abuse stands, we
       need not address defendant’s arguments that (1) criminal sexual abuse is not a lesser-
       included offense of aggravated criminal sexual abuse or (2) defendant is entitled to a new
       sentencing hearing for the offense of criminal sexual abuse.
¶ 31       Our holding in this case is not meant to downplay the critical importance of accurate jury
       instructions and verdict forms, as it was the factual uniqueness of this case which prompted
       this opinion. We caution attorneys and judges to carefully read through all presented
       instructions to ensure the instructions contain no mistakes, lest an avoidable error mars an
       otherwise fair trial, causing the additional emotional toll and expense of a new trial.

¶ 32                                 B. Crime Stoppers Fee
¶ 33       Finally, defendant argues the trial court erred in imposing a $25 Crime Stoppers fee,
       which the court imposed as part of defendant’s sentence on both counts. The State concedes
       the issue, and we accept the State’s concession. An anti-crime fee imposed pursuant to
       section 5-6-3 of the Unified Code of Corrections (730 ILCS 5/5-6-3 (West 2010)), such as
       the Crime Stoppers fee, should only be imposed when a defendant receives a community-
       based sentence. People v. Beler, 327 Ill. App. 3d 829, 837, 763 N.E.2d 925, 931 (2002). As
       defendant received a prison sentence in this case, the Crime Stoppers fee was void and must
       be vacated.



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¶ 34                                     III. CONCLUSION
¶ 35       For the foregoing reasons, we affirm the trial court’s judgment as modified and remand
       with directions for the trial court to vacate the Crime Stoppers fee. As part of our judgment,
       because the State successfully defended a portion of this appeal, we award the State its $75
       statutory assessment against defendant as costs of this appeal. See 55 ILCS 5/4-2002(a)
       (West 2012); People v. Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985) (citing
       People v. Nicholls, 71 Ill. 2d 166, 178, 374 N.E.2d 194, 199 (1978)).

¶ 36      Affirmed as modified; cause remanded with directions.




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