                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Hurry, 2013 IL App (3d) 100150-B




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    SCOTT D. HURRY, Defendant-Appellant.



District & No.             Third District
                           Docket No. 3-10-0150


Filed                      September 12, 2013
Modified upon denial
of rehearing               January 16, 2014


Held                       On appeal from defendant’s convictions on 10 counts of predatory
(Note: This syllabus       criminal sexual assault of a child, the convictions on the first three counts
constitutes no part of     were affirmed, but the convictions on the next two counts were reduced
the opinion of the court   to aggravated criminal sexual abuse and the remaining counts were
but has been prepared      reversed and the sentences were vacated due to deficiencies in the
by the Reporter of         evidence corroborating defendant’s confession, and the cause was
Decisions for the          remanded for resentencing on the two counts that were reduced to lesser
convenience of the         offenses.
reader.)


Decision Under             Appeal from the Circuit Court of Henry County, No. 09-CF-124; the
Review                     Hon. Ted J. Hamer, Judge, presiding.



Judgment                   Affirmed in part and reversed in part; cause remanded.
Counsel on                  Verlin R. Meinz, of State Appellate Defender’s Office, of Ottawa, for
Appeal                      appellant.

                            Terence M. Patton, State’s Attorney, of Cambridge (Judith Z. Kelly, of
                            State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the
                            People.


Panel                       JUSTICE McDADE delivered the judgment of the court, with opinion.
                            Justices Carter and O’Brien concurred in the judgment and opinion.




                                              OPINION

¶1          Following the filing of our opinion in this cause, the supreme court issued a supervisory
        order directing this court to vacate its judgment and reconsider the case in light of its
        decision in People v. Lara, 2012 IL 112370. See People v. Hurry, No. 114348 (Ill. Mar. 27,
        2013 (supervisory order). The following is a new opinion issued in compliance with the
        court’s instructions.
¶2          Defendant, Scott D. Hurry, was charged with 10 counts of predatory criminal sexual
        assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Following a bench trial, the
        circuit court of Henry County found defendant guilty of all charges. He was sentenced to
        consecutive terms of imprisonment totaling 108 years. Defendant appeals his convictions,
        arguing that the State failed to prove the corpus delicti of 8 of the 10 charges. We affirm
        defendant’s convictions on counts I, II, and III; reduce his convictions on counts IV and V
        from predatory criminal sexual assault to aggravated criminal sexual abuse (720 ILCS 5/12-
        16 (West 2006)); reverse his convictions on counts VI through X; and remand the case for
        resentencing on counts IV and V.

¶3                                                FACTS
¶4          On April 7, 2009, defendant was charged with 10 counts of predatory criminal sexual
        assault of a child (720 ILCS 5/12-14.1(a)(1) (West 2006)). Count I alleged that defendant
        placed his finger in the vagina of R.J.S., count II alleged that defendant placed his penis in
        the vagina of R.J.S., and counts III through X alleged that defendant placed his penis in the
        mouth of R.J.S. The cause proceeded to a bench trial.
¶5          At trial, R.J.S. testified that she was nine years old. She stated that defendant touched her
        vagina on more than one occasion. One such incident occurred when R.J.S. was home alone
        with defendant and her brother. Defendant and R.J.S. went into her mother’s bedroom, where
        defendant threatened to kill her mother if she did not do what he asked. R.J.S. complied, and

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       defendant’s hand touched the outside of her vagina. Defendant also made R.J.S. touch his
       penis with her hands and her mouth. R.J.S. testified that something like that had happened
       before.
¶6         On another occasion defendant placed his penis in R.J.S.’s vagina. Another incident
       occurred in R.J.S.’s bedroom, where defendant made R.J.S. touch his penis with her hands.
       Again, defendant threatened R.J.S. by telling her that he would hurt her mother if she did not
       comply. R.J.S. stated that defendant made her touch his penis with her hands on yet another
       occasion when they were riding “three-wheelers” by a bridge.
¶7         Officers Dyan Morrisey and Daniel Wisdom testified to a conversation they had with
       defendant. According to the officers, defendant admitted to the allegations contained in the
       10 counts against him. Defendant stated that on one occasion when R.J.S.’s mother was at
       the grocery store and her brother was playing video games, he told R.J.S. to go into her
       mother’s bedroom and get undressed. He went into the room, removed all of his clothing
       except for his boxers and penetrated R.J.S.’s vagina with his finger. He then attempted to
       penetrate her with his penis; however, she said “Ow,” so he stopped. Defendant then made
       R.J.S. perform oral sex on him by placing his penis in her mouth.
¶8         Defendant also confessed to other incidents of sexual contact. He stated that he made
       R.J.S. perform oral sex on him when they were riding three-wheelers and once when they
       were traveling to his mother’s house in Missouri. Defendant claimed that he had R.J.S.
       perform oral sex on him a couple times a week for three to four weeks.
¶9         The trial court found defendant guilty on all counts. Defendant appeals.

¶ 10                                        ANALYSIS
¶ 11       Defendant argues that the State failed to prove the corpus delicti of 8 of the 10 charges
       of predatory criminal sexual assault of a child. Defendant’s contention is a challenge to the
       sufficiency of the evidence. People v. Sargent, 239 Ill. 2d 166 (2010). When presented with
       a challenge to the sufficiency of the evidence, it is not the function of this court to retry
       defendant; rather, the relevant question is whether, after viewing the evidence in the light
       most favorable to the prosecution, any rational trier of fact could have found the essential
       elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237 (1985).
¶ 12       Under Illinois law, proof of an offense requires proof of two distinct propositions or facts
       beyond a reasonable doubt: (1) that a crime occurred, i.e., the corpus delicti; and (2) that the
       crime was committed by the person charged. Sargent, 239 Ill. 2d 166. While defendant’s
       confession may be integral to proving the corpus delicti, it is well established that proof of
       the corpus delicti may not rest exclusively on defendant’s extrajudicial confession,
       admission, or other statement. Id. Still, the corpus delicti is not required to be proved beyond
       a reasonable doubt exclusively by evidence independent of the confession. People v.
       Perfecto, 26 Ill. 2d 228 (1962). If there is evidence of corroborating circumstances which
       tend to prove the corpus delicti and correspond with the circumstances related in the
       confession, both the circumstances and the confession may be considered in determining
       whether the corpus delicti is sufficiently proved in a given case. Id. However, where
       defendant confesses to multiple offenses, the corroboration rule requires that there be

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       independent evidence tending to show that defendant committed each of the offenses for
       which he was convicted. Lara, 2012 IL 112370.
¶ 13       In this case, defendant contends that the State failed to prove the corpus delicti for count
       I and counts IV through X.

¶ 14                                          A. Count I
¶ 15       Count I alleged that defendant committed an act of sexual penetration by placing his
       finger in the vagina of R.J.S. According to Morrisey’s and Wisdom’s testimony, defendant
       admitted to penetrating R.J.S.’s vagina with his finger. R.J.S.’s testimony corroborated that
       sexual contact occurred between defendant and R.J.S. on the evening in question. However,
       defendant claims that R.J.S.’s statement that he touched her on the outside should reduce the
       crime from predatory criminal sexual assault to aggravated criminal sexual abuse.
¶ 16       To support his argument, defendant cites Sargent, 239 Ill. 2d 166, People v. Richmond,
       341 Ill. App. 3d 39 (2003), and People v. Bell, 234 Ill. App. 3d 631 (1992). The instant case,
       however, is distinguishable from those cases. In Sargent, no evidence existed that would tend
       to prove defendant fondled, or even came into contact with, the victim’s penis other than
       defendant’s confession. Similarly, in Richmond, only defendant’s statement established that
       defendant’s penis touched the victim’s vagina. In this case, R.J.S.’s testimony places
       defendant’s fingers directly on her vagina. Thus, her testimony established corroborating
       circumstances that tended to prove that defendant’s confession was accurate.
¶ 17       This case is also distinguishable from Bell. In Bell, when asked whether defendant rubbed
       the victim’s privates or inserted his finger into her, the victim responded that defendant
       “rubbed it.” The court found that, because this was the only evidence of the assault, a
       reasonable inference could not be drawn that defendant penetrated the victim. Here, the
       statement by R.J.S. is similar; however, in this case the State produced other evidence by way
       of defendant’s confession that would allow a reasonable inference of defendant’s guilt.
       Therefore, we find that defendant’s confession was sufficiently corroborated by other
       evidence that tended to prove the accuracy of his statements, and thus the corpus delicti of
       count I was proven.

¶ 18                                 B. Counts IV Through X
¶ 19       Defendant further alleges that the State failed to prove the corpus delicti for counts IV
       through X. Counts III through X alleged that defendant committed an act of sexual
       penetration by placing his penis in the mouth of R.J.S. According to Morrisey’s and
       Wisdom’s testimony, defendant confessed to placing his penis in R.J.S.’s mouth a couple
       times a week for approximately three to four weeks. Evidence of such contact was
       corroborated by R.J.S.’s testimony that her mouth touched defendant’s penis while she and
       defendant were in her mother’s bedroom. However, her testimony only established one
       instance of such conduct. The State produced no other corroborating evidence that clearly
       showed defendant had placed his penis in the mouth of R.J.S. on any other occasion.
¶ 20       In Lara, 2012 IL 112370, the Illinois Supreme Court made it clear that the independent


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       evidence necessary to prove the corpus delicti is minimal. Nonetheless, the court did not
       overrule its prior holding in Sargent, 239 Ill. 2d 166, where it stated that a confession
       involving more than one offense requires independent evidence tending to show that the
       defendant committed each of the offenses for which he was convicted. In Lara, the defendant
       was charged with two separate offenses, and the victim testified to two separate incidents in
       which the defendant assaulted her. Unlike in Lara, the victim here testified to only one
       instance of penis to mouth contact. Therefore, based on Sargent and Lara, only one of
       Counts III through X can stand.
¶ 21        Even though we find that the State’s evidence only corroborated one instance of penis
       to mouth contact, the State did produce independent evidence that on two separate occasions
       defendant made R.J.S. touch his penis with her hands. Based on this evidence, and pursuant
       to Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967), we reduce defendant’s convictions on
       counts IV and V from predatory criminal sexual assault to aggravated criminal sexual abuse
       (720 ILCS 5/12-16 (West 2006)).

¶ 22                                            C. Remand
¶ 23        Defendant argues that we should remand the cause to the trial court for resentencing on
       the counts that we affirm as well as those that we do not. In support, defendant cites two
       earlier decisions of this court, People v. Hert, 95 Ill. App. 3d 871 (1981), and People v.
       Green, 83 Ill. App. 3d 982 (1980). We agree that those cases stand for the proposition that
       remand for resentencing on all affirmed convictions is automatic if any of the convictions
       are vacated. However, since the decisions in those two cases, the Illinois Supreme Court has
       ruled that remand for resentencing is not required where: (1) the circuit court sentenced
       defendant separately on each conviction; and (2) the record does not otherwise show that the
       court considered the vacated convictions in imposing sentence on the remaining convictions.
       People v. Maggette, 195 Ill. 2d 336 (2001). Therefore, to determine if the cause should be
       remanded for resentencing, we must do the analysis required by Maggette.
¶ 24        Here, it is clear that the circuit court sentenced defendant separately on each conviction.
       Defendant contends, however, that the record indicates that the trial court considered the
       vacated convictions in imposing sentence on the remaining convictions. As evidence of this,
       defendant cites the trial court’s discussion of the factors in aggravation. The court stated:
            “There’s no question but that the defendant’s acts of sexual assault on a seven-year-old
            girl certainly present a threat of serious mental harm to her, and, in addition, the
            penetration by the defendant as alleged and proven in Counts I and II certainly threatened
            physical harm, and the other acts also threatened physical harm by way of any sexually
            transmitted diseases that may have been possible here.”
¶ 25        Our reading of the record leads us to conclude that the trial court was simply stating that
       each individual act, and not a combination of all of the acts, threatened physical harm, and
       therefore each conviction contained that factor in aggravation. Thus, the sentences on counts
       I, II, and III stand, as we do not find that the trial court considered the vacated convictions
       when it sentenced defendant on those counts.


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¶ 26                                     CONCLUSION
¶ 27       In sum, we affirm defendant’s convictions and sentences on counts I, II, and III. We
       reduce defendant’s convictions from predatory criminal sexual assault to aggravated criminal
       sexual abuse on counts IV and V. Defendant’s convictions on counts VI through X are
       reversed, and the sentences on those counts are vacated. Finally, we remand the case for
       resentencing on counts IV and V.
¶ 28       The judgment of the circuit court of Henry County is affirmed in part and reversed in
       part.

¶ 29      Affirmed in part and reversed in part; cause remanded.




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