                           No. 2--04--0660
_________________________________________________________________________
_______

                                          IN THE

                             APPELLATE COURT OF ILLINOIS

                           SECOND DISTRICT
_________________________________________________________________________
______

THE PEOPLE OF THE STATE                     )     Appeal from the Circuit Court
OF ILLINOIS,                                )     of Kane County.
                                            )
       Plaintiff-Appellee,                  )
                                            )
v.                                          )     No. 02--CF--2575
                                            )
CHRISTOPHER R. SALINAS,                     )
                                      Honorable
                                            )
                                      Patricia Piper Golden,
     Defendant-Appellant.              )     Judge, Presiding.
_________________________________________________________________________
________

       JUSTICE GILLERAN JOHNSON delivered the opinion of the court:

       Following a jury trial, the defendant, Christopher R. Salinas, was convicted of two

counts of concealment of a homicidal death (720 ILCS 5/9--3.1 (West 2002)). The

defendant was sentenced to two concurrent terms of 52 months' imprisonment and ordered

to give a blood sample for genetic marker testing pursuant to section 5--4--3 of the Unified

Code of Corrections (Code of Corrections) (730 ILCS 5/5--4--3 (West 2002)). On appeal,

the defendant argues that he was not convicted beyond a reasonable doubt of one of the

counts of concealment of a homicidal death, because the evidence showed that the victim

was still alive when the concealment occurred. The defendant additionally argues that

section 5--4--3 of the Code of Corrections is unconstitutional. We affirm in part and reverse

in part.
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      On December 23, 2002, the defendant was charged by indictment with four counts

of first degree murder (720 ILCS 5/9--1(a)(1), (a)(2) (West 2002)), four counts of felony

murder (720 ILCS 5/9--1(a)(3) (West 2002)), one count of aggravated vehicular hijacking

(720 ILCS 5/18--4(a)(4) (West 2002)), two counts of aggravated arson (720 ILCS 720 5/20-

-1.1(a)(1), (a)(2) (West 2002)), and two counts of concealment of a homicidal death (720

ILCS 5/9--3.1 (West 2002)) for the shooting death and cover-up of the death of Angjel

Marko and Klaudio Mara. Counts XII and XIII of the indictment, charging the defendant

with concealment of a homicidal death, alleged that on July 8, 2002, the defendant had set

a motor vehicle occupied by Marko and Mara on fire, with knowledge that Marko and Mara

had died by homicidal means.

      The trial court conducted a jury trial on April 5, 2004. The evidence at trial

established as follows. A few days prior to July 8, 2002, the defendant's parents and

younger brother had gone away on vacation, leaving the defendant and his older sister at

home in Aurora. During the evening of July 8, 2002, the defendant had several friends over

to his home and the gathering evolved into a party. Around midnight, Marko and Mara

arrived in Marko's newly purchased 1995 Mercedes. Mara asked to talk with Brenda

Angeles, a guest at the party.

      After some persuading, Angeles got into Marko's Mercedes to talk to Mara. Before

Angeles could get out of the car, Marko, who was driving, sped away. When the defendant

and his friend Henry Samaniego realized that Angeles was missing from the party, they

took Angeles' car and began looking for her. The defendant and Samaniego spotted

Angeles at a nearby intersection. Angeles, who had managed to get out of Marko's car




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when it had stopped at a stop sign, got into the car with the defendant and Samaniego and

returned to the party.

       Once back at the party, the defendant asked Frank Aquino, another one of his

guests, for the gun he had seen Aquino with earlier in the evening. Aquino, carrying the

gun, followed the defendant outside the house. When the defendant and Aquino were

standing on the front porch, Marko and Mara pulled into the driveway. The defendant

approached the passenger side of the car and Aquino approached the driver's side of the

car. The defendant spoke with Mara and eventually shook his hand.

       While the defendant was shaking Mara's hand, Aquino shot Marko in the head.

Marko slumped over the steering wheel, apparently unconscious. Marko's car started to

roll backwards because Marko had just put the car in reverse. Mara reached for the

steering wheel and Aquino then shot Mara in the head. The car rolled down the driveway

and into a fence across the street. Aquino pushed Marko's body over on top of Mara's

body and got into the driver's seat. Aquino told the defendant to get in the car and the

defendant got in the back seat.

       Aquino drove Marko's car to an industrial park near Austin Avenue and Rural Street

in Aurora and left it there. The defendant and Aquino then walked to Aquino's house, which

was a few blocks away. Aquino retrieved from the basement of his house some keys to a

small blue car that was parked near the house. Aquino then filled a gas can with gas and

put the gas can in the trunk of the blue car. Aquino and the defendant drove the blue car

back to the industrial park. At the industrial park, Aquino directed the defendant to pour

gasoline in the Mercedes. The defendant began pouring the gasoline in the car, but Aquino

took over because he wanted the gasoline poured on the bodies.


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       The evidence as to who actually set the car on fire was conflicting. Samaniego

testified that the defendant had told him that he set the car on fire with a book of matches.

According to the defendant's own testimony and the admissions the defendant made to

police, Aquino tried to light a piece of paper with a cigarette lighter but the lighter did not

work very well. As such, Aquino and the defendant drove back to the defendant's house,

where Aquino told the defendant to get another lighter. The defendant retrieved a lighter

from within his house and as instructed by Aquino gave the lighter to another guest at the

party named Tony. Tony had come to the defendant's party with Aquino in Aquino's Lincoln

Town Car. Aquino and Tony then left the party in the blue car. The defendant drove

Aquino's Lincoln back to Aquino's house and never went back to the industrial park.

       Early morning July 9, 2002, as dawn was breaking, police discovered Marko's

Mercedes on fire in the industrial park with Marko's and Mara's bodies inside the car.

Autopsies showed that each had died from a single gunshot wound to the head. However,

the autopsy on Marko revealed that he had been alive when the fire was started. The

coroner's physician explained that Marko had soot in his airway and carbon monoxide in his

blood and must have inhaled smoke from the fire. During its closing argument, the State

reminded the jury that the autopsy results showed that Marko was still alive when the car

was set on fire.

       Following the presentation of the above evidence, the jury was instructed on the

charges of felony murder based on aggravated arson, aggravated arson, and concealment

of a homicidal death. The trial court directed verdicts of acquittal on the first degree murder

charges. The State had nol-prossed, prior to trial, the aggravated vehicular hijacking charge

and two felony murder counts based on aggravated vehicular hijacking. The jury was also


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instructed on the theory of accountability and on the affirmative defense of compulsion.

The jury found the defendant not guilty on the two charges of felony murder and the charge

of aggravated arson, but guilty on both charges of concealment of a homicidal death.

         Following a sentencing hearing, the trial court sentenced the defendant to two

concurrent terms of 52 months' imprisonment. The trial court also mandated that the

defendant submit to DNA testing pursuant to section 5--4--3 of the Code of Corrections

(730 ILCS 5/5--4--3 (West 2002)). Following the denial of his posttrial motions, the

defendant filed a timely notice of appeal.

         The defendant's first contention on appeal is that he was not convicted beyond a

reasonable doubt of the concealment of the homicidal death of Marko, because Marko was

still alive when the concealment occurred.

         It is not the function of the reviewing court to retry a defendant when considering a challenge to the

sufficiency of the evidence. People v. Collins, 106 Ill. 2d 237, 261 (1985). A criminal conviction

will not be set aside on the grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that

there remains reasonable doubt of the defendant's guilt. People v. Hobley, 159 Ill. 2d 272, 313

(1994); People v. Tye, 141 Ill. 2d 1, 13 (1990). 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. Collins, 106 Ill. 2d at 261. The determination of the

weight to be given to the witnesses' testimony, their credibility, and the reasonable inferences to be drawn from

the evidence is the responsibility of the trier of fact. People v. Steidl, 142 Ill. 2d 204, 226 (1991);

Collins, 106 Ill. 2d at 261. This standard applies whether the evidence is direct or circumstantial and

whether the conviction is the result of a jury trial or a bench trial. People v. Cooper, 194 Ill. 2d 419,

431 (2000).


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       The offense of concealment of a homicidal death is defined as such: "A person

commits the offense of concealment of homicidal death when he conceals the death of any

other person with knowledge that such other person has died by homicidal means." 720

ILCS 5/9--3.1 (West 2002). Two elements must be established in order to sustain a

conviction of concealment of a homicidal death: (1) knowledge that a homicidal death has

occurred and (2) an affirmative act of concealment of the death. People v. Fenderson, 157

Ill. App. 3d 537, 544 (1987). The question becomes whether, in order to establish the first

element of the crime, it must be proved that the victim was deceased when the act of

concealment occurred.

       In Fenderson, the Illinois Appellate Court, Fifth District, was confronted with a

situation where the victim was still alive when the concealment occurred. In that case, the

defendant was convicted of both murder and concealment of a homicidal death for beating

the victim to death and then scalding the victim in a hot shower to conceal the beating.

Fenderson, 157 Ill. App. 3d at 540-44. The defendant appealed the conviction of the

concealment, arguing that the victim was not dead when the scalding occurred.

Fenderson, 157 Ill. App. 3d at 544.       The reviewing court reversed the defendant's

concealment conviction, noting that the concealment statute requires that the concealment

occur "with knowledge" that the person "has died." Fenderson, 157 Ill. App. 3d at 544-45.

The reviewing court further noted that a criminal statute must be construed strictly in favor

of an accused and, thus, that nothing should be taken by implication against the accused

beyond the obvious or literal meaning of the statute. Fenderson, 157 Ill. App. 3d at 544.

Accordingly, in line with the plain language of the statute, the reviewing court determined

that the offense of concealment of a homicidal death requires that the victim be deceased


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at the time of the concealment. Fenderson, 157 Ill. App. 3d at 544. We find the reasoning

in Fenderson to be persuasive.

        In this case, like Fenderson, one of the victims apparently had not died when the act

of concealment occurred. The coroner's physician testified that Marko had soot in his

airway and carbon monoxide in his blood and, thus, was alive when the car was started on

fire. The State even reminded the jury of such during its closing argument. Because

Marko had not yet died when the defendant undertook the act of concealment, the

defendant was not proved guilty beyond a reasonable doubt of concealing Marko's

homicide. Therefore, the defendant's conviction of and sentence for the concealment of

Marko's homicide must be reversed. We take note of the State's position that it seems

incomprehensible that a defendant may escape a conviction of concealment of a homicidal

death just because the victim may not have been dead when the defendant undertook acts

to conceal a homicide. However, any defect in the statute must be cured by the legislature.



        The defendant's final contention on appeal is that section 5--4--3 of the Code of

Corrections is unconstitutional. This argument is without merit. In People v. Garvin, 349 Ill.

App. 3d 845, 853-56 (2004), this court upheld the validity of the statute that the defendant

challenges. Recently, the Illinois Supreme Court affirmed this court's determination that

section 5--4--3 of the Code of Corrections is constitutional. People v. Garvin, No. 99031,

slip. op. at 16 (March 23, 2006). Our supreme court explained that the State's interest in effective

crime investigations and prevention, as advanced by section 5--4--3 of the Code of Corrections, outweighs

a defendant's privacy interests as a convicted felon. Garvin, slip. op. at 16. Accordingly, we reject the

defendant's challenge to the constitutionality of section 5--4--3 of the Code of Corrections.


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      For the foregoing reasons, the judgment of the circuit court of Kane County is

affirmed as to count XIII charging the defendant with concealing the homicide of Mara and

reversed as to count XII charging the defendant with concealing the homicide of Marko.

      Affirmed in part and reversed in part.

      BYRNE and KAPALA, JJ., concur.




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