Illinois Official Reports

Appellate Court

People v. McCloud, 2020 IL App (3d) 180241

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

JOSEPH F. McCLOUD, Defendant-Appellant.

District & No. Third District 

No. 3-18-0241

Rule 23 order filed

Motion to

publish allowed

Opinion filed

August 13, 2020

September 4, 2020

September 4, 2020

Decision Under 

Review

Appeal from the Circuit Court of Will County, No. 17-CF-752; the 

Hon. Amy M. Bertani-Tomczak, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd and Thomas A. Karalis, of State Appellate Defender’s 

Office, of Ottawa (Nathaniel A. Nieman, of The Law Centre, of 

Rock Island, of counsel), for appellant.

James W. Glasgow, State’s Attorney, of Joliet (Patrick Delfino, 

Thomas D. Arado, and Richard T. Leonard, of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.
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Panel JUSTICE WRIGHT delivered the judgment of the court, with opinion.

Justices Holdridge and McDade concurred in the judgment and 

opinion.

OPINION

¶ 1 Defendant, Joseph F. McCloud, appeals his convictions for criminal sexual abuse, unlawful 

restraint, and battery. Defendant argues that his multiple convictions violate the one-act, onecrime rule and constitute plain error. We affirm.

¶ 2 I. BACKGROUND

¶ 3 The State charged defendant by criminal complaint with criminal sexual abuse (720 ILCS 

5/11-1.50(a)(1), (d) (West 2016)), unlawful restraint (id. § 10-3), battery (id. § 12-3(a)(2), (b)), 

and criminal trespass to real property (id. § 21-3(a)(2), (h)). The State dismissed the criminal 

trespass charge prior to trial. Count I of the complaint alleged that defendant committed 

criminal sexual abuse, a Class 4 felony, when he “by the use of force *** knowing [sic] touched 

the breast of Rose Marta for the purpose of *** sexual gratification or arousal.” Count II 

alleged that defendant committed unlawful restraint, a Class 4 felony, when he “knowingly 

and without legal authority detained *** Marta, in that he blocked her from exiting a home in 

her chosen way of exiting.” Count III alleged that defendant committed battery, a Class A 

misdemeanor, when he “without legal justification, knowingly made physical contact of an 

insulting or provoking nature with *** Marta, in that [he] touched *** Marta about her body.”

¶ 4 During a jury trial, Marta testified that she was walking on a public street when defendant 

grabbed her arm and dragged her to an abandoned house. Defendant pulled Marta through an 

open window into a room, threw her onto a bed, and tried to remove her pants. Marta fought 

back. Defendant put his hands down Marta’s pants and put his finger inside her vagina. 

Defendant also put his hand up Marta’s shirt, reached under her bra, and grabbed her breast. 

Defendant touched Marta’s body “[c]ountless” times. Marta pushed defendant off her at least 

three times, but each time defendant pulled her back onto the bed. During the struggle, Marta 

bounced off the bed onto the floor. Defendant remained on top of her. Marta grabbed a stick 

lying on the floor near her, struck defendant with it, and escaped.

¶ 5 The jury found defendant guilty of criminal sexual abuse, unlawful restraint, and battery. 

The court sentenced defendant to 5 years’ imprisonment for criminal sexual abuse, 5 years’ 

imprisonment for unlawful restraint, and 364 days in jail for battery. The court denied 

defendant’s motion to reconsider his sentence. Defendant appeals.

¶ 6 II. ANALYSIS

¶ 7 Defendant argues that his convictions for criminal sexual abuse, unlawful restraint, and 

battery are based on the same single physical act. Defendant contends that this court should 

vacate two convictions and allow only one conviction, based on a single physical act, to stand. 

Consequently, defendant requests this court to remand the matter to the circuit court to 

determine which two convictions must be vacated after considering the seriousness of all three 

convictions.
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¶ 8 The State asserts that defendant’s conduct involved multiple separate acts and each one of 

defendant’s convictions was supported by a separate physical act. Since defendant committed 

multiple but separate unlawful acts directed at the victim, the State argues each conviction 

should stand. We agree.

¶ 9 Defendant and the State agree that defendant did not preserve this error for review. Thus, 

forfeiture applies unless the plain error doctrine excuses defendant’s failure to bring this issue 

to the circuit court’s attention. The first step of plain error review is to determine if any error 

occurred. In re Samantha V., 234 Ill. 2d 359, 368 (2009).

¶ 10 Under the one-act, one-crime rule, “a defendant may not be convicted of multiple offenses 

that are based upon precisely the same single physical act.” People v. Johnson, 237 Ill. 2d 81, 

97 (2010). To determine if a one-act, one-crime violation has occurred, we employ a two-step 

analysis. People v. Coats, 2018 IL 121926, ¶ 12. First, we must determine if defendant’s 

conduct consisted of a single physical act or separate acts. Id. Second, we examine whether 

any single act formulated the basis for two separate but lesser-included offenses. Id. We review 

de novo whether a violation of the one-act, one-crime rule occurred. Id.

¶ 11 It is well established that for one-act, one-crime purposes, a single act consists of “any 

overt or outward manifestation which will support a different offense.” People v. King, 66 Ill. 

2d 551, 566 (1977). “As long as there are multiple acts as defined in King, their 

interrelationship does not preclude multiple convictions ***.” People v. Myers, 85 Ill. 2d 281, 

288 (1981). Such is the case at bar.

¶ 12 The record shows that defendant’s conduct consisted of multiple separate physical acts that 

took place in an abandoned house. First, defendant forced the victim into the abandoned house. 

He held her down on a bed within an interior room. While restraining the victim by holding 

her down on the bed, defendant focused his attention on the lower portion of her body and 

digitally penetrated the victim’s vagina. This act supports the conviction for unlawful restraint.

¶ 13 In addition, defendant shifted his focus to the upper portion of the victim’s body. In a 

separate act, defendant placed his hands beneath the victim’s shirt, reached under her bra, and 

then grabbed her breast. It was the jury’s role to determine whether defendant grabbed the 

victim’s breast with a simultaneous intent for sexual gratification. The jury resolved this issue 

in favor of the prosecution. This separate act independently supports defendant’s conviction 

for criminal sexual abuse.

¶ 14 Finally, the victim told the jury that, when she was inside the abandoned home, defendant

touched her “countless” times. In addition to describing how defendant digitally penetrated her 

vagina and repositioned his hand underneath her clothing to deliberately grab her breast, the 

victim also described her efforts to break away from defendant. According to the victim, on 

multiple occasions she was able to partially break defendant’s grip only to have him forcefully 

return her to the bed each time. At some point, the victim struggled and found herself on the 

floor only to have defendant fall on top of her body as she continued to resist defendant’s 

ongoing physical contact on the floor. Any one of these countless but separate acts of physical 

contact, both while on the bed and later while on the floor, constitutes an “overt or outward 

manifestation” that supports a different offense; therefore, defendant committed multiple 

physical acts, not a single act. See King, 66 Ill. 2d at 566.

¶ 15 Next, we examine whether a pair of defendant’s convictions arose from the very same 

physical act and qualify as lesser-included offenses based on their abstract elements. Coats, 

2018 IL 121926, ¶ 30. “[W]hen the issue of lesser-included offenses arises in the context of a 
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one-act, one-crime issue *** we apply the abstract elements approach as opposed to 

determining whether an uncharged offense is a lesser-included offense to a charged offense 

using the charging instrument approach.” Id. (citing People v. Miller, 238 Ill. 2d 161, 166 

(2010)). “If all of the elements of one offense are included within a second offense and the first 

offense contains no element not included in the second offense, the first offense is deemed a 

lesser-included offense of the second.” Miller, 238 Ill. 2d at 166. “[I]t must be impossible to 

commit the greater offense without necessarily committing the lesser offense.” Id.

¶ 16 The abstract elements of criminal sexual abuse and unlawful restraint, both Class 4 felonies 

as charged in the present case, are not overlapping. See 720 ILCS 5/11-1.50(d), 10-3(b) (West 

2016). Criminal sexual abuse requires a person to use or threaten force to engage in sexual 

conduct. Id. § 11-1.50(a)(1). In comparison, a person commits unlawful restraint by knowingly 

detaining another individual. Id. § 10-3(a). Unlawful restraint can occur absent any sexual 

conduct. Aside from requiring the same mental state, criminal sexual abuse and unlawful 

restraint share no abstract elements. Therefore, under the facts of this case, unlawful restraint 

is not a lesser-included offense of criminal sexual abuse, nor is criminal sexual abuse a lesserincluded offense of unlawful restraint.

¶ 17 Physical contact that falls within the criminal sexual abuse statute “is necessarily insulting 

or offensive” and “inherently insulting as a matter of law” thereby also fulfilling a necessary 

element of battery. People v. Meor, 233 Ill. 2d 465, 471 (2009). Hence, if defendant had only 

grabbed the victim’s breast without separately touching her in an insulting way on any other 

part of her body, misdemeanor battery could qualify as a lesser included offense with respect 

to criminal sexual abuse, a Class 4 felony. 

¶ 18 However, defendant touched the victim multiple times including, but not limited to, 

touching the victim’s breast and also digitally penetrating her vagina. Each time the victim 

nearly escaped, defendant physically recaptured her and assaulted her again. Since there were 

multiple physical acts defendant inflicted on the victim, we conclude defendant’s battery 

conviction does not violate the one-act, one-crime rule. Without this error, plain error does not 

apply.

¶ 19 III. CONCLUSION

¶ 20 The judgment of the circuit court of Will County is affirmed.

¶ 21 Affirmed.