## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Kirklan d

, 2013 IL App (4th) 120343

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. RONAL D H. KIRKLAND, De fenda nt-Appellant.

District & N o. Four th District Docke t No. 4-12-0343

Filed November 13, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The trial court’s judgme nt that defe ndant was guilty of two counts of
ag g ravated criminal sexual abuse of his stepdaughters was upheld wher e the rec ord showed that the jury clea rly intended to c onvict defe ndant on both counts, even though the w ord “a g g ravated” was omitted on one of the verdic t forms due to a ty pographic al err or, since defe ndant was not prejudice d by the flawe d verdic t form; howeve r, the Crime Stoppers fee
, which is only applicable when a community -base d sentenc e is imposed,

was va cate d, beca

use def endant wa s sentence d to prison.

Dec ision Under Review Appea l from the Circuit Court of For d County , No. 11-CF- 59; the Hon. Stephen R. Pacey , J udg e, pre siding.

J udg ment Affir med as modified; ca

use re manded with dire ctions.Counsel on

Appea l Michae l J

. Pelletier, Kar en Munoz, and Arde n J

. L an g (ar gued), all of State Appellate D efe nder’ s Offic e, of Spring field, for appellant.

Matthew Fitton, State’s Att o rney , of P axton (Patrick Delfino, Robert J

. Bide rman, and Luke McNe ill (argued), all of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE HOL DER WHI TE delivere d the judgme nt of the court, wi t h opinion.
J ustices Appleton and Pope c oncurr ed in the judg ment and opinion.

OP INION

¶ 1 In J une 2011, the State charg ed defe ndant, Ronald H. Kirkland, by information with two
counts of ag g ravated criminal sexual abuse (720 I L CS 5/12-16(b) (West 2010)) ag ainst his
two stepdaughters, S.C. and B. C

. , b o t h of whom wer e under the ag e of 17. The case proce eded to jury trial in J anuar y 2012. Following deliberation s , t h e jury returne d guilty verdic t forms for both victims. The guilty verdic t as to S.C. conta ined no err ors. The guilty verdic t form with reg ard to B.C., howeve r, stated the offe nse as “criminal sex u al abuse,” without the word “ag g ravated” prec eding it. The part i es did not bring the err or to the trial court’s attention. The court e n ter e d ju dg ment ag ainst defe ndant for both counts of ag g ravated criminal sexual abuse and sentenc ed defe ndant to five y ear s in the I llinois Depa rtment of Correc tions (D OC) on eac h count with the sentenc es to run concur rently

. Additionally
, the court orde red de fenda

nt to pay a $25 Crime Stoppers fe e. ¶ 2 On appea l, defe ndant asser ts (1) the jury wrong fully convicted him of the unc h ar ged offe nse of criminal sexual abuse as to B.C., (2) if the verdic t as to B.C. stands, defe ndant should be sentenc ed only for the offe nse of criminal sexual abuse, and (3) the trial court err ed in imposing a Crime Stoppers fee

. We a ffirm in pa rt the trial court’s judgme nt a nd rema nd with directions to vacate the Crime Stoppers fe e.

¶ 3 I . BA CKGROUND ¶ 4 In J une 2011, the State char g ed defe ndant by information with two counts of ag g ravated

c rim in a l s e xu a l a

b u se (720 I L CS 5/12-16(b) (West 2010)) ag ainst his two stepdaughters, S.C

. and B.C., both of whom wer e under the ag e of 17. The case proce eded to jury trial in J anuar y 2012. ¶ 5 At t ri al
, both victims testified defe ndant, over the course of a y ear , would take t h em individually into his bedroom, shut the door, and have them remove their clothes. He would

-2-then proce ed to rub his hands over their nude bodies, including their brea sts and v aginal

are as. B.C. testified defe ndant ty pically rubbed her body with vitamin E oil to “pre vent stretch marks.” C.K., a friend of S.C., testified she observe d defe ndant on sever al occa sions
enter his bedroom with B.C. and close the door. S.C. also confide d in C.K. about defe ndant touching S.C. inappropria tely

. J .C., the teena g e brother of S.C. an d B. C

. , t estified he observe d defe ndant take S.C. and B.C. into the bedroom and lock the door. On one occa sion, J .C. enter ed the bedroom to find defe ndant ru b bing “something ” on B.C.’s leg s while she laid on the bed. ¶ 6 Sheree Foley
, a case worke r from the Depa rtment of C h i l d re n an d Family Service s (DCFS), testified defe ndant admitted rubbing the g irls’ backs and rubbing B.C.’s body with vitamin E oil t o preve nt stretch mar ks. Defe ndant also admitted rubbing oil on the sides of B.C.’s brea sts to preve nt stretch marks on her brea sts. He denied, howeve r, making contac t of a sexual nature with their brea sts or vag inal are as. Acc ording to Foley
, defe ndant said he

rec eived no sexual g ratifica tion or arousa l from touching the g irls. Def endant did not testify

. ¶ 7 Following the prese ntation of evidenc e, the jury rec eived a copy of the jury instructions from the trial court

. The instructions included the definition of and issues related to ag g ravated criminal sexual abuse ag ainst both B.C. an d S

. C

. The jury also rec eived four verdic t forms; a not guilty form and guilty form of verdic t for eac h victim. Initially
, the State provided err oneous verdic t forms that provided two forms of guilty for S.C. and two forms of not guilty for B.C. Those initial verdic t forms also contained a second err or the parties failed to bring to the trial court’s attention–the verdic t forms as to B.C. stated the offe nse as “criminal sexual abuse,” not as “ag g ravated criminal sexual abuse.” After the verdic t forms

wer e corr ecte d to provide a “guilty ” and “not guilty ” verdic t form as to both B.C. and S.C., those forms wer e sent back to the jury ro o m

. T he “cor rec ted” instructions, howeve r, continued to na

me cr iminal sex ual abuse as the offe nse perta ining to B .C. The rec ord does
not r evea l which party made the corr ections to the verdic t f orms or whether the parties had the opportunity to revie w the corr ecte d verdic t forms befor e the court delivere d them to the jury

. ¶ 8 Following deliberations, the jury signe d the guilty verdic t forms as to both S.C. and B.C. Howeve r, the verdic t form as to B.C. rea d, “We, the jury
, find the defe ndant *** [g]uilt y of [c] riminal [s] exual [a] buse with reg ard to [B.C.] ,” rathe r than ag g ravated cr i minal sexual abuse, as char g ed in the information. Neithe r p arty brought the err oneous verdic t to the court’s attention. ¶ 9 In Februar

y 2012, defe ndant filed a posttrial motion challeng ing the sufficie ncy of the evidenc e, which the trial court denied. Def endant did not challeng e the inacc urate verdic t form in his posttrial mo ti on. Following a Marc h 2012 sentenc ing hearing, the court sentenc ed defe ndant to five y ear s in D OC on eac h count of ag g ravated criminal sexual abuse, a Class 2 felony
, with the sentenc es to run concur rently

. The court also imposed a $25 Crime Stoppers fee

. L ater that month, defe ndant fil ed a motion to rec onsider sentence, which the court de nied. That motion did not challeng e the ve rdict for m as to B.C. ¶ 10 This appea l followed.

-3-¶ 11 I I . ANALYSI S

¶ 12 On appea l, defe ndant asse rt s (1 ) t h e jury wrong fully convicted him of an uncha rg ed offe nse of crim i nal sexual abuse as to B.C., (2) if the verdic t as to B.C. stands, defe ndant should be sentenc ed only for the offe nse of criminal sexual abuse, and (3) the trial court err ed in imposi nga Crime Stoppers fe e. We addr ess these issues in turn.

¶ 13 A. Whether the Er ror on the V erdic t Form Require s Reversa l ¶ 14 We beg in by noting defe ndant does not challeng e his conviction with reg ard to S.C., so

we aff irm that conviction and will addre ss defe ndant’s conviction of ag gravated cr i m i n al sexual abuse only

as to B.C.

¶ 15 1. The Parties’ Arguments ¶ 16 Defen d an t argues t he verdict form with respe ct t o B.C. reflec ts the j ury convicted him of the offe nse of criminal sexual abuse ag ainst B.C. which, defe ndant asser ts, denied him due
proce ss beca

use criminal sexual abuse (1) was an unchar g ed offe nse and (2) is not a lesserincluded offense of

ag gravated criminal sex ual abuse . The State c ontends the ver dict form contained a scrivene r’s err or and the jury intended to find defe ndant guilty of ag g ravated criminal sexual abuse as to B.C. In order to addre ss defe ndant’s argument that the jury found him guilty only of criminal sexual abuse, we must first examine whether the incorre ct verdic t form constituted er

ror.

¶ 17 2. W hether Re view of the Erroneous J ury Verdic t Form Has Bee n Forfeited ¶ 18 Both parties asser t the other party forf

eited revie w of the err or contained within the jury verdic t form, as neither party raised the issue befor e the trial court. We note it was incumbent
upon both parties t o b ri n g t h e err or to the court’s attention in order for the court to seek further emendations, i.e. , clar if i cation, from the j ury

. See People v. Crite
, 261 I ll. App. 3d 1041, 1047, 634 N.E.2d 4 8 7, 491 (1994). Instead, neither party objected to the incorre ct verdic t form at any time, clea rly with the belief the j ury returne d guilty verdict s as to both char g es of ag g ravated criminal s ex ual abuse, as demonstrated by further proce eding s in which the State failed to file a motion to amend the v er d i ct form and defe ndant failed to object to the court sentenc ing defe ndant on both counts of ag g ravated criminal sexual abuse. ¶ 19 Be cause it is defe ndant who challeng es the verdic t form for the first time on appea l, w e conclude the burden of persua sion is on defe ndant to demonstrate the trial court committed plain err or by enter ing judgme nt on the ag g ravated criminal sexual abuse char g e as to B.C.; otherwise, the issue i s fo rfe ited. See I ll. S. Ct. R. 615(a) ; People v. Piatkowski
, 225 I ll. 2d 551, 565, 870 N.E.2d 403, 411 (2007). A defe ndant demonstrates plain err or by showing a clea r or obvious err or occur

red and (1) the err or alone threatened to tip the scale s of justice in a closely balanc ed case or (2) the err or is so serious that it aff ecte d the fairne ss of the trial and integrity

of the judicial proc ess. Piatkowski , 225 I ll. 2d at 565, 870 N.E.2d at 410-11. ¶ 20 The State conce des the flawe d verdic t form co n s t i tu t ed a clea r or obvious err or as it

-4-named the incorre ct charg e for which the jury was to find defe ndant guilty

. We accep t t h e

State’s conce ssion. There fore
, we turn to whether (1) the evidenc e in the case was so closely balanc ed that the err or alone threa tened to tip the scale s of justice or (2) the err or prejudice d defe ndant by

aff ectingthe fa irness of the tr ial and the integrity of the judicial proc ess.

¶ 21 a. Was the Evidenc e Closely Ba lance d? ¶ 22 Def

endant argues this was a closely balanc ed case , as the evidenc e in t h i s ca se re lied larg ely on the cre dibilit y of witn es s es , specific ally
, the testimony of defe ndant’s teena g e stepd au ghters, who claimed defe ndant regularly rubbed oil or lotion on their bodies, including their brea sts. This case does not rest on the s tep daughters’ statements alone, but also on other witnesses’ te s timony that they observe d the g irls individually enter the bedroom with defe ndant, which corr oborate d the testimony of B.C. an d S

. C. Notably
, the DCFS

case worke r testified that defe ndant told he r he had, indeed, rubbed oil or lotion on the g irls underne ath their clothing to help them relax

. Moreove r, he indicated that in an eff ort to help
preve nt B.C. from g etting stretch marks, he rubbed lotion on the sides of her brea sts and on her inner thigh are a. He went on to state B.C. would not wea r underw ear when he rubbed the lotion on her inner thighs. During the trial defe ndant did not deny rubbing the g irls’ bodies with lotion or oi l
, h e s i m p ly denied eng ag ing in the conduct for the purpose of his own sexual g ratifica

tion. The only disputed question for the jury to deter mine was whether it believed de fenda

nt eng ag ed in the conduc t for the purpose of his own sexual gratification. In light of the circ umstances, we conclude the evidenc e was not closely balanc ed as defe ndant sug g ests, but rather heavily favor ed the State.

¶ 23 b. Did the Err or Aff ect the F undamental
Fa irness of De fenda

nt’s Trial? ¶ 24 The next i s s u e we wi l l ad d re s s i s whether the err or in the verdic t form pre judiced defe ndant by aff

ecting the fairness of the t rial or the i ntegrity of the judi cial process. “The
test of the sufficie ncy of a verdic t is whether the jury ’s intention ca n b e asce rtained with

rea sonable cer

tainty from the languag e used.” People v. Mack
, 167 I ll. 2d 525, 537, 658 N.E.2d 437, 443 (1995). “[A]l l parts of the rec ord will be sear ched and interpre ted toge ther in deter mining the meaning of a verdic t.” Mack
, 167 I l l

. 2 d at 537, 658 N.E.2d at 443. Howeve r, “[p] roper jury instructions do not nece ssarily cure an improper verdic t.” M a c k
, 1 67 I ll. 2d at 536, 658 N.E.2d at 442 (citing People v. Crite
, 261 I ll. App. 3d 1041, 634 N.E.2d 487 (1994))

. In situations wher e the jury returns an unambiguous verdic t, the trial court must not attempt t o v enture into the minds and deliberations of the jury to speculate about the jury ’s intentions. Crite , 261 I ll. App. 3d at 1046, 634 N.E.2d at 490. ¶ 25 In Crite
, the appellate court held the trial court lacke d the authority to a mend the jury ’s verdic t form wher e the verdic t form incorre ctly but unambiguously stated the jury found the defe ndant guilty of the unchar g ed offe n s e of ag gravated discharg e of a firea rm, a Class 1 felony
, rathe r than the char g ed offe nse of ag g ravated battery with a firea rm, a Class X felony

. Crite
, 261 I ll. App. 3d at 1046, 1049, 634 N.E.2d at 490, 492. The appellate court deter mined “once a verdic t has been rende red, acc epted by the court, and judgme nt enter ed there on, and

-5-t h e j u ry has separ ated, the court has lost control of the verdic t.” Crite
, 261 I ll. App. 3d at

1047, 634 N.E.2d at 491. At that point, the t rial court may only grant a mi s t ri al
, j udg ment notwithstanding the verdic t, or a new trial. Crite
, 261 I ll. App. 3d at 1047, 634 N.E.2d at 491. Thoug h the State asser

ted the err or in the verdic t form constituted a ty pog raphic al err or, the appellate court re

jected that argument, stating: “The distinction, here
, betwee n the ag g rava ted discharg e of a firea

rm and the ag g ravated battery with a firea

rm verdic t forms resulted from more than an err or in mecha nics. The differ ence betwee n the deter minate sentenc e for a Class 1 felony and the d et erminate
sentenc e for a Class X felony is signific ant an d ca n n o t be justified on the basis of a ty pog raphic al err or, as the State asser ts here

. Desc ribing the distinction betwee n the two

o ffe nses as a ‘ty

pog raphic al err or’ depre cate s the thought and deliberation by t h e leg islature in making the distinction.” Crite
, 261 I ll. App. 3d at 1046, 634 N.E.2d at 490. The adm o n i t i o n in Crite discourag ing “spec ulative attempt[s] to rec onstruct the jury ’s deliberations and divine its unexpressed conclusions” was cited with approva l by the I llinois Supreme Court in Mack

, 167 I ll. 2d at 536-37, 658 N.E.2d at 437. ¶ 26 Si m i l ar l y in this case , the verdic t form incorre ctly but unambiguously stated the jury found defe ndant guilty of criminal sexual abuse, a Class 4 felony
, rathe r than ag gra vated criminal sexual abuse, a Class 2 felony

. Howeve r, in this case , no evidenc e sug g ests the jury had any offe nse to consider other than the ag g ravated criminal sexual abuse char g e. In Crite
, the instructions wer e mix ed with ref ere nces to both ag g ravated battery with a fi re ar m and
ag g ravated discharg e of a firea rm. Crite
, 261 I ll. App. 3d at 1048, 634 N.E.2d at 491. Thoug h Mack does point out that a flawe d verdic t form cannot alway s be cure d by proper jury instructions, Mack also states the revie wing court should ex amine and interpre t a ll pa rts of the rec ord to deter

mine the meaning of a verdic t. Mack
, 167 I ll. 2d at 536-37, 658 N.E.2d at 442-43. ¶ 27 The State argues the err or on the verdic t form as t o B. C

. co n s t i tu t ed a har mless ty pog raphic al err or, a minor mistake not resulting from judicial rea soning or deter mination; thus defe ndant was not denied his rig ht to a fair trial. See S chaffner v. 514 W est Grant Place Condominium Ass’n , 324 I ll. App. 3d 1033, 1042, 756 N .E.2d 854, 862 (2001) (def ining a

s cr i v ener ’s or cler ical err or as a mistake or inadver tence that does not result from judi ci al

rea soning or

deter mination). The State notes the trial contained no ref ere nce to the of

fense of criminal sexual abuse–not from testimony
, opening or closing arg uments, or in the law as prese nted in the jury

instructions. There fore , the State contends, the jury was not conf

used

or misled but intended to find defe ndant guilty of ag g ravated criminal sexual abuse as to B.C. The State also cites case law from other states in support of its argument, but those case s are not nece ssary

to our holding. ¶ 28 Our revie w of the rec ord is consistent with the State’s arguments. Be cause of the unique fac tual circ umstances in this case , we are of the opinion that unlike the jury verdic t form in Crite , the jury

verdic t form in this case contained a ty pographic al err or. In addition, unlike in Crite
, the trial court in this case did not alter the jury ’s verdic t. Wit hout objection by any p arty , the court sentenc ed defe ndant on ag g ravated criminal sexual abuse as to B.C

. T h e question thus become s, how should the jury ’s verdic t be interpre ted? The potential for juror

-6-confusion in Crite arose from t h e p ar t i es ref err ing to the incorre ct char g e on multipl e

occa sions. Moreove r, i n C r i t e , various jury instructions ref err ed to both the corr ect and incorre ct char g e. Finally
, in Crite
, the differ ence in the verdic t form submitt ed to the jury and the one the State intended to submit to the jury was signific ant. It is a strain to argue a verdic t form t hat should have stated the offe nse of ag g ravated battery with a firea rm ended up stating, a s a re sult of a ty

pog raphic al er

ror, a g g ravated dischar g e of a firea rm. ¶ 29 The previously mentioned problems in Crite ar e n o t p r e s ent in this case

. Her e, throughout the trial, the parties and the c ourt alwa y s ref err ed to the off

ense a g ainst B.C. as ag g ravated criminal sexual abuse. In this case there is no ref ere nce in the jury instructions to the offe nse of criminal sexual abuse, except for the single flawe d verdic t form. The evidenc e as to B.C. and S.C. was almost identical; in fac t, the evidenc e as to a g gravated criminal sexual abuse

as to B.C. was perha

ps even strong er due to corr oborating witness testimony

. When the trial
court rea d the instructions to the jury
, the verdic t forms wer e not rea d to the jury due to a differ ent err or in the j u ry forms. It is clea r the word “ag g rava

ted” was simply left off the verdic t form as to B.C. The jury had no indication that criminal sexual abuse was a separ ate crime, nor

that it was an available option for a verdic t. ¶ 30 There fore
, afte r considering the rec ord as a who l e, wi t h p articular focus on the jury instructions and the conduct of the court and the parties throug hout the trial, we conclude the jury clea rly intended to convict de fenda nt of ag g ravated cr iminal se x ual abuse and, but f or the ty pog raphic al err or, the jury would have returne d a guilty verdic t of ag g rava ted criminal sexual abuse as to B.C. Thus, defe ndant cannot show he suffe red prejudice due to the flawe d verdic t form and the conviction for ag g ravated criminal sexual abuse must stand. Be cause

we have deter

mined defe ndant’s conviction for ag g ravated criminal sexual abuse stands, we need not addre ss defe ndant’s arguments that (1) criminal s ex ual abuse is not a lesserincluded offe nse of ag gravated criminal sexual abuse or (2) defen d ant is entitled to a new sentenc ing he aringfor the of fense of criminal sex ual abuse

. ¶ 31 Our holding in this case is not meant to downplay the critica l importance of acc urate jury instructions and verdic t forms, as it was the fac tual uniqueness of this case which prompted this opinion. We caution attorney s and j u d g es to car efully rea d throug h all prese nted instructions to ensure the instructions contain no mistakes, lest an avoidable error mars an otherwise f

air trial, c ausingthe additional emotional toll and expense of a ne w trial.

¶ 32 B. Crime Stoppers F ee ¶ 33 Fi n al l y , d efendant argues the trial court err ed in imposing a $25 Crime Stoppers fee
, which the court imposed as part of defe ndant’s sentenc e on both counts. The State conce des the issue, and we acc ept the State’s conce ssion. An anti-cr ime fee imposed pursuant to section 5-6- 3 of the Unifie d Code of Correc tions (730 I L CS 5/5-6-3 ( West 2010)), such as the C rime S toppers fee, should only be imposed when a defenda nt recei v es a comm unity

based sentenc e. People v. Beler
, 327 I ll. App. 3d 829, 837, 763 N.E.2d 925, 931 (2002). As defe ndant rec eived a prison sentenc e in this case , the Crime Stoppers fee was void and must be vac ated.

-7-¶ 34 I I I . CONCLUSI ON

¶ 35 For the fore g oing rea sons, we aff irm the trial court’s judgme nt as modified and rema nd with direc tions for the trial court to vacate the Crime Stoppers fee

. As part of our judgme nt, beca use the State succe ssfully defe nded a portion of this appea l, we awa rd the State its $75
st atut ory assessment ag ainst defe ndant as costs of this appea l. See 55 I L CS 5/4-2002(a) (West 2012); People v. Smith
, 133 I ll. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985) (citing People v . Nicholls , 71 I ll. 2d 166, 178, 374 N.E.2d 194, 199 (1978)).

¶ 36 Affir

med as modified; ca

use re manded with dire ctions.

-8-