Opinion
No. 1-12-2949
04-24-2014
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CALVIN MILONS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
Circuit Court of
Cook County.
No. 11 CR 9437
Honorable
James B. Linn,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Justices Fitzgerald Smith and Lavin concurred in the judgment.
ORDER
¶ 1 Held: Evidence was sufficient to prove defendant's guilt beyond a reasonable doubt; defendant waived objection to incomplete presentence investigation report; convictions and sentence affirmed. ¶ 2 Following a bench trial, defendant Calvin Milons was convicted of home invasion, armed robbery, and aggravated unlawful restraint and sentenced to concurrent prison terms of 30 years for home invasion and armed robbery and 5 years for aggravated unlawful restraint. On appeal, defendant contends the State failed to prove his guilt beyond a reasonable doubt and that the trial court erred when it sentenced him without a complete presentence investigation report (PSI). We affirm. ¶ 3 The record reveals that defendant was charged with attempted first degree murder, home invasion, armed robbery, aggravated discharge of a firearm, and aggravated unlawful restraint following an incident that occurred at the apartment that Samuel Glover shared with his daughter, Lyntina, at 7958 South Wood in Chicago. ¶ 4 At trial, Samuel testified that on the afternoon of June 2, 2011, he was returning to his apartment building when he was approached by defendant and two other men. As Samuel put his key in the door, the three men came up behind him, one of whom pulled out a gun and forced Samuel into the hallway. Followed by the three men, Samuel entered his apartment, where Lyntina was in the living room. After one of the men asked Samuel for money, Samuel retrieved $60 from his pocket and gave it to defendant. The men then took Samuel and Lyntina to Samuel's bedroom. There, while one man pointed a gun at Lyntina's head and defendant stood by the dresser, Samuel was asked for "the rest of the money," to which he responded that he did not have any more. Defendant and another man went through Samuel's drawers and removed various items as they looked for more money. After Samuel again denied that he had more money, the men searched him and defendant found $200 in Samuel's billfold. Defendant handed the money to one of the other men, who in turn pushed Samuel down, kicked him in the stomach and leg, and hit him in the face with a gun. Afterwards, Lyntina was taken to the kitchen while Samuel remained in the bedroom, where defendant pointed a gun at Samuel while he walked around the room, ultimately taking two or three bottles of cologne from a dresser. At one point, Lyntina was brought back to the bedroom and she and Samuel were tied up with belts, whereupon Lyntina was taken to the bathroom and Samuel was taken to the front room and made to lie down. In the meantime, the men brought various items to the front room, including a comforter set, and placed the items by the door. ¶ 5 Eventually, the men left and Samuel was able to untie himself. He ran into the street to seek help. When Samuel reached a corner, he looked back to see if anyone was following him and observed defendant, who was about 20 yards away, shoot at him three times with "[a] 38." Looking forward, Samuel ran four houses down and briefly hid behind a van before observing the three men quickly walk eastbound. As Samuel ran back to his residence, the police came down the street and asked Samuel whether he had heard any shots. Samuel replied that "those three guys right there just came from my house and they shot at me." While the police chased the three men, Samuel returned home to check on Lyntina, who was tied up and lying down in the bathtub. Samuel freed Lyntina and returned outside, where he observed three or four squad cars, one of which contained defendant. An officer removed defendant from the car and asked Samuel if defendant was one of the offenders, to which Samuel responded affirmatively. The police also brought back a pair of gym shoes, a pair of boots, and a quilt, all of which belonged to Samuel. Additionally, Samuel was shown two bottles of cologne that he identified as the bottles that defendant had taken. ¶ 6 During his testimony, Samuel acknowledged that he was currently in prison for aggravated driving on a revoked license and had prior felony convictions, including convictions for unlawful use of a weapon by a felon and possession of a controlled substance. ¶ 7 Lyntina testified that when Samuel and the men entered the apartment, defendant held a gun and asked "where's the money[?]" While Samuel was directed to his bedroom, Lyntina was taken to the kitchen by one of the men, who held a gun in her face and asked for money. After about 10 minutes, Lyntina was taken to Samuel's bedroom, where defendant and another man were also present. Defendant pointed a gun at Samuel and another man held a gun to Lyntina's head and threatened to kill her unless he was given more money. Defendant then took Lyntina's orange cell phone and some cologne while the other two men took gym shoes. Additionally, one of the men kicked Samuel in the face. Subsequently, Lyntina was tied up with a belt, taken to the bathroom, and placed in the bathtub. A few minutes later, Lyntina heard six gunshots coming from outside. ¶ 8 Lyntina further testified that eventually, Samuel untied her. When the police arrived, Lyntina went outside and identified defendant, who had stepped out of a squad car, as one of the offenders. As for her background, Lyntina acknowledged that she was currently on supervision for criminal damage to property. ¶ 9 Officer Anthony Blake testified that on June 2, he was on patrol in the area and observed defendant running from other police officers, who chased him into a rear yard. Defendant was placed in custody after a bag of cannabis was recovered from his waistband. Pursuant to a search of defendant, Officer Blake also recovered $85, two bottles of cologne, two Link cards, a bundle of pink garbage bags, and an orange cell phone. Officer Blake then went to the 7900 block of South Wood, where he learned an individual had flagged down the police car that happened to be transporting defendant. In front of 7958 South Wood, Officer Blake recovered shoes and a plastic bag containing a quilt. Additionally, when Officer Blake spoke to Samuel and showed him the items he had recovered from defendant, Samuel stated that those items were taken from his home. ¶ 10 Officer Blake further testified that he did not recover a gun from defendant and did not see a gun in the vicinity of where defendant was detained and arrested. Officer Blake also searched the area around Samuel's home, but did not recover any shell casings or bullets, and did not request that a gunshot residue test be performed. While searching Samuel's home, Officer Blake observed additional rolls of the pink bags that had been recovered from defendant. ¶ 11 In closing, the State summarized the incident and noted that when defendant was taken into custody, he had various items that were taken from the residence. The State contended there was "no doubt whatsoever" that defendant was guilty. ¶ 12 In response, defense counsel contended that Samuel's and Lyntina's versions of the incident were inconsistent. Defense counsel further asserted that Samuel was "a convicted felon serving time" and did not "come in here with clean hands." Additionally, defense counsel contended that "had there been this terrible thing that happened," Samuel would have immediately checked on Lyntina and called the police. Defense counsel posited that, in actuality, Samuel went "to get his associates to help him in whatever argument he had with these other associates[,]" and maintained that "[t]here was something going on with people that he knew." Defense counsel further contended that there was no evidence of a gun and that shots fired would have left bullets or shell casings at the scene. ¶ 13 In rebuttal, the State asserted that Lyntina and Samuel both testified that they saw a gun and again noted that defendant was caught with the proceeds from the incident. ¶ 14 In its ruling, the court stated there was "no question in my mind that this is exactly what home invasion is about." The court continued by noting that, although home invasions are rarely random encounters, and "[t]here may have been something more to the story,***the story is clear enough." The court found that defendant "took people at gunpoint" and tied them up, and that a gun was fired. Defendant was found guilty of home invasion, armed robbery, aggravated discharge of a firearm, and aggravated unlawful restraint. Additionally, the court found that defendant personally discharged a firearm. However, because the State had not proven beyond a reasonable doubt that defendant had a specific intent to kill, defendant was acquitted of attempted first degree murder. ¶ 15 Defendant subsequently filed a motion for a new trial, which, in part, attacked the testimony given by Samuel and Lyntina. Defendant asserted that Samuel was "an impeached witness and convicted felon," his testimony that he was hit in the face with a weapon was uncorroborated, his testimony was inconsistent with Lyntina's testimony, and rather than report the incident to the police, he "took measures into his own hands," only telling the police what occurred after officers arrived at his home. Defendant also contended there was insufficient evidence that a weapon was used and fired, noting that no weapon, shell casings, or bullets were recovered. ¶ 16 At the hearing on defendant's motion, defense counsel focused on the purported absence of physical evidence that a gun was involved. Defense counsel stated that when defendant was arrested, he did not have a weapon and was not tested for the presence of gunshot residue. The court denied defendant's motion for a new trial, noting the contents of the motion "are the same as those that were brought to the [c]ourt's attention at the time of the trial." ¶ 17 The matter proceeded to sentencing, where the court noted that the PSI had been distributed. The PSI only contained defendant's criminal history. In the summary section, the investigator stated that she tried to interview defendant, but defendant stated that he would not complete the PSI, "the judge found him guilty and the case is done[,]" and he had informed his attorney of his position as well. The investigator further stated that she contacted defense counsel, who was "provided the information that [defendant] would not complete [the] interview." ¶ 18 At the sentencing hearing, the State began by stating, "just so that I make it clear, the defendant did not participate in a pre-sentence investigation. So there is no knowledge as to his background, his family background, et cetera." The State then asserted that defendant was "a career criminal" and had "led nothing but a lifetime full of criminal activity." The State summarized defendant's criminal background, which dated back to 1987 and included convictions for burglary, possession of a controlled substance with intent to deliver, unlawful use of a weapon by a felon, and reckless homicide. The State also summarized the facts of the case and requested a sentence above the minimum of 26 years. ¶ 19 In mitigation, defense counsel asserted that defendant was married and his wife was present in court. Counsel also noted that defendant was 42 years old and contended that a sentence over the minimum would not accomplish the purposes of sentencing. ¶ 20 In sentencing defendant, the court stated that the offense was premeditated and involved weapons and violence. The court further stated that defendant had "led a criminal life[,]" had "been a problem since he was a juvenile[,]" and "ended up in the adult system and in and out of the penitentiary numerous times." As to the PSI, the court stated that defendant "didn't want to participate***. I will respect that. He just didn't feel up to it, and he knew that the stakes were going to be high in any event." Ultimately, defendant was sentenced to concurrent prison terms of 30 years for home invasion, 30 years for armed robbery, and 5 years for aggravated unlawful restraint. Additionally, the counts related to aggravated discharge of a firearm merged into the counts related to home invasion and armed robbery. ¶ 21 The court denied defendant's subsequent motion to reconsider his sentence, which contended in part that his sentence was excessive and imposed pursuant to an unconstitutional enhancement. Additionally, defendant asserted that the court did not give sufficient weight to mitigating evidence and gave undue weight to aggravating evidence. ¶ 22 On appeal, defendant contends that the evidence was insufficient to prove he committed home invasion, armed robbery, aggravated discharge of a firearm, and aggravated unlawful restraint. Defendant argues that Samuel and Lyntina testified inconsistently with each other, and that Samuel's version of the events, in which he did not mention to police that his daughter was bound, raises serious doubts as to his reliability. Defendant further asserts that the only corroborating physical evidence of his guilt was his mere possession of proceeds from the offense, which, standing alone, cannot sustain his convictions. ¶ 23 When presented with a challenge to the sufficiency of the evidence, "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." (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). It is not our function to retry the defendant. People v. Sutherland, 223 Ill. 2d 187, 242 (2006). Rather, in a bench trial, it is for the trial judge, sitting as the trier of fact, to determine the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve any conflicts in the evidence. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Testimony may be found insufficient only where the evidence compels the conclusion that no reasonable person could accept it beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). We will not reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory that it raises a reasonable doubt of the defendant's guilt. People v. Evans, 209 Ill. 2d 194, 209 (2004). ¶ 24 We focus our analysis on the offenses defendant was actually convicted of: home invasion, armed robbery, and aggravated unlawful restraint. A person commits home invasion when, without authority, he knowingly enters the dwelling place of another when he knows or has reason to know that one or more people is present, uses force or threatens the imminent use of force upon anyone within the dwelling place, whether or not injury occurs, and personally discharges a firearm during the commission of the offense. 720 ILCS 5/122-11(a)(4) (West 2010). A person commits armed robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force and he personally discharges a firearm during the commission of the offense. 720 ILCS 5/18-1, 18-2 (West 2010). Finally, a person commits aggravated unlawful restraint when he knowingly without legal authority detains another person while using a deadly weapon. 720 ILCS 5/10-3, 10-3.1 (West 2010). ¶ 25 First, we examine the sufficiency of the evidence without regard to the elements of home invasion and armed robbery that pertain to whether defendant personally discharged a firearm. With respect to the remaining elements of home invasion and armed robbery, as well as aggravated unlawful restraint, the evidence was sufficient to prove defendant's guilt. Samuel testified that three men, including defendant, forced him into the hallway at gunpoint and then entered his apartment. There, at various points, the men demanded money and defendant eventually found $200 in Samuel's billfold. Samuel further testified that he was pushed, kicked, and hit. Additionally, defendant pointed a gun at Samuel, walked around the room, and took two or three bottles of cologne, in addition to the other items taken by the men. Subsequently, Samuel and Lyntina were tied up with belts. Lyntina recounted much of the same conduct by defendant and the other men. She testified that defendant entered the apartment with a gun. In the kitchen, another man held a gun in her face and demanded money, and once in the bedroom, held a gun to her head and threatened to kill her. Lyntina further testified that defendant pointed a gun at Samuel and took a phone and cologne, and that she was tied up and made to remain in the bathtub. Officer Blake testified that Samuel identified the items recovered from defendant as his. Additionally, both Samuel and Lyntina identified defendant as an offender shortly after the offense. Given the forced entry, use of guns and violence, taken items, and use of belts to tie up Samuel and Lyntina, a rational trier of fact could find that defendant committed home invasion, armed robbery, and aggravated unlawful restraint. ¶ 26 In addition to challenging Samuel's credibility, defendant takes issue with the inconsistencies between Samuel's and Lyntina's versions of the incident, specifically noting that they testified differently about their locations in the apartment, if money was exchanged, and how Samuel was struck. However, those differences do not raise a reasonable doubt of defendant's guilt. We will not substitute our judgment for that of the trier of fact on issues involving the weight of the evidence or the credibility of witnesses. Siguenza-Brito, 235 Ill. 2d at 224-25. Further, it is the trier of fact's responsibility to resolve conflicts in the testimony. People v. Howrey, 178 Ill. 2d 1, 38 (1997). Although Lyntina's and Samuel's exact sequence of events differed, the inconsistencies were relatively minor and do not raise a reasonable doubt of defendant's guilt. ¶ 27 Additionally, we reject defendant's reliance on People v. Housby, 84 Ill. 2d 415 (1981), which held that the exclusive and unexplained possession of recently stolen property is insufficient, standing alone, to sustain a conviction for burglary. Housby, 84 Ill. 2d at 423. Here, defendant's possession of items stolen from the apartment was only part of the evidence presented at trial. In addition to that circumstantial evidence of defendant's guilt, Lyntina and Samuel both testified in detail about the entire incident. As a result, Housby does not apply here. ¶ 28 We next address the elements of home invasion and armed robbery that pertain to the finding that defendant personally discharged a firearm during the offense. Here, too, the evidence was sufficient to prove defendant's guilt. Samuel testified that after he went outside, he observed defendant, who was 20 yards away, shoot at him three times with a gun. The testimony of a single witness, if positive and credible, is sufficient to convict. People v. Smith, 185 Ill. 2d 532, 541 (1999). Although defendant claims that Samuel's back was turned, Samuel testified that it was when he looked back that he observed defendant shoot at him. Again, it is for the trial court to resolve any conflicts in the testimony and we will not substitute our judgment for that of the trial court on issues involving the weight of the evidence or the credibility of witnesses. Siguenza-Brito, 235 Ill. 2d at 224-25, 228. Further, in reaching this conclusion, we reject defendant's reliance on People v. Hartfield, 266 Ill. App. 3d 607 (1994), where the State "failed to present any evidence whatsoever" that the defendant aimed his weapon and the witness "specifically testified that he never saw [the] defendant fire his gun." Hartfield, 266 Ill. App. 3d at 609. Here, Samuel's testimony that defendant shot at him was sufficient to find that defendant personally discharged a firearm during the offense. ¶ 29 Defendant additionally challenges a purported lack of physical evidence to corroborate his guilt. Pointing to the fact that no bullets, shell casings, or an actual gun were recovered, defendant contends there was no reliable evidence that a gun was used. Defendant additionally notes that the State did not introduce fingerprint evidence. ¶ 30 We are not persuaded by defendant's emphasis on a lack of physical evidence of the crimes. The State is not required to present corroborating physical evidence at trial. People v. Herron, 2012 IL App (1st) 090663, ¶ 23. Further, eyewitness testimony alone is sufficient to establish that a defendant was armed. See People v. Lee, 376 Ill. App. 3d 951, 955 (2007) (witness's unequivocal testimony that the defendant held a handgun during robbery was sufficient to establish that the defendant was armed). Here, both Samuel and Lyntina testified that they observed defendant with a gun during the robbery, and Samuel testified that defendant shot at him. Further, defendant's contentions regarding the lack of physical evidence are unpersuasive where this alleged weakness in the evidence was presented to, and rejected by, the trier of fact. See People v. Baugh, 358 Ill. App. 3d 718, 737 (2005). ¶ 31 Next, defendant contends the trial court erred by sentencing him without the benefit of a complete and thorough PSI. Defendant asserts that a great deal of required information was missing from his PSI, and further, the PSI is a mandatory legislative requirement which defendant could not waive. In response, the State contends that defendant has forfeited review of this issue because he failed to challenge the completeness and accuracy of the information contained in the PSI in the trial court. The State further asserts that defendant cannot now challenge the PSI when his own conduct was the reason the PSI was incomplete. ¶ 32 Section 5-3-1 of the Unified Code of Corrections states that "a defendant shall not be sentenced for a felony before a written presentence report of investigation is presented to and considered by the court." 730 ILCS 5/5-3-1 (West 2012). The PSI must contain numerous pieces of information, including the defendant's criminal history, family situation and background, and education, as well as information about resources in the community which might be available to help the defendant's rehabilitation and the effect the offense had on the victims. 730 ILCS 5/5-3-2 (West 2012). Further, as defendant correctly notes, the PSI is not a personal right of a defendant and cannot be waived. People v. Youngbey, 82 Ill. 2d 556, 565 (1980). ¶ 33 It is undisputed that defendant's PSI was incomplete, as it only contained his criminal history. Nonetheless, defendant has waived this issue for review. While it is the duty of the probation officer to prepare the PSI, it is the duty of the parties to bring to the attention of the sentencing authority any alleged deficiency or inaccuracy in the PSI. People v. Meeks, 81 Ill. 2d 524, 533 (1980). If the trial judge considers the PSI, any objection to a deficiency in the PSI is deemed waived by a defendant's failure to object. People v. James, 255 Ill. App. 3d 516, 530 (1993). Defendant urges review under the second prong of the plain error doctrine, which allows a reviewing court to consider a forfeited error "where the error is so serious that the defendant was denied a substantial right, and thus a fair trial." People v. Herron, 215 Ill. 2d 167, 178-79 (2005). However, the plain error doctrine is not appropriate for this situation, where defendant is the reason the report was incomplete. A defendant is precluded from objecting to the incomplete nature of a PSI when the deficiency is due to his own absence or refusal to cooperate. James, 255 Ill. App. 3d at 530; People v. Gomez, 141 Ill. App. 3d 935, 942 (1986). Here, according to the investigator's summary at the end of the PSI, defendant refused to cooperate with the investigation. This circumstance was relayed to defense counsel, who did not object at the sentencing hearing. As such, defendant has waived review of this issue. ¶ 34 For the foregoing reasons, the judgment of the circuit court is affirmed. ¶ 35 Affirmed.