Opinion
No. 1-15-0142 No. 1-15-0238 Consolidated
09-12-2017
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. PAMELA BRUCE, 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.
Nos. 13 CR 4921 13 CR 4922
Honorable James B. Linn, Judge, presiding.
JUSTICE PUCINSKI delivered the judgment of the court.
Justices Hyman and Mason concurred in the judgment.
ORDER
¶ 1 Held: Defendant's challenge to the sufficiency of the evidence based on the credibility of the witnesses fails. However, pursuant to the one-act, one-crime rule, we vacate defendant's convictions for mob action, her conviction for battery, and one of her convictions for obstructing justice. The cause is remanded for the circuit court to determine which count of obstructing justice must be vacated.
¶ 2 Following a bench trial, defendant Pamela Bruce was found guilty of three counts of official misconduct, two counts of mob action, four counts of obstructing justice, one count of
battery, and one count of conspiracy to commit battery. In the same proceeding but under a different trial court number, defendant was convicted of 10 counts of perjury. The trial court sentenced defendant to two years of probation, "concurrent on all counts in both cases." On appeal, defendant challenges the sufficiency of the evidence, arguing that all the crucial witnesses at trial provided inconsistent accounts of the incident that led to her convictions, that each was impeached, and that each had a motivation to testify falsely. In the alternative, defendant contends that pursuant to the one-act, one-crime rule of People v. King, 66 Ill. 2d 551 (1977), this court must vacate both of her convictions for mob action, one of her convictions for obstructing justice, and her conviction for battery.
¶ 3 For the reasons that follow, we affirm in part, vacate in part, and remand.
¶ 4 Defendant's convictions arose from the events of February 9, 2012. On that date, defendant, a correctional officer with the Cook County Department of Corrections, was working a shift as one of two officers in a maximum security division on a tier designated for intermediate care for mental health treatment. During defendant's shift, an inmate was injured. Following the incident, defendant and the other correctional officer on the shift were charged in case number 13 CR 4921 with four counts of official misconduct, three counts of mob action, four counts of obstructing justice, one count of battery, and one count of conspiracy to commit battery. An investigation ensued during which defendant testified before a grand jury. Thereafter, she was charged in case number 13 CR 4922 with 13 counts of perjury, based on allegations that she made false statements in her grand jury testimony.
¶ 5 At trial, the State presented 15 witnesses: six then-inmates, including Kyle Pillischafske, the man who was injured during defendant's shift; six correctional officers, including Delphia
Sawyer, who was the other officer on defendant's shift; two health professionals who treated Pillischafske; and the Assistant State's Attorney who led the grand jury investigation.
¶ 6 The State's first witness, Robert Evans, testified that he was currently working toward a degree in substance abuse counseling, held an associate's degree in criminal justice, owned a grocery store, and had a criminal history that included convictions for aggravated battery, failure to register as a sex offender, and aggravated criminal sexual assault. On the date in question, he was in pretrial detention in the tier where defendant and Sawyer were working. He explained that inmates in the tier had access to a dayroom for much of the day, and that even though matches, lighters, and smoking were not permitted, it was not out of the ordinary for inmates to get creative with making improvised cigarettes. At some point during defendant's shift, Evans saw three fellow inmates, Pillischafske, Shaquille Hopkins, and Steve Kogut, attempting to light a cigarette made of orange peelings by "pop[ping]" a light switch outlet. In the course of this attempt, the men caused a surge that resulted in the lights going out in some of the cells.
¶ 7 Evans testified that when the lights went out, defendant became irate and yelled for Hopkins to report to the "officer's bubble" immediately. After defendant found out what took place, she decided to lock up the tier's inmates. Defendant and Sawyer started by locking up Kogut and Larry Lysek. Pillischafske jumped into the shower, and defendant ordered him to hurry up and get out. Pillischafske responded that he was moving as fast as he could. When he was again instructed to get out of the shower, he gathered his belongings and stomped off to his cell. According to Evans, "He was mad. He clinched his fist up. He didn't jump at any of the correction staff, Ms. Sawyer, [defendant]. He didn't say anything. Pretty much didn't say anything at all." Bruce locked the door Pillischafske's cell and he said, "[Y]ou all some bitches
and hoes." According to Evans, Pillischafske was uninjured when he went into his cell, and no other inmates were locked up at that point.
¶ 8 Evans stated that as defendant and Sawyer began to walk back to the bubble, Sawyer told Pillischafske, "I got your bitch as soon as I get back from lunch." While defendant and Sawyer were in the bubble, a sergeant checked in briefly. After he left, defendant and Sawyer came back into the tier and an inmate named Greg Patton stated he wanted a psychological evaluation. When defendant denied his request, Patton said, "All bitches are crazy." At that point, an inmate named Lamont Wilkerson got up and said to Patton, "Who the F do you think you are talking to?" Wilkerson started walking toward Patton, but defendant stopped him and said, "Nope, you come over here and get angry over here." She and Sawyer then took Wilkerson into Pillischafske's cell and instructed all the other inmates to go to the front of the dayroom. Most of the inmates complied, but Hopkins stood outside the cell door and an inmate named David Davis joined Wilkerson in the cell. Defendant and Sawyer followed him in. Sawyer told Hopkins to report into the cell, but he did not comply with Sawyer's order. The door to the cell was not completely shut.
¶ 9 Evans testified that he could not see what happened inside the cell, but he heard "her" say, "It's a violation time motherfucker." Evans also heard the sound of punches and blows, heard Pillischafske screaming, and heard the two officers say "body shots, body shots, not the face." After six or seven minutes, Evans saw defendant and Sawyer come out of the cell with Pillischafske. Sawyer gestured to another correctional officer, Jason Bobzin, who was in the "vestibule area." Bobzin came into the tier, Sawyer gave him handcuffs from her belt, and he handcuffed Pillischafske with them. The three officers then walked Pillischafske out. Evans
stated that no other officers came into the tier at that time. When asked how Pillischafske appeared, Evans stated, "[His] orbital bone in his eye was bulged out extremely. His face was swollen. He had blood running from his nose. He had clots in his eye." In court, Evans examined photographs of Pillischafske. He stated that the pictures must have been taken after Pillischafske was cleaned up, because he "was way worse than that." Evans also stated that he did not hear or see Pillischafske injure himself in the shower or in his cell.
¶ 10 Evans testified that after the incident, he spoke with the other inmates on the tier and the next day, prepared an inmate grievance form. He showed the other inmates the form, had some of them sign it, and mailed a copy to Pillischafske's mother, along with a letter explaining what happened to her son. He then showed the grievance to the tier's mental health director and filed it with the Cook County Department of Corrections.
¶ 11 On cross-examination, Evans acknowledged that in his letter to Pillischafske's mother, he wrote that Wilkerson and Davis brutally beat Pillischafske, but never mentioned defendant. He also acknowledged that sometime after the incident, he spoke with an Assistant State's Attorney and testified before a grand jury. On redirect, Evans stated that the Assistant State's Attorney made no threats or promises to him with respect to his testimony.
¶ 12 Charles Jackson testified that he was a junior college graduate who served in the armed forces. On the date in question, while he was an inmate on the tier where defendant worked, he saw three or four inmates "making a fire with the switch," which caused the lights to blow out. One of the men was Pillischafske, whom Jackson knew as "White bread, white boy, young kid." After the incident with the fire and the lights, Pillischafske went into the showers. According to
Jackson, when Pillischafske came out of the showers and headed toward his cell, "Wasn't nothing wrong with him."
¶ 13 Jackson testified that defendant was standing by Pillischafske's cell door, holding it open for him. Pillischafske briefly argued with defendant, but then he went into his cell and she locked the door. Shortly thereafter, defendant called over an inmate whose name Jackson could not recall. Defendant opened Pillischafske's door and the inmate went inside. Jackson stated that he then heard loud noises coming out of the cell. In court, he smacked his fist into his palm to demonstrate the noise. Then, another inmate went into Pillischafske's cell. Jackson stated that he thought the second inmate's name was Lamont, but he was not sure. In court, he identified a photograph of Davis as the first inmate who entered Pillischafske's cell, and a photograph of Wilkerson as the second inmate.
¶ 14 Jackson testified that he heard punching noises for two or three minutes. During that time, he also heard Pillischafske asking "him" to stop and saying that he had enough. At some point, defendant entered the cell. Jackson heard a couple more slaps. Sometime later, Jackson saw Pillischafske come out of his cell. When shown a photograph of Pillischafske, Jackson stated that he actually "looked worse" than the photograph when he came out of the cell. Specifically, the photograph did not depict how Pillischafske's forehead "swoll up" and did not show the blood that was on his face. After Pillischafske came out of his cell, defendant walked to the front of the dayroom, where many of the inmates were, and said to them, "Now, you see what happens when you motherfuckers fuck with us, fuck with me," and "If you give me any shit, it can happen to you."
¶ 15 Jackson acknowledged that he currently had a case pending, and that the same case was pending when he appeared before the grand jury two years earlier. However, he stated that no one promised him anything in exchange for testifying either at trial or for the grand jury, and no one threatened him that anything bad would happen if he did not testify.
¶ 16 On cross-examination, Jackson testified that he had been diagnosed with paranoia, and that on the date in question, he was taking psychoactive medication.
¶ 17 Lamont Wilkerson testified that he had prior convictions for attempted residential burglary and possession of a stolen motor vehicle, and was currently serving his sentences for those offenses. On the date in question, he saw Pillischafske and two other white inmates messing with a light switch, trying to get a spark to light an orange peel. When the inmates' efforts caused the lights to go out in the tier, defendant and her fellow corrections officer, Sawyer, came out of the guards' "bubble" and announced there was no smoking or cooking allowed. Pillischafske went into the showers and defendant locked the other two inmates in their cells. Sawyer told Pillischafske to hurry up. When he got out of the shower, Sawyer walked behind him to his cell. Along the way, Pillischafske was "talking, calling Ms. Sawyer all bitches, hoes, and sluts and all names type stuff." In response, Sawyer told Pillischafske that "all bitches and hoes beat your white ass." When they arrived at the cell, Sawyer opened the door and repeated "bitches beat [your] ass." Pillischafske threw his bag on the floor and "jumped" at Sawyer. In court, Wilkerson demonstrated this action with a quick body motion leaning forward. He also explained that Pillischafske did not actually come toward Sawyer or strike her. Wilkerson stated that when Pillischafske jumped at Sawyer, defendant "came to her aid." However, he also stated that Pillischafske walked into his cell on his own.
¶ 18 According to Wilkerson, after Sawyer locked Pillischafske's cell, she and defendant went back to the bubble. Inmate David Davis then approached Pillischafske's cell and said things like, "When this door roll, I'm going to beat your ass." Defendant called Davis to the bubble and had a conversation that Wilkerson could not hear. However, Wilkerson could see Davis making hand gestures including hitting his right fist into his left hand.
¶ 19 After Davis left the bubble, a lieutenant came onto the tier and went into the bubble. While the lieutenant was in the bubble, an inmate whose name Wilkerson did not know tried to get the lieutenant's attention. Defendant told him to "get the fuck away from the door" because the lieutenant did not have time to talk to him and had other things to do. In response, the inmate started calling defendant "bitches and hoes and all types of names." Wilkerson testified that he was upset that an inmate would curse at a woman, so he approached and, as he explained:
"I get on him like nigger what the fuck you just call her. What you call her. You call her bitch or something. Nigger man, fuck that. Fuck that. You call her a bitch. I will beat your motherfucking ass. *** I told him like, man, watch your mouth. Watch your mouth in front of me. The way you curse in front of a female, I don't allow that, bro. And I left it like that. Like it is."
Wilkerson related that at this time, the lieutenant left the wing and defendant and Sawyer came out of the bubble. Wilkerson was getting ready to fight the inmate who was cursing at defendant, but defendant told him not to worry about that man because she had something else for him to do.
¶ 20 Defendant then took Wilkerson to Pillischafske's cell. Defendant and Sawyer unlocked the cell and Davis and Wilkerson walked in. At this point, Pillischafske, who was sitting on the
bed, was not injured in any way but did have a sheet loosely draped around his neck and was choking himself. Wilkerson asked Pillischafske if he wanted to kill himself and then hit him in the face four to seven times. Davis pushed Wilkerson away and started punching Pillischafske in the face as well. While Wilkerson and Davis were punching Pillischafske, defendant and Sawyer stood outside the cell door. At some point, when Pillischafske was leaning halfway off his bed, defendant entered the cell, stomped or kicked Pillischafske in the stomach five or six times, and hit his ribs with a walkie-talkie four or five times. Sawyer stayed outside the cell. Wilkerson stated that he felt he "did [his] part" and left the cell. When he was shown a photograph of Pillischafske, he stated that it depicted the way Pillischafske's injuries appeared after he finished beating him up.
¶ 21 Wilkerson acknowledged that he had testified in front of a grand jury regarding this incident. He stated that no one made him any promises in exchange for his testimony then or at trial, and that no one had threatened him with regard to his testimony.
¶ 22 On cross-examination, Wilkerson testified that he had been diagnosed with "schizophrenia, seeing things, hearing things, suicidal-ness." He stated that on the date in question, he was taking two psychiatric medications, and agreed that they affected his perception of the world. Wilkerson also acknowledged that he was never charged with a crime for beating Pillischafske. When asked about defendant's demeanor, Wilkerson agreed that she was calm, kind, and never hassled the inmates.
¶ 23 David Davis, another inmate, testified that he was one of two "workers" on the tier, which meant he performed cleaning tasks in exchange for extra time outside of his cell. He stated that when the lights went out, he was frustrated and angry because it meant he would not be able
to read and it often took weeks for the lights to be restored. One of the officers -- Davis could not remember whether it was defendant or Sawyer -- told Pillischafske and the other men who blew out the lights to go to their cells. When Pillischafske went back to his cell, he and Davis exchanged words and "the conversation got a little bit heated." Pillischafske also said some provoking things to defendant and put his foot in the doorway so that she had to push his door forcefully to get it locked. At this point, Pillischafske had no injuries that Davis was aware of.
¶ 24 Davis testified that defendant went to the bubble. When asked whether defendant called him over at that point, Davis answered that he did not remember since, as a worker, he got called to the bubble a lot of times. However, he acknowledged that when he testified for the grand jury, he indicated defendant called him over and told him to "check it out." He then testified that defendant also told him, "[D]on't worry about it. We'll take care of it." At first, Davis thought Pillischafske was going to get written up for the incident with the lights, but instead, defendant and Sawyer exited the bubble, told the inmates to go to the front of the tier, and walked over to Pillischafske's cell.
¶ 25 Defendant called Davis over to Pillischafske's cell, opened it, and told Davis to "go ahead and handle that," which he understood to mean that he should get into an altercation with Pillischafske. Davis walked into the cell, stood in front of Pillischafske, who was sitting, and said, "[W]hat's up. Ain't no door between us. So what you want to do." Pillischafske pushed Davis and in response, Davis hit Pillischafske's jaw. At this point, defendant was standing at the cell door. Davis testified that Wilkerson then appeared out of nowhere, came up behind him in the cell, and started cursing at and punching Pillischafske. Next, either defendant or Sawyer entered the cell and kicked Pillischafske six to eight times. Davis explained that he did not know
which officer it was because he was stunned and only noticed the officer's uniform. Davis testified that he "went from aggressive to [Pillischafske] to covering [him] up because it wasn't that serious." The officer in the cell then hit Pillischafske's stomach or leg with her walkie-talkie about eight times, striking Davis's hand in the process. As Wilkerson was "swinging like a bat out of hell," the officer who was in the cell stepped back, said, "[T]hat's enough," and told Wilkerson "not the face, not the face." When shown a photograph of Pillischafske, Davis agreed that it depicted what he looked like after he was beat up.
¶ 26 Davis acknowledged that when he testified for the grand jury, he specified that the officer who hit Pillischafske with the walkie-talkie was defendant. He also acknowledged that he had a prior conviction for predatory criminal sexual assault. Davis stated that he had not been promised anything in exchange for his testimony and had not been threatened by anyone in order to secure his testimony.
¶ 27 On cross-examination, Davis testified that he had been diagnosed with schizophrenia and depression, agreed that "schizophrenia means that you have hallucinations," and acknowledged that he was on three medications for schizophrenia on the date of the incident. He agreed that the medications had a profound effect on him and caused him to forget things. When asked whether he had a clear memory of Pillischafske's beating, Davis answered, "No, I just remember, you know, some of the stuff because from what he read it off to us before we came in here." However, Davis did remember that when he went into the cell, Pillischafske had a sheet wrapped around his neck. Davis further acknowledged that in addition to his prior conviction for predatory criminal sexual assault, he had prior convictions for unlawful use of a recording, manufacture and delivery of a controlled substance, possession of a controlled substance,
burglary, and receiving or selling a stolen vehicle. Finally, Davis agreed that defendant was very nice, kind, reasonable, and patient, that everybody liked her, and he never saw her do "anything angry."
¶ 28 Shaquille Hopkins, the other "worker" inmate on the tier, testified that when the lights went out, Sawyer came onto the tier, screaming to Pillischafske, Larry Lysek, and Steve Kogut to go to their cells. Lysek and Kogut complied, but Pillischafske went to the showers. Sawyer told him to hurry up, and when he got out, they aggressively exchanged words. According to Hopkins, during this time, defendant was in the bubble with the nurse who delivered the inmates' medications. After the nurse left, Pillischafske went into his cell. Hopkins put his foot against the closed door to keep it shut while Sawyer locked it. At this point, Davis ran up to the cell and exchanged words with Pillischafske through the cell door. Specifically, Pillischafske called "them" a bitch and Davis got mad.
¶ 29 Hopkins testified that Davis went to the bubble, where he talked with defendant and Sawyer. Davis then called Hopkins over. When Hopkins arrived in the bubble, Sawyer told him and Davis to "go in there and fuck [Pillischafske] up." Hopkins stated that he did not say no, but did shake his head and walked away into the tier. Eventually, defendant came out of the bubble and either she or Sawyer told the inmates to move to the front of the tier. Despite this direction, Hopkins stayed in the back towards Pillischafske's cell. One of the officers then opened Pillischafske's cell door and Davis and Wilkerson went inside. While the two officers stood in the doorway and Hopkins stood "a little further behind" them, Wilkerson and Davis punched Pillischafske. As the two inmates beat and pounded on Pillischafske, Hopkins heard Sawyer say, "[N]ot the face, not the face, body shots." Then, while Pillischafske was on the ground or
slumped over on a bench, one of the officers kicked him and said something like, "[T]hat's what you get for being disrespectful."
¶ 30 According to Hopkins, Pillischafske was uninjured when he entered his cell, but was "beat pretty bad" when he came out. In particular, Hopkins noticed that Pillischafske's eyes were injured. Hopkins testified that when he was first asked about what happened to Pillischafske, he did not mention defendant's or Sawyer's involvement because the questions were only about who "swoll his face up." However, when he was asked follow-up questions later, he reported that one of the officers kicked Pillischafske. Hopkins did not see Pillischafske get hit with a walkie-talkie. Hopkins acknowledged that he was currently serving a sentence on a conviction for armed robbery without a firearm, and stated that no one made him any promises in exchange for his trial or grand jury testimony.
¶ 31 On cross-examination, Hopkins testified that he was bipolar and experienced depression and suicidal thoughts, but stated that his mental illness did not affect his memory. He testified that although Sawyer was screaming and hollering during the incident, he did not hear defendant raise her voice; that he did not see a sheet around Pillischafske's neck; and that Pillischafske was quiet during the beating. Hopkins also acknowledged that it was not until his third interview regarding the incident that he mentioned defendant and Sawyer were involved.
¶ 32 Kyle Pillischafske testified that after the lights went out on the day in question, he went into the showers. At the time, he did not have any injuries. While he was in the shower, either defendant or Sawyer told him to stop, pack up his stuff, and go to his cell. Pillischafske complied slowly. On the way to his cell, he angrily exchanged words with the officer, who then locked him in. Pillischafske testified that he wrapped a towel around his neck, thinking he would commit
suicide. After a while, one of the guards opened the door and defendant, Sawyer, Davis, and Wilkerson came inside. Someone -- Pillischafske could not remember who -- said they were going to give him a violation and then all four started beating him. Pillischafske stated that the beating was "kind of a blur," and he could not remember who hit him first or if anyone said anything to him. However, he did remember defendant kicking his leg. After the beating stopped, defendant and Sawyer handcuffed him and took him to the bubble. From there, they took him to the dispensary. On the way, defendant and Sawyer told him to tell the people at the dispensary that he caused his own injuries. Pillischafske followed this order because he was scared of getting beaten again "possibly to the point of death." When he was later sent to the hospital, he told staff there that he was locked in his cell and beaten by defendant, Sawyer, and two inmates. Eventually, he filled out a complaint form and a grievance. He also made a request for protective custody and was transferred to a more secluded part of the jail.
¶ 33 Pillischafske acknowledged that on the day in question, he was in custody awaiting trial on a charge of aggravated battery, and that he eventually received a sentence of probation. He stated that no one promised him anything or threatened him with regard to his testimony. Pillischafske also identified photographs depicting his injuries.
¶ 34 On cross-examination, Pillischafske testified that he was bipolar and had depression, and was taking at least one psychoactive medication on the date in question. He stated that he could not see well during the beating because he had his hands over his face, and that he was not screaming while he was being beaten. According to Pillischafske, he did not "have any words" with Wilkerson or Davis and never struck Davis. He clarified that the first time he implicated defendant and Sawyer was when he spoke with a doctor at the dispensary, which was after he
initially reported injuring himself and then reported he was beaten by inmates. On redirect, Pillischafske testified that the first time he told anyone what really happened to him was when he was away from defendant and Sawyer and felt safer.
¶ 35 Delphia Sawyer testified that she had pled guilty to one count of official misconduct in relation to Pillischafske's beating, but that she had not yet been sentenced. While she had been told the State would recommend a sentence of probation in exchange for her truthful testimony, no other threats or promises had been made regarding her testimony.
¶ 36 Sawyer testified that on the day in question, she, defendant, Wilkerson, and Davis beat Pillischafske and inflicted injuries on him. She related that about 8:20 or 8:30 p.m., Davis came to the bubble and reported to her and defendant that the lights were out in some of the cells. Sawyer told him it was their problem. A short time later, Davis came back, said Pillischafske had something to do with it, and asked defendant and Sawyer, "Do you want us to take care of him?" Sawyer understood Davis's statement as an offer to beat or rough up Pillischafske. Sawyer testified that she told Davis no, she did not want him to do anything. However, she also testified that she got Pillischafske out of the shower and locked him in his cell "because he was associated with it." Pillischafske was angry, said he did not have anything to do with the lights being out, and called her a bitch. Sawyer stated that Pillischafske was not injured when she locked him in his cell.
¶ 37 After locking Pillischafske in his cell, Sawyer went back to the bubble. She talked with defendant and Davis for a little bit, and then decided to check on Pillischafske because she knew "he would have issues." Either she or defendant told the other inmates to move toward the front of the tier. Sawyer, defendant, and Davis then walked to Pillischafske's cell and defendant
opened it with a key. Pillischafske was sitting down with a sheet around his neck. Davis entered the cell. Defendant, who was standing outside the cell door with Sawyer, said to Pillischafske, "[Y]ou want to hurt yourself? I got something for you then." Defendant then motioned for Wilkerson to go into the cell and Davis and Wilkerson began to beat Pillischafske. Sawyer testified that neither she nor defendant stopped the beating. Sawyer did not hear Pillischafske screaming or asking the other inmates to stop, but believed he might have said "okay, okay." According to Sawyer, she hit Pillischafske and defendant struck him with a radio.
¶ 38 When the beating was over, either Sawyer or defendant handcuffed Pillischafske and they took him out of the cell. On their way to the bubble, Sawyer told the other inmates, "This is what happens when you fuck with us." She and defendant also told Pillischafske to report that he injured himself. Sawyer testified that while they were walking to the bubble, they saw Officer Bobzin. She and defendant then took Pillischafske to the dispensary, and they were present in the dispensary when Pillischafske gave a videotaped statement. When shown photographs of Pillischafske, Sawyer stated they depicted how he looked when she took him out of his cell after his beating.
¶ 39 Sawyer testified that she and defendant agreed to make up the story that Pillischafske tried to commit suicide in the shower area by bashing his head against the wall. Sawyer explained that she filled out reports to that effect because she was afraid. Specifically, she and defendant filled out an incident report saying that Pillischafske was banging his head against the wall in a corner area of the shower, that Pillischafske was suicidal and had a sheet around his neck, and that Sergeant Raymond Rodriguez was notified; a "movement form" indicating Pillischafske was banging his head against the wall and had a sheet around his neck; and a
medical service request form reporting a suicide attempt and indicating Rodriguez was notified. She stated that immediately after the incident happened, she knew it was wrong, and that she tried to cover it up because she did not want to get in trouble. She testified that she had a lapse in judgment, was really sorry, and was prepared to take responsibility for what happened to Pillischafske.
¶ 40 On cross-examination, Sawyer stated that when she testified before the grand jury, everything she said was a lie. She also stated that she lied in sworn reports. Sawyer further clarified that defendant was with her when she locked Pillischafske in his cell and when he called her a bitch, and that Pillischafske had previously been on suicide watch.
¶ 41 Tamela Baynes, a correctional officer, testified that on the day in question, she and a partner worked the 7 a.m. to 3 p.m. shift on the tier where Pillischafske was housed. When Baynes performed security checks that morning, she did not notice anything out of the ordinary. Defendant and Sawyer relieved her and her partner at the end of their shift. The next day, Baynes made notations in a logbook indicating that the lights were out in a number of the cells.
¶ 42 Correctional officer Steven Martino testified that he relieved defendant and Sawyer at 11 p.m. on the day in question. He did not receive an unusual report and the logbook did not indicate that anything unusual had happened during the prior shift. When Martino inspected the tier, he discovered that the lights were out in several cells and made a notation on his inspection sheet.
¶ 43 Correctional officer Jason Bobzin testified that he was assigned to "movement" during defendant's and Sawyer's shift. About 8:30 p.m., when his patrol took him to corridor outside the tier in question, he noticed there were no officers in the bubble or interlock, which indicated
to him that there was possibly something wrong. Bobzin entered the tier and saw an "unusual amount" of inmates in the front portion of the tier, near the window of the bubble. He ordered the inmates to get out of his way and saw defendant and Sawyer escorting Pillischafske from the back of the tier toward the bubble. When they got to the front of the tier, Bobzin noticed several red marks on Pillischafske's face. He asked defendant and Sawyer if they were okay. They said they were fine, so Bobzin moved on.
¶ 44 Sergeant Scott Guzik testified that on the day in question, he was an officer in the dispensary. Around 8:30 p.m., Sawyer escorted Pillischafske into the dispensary, and defendant arrived shortly thereafter. In defendant's presence, Sawyer told Guzik that Pillischafske had attempted to kill himself and was hitting his face on the wall. Pillischafske had noticeable injuries on his eyes and the side of his face, was visibly distressed, and was crying and saying he did not want to go back to the unit. Pillischafske met with the dispensary social worker in a small room about 15 or 20 feet from where defendant and Sawyer were filling out paperwork at a counter. At some point, Pillischafske said something to the effect that he had tried to take his own life. When the prosecutor asked Guzik whether anyone presented him with a bed sheet, he stated, "I believe there was a bed sheet at the time, placed on [Pillischafske]," and when the prosecutor followed up by asking who placed the bed sheet on Pillischafske, Guzik answered, "I believe it was Officer Sawyer -- I'm sorry, [defendant]." Guzik testified that he did not take control, care, and custody of the bed sheet, or touch it in any way. While Pillischafske talked with the social worker, Guzik called for a nurse to come to the dispensary and treat his injuries. Later, Sergeant Raymond Rodriguez and Lieutenant Hutt recorded an interview with Pillischafske in the waiting room area of the dispensary. Guzik described the waiting room as
"open" and stated that defendant and Sawyer were in the dispensary during the recording of the interview. On cross-examination, Guzik explained that the recorded interview took place in a separate room than the one where defendant was standing, but that the rooms were adjacent and the door was open.
¶ 45 Sergeant Raymond Rodriguez testified that on the date in question, he was the area sergeant for the building. Around 8:30 or 8:45 p.m., he saw defendant, Sawyer, and Pillischafske near the dispensary. When Rodriguez asked what happened, defendant and Sawyer told him that Pillischafske was suicidal and was banging himself into the wall, so they were taking him to the dispensary. In response, Rodriguez went downstairs and got the area lieutenant and a video camera. After they returned, Rodriguez recorded an interview during which Pillischafske said he was slamming his head off the wall. During the recording, Rodriguez's back was towards the dispensary, so he could not see defendant or Sawyer.
¶ 46 Rodriguez stated that during an attempted suicide, the first thing an officer is supposed to do is notify a supervisor. However, he had not been notified prior to seeing defendant, Sawyer, and Pillischafske on their way to the dispensary. In court, Rodriguez identified an incident report submitted by Sawyer, noting defendant's name and indicating that Pillischafske was banging his head against the wall in the shower, had a sheet hanging around his neck, and was suicidal. Rodriguez stated that he did not receive the bed sheet from either defendant or Sawyer, and had no idea where it would be.
¶ 47 Daryl Wiley, a licensed practical nurse, testified that he examined Pillischafske in the dispensary. He described Pillischafske's injuries as consisting of bruising and redness of the left eye, and stated he did not observe injuries to Pillischafske's forehead, nose, lips, eyebrows, or
temple. In Wiley's opinion, Pillischafske's injuries were not consistent with self-inflicted wounds, but rather, were consistent with being in a fight with another individual or blunt force trauma. When shown a photograph of Pillischafske, Wiley stated that it did not fairly and accurately depict they way he looked at the dispensary, as there was additional bruising and swelling in the picture. On cross-examination, Wiley testified that Pillischafske did not tell him anything about how he obtained his injuries.
¶ 48 Dr. Yan Yu testified that he treated Pillischafske in the emergency room. Yu's records showed that Pillischafske complained of trauma to his right eye and forehead. After reviewing photographs of Pillischafske, Yu testified that his injuries were not consistent with being self-inflicted. He explained, "[I]f it's self-inflict, you don't just get the eye socket and the forehead. There's no abrasion. There's no perfectly fine [sic], no swelling, no bloody nose." Yu stated that Pillischafske's eye trauma, specifically the black and blue area of the socket, would have been caused by blunt trauma of some sort. On cross-examination, Yu acknowledged that Pillischafske also had injuries to the side of his head, and agreed that those injuries would possibly be consistent with him banging his head on the wall sideways.
¶ 49 Assistant State's Attorney Nick Trutenko testified that after he was assigned to investigate Pillischafske's beating, investigators from his office interviewed 47 of the 48 inmates who had been housed on the tier. Of those inmates, Trutenko presented 20 to the grand jury. Each time he met with any inmate who had a pending case, he specifically told the inmate that he would not talk to the prosecutor about the inmate's pending case and report that he had cooperated with the Pillischafske investigation, and the inmate was not to have the impression that he was ever going to "get anything" from talking to Trutenko.
¶ 50 Trutenko testified that he also presented 12 Cook County correctional officers to the grand jury, including defendant. Trutenko authenticated the transcript of defendant's testimony at the grand jury proceedings, portions of which were later published to the court. Although Trutenko was not present when the portions of the transcript were read, defense counsel stipulated that the contents of the transcript were consistent with what Trutenko would have testified to at trial.
¶ 51 The State read portions of defendant's grand jury testimony into the record as it related to the perjury charges. During the grand jury proceedings, defendant testified, relevant to this appeal, (1) that on the date in question, Pillischafske had a sheet wrapped around his neck and was banging his head against the wall by the shower area; (2) that she gave the sheet to Sergeant Rodriguez because it was evidence; (3) that the incident report filled out by Sawyer correctly indicated defendant saw Pillischafske in the corner area of the shower, banging his head against the wall; (4) that she saw Pillischafske inflicting wounds to himself; (5) that neither she nor Sawyer locked Pillischafske in his cell; (6) that Pillischafske never swore at her or Sawyer; (7) that Davis did not go into Pillischafske's cell and beat him; (8) that Wilkerson did not go into Pillischafske's cell and beat him; (9) that no one went into Pillischafske's cell and beat him; (10) that she did not hit Pillischafske with her radio; (11) that she did not strike Pillischafske; (12) that she did not see Officer Bobzin during any part of the incident; and (13) that she did not know anything about the power being off in some of the cells.
¶ 52 Following the close of the State's case, defendant made a motion for a directed finding, which the trial court denied. Defendant rested without testifying or presenting any evidence.
¶ 53 In closing arguments, the prosecutor emphasized that defendant was specially trained to take care of and watch over the most vulnerable inmates, but nevertheless "picked on" an 18-year-old detainee who was suicidal. The prosecutor highlighted evidence showing that not only did defendant let Davis and Wilkerson into Pillischafske's cell, she stood and watched as they beat Pillischafske and then joined in by kicking Pillischafske and hitting him with her radio. The prosecutor further argued that after the beating, defendant began a cover-up, preparing a false report, instructing Pillischafske to tell a fabricated story, and finally lying to the grand jury.
¶ 54 Defense counsel opened his closing arguments by observing that the essence of the State's case was based on testimony from people "you can't rely on," specifically, "dangerous, mentally ill criminals" who were taking psychotropic medication. Counsel argued that right after the incident, everyone agreed as to what happened, and it was only later that these "suggestible" inmates decided to change their stories and testify in a manner that supported the State's theory. Counsel noted that Evans did not mention defendant or Sawyer in the letter he wrote to Pillischafske's mother, that it was the inmates and not the officers who were upset about the lights going out, that Davis had memory problems, and that neither the doctor nor the nurse who testified was a forensic expert. Counsel further argued that Sawyer changed her story "for her own self-interests *** because she has to go along with the State's theory to try to get a break."
¶ 55 In rebuttal, the prosecutor argued that the inmates' testimony was corroborated by Sawyer, who did not have a criminal history and was not on psychotropic medication, but was "appalled at what she did, and her lack of judgment, and wants now to make it right." The prosecutor asserted that the inmates came forward not because of any threats or promises, but because what happened to Pillischafske was wrong.
¶ 56 With regard to case number 13 CR 4921, the trial court acquitted defendant of the count of official misconduct alleging that she conspired to commit battery, as well as the count of mob action alleging that she disturbed the public peace. The court found defendant guilty of the remaining charges: three counts of official misconduct, two counts of mob action, four counts of obstructing justice, one count of battery, and one count of conspiracy to commit battery. As to case number 13 CR 4922, which involved 13 charges of perjury, the trial court acquitted defendant of the count alleging that she falsely testified to the grand jury that she gave the bed sheet to Sergeant Rodriguez, the count alleging that she falsely testified to the grand jury that Davis did not go into Pillischafske's cell and beat him, and the count alleging that she falsely testified to the grand jury that Officer Bobzin was not present on the tier during the incident and that she did not see Bobzin while she was transporting Pillischafske off the tier. The court found defendant guilty of the remaining perjury counts. Defendant did not file a posttrial motion.
¶ 57 Following a sentencing hearing, the trial court imposed a sentence of two years of probation "concurrent on all counts in both cases."
¶ 58 This appeal followed.
¶ 59 On appeal, defendant first challenges the sufficiency of the evidence to convict. When reviewing the sufficiency of the evidence, the relevant inquiry 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. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). The credibility of the witnesses, the weight to be given their testimony, and the resolution of any conflicts in the evidence are within the province of the trier of fact, and a reviewing court will not substitute its judgment for that of the trier of fact on these matters.
People v. Brooks, 187 Ill. 2d 91, 131 (1999). A reviewing court will not reverse a conviction simply because the defendant claims that a witness was not credible. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Rather, reversal is justified only where the evidence is "so unsatisfactory, improbable or implausible" that it raises a reasonable doubt as to the defendant's guilt. People v. Slim, 127 Ill. 2d 302, 307 (1989). Where a guilty finding depends on eyewitness testimony, a reviewing court, keeping in mind that it was the fact finder who saw and heard the witnesses, must decide whether any fact finder could reasonably accept the witnesses' testimony as true beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d 274, 279-80 (2004). It is for the finder of fact to judge how flaws in a witness's testimony affect the credibility of the whole. Cunningham, 212 Ill. 2d at 283.
¶ 60 Defendant contends that the State failed to prove her guilty beyond a reasonable doubt where all her convictions, including the perjury charges, were contingent on the credibility of the inmates' and Sawyer's trial testimony but each of these crucial witnesses was incredible. Defendant argues that Sawyer and the inmates who testified at trial were incredible because (1) they provided inconsistent accounts of the incident, (2) each was impeached, and (3) all had a motivation to testify falsely.
¶ 61 First, defendant has identified a number of inconsistencies in the witnesses' testimonies. Specifically, she notes that there are discrepancies between witnesses as to whether it was defendant or Sawyer who told Pillischafske to get out of the shower and who locked him in his cell; whether Pillischafske, on his way to his cell or after he was locked in, called one or both officers names; whether Sawyer or defendant responded to Pillischafske's name-calling; whether Pillischafske "jumped" at one of the officers; whether Pillischafske started the altercation with
Davis; whether Davis or Wilkerson hit Pillischafske first; whether defendant or Sawyer kicked Pillischafske; whether it was defendant or Sawyer who hit Pillischafske with a walkie-talkie; whether Pillischafske screamed during the beating or was silent; and whether Pillischafske's injuries were accurately depicted in the photograph produced at trial.
¶ 62 Second, defendant asserts that Sawyer, Pillischafske, Hopkins, and Davis were impeached by prior inconsistent statements. She emphasizes that Sawyer consistently and repeatedly reported that Pillischafske's injuries were self-inflicted until she took the stand at trial, and that Pillischafske also initially reported that he injured himself. She further notes that Hopkins did not mention defendant's and Sawyer's involvement in the incident until the third time he was interviewed, and that while Davis could not say at trial which officer hit Pillischafske with a walkie-talkie, during the grand jury proceedings, he identified this officer as defendant.
¶ 63 Third, defendant argues that the inmates and Sawyer were motivated to testify falsely. She observes that at the time the incident occurred, each inmate was facing pending charges; that at the time of the grand jury proceedings, at least three of the inmates' cases were still pending; and that at the time of trial, Jackson's case had not yet been resolved and the State had permitted Sawyer to plead guilty to just one charge and had agreed to recommend probation in return for her testimony. Defendant argues that because the State held "the keys to the kingdom in terms of what [would] become of [the witnesses'] criminal charges," the inmates and Sawyer had special motivations to testify favorably for the prosecution at trial. She further argues that Sawyer's trial testimony "does not have the 'absolute conviction of truth' because she has shown she was willing to lie under oath; Sawyer either lied during her testimony in front of the grand jury,
where she testified that Pillischafske tried to commit suicide by bashing his head against the wall, or she lied at [defendant's] trial." Finally, defendant argues that Davis and Wilkerson had an additional motive to gain favor with the State, since both admitted participating in Pillischafske's beating and "thus, they hoped to gain favor with the State so that they would not face additional criminal charges."
¶ 64 Defendant's arguments involve matters of credibility that are for the trial court to resolve in its role as trier of fact. People v. Tenney, 205 Ill. 2d 411, 428 (2002). As noted above, it is the trier of fact who assesses the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence, and who resolves conflicts or inconsistencies in the evidence. Id.; Brooks, 187 Ill. 2d at 131 (1999). We will not substitute our judgment for that of the trial court on these questions. Brooks, 187 Ill. 2d at 131.
¶ 65 Here, the trial court heard all the witnesses' testimony and was aware of the conflicts and inconsistencies between and among the various versions of events the witnesses presented. In closing arguments, defense counsel highlighted issues with witness credibility. The court knew about Sawyer's legal situation and grand jury testimony, and specifically noted that the inmate witnesses all had criminal histories, suffered from mental health issues, and were taking medication. After observing that the inmate witnesses carried "baggage" and that Sawyer "had a different type of baggage," the court found that collectively, their testimony established the following: Pillischafske and some other inmates caused lights to go out; defendant and Sawyer took action to lock up the inmates they thought were involved; Pillischafske lingered in the shower; defendant and Sawyer "hit a *** point" and "lost their temper"; defendant and Sawyer talked with Davis about what to do; "[t]here was just a terrible lapse of judgment, and the
defendant and Miss Sawyer opened [Pillischafske's] cell to let Mr. Davis in"; Pillischafske had a sheet around his neck; there was a push and a punch between Pillischafske and Davis; Wilkerson entered the cell and beat Pillischafske; it was "very obvious" that Pillischafske's injuries were not self-inflicted; defendant and Sawyer "made a further lapse in judgment" and tried to cover up what happened by starting a string of false statements to superiors and telling Pillischafske what to say; eventually, Pillischafske and other inmates started to talk and the State's Attorney's investigation ensued; and the information gleaned from the grand jury proceedings was "fairly consistent from everybody" with the exception of defendant and Sawyer.
¶ 66 Despite the inconsistencies, impeachment, and motivations defendant has identified, we find that the witnesses' statements that directly support defendant's convictions could reasonably be accepted by the fact finder who saw and heard the witnesses testify. See Cunningham, 212 Ill. 2d at 285. Having heard all the evidence, the trial court was convinced of defendant's guilt beyond a reasonable doubt. After reviewing the evidence in the light most favorable to the prosecution, which we must, we conclude that the evidence was not "so unsatisfactory, improbable or implausible" to raise a reasonable doubt as to defendant's guilt. Slim, 127 Ill. 2d at 307. Accordingly, defendant's challenge to the sufficiency of the evidence fails.
¶ 67 Defendant's second contention on appeal is that pursuant to the one-act, one-crime rule of People v. King, 66 Ill. 2d 551 (1977), this court must vacate both her convictions for mob action, "at least one" of her convictions for obstructing justice, and her conviction for battery. We note that although defendant failed to preserve this issue by objecting at trial and addressing it in a posttrial motion, one-act, one-crime violations are recognized under the second prong of the plain error rule. People v. Harvey, 211 Ill. 2d 368, 389 (2004) ("an alleged one-act, one-crime
violation and the potential for a surplus conviction and sentence affects the integrity of the judicial process, thus satisfying the second prong of the plain error rule").
¶ 68 Defendant first argues that where her two convictions for mob action (counts 6 and 7) were based on a single act (that she knowingly assembled and, by violence, inflicted injury on Pillischafske), both convictions for mob action cannot stand. The State concedes the argument and we agree. We therefore vacate one of the mob action convictions but, for reasons explained below, we need not determine which count.
¶ 69 Next, relying on the holding of People v. Kotero, 2012 IL App (1st) 100951, defendant argues that where her convictions for official misconduct on counts 1, 3, and 4 were predicated, respectively, on committing battery (charged in count 12), mob action (charged in counts 6 and 7), and obstructing justice (charged in counts 8, 9, 10, and 11), this court must vacate whichever mob action conviction remains, "at least one" of her convictions for obstructing justice, and her single conviction for battery.
¶ 70 In Kotero, the defendant was convicted of five counts of theft and one count of official misconduct. Id. ¶ 1. The theft convictions arose from five separate occasions between August 4 and September 28, 2006, when the defendant, a parking enforcement officer for the Village of Oak Park, took cash from people in exchange for removing Denver boots from their cars, but never gave the money to the Village. Id. ¶¶ 3, 22 n.1. The official misconduct charge brought against the defendant alleged that "between July 21, 2006 and September 28, 2006," he knowingly performed "theft of money due to the Village of Oak Park." Id. ¶ 24. On appeal, the defendant contended that his convictions violated the one-act, one-crime rule. Id. ¶ 18.
¶ 71 This court found that the charge of official misconduct and the aggregated theft charges were based on the same physical act: stealing money over a two-month period. Id. ¶ 26. Therefore, we concluded that the convictions violated the one-act, one-crime doctrine. Id. Because official misconduct was a Class 3 felony and theft of government property, as charged in that case, was a Class 2 felony, we vacated the conviction for official misconduct, the less serious offense. Id. ¶ 27.
¶ 72 Here, count 1 charged official misconduct based on "battery" (which was in turn charged in count 12), count 3 charged official misconduct based on "mob action" (which was in turn charged in counts 6 and 7), and count 4 charged official misconduct based on "obstructing justice" (which was in turn charged in counts 8, 9, 10, and 11). Defendant argues that where these charges of official misconduct were predicated on an identical act underlying another charge for which she stands convicted, the one-act, one-crime rule is violated. She asserts that since official misconduct is a Class 3 felony (720 ILCS 5/33-3 (West 2012)), while battery is a Class A misdemeanor (720 ILCS 5/12-3(b) (West 2012)), mob action, as charged, is a Class 4 felony (720 ILCS 5/25-1(b)(3) (West 2012)), and obstructing justice is a Class 4 felony (720 ILCS 5/31-4(b)(1) (West 2012)), the conviction for battery, the surviving conviction for mob action, and "at least one" of the convictions for obstructing justice must be vacated.
¶ 73 The State maintains that the conviction for battery, the remaining conviction for mob action, and all the convictions for obstructing justice should be affirmed because, although the charges of official misconduct in counts 1, 3, and 4 were based upon the charges of battery, mob action, and obstructing justice, "each of the requirements for those individual offenses on their own were not sufficient to convict defendant of official misconduct." The State is correct that
official misconduct requires proof not only of the underlying offense, but also proof that the underlying offense was committed while the defendant was knowingly acting in an official capacity as a public employee. 720 ILCS 5/33-3(b) (West 2012). However, a defendant's knowledge of wrongdoing as a public official constitutes neither a physical act nor an overt or outward manifestation capable of supporting a different offense under the one-act, one-crime doctrine. People v. Moshier, 312 Ill. App. 3d 879, 882 (2000).
¶ 74 Here, the charge of official misconduct in count 1 was based on the same physical act of battery alleged in count 12, the charge of official misconduct in count 3 was based on the same physical act of mob action alleged in counts 6 and 7, and the charge of official misconduct in count 4 was based on the same physical act alleged in one of the charges of obstructing justice alleged in count 8, 9, 10, and 11. As such, the convictions for official misconduct violate the one-act, one-crime doctrine. See Kotero, 2012 IL App (1st) 100951, ¶ 26; see also People v. Price, 369 Ill. App. 3d 395, 405 (2006) (no one-act, one-crime violation occurred where the trial court sentenced the defendant on a charge of official misconduct but not on the underlying charge of theft); Moshier, 312 Ill. App. 3d at 882 (where a charge of official misconduct was based on the same act alleged in a charge of theft, the conviction for official misconduct violated the one-act, one-crime rule and was vacated); People v. Shelton, 252 Ill. App. 3d 193, 208 (1993) (where six counts of official misconduct and one count of possession of a controlled substance with intent to deliver were based on the same act, the sentences for official misconduct violated the one-act, one-crime rule and were vacated).
¶ 75 Where a one-act, one-crime violation exists, the conviction for the less serious offense should be vacated and only a conviction for the most serious offense may be sustained. Kotero,
2012 IL App (1st) 100951, ¶ 27; People v. Walton, 378 Ill. App. 3d 580, 590 (2007). As noted above, official misconduct is a Class 3 felony, battery is a Class A misdemeanor, mob action (as charged) is a Class 4 felony, and obstructing justice is a Class 4 felony. As such, the conviction for battery, the surviving conviction for mob action, and one of the convictions for obstructing justice must be vacated.
¶ 76 With regard to which conviction of obstructing justice conviction is to be vacated, we note that our supreme court has held that "[w]hen it cannot be determined which of two or more convictions based on a single physical act is the more serious offense, the cause will be remanded to the trial court for that determination." People v. Artis, 232 Ill. 2d 156, 177 (2009). Here, count 4 charged official misconduct based on "obstructing justice," but did not specify which count of obstructing justice (as between counts 8, 9, 10, and 11) was the predicate offense. Count 8 alleged that defendant knowingly furnished false information in a Cook County Department of Corrections incident report form by stating she noticed Pillischafske banging his head against the shower wall; count 9 alleged that defendant knowingly furnished false information in a Cook County Sherriff's Office / Cook County Health and Hospitals System interagency health inquiry form by stating Pillischafske was banging his head against the wall; count 10 alleged that defendant knowingly furnished false information in a Cook County Department of Corrections inmate medical service request form by stating Pillischafske attempted suicide by banging his head against the wall; and count 11 alleged that defendant knowingly furnished false information to Sergeant Rodriguez by stating that Pillischafske attempted suicide by trying to hang himself and by slamming his head off the wall. We cannot
determine which of these counts is the least serious offense. Accordingly, we remand the matter to the trial court for that determination.
¶ 77 In sum, for the reasons explained above, we reject defendant's challenge to the sufficiency of the evidence based on the credibility of the witnesses. However, we agree with defendant that some of her convictions must be vacated because they violate the one-act, one-crime rule. Specifically, we vacate defendant's convictions for mob action, as charged in counts 6 and 7, and her conviction for battery, as charged in count 12. Finally, we vacate one of defendant's convictions for obstructing justice but remand to the circuit court for a determination of which conviction as between counts 8, 9, 10, and 11.
¶ 78 Affirmed in part, vacated in part, and remanded.