Criminal Law

Defendant was convicted, in stipulated bench trial, of unlawful possession of child pornography, after person with whom Defendant had resided found video clips and turned them over to police. Motion to quash and suppress were properly denied, as a private search is not protected by the Fourth Amendment. Defense counsel had utilized stipulation as matter of trial strategy while preserving for review a challenge to the denial of the motion to suppress. Defendant failed to show essential element of deficient performance by trial counsel, by indication of Defendant's indifference to the stipulation. (FITZGERALD, THOMAS, KILBRIDE, GARMAN, KARMEIER, and BURKE, concurring.)

Defendant entered a retail store and was seen placing items in his jacket, and after being confronted he pulled a knife and fled in a getaway car. Defendant was convicted, after jury trial, of charged offenses of burglary, retail theft and aggravated assault. When charged offenses are at issue, the defendant has notice of what the State seeks to convict him of, and the jury will be instructed on both charges and thus given the option to convict on only the less serious offense, and in such case the court should use the "abstract elements" approach. Theft is not a lesser-included offense of burglary. Not all of the elements of retail theft are included in the offense of burglary, and retail theft contains elements that are not included in burglary. It is possible to commit burglary without necessarily committing retail theft. (FITZGERALD, FREEMAN, THOMAS, KILBRIDE, GARMAN, and KARMEIER, concurring.)

After an altercation at dance at NIU gymnasium, Defendant was convicted of resisting a peace officer and unlawful consumption of alcohol by a minor. Defendant had wedged himself between a uniformed NIU officer and a student whom officer asked to leave, and pushed into officer, and then broke away from another uniformed officer and knocked him down. Evidence was ample to find that officer then seized or arrested Defendant by restraining him, and that Defendant resisted by pushing and trying to break away from officers, and officers' use of greater force was in direct response to Defendant's actions. (SCHOSTOK, concurring; O'MALLEY, specially concurring.)

Defendant was indicted on two counts of predatory criminal sexual assault of a child, and entered a blind guilty plea to one counts, and State dismissed the other count; he was sentenced to 20 years imprisonment. Court properly considered all relevant facts, including Defendant age (22) and victim's age (8), repeated acts of abuse, including at different residence locations, and abuse of trust, as Defendant resided in same residences as victim . Defendant's status as an illegal immigrant is not a statutory ground in mitigation.(BOWMAN and HUTCHINSON, concurring.)

Court found Defendant unfit to stand trial because of his cognitive deficits and lack of knowledge of the legal system. Court then held a discharge hearing and found him "not not guilty" of failing to comply with sex-offender registration requirements. Evidence at hearing was insufficient, and court should thus have acquitted Defendant. The fact that Defendant gave wrong information as to his residence, when he had previously reported to the police that he was homeless, is insufficient to show that he gave false information willfully or knowingly. An offender who tries to register a real "fixed residence" but makes a mistake is not subject to the weekly reporting requirement. (BOWMAN and SCHOSTOCK, concurring.)

Defendant was sentenced to 12 years imprisonment on each of four predatory criminal sexual assault counts, and 2 years on aggravated stalking count, all to run consecutively. Court did not err in refusing to replace one juror, who victim stated was a member of the same church, and with whom she had brief and limited interactions there. Error in admitting evidence of pornographic images found on Defendant's computer was not greatly prejudicial, in light of substantial evidence that Defendant sexually abused victim from when she was age 9 until she was 13. "Conduct on the part of the defendant" in Section 5-5-4 of Code of Criminal Procedure means behavior by Defendant, rather than an attitude toward his crime or a belief about his past (such as denial of his own victimization). (McLAREN, concurring; ZENOFF, specially concurring.)

Defendant entered open guilty plea to escape, having fled from police car while being driven to bond court, and was sentenced as Class X offender to 20 years in prison; court denied his motion to reconsider his sentence. Defendant filed Section 2-1401 petition, alleging that in sentencing him court had relied on grand jury testimony that was later proved false; court dismissed his petition. Court did not abuse its discretion in denying motion to reconsider sentence, in discounting Defendant's unsworn assertion that his altercation with police officer, in a different case, did not occur exactly as officer described it, as court considered his lengthy and serious criminal history and serious nature of escape offense. Court improperly dismissed Section 2-1401 petition, as court and parties improperly treated petition as a second motion to reconsider sentence, and court improperly relied on personal recollection of sentencing hearing and hearing on motion to reconsider. (ZENOFF and HUTCHINSON, concurring.)