"One-Act, One-Crime"

A couple of years ago, I did a post in which I explained that in a charging document, like an indictment or an information, each “charge” – each accusation that the defendant committed a specific “crime” – must be set out in a separate and distinct “count” of the charging document.

I also explained that this is based on simple fairness: If a prosecutor puts two or three different crimes in a single count, the defendant has to figure out if he needs to defend against all of them or only one or two of them. (This problem, as I explained in my earlier post, is known as “duplicity” in criminal pleading.)

As I also noted, having more than one crime in a single count can make it difficult for a defendant to claim double jeopardy if he’s prosecuted for one of the crimes later; if the count in the original indictment charged Defendant Doe with crimes A and B and the jury simply convicts him on that count, did they convict him (i) of crime A (only), (ii) of crime B (only) or (iii) of both crimes A and B?

It’s also a problem if a prosecutor breaks one crime – illegally possessing 10 tables of a controlled substance – into 10 counts. (This problem, as I also noted in my earlier post , is known as “multiplicity” in criminal pleading. Aside from anything else, that could mean that if the defendant is convicted on all counts, his sentence is 10 times what it would be if he had only been charged in one count with possessing all 10 tablets.

Enough preface. Let’s talk about People v. Sucic, 2010 WL 2010511 (Illinois Court of Appeals 2010). Zlatan Sucic “was convicted of cyberstalking, harassment through electronic communication, and stalking” and appealed. People v. Sucic, supra. The convictions arose out of these events:

Heather Stern . . . is 35 years old and lives with her 6-year-old son. . . . In spring 2006, [her] home flooded and she sought temporary housing . . . Stern . . . met [Sucic], a 43-year-old Serbian immigrant, through an on-line roommate matching service. Stern . . . maintained a friendship with [Sucic] and met him on a monthly basis for coffee. . . .

In July 2006, [Sucic] and several other people helped Stern and her son move into a new apartment. . . . [and] she began working for [his] granite business. [Sucic] began staying overnight . . . at Stern's apartment while he was looking for a new apartment. . . . [He] was supposed to pay rent in addition to her salary. . . . [but] often paid her in cash and would alternatively designate it as rent or pay, but still be behind on both. Stern . . . and [Sucic] argued about his payments and she quit working for [him] in November or December 2006. . . .

Stern . . . informed [Sucic] she was not interested in a romantic relationship with him, but [he] `wouldn't take no for an answer.’ . . . Stern . . . `wasn't comfortable with how [[Sucic]] was dealing with the business or the personal relationship’ and [Sucic] stopped staying at her apartment on October 17 or October 18, 2006. . . .

[D]uring the early morning hours on January 27, 2007, she. . . heard a `jingling noise’ from the back door handle . . . . Stern . . . slammed her weight against the back door and locked it as [Sucic] was trying to open [it]. . . . [Sucic] began . . . . calling her a `bitch’ and asking her, `Why are you doing this?’ . . . [After that] incident, [Sucic] continued to leave her voice mail messages and send her e-mails. On February 19, 2006, Stern discovered that someone had deflated the tires on her car. . . .

[O]n March 13, 2007, she received a number of e-mails and voice mail messages from [Sucic]. . . . [A]n e-mail [Sucic] sent her on March 13, 2007. . . . stated [in part]: `When I am in a problem in the future, I will commit suicide, my life will vanish or I will do suicide and I will take you with me.’ . . . [Sucic sent her] a second e-mail . . . on March 13, 2007. . . . that stated, in relevant part:

`YOU KILLED MY HEART, I WILL GET EVEN . . . .

· * *

DEAL IS ME OR YOU KNOW . . . TRY ME

I AM SO DESPERATE I DO NOT MIND DYING AS OF NOW

TRY ME KILLER’

[Sucic] left another phone voice mail message on March 13, 2007, . . .in which [Sucic] . . . stated, inter alia, `I'm dead. I'm a dead person without you and [your son]. So, I will take you with me. * * * I need you with me * * * in heaven, okay?’

People v. Sucic, supra. A lot more went on in the months between July 2006 and March 2007, but I think you get the idea as to the factual basis of the charges that were later brought against Sucic.

As I noted above, he went to trial and was convicted of cyberstalking, harassment through electronic communication and stalking. He appealed the convictions on several grounds, only one of which concerns us. Sucic argued, in part, that “his convictions for cyberstalking and harassment through electronic communication violate[d] the one-act, one-crime rule.” People v. Sucic, supra. His one-act, one-crime argument seems to be based on, or based on a version of, the principle of multiplicity, which I discussed in my prior post on “crimes” and “counts.” (I tried to find out, from reported Illinois cases and/or from Illinois law reviews and treatises, if the one-act, one-crime rule is the same as the principle of multiplicity or differs in certain respects, but I failed.)

The Illinois Court of Appeals began its ruling on his argument by noting that the Illinois Supreme Court established the one-act, one-crime rule in its decision in People v. King, 66 Ill.2d 551 (1977). People v. Sucic, supra. The King court held that “when more than one offense arises from a series of . . . closely related acts and the offenses are not. . . lesser included offenses, convictions with concurrent sentences can be entered” for all the offenses. People v. King, supra.

As Wikipedia explains, a lesser-included offense “is a crime for which all of the elements necessary to impose liability are also elements found in a more serious crime.” Lesser-included crimes are a subset of more serious crimes, so by committing the more serious crime you automatically commit the less serious crime. You cannot be convicted of both because you really only committed one crime – the more serious one. The Illinois Court of Appeals noted that the Illinois Supreme Court explained, in People v. Rodriguez, 169 Ill. 183 (1996), how a court should analyze a one-act, one-crime argument:

[A] court first must determine whether a [Sucic]'s conduct consists of one act or several acts. Multiple convictions are improper if they are based on precisely the same physical act. If the [Sucic]'s conduct is based on more than one physical act, a court must then determine whether any of the offenses are lesser-included offenses. If they are, then multiple convictions are improper.

People v. Sucic, supra.

The Court of Appeals then addressed the substance of Sucic’s one-act, one-crime argument:

[Sucic] was charged and convicted of cyberstalking . . . based on two e-mails sent to the victim on March 13, 2007, containing the threats `that he will kill himself and take her with him’ and `that the victim killed his heart and he will get even.’ [Sucic] was also charged and convicted of harassment through electronic communication . . . based on the e-mail sent to the victim containing the threat `that he will kill himself and take her with him.’ There is no separate act in this case. In one instance the e-mail threatening to `kill himself and take [the victim] with him’ is combined with a second e-mail to constitute cyberstalking, and in the other it is the same e-mail threatening to `kill himself and take [the victim] with him’ to create a separate offense of harassment through electronic communication. We hold that the one-act, one-crime rule applies to these convictions. Therefore, the separate conviction for harassment through electronic communication is reversed and the sentence vacated.

It looks as though the Illinois Court of Appeals found that the harassment through electronic communication count was a lesser-included offense of the cyberstalking count, and so could not provide the basis for a separate conviction. The court noted that for Sucic to be convicted of cyberstalking,

the State must prove that defendant `knowingly and without lawful justification’ harassed the victim by transmitting `a threat of immediate or future bodily harm, sexual assault, confinement, or restraint.’ The State must also prove that defendant transmitted such a threat on at least two separate occasions.

People v. Sucic, supra (quoting 720 Illinois Compiled Statutes 5/12-7.5). To convict him of harassment through electronic communication, the prosecution had to prove beyond a reasonable doubt that Sucic (i) used electronic communications to (ii) threaten “injury to the person . . . to whom an electronic communication is directed”. 720 Illinois Compiled Statutes 135/2-1(a)(4).

It seems clear that the harassment by electronic communication charge was a lesser-included offense of cyberstalking at least in this case (it might be in any case, I couldn’t find any cases on this issue) because both charges are based on communicating a threat to the victim. The only difference is that the harassment charge can be based on communicating A threat while the cyberstalking charge requires that the defendant have communicated two or more threats.