People v. Witherspoon ( 2008 )

NO. 4-06-0226 Filed 2/26/08
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
MARCELUS WITHERSPOON, ) No. 05CF1253
Defendant-Appellant. )
) Honorable
) James R. Coryell,
) Judge Presiding.
JUSTICE MYERSCOUGH delivered the opinion of the court:
In a fit of jealousy, defendant, Marcelus Witherspoon,
beat up his girlfriend. The State brought charges against him.
A jury convicted him of several counts, and the trial court
sentenced him to six years each on counts V and VI (attempt
(aggravated criminal sexual assault)), three years for count VIII
(aggravated domestic battery) and one year for count IX (domestic
battery with a prior domestic-battery conviction)--all sentences
to run consecutively, for a total of 16 years in prison. Defen-
dant appeals, arguing (1) the State failed to prove him guilty
beyond a reasonable doubt of count VI, attempt, because the
evidence failed to demonstrate that he made a second attempt to
commit aggravated criminal sexual assault with the board; and (2)
the court erred in ordering consecutive sentences. The State
concedes, and we agree, that the sentences on counts VIII and IX
should be concurrent instead of consecutive; we remand the case
with directions to amend the sentencing order accordingly.
Otherwise, we affirm defendant's convictions as modified.
I. BACKGROUND
A. The Information
The information contains nine counts, all of them
alleging acts of violence that defendant perpetrated against K.D.
on September 6, 2005. Counts I through IV charge him with
aggravated criminal sexual assault, a Class X felony (720 ILCS
5/12-14(a)(2), (d)(1) (West 2004)). Count I alleges that by the
use of the force, he placed a knife sharpener on K.D.'s vagina
and in so doing, inflicted bodily harm upon her by striking her
on the face with his hands. Count II is identical to count I
except it alleges he placed the knife sharpener on her vagina "a
second time." Count III alleges he placed the knife sharpener on
her vagina and in so doing, threatened her life by strangling her
about the neck with his hands. Count IV is identical to count
III except it alleges he placed the knife sharpener on her vagina
"a second time."
Counts V and VI charge defendant with attempt (aggra-
vated criminal sexual assault), a Class 1 felony (720 ILCS 5/8-
4(a), (c)(2), 12-14(a)(2) (West 2004)). We quote these two
counts because, in our analysis, we refer to them in detail.
Count V reads as follows:
"[D]efendant *** commit[ted] the offense
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of attempt (aggravated criminal sexual as-
sault), in that ***, with the intent to com-
mit the offense of [a]ggravated [c]riminal
[s]exual [a]ssault, *** [he] performed a
substantial step toward the commission of
that offense, in that ***, while holding a
piece of wood, [he] grabbed [K.D.], held her,
and tried to ram the board into the sex organ
of [K.D.]."
Count VI is identical to count V except for the addition of the
final adverbial phrase "tried to ram the board into the sex organ
of [K.D.], a second time." (Emphasis added.)
Counts VII and VIII charge defendant with aggravated
domestic battery, a Class 2 felony (720 ILCS 5/12-3.3(a), (b)
(West 2004)). Count VII alleges he caused "great bodily harm" to
K.D., a family or household member, by striking her in both her
legs with a board, inflicting contusions to her inner right
thigh, right calf, left leg, and left ankle. Count VIII alleges
he caused her "great bodily harm" by striking her approximately
12 times in the face with both of his open hands, inflicting
contusions to her eyes, her chin, and the right side of her neck.
Count IX charges defendant with domestic battery with a
prior domestic-battery conviction, a Class 4 felony (720 ILCS
5/12-3.2(a)(1), (b) (West 2004)), in that having been previously
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convicted of domestic battery in People v. Witherspoon, case No.
01-CF-853 (Cir. Ct. Macon Co.), he threw K.D. onto the couch and
strangled her with his hands to the point where she could not
breathe.
B. The Trial
In the jury trial, K.D. testified she had known defen-
dant for years and dated him a couple of months. On September 5,
2005, he rang her cellular telephone repeatedly, but she did not
answer, for she was unwilling to speak with him at the time. On
September 6, 2005, she arrived home around 1:45 a.m. As she
pulled into her driveway, defendant pounded on the windows of her
truck, asking her where she had been and why she had not answered
his calls. When she got out of the truck, he grabbed her by the
hair on the back of her head and escorted her to the front door
of her house. She unlocked the door, and they went inside. In
the living room, he struck her in the face about a dozen times
with his open hands, making her ears ring and her nose and mouth
bleed. Then he calmed down momentarily and told her to go clean
the blood off her face. When she emerged from the bathroom, he
tried to cut her hair off with a knife, accusing her of being
with someone else. She fought him off, and he calmed down again
and ordered her to go to bed. She did so, and soon thereafter,
he entered the bedroom, and they had sex ("I didn't refuse him").
He then returned to the living room, and she slept.
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Defendant woke her a couple of hours later and told her
was going to leave and attend to some business. K.D. let him
have the keys to her truck. He told her he would be back. She
got out of bed and took a shower, trying to make herself feel
better. While she was showering, defendant came back into her
house. He had her purse, which he had taken out of her truck.
He turned off the water in the shower and flung the purse at her,
demanding to know why she had condoms in her purse. He grabbed
her by the hair of her head and pulled her, wet and naked, out of
the shower and into the living room. She testified:
"A. I'm on the ground, and he's asking
me why I have condoms, who[m] else am I
fucking, stuff of that nature. He goes and
grabs a [two- by - four-inch] board that I
use to lock my back [sliding-glass] door
with, and I get up off the ground and go[]
into the kitchen[] [be]cause I don't know
what he's doing. I see him come back with a
board, and I'm thinking[,] [W]hat are you
doing? And he starts hitting me with it in
the legs like a baseball bat.
Q. So, you were the baseball[,] and the
board was the bat?
A. Evidently.
- 5 -
Q. Okay. Where did he hit you in the
legs?
A. He struck me multiple times in my
legs.
Q. Which ones? Both?
A. Both of them.
Q. Thighs?
A. Thighs, cal[ves], outside, inside,
ankle.
Q. Okay.
A. All over my lower extremities.
Q. Okay.
A. I think he got me on the arm [good
one] time with it.
Q. And at this point, what are you
thinking?
A. I mean, I don't know what to think.
I'm laying [sic] on the ground. He's telling
me to open up my legs, and he's obviously
trying to hurt me. I mean, I don't know. I
was trying to fight him. I remember trying
to kick at him.
* * *
Q. *** So, what did he attempt to do
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when you didn't open your legs?
A. He put the board down again. I got
up. I ran to the door stark naked."
K.D. was so desperate that she tried to run outside
without any clothes on ("because, I mean, this is extreme"), but
defendant reached the door before she did and pushed her back and
got her in a headlock. He threw her onto the living-room couch,
gripped her neck with both hands, and began strangling her. She
saw red and black and was on the verge of passing out. "'I can't
breathe. I can't breath[e]," she told him. "'I don't care,'" he
replied. Then he released her, and as she lay dazed on the
couch, he went into the kitchen and returned with a "knife
sharpener." He pinned her to the couch and told her to open her
legs. They struggled. He got one of his hands inside her
vagina, and with the other hand, he tried to push the knife
sharpener into her vagina as she tried to push it away. The
prosecutor asked her:
"Q. *** Was Mr. Witherspoon successful
in inserting the knife sharpener into your
vagina?
A. No.
Q. Did he touch your labia with the
knife sharpener?
A. It touched me, but it never went
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inside of me.
Q. And about how many times did it touch
you?
A. Once or twice.
Q. Once or twice. Okay. Then what
happened?
A. I don't remember how things calmed
down after that.
Q. But things calmed down?
A. He left again."
It was about 9:30 a.m. when defendant left; he drove
away in her truck, taking her keys and cellular telephone with
him. While he was gone, K.D. finished taking a shower and left a
voice-mail message for her mother. She did not telephone the
police at that time because she was scared and in her past
experience, the police had proved ineffectual. "I mean, you call
them. They come two or three hours later." About 10:30 or 11
a.m., defendant returned with a friend, and the three of them
watched television on the back porch and had something to eat.
At 2 p.m., defendant dropped her off at work (she was a cashier
in a truck stop). Seeing the bruises on her face and her cut
lip, her coworkers urged her to call the police. K.D. balked, so
they called the police for her. Two and a half hours later, a
police officer arrived. The prosecutor asked K.D.:
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"Q. When you spoke to the officer who
responded, did he offer to have Decatur Ambu-
lance Service take you to the hospital?
A. Yeah. He asked me multiple times if
I wanted that.
Q. An[d] did you turn him down each
time?
A. Yes, I did.
Q. Did you go to the hospital?
A. Yes, I did when my mother--
Q. How did you get there?
A. My mother arrived at my job, and she
took me."
An emergency-room physician, James Riley, testified he
treated K.D. on September 6, 2005. He diagnosed bruises on her
face, neck, upper arm, legs, and ankle and a laceration to her
lip. Photographs, admitted into evidence, show the reddish-
purple bruises. Some of the bruises were swollen. X-rays of her
legs revealed no fractures. The doctor found no injury to her
external genitalia. He gave her a shot of pain medication and
outfitted her with crutches. K.D. testified: "[M]y legs were
pretty swollen and bruised. They wanted me to stay off of them
for a while. I couldn't go to work for the rest of the week."
The jury acquitted defendant of counts I through IV
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(aggravated criminal sexual assault) but found him guilty of
counts V and VI (attempt (aggravated criminal sexual assault)),
counts VII and VIII (aggravated domestic battery), and count IX
(domestic battery with a previous domestic-battery conviction).
In the sentencing hearing, the trial court found that
the facts forming the basis of count VII were the same as those
forming the basis of counts V and VI; therefore, the court
vacated the conviction on count VII. The court used the jury's
finding of great bodily harm in its guilty verdict on count VII
to support a finding of "severe bodily injury" on counts V and VI
for purposes of consecutive sentencing. See 730 ILCS 5/5-8-
4(a)(i) (West 2004). The court sentenced defendant to the
following terms of imprisonment: six years for count V, six
years for count VI, three years for count VIII, and one year for
count IX. The court ordered that all of these terms run consecu-
tively. Defendant filed a motion to reconsider the sentence,
which he contended was an abuse of discretion and a misapplica-
tion of section 5-8-4(a)(i) of the Unified Code of Corrections
(730 ILCS 5/5-8-4(a)(i) (West 2004)). The court denied the
motion.
This appeal followed.
II. ANALYSIS
A. The State Proved Defendant Guilty of Two Attempts (Aggravated
Criminal Sexual Assault With the Board), and the Two Convictions
Did Not Violate the One-Act, One-Crime Doctrine
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Defendant argues the evidence only demonstrated one
attempt of aggravated criminal sexual assault with the board. We
disagree.
This case raises two related issues of whether multiple
convictions can be entered, pursuant to the one-act, one-crime
doctrine, and whether, if defendant committed separate acts, the
State presented sufficient evidence to support a conviction for
those separate acts.
To determine whether multiple convictions may properly
be entered, courts must engage in a two-step analysis. First,
the court must determine whether the defendant's conduct con-
sisted of separate acts or a single physical act. People v.
Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305, 306 (1996). An
"act" is "any overt or outward manifestation which will support a
different offense." People v. King, 66 Ill. 2d 551, 566, 363
N.E.2d 838, 844-45 (1977). While multiple convictions based on
the same physical act are improper (Rodriguez, 169 Ill. 2d at
186, 661 N.E.2d at 306), "'[a] person can be guilty of two
offenses [even] when a common act is part of both offenses'
[citation]" (Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 308).
If a defendant committed more than one act, the trial
court must then determine whether any of the offenses are lesser-
included offenses. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at
306. If an offense is a lesser-included offense, multiple
- 11 -
convictions are improper. Rodriguez, 169 Ill. 2d at 186, 661
N.E.2d at 306-07. If the offense is not a lesser-included
offense, then multiple convictions are permissible. Rodriguez,
169 Ill. 2d at 186, 661 N.E.2d at 306-07. Our review on these
issues is de novo. People v. Milton, 309 Ill. App. 3d 863, 868,
723 N.E.2d 798, 802 (1999).
In this case, the State charged defendant with two
counts of attempt (aggravated criminal sexual assault) involving
the board. Section 8-4(a) of the Criminal Code of 1961 defines
the offense of attempt as follows: "A person commits an attempt
when, with intent to commit a specific offense, he does any act
which constitutes a substantial step toward the commission of
that offense." 720 ILCS 5/8-4(a) (West 2004). Thus, the offense
of attempt consists of two elements: (1) an intent to commit a
specific offense, together with (2) an overt act constituting a
substantial step toward the commission of that offense. People
v. Davis, 43 Ill. App. 3d 603, 614, 357 N.E.2d 96, 104-05 (1976).
Because multiple offenses for a series of related acts may be
found where the State apportions the acts in the charging instru-
ment and at trial, it only follows that the same should hold true
for multiple attempts. See People v. Crespo, 203 Ill. 2d 335,
345, 788 N.E.2d 1117, 1123 (2001) (holding that for the State to
properly obtain multiple convictions for connected acts that
might be treated as a series of offenses, the State must appor-
- 12 -
tion the acts to the offenses in the charging instrument). Just
as multiple penetrations can support separate offenses of aggra-
vated criminal sexual assault, multiple attempts to commit
aggravated criminal sexual assault can support multiple convic-
tions for attempt. See, e.g., People v. Olivieri, 334 Ill. App.
3d 311, 318, 778 N.E.2d 714, 719 (2002) (affirming conviction for
three counts of aggravated criminal sexual assault where the
charging instrument, evidence presented at trial, and the State's
opening and closing arguments clearly referenced three separate
sexual acts).
In this case, the State apportioned defendant's acts by
charging him with two counts of attempt (aggravated criminal
sexual assault with the board). Count V of the information
alleged as follows:
"[D]efendant *** commit[ted] the offense
of attempt (aggravated criminal sexual as-
sault), in that ***, with the intent to com-
mit the offense of [a]ggravated [c]riminal
[s]exual [a]ssault, *** [he] performed a
substantial step toward the commission of
that offense, in that ***, while holding a
piece of wood, [he] grabbed [K.D.], held her,
and tried to ram the board into the sex organ
of [K.D.]."
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Count VI alleged as follows:
"[D]efendant *** commit[ted] the offense
of attempt (aggravated criminal sexual as-
sault), in that ***, with the intent to com-
mit the offense of [a]ggravated [c]riminal
[s]exual [a]ssault, *** [he] performed a
substantial step toward the commission of
that offense, in that ***, while holding a
piece of wood, [he] grabbed [K.D.], held her,
and tried to ram the board into the sex organ
of [K.D.], a second time." (Emphasis added.)
The State also treated the acts as separate during
trial. In her closing arguments, the prosecutor described count
V and the evidence supporting that count. The prosecutor refer-
enced defendant using the board to beat K.D., getting her on the
ground, telling her to open her legs, and attempting to ram the
board inside her. The prosecutor stated that count VI referenced
a second attempt to do the same thing. The prosecutor also
stated the "substantial step" toward committing aggravated
criminal sexual assault was defendant's direction to K.D. to open
her legs and the attempt to use the board.
Consistent with the State's theory, the trial court
instructed the jury on two different offenses evidenced by two
different acts. The court instructed the jury via a definitional
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instruction as follows:
"A person commits the offense of attempt
when he, with the intent to commit the of-
fense of aggravated criminal sexual assault,
does any act which constitutes a substantial
step toward the commission of the offense of
aggravated criminal sexual assault.
The offense attempted need not have been
committed." (Emphasis added.)
See Illinois Pattern Jury Instructions, Criminal, No. 6.05 (4th
ed. 2000) (hereinafter IPI Criminal 4th). The court also in-
structed the jury via an issues instruction that the State had to
prove the following:
"First Proposition: That the defendant
performed an act which constituted a substan-
tial step toward the commission of the of-
fense of aggravated criminal sexual assault;
Second Proposition: That the defendant
did so with the intent to commit the offense
of aggravated criminal sexual assault.
If you find from your consideration of
all the evidence that each one of these prop-
ositions has been proved beyond a reasonable
doubt, you should find the defendant guilty.
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If you find from your consideration of
all the evidence that any one of these propo-
sitions has not been proved beyond a reason-
able doubt, you should find the defendant not
guilty." (Emphasis added.)
See IPI Criminal 4th No. 6.07. The verdict forms distinguished
between the two counts by referring to one as "first with piece
of wood" and the other as "second with piece of wood." Clearly,
the State apportioned the acts to the separate offenses. Because
one offense is not a lesser-included offense of the other,
multiple convictions in this case do not violate the one-act,
one-crime doctrine.
Having found, in this case, that a series of related
acts can support separate attempt offenses, we next address
whether the State presented sufficient evidence that defendant
twice attempted to commit aggravated criminal sexual assault on
K.D. by use of the board. Where a defendant challenges the
sufficiency of the evidence, the test 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. People v. Ward, 215 Ill. 2d
317, 322, 830 N.E.2d 556, 559 (2005). It is not the function of
the appellate court to retry the defendant. People v. Slinkard,
362 Ill. App. 3d 855, 857, 841 N.E.2d 1, 3 (2005). This court
- 16 -
must be mindful that it was the jury who saw and heard the
witnesses. People v. Evans, 369 Ill. App. 3d 366, 379, 859
N.E.2d 642, 652 (2006).
In this case, the State presented sufficient evidence
that defendant twice attempted to commit criminal sexual assault.
Intent can rarely be proved by direct evidence because it is a
state of mind. See People v. Williams, 165 Ill. 2d 51, 64, 649
N.E.2d 397, 403 (1995). Instead, intent may be inferred from
surrounding circumstances and thus may be proved by circumstan-
tial evidence. Williams, 165 Ill. 2d at 64, 649 N.E.2d at 403.
In this case, K.D. testified "[h]e's telling me to open
up my legs, and he's obviously trying to hurt me." K.D.'s use of
the present progressive or present continuous voice ("telling")
denotes multiple statements and that defendant told K.D. more
than once to open her legs, as does the use of the term "trying"
denote multiple attempts to get the board inside K.D.'s vagina.
K.D. also testified defendant struck her multiple times both
outside and inside both legs, including her thighs, calves, and
ankles. The multiple directions by defendant for K.D. to open up
her legs and the multiple attempts to open K.D.'s legs so as to
get the board inside K.D.'s vagina constitute sufficient evidence
from which a rational trier of fact could find that defendant
committed two offense of attempt (aggravated criminal sexual
assault). Further, although defendant was not convicted of the
- 17 -
four aggravated criminal sexual assault charges involving the
knife sharpener, that evidence of multiple attempts may be
considered by the jury as evidence of defendant's intent to
attempt to rape K.D. multiple times.
Consequently, the jury's verdict was not so unreason-
able as to raise reasonable doubt as to defendant's guilt on
count VI.
B. Ordering All the Sentences To Run Consecutively
In reliance on section 5-8-4(a)(i) of the Unified Code
of Corrections (730 ILCS 5/5-8-4(a)(i) (West 2004)), the trial
court made the terms of imprisonment consecutive rather than
concurrent. That section provides as follows:
"(a) When multiple sentences of impris-
onment are imposed on a defendant at the same
time, *** the sentences shall run concur-
rently or consecutively as determined by the
court. *** The court shall impose consecu-
tive sentences if:
(i) one of the offenses for
which [the] defendant was convicted
was first degree murder or a Class
X felony or Class 1 felony and the
defendant inflicted severe bodily
injury[.]" 730 ILCS 5/5-8-4(a)(i)
- 18 -
(West 2004).
In People v. Whitney, 188 Ill. 2d 91, 98-99, 720 N.E.2d 225, 229
(1999), the supreme court limited section 5-8-4(a)(i) to those
situations in which "the defendant has been convicted of either a
Class X or Class 1 felony and where he had inflicted severe
bodily injury during the commission of that felony." (Emphasis
added.)
In the sentencing hearing in the present case, the
trial court stated: "As to [c]ounts V and VI, I am going to
refer back to the jury's finding on [c]ount VII, although I
vacated [the conviction on that count;] [in returning a guilty
verdict on count VII,] the jury has found great bodily harm.
So[,] on [c]ount[] V and [c]ount VI, I will find that [s]ection
[5-8-4(a)(i)] does apply." For two reasons, defendant argues the
court erred. First, to qualify for consecutive sentences under
section 5-8-4(a)(i), defendant had to inflict "severe bodily
harm" while committing a triggering offense, i.e., first degree
murder or a Class X or Class 1 felony. See Whitney, 188 Ill. 2d
at 98-99, 720 N.E.2d at 229. Count VII, aggravated domestic
battery, was a Class 2 felony and, therefore, not a triggering
offense. The only triggering offenses of which the jury found
defendant guilty were counts V and VI, charging him with attempt
(aggravated criminal sexual assault), a Class 1 felony.
One would not necessarily have to understand the trial
- 19 -
court as saying that count VII was a triggering offense. Alter-
natively, even if one did understand the court as so saying, that
error would not be essential to the court's rationale. Essen-
tially, the court reasoned as follows. To find defendant guilty
of count VII, the jury had to find that he inflicted "great
bodily harm" upon K.D. by striking her in the legs with the
board. The question before the court, in the sentencing hearing,
was whether defendant inflicted "severe bodily injury" upon K.D.
while committing counts V and VI, i.e., while attempting to
commit aggravated criminal sexual assault with the board. The
difference between "great bodily harm" and "severe bodily injury"
is merely semantic; no meaningful distinction can be made between
"great" and "severe" or between "harm" and "injury." For pur-
poses of section 5-8-4(a)(i), the court decided to defer to the
jury's finding that the bruises defendant inflicted upon K.D.'s
legs, ankle, and upper arm by hitting her with the two- by four-
inch board were, collectively, a "great bodily harm" or a "severe
bodily injury." This logic makes sense to us.
According to defendant, the second reason why the trial
court erred is that he did not, in fact, inflict severe bodily
injury upon K.D. when committing the acts alleged in counts V and
VI. As defendant understands K.D.'s testimony, he first hit her
multiple times with the board and then ordered her to open her
legs. Thus, defendant argues, "the acts that constituted [c]ount
- 20 -
VII [(the beating with the board)] were completed before [he]
undertook the actions that constituted [c]ount V [(grabbing K.D.
and trying to ram the board into her vagina)]." The chronology
is not so clear to us from our reading of K.D.'s testimony. She
testified: "I'm laying [sic] on the ground. He's telling me to
open up my legs, and he's obviously trying to hurt me." She
could have meant he was still trying to hurt her by striking her
with the board. Moreover, even if defendant desisted from
hitting her with the board before telling her to open her legs,
hitting her with the board was one of the substantial steps he
took in attempting to commit aggravated criminal sexual assault
with the board. A photograph shows a livid, straight-edged
bruise on the inside of her calf; one could infer he was trying
to beat her legs apart so as to expose her vagina. Counts V and
VI do not allege that hitting her with the board was one of the
substantial steps he took, but, as we held in People v. Mullinax,
"the allegations of the information, with respect to the precise
manner in which the defendant took a substantial step toward[]
the commission of the crime, [are] surplusage" (emphasis omitted)
(People v. Mullinax, 67 Ill. App. 3d 936, 941, 384 N.E.2d 1372,
1376 (1979)).
Defendant also argues that K.D.'s injuries were not
serious enough to qualify as "severe bodily injury" within the
meaning of section 5-8-4(a)(i). He quotes People v. Williams,
- 21 -
335 Ill. App. 3d 596, 600-01, 781 N.E.2d 574, 577-78 (2002), in
which the First District compiled cases to illustrate the differ-
ence between bodily injury and severe bodily injury for purposes
of section 5-8-4(a)(i):
"Cases finding the existence of severe
bodily injury include: People v. Johnson,
149 Ill. 2d 118, 594 N.E.2d 253 (1992) (vic-
tim shot in the shoulder, in the hospital the
next day); People v. Kelley, 331 Ill. App. 3d
253, 770 N.E.2d 1130 (2002) (victim shot
twice in the right arm, hospitalized for
three days); People v. Austin, 328 Ill. App.
3d 798, 767 N.E.2d 433 (2002) (victim shot in
the back and grazed on the side of the head
near his left ear, injuries that required
overnight hospitalization); People v. Amaya,
321 Ill. App. 3d 923, 748 N.E.2d 1251 (2001)
(one victim shot in the stomach, the other in
the back; both required surgery and a lengthy
hospital stay, the bullet remaining in one
victim at the time of trial); People v.
Primm, 319 Ill. App. 3d 411, 745 N.E.2d 13
(2000) (victim shot in the back of his left
thigh, taken to the hospital); People v.
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Strader, 278 Ill. App. 3d 876, 663 N.E.2d 511
(1996) (victim struck by three bullets from
defendant's rifle, one of them removed surgi-
cally); People v. Townes, 94 Ill. App. 3d
850, 855, 419 N.E.2d 604[, 607] (1981) (vic-
tim's face was '"beaten up,"' eye almost
swollen closed, X rays ordered by doctors to
investigate possible bone damage).
Cases finding a failure to prove severe
bodily injury include: People v. Jones, 323
Ill. App. 3d 451, 752 N.E.2d 511 (2001) (bul-
let grazed victim's right cheek bone, receiv-
ing a band-aid from a doctor but no other
medical attention); People v. Rice, 321 Ill.
App. 3d 475, 747 N.E.2d 1035 (2001) (one
bullet struck victim in the hand, another in
the hip, taken to hospital where he remained
for two days); People v. Murray, 312 Ill.
App. 3d 685, 728 N.E.2d 512 (2000) (victim
suffered gunshot wound to the right foot with
an open fracture to the big toe, treated and
released within [2 1/2] hours after the
shooting); People v. Durham, 312 Ill. App. 3d
413, 419, 727 N.E.2d 623[,627] (2000) (vic-
- 23 -
tim's gunshot wound described as a mark,
'"like a small nick or cut"'); People v.
Ruiz, 312 Ill. App. 3d 49, 726 N.E.2d 704
(2000) (victim police officer suffered gun-
shot wound to knee, wound barely visible,
went to a meeting before seeking medical
treatment); In re T.G., 285 Ill. App. 3d
838, 674 N.E.2d 919 (1996) (not enough for
'great bodily harm' under the aggravated
battery statute where victim suffered three
stab wounds to the chest, felt only the first
stab, had three bloody wounds)." Williams,
335 Ill. App. 3d at 600-01, 781 N.E.2d at
577-78.
The problem with this comparative approach is that our
standard of review is deferential. See Townes, 94 Ill. App. 3d
at 855, 419 N.E.2d at 607 ("find[ing] no reason to disturb the
trial court's discretion" regarding the issue of whether severe
bruising of the face and neck, inflicted during the commission of
a Class X felony, was a severe bodily injury for purposes of
section 5-8-4(a) (Ill. Rev. Stat. 1979, ch. 38, par.
1005-8-4(a)). Just because the appellate court found no abuse of
discretion in the finding that a particular injury was not
severe, it does not follow that the opposite finding would have
- 24 -
been an abuse of discretion either. Both findings could have
been rationally defensible. The injuries to K.D.'s legs were not
trivial. From the looks of them in the photographs, they were
extremely painful. The doctor saw the need to take X-rays. He
also gave her crutches and told her to stay off her feet for the
rest of the week (four days). We will defer to the trial court's
finding that the bruising of K.D.'s legs, ankle, and upper arm
was a "severe bodily injury" within the meaning of section 5-8-
4(a)(i). The sentence on counts V and VI shall be consecutive,
as the court ordered.
The State concedes that the terms of imprisonment on
counts VIII and IX should be concurrent. We agree with that
concession. We are aware of no statutory authority for making
those terms consecutive. In People v. Curry, 178 Ill. 2d 509,
539, 687 N.E.2d 877, 892 (1997), the supreme court held:
"[S]ection 5-8-4(a) must be construed so that
any consecutive sentences imposed for trig-
gering offenses be served prior to, and inde-
pendent of, any sentences imposed for
nontriggering offenses. Sentences for multi-
ple nontriggering offenses may be served
concurrently to one another after any consec-
utive sentences for triggering offenses have
been discharged."
- 25 -
Accordingly, defendant shall serve his six-year term of imprison-
ment on count V first, then his six-year term of imprisonment on
count VI, and then he shall serve his two concurrent terms on
counts VIII and IX.
III. CONCLUSION
For the foregoing reasons, we remand this case with
directions to amend the sentencing order so as to provide that
defendant shall serve his consecutive term of imprisonment on
count V first, his consecutive term of imprisonment on count VI
second, and thereafter serve his concurrent terms of imprison-
ment on counts VIII and IX. Otherwise, we affirm the trial
court's judgment as modified and remand with directions. Because
the State has in part successfully defended a portion of the
criminal judgment, we grant the State its statutory assessment of
$50 against defendant as costs of this appeal. See People v.
Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985),
citing People v. Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194,
199 (1978).
Affirmed as modified; cause remanded with directions.
STEIGMANN, J., concurs.
APPLETON, P.J., specially concurring in part and
dissenting in part.
- 26 -
PRESIDING JUSTICE APPLETON, specially concurring in
part and dissenting in part:
I agree with the majority that the sentences on counts
VIII and IX should run concurrently. I respectfully dissent,
however, from the majority's conclusion that the State proved
count VI, a second offense of attempt (aggravated criminal sexual
assault).
Defendant does not invoke the one-act, one-crime
doctrine in his brief. He does not argue that the State "carved
[more than one offense] from the same physical act." King, 66
Ill. 2d at 566, 363 N.E.2d at 844. Nor does he argue that "with
regard to multiple acts," he was "convicted of more than one
offense, some of which [were], by definition, lesser[-]included
offenses." King, 66 Ill. 2d at 566, 363 N.E.2d at 844. He
merely argues the State failed to prove him guilty of a second
offense of attempt (as opposed to only one offense of attempt).
The majority says: "Just as multiple penetrations can
support separate offenses of aggravated criminal sexual assault,
multiple attempts to commit aggravated criminal sexual assault
can support multiple convictions for attempt." Slip op. at 12.
I agree that multiple attempts can support multiple convictions
for attempt. But that truism begs the question of whether by
striking K.D. repeatedly with the board and commanding her to
spread her legs, defendant did indeed commit more than one
- 27 -
offense of attempt, as that crime is defined in section 8-4(a) of
the Criminal Code [Code] (720 ILCS 5/8-4(a) (West 2004)).
Attempt consists of two elements: (1) an intent to
commit a specific offense, together with (2) an overt act consti-
tuting a substantial step toward the commission of the offense.
720 ILCS 5/8-4(a) (West 2004); Davis, 43 Ill. App. 3d at 614, 357
N.E.2d at 104-05. The majority reasons: "The multiple direc-
tions by defendant for K.D. to open up her legs and the multiple
attempts to open K.D.'s legs so as to get the board inside K.D.'s
vagina constitute sufficient evidence from which a rational trier
of fact could find that defendant committed two offenses of
attempt (aggravated criminal sexual assault)." Slip op. at 15.
The way the majority loosely uses the word "attempt" invites
confusion. At times, the majority uses the word to signify the
offense of attempt, and at other times, it seems to use the word
in its ordinary linguistic sense, to signify an act defendant
took in his endeavor to commit aggravated criminal sexual as-
sault. With the meaning of the term oscillating back and forth
in this manner, the offense of attempt blurs into one of its
elements, an overt act. I disagree with making the offense
coextensive with one its elements, such that every overt act
equals a separate attempt. For instance, in the sentence quoted
in this paragraph, I disagree with the equation of defendant's
"multiple directions" to K.D. with "multiple attempts" (under-
- 28 -
standing "attempt" as a statutorily defined offense).
Clearly, when defendant hit K.D. in the thighs, calves,
and ankles with the board and commanded her to spread her legs,
he did so with the intent of committing aggravated criminal
sexual assault--or a trier of fact would be abundantly justified
in so inferring. Thus, the element of intent was proved.
Defendant continued to have that same intent while committing a
series of overt acts (the second element): striking her again
and again with the board and demanding that she expose her
privates, evidently for penetration by the board. All of these
acts were motivated by one intent. Surely, no one could plausi-
bly suggest that in the brief intervals between blows, defendant
ceased having the intent to commit aggravated criminal sexual
assault and then quickly formed the intent again in time to
deliver the next blow. He maintained that intent all along while
wielding the board.
Here, then, is the question: If a defendant performs
one substantial step and, a moment later, another substantial
step, all the while having the same criminal intent, is each
substantial step a separate offense of attempt? To this ques-
tion, the majority really does not give an answer supported by
relevant authorities; it merely answers "yes." As far as I can
determine, no other court in Illinois has so interpreted the
attempt statute (720 ILCS 5/8-4 (West 2004)) during the 45 years
- 29 -
it has been in existence. Rather, Illinois courts have repeat-
edly held that a single offense of attempt can encompass multiple
acts. People v. Woods, 24 Ill. 2d 154, 158, 180 N.E.2d 475, 478
(1962) ("an attempt does exist where a person, with intent to
commit a specific offense, performs acts which constitute sub-
stantial steps toward the commission of that offense" (emphasis
added)); People v. Paluch, 78 Ill. App. 2d 356, 359, 222 N.E.2d
508, 510 (1966) ("The crux of the determination of whether the
acts are sufficient to constitute an attempt really is whether,
when given the specific intent to commit an offense, the acts
taken in furtherance thereof are such that there is a dangerous
proximity to success in carrying out the intent" (emphases
added)); People v. Stevenson, 198 Ill. App. 3d 376, 383, 555
N.E.2d 1074, 1078 (1990) ("Attempt requires an intent to commit a
specific offense and an act or acts constituting a substantial
step toward the commission of the offense" (emphasis added)).
To my knowledge, only one case has held that each
substantial step is a separate offense of attempt. That case
comes from Massachusetts--and, ironically, even it undercuts the
majority's position. In Commonwealth v. Dykens, No. 2005-393
(001-017), slip op. at ___ (September 7, 2005), 19 Mass. L. Rep.
730 (Mass. Super. Ct. 2005) (2005 WL 2220033 (Mass. Super.), *1;
2005 Mass. Super. LEXIS 413, *1) (hereinafter Dykens), a grand
jury indicted Kenneth Dykens on three charges of attempted
- 30 -
breaking and entering. According to the testimony in the grand-
jury hearing, on February 10, 2005, at 2:30 a.m., Dykens tried to
break into John and Jacqui Cram's house by (1) removing the
screen from a window, (2) propping a ladder against the house,
and (3) throwing a rock through a sliding glass door. Dykens,
slip op. at ___ (2005 WL 2220033 (Mass. Super.), *1; 2005 Mass.
Super. LEXIS 413, *3). For each of those three substantial
steps, the grand jury indicted Dykens for a separate offense of
attempt. Dykens, slip op. at ___ (2005 WL 2220033 (Mass.
Super.), *1; 2005 Mass. Super. LEXIS 413, *3). Dykens moved to
dismiss two of the three counts, along with the "corresponding
habitual[-]offender charges," arguing that the three acts
"constitute[d] only one continuing attempt to break [in]to the
Cram[s'] house." Dykens, slip op. at ___ (2005 WL 2220033 (Mass.
Super.), *1; 2005 Mass. Super. LEXIS 413, *3). The superior
court denied his motion, reasoning as follows:
"'Where a single statute is involved and
the issue is whether two or more discrete
offenses were proved under that statute
rather than a single continuing offense, the
question becomes whether the [l]egislature
intended to authorize more than one convic-
tion.' Commonwealth v. Decicco, 44 Mass.
App. Ct. 111, 112[, 688 N.E.2d 1010] (1998)
- 31 -
(internal citations omitted); Commonwealth v.
Levia, 385 Mass. 345, 347-51[, 431 N.E.2d
928] (1982). 'Ambiguity concerning the ambit
of criminal statutes should be resolved in
favor of lenity.' Commonwealth v. Donovan,
395 Mass. 20, 29[, 478 N.E.2d 727] (1985).
In this case, [section 6 of chapter 274
of the] General Laws *** is clear. It pro-
hibits the 'attempt to commit a crime by
doing any act toward its commission that
fails in its perpetration[.]' [Mass. Gen.
Laws ch. 274, §6.] If the legislature in-
tended for a single attempt charge to cover
all overt acts directed toward the commission
of a single crime, it would have used the
words 'any act or acts,' rather than 'any
act.' 'It is a fundamental principle of
statutory construction that "statutory lan-
guage should be given effect consistent with
its plain meaning and in light of the aim of
the [l]egislature unless to do so would
achieve an illogical result."' Commonwealth
v. Hatch, 438 Mass. 618, 632[, 783 N.E.2d
393] (2003), citing Sullivan v. Brookline,
- 32 -
435 Mass. 353, 360[, 758 N.E.2d 110] (2001).
Consequently, Indictments 003, 004, 005, and
006 must stand." Dykens, slip op. at ___
(2005 WL 2220033 (Mass. Super.), *2; 2005
Mass. Super. LEXIS 413, *3-4).
Like the Massachusetts statute, our attempt statute
uses the term "any act": "[a] person commits an attempt when,
with intent to commit a specific offense, he does any act which
constitutes a substantial step toward the commission of that
offense." (Emphasis added.) 720 ILCS 5/8-4(a) (West 2004).
Illinois, however, also has a Statute on Statutes (5 ILCS 70/0.01
through 83 (West 2004)), section 1 of which provides: "In the
construction of statutes, this Act shall be observed, unless such
construction would be inconsistent with the manifest intent of
the General Assembly or repugnant to the context of the statute."
5 ILCS 70/1 (West 2004). Section 1.03 provides: "Words import-
ing the singular number may extend and be applied to several
persons or things, and words importing the plural number may
include the singular." 5 ILCS 70/1.03 (West 2004). By operation
of sections 1 and 1.03 of the Statute on Statutes, "any act," in
the Illinois attempt statute (720 ILCS 5/8-4(a) (West 2004)),
means--to quote the Massachusetts court--"'any act or acts.'"
From this alternatively singular or plural meaning, we should
infer that "the legislature intended for a single attempt charge
- 33 -
to cover all overt acts directed toward the commission of a
single crime" (Dykens, slip op. at ___ (2005 WL 2220033 (Mass.
Super.), *2; 2005 Mass. Super. LEXIS 413, *4). At the very
least, the construction of "any act" as "any act or acts" creates
an ambiguity in the attempt statute, which we should resolve in
favor of lenity. See People v. Davis, 199 Ill. 2d 130, 140, 766
N.E.2d 641, 647 (2002); Dykens, slip op. at ___ (2005 WL 2220033
(Mass. Super.), *2; 2005 Mass. Super. LEXIS 413, *4).
Two other two cases tend to deepen my reservations
about the new-attempt-for-each-overt-act theory. In Missouri v.
Cox, 752 S.W.2d 855, 857 (Mo. App. 1988), the "defendant 'repre-
sented' Mary Blair in proceedings to obtain social security
benefits." In the form appointing him as her representative, he
waived his right to a fee. Cox, 752 S.W.2d at 857. After she
won her social security claim, he threatened to have her benefits
terminated unless she compensated him for his services as her
representative. Cox, 752 S.W.2d at 857. He made this threat to
her on several different occasions, for which a jury convicted
him of multiple counts of attempt to steal $150 or more by
coercion (Mo. Rev. Stat. §564.011 (1986)). He challenged five of
these convictions on the ground of double jeopardy, arguing that
"his five threats constituted a single act of attempted stealing
and the individual threats were, at best, corroborative of his
single intent to commit the crime of stealing. To [the] defen-
- 34 -
dant, the intent and act were simply a continuing intent and
continuing act." Cox, 752 S.W.2d at 859. The Court of Appeals
of Missouri rejected his double-jeopardy challenge. The court
reasoned as follows:
"By this argument, [the] defendant would
lead us into the quagmire of metaphysics.
Did [the] defendant have one continuing in-
tent, verbally manifested on separate days[,]
or did he form a new intent manifested by
each threat on each day[?] To avoid meta-
physics, we resolve this kind of issue by
determining whether there is an identifiable
physical termination of the crime charged.
[Citations.] We look to the time and place
of commission of the conduct in question.
Here [the] defendant's utterances took place
on five different occasions. Each occasion
was separated by at least one day. This
physical separation as a matter of common
sense implies a newly formed intent to commit
the crime and a new step toward its commis-
sion rather than a single continuous intent
and act. The word 'attempt' means to try.
Here, on separate days, [the] defendant sim-
- 35 -
ply followed the old adage: 'If, at first,
you don't succeed, try, try again.'" Cox,
752 S.W.2d at 859.
In the present case, by contrast, defendant committed the "sub-
stantial steps" (hitting K.D. with a board and commanding her to
spread her legs) at the same time, in the same place, and in the
same course of conduct. There was no "identifiable physical
termination" forming an interlude or dividing gap between sepa-
rate offenses of attempt.
In United States v. Resendiz-Ponce, 549 U.S. ____,
____, 166 L. Ed. 2d 591, 595, 127 S. Ct. 782, 785 (2007), a jury
convicted Juan Resendiz-Ponce, a Mexican citizen, of illegally
attempting to reenter the United States (8 U.S.C. §1326(a)
(2000)). Because the indictment failed to allege "'any specific
overt act that [was] a substantial step' toward the completion of
the unlawful reentry," the Court of Appeals set aside the indict-
ment as fatally flawed. Resendiz-Ponce, 549 U.S. at ____, 166 L.
Ed. 2d at 596, 127 S. Ct. at 786, quoting United States v.
Resendiz-Ponce, 425 F.3d 729, 733 (9th Cir. 2005), rev'd, 549
U.S. ____, 166 L. Ed. 2d 591, 127 S. Ct. 782 (2007). The Supreme
Court reversed the court of appeals. According to the Supreme
Court, by alleging simply that Resendiz-Ponce attempted to
reenter the United States, the indictment implicitly alleged the
necessary overt act, for "attempt" implied an act, not merely
- 36 -
intent. Resendiz-Ponce, 549 U.S. at ____, 166 L. Ed. 2d at 597,
127 S. Ct. at 787.
Resendiz-Ponce maintained that the indictment would
have been sufficient only if it had alleged any of three overt
acts he performed when attempting to reenter the United States:
that he walked into an inspection area, that he presented a
misleading identification card, or that he lied to the inspector.
Resendiz-Ponce, 549 U.S. at ____, 166 L. Ed. 2d at 598, 127 S.
Ct. at 788. The Supreme Court responded:
"Individually and cumulatively, those acts
tend to prove the charged attempt--but none
was essential to the finding of guilt in this
case. All three acts were rather part of a
single course of conduct culminating in the
charged 'attempt.' As Justice Holmes ex-
plained in Swift & Co. v. United States, 196
U.S. 375, 396, [49 L. Ed. 518, 25 S. Ct. 276]
(1905), '[t]he unity of the plan embraces all
the parts.'" Resendiz-Ponce, 549 U.S. at
____, 166 L. Ed. 2d at 598-99, 127 S. Ct. at
788.
Then, in a footnote, the Supreme Court added:
"Likewise, it would be unrealistic to
suggest that [the] respondent actually com-
- 37 -
mitted three separate attempt offenses in-
volving three different overt acts. Indeed,
if each overt act were treated as a separate
element, an attempt involving multiple overt
acts might conceivably qualify for several
separate offenses, thus perversely enhancing,
rather than avoiding, the risk of successive
prosecution for the same wrong." Resendiz-
Ponce, 549 U.S. at ____ n.5, 166 L. Ed. 2d at
599 n.5, 127 S. Ct. at 788 n.5.
In the present case, it would be unrealistic to suggest
that defendant committed a separate offense of attempt every time
he commanded K.D. to spread her legs and every time he hit her
with the board. If the State had charged him with aggravated
assault in counts V and VI, each blow of the board would be a
separate offense. Instead, the State charged him with attempt in
those counts--an inchoate offense, a very different offense from
assault. The policy behind the offense of attempt is to punish
the dangerous proximity to the substantive offense (Paluch, 78
Ill. App. 2d at 359, 222 N.E.2d at 510), not, specifically, the
substantial steps (which, absent the criminal intent, could be
innocuous in themselves). Once the defendant takes a substantial
step, he has crossed the threshold of dangerous proximity and
becomes criminally liable. Treating a subsequent substantial
- 38 -
step as a new attempt would be tantamount to prosecuting him
again for coming within dangerous proximity to commission of the
same substantive offense (to which he already was in dangerous
proximity, with resulting criminal liability). Subdividing an
attempt into numerous miniattempts, one for each overt act,
perversely enhances the risk of successive prosecution for the
same wrong. Depending on the number of overt acts, a defendant
could end up being punished more severely for attempting to
commit a substantive offense than if he had actually committed
the substantive offense. It is doubtful the legislature intended
such an absurdity. I would reverse the conviction on count VI on
the ground of insufficiency of evidence.
- 39 -