Appeal from the Circuit Court of Kane County; the Hon. John A.
Krause, Judge, presiding.
JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:
On May 1, 1984, the defendant, Richard Kittle, was named in a four-count indictment charging him with the offenses of unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3), kidnaping by use or threat of use of force (Ill. Rev. Stat. 1983, ch. 38, par. 10-1(a)(2)), kidnaping by deceit or enticement (Ill. Rev. Stat. 1983, ch. 38, par. 10-1(a)(3)), and intimidation (Ill. Rev. Stat. 1983, ch. 38, par. 12-6). After a jury trial on May 8 and 9, 1984, in the circuit court of Kane County, he was found guilty of unlawful restraint, kidnaping by deceit or enticement and intimidation. He was found not guilty of kidnaping by use or threat of use of force. He was sentenced concurrently to three, five, and three years' imprisonment.
The defendant raises three issues on appeal: (1) that the defendant's conduct in giving the victim directions and grabbing her when she attempted to exit the vehicle did not constitute kidnaping, and the court erred in not directing a verdict in his favor on that charge; (2) that unlawful restraint is a lesser included offense of kidnaping, and in light of the fact that defendant's conduct was a single transaction, the conviction for that charge should have been vacated; and (3) that the State failed to prove the element of specific intent in intimidation beyond a reasonable doubt. We affirm the kidnaping by deceit or enticement and intimidation convictions, and vacate the conviction for unlawful restraint.
At or about 8:30 a.m. on February 24, 1984, the complaining witness stopped at a restaurant to get a cup of coffee. Upon departing her car, the defendant, a stranger who was walking by, greeted her and she returned the greeting. She entered the restaurant and purchased a cup of coffee to go. Upon reentering her car she saw defendant Kittle in the front passenger seat, leaning over tying his shoe. The complaining witness, though not nervous nor scared, thought this conduct was strange and asked Kittle if he wanted a ride. He indicated he did. Defendant asked if she was going "up" Route 56, however, she said no she was going on Route 25 but would drop him off on her way to the east side of Aurora. Upon leaving the restaurant the complainant drove east on Route 56 into North Aurora. She turned south on route 25 until defendant asked her to go east on Mettle Road and then right on Mitchell Street. He then asked her to drive down a little lane and to turn into the first driveway. However, instead of getting out of the car he asked her to turn around again. At this point, the complaining witness testified she began to get worried. She turned the car around and drove about a block when defendant reached over and pulled on the steering wheel causing the car to go off the road. The complainant dropped the cup of coffee she was holding and attempted to leave the car, whereupon the defendant grabbed her around the neck and the waist. The complaining witness screamed and honked her horn, and defendant told her to be quiet or he would hurt her and kill her. In an effort to "calm him down" she told the defendant, "Let's go back to my house and [sic] can have some privacy." The defendant said nothing. He released her and returned to the passenger's seat. She resumed driving and the defendant said, "You're going to get me in trouble." The complaining witness continued down the lane and turned back on Mitchell Street and then turned into a subdivision. In the subdivision she pulled the car into a driveway, jumped out of the car and ran to the door of a house and commenced banging on it. The defendant got out of the car and ran down the street.
A man answered the door and the complaining witness told him that the defendant had attempted to rape her. Shortly thereafter, the police apprehended the defendant at the Aurora toll plaza on the East-West tollway.
• 1 The defendant first contends that his conduct in the present case did not rise to the level required to constitute kidnaping. Section 10-1(a)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 10-1(a)(3)) states:
"(a) Kidnaping occurs when a person knowingly;
(3) By deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will."
The defendant relies on People v. Smith (1980), 91 Ill. App.3d 523, 414 N.E.2d 1117, to establish that the conduct involved herein did not rise to the level required to constitute kidnaping. The Smith court considered four factors when it reversed defendant's conviction for aggravated kidnaping and reinstated the conviction for unlawful restraint and robbery. Those factors were: (1) duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense. People v. Smith (1980), 91 Ill. App.3d 523, 529, 414 N.E.2d 1117, citing Government of the Virgin Islands v. Berry (3d Cir. 1979), 604 F.2d 221.
People v. Smith (1980), 91 Ill. App.3d 523, 414 N.E.2d 1117, differs from the present case in that the detention and asportation were incidental to the commission of a separate felony. The Smith court found that the gist of the case was robbery, and it applied the four factors listed above and concluded that the aggravated kidnaping conviction should be reversed and the charge of unlawful restraint would be an acceptable alternative. 91 Ill. App.3d 523, 529, 414 N.E.2d 1117.
The Illinois Supreme Court in People v. Canale (1972), 52 Ill.2d 107, 285 N.E.2d 133, saw the rationale behind the Levy-Lombardi rule (People v. Levy (1965), 15 N.Y.2d 159, 256 N.Y.S.2d 793, 204 N.E.2d 842; People v. Lombardi (1967), 20 N.Y.2d 266, 282 N.Y.S. 519, 229 N.E.2d 206), upon which the Smith court relied, as being the prevention of elevation of lesser crimes into the more serious crime of kidnaping. (People v. Canale (1972), 52 Ill.2d 107, 118, 285 N.E.2d 133.) We believe it would be erroneous to apply the same four factors of Smith to the present case. It would be misapplication of the Smith rationale, since no other separate felony was committed, and it is not known whether any other crime was contemplated. It should be noted that three of the four Smith factors involve reference to a separate offense. We, therefore, conclude the defendant's argument that Smith limited its analysis to the question of what constituted simple kidnaping to be without merit. Also, the fact that the defendant might view kidnaping (Class 2 felony) as an enhancement of unlawful restraint (Class 4 felony) would not justify the application of the Smith factors. The court in Government of the Virgin Islands v. Berry (3d Cir. 1979), 604 F.2d 221, also relied upon by Smith, stated that the inherent inequity that it was attempting to correct was that which occurred when prosecutions for kidnaping were allowed of those who in reality committed lesser or different offenses, of which the temporary seizure or detention played an incidental part. Under this theory, the duration of the detention or asportation would be relevant. This is not what occurred in the present case, however.
• 2 To support a finding of guilt for kidnaping under section 10-1(a)(3) (Ill. Rev. Stat. 1983, ch. 38, par. 10-1(a)(3)), it must first be proved that by deceit or enticement one has induced another to go from one place to another. In the present case, the complainant testified that she was deceived into believing that the defendant needed a ride and that this was the reason she transported him according to his direction. Secondly, the defendant must have intended to secretly confine the complainant against her will. The evidence that the defendant physically prevented the complaining witness from exiting her car when she attempted to do so and allowed her to continue driving under the belief that she was taking him to a place where they could be alone would support a finding that defendant intended to secretly confine the complainant against her will. The courts have held that one can be secretly confined in an automobile within the meaning of the statute whether the automobile is moving or parked. People v. Bishop (1953), 1 Ill.2d 60, 114 N.E.2d 566; People v. Hamil (1974), 20 Ill. App.3d 901, 314 N.E.2d 251.
Defendant next contends if we affirm the kidnaping conviction we should vacate his conviction for unlawful restraint because it is a lesser included offense of kidnaping or part of the same act. The State contends that the kidnaping and unlawful restraint were separate acts, the kidnaping occurring by deceit and the unlawful restraint occurring by force, and, further, that unlawful restraint is not a lesser included offense of kidnaping by deceit or enticement. It is the State's position that the crime of kidnaping by deceit ended when the deceit ended, namely, when defendant grabbed the steering wheel, and that the act of grabbing and holding complainant to prevent her exit from the car was totally separate and apart from the kidnaping.
• 3 A person commits the offense of unlawful restraint when he knowingly, without legal authority, restrains another. (Ill. Rev. Stat. 1983, ch. 38, par. 10-3(a).) The gist of unlawful restraint is the detention of a person by some conduct which prevents him from moving from one place to another. (People v. Kuykendall (1982), 108 Ill. App.3d 708, 439 N.E.2d 521; People v. Satterthwaite (1979), 72 Ill. App.3d 483, 391 N.E.2d 162.) Physical force is not a necessary element of unlawful restraint. (People v. Warner (1981), 98 Ill. App.3d 433, 436, 424 N.E.2d 747.) The State argues that the intent to detain was separate and apart from the intent to secretly confine and was supported by different acts of the defendant. The Committee Comments to section 10-3(a) treat the offense of unlawful restraint as being synonymous with confinement or detention without lawful authority. (Ill. Ann. Stat., ch. 38, par. 10-3, Committee Comments, at 586-87 (Smith-Hurd 1979).) It has been held that there appears to be no basis upon which to distinguish between the word "detain" in the unlawful restraint statute and the word "confine" in the kidnaping statute. (People v. Tate (1981), 94 Ill. App.3d 192, 418 N.E.2d 1048.) The State attempts to distinguish the two offenses on the basis of separate acts, each with a different intent. ...