Appeal from the Circuit Court of Will County; the Hon. Angelo
F. Pistilli, Judge, presiding.
JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:
Defendant, Steve Ellis, was charged, tried, and convicted on two counts of aggravated battery arising out of a single occurrence. Following conviction, he was sentenced to two concurrent 10-year extended terms of imprisonment. These sentences were also to run concurrently with another 10 year sentence for aggravated battery. Not a nice person, the defendant's past conviction record includes aggravated battery, theft, intimidation, armed robbery, and criminal trespass to a vehicle.
The two-count information charged two separate offenses of aggravated battery in connection with a beating administered by the defendant to the victim, Delia Mejia, on September 23, 1984. The gist of count I was that the defendant knowingly caused great bodily harm to the victim. The gist of count II was that the beating occurred in a public place of accommodation. Ill. Rev. Stat. 1983, ch. 38, pars. 12-4(a), 12-4(b)(8).
The simple facts are as follows: The victim, Delia Mejia, and her husband were shopping for groceries in the Jewel food store in Joliet on September 23, 1984. While her husband was in the produce section, Mrs. Mejia was in the cereal section. The defendant, a black man, passed by and asked her how she was doing. She said, "Fine." He then stopped behind her and, for no known reason, punched her in the back of the head and neck. She turned around to face him and he struck her in the nose with his fist, breaking her nose.
• 1 The defendant asserts that one of his convictions must be vacated since both were based on a single act. The State responds that both convictions should be affirmed since each was caused by a separate physical act and since each offense requires proof of an element that the other does not. The State claims, on appeal, that the defendant's first act of aggravated battery was that of initially striking the victim on the back of the head and neck in a public place of accommodation (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(b)(8)). The second act of aggravated battery, it is claimed, occurred after the victim turned around and the defendant caused her great bodily harm by striking her in the face and breaking her nose (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(a)).
The issue before us, then, is whether the defendant's beating of Mrs. Mejia can, like her nose, be broken into separate parts so as to sustain two separate convictions for aggravated battery. We think not.
The seminal case involving multiple convictions carved from a single physical act is People v. King (1977), 66 Ill.2d 551. In an oft quoted passage, the court stated:
"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. `Act,' when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." (People v. King (1977), 66 Ill.2d 551, 566, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273.)
Prior to the decision in King, the courts had used the "independent motivation" test with respect to multiple convictions and concurrent sentences.
For example, in People v. Stewart (1970), 45 Ill.2d 310, the court held the defendant's series of acts were part of the same transaction and were not independently motivated. There, the defendant had been convicted of attempted robbery and aggravated battery resulting from the acts of inflicting serious bodily harm while simultaneously demanding money. The court reversed the conviction for the lesser offense of aggravated battery after finding nothing in the record to suggest "the acts which constituted the offense of aggravated battery were independently motivated or otherwise separable from the conduct which constituted the offense of attempted robbery." (45 Ill.2d 310, 313.) Thus, prior to King the court's attention was focused on the criminal's objective at the time the acts were committed. King, in rejecting this approach, shifted its focus back to the defendant's conduct and away from the motive or purpose behind the act. This effectively broadened the circumstances under which concurrent sentences could be imposed for multiple convictions.
A fair number of Illinois cases have dealt with the question of whether each separate stab wound, shot, etc., constitutes a separate offense. Some recent cases which tend to support the proposition that multiple blows constitute multiple offenses are: People v. Donaldson (1982), 91 Ill.2d 164; People v. Dixon (1982), 91 Ill.2d 346; People v. Jones (1984), 128 Ill. App.3d 842; People v. Horne (1984), 129 Ill. App.3d 1066; and People v. Nelson (1985), 130 Ill. App.3d 304. Other cases tending to go in the other direction are: People v. Mitchell (1981), 98 Ill. App.3d 398; People v. Baity (1984), 125 Ill. App.3d 50; and People v. Hope (1986), 142 Ill. App.3d 171. Our review of the former line of cases indicates that the two supreme court cases, Donaldson and Dixon, either do not clearly stand for the proposition stated or are distinguishable from the case at bar.
The case of People v. Donaldson (1982), 91 Ill.2d 164, contrary to the assertions of the State, does not necessarily stand for the proposition that multiple gunshot wounds can serve as the basis for separate offenses for each wound. For, in Donaldson, the parties stipulated that the three shots which struck the victim constituted three separate acts and that each "act" could be the basis for conviction of a separate and distinct offense. (91 Ill.2d 164, 167.) Thus, in Donaldson, our supreme court was not faced squarely with this issue as a contested matter.
In the case of People v. Dixon (1982), 91 Ill.2d 346, the court held that separate blows even though closely related, were not one physical act and could support convictions and concurrent sentences for both aggravated battery and mob action. (91 Ill.2d 346, 356.) Dixon seems to support the State's argument that defendant's dual aggravated battery convictions are sustainable in the instant case. However, we are not so persuaded. One factor which supports our conclusion is that the State made no attempt to differentiate between conduct supporting the first aggravated battery charge from that supporting the second charge.
• 2 Count I of the information charged the defendant with committing aggravated battery for causing great bodily harm by punching the victim "about the head with his fist." Count II charged the defendant with causing bodily harm by punching the victim "about the head with his fist" while in a public place of accommodation. The fact that the State initially conceived of the defendant's conduct as part of the same act, further distinguishes this case from People v. Donaldson (1982), 91 Ill.2d 164, and People v. Dixon (1982), 91 Ill.2d 346. Prosecutorial intent, as reflected in the language of the charging instrument, is a factor which is considered in determining whether a defendant's conduct constituted a single act or several separate acts. (People v. ...