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10/14/87 the People of the State of v. Edward Pugh

October 14, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

EDWARD PUGH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

516 N.E.2d 396, 162 Ill. App. 3d 1030, 114 Ill. Dec. 241 1987.IL.1537

Appeal from the Circuit Court of Cook County; the Hon. Ronald J. Crane, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Defendant, Edward Pugh, was charged by information (as amended in open court before trial) with unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10-3(a)), aggravated kidnapping (Ill. Rev. Stat. 1983, ch. 38, par. 10-2(a)(3)), and aggravated battery (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(8)). After a bench trial he was convicted of aggravated kidnapping and aggravated battery. The unlawful restraint count was merged. The trial court sentenced defendant to four years' imprisonment for aggravated kidnapping and two years for aggravated battery. The sentences were to run concurrently.

Defendant appeals and contends that the trial court erred in entering judgment on both aggravated kidnapping and aggravated battery charges. Alternatively, assuming arguendo that there was sufficient evidence to support both convictions, defendant contends that one conviction must be vacated pursuant to the "one-act-one-crime" principle.

For the reasons stated below, we affirm the judgment of the circuit court.

The evidence at trial indicated the following. On March 9, 1985, at about 2 a.m., the victim arrived at the parking lot next to her apartment building complex at 1223 Williams Street, Calumet City, Illinois. As the victim walked through the parking lot, she passed between two cars, one of which was a four-door gray Cadillac. Two black men were seated in the Cadillac. Defendant was sitting in the backseat. Defendant called the victim a "white bitch," then got out of the car, punched her in the face five or six times, and forced her into the car. Andrew Steward, who was driving, backed up the car and drove away. Defendant held the victim down on the backseat of the car. The victim could not see where they were going, as she was lying on her back. Defendant punched the victim in the face, and fondled her breasts and felt between her legs. After a few minutes, Steward stopped the car and he and defendant exchanged places in the car.

While defendant was driving, police officer Bulczak of the Berwyn police department saw the Cadillac from his position on the northbound ramp of the Calumet Expressway at Dolton Road. Bulczak followed the car. As defendant accelerated and exited the expressway, Bulczak turned on his lights and siren and continued to follow the car until it blew a tire. The Cadillac turned into the path of Bulczak's car, which struck the Cadillac on the driver's side. Defendant began to drive again, but lost control of the car about one-half block away and stopped on the median strip, where he was surrounded by squad cars. The victim was taken to a hospital where she was treated.

On appeal defendant initially asserts that the trial court erred by entering judgment on both aggravated kidnapping and aggravated battery. Defendant asserts that the entry of judgment on both offenses violates the due process clause as double enhancement. We note that the information charged defendant with aggravated kidnapping in that he allegedly kidnapped the victim (Ill. Rev. Stat. 1983, ch. 38, par. 10-1(a)(2)) and committed another felony, aggravated battery, upon her (Ill. Rev. Stat. 1983, ch. 38, par. 10-2(a)(3)). Defendant was charged with aggravated battery in that he allegedly committed a battery upon the victim (Ill. Rev. Stat. 1983, ch. 38, par. 12-3(a)(1)) while on a public way (Ill. Rev. Stat. 1983, ch. 38, par. 12-4(b)(8)).

Defendant contends that the element of being on a public way was used both to enhance the battery to a felony and as an element of proof of asportation for the aggravated kidnapping, in which the same aggravated battery was a circumstance. Therefore, the convictions on the enhanced charges should be reversed as having resulted from multiple use of the same element to prove both the predicate charge and the greater charge. People v. Payne (1983), 98 Ill. 2d 45, cert. denied (1984), 465 U.S. 1036, 79 L. Ed. 2d 708, 104 S. Ct. 1310.

Additionally, defendant asserts that he was not properly convicted of aggravated kidnapping where the asportation of Jones was incidental to the offense of aggravated battery. Defendant asserts that when temporary seizure, asportation, or detention plays an incidental part to the commission of a lesser offense, a conviction for aggravated kidnapping may not stand unless certain conditions are met. (People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117.) Factors to be considered are: (1) the 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. 91 Ill. App. 3d 523, 529, 414 N.E.2d 1117, 1122.

Defendant applies the Smith factors to the instant case. Defendant contends that the duration of the victim's detention was a fairly short time, as Officer Bulczak testified he saw the Cadillac within several minutes of receiving a radio report regarding a possible abduction. Bulczak testified that he received the radio message at about 1:57 a.m. The victim testified that she first saw defendant and the car some minutes before 2 a.m. Therefore, not much time passed during the alleged offense. Second, defendant asserts, the victim allegedly was struck by defendant on a public way while being asported. Third, asportation was necessary to commit the crime of aggravated battery as the aggravation used was the commission of a battery on a public way. Fourth, the danger inherent to a victim of an aggravated battery is the danger of bodily harm arising out ...


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