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08/25/88 the People of the State of v. Andrew L. Moritz

August 25, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ANDREW L. MORITZ, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

527 N.E.2d 1102, 173 Ill. App. 3d 498, 123 Ill. Dec. 464 1988.IL.1313

Appeal from the Circuit Court of Woodford County; the Hon. Gerald G. Dehner, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. GREEN, P.J., and KNECHT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

Following a jury trial, defendant was found guilty of attempt (murder), two counts of armed violence, four counts of aggravated battery, and two counts of aggravated kidnaping in violation of sections 8-4, 33A-2, 12-4, and 10-2, respectively, of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4, 33A-2, 12-4, 10-2). The circuit court of Woodford County entered judgment of conviction on attempt (murder) and one count of armed violence predicated on kidnaping. Defendant was sentenced to an extended term of 60 years' imprisonment for attempt (murder) and 30 years' imprisonment for armed violence, the sentences to run consecutively. Defendant appeals both his conviction and sentence. We affirm.

On appeal, defendant advances the following allegations of error: (1) the jury returned mutually inconsistent verdicts by finding that defendant acted intentionally in returning a guilty verdict for attempt (murder), and by finding that defendant acted knowingly in returning guilty verdicts for armed violence, aggravated battery, and aggravated kidnaping; (2) defendant's conviction for armed violence predicated on kidnaping must be vacated because it involves exactly the same elements as the crime of aggravated kidnaping; and (3) defendant's sentence was excessive and an abuse of discretion by the trial court in light of defendant's mental illness and physical disabilities. As there is no question raised regarding the evidence, we need only briefly explain the factual background regarding defendant's charges.

On April 21, 1987, an incident occurred in Peoria whereby a woman was confronted as she was getting into her car by a man with a gun. The defendant was later identified as the man with the gun. Defendant forced the woman to the passenger's side of the car and drove east out of Peoria. Defendant stopped at a gas station and forced the woman to buy gas and cigarettes. They continued driving, and at some point, defendant pulled over near a ditch. Both of them got out of the car and approached the ditch. Defendant made the remark that the ditch was not deep enough, and they got back into the car and continued driving. About a mile or so further, defendant pulled off the road by a barn or shed. Defendant walked the woman behind the barn while telling her she could run away when she saw the taillights of the car disappear. The woman testified that defendant ordered her to stand facing the barn with her palms against the wall of the building. According to the woman, defendant fired the gun, and the bullet struck her in the left wrist. She screamed and fell to the ground. She pretended to be dead, hoping the man would go away. However, a few seconds later, she heard a gunshot and felt the bullet hit her head. Again, she heard a shot, and a second bullet hit her head. She lay there for some time, still conscious. Eventually, she got up, crossed a field to a farmhouse, and received help. Her wounds were treated that night, and the next day, surgery was performed to remove metal fragments from her head., Defendant was later apprehended in Denver, Colorado. The woman's car was recovered there also.

Defendant went to trial charged with attempt (murder), armed violence predicated on the felony of aggravated battery, and armed violence predicated on the felony of kidnaping. Upon defendant's request, the court gave instructions for an additional four counts of aggravated battery and two counts of aggravated kidnaping as included offenses of the State's charges. One of the aggravated kidnaping charges consisted of the elements of kidnaping with the added aggravating factor of commission of the felony while being armed with a dangerous weapon. The trial concluded on August 1, 1987, and the jury returned verdicts of guilty on all nine charges. The court entered judgment of conviction on the charges of attempt (murder) and armed violence predicated on kidnaping on August 10, 1987.

On October 1, 1987, defendant appeared in court for sentencing. The court found that certain aggravating factors applied to defendant, including causing serious harm to the victim, having a history of criminal activity, and requiring a sentence that would deter others from committing the same offense. (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(a).) No factors were found in mitigation. The court then found the offense was committed with brutal and heinous behavior, indicative of wanton cruelty (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.2(b)(2)), and sentenced defendant to an extended term of 60 years for attempt (murder). Defendant received a 30-year sentence for armed violence. Based upon a finding that the public needed to be protected from the defendant because of the nature of the offense he committed and his history and character, the court ordered the sentences to be served consecutively. Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-4(b).

Defendant initially raises the allegation that the jury returned mutually inconsistent verdicts. Defendant was charged with attempt (murder) in violation of section 8-4 of the Code (Ill. Rev. Stat. 1985, ch. 38, par. 8-4). Attempt is a crime requiring that one intend the commission of the specific offense. The remaining eight charges were composed of two counts of armed violence, using the predicate felonies of kidnaping and aggravated battery, four counts of aggravated battery, and two counts of aggravated kidnaping. As to all these charges, the State submitted jury instructions which included the mental state of knowledge. The jury returned verdicts of guilty on all nine charges. Based on the supreme court's decision in People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030, defendant argues the verdicts are mutually inconsistent; the mental states of intent and knowledge are inconsistent.

Defendant misreads Spears in order to achieve his mutually inconsistent theory. In Spears, the defendant was charged with attempt (murder), armed violence based on aggravated battery, and reckless conduct. (See Ill. Rev. Stat. 1983, ch. 38, par. 12-5(a).) Attempt (murder), as in this case, required an intentional act. Armed violence was based on an act committed knowingly. Reckless conduct was based on recklessness. The jury convicted defendant of all three charges, and the supreme court held the verdicts were inconsistent. However, the thrust of the court's holding was not aimed at a conflict between intent and knowledge. Rather, the conflict was between the mental states of intent and knowledge on the one hand, and recklessness on the other:

"By returning guilty verdicts for reckless conduct and attempted murder, the jury necessarily found mutually inconsistent mental states to exist when defendant shot and wounded Barbara. . . .

The Hoffer [ People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335,] rule also controls the guilty verdicts for the defendant's conduct towards Annette Keys. . . . By its guilty verdicts, the jury here necessarily found that the defendant acted both recklessly (reckless conduct) and knowingly (armed violence predicated on aggravated battery) in firing that shot. Under Hoffer, we conclude ...


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