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People v. Phelps

July 30, 2001

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE
v.
KEVIN PHELPS, DEFENDANT-APPELLANT



The opinion of the court was delivered by: Presiding Justice McNULTY

UNPUBLISHED

Appeal from the Circuit Court of Cook County Honorable Mary Maxwell Thomas, Judge Presiding

A jury found defendant, Kevin Phelps, guilty of aggravated kidnaping and heinous battery. The trial court imposed consecutive sentences for the offenses. Defendant challenges both the convictions and the sentences on appeal. He argues that the prosecution failed to prove he secretly confined the victim, the prosecutor's closing argument misstated the evidence, and the court improperly used the fact that he caused great bodily harm to doubly enhance his sentence.

P.H., a high school student, befriended defendant, a paraplegic, late in 1996. She knew defendant by his nickname, Sniper, and he called her by a nickname few people knew. Through most of the summer of 1997, P.H. went to visit defendant about every other day. In August 1997 P.H.'s older sister and legal guardian grounded her, instructing her not to see defendant.

P.H. left the high school after 4 p.m. on September 4, 1997. She returned home around 8 p.m., screaming "Sniper burnt me." P.H.'s sister called for an ambulance. Doctors at the hospital found that P.H. had suffered second and third degree burns over 36% of her body. She remained in the intensive care unit for two weeks, undergoing multiple skin grafts and other treatments to help her skin heal. She has prominent, permanent scars. Police arrested defendant and charged him with heinous battery, aggravated kidnaping and attempted murder.

At trial P.H. testified that when she left the high school on September 4, 1997, two men called to her, using the nickname defendant and few others used. One man said, "Folks said come get your stuff." P.H. knew the man meant defendant, because his home was the only place she had left anything. She told the men she would get the stuff later, and she caught a city bus to go home. When she got off the bus, the men drove up behind her. One pulled her jacket and told her to get in the car. They took her to defendant's home.

Defendant asked P.H. where she had been, what she had been doing, and whom she had been seeing for the prior weeks. She explained that her sister had grounded her. He asked the same few questions repeatedly for an hour.

Defendant then told P.H. to take off her clothes. When she refused he pulled out a gun and told her again to take off her clothes. She took them off. He threw a cup full of liquid on her, and he threw a lit cigarette lighter at her. The skin of her stomach and legs immediately went up in flames. P.H. ran to the bathroom and put out the fire, but she had no way to leave the house without passing defendant again. She talked with him for more than an hour before finally persuading him to let her dress and leave. She agreed to tell her sisters a stranger abducted her, raped her and burned her.

On cross-examination P.H. admitted that defendant never said she could not leave. Some time before he burned her, he asked her to get him a glass of water. When she went to the kitchen, she was out of his sight, but she made no attempt to flee. She explained that from defendant's tone and his reputation she understood that she would put herself in peril if she left.

In closing the prosecutor argued, without objection, that the men who met P.H. said "Sniper[] wants to see you." The prosecutor later added:

"[Defendant] told her she couldn't leave.

*** He says, 'You can't leave. Remove your clothes.' She could not leave at that point."

Defense counsel in closing reminded the jurors of P.H.'s testimony that defendant never said she could not leave.

The jury acquitted defendant on the charge of attempted murder, but found him guilty on the charges of heinous battery and aggravated kidnaping. The trial court sentenced defendant to 30 years in prison for heinous battery and 15 years in prison for aggravated kidnaping. The court also found that section 5-8-4(a) of the Unified Code of ...


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