Appeal from the Circuit Court of Cook County No. 98 CR 26821 The Honorable Fred J. Suria Judge Presiding.
The opinion of the court was delivered by: Justice Tully
Following a jury trial, defendant, Clifford Banks, was convicted of aggravated kidnaping and unlawful restraint of a twelve-year-old boy, and was sentenced to a term of 45 years in prison. Defendant appeals, raising as issues whether the State proved defendant guilty of aggravated kidnaping and unlawful restraint beyond a reasonable doubt; whether the court erroneously convicted defendant of multiple offenses arising from a single act; whether the court committed a Prim violation; and whether the court erred in polling the jury.
The victim testified that on September 17, 1998, at approximately 7:45 p.m., he was alone in an alley behind his house at 4350 Congress Parkway, Chicago. While standing in the alley, the victim saw a family friend known as "Coco" riding his bicycle up and down the alley. Coco stopped and asked the victim about his sister and then Coco rode away.
About ten minutes later, the defendant approached the victim and asked whether the victim wanted to make some money by cleaning out a garage down the alley. The victim started walking down the alley with the defendant. As they were walking, the defendant grabbed the victim's arm and started dragging him toward a gangway. The victim "dug his feet into the ground" and struggled with the defendant. The victim indicated on a photograph the distance which the defendant pulled him down the alley. That distance appears to be approximately ten feet.
As the victim struggled to get free, Coco returned to the alley and approached the defendant and the victim. Coco asked the victim whether he knew the defendant. The victim told Coco that he did not and the victim stepped away from the defendant. Coco then pushed the defendant to the ground. The defendant ran out of the alley to a state trooper vehicle that was parked on Congress Parkway. Coco and the victim went to the victim's house where they informed the victim's mother of what had happened. The victim, his mother and Coco then went to tell the state trooper what had happened.
On appeal, defendant first asserts that his conviction and sentence for aggravated kidnaping must be reversed because the State failed to prove the essential elements of kidnaping beyond a reasonable doubt. Specifically, defendant argues that the State failed to prove that a secret confinement occurred. Further, defendant contends that the asportation of the victim was not established beyond a reasonable doubt because there was no evidence presented that the defendant moved the victim from one place to another.
The crime of kidnaping occurs when a person knowingly and secretly confines another against his will, or by force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will. (Ill.Rev.Stat.1987, ch. 38, par. 10-1.) A kidnapper who takes as his victim a child under the age of 13 years commits aggravated kidnaping. (Ill.Rev.Stat.1987, ch. 38, par. 10-2(a)(2).) "Secret confinement," the gist of kidnaping, is demonstrated by either the secrecy of confinement or the place of confinement, and must be proved beyond a reasonable doubt. People v. Sykes (1987), 161 Ill.App.3d 623, 515 N.E.2d 253 citing People v. Mulcahey (1977), 50 Ill.App.3d 421, 365 N.E.2d 1013.
In Illinois, reviewing courts have addressed the necessary proof to establish the "secret confinement" element of the charged offense. In general, the victim has clearly been "confined" or enclosed within something, such as a house or a car. See People v. Mulcahey, (the victim was bound to a chair in her own home); People v. Bishop (1953), 1 Ill.2d 60, 114 N.E.2d 566, (secret confinement in an automobile while it is in motion upon a highway).
In People v. Sykes, the court focused on the "secret confinement" element of kidnaping. There, the defendant confronted the 10-year-old victim as she approached the school playground around 8:30 a.m. Defendant grabbed the victim's arm and pulled her into an alley. They proceeded through two or three alleys until they reached a partially vacant building. After defendant was denied entry into the building, they returned to the street where the victim yelled for help and defendant ran off. Relying upon the definition of "secret" as "concealed; hidden; not made public * * *," (People v. Mulcahey ) the Sykes court held that such "confinement" was not envisioned by the Illinois courts, nor did it comport with the "secret" component of the statute. Accordingly, defendant's conviction for aggravated kidnaping was reversed since the State failed to prove that the victim was "secretly confined."
While the facts in Sykes are similar to those found in the instant case, our analysis of the statute brings us to a different result. The Sykes court only looked at the first part of the statute which states that a kidnaping occurs when a person knowingly and secretly confines another against his will. (Ill.Rev.Stat.1987, ch. 38, par. 10-1(a)(1)).
The Sykes court did not address the statute in its entirety, specifically paragraphs 10-1(a)(2) and (a)(3). These portions of the statute provide that a kidnaping occurs when a person knowingly by force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will (Ill.Rev.Stat.1987, ch. 38, par. 10-1(a)(2)), and further that a kidnaping occurs when a person knowingly, by deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will (Ill.Rev.Stat.1987, ch. 38, par. 10-1(a)(3)).
In looking at the entire statute and under the factual circumstances presented here, we find that the State did prove the elements necessary to sustain a conviction for kidnaping. The victim testified that the defendant approached him in the alley and offered him money to clean out a garage down the alley. As the victim walked down the alley with the defendant, the defendant grabbed the victim's arm and started dragging him toward a gangway. Significantly, the defendant first "enticed" the victim to go down the alley with him by offering the victim money. Then the defendant "forced" the victim by grabbing his arm and dragging him toward a gangway. Here, the defendant clearly acted with the intent to secretly confine the victim but was prevented from doing so when Coco saw the defendant struggling with the victim and interrupted the defendant's actions.
We also find that the asportation of the victim was established beyond a reasonable doubt. To determine whether an asportation or detention rises to the level of kidnaping as a separate offense, Illinois courts have adopted the test announced in People v. Smith, 91 Ill.App.3d 523, 414 N.E.2d 1117 (1980). A court must consider the following four factors: (1) the duration of the asportation or detention; (2) whether the asportation or detention occurred during the commission of a separate offense; (3) whether the asportation or detention that 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. Smith, 91 Ill.App.3d at 529, 414 N.E.2d 1117. ...