Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 10CR16938. The Honorable Dennis J. Porter, Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justices Howse and Cobbs concurred in the judgment and opinion.
FITZGERALD SMITH, PRESIDING JUSTICE
¶ 1 After a jury trial, defendant Hubert Sumler was found guilty of aggravated kidnapping, violation of an order of protection, and domestic battery. Defendant was sentenced to 28 years' imprisonment for aggravated kidnapping, 3 years' imprisonment for violation of an order of protection, and 3 years' imprisonment for domestic battery, all sentences to run concurrently. On appeal, defendant contends: (1) his aggravated kidnapping conviction should be reduced to kidnapping where the State failed to introduce evidence during trial of his prior domestic battery conviction that enhanced his domestic battery to a felony; (2) the State failed to prove him guilty of aggravated kidnapping where the asportation of the victim was so brief that it was merely a part of the commission of the separate offense of domestic battery; (3) this court should order a new sentencing hearing; and (4) his domestic battery conviction should be vacated as a lesser included offense of aggravated kidnapping, which was predicated on the same domestic battery. The State properly concedes that his domestic battery conviction should be vacated as a lesser included offense of aggravated kidnapping. For the following reasons, we affirm defendant's convictions for aggravated kidnapping and violation of an order of protection, and vacate his conviction for domestic battery; in addition, we otherwise affirm his sentence, with the modification that his second 3-year term for his conviction for domestic battery, accordingly, vacated.
¶ 2 I. BACKGROUND
¶ 3 Defendant was charged with aggravated kidnapping, vehicular hijacking, vehicular invasion, kidnapping, eight counts of violation of an order of protection, and eight counts of domestic battery for an incident that occurred on March 30, 2010. The following evidence was adduced at trial.
¶ 4 The victim, S.M., testified that she and defendant had three children together. At the time of trial, the children were ages 18, 14, and 4. She had known defendant for 19 years, but they never married. On the day of the incident at issue here, March 30, 2010, S.M. had a no-contact order of protection in effect against defendant, requiring him to stay away from her house and her job. Defendant was present when the order of protection was issued.
¶ 5 At approximately 5 a.m. on March 30, 2010, S.M. returned home alone a vehicle. She parked on the street directly in front of her house on the 300 block of West 43rd Street. She opened the door slightly as she was preparing to exit the vehicle. Defendant suddenly appeared at the driver's side door and began punching her in the face and head. S.M. attempted to flee by climbing into the passenger seat with the hope of escaping out the passenger door. She was bleeding from her face. Defendant climbed into the driver's seat as he was hitting her and drove away before S.M. was able to exit the vehicle.
¶ 6 Defendant was driving rapidly. He drove down 43rd Street, and then took Wallace
Avenue to 39th Street and Pershing Avenue. He turned toward the expressway. Once they were about 11/2 blocks from the expressway, S.M. began kicking the dashboard and screaming, "hoping somebody would see what was going on." S.M. testified she "was panicking" because she "thought he might have got on the expressway. I didn't want to get on the expressway." S.M. testified she did not agree to go anywhere with defendant, and she did not know where he was taking her.
¶ 7 As they reached 39th Street and Princeton Avenue, with S.M. kicking and screaming, defendant unlocked the car doors, opened the passenger door, and pushed S.M. out of the vehicle at a stop sign. S.M. was able to grab her purse as she fell from the vehicle. Defendant drove away.
¶ 8 S.M. walked to a nearby gas station and called the police. An ambulance arrived and transferred her to Mercy Hospital, where she was treated and released several hours later. S.M.'s friend took photographs of S.M.'s injuries.
¶ 9 S.M. testified that the next day, one of defendant's friends, Jakeima Brooks, came to her house. Brooks handed S.M. the keys to S.M.'s vehicle and told her defendant had asked him to give her the keys.
¶ 10 S.M. also testified to other incidents of physical abuse by defendant. The court admonished the jury that this evidence was "being received on the issue of the defendant's state of mind, motive, and intent and it may be considered by you only for that limited purpose." S.M. testified that, on October 18, 2008, S.M. and defendant got into a "heated argument" and defendant punched S.M. in the face, head, and body. Their two eldest sons broke up the fight, defendant left the house, and S.M. contacted the police. The court issued a no-contact order of protection against defendant on October 31, 2008, as a result of that incident. Defendant was present in court when that order was entered. It was in effect on March 30, 2010, the date of the present incident.
¶ 11 On October 31, 2009, S.M. was walking with defendant near her home at approximately 3:45 a.m. when they had another argument. Defendant punched S.M. in the face. Defendant's friend broke up the fight. S.M. called the police.
¶ 12 On March 10, 2010, S.M. exited a gas station on 42nd Street and Wentworth Avenue and saw defendant in a van with another man and two women. As S.M. approached her vehicle, defendant called her a "bitch" and punched her in the face and head. S.M. sustained a black eye. Defendant ran when S.M.'s eye swelled and started to bleed.
¶ 13 Just days after the incident at issue here, on April 1, 2010, S.M. fell to the ground while at a party. S.M. looked up from the floor and saw defendant's foot coming toward her. Defendant kicked her in the back of the head. He then bent over and punched S.M. with both fists and stomped on her back. Defendant ran away before the police arrived. S.M. suffered an abrasion on her forehead, two black eyes, and a broken nose.
¶ 14 At approximately midnight on June 29, 2010, S.M. was walking toward her house. Defendant appeared out of the darkness and hit S.M. She fell to the ground from the blow. Defendant then hit her in the back of the head and stomped his foot on her back. S.M. yelled. A neighbor heard the commotion and opened a door, asking defendant what he was doing. Defendant fled. S.M. went to the police station and reported the attack.
¶ 15 On cross-examination, S.M. admitted she had attempted suicide sometime in the 1990s. S.M. was hospitalized for three days following her suicide attempt. S.M. denied ever having approached Jennifer, the woman defendant was dating in 2008, with a gun. She admitted having spoken with defendant in March 2012, but denied asking defendant to date her again or offering to drop the charges. She explained that she contacted defendant on behalf of their son, who was incarcerated.
¶ 16 Paramedic Eric Rodriguez testified he gave S.M. an ice pack and towel for a bleeding lip laceration on March 30, 2010, at the gas station, and then transported her to Mercy Hospital.
¶ 17 Dr. Sudhir Kelkar testified that he was an attending physician at Mercy Hospital on March 30, 2010. He treated S.M. after she reported having been hit in the face with a fist. Dr. Kelkar observed a laceration on the inside of S.M.'s upper lip and testified that this injury was consistent with S.M. having been hit with a closed fist. Although other causes were possible, Dr. Kelkar testified that this type of injury was a blunt trauma injury.
¶ 18 The State rested.
¶ 19 Brooks testified on defendant's behalf, explaining that he had known defendant and the victim for two or three years. He denied having given the car keys back to S.M. in March 2010 and testified that defendant never asked him to give her anything. Brooks acknowledged he had two prior felony convictions for possession of a controlled substance in 2008 and 2011.
¶ 20 Jennifer Merideth also testified on defendant's behalf. She met S.M. in 2004 and defendant in 2006. She began dating defendant after S.M. and defendant ended their relationship. S.M. and Merideth did not get along once Merideth and defendant began to date. She described a number of instances when, after Merideth started dating defendant, S.M. allegedly attacked her. This included attempting to hit Merideth with her car, breaking Merideth's home's windows with a gun, spraying Merideth with mace, spitting on Merideth, and attempting to attack her at a gas station. She did not require medical treatment after these incidents. She testified that she lived with defendant and they moved apartments after S.M. broke their windows. Merideth testified that she obtained a one-year order of protection against S.M. Merideth and defendant have a child together who was born in March 2011.
¶ 21 Defendant testified on his own behalf. He admitted he knew there was an order of protection against him at the time of the incident in question. He denied that he attacked S.M. on March 20, 2010. He testified he did not get into a car with her and denied having driven her anywhere on that day.
¶ 22 The defense rested. Following arguments by both parties, the jury found defendant guilty of aggravated kidnapping, violation of an order of protection, and domestic battery. At a subsequent sentencing hearing, the court sentenced defendant to 28 years' imprisonment for aggravated kidnapping, 3 years' imprisonment for violation of an order of protection, and 3 years' imprisonment for domestic battery, all sentences to run concurrently.
¶ 23 Defendant appeals.
¶ 24 II. ANALYSIS
¶ 25 A. The Felony Classification
¶ 26 On appeal, defendant first contends that his aggravated kidnapping conviction should be reduced to kidnapping because the State failed to introduce evidence of his prior domestic battery conviction that enhanced his domestic battery to a felony during the trial. Specifically, defendant argues that the jury was only given opportunity to find defendant guilty of misdemeanor domestic battery and not of felony domestic battery and, therefore, defendant's domestic battery conviction cannot satisfy aggravated kidnapping's "another felony" element. For the following reasons, we disagree.
¶ 27 It is the purview of the legislature to determine what is considered criminal conduct, to assign penalties for that conduct, and to enact statutory provisions which enhance a criminal offense or enhance the applicable range of punishment for an offense. People v. Thomas, 171 Ill.2d 207, 223 (1996). We are mindful that the primary rule of statutory construction is to ascertain and give effect to the intent of the legislature. People v. McChriston, 2014 IL 115310, ¶ 15; People v. Ramirez, 214 Ill.2d 176, 179 (2005). The most reliable indicator and best evidence of legislative intent is the language used in the statute itself, and where the statutory is clear and unambiguous, its plain and ordinary meaning will be given effect. Ramirez, 214 Ill.2d at 179. Although the trial court has discretion to impose a sentence, we review the issue de novo because it involves a question of law. People v. Chaney, 379 Ill.App.3d 524, 527 (2008); see also People v. Harris, 203 Ill.2d 111, 116 (2003) (the construction of a statute is a question of law for which review is de novo).
¶ 28 A person commits the offense of kidnapping when, in pertinent part, he knowingly and secretly confines another against her will; or by force or threat of imminent force carries another from one place to another with intent secretly to confine that other person against her will. 720 ILCS 5/10-1 (West 2010). A person commits the offense of aggravated kidnapping when, in pertinent part, at the time he commits the offense of kidnapping, he commits another felony upon his victim. 720 ILCS 5/10-2(a)(3) (West 2010).
¶ 29 A person commits the offense of domestic battery if, in pertinent part, he knowingly without legal justification by any means causes bodily harm to any family or household member. 720 ILCS 5/12-3.2 (a)(1) (West 2010). Domestic battery is a Class A misdemeanor. 720 ILCS 5/12-3.2(b) (West 2010). However, domestic battery is a Class 4 felony if the defendant has any prior conviction for domestic battery. 720 ILCS 5/12-3.2(b) (West 2010). Specifically, section 12-3.2(b) of the Criminal Code of 1961 (Code) sets forth the possible classifications and sentences for this offense:
"(b) Sentence. Domestic battery is a Class A misdemeanor. Domestic battery is a Class 4 felony if the defendant has any prior conviction under this Code for domestic battery (Section 12-3.2) or violation of an order of protection (Section 12-3.4 or 12-30), or any prior conviction under the law of another jurisdiction for an offense which is substantially similar." (Emphasis added.) 720 ILCS 5/12-3.2(b) (West 2010).
¶ 30 Section 111-3(a) of the Code of Criminal Procedure of 1963 sets forth what must be included in a criminal charge:
"Form of charge.
(a) A charge shall be in writing and allege the commission of an offense by:
(1) Stating the name of the offense;
(2) Citing the statutory provision alleged to have ...