Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County. No. 15 CR 23038
Honorable Dennis J. Porter, Judge Presiding.
Attorneys for Appellants: James E. Chadd, Patricia Mysza, and
Joshua M. Bernstein, of State Appellate Defender's
Office, of Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State's
Attorney, of Chicago (Alan J. Spellberg and Miles J. Keleher,
Assistant State's Attorneys, of Chicago, for the People.
JUSTICE WALKER delivered the judgment of the court, with
opinion. Justice Hyman concurred in the judgment and opinion.
1 The trial court found defendant Joel West guilty of
aggravated kidnapping, armed robbery, aggravated battery, and
armed violence. West contends on appeal that the prosecution
did not prove the asportation element of kidnapping, and the
court improperly relied on its own investigation to reach the
finding of guilt on the charge of armed violence. We hold
that pushing the victims a few feet in the course of an
attempted armed robbery did not meet the asportation element
for the kidnapping charges. The evidence also did not prove
the charge that West committed armed violence with a knife
with a blade at least three inches in length. We reverse the
convictions for aggravated kidnapping and armed violence.
Because we cannot determine the effect of the improper
convictions on sentencing, we remand for resentencing for
aggravated battery and armed robbery.
2 I. BACKGROUND
3 On November 9, 2013, Gloria Cruz brought her son X.M. to
her workplace, a currency exchange in Chicago. After they
entered the currency exchange, a man came through the
ceiling, wearing a black hoodie, black pants, black shoes,
black gloves, and a black ski mask over a Mardi Gras mask.
The man grabbed Cruz and pulled her to the rear where the
currency exchange kept its cash. The man held a knife to
Cruz's chin. When Cruz refused to open the door to the
back, the man grabbed her keys, opened the door himself, and
pushed X.M. into the back. The man struggled with Cruz, but
when he finally pushed her through the door to the rear, she
quickly closed a gate that barred the man from getting
through to the area with the cash. The man opened the
currency exchange exit door, threw the keys on the floor, and
left the currency exchange.
4 An alarm that alerts police when the currency exchange does
not open on time brought police to the scene a few minutes
later. About 25 minutes after the initial alarm, Officer Ryan
Sheahan of the Chicago Police Department found West in back
of a building on the same block. Sheahan asked West to come
to him, but instead, West ran down an alley where police
arrested him. Prosecutors charged West with the aggravated
kidnappings of Cruz and X.M., armed robbery, aggravated
battery, and armed violence "in that [West], WHILE ARMED
WITH *** A KNIFE WITH A BLADE OF AT LEAST 3 INCHES
IN LENGTH, COMMITTED A *** BURGLARY *** IN
THAT HE *** ENTERED A *** CURRENCY EXCHANGE
*** WITH THE INTENT TO COMMIT THEREIN A THEFT."
(Emphasis in original).
5 At the bench trial Officer Sheahan testified that as he
looked around the area near the currency exchange, he saw
West in a stairwell. Sheahan went to the stairwell and asked
to see West's hands, and he saw in the stairwell a black
hoodie, black pants, black gloves, masks, a knife, another
tool, and identification papers for West.
6 At trial, Cruz identified the hoodie and the masks Sheahan
found as the same hoodie and masks the robber wore. She
identified the knife Sheahan found as the knife the robber
used, and she described the knife as about four inches in
length. She did not testify as to the length of the
knife's blade. She identified a photograph of her face as
an accurate depiction of the injury the robber inflicted when
he pressed the knife to her face, leaving a small cut to her
7 West testified that he was waiting in back of the building
to make a drug deal when he heard police coming. He tried to
hide the drugs, dropping his identification papers from his
pocket in the process. When he ran from Sheahan, he tossed
the drugs into a nearby yard before police arrested him. He
first saw Sheahan when he was in the middle of the back yard;
he had not gone near the stairwell at all.
8 In closing argument defense counsel pointed out that the
prosecutor presented no evidence of the length of the
knife's blade. The trial judge stated, "The blade of
this knife is exactly three inches long." The court
found Officer Sheahan credible and West not credible, found
West guilty on all charges, and denied West's motion for
a new trial. The court sentenced West to 10 years in prison
for the aggravated kidnapping of Cruz, 10 years for the
aggravated kidnapping of X.M., 11 years for armed violence,
11 years for armed robbery, and 5 years for aggravated
battery, with the sentences to run concurrently. The court
also imposed a wide variety of fees, fines, and costs as part
of the sentence. West now appeals.
9 II. ANALYSIS
10 On appeal, West does not contest the convictions for armed
robbery and aggravated battery. He argues that the
prosecution did not prove kidnapping of either Cruz or X.M.,
and the court improperly relied on its own investigation into
the length of the blade. He also argues that this court
should remand for resentencing on the remaining counts, or at
least correct the mistakes in the assessment of fees, fines,
11 A. Kidnapping
12 West contests the sufficiency of the evidence of
kidnapping. "When considering a challenge to the
sufficiency of the evidence, a reviewing court must determine
whether, viewing the evidence in the light most favorable to
the State, a rational trier of fact could have found the
required elements of the crime beyond a reasonable
doubt." People v. Bradford, 2016 IL 118674,
13 The trial court found that West kidnapped Cruz and X.M.
when he pushed them through the door to the rear part of the
currency exchange, where the currency exchange kept its cash.
Section 10-1 of the Criminal Code provides, "A person
commits the offense of kidnapping when he or she knowingly
*** by force or threat of imminent force carries another from
one place to another with intent secretly to confine that
other person against his or her will." 720 ILCS 5/10-
1(a)(2) (West 2012).
14 The court in People v. Smith, 91 Ill.App.3d 523,
529 (1980), adopted from New York and federal cases a test
for whether the "carr[ying of] another from one place to
another" qualified for a separate charge of kidnapping.
The Illinois Supreme Court later approved the Smith
"Our appellate court has articulated factors to consider
when determining whether an asportation or detention is
merely ancillary to another offense, or whether it rises to
the level of an independent crime of kidnapping. These
factors include: (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 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." People v.
Siguenza-Brito, 235 Ill.2d 213, 225-26 (2009); see
People v. Casiano, 212 Ill.App.3d 680, 687 (1991).
15 A Georgia court applied the same factors in circumstances
similar to the ...