People v. Smith, 2017 IL App (1st) 151312 (October). Episode 451 (Duration 10:59)
One act – One crime principles will save this defendant 6 years.
An elder commander of the Veterans of Foreign Wars (VFW) post was robbed while he was outside the bank about to make a deposit.
A teller saw it go down and called the police. Meanwhile, a high-speed police chase of the black car, driven by codefendant Brown, had ensued. Smith and Brown crashed into another vehicle and came to a stop. They ran from the black car in opposite directions. Minutes later, police found Brown hiding underneath a vehicle in a backyard and placed him in custody.
During a custodial search, police recovered over a thousand dollars from his right pocket. The A.J. Smith bank deposit bags and money were found inside the black car.
Blood samples taken from the passenger’s side of the black car were submitted to the Illinois State Police crime laboratory for testing. Results of that testing indicated a DNA match with Smith, and he was arrested on February 5, 2010.
Old Guy In Bad Shape
Mary Burtner, William’s wife, testified that her husband was treated and released from the hospital on the day of the robbery. When he returned home, he was in a lot of pain, uncomfortable, and favoring his left side. He had lung cancer and was going through chemotherapy.
He died in his sleep later that night.
Burtner suffered from lung cancer, two prior heart attacks, and heart disease and had three fractured ribs on the left side of his chest wall. The rib fractures were less than three or four days old and were consistent with being punched.
Dr. Arunkumar determined that the cause of death was hypertensive cardiovascular disease with, as a significant contributing factor to the heart attack, the fractured ribs due to an assault. In her opinion the cause of death was homicide.
Not Guilty Of Murder
The trial court found that the State failed to prove that Smith and Brown caused Burtner’s death and so found them not guilty of first degree murder.
Aggravated Battery Of A Senior
The trial court, however, found that defendants “certainly” inflicted great bodily harm on Burtner and, therefore, found both men guilty of aggravated battery of a senior citizen.
The trial court also found defendants guilty of robbery and aggravated battery. The aggravated battery counts were merged into the aggravated battery of a senior citizen offense.
As Burtner was over the age of 60, the trial court ruled that the robbery offense was elevated from Class 2 to a Class 1 felony.
The trial court sentenced Smith to 12 years’ imprisonment for robbery and a consecutive term of 6 years’ imprisonment for aggravated battery of a senior citizen. The court expressly stated that Smith’s criminal history and the nature and circumstances of the offense required consecutive sentences to protect the public from further criminal conduct by Smith.
Smith contends only that his conviction for aggravated battery of a senior citizen should be vacated because it violates the one-act, one-crime doctrine where it is based on the same single physical act as his robbery conviction. Smith argues that the only evidence of a physical act committed against Burtner was the single punch that resulted in fractured ribs. Smith also argues that the single punch cannot serve as the basis for both the aggravated battery and the force element for the robbery.
The State responds that the one-act, one-crime doctrine was not violated because Smith committed two separate acts.
The State asserts that the punch was one act and the taking of the deposit bags was a separate act. The State contends that the common act of the punch can serve as the basis of both offenses because there was another separate act for the robbery.
One Act – One Crime Doctrine
Under the one-act, one-crime doctrine (see more Illinois sentencing cases) Smith cannot be convicted of multiple offenses that are based on precisely the same single physical act, and where he is convicted of two such offenses, the conviction for the less serious offense must be vacated. Our supreme court has defined an “act” as “any overt or outward manifestation which will support a different offense.” People v. King, 66 Ill. 2d 551, 566 (1977).
In clarifying the one-act, one-crime rule from King, the supreme court explained that a court must first determine whether Smith’s conduct consisted of a single physical act or separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996).
A defendant can be convicted of two offenses where a common act is part of both crimes. But, where two offenses share a common act, there must be another separate act to sustain the two convictions. As long as there are multiple acts as defined in King, their interrelationship does not preclude multiple convictions.
The State charged Smith with robbery for taking money from Burtner by the use of force or by threatening the imminent use of force. 720 ILCS 5/18-1(a) (West 2008).
The aggravated battery of a senior citizen offense alleged that Smith intentionally and knowingly caused great bodily harm to Burtner, a person 60 years of age or older, by striking him about the body, causing injuries. 720 ILCS 5/12-4.6(a) (West 2008).
The record reveals that the evidence presented at trial demonstrated that Smith committed one single physical act—a single punch to Burtner’s left side.
The single punch was used as the basis for the aggravated battery conviction and as the element of force for the robbery conviction. There was no evidence of any other use of force or threat of force by Smith. There was no evidence of a verbal threat. Indeed, because Burtner was punched from behind, he was likely unaware that Smith was approaching him.
Based on this record, we find that Smith committed only one single physical act.
Isn’t The Taking A Separate Act?
We note that the State asserts that the taking of the money from Burtner constituted a separate physical act for the robbery and, thus, the two convictions may stand. The State primarily relies on this court’s decision in People v. Pearson, 331 Ill. App. 3d 312 (2002), which it claims is directly on point. In Pearson, the defendant grabbed a woman’s purse off her shoulder. A struggle ensued, and the woman was knocked to the ground. The defendant was convicted of both robbery and aggravated battery. On appeal, this court found that the two convictions did not violate the one-act, one-crime doctrine, as the defendant committed two separate physical acts—he took the woman’s purse, and he then pushed her to the ground.
We find the facts of this case distinguishable from Pearson.
There, the act of grabbing the woman’s purse off her shoulder was, in and of itself, a taking of property by force.
Pearson’s subsequent act of pushing the woman to the ground was a separate act.
Here, however, the evidence demonstrates that Smith committed only one physical act, the punch. There was no evidence that Smith used another act of force to take the money from Burtner. There is no evidence explaining how the taking occurred. There is no evidence of a struggle over the deposit bags nor any evidence that Smith forcefully removed them from Burtner’s hand.
It is possible that Burtner dropped the bags after he was punched and fell to the ground, as he apparently did with the cigar box.
Accordingly, Pearson does not apply to this case.
Based on this record, we find that Smith’s convictions for robbery and aggravated battery of a senior citizen were both based on Smith’s single physical act of punching Burtner. The two convictions therefore violate the one-act, one-crime principle and cannot stand. The aggravated battery of a senior citizen offense is a Class 2 felony and, thus, is less serious than the robbery of a senior citizen, which was elevated to Class 1.
We vacate the aggravated battery of a senior citizen conviction and affirm Smith’s conviction and sentence for robbery.