People v. Witherspoon

NO. 4-06-0226 Filed 2/26/08

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
MARCELUS WITHERSPOON, ) No. 05CF1253
Defendant-Appellant. )
) Honorable
) James R. Coryell,
) Judge Presiding.

JUSTICE MYERSCOUGH delivered the opinion of the court:

In a fit of jealousy, defendant, Marcelus Witherspoon,

beat up his girlfriend. The State brought charges against him.

A jury convicted him of several counts, and the trial court

sentenced him to six years each on counts V and VI (attempt

(aggravated criminal sexual assault)), three years for count VIII

(aggravated domestic battery) and one year for count IX (domestic

battery with a prior domestic-battery conviction)--all sentences

to run consecutively, for a total of 16 years in prison. Defen-

dant appeals, arguing (1) the State failed to prove him guilty

beyond a reasonable doubt of count VI, attempt, because the

evidence failed to demonstrate that he made a second attempt to

commit aggravated criminal sexual assault with the board; and (2)

the court erred in ordering consecutive sentences. The State

concedes, and we agree, that the sentences on counts VIII and IX

should be concurrent instead of consecutive; we remand the case
with directions to amend the sentencing order accordingly.

Otherwise, we affirm defendant's convictions as modified.

I. BACKGROUND

A. The Information

The information contains nine counts, all of them

alleging acts of violence that defendant perpetrated against K.D.

on September 6, 2005. Counts I through IV charge him with

aggravated criminal sexual assault, a Class X felony (720 ILCS

5/12-14(a)(2), (d)(1) (West 2004)). Count I alleges that by the

use of the force, he placed a knife sharpener on K.D.'s vagina

and in so doing, inflicted bodily harm upon her by striking her

on the face with his hands. Count II is identical to count I

except it alleges he placed the knife sharpener on her vagina "a

second time." Count III alleges he placed the knife sharpener on

her vagina and in so doing, threatened her life by strangling her

about the neck with his hands. Count IV is identical to count

III except it alleges he placed the knife sharpener on her vagina

"a second time."

Counts V and VI charge defendant with attempt (aggra-

vated criminal sexual assault), a Class 1 felony (720 ILCS 5/8-

4(a), (c)(2), 12-14(a)(2) (West 2004)). We quote these two

counts because, in our analysis, we refer to them in detail.

Count V reads as follows:

"[D]efendant *** commit[ted] the offense

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 of attempt (aggravated criminal sexual as-

sault), in that ***, with the intent to com-

mit the offense of [a]ggravated [c]riminal

[s]exual [a]ssault, *** [he] performed a

substantial step toward the commission of

that offense, in that ***, while holding a

piece of wood, [he] grabbed [K.D.], held her,

and tried to ram the board into the sex organ

of [K.D.]."

Count VI is identical to count V except for the addition of the

final adverbial phrase "tried to ram the board into the sex organ

of [K.D.], a second time." (Emphasis added.)

Counts VII and VIII charge defendant with aggravated

domestic battery, a Class 2 felony (720 ILCS 5/12-3.3(a), (b)

(West 2004)). Count VII alleges he caused "great bodily harm" to

K.D., a family or household member, by striking her in both her

legs with a board, inflicting contusions to her inner right

thigh, right calf, left leg, and left ankle. Count VIII alleges

he caused her "great bodily harm" by striking her approximately

12 times in the face with both of his open hands, inflicting

contusions to her eyes, her chin, and the right side of her neck.

Count IX charges defendant with domestic battery with a

prior domestic-battery conviction, a Class 4 felony (720 ILCS

5/12-3.2(a)(1), (b) (West 2004)), in that having been previously

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convicted of domestic battery in People v. Witherspoon, case No.

01-CF-853 (Cir. Ct. Macon Co.), he threw K.D. onto the couch and

strangled her with his hands to the point where she could not

breathe.

B. The Trial

In the jury trial, K.D. testified she had known defen-

dant for years and dated him a couple of months. On September 5,

2005, he rang her cellular telephone repeatedly, but she did not

answer, for she was unwilling to speak with him at the time. On

September 6, 2005, she arrived home around 1:45 a.m. As she

pulled into her driveway, defendant pounded on the windows of her

truck, asking her where she had been and why she had not answered

his calls. When she got out of the truck, he grabbed her by the

hair on the back of her head and escorted her to the front door

of her house. She unlocked the door, and they went inside. In

the living room, he struck her in the face about a dozen times

with his open hands, making her ears ring and her nose and mouth

bleed. Then he calmed down momentarily and told her to go clean

the blood off her face. When she emerged from the bathroom, he

tried to cut her hair off with a knife, accusing her of being

with someone else. She fought him off, and he calmed down again

and ordered her to go to bed. She did so, and soon thereafter,

he entered the bedroom, and they had sex ("I didn't refuse him").

He then returned to the living room, and she slept.

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 Defendant woke her a couple of hours later and told her

was going to leave and attend to some business. K.D. let him

have the keys to her truck. He told her he would be back. She

got out of bed and took a shower, trying to make herself feel

better. While she was showering, defendant came back into her

house. He had her purse, which he had taken out of her truck.

He turned off the water in the shower and flung the purse at her,

demanding to know why she had condoms in her purse. He grabbed

her by the hair of her head and pulled her, wet and naked, out of

the shower and into the living room. She testified:

"A. I'm on the ground, and he's asking

me why I have condoms, who[m] else am I

fucking, stuff of that nature. He goes and

grabs a [two- by - four-inch] board that I

use to lock my back [sliding-glass] door

with, and I get up off the ground and go[]

into the kitchen[] [be]cause I don't know

what he's doing. I see him come back with a

board, and I'm thinking[,] [W]hat are you

doing? And he starts hitting me with it in

the legs like a baseball bat.

Q. So, you were the baseball[,] and the

board was the bat?

A. Evidently.

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 Q. Okay. Where did he hit you in the

legs?

A. He struck me multiple times in my

legs.

Q. Which ones? Both?

A. Both of them.

Q. Thighs?

A. Thighs, cal[ves], outside, inside,

ankle.

Q. Okay.

A. All over my lower extremities.

Q. Okay.

A. I think he got me on the arm [good

one] time with it.

Q. And at this point, what are you

thinking?

A. I mean, I don't know what to think.

I'm laying [sic] on the ground. He's telling

me to open up my legs, and he's obviously

trying to hurt me. I mean, I don't know. I

was trying to fight him. I remember trying

to kick at him.

* * *

Q. *** So, what did he attempt to do

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 when you didn't open your legs?

A. He put the board down again. I got

up. I ran to the door stark naked."

K.D. was so desperate that she tried to run outside

without any clothes on ("because, I mean, this is extreme"), but

defendant reached the door before she did and pushed her back and

got her in a headlock. He threw her onto the living-room couch,

gripped her neck with both hands, and began strangling her. She

saw red and black and was on the verge of passing out. "'I can't

breathe. I can't breath[e]," she told him. "'I don't care,'" he

replied. Then he released her, and as she lay dazed on the

couch, he went into the kitchen and returned with a "knife

sharpener." He pinned her to the couch and told her to open her

legs. They struggled. He got one of his hands inside her

vagina, and with the other hand, he tried to push the knife

sharpener into her vagina as she tried to push it away. The

prosecutor asked her:

"Q. *** Was Mr. Witherspoon successful

in inserting the knife sharpener into your

vagina?

A. No.

Q. Did he touch your labia with the

knife sharpener?

A. It touched me, but it never went

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 inside of me.

Q. And about how many times did it touch

you?

A. Once or twice.

Q. Once or twice. Okay. Then what

happened?

A. I don't remember how things calmed

down after that.

Q. But things calmed down?

A. He left again."

It was about 9:30 a.m. when defendant left; he drove

away in her truck, taking her keys and cellular telephone with

him. While he was gone, K.D. finished taking a shower and left a

voice-mail message for her mother. She did not telephone the

police at that time because she was scared and in her past

experience, the police had proved ineffectual. "I mean, you call

them. They come two or three hours later." About 10:30 or 11

a.m., defendant returned with a friend, and the three of them

watched television on the back porch and had something to eat.

At 2 p.m., defendant dropped her off at work (she was a cashier

in a truck stop). Seeing the bruises on her face and her cut

lip, her coworkers urged her to call the police. K.D. balked, so

they called the police for her. Two and a half hours later, a

police officer arrived. The prosecutor asked K.D.:

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 "Q. When you spoke to the officer who

responded, did he offer to have Decatur Ambu-

lance Service take you to the hospital?

A. Yeah. He asked me multiple times if

I wanted that.

Q. An[d] did you turn him down each

time?

A. Yes, I did.

Q. Did you go to the hospital?

A. Yes, I did when my mother--

Q. How did you get there?

A. My mother arrived at my job, and she

took me."

An emergency-room physician, James Riley, testified he

treated K.D. on September 6, 2005. He diagnosed bruises on her

face, neck, upper arm, legs, and ankle and a laceration to her

lip. Photographs, admitted into evidence, show the reddish-

purple bruises. Some of the bruises were swollen. X-rays of her

legs revealed no fractures. The doctor found no injury to her

external genitalia. He gave her a shot of pain medication and

outfitted her with crutches. K.D. testified: "[M]y legs were

pretty swollen and bruised. They wanted me to stay off of them

for a while. I couldn't go to work for the rest of the week."

The jury acquitted defendant of counts I through IV

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(aggravated criminal sexual assault) but found him guilty of

counts V and VI (attempt (aggravated criminal sexual assault)),

counts VII and VIII (aggravated domestic battery), and count IX

(domestic battery with a previous domestic-battery conviction).

In the sentencing hearing, the trial court found that

the facts forming the basis of count VII were the same as those

forming the basis of counts V and VI; therefore, the court

vacated the conviction on count VII. The court used the jury's

finding of great bodily harm in its guilty verdict on count VII

to support a finding of "severe bodily injury" on counts V and VI

for purposes of consecutive sentencing. See 730 ILCS 5/5-8-

4(a)(i) (West 2004). The court sentenced defendant to the

following terms of imprisonment: six years for count V, six

years for count VI, three years for count VIII, and one year for

count IX. The court ordered that all of these terms run consecu-

tively. Defendant filed a motion to reconsider the sentence,

which he contended was an abuse of discretion and a misapplica-

tion of section 5-8-4(a)(i) of the Unified Code of Corrections

(730 ILCS 5/5-8-4(a)(i) (West 2004)). The court denied the

motion.

This appeal followed.

II. ANALYSIS

A. The State Proved Defendant Guilty of Two Attempts (Aggravated
Criminal Sexual Assault With the Board), and the Two Convictions
Did Not Violate the One-Act, One-Crime Doctrine

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 Defendant argues the evidence only demonstrated one

attempt of aggravated criminal sexual assault with the board. We

disagree.

This case raises two related issues of whether multiple

convictions can be entered, pursuant to the one-act, one-crime

doctrine, and whether, if defendant committed separate acts, the

State presented sufficient evidence to support a conviction for

those separate acts.

To determine whether multiple convictions may properly

be entered, courts must engage in a two-step analysis. First,

the court must determine whether the defendant's conduct con-

sisted of separate acts or a single physical act. People v.

Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305, 306 (1996). An

"act" is "any overt or outward manifestation which will support a

different offense." People v. King, 66 Ill. 2d 551, 566, 363

N.E.2d 838, 844-45 (1977). While multiple convictions based on

the same physical act are improper (Rodriguez, 169 Ill. 2d at

186, 661 N.E.2d at 306), "'[a] person can be guilty of two

offenses [even] when a common act is part of both offenses'

[citation]" (Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 308).

If a defendant committed more than one act, the trial

court must then determine whether any of the offenses are lesser-

included offenses. Rodriguez, 169 Ill. 2d at 186, 661 N.E.2d at

306. If an offense is a lesser-included offense, multiple

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convictions are improper. Rodriguez, 169 Ill. 2d at 186, 661

N.E.2d at 306-07. If the offense is not a lesser-included

offense, then multiple convictions are permissible. Rodriguez,

169 Ill. 2d at 186, 661 N.E.2d at 306-07. Our review on these

issues is de novo. People v. Milton, 309 Ill. App. 3d 863, 868,

723 N.E.2d 798, 802 (1999).

In this case, the State charged defendant with two

counts of attempt (aggravated criminal sexual assault) involving

the board. Section 8-4(a) of the Criminal Code of 1961 defines

the offense of attempt as follows: "A person commits an attempt

when, with intent to commit a specific offense, he does any act

which constitutes a substantial step toward the commission of

that offense." 720 ILCS 5/8-4(a) (West 2004). Thus, the offense

of attempt consists of two elements: (1) an intent to commit a

specific offense, together with (2) an overt act constituting a

substantial step toward the commission of that offense. People

v. Davis, 43 Ill. App. 3d 603, 614, 357 N.E.2d 96, 104-05 (1976).

Because multiple offenses for a series of related acts may be

found where the State apportions the acts in the charging instru-

ment and at trial, it only follows that the same should hold true

for multiple attempts. See People v. Crespo, 203 Ill. 2d 335,

345, 788 N.E.2d 1117, 1123 (2001) (holding that for the State to

properly obtain multiple convictions for connected acts that

might be treated as a series of offenses, the State must appor-

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tion the acts to the offenses in the charging instrument). Just

as multiple penetrations can support separate offenses of aggra-

vated criminal sexual assault, multiple attempts to commit

aggravated criminal sexual assault can support multiple convic-

tions for attempt. See, e.g., People v. Olivieri, 334 Ill. App.

3d 311, 318, 778 N.E.2d 714, 719 (2002) (affirming conviction for

three counts of aggravated criminal sexual assault where the

charging instrument, evidence presented at trial, and the State's

opening and closing arguments clearly referenced three separate

sexual acts).

In this case, the State apportioned defendant's acts by

charging him with two counts of attempt (aggravated criminal

sexual assault with the board). Count V of the information

alleged as follows:

"[D]efendant *** commit[ted] the offense

of attempt (aggravated criminal sexual as-

sault), in that ***, with the intent to com-

mit the offense of [a]ggravated [c]riminal

[s]exual [a]ssault, *** [he] performed a

substantial step toward the commission of

that offense, in that ***, while holding a

piece of wood, [he] grabbed [K.D.], held her,

and tried to ram the board into the sex organ

of [K.D.]."

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 Count VI alleged as follows:

"[D]efendant *** commit[ted] the offense

of attempt (aggravated criminal sexual as-

sault), in that ***, with the intent to com-

mit the offense of [a]ggravated [c]riminal

[s]exual [a]ssault, *** [he] performed a

substantial step toward the commission of

that offense, in that ***, while holding a

piece of wood, [he] grabbed [K.D.], held her,

and tried to ram the board into the sex organ

of [K.D.], a second time." (Emphasis added.)

The State also treated the acts as separate during

trial. In her closing arguments, the prosecutor described count

V and the evidence supporting that count. The prosecutor refer-

enced defendant using the board to beat K.D., getting her on the

ground, telling her to open her legs, and attempting to ram the

board inside her. The prosecutor stated that count VI referenced

a second attempt to do the same thing. The prosecutor also

stated the "substantial step" toward committing aggravated

criminal sexual assault was defendant's direction to K.D. to open

her legs and the attempt to use the board.

Consistent with the State's theory, the trial court

instructed the jury on two different offenses evidenced by two

different acts. The court instructed the jury via a definitional

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instruction as follows:

"A person commits the offense of attempt

when he, with the intent to commit the of-

fense of aggravated criminal sexual assault,

does any act which constitutes a substantial

step toward the commission of the offense of

aggravated criminal sexual assault.

The offense attempted need not have been

committed." (Emphasis added.)

See Illinois Pattern Jury Instructions, Criminal, No. 6.05 (4th

ed. 2000) (hereinafter IPI Criminal 4th). The court also in-

structed the jury via an issues instruction that the State had to

prove the following:

"First Proposition: That the defendant

performed an act which constituted a substan-

tial step toward the commission of the of-

fense of aggravated criminal sexual assault;

Second Proposition: That the defendant

did so with the intent to commit the offense

of aggravated criminal sexual assault.

If you find from your consideration of

all the evidence that each one of these prop-

ositions has been proved beyond a reasonable

doubt, you should find the defendant guilty.

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 If you find from your consideration of

all the evidence that any one of these propo-

sitions has not been proved beyond a reason-

able doubt, you should find the defendant not

guilty." (Emphasis added.)

See IPI Criminal 4th No. 6.07. The verdict forms distinguished

between the two counts by referring to one as "first with piece

of wood" and the other as "second with piece of wood." Clearly,

the State apportioned the acts to the separate offenses. Because

one offense is not a lesser-included offense of the other,

multiple convictions in this case do not violate the one-act,

one-crime doctrine.

Having found, in this case, that a series of related

acts can support separate attempt offenses, we next address

whether the State presented sufficient evidence that defendant

twice attempted to commit aggravated criminal sexual assault on

K.D. by use of the board. Where a defendant challenges the

sufficiency of the evidence, the test is whether, after viewing

the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of

the crime beyond a reasonable doubt. People v. Ward, 215 Ill. 2d

317, 322, 830 N.E.2d 556, 559 (2005). It is not the function of

the appellate court to retry the defendant. People v. Slinkard,

362 Ill. App. 3d 855, 857, 841 N.E.2d 1, 3 (2005). This court

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must be mindful that it was the jury who saw and heard the

witnesses. People v. Evans, 369 Ill. App. 3d 366, 379, 859

N.E.2d 642, 652 (2006).

In this case, the State presented sufficient evidence

that defendant twice attempted to commit criminal sexual assault.

Intent can rarely be proved by direct evidence because it is a

state of mind. See People v. Williams, 165 Ill. 2d 51, 64, 649

N.E.2d 397, 403 (1995). Instead, intent may be inferred from

surrounding circumstances and thus may be proved by circumstan-

tial evidence. Williams, 165 Ill. 2d at 64, 649 N.E.2d at 403.

In this case, K.D. testified "[h]e's telling me to open

up my legs, and he's obviously trying to hurt me." K.D.'s use of

the present progressive or present continuous voice ("telling")

denotes multiple statements and that defendant told K.D. more

than once to open her legs, as does the use of the term "trying"

denote multiple attempts to get the board inside K.D.'s vagina.

K.D. also testified defendant struck her multiple times both

outside and inside both legs, including her thighs, calves, and

ankles. The multiple directions by defendant for K.D. to open up

her legs and the multiple attempts to open K.D.'s legs so as to

get the board inside K.D.'s vagina constitute sufficient evidence

from which a rational trier of fact could find that defendant

committed two offense of attempt (aggravated criminal sexual

assault). Further, although defendant was not convicted of the

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four aggravated criminal sexual assault charges involving the

knife sharpener, that evidence of multiple attempts may be

considered by the jury as evidence of defendant's intent to

attempt to rape K.D. multiple times.

Consequently, the jury's verdict was not so unreason-

able as to raise reasonable doubt as to defendant's guilt on

count VI.

B. Ordering All the Sentences To Run Consecutively

In reliance on section 5-8-4(a)(i) of the Unified Code

of Corrections (730 ILCS 5/5-8-4(a)(i) (West 2004)), the trial

court made the terms of imprisonment consecutive rather than

concurrent. That section provides as follows:

"(a) When multiple sentences of impris-

onment are imposed on a defendant at the same

time, *** the sentences shall run concur-

rently or consecutively as determined by the

court. *** The court shall impose consecu-

tive sentences if:

(i) one of the offenses for

which [the] defendant was convicted

was first degree murder or a Class

X felony or Class 1 felony and the

defendant inflicted severe bodily

injury[.]" 730 ILCS 5/5-8-4(a)(i)

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 (West 2004).

In People v. Whitney, 188 Ill. 2d 91, 98-99, 720 N.E.2d 225, 229

(1999), the supreme court limited section 5-8-4(a)(i) to those

situations in which "the defendant has been convicted of either a

Class X or Class 1 felony and where he had inflicted severe

bodily injury during the commission of that felony." (Emphasis

added.)

In the sentencing hearing in the present case, the

trial court stated: "As to [c]ounts V and VI, I am going to

refer back to the jury's finding on [c]ount VII, although I

vacated [the conviction on that count;] [in returning a guilty

verdict on count VII,] the jury has found great bodily harm.

So[,] on [c]ount[] V and [c]ount VI, I will find that [s]ection

[5-8-4(a)(i)] does apply." For two reasons, defendant argues the

court erred. First, to qualify for consecutive sentences under

section 5-8-4(a)(i), defendant had to inflict "severe bodily

harm" while committing a triggering offense, i.e., first degree

murder or a Class X or Class 1 felony. See Whitney, 188 Ill. 2d

at 98-99, 720 N.E.2d at 229. Count VII, aggravated domestic

battery, was a Class 2 felony and, therefore, not a triggering

offense. The only triggering offenses of which the jury found

defendant guilty were counts V and VI, charging him with attempt

(aggravated criminal sexual assault), a Class 1 felony.

One would not necessarily have to understand the trial

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court as saying that count VII was a triggering offense. Alter-

natively, even if one did understand the court as so saying, that

error would not be essential to the court's rationale. Essen-

tially, the court reasoned as follows. To find defendant guilty

of count VII, the jury had to find that he inflicted "great

bodily harm" upon K.D. by striking her in the legs with the

board. The question before the court, in the sentencing hearing,

was whether defendant inflicted "severe bodily injury" upon K.D.

while committing counts V and VI, i.e., while attempting to

commit aggravated criminal sexual assault with the board. The

difference between "great bodily harm" and "severe bodily injury"

is merely semantic; no meaningful distinction can be made between

"great" and "severe" or between "harm" and "injury." For pur-

poses of section 5-8-4(a)(i), the court decided to defer to the

jury's finding that the bruises defendant inflicted upon K.D.'s

legs, ankle, and upper arm by hitting her with the two- by four-

inch board were, collectively, a "great bodily harm" or a "severe

bodily injury." This logic makes sense to us.

According to defendant, the second reason why the trial

court erred is that he did not, in fact, inflict severe bodily

injury upon K.D. when committing the acts alleged in counts V and

VI. As defendant understands K.D.'s testimony, he first hit her

multiple times with the board and then ordered her to open her

legs. Thus, defendant argues, "the acts that constituted [c]ount

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VII [(the beating with the board)] were completed before [he]

undertook the actions that constituted [c]ount V [(grabbing K.D.

and trying to ram the board into her vagina)]." The chronology

is not so clear to us from our reading of K.D.'s testimony. She

testified: "I'm laying [sic] on the ground. He's telling me to

open up my legs, and he's obviously trying to hurt me." She

could have meant he was still trying to hurt her by striking her

with the board. Moreover, even if defendant desisted from

hitting her with the board before telling her to open her legs,

hitting her with the board was one of the substantial steps he

took in attempting to commit aggravated criminal sexual assault

with the board. A photograph shows a livid, straight-edged

bruise on the inside of her calf; one could infer he was trying

to beat her legs apart so as to expose her vagina. Counts V and

VI do not allege that hitting her with the board was one of the

substantial steps he took, but, as we held in People v. Mullinax,

"the allegations of the information, with respect to the precise

manner in which the defendant took a substantial step toward[]

the commission of the crime, [are] surplusage" (emphasis omitted)

(People v. Mullinax, 67 Ill. App. 3d 936, 941, 384 N.E.2d 1372,

1376 (1979)).

Defendant also argues that K.D.'s injuries were not

serious enough to qualify as "severe bodily injury" within the

meaning of section 5-8-4(a)(i). He quotes People v. Williams,

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335 Ill. App. 3d 596, 600-01, 781 N.E.2d 574, 577-78 (2002), in

which the First District compiled cases to illustrate the differ-

ence between bodily injury and severe bodily injury for purposes

of section 5-8-4(a)(i):

"Cases finding the existence of severe

bodily injury include: People v. Johnson,

149 Ill. 2d 118, 594 N.E.2d 253 (1992) (vic-

tim shot in the shoulder, in the hospital the

next day); People v. Kelley, 331 Ill. App. 3d

253, 770 N.E.2d 1130 (2002) (victim shot

twice in the right arm, hospitalized for

three days); People v. Austin, 328 Ill. App.

3d 798, 767 N.E.2d 433 (2002) (victim shot in

the back and grazed on the side of the head

near his left ear, injuries that required

overnight hospitalization); People v. Amaya,

321 Ill. App. 3d 923, 748 N.E.2d 1251 (2001)

(one victim shot in the stomach, the other in

the back; both required surgery and a lengthy

hospital stay, the bullet remaining in one

victim at the time of trial); People v.

Primm, 319 Ill. App. 3d 411, 745 N.E.2d 13

(2000) (victim shot in the back of his left

thigh, taken to the hospital); People v.

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Strader, 278 Ill. App. 3d 876, 663 N.E.2d 511

(1996) (victim struck by three bullets from

defendant's rifle, one of them removed surgi-

cally); People v. Townes, 94 Ill. App. 3d

850, 855, 419 N.E.2d 604[, 607] (1981) (vic-

tim's face was '"beaten up,"' eye almost

swollen closed, X rays ordered by doctors to

investigate possible bone damage).

Cases finding a failure to prove severe

bodily injury include: People v. Jones, 323

Ill. App. 3d 451, 752 N.E.2d 511 (2001) (bul-

let grazed victim's right cheek bone, receiv-

ing a band-aid from a doctor but no other

medical attention); People v. Rice, 321 Ill.

App. 3d 475, 747 N.E.2d 1035 (2001) (one

bullet struck victim in the hand, another in

the hip, taken to hospital where he remained

for two days); People v. Murray, 312 Ill.

App. 3d 685, 728 N.E.2d 512 (2000) (victim

suffered gunshot wound to the right foot with

an open fracture to the big toe, treated and

released within [2 1/2] hours after the

shooting); People v. Durham, 312 Ill. App. 3d

413, 419, 727 N.E.2d 623[,627] (2000) (vic-

- 23 -
 tim's gunshot wound described as a mark,

'"like a small nick or cut"'); People v.

Ruiz, 312 Ill. App. 3d 49, 726 N.E.2d 704

(2000) (victim police officer suffered gun-

shot wound to knee, wound barely visible,

went to a meeting before seeking medical

treatment); In re T.G., 285 Ill. App. 3d

838, 674 N.E.2d 919 (1996) (not enough for

'great bodily harm' under the aggravated

battery statute where victim suffered three

stab wounds to the chest, felt only the first

stab, had three bloody wounds)." Williams,

335 Ill. App. 3d at 600-01, 781 N.E.2d at

577-78.

The problem with this comparative approach is that our

standard of review is deferential. See Townes, 94 Ill. App. 3d

at 855, 419 N.E.2d at 607 ("find[ing] no reason to disturb the

trial court's discretion" regarding the issue of whether severe

bruising of the face and neck, inflicted during the commission of

a Class X felony, was a severe bodily injury for purposes of

section 5-8-4(a) (Ill. Rev. Stat. 1979, ch. 38, par.

1005-8-4(a)). Just because the appellate court found no abuse of

discretion in the finding that a particular injury was not

severe, it does not follow that the opposite finding would have

- 24 -
been an abuse of discretion either. Both findings could have

been rationally defensible. The injuries to K.D.'s legs were not

trivial. From the looks of them in the photographs, they were

extremely painful. The doctor saw the need to take X-rays. He

also gave her crutches and told her to stay off her feet for the

rest of the week (four days). We will defer to the trial court's

finding that the bruising of K.D.'s legs, ankle, and upper arm

was a "severe bodily injury" within the meaning of section 5-8-

4(a)(i). The sentence on counts V and VI shall be consecutive,

as the court ordered.

The State concedes that the terms of imprisonment on

counts VIII and IX should be concurrent. We agree with that

concession. We are aware of no statutory authority for making

those terms consecutive. In People v. Curry, 178 Ill. 2d 509,

539, 687 N.E.2d 877, 892 (1997), the supreme court held:

"[S]ection 5-8-4(a) must be construed so that

any consecutive sentences imposed for trig-

gering offenses be served prior to, and inde-

pendent of, any sentences imposed for

nontriggering offenses. Sentences for multi-

ple nontriggering offenses may be served

concurrently to one another after any consec-

utive sentences for triggering offenses have

been discharged."

- 25 -
Accordingly, defendant shall serve his six-year term of imprison-

ment on count V first, then his six-year term of imprisonment on

count VI, and then he shall serve his two concurrent terms on

counts VIII and IX.

III. CONCLUSION

For the foregoing reasons, we remand this case with

directions to amend the sentencing order so as to provide that

defendant shall serve his consecutive term of imprisonment on

count V first, his consecutive term of imprisonment on count VI

second, and thereafter serve his concurrent terms of imprison-

ment on counts VIII and IX. Otherwise, we affirm the trial

court's judgment as modified and remand with directions. Because

the State has in part successfully defended a portion of the

criminal judgment, we grant the State its statutory assessment of

$50 against defendant as costs of this appeal. See People v.

Smith, 133 Ill. App. 3d 613, 620, 479 N.E.2d 328, 333 (1985),

citing People v. Nicholls, 71 Ill. 2d 166, 179, 374 N.E.2d 194,

199 (1978).

Affirmed as modified; cause remanded with directions.

STEIGMANN, J., concurs.

APPLETON, P.J., specially concurring in part and

dissenting in part.

- 26 -
 PRESIDING JUSTICE APPLETON, specially concurring in

part and dissenting in part:

I agree with the majority that the sentences on counts

VIII and IX should run concurrently. I respectfully dissent,

however, from the majority's conclusion that the State proved

count VI, a second offense of attempt (aggravated criminal sexual

assault).

Defendant does not invoke the one-act, one-crime

doctrine in his brief. He does not argue that the State "carved

[more than one offense] from the same physical act." King, 66

Ill. 2d at 566, 363 N.E.2d at 844. Nor does he argue that "with

regard to multiple acts," he was "convicted of more than one

offense, some of which [were], by definition, lesser[-]included

offenses." King, 66 Ill. 2d at 566, 363 N.E.2d at 844. He

merely argues the State failed to prove him guilty of a second

offense of attempt (as opposed to only one offense of attempt).

The majority says: "Just as multiple penetrations can

support separate offenses of aggravated criminal sexual assault,

multiple attempts to commit aggravated criminal sexual assault

can support multiple convictions for attempt." Slip op. at 12.

I agree that multiple attempts can support multiple convictions

for attempt. But that truism begs the question of whether by

striking K.D. repeatedly with the board and commanding her to

spread her legs, defendant did indeed commit more than one

- 27 -
offense of attempt, as that crime is defined in section 8-4(a) of

the Criminal Code [Code] (720 ILCS 5/8-4(a) (West 2004)).

Attempt consists of two elements: (1) an intent to

commit a specific offense, together with (2) an overt act consti-

tuting a substantial step toward the commission of the offense.

720 ILCS 5/8-4(a) (West 2004); Davis, 43 Ill. App. 3d at 614, 357

N.E.2d at 104-05. The majority reasons: "The multiple direc-

tions by defendant for K.D. to open up her legs and the multiple

attempts to open K.D.'s legs so as to get the board inside K.D.'s

vagina constitute sufficient evidence from which a rational trier

of fact could find that defendant committed two offenses of

attempt (aggravated criminal sexual assault)." Slip op. at 15.

The way the majority loosely uses the word "attempt" invites

confusion. At times, the majority uses the word to signify the

offense of attempt, and at other times, it seems to use the word

in its ordinary linguistic sense, to signify an act defendant

took in his endeavor to commit aggravated criminal sexual as-

sault. With the meaning of the term oscillating back and forth

in this manner, the offense of attempt blurs into one of its

elements, an overt act. I disagree with making the offense

coextensive with one its elements, such that every overt act

equals a separate attempt. For instance, in the sentence quoted

in this paragraph, I disagree with the equation of defendant's

"multiple directions" to K.D. with "multiple attempts" (under-

- 28 -
standing "attempt" as a statutorily defined offense).

Clearly, when defendant hit K.D. in the thighs, calves,

and ankles with the board and commanded her to spread her legs,

he did so with the intent of committing aggravated criminal

sexual assault--or a trier of fact would be abundantly justified

in so inferring. Thus, the element of intent was proved.

Defendant continued to have that same intent while committing a

series of overt acts (the second element): striking her again

and again with the board and demanding that she expose her

privates, evidently for penetration by the board. All of these

acts were motivated by one intent. Surely, no one could plausi-

bly suggest that in the brief intervals between blows, defendant

ceased having the intent to commit aggravated criminal sexual

assault and then quickly formed the intent again in time to

deliver the next blow. He maintained that intent all along while

wielding the board.

Here, then, is the question: If a defendant performs

one substantial step and, a moment later, another substantial

step, all the while having the same criminal intent, is each

substantial step a separate offense of attempt? To this ques-

tion, the majority really does not give an answer supported by

relevant authorities; it merely answers "yes." As far as I can

determine, no other court in Illinois has so interpreted the

attempt statute (720 ILCS 5/8-4 (West 2004)) during the 45 years

- 29 -
it has been in existence. Rather, Illinois courts have repeat-

edly held that a single offense of attempt can encompass multiple

acts. People v. Woods, 24 Ill. 2d 154, 158, 180 N.E.2d 475, 478

(1962) ("an attempt does exist where a person, with intent to

commit a specific offense, performs acts which constitute sub-

stantial steps toward the commission of that offense" (emphasis

added)); People v. Paluch, 78 Ill. App. 2d 356, 359, 222 N.E.2d

508, 510 (1966) ("The crux of the determination of whether the

acts are sufficient to constitute an attempt really is whether,

when given the specific intent to commit an offense, the acts

taken in furtherance thereof are such that there is a dangerous

proximity to success in carrying out the intent" (emphases

added)); People v. Stevenson, 198 Ill. App. 3d 376, 383, 555

N.E.2d 1074, 1078 (1990) ("Attempt requires an intent to commit a

specific offense and an act or acts constituting a substantial

step toward the commission of the offense" (emphasis added)).

To my knowledge, only one case has held that each

substantial step is a separate offense of attempt. That case

comes from Massachusetts--and, ironically, even it undercuts the

majority's position. In Commonwealth v. Dykens, No. 2005-393

(001-017), slip op. at ___ (September 7, 2005), 19 Mass. L. Rep.

730 (Mass. Super. Ct. 2005) (2005 WL 2220033 (Mass. Super.), *1;

2005 Mass. Super. LEXIS 413, *1) (hereinafter Dykens), a grand

jury indicted Kenneth Dykens on three charges of attempted

- 30 -
breaking and entering. According to the testimony in the grand-

jury hearing, on February 10, 2005, at 2:30 a.m., Dykens tried to

break into John and Jacqui Cram's house by (1) removing the

screen from a window, (2) propping a ladder against the house,

and (3) throwing a rock through a sliding glass door. Dykens,

slip op. at ___ (2005 WL 2220033 (Mass. Super.), *1; 2005 Mass.

Super. LEXIS 413, *3). For each of those three substantial

steps, the grand jury indicted Dykens for a separate offense of

attempt. Dykens, slip op. at ___ (2005 WL 2220033 (Mass.

Super.), *1; 2005 Mass. Super. LEXIS 413, *3). Dykens moved to

dismiss two of the three counts, along with the "corresponding

habitual[-]offender charges," arguing that the three acts

"constitute[d] only one continuing attempt to break [in]to the

Cram[s'] house." Dykens, slip op. at ___ (2005 WL 2220033 (Mass.

Super.), *1; 2005 Mass. Super. LEXIS 413, *3). The superior

court denied his motion, reasoning as follows:

"'Where a single statute is involved and

the issue is whether two or more discrete

offenses were proved under that statute

rather than a single continuing offense, the

question becomes whether the [l]egislature

intended to authorize more than one convic-

tion.' Commonwealth v. Decicco, 44 Mass.

App. Ct. 111, 112[, 688 N.E.2d 1010] (1998)

- 31 -
(internal citations omitted); Commonwealth v.

Levia, 385 Mass. 345, 347-51[, 431 N.E.2d

928] (1982). 'Ambiguity concerning the ambit

of criminal statutes should be resolved in

favor of lenity.' Commonwealth v. Donovan,

395 Mass. 20, 29[, 478 N.E.2d 727] (1985).

In this case, [section 6 of chapter 274

of the] General Laws *** is clear. It pro-

hibits the 'attempt to commit a crime by

doing any act toward its commission that

fails in its perpetration[.]' [Mass. Gen.

Laws ch. 274, §6.] If the legislature in-

tended for a single attempt charge to cover

all overt acts directed toward the commission

of a single crime, it would have used the

words 'any act or acts,' rather than 'any

act.' 'It is a fundamental principle of

statutory construction that "statutory lan-

guage should be given effect consistent with

its plain meaning and in light of the aim of

the [l]egislature unless to do so would

achieve an illogical result."' Commonwealth

v. Hatch, 438 Mass. 618, 632[, 783 N.E.2d

393] (2003), citing Sullivan v. Brookline,

- 32 -
 435 Mass. 353, 360[, 758 N.E.2d 110] (2001).

Consequently, Indictments 003, 004, 005, and

006 must stand." Dykens, slip op. at ___

(2005 WL 2220033 (Mass. Super.), *2; 2005

Mass. Super. LEXIS 413, *3-4).

Like the Massachusetts statute, our attempt statute

uses the term "any act": "[a] person commits an attempt when,

with intent to commit a specific offense, he does any act which

constitutes a substantial step toward the commission of that

offense." (Emphasis added.) 720 ILCS 5/8-4(a) (West 2004).

Illinois, however, also has a Statute on Statutes (5 ILCS 70/0.01

through 83 (West 2004)), section 1 of which provides: "In the

construction of statutes, this Act shall be observed, unless such

construction would be inconsistent with the manifest intent of

the General Assembly or repugnant to the context of the statute."

5 ILCS 70/1 (West 2004). Section 1.03 provides: "Words import-

ing the singular number may extend and be applied to several

persons or things, and words importing the plural number may

include the singular." 5 ILCS 70/1.03 (West 2004). By operation

of sections 1 and 1.03 of the Statute on Statutes, "any act," in

the Illinois attempt statute (720 ILCS 5/8-4(a) (West 2004)),

means--to quote the Massachusetts court--"'any act or acts.'"

From this alternatively singular or plural meaning, we should

infer that "the legislature intended for a single attempt charge

- 33 -
to cover all overt acts directed toward the commission of a

single crime" (Dykens, slip op. at ___ (2005 WL 2220033 (Mass.

Super.), *2; 2005 Mass. Super. LEXIS 413, *4). At the very

least, the construction of "any act" as "any act or acts" creates

an ambiguity in the attempt statute, which we should resolve in

favor of lenity. See People v. Davis, 199 Ill. 2d 130, 140, 766

N.E.2d 641, 647 (2002); Dykens, slip op. at ___ (2005 WL 2220033

(Mass. Super.), *2; 2005 Mass. Super. LEXIS 413, *4).

Two other two cases tend to deepen my reservations

about the new-attempt-for-each-overt-act theory. In Missouri v.

Cox, 752 S.W.2d 855, 857 (Mo. App. 1988), the "defendant 'repre-

sented' Mary Blair in proceedings to obtain social security

benefits." In the form appointing him as her representative, he

waived his right to a fee. Cox, 752 S.W.2d at 857. After she

won her social security claim, he threatened to have her benefits

terminated unless she compensated him for his services as her

representative. Cox, 752 S.W.2d at 857. He made this threat to

her on several different occasions, for which a jury convicted

him of multiple counts of attempt to steal $150 or more by

coercion (Mo. Rev. Stat. §564.011 (1986)). He challenged five of

these convictions on the ground of double jeopardy, arguing that

"his five threats constituted a single act of attempted stealing

and the individual threats were, at best, corroborative of his

single intent to commit the crime of stealing. To [the] defen-

- 34 -
dant, the intent and act were simply a continuing intent and

continuing act." Cox, 752 S.W.2d at 859. The Court of Appeals

of Missouri rejected his double-jeopardy challenge. The court

reasoned as follows:

"By this argument, [the] defendant would

lead us into the quagmire of metaphysics.

Did [the] defendant have one continuing in-

tent, verbally manifested on separate days[,]

or did he form a new intent manifested by

each threat on each day[?] To avoid meta-

physics, we resolve this kind of issue by

determining whether there is an identifiable

physical termination of the crime charged.

[Citations.] We look to the time and place

of commission of the conduct in question.

Here [the] defendant's utterances took place

on five different occasions. Each occasion

was separated by at least one day. This

physical separation as a matter of common

sense implies a newly formed intent to commit

the crime and a new step toward its commis-

sion rather than a single continuous intent

and act. The word 'attempt' means to try.

Here, on separate days, [the] defendant sim-

- 35 -
 ply followed the old adage: 'If, at first,

you don't succeed, try, try again.'" Cox,

752 S.W.2d at 859.

In the present case, by contrast, defendant committed the "sub-

stantial steps" (hitting K.D. with a board and commanding her to

spread her legs) at the same time, in the same place, and in the

same course of conduct. There was no "identifiable physical

termination" forming an interlude or dividing gap between sepa-

rate offenses of attempt.

In United States v. Resendiz-Ponce, 549 U.S. ____,

____, 166 L. Ed. 2d 591, 595, 127 S. Ct. 782, 785 (2007), a jury

convicted Juan Resendiz-Ponce, a Mexican citizen, of illegally

attempting to reenter the United States (8 U.S.C. §1326(a)

(2000)). Because the indictment failed to allege "'any specific

overt act that [was] a substantial step' toward the completion of

the unlawful reentry," the Court of Appeals set aside the indict-

ment as fatally flawed. Resendiz-Ponce, 549 U.S. at ____, 166 L.

Ed. 2d at 596, 127 S. Ct. at 786, quoting United States v.

Resendiz-Ponce, 425 F.3d 729, 733 (9th Cir. 2005), rev'd, 549

U.S. ____, 166 L. Ed. 2d 591, 127 S. Ct. 782 (2007). The Supreme

Court reversed the court of appeals. According to the Supreme

Court, by alleging simply that Resendiz-Ponce attempted to

reenter the United States, the indictment implicitly alleged the

necessary overt act, for "attempt" implied an act, not merely

- 36 -
intent. Resendiz-Ponce, 549 U.S. at ____, 166 L. Ed. 2d at 597,

127 S. Ct. at 787.

Resendiz-Ponce maintained that the indictment would

have been sufficient only if it had alleged any of three overt

acts he performed when attempting to reenter the United States:

that he walked into an inspection area, that he presented a

misleading identification card, or that he lied to the inspector.

Resendiz-Ponce, 549 U.S. at ____, 166 L. Ed. 2d at 598, 127 S.

Ct. at 788. The Supreme Court responded:

"Individually and cumulatively, those acts

tend to prove the charged attempt--but none

was essential to the finding of guilt in this

case. All three acts were rather part of a

single course of conduct culminating in the

charged 'attempt.' As Justice Holmes ex-

plained in Swift & Co. v. United States, 196

U.S. 375, 396, [49 L. Ed. 518, 25 S. Ct. 276]

(1905), '[t]he unity of the plan embraces all

the parts.'" Resendiz-Ponce, 549 U.S. at

____, 166 L. Ed. 2d at 598-99, 127 S. Ct. at

788.

Then, in a footnote, the Supreme Court added:

"Likewise, it would be unrealistic to

suggest that [the] respondent actually com-

- 37 -
 mitted three separate attempt offenses in-

volving three different overt acts. Indeed,

if each overt act were treated as a separate

element, an attempt involving multiple overt

acts might conceivably qualify for several

separate offenses, thus perversely enhancing,

rather than avoiding, the risk of successive

prosecution for the same wrong." Resendiz-

Ponce, 549 U.S. at ____ n.5, 166 L. Ed. 2d at

599 n.5, 127 S. Ct. at 788 n.5.

In the present case, it would be unrealistic to suggest

that defendant committed a separate offense of attempt every time

he commanded K.D. to spread her legs and every time he hit her

with the board. If the State had charged him with aggravated

assault in counts V and VI, each blow of the board would be a

separate offense. Instead, the State charged him with attempt in

those counts--an inchoate offense, a very different offense from

assault. The policy behind the offense of attempt is to punish

the dangerous proximity to the substantive offense (Paluch, 78

Ill. App. 2d at 359, 222 N.E.2d at 510), not, specifically, the

substantial steps (which, absent the criminal intent, could be

innocuous in themselves). Once the defendant takes a substantial

step, he has crossed the threshold of dangerous proximity and

becomes criminally liable. Treating a subsequent substantial

- 38 -
step as a new attempt would be tantamount to prosecuting him

again for coming within dangerous proximity to commission of the

same substantive offense (to which he already was in dangerous

proximity, with resulting criminal liability). Subdividing an

attempt into numerous miniattempts, one for each overt act,

perversely enhances the risk of successive prosecution for the

same wrong. Depending on the number of overt acts, a defendant

could end up being punished more severely for attempting to

commit a substantive offense than if he had actually committed

the substantive offense. It is doubtful the legislature intended

such an absurdity. I would reverse the conviction on count VI on

the ground of insufficiency of evidence.

- 39 -