author: PRESIDING JUSTICE MANNING

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ALFORD JOHNSON, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—0107
    Opinion filed September 9, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Peter Tokatlian, Assistant Public Defender, of counsel), for appellant.
    Cecil A. Partee, State’s Attorney, of Chicago (Guy L. Miller IV, Assistant State’s Attorney, of counsel), for the People.
   PRESIDING JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial, defendant Alford Johnson was found guilty of attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4(a), 9 — 1(a)) and sentenced to an extended-term sentence of 55 years’ imprisonment. On appeal, defendant contends that this court should reverse and remand his conviction and raises the following issues: (1) whether the trial court’s denial of defendant’s tendered instruction on aggravated battery constitutes reversible error; (2) whether remarks made by the prosecutor during the rebuttal closing argument were so inflammatory and prejudicial as to deny defendant’s right to a fair and impartial trial; and (3) whether the trial court improperly allowed introduction of other crimes evidence.

We affirm.

Defendant originally was charged by indictment with unlawful use of a weapon by a felon, two counts of aggravated battery, armed violence and attempted murder. Prior to trial, the State decided not to prosecute any of the counts except the attempted murder count.

Faye Gibson testified that on February 8, 1987, between 10 p.m. and 10:30 p.m. in the vicinity of 64th and Sangamon she and her sister Sherry were walking down the street following a trip to the grocery store when she heard someone running behind her. Each of the sisters was carrying a bag of groceries, and as they stepped aside to allow the person to pass, the man said “Bitch, this is a stickup,” and stabbed Faye in the back with a knife. Faye fell to the ground and tried to block her face as she fought the assailant when he attempted to stab her in the face with the butcher knife. When Faye and Sherry began “hollering” for help, the assailant fled through the gangway. Although Faye was unable to identify the assailant’s face, later that evening after receiving medical attention at the hospital and four stitches for the wound to her back, she identified defendant at a police lineup from the clothing he was wearing, to wit: ski jacket, boots and pants. Faye also made an in-court identification of defendant.

Sherry Gibson testified similarly and stated that she saw defendant stab her sister in the back with a butcher knife. Sherry testified that at the time of the incident defendant wore beige boots, jeans and a blue jacket with fur on the hood. Later that evening, Sherry identified defendant as her assailant in a police lineup and identified him, the items of clothing and the knife used in the attack in open court.

Over defense objections, the State introduced evidence of another incident which occurred immediately prior to the attack on Faye Gibson. At trial, Lauren Adams testified that shortly before 10 p.m. on the evening in question, while she and Cynthia Ruff were walking in the vicinity of 64th and Peoria, they heard someone run toward them from behind and moved aside to let the person pass. The man, whom Lauren identified later that night while he sat in a police car and in open-court as the defendant, came to a halt between the two women, grabbed Cynthia by the face and said something that Lauren was unable to hear. During this time, Lauren observed that defendant “had on a blue coat with a fur hood and a plaid scarf pulled over his face. He had on some blue jeans and some light-colored boots, beige or something.” Lauren also noticed that defendant held a butcher knife in his hand. When Cynthia was able to free herself, she began to run west and defendant chased her about a half-block, then stopped, turned around and came toward Lauren. As he chased Lauren around a car, defendant repeated three times that he “was going to kill her.” As Lauren ran toward Cynthia with defendant in pursuit, they saw a little boy with a dog. Lauren stated that at this time defendant’s “scarf fell down off his face and [Lauren] noticed he had a large scar on his face.” Defendant then stopped chasing Lauren and “ran in the parking lot of that church.”

Cynthia testified similarly and related that after the incident, the women ran to a friend’s house and called the police, who arrived very quickly. Lauren and Cynthia gave the police a detailed description of the assailant, and within 5 or 10 minutes, the police returned and asked them to identify a man seated in the back of the squad car. Both women identified the defendant as their assailant that evening and in court. They also identified the knife and his clothing.

Officer Halloran testified that after arriving at the scene at 10:20 p.m. and speaking to Lauren and Cynthia, he toured the area and within minutes observed defendant as he walked down the street near 63rd and Morgan, a block away from the women. He saw defendant throw a large butcher knife on the ground before attempting to flee. Officer Halloran apprehended defendant and the knife, which was later inventoried and sent to the crime lab with other items belonging to defendant. The officer then placed defendant into the unmarked squad car and drove him to Cynthia and Lauren, both of whom identified him as their assailant. Defendant was then transported to the police station and placed in a lineup where Sherry Gibson identified him as her sister’s assailant. Officer Halloran also testified that the attack on the Gibson sisters took place near 63rd and Racine and the incident which involved Lauren and Cynthia occurred about 15 minutes earlier and “four to six blocks away,” near 64th and Peoria.

A serologist testified that she conducted tests on the blood found on defendant’s clothing and weapons and blood samples from defendant and Faye. Her examination of the knife recovered from defendant revealed only the presence of the type of blood that Faye had, such type being different from that of the defendant; but, her test results on defendant’s clothing were inconclusive. Defendant’s motion for a directed verdict was denied by the trial court.

During the defense, Anthony O’Banner testified that on the evening in question, he was at the defendant’s house with defendant, defendant’s girlfriend Gwen and his friend Dineen watching VCR movies on television. He stated that defendant was in the house between 9:30 p.m. and 10:30 p.m. and left around 10:30 p.m. Anthony recalled that A1 (defendant) had on a blue coat and blue jeans, but did not know where defendant was going when he left the house or whether he had a knife.

Gwendolyn McCollum (Gwen) testified that at the time of the incident defendant lived with her and their children at 1120 West 65th Street. That evening, she was hungry and asked defendant to get her a submarine sandwich from the shop at 63rd and Racine. Defendant said “okay,” and before he left the house, got his jacket and a “kitchen knife.” On cross-examination, Gwen stated that defendant put the knife in his jacket pocket. Gwen identified the boots, jacket, jeans and knife as the items that defendant had on him when he left home and also stated that she did not notice any bloodstains at that time. The defense rested.

Thereafter, the trial court held an instruction conference where defense counsel tendered a jury instruction, based upon Illinois Pattern Jury Instructions Nos. 11.07 and 11.09 on aggravated battery, which provides:

“A person commits the offense of aggravated battery when, in committing a battery, uses a deadly weapon [or] intentionally or knowingly causes great bodily harm to the person harmed.”

(See Illinois Pattern Jury Instructions, Criminal, No. 11.09 (2d ed. 1981).) Following argument by both counsel, the trial court rejected the instruction. The parties then proceeded to closing argument, where the prosecutor called defendant several names and stuck the knife into the podium. When defense counsel objected to this conduct and remarks, the court sustained the objections and admonished the jury to disregard them.

The jury found defendant guilty of attempted murder, and the court denied his motion for a new trial. Following the hearing in mitigation and aggravation, in which the State requested an extended term sentence of 60 years based upon the defendant’s criminal background, the trial court found that defendant had committed an offense which was accompanied by exceptionally brutal and heinous behavior indicative of wanton cruelty and sentenced him to an extended-term sentence of 55 years in the Illinois penitentiary.

Defendant’s first contention on appeal is that the trial court erred in rejecting his tendered jury instruction on aggravated battery because, based upon the evidence, however slight, presented at trial, the jury could have convicted him of the lesser offense of aggravated battery, rather than the greater offense of attempted murder. (People v. Bratcher (1976), 63 Ill. 2d 534, 394 N.E.2d 52.) He asserts that the record here indicates that the less serious offense has a broad foundation in the indictment charging the greater offense. People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413.

It is well established that a defendant may be entitled to have the jury instructed on a less serious charge that is included in the one he is charged with (Beck v. Alabama (1980), 447 U.S. 625, 636-37, 65 L. Ed. 2d 392, 400-02, 100 S. Ct. 2382, 2388-89), and that aggravated battery is a lesser included offense of attempted murder. (People v. Jenkins (1976), 41 Ill. App. 3d 392, 354 N.E.2d 139.) However, conviction for the crime of attempted murder requires a finding that defendant specifically intended to kill the victim, while aggravated battery requires no specific intent. (People v. Hancock (1980), 83 Ill. App. 3d 700, 704, 404 N.E.2d 914.) It is the function of the trier of fact to determine the existence of the requisite intent to kill necessary for a conviction of attempted murder, and that determination will not be disturbed on review unless there exists a reasonable doubt as to defendant’s guilt. (People v. Myers (1980), 83 Ill. App. 3d 1073, 404 N.E.2d 1082, affd in part, rev’d in part on other grounds (1981), 85 Ill. 2d 281, 426 N.E.2d 535.) Moreover, the specific intent to kill, a state of mind, may be shown by circumstances. See People v. Barker (1980), 83 Ill. 2d 319, 415 N.E.2d 404.

In the present case, the State asserts that defendant fails to raise a reasonable doubt argument on appeal and that an instruction on the lesser included offense of aggravated battery was unnecessary since defendant’s alibi witnesses and his theory urged that he was not guilty of any crime whatsoever. People v. Thompson (1976), 35 Ill. App. 3d 773, 342 N.E.2d 445.

We have reviewed the record below and believe that the jury could have concluded from the testimony and exhibits presented at trial that defendant had the requisite intent and did all that was necessary to kill Faye by running up behind the women, stabbing Faye in the back with a large butcher knife and by attempting to stab her again after she fell to the ground. The evidence demonstrates that defendant left his home with a large butcher knife, a flashlight and rope. Following an attack on Lauren and Cynthia, where fortunately no one was harmed, defendant immediately proceeded to attack two more women a few blocks away. Three witnesses positively identified defendant prior to trial and in open court. The victim accurately described the clothing her assailant wore and the weapon he used to stab her during the incident. The arresting officer was given a description of the assailant only minutes after both incidents occurred. He immediately apprehended defendant, who paralleled the description, only a few blocks away. Defendant’s own alibi witnesses testified that he was dressed in the manner described by the State’s witnesses on the night in question. His girlfriend Gwen stated that he took the flashlight and knife with him when he left the house and that she cautioned him not to get into anything. She identified these items in court. The only discrepancy here involves the time defendant allegedly was in the vicinity of the incidents. Anthony recalled that defendant was at home at the time in question because he (Anthony) saw the time on the VCR. Although there was testimony given by defense witnesses that the VCR was picked up recently from someone’s home, there was no evidence that the time or clock on the VCR was accurate, that it had been properly programmed or that it was in working order. Additionally, the same witness who testified as to the time defendant left the house could not recall the address of defendant’s house.

On the other hand, the testimony of the women placed defendant at the incidents between 9:45 p.m. and 10:30 p.m. carrying a butcher knife with a dark handle and a 12-inch blade. Furthermore, the arresting officer testified that he arrived at the scene to investigate the call received from Lauren and Cynthia at 10:20 p.m. and apprehended defendant only minutes later as he walked down the street in the vicinity of the incidents. Thus, any discrepancies in the evidence are a matter of the credibility of the witnesses that is properly within the province of the trier of fact.

Moreover, according to Bratcher (63 Ill. 2d 534, 394 N.E.2d 52), the defendant has to present some evidence of an affirmative defense unless the State’s evidence raises the issue. We do not find that here. The defendant didn’t testify. He stabbed the victim in the back in an unprovoked attack and tried to stab her in the face. Bryant (113 Ill. 2d 497, 499 N.E.2d 413) is distinguishable on its facts. The raison d’etre of a lesser included offense instruction is that it gives a third option to a juror who, believing the defendant was guilty of something, but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense. Accord Beck v. Alabama (1980), 447 U.S. 625, 65 L. Ed. 2d 392, 100 S. Ct. 2382.

Accordingly, we find no error in the trial court’s refusal of the tendered instruction on aggravated battery. Moreover, because the jury, in considering all the facts and circumstances surrounding the offense in determining the question of intent (People v. Cabrera (1987), 116 Ill. 2d 474, 492, 508 N.E.2d 708), found that defendant had the requisite intent to kill, we will not disturb its determination on review. Accord People v. Tyler (1989), 188 Ill. App. 3d 547, 544 N.E.2d 1077.

Defendant next contends that certain actions and remarks made by the prosecutor during closing argument were highly inflammatory and deprived him of a fair trial, to wit: the prosecutor’s action of sticking the knife into the podium and calling the defendant the names of “Scar-face,” “sociopath,” and “slasher.” Additionally, defendant urges that the prosecutor improperly injected his own view that the victim was traumatized for life when he stated: “I think that [the attack] is something that you don’t forget.” Defendant also asserts as error by the State: (1) the prosecutor’s characterization of Racine Avenue “as a high-crime neighborhood because of animals like this [defendant] that run around with butcher knives”; (2) the prosecutor’s characterization of defendant as a one-man crime wave when he remarked: “You [the jury] have a chance to restore Racine Avenue to a low-crime neighborhood because he is building the statistics up there daily with his attacks on women”; and (3) the prosecutor’s comment: “If you [the jury] believe all that garbage that his [defendant’s] witnesses put up here, let him go. I will give him [defendant] his knifes back.”

Initially, the State asserts that defendant has failed to preserve this issue on appeal because he did not object to the impropriety of the closing argument at trial and in a written post-trial motion. (People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) However, our review of the record reflects that the defendant properly objected to the complained-of conduct and comments at trial and alleged as error either the substance of the comments or the general basis for his objection in the written post-trial motion. Thus, we will address this issue on appeal, since objection to the alleged prosecutorial misconduct was brought to the attention of the trial court and appears in the record.

In determining whether defendant has been denied his right to a fair and impartial trial in cases of alleged prosecutorial misconduct, the reviewing court’s focus is whether the trial court has abused its discretion in determining the prejudicial effect, if any, of a remark made during closing argument. (People v. Holloway (1983), 119 Ill. App. 3d 1014, 1021-22, 457 N.E.2d 466.) Unless a clear abuse of discretion is shown, the trial court’s ruling should be upheld. People v. Smothers (1973), 55 Ill. 2d 172, 176, 302 N.E.2d 324.

It is well established that a prosecutor: (1) may comment on the evidence presented at trial and draw any legal inferences therefrom, even if the inferences are unfavorable to defendant (see People v. Marshall (1988), 165 Ill. App. 3d 968, 521 N.E.2d 538); (2) may dwell upon the evil results of the crime and urge a fearless administration of the law (People v. Provo (1951), 409 Ill. 63, 70, 97 N.E.2d 802; see also People v. Horne (1984), 129 Ill. App. 3d 1066, 1072, 473 N.E.2d 465); and (3) may comment on the strength and quality of the evidence presented, even if such comment refers to defendant’s account of what transpired as “garbage.” (See People v. Jennings (1986), 142 Ill. App. 3d 1014, 1022, 492 N.E.2d 600.) Neither may a defendant claim prejudice from comments made by the prosecutor which were invited responses to defendant’s arguments (People v. Richardson, 123 Ill. 2d at 356), where, as here, defendant continually emphasized that defendant had a scar on his face.

Moreover, the mere occurrence of what may constitute improper remarks does not mandate reversal (see People v. Thomas (1990), 137 Ill. 2d 500, 561 N.E.2d 57), especially where defense counsel makes a timely objection, coupled with the trial court’s sustaining of the objection and appropriate admonition to the jury. The rationale underlying this principle is that the error is obviated or rendered harmless when the trial court sustains defendant’s objections and properly admonishes the jury. The court has held that to mandate a reversal, defendant must show that the remarks resulted in substantial prejudice and that they constituted a material factor in the conviction. People v. Bracey (1981), 93 Ill. App. 3d 864, 875, 417 N.E.2d 1029.

Accordingly, in applying the foregoing principles of law to the complained-of prosecutorial conduct and remarks made during the State’s rebuttal closing argument, we conclude that such remarks were either proper and within the bounds as dictated under Illinois law, or if considered to be outside the acceptable boundaries of the law, were harmless error. We further conclude that such remarks were not a material factor in defendant’s conviction in light of the overwhelming evidence of defendant’s guilt and find no error or abuse of discretion which requires reversal.

Defendant’s last contention is that the trial court erred in allowing the State to introduce the testimony of Lauren Adams and Cynthia Ruff that defendant allegedly had attacked them a short time prior to the incident for which he was on trial. Defendant asserts that assuming arguendo the incident was admissible, he was prejudiced unnecessarily where the witnesses were allowed to present excessive details of the incident although their testimony should have been confined to such details as show opportunity for identification.

It is well settled that evidence of crimes other than the one for which the defendant is being tried is not admissible to establish a propensity to commit criminal acts, but is only admissible to prove motive, intent, absence of mistake, or identity. (People v. McDonald (1975), 62 Ill. 2d 448, 343 N.E.2d 489.) Because such evidence is prejudicial, it should not be admitted unless it reasonably can be said that its probative value outweighs its prejudicial effect. (People v. Triplett (1981), 99 Ill. App. 3d 1077, 425 N.E.2d 1236.) And, for such evidence to be admissible to show modus operandi, there must be a showing of similarity between the offenses, such as characteristics uncommon to most offenses of that nature. People v. Tate (1981), 87 Ill. 2d 134, 429 N.E.2d 470.

It is within the sound discretion of the trial judge to determine whether evidence of other crimes is relevant to a material issue and whether the probative value of such evidence outweighs its prejudicial impact. (People v. Fuller (1983), 117 Ill. App. 3d 1026, 454 N.E.2d 334.) The trial court’s determination will not be disturbed on review unless there exists a clear abuse of discretion.

In the present case, the crime committed against Faye and the incident involving Lauren and Cynthia are strikingly similar. In each incident, the women were attacked from behind by a man who ran toward them while displaying a large butcher knife. The incidents occurred at night time, in fact, on the night in question, within 15 minutes and two to three blocks apart. All of the women identified the 12-inch blade knife as the one used by the defendant in the attacks and described the clothing he wore that evening as a dark coat with a fur hood, blue jeans and light-colored boots. Additionally, on the night in question, three of the four women identified defendant as their assailant, either as he sat in the police car or during the lineup at the police station. With respect to the testimony about the details of the incident, our review of the record supports the State’s contention made during the motion in limine to allow evidence of other crimes and the argument on defendant’s motion for a new trial. It is the State’s contention that it was necessary to explain all of the events involving Lauren and Cynthia, which includes their ability and opportunity to observe defendant, where the evidence shows that he wore a scarf across his face for most of the attack.

We find support for the State’s contention in the record. Furthermore, we believe that the other crimes evidence was probative of defendant’s intent to commit murder and identification of the knife used in the attacks. Thus, we believe that any prejudicial effect of the evidence is outweighed by its probative value. Additionally, the prejudicial effect of the other crimes evidence is minimized where, as here, the trial court properly instructed the jury as to the limited purpose of the other crimes evidence.

Accordingly, we find no abuse of discretion on the part of the trial court in allowing the admission of other crimes evidence under the circumstances of this case.

For the foregoing reasons, we affirm defendant’s conviction and sentence for attempted murder.

Affirmed.

BUCKLEY and O’CONNOR, JJ., concur.


source: Caselaw Access Project

author: JUSTICE O’CONNOR

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JIMMIE CHAMBERS, Defendant-Appellant.
    First District (1st Division)
    No. 1—88—3191
    Opinion filed September 9, 1991.
    Rehearing denied September 24, 1991.

      Anne Meyer, of State Appellate Defender’s Office, of Chicago, for appellant.
    John M. O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, Joseph Brent, and David Stabrawa, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Defendant Jimmie Chambers appeals from his convictions for the armed robbery of Velma Lewis and the attempted murder of Therman Wilson, for which he was sentenced to consecutive prison terms of 30 and 25 years, respectively.

The incidents at issue occurred on April 27, 1988. On that day, Velma Lewis visited a currency exchange located near North and Central Avenues in Chicago. At some point, defendant accosted Lewis after she exited the currency exchange, pointed a pistol at her, and demanded her money. Lewis screamed. Defendant knocked Lewis down, kicked her, took her purse off of her shoulder, and ran.

Therman Wilson witnessed the incident and gave chase. Wilson confronted defendant in a building gangway as defendant was rummaging through Lewis’ purse. Defendant reached into his coat pocket, brought out a pistol, and attempted to load a bullet in the chamber by pulling the “slide” back. Pointing the pistol at Wilson, defendant pulled the trigger twice, but the pistol did not fire.

A scuffle then ensued during which Wilson bit defendant’s finger while trying to gain control of the pistol. Defendant fled.

Defendant was arrested the following day and was subsequently charged by indictment with armed robbery and aggravated battery (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 2, 12 — 4) against Lewis and attempted murder (Ill. Rev. Stat. 1987, ch. 38, pars. 8 — 4, 9 — 1) against Wilson.

At the close of the State’s case in chief, the trial judge acquitted defendant of the aggravated battery of Lewis. Eventually, the jury found defendant guilty of the armed robbery of Lewis and the attempted murder of Wilson. In addition, the jury found defendant guilty of uncharged offenses of reckless conduct and aggravated assault (Ill. Rev. Stat. 1987, ch. 38, pars. 12 — 2, 12 — 5) against Wilson. However, at defendant’s sentencing hearing, the trial judge entered judgment against defendant only for the charged offenses of armed robbery and attempted murder.

On appeal, defendant contends the convictions for attempted murder and reckless conduct as to Wilson are legally inconsistent because attempted murder requires the specific intent to commit murder (Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 4, 8 — 4), while reckless conduct requires the lesser mental state of recklessness (Ill. Rev. Stat. 1987, ch. 38, pars. 4 — 6, 12 — 5) but that the evidence failed to prove defendant's acts showed his mental state had varied. (See People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, cert. denied (1985), 474 U.S. 847, 88 L. Ed. 2d 114, 106 S. Ct. 139.) Defendant argues the State should not now be permitted to separate the acts of pointing the pistol at Wilson and twice pulling the trigger from the ensuing struggle in an attempt to reconcile the verdicts. Defendant asserts that, because he could not simultaneously have acted both intentionally and recklessly, the convictions are legally inconsistent, necessitating reversal for a new trial.

We agree.

Although defendant both failed to raise an objection to the inconsistency of the verdicts at trial and failed to include the issue in a written post-trial motion, the matter is reviewable under the plain error doctrine. 134 Ill. 2d R. 615; People v. Randle (1991), 213 Ill. App. 3d 1082, 572 N.E.2d 1207; People v. Scherzer (1989), 179 Ill. App. 3d 624, 534 N.E.2d 1043.

The seminal case regarding inconsistent verdicts based on mutually exclusive mental states is People v. Spears (1986), 112 Ill. 2d 396, 493 N.E.2d 1030. In Spears, the defendant was charged with attempted murder and armed violence in the shooting of his estranged wife. One bullet had struck her, one bullet had missed, and another bullet, aimed at her, had struck a second victim. Instructions were tendered to the jury for the charged offenses of attempted murder and armed violence. At defendant’s request, the jury was also instructed as to the uncharged offense of reckless conduct. Verdict forms were provided for both the charged and uncharged offenses. Defendant was found guilty of all of the offenses. The trial judge, however, entered judgment only for attempted murder and armed violence.

Agreeing with the appellate court, the supreme court affirmed the reversal of the convictions, finding they were legally inconsistent. The court recognized the issue was whether the jury could rationally have found separable acts accompanied by appropriate mental states to reconcile the verdicts. (Spears, 112 Ill. 2d at 405, 493 N.E.2d at 1034.) However, the court also noted that that principle found no application where the State was merely attempting, after the fact, to justify inconsistent verdicts in direct conflict with both its theory of the case and evidence presented in support of that theory. (Spears, 112 Ill. 2d at 405, 493 N.E.2d at 1034.) Specifically, the court noted:

“It would be manifestly unfair to allow the State, with the benefit of hindsight, to be able to create separable acts on appeal, neither alleged nor proved at trial. Such an inquiry does not operate in a vacuum. The manner by which a defendant is charged and the jury is instructed, provides the essential framework for analyzing the consistency of jury verdicts in the troublesome context of multiple shots or victims. We believe that the substance of the allegations charging the defendant, as an unequivocal expression of prosecutorial intent [citation], and what the evidence showed in relation to those charges, are of particular importance in determining whether guilty verdicts could rationally and consistently be based upon separable acts accompanied by the requisite mental states.” Spears, 112 Ill. 2d at 405-06, 493 N.E.2d 1034.

The supreme court observed that the defendant had not been charged in the information based on each shot fired. The State had based each of its charges with respect to offenses against defendant’s estranged wife on the shots that actually struck her. (Spears, 112 Ill. 2d at 406, 493 N.E.2d at 1034.) The court noted that, even assuming defendant’s acts were separable, neither the State nor defense counsel had presented evidence to suggest defendant’s state of mind had varied during the incident. (Spears, 112 Ill. 2d at 406, 493 N.E.2d at 1034.) Thus, applying the principal that different mental states cannot simultaneously coexist, the court determined the verdicts were inconsistent. Spears, 112 Ill. 2d at 406-07, 493 N.E.2d at 1034.

Like the situation in Spears, the jury in the instant case was instructed, at defendant’s request, as to the uncharged offense of reckless conduct in addition to the charged offense of attempted murder. After the jury returned guilty verdicts for the offenses, the trial judge entered judgment only as to attempted murder.

Analyzing the facts here within the framework indicated in Spears, the indictment against defendant for the attempted murder of Wilson alleged simply that defendant attempted to kill Wilson by pointing a pistol at him and pulling the trigger twice. As for evidence presented in view of the indictment, the State established, through Wilson’s testimony, that after Wilson struck defendant with a piece of concrete, defendant brandished the pistol, attempted to load a bullet in the chamber, pointed it at Wilson, and pulled the trigger twice. When the pistol did not fire, Wilson “grabbed the gun, held it aside the ground” and he and defendant “tussled around for a while[.]” Wilson bit defendant’s finger because defendant “wouldn’t turn [the pistol] loose.” Wilson’s testimony did not provide further detail regarding the scuffle with defendant.

In his own testimony, defendant denied having a pistol, but admitted that he scuffled with Wilson after Wilson hit him with the piece of concrete.

The evidence above presents a distinction from Spears to the extent that defendant’s acts here are easily recognized as separate because they are different in kind. Defendant’s pointing the gun and attempting to fire it, if viewed as one act, is fundamentally distinct from his act of struggling with Wilson while holding the gun. The troublesome process of assessing the nature of seemingly identical acts, such as was present in Spears, is seemingly lessened in the instant case. It might thus appear more likely that defendant’s acts could support verdicts for both attempted murder and reckless conduct.

The ability to distinguish and thereby separate the acts, however, does not alone resolve the question of whether verdicts based on those acts can be legally reconciled. The more critical concern is whether the evidence, as presented by either the State or defense counsel, indicates defendant’s state of mind varied during the acts, consistent with the State’s charge and theory of the case.

The testimony here does not permit that conclusion. At most, the above testimony establishes only that a struggle ensued after defendant pointed the pistol and pulled the trigger twice in an unsuccessful attempt to shoot Wilson. Evidence that Wilson engaged defendant in a struggle thereafter cannot, alone, suggest defendant did not then still possess an intent to kill Wilson. The mere fact that Wilson prevented defendant from accomplishing the end he immediately intended, the only act for which the State formally sought to base a conviction, does not support the conclusion that defendant’s mental state varied during the ensuing events. The absence of a basis to infer defendant’s mental state varied suggests an attempt by the State, after the fact, to fashion a means to reconcile the two convictions, a practice criticized in Spears. The verdicts for attempted murder and reckless conduct cannot be reconciled and are, therefore, legally inconsistent, necessitating remand for retrial as to the offenses committed against Wilson. People v. Hoffer (1985), 106 Ill. 2d 186, 478 N.E.2d 335, cert. denied (1985), 474 U.S. 847, 88 L. Ed. 2d 114, 106 S. Ct. 139.

Regarding defendant’s conviction for the offense against Lewis, defendant complains the trial judge improperly failed to instruct the jury as to the lesser included offense of robbery in addition to instructing the jury on the offense of armed robbery. Defendant argues that although he testified he did not commit the robbery, and although the jury apparently resolved that issue against him, the jury could still have credited defendant’s testimony as to the means by which the robbery was committed.

We do not agree.

A trial judge abuses his discretion in refusing to instruct a jury only if the refusal results in the jury not being instructed as to the defendant’s theory of the case, assuming some evidence exists to justify the instruction. (People v. Wolfe (1983), 114 Ill. App. 3d 841, 449 N.E.2d 980.) Here, however, defendant’s theory of the case was that someone other than defendant committed the robbery. In light of that theory, we cannot conclude the refusal to permit defendant to instruct the jury as to the offense of robbery can constitute an abuse of discretion. We therefore find no reason to disturb defendant’s conviction for the armed robbery of Lewis.

Defendant also argues a new trial is warranted because his pro se motion for a new trial, based on ineffective assistance of counsel, was improperly denied without due consideration. To the extent that that argument could justify retrial as to defendant’s conviction for the offense against Lewis, we address that contention.

On September 27, 1988, the parties appeared before the trial judge, Judge Boharic, for consideration of post-trial motions and sentencing. Defendant then filed a handwritten motion for a continuance to permit him to contact witnesses and produce matters for purposes of raising issues in mitigation. Addressing Judge Boharic, defendant then stated he believed he did not receive adequate representation during trial and requested the continuance to research the matter.

The hearing was continued until October 12,1988.

The record indicates that on that date, defendant presented a second pro se motion, seeking a change of venue for sentencing purposes based on prejudice of the trial judge on the grounds that Judge Boharic had sentenced defendant in a previous, unrelated matter in 1985. Judge Boharic promptly transferred the matter for reassignment to have a different judge determine whether he, Judge Boharic, should proceed to consider post-trial matters.

Judge Heyda considered defendant’s motion that afternoon and denied the request for a change of venue, declining to consider the issue of ineffectiveness of trial counsel. Judge Heyda instructed defendant to pursue that matter before Judge Boharic if he so desired.

When the parties again appeared before Judge Boharic shortly thereafter, defendant, addressing the court, stated his assertion of ineffectiveness was based on the way counsel selected the jury and counsel’s failure to raise “strong issues.” There is also allusion in the record to allegations of counsel’s unpreparedness at the time trial proceedings commenced.

Judge Boharic determined defendant’s allegations were without merit and found that the assistant public defender who represented defendant at trial had represented defendant competently. Accordingly, defendant’s motion was denied.

We need not determine here whether defendant’s counsel’s performance comported with the appropriate standards for considering such motions as set forth by the Supreme Court (see Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052), and as recognized in this State, before reaching a conclusion as to whether defendant was actually prejudiced by the representation. (People v. Salazar (1991), 211 Ill. App. 3d 899, 570 N.E.2d 802.) Indeed, we should dispose of the claim on the basis of lack of prejudice if it is easier to do so. People v. Salazar (1991), 211 Ill. App. 3d 899, 570 N.E.2d 802.

The record does not, in the slightest way, indicate that the grounds asserted by defendant supporting his claim of ineffectiveness of counsel could have caused prejudice. In light of the positive identification of defendant by both victims at trial, we do not understand how defendant’s complaints regarding jury selection or the failure to raise other “strong issues” could have resulted in prejudice at all. Further, the record simply does not support an assertion that defendant’s counsel was unprepared at the time trial commenced.

Finally, we consider the appropriateness of the terms of defendant’s incarceration. Although, on appeal, defendant contends his sentences should not have been ordered to run consecutively, our conclusion that defendant is entitled to a retrial as to offenses committed against Wilson obviates reason to consider that argument because the sentence for attempted murder is necessarily vacated. However, to the extent that the offense of attempted murder may have been weighed in sentencing considerations, we find justice would be served in remanding for consideration as to whether the sentence imposed for the armed robbery of Lewis is nevertheless appropriate in light of reversal of the attempted murder conviction and retrial on that issue. See People v. Triplett (1985), 138 Ill. App. 3d 1070, 487 N.E.2d 39.

Reversed in part; affirmed in part; and remanded.

CAMPBELL and BUCKLEY, JJ., concur.

      Defendant raises no issue with respect to any inconsistency involving the conviction for aggravated assault, contending that that conviction was invalid because the jury was not instructed on the requisite mental state.


text:
    EVANGELINE CABALLERO, Plaintiff-Appellee, v. PRENTISS ROYSTON et al., Defendants-Appellants.
    First District (1st Division)
    No. 1—90—0719
    Opinion filed September 9, 1991.

      Jesmer & Harris, of Chicago (William A. Jaeger, of counsel), for appellants.
    Michael C. Goode, of Chicago, for appellee.
   JUSTICE O’CONNOR

delivered the opinion of the court:

Following a jury trial, plaintiff Evangeline Caballero was awarded $53,735.82 against defendants Prentiss Royston and the Yellow Cab Company for personal injuries she suffered when a cab, driven by Royston, struck her automobile.

We affirm.

The incident at issue occurred on December 13, 1981, at approximately 5 p.m. Plaintiff established at trial that, at that time, she was driving northbound on Wolcott Avenue in Chicago. Wolcott is a two-way residential street with a white line dividing northbound and southbound traffic. She made a left-hand turn into an alley on the west side of Wolcott. Finding the alley blocked, she intended to back out of the alley and proceed southbound on Wolcott. Before backing out of the mouth of the alley, she looked first north to the lane for traffic travelling southbound on Wolcott and then to her left, south, for northbound traffic. Her vision was not obstructed by cars parked along the street. Observing no traffic, she backed out of the alley, continuing to look in both directions. At no time did her car protrude into the northbound lane. She made a turn out of the alley, applied the brake, and was shifting to proceed forward when a northbound cab, driven by Royston, struck her automobile, while stopped, on the driver’s side. She did not see the cab until it was approximately 15 feet away from her. At the time of the accident there was no accumulated snow covering the street.

Edgar Vazquez, plaintiff’s husband’s nephew, who was in plaintiff’s car at the time of the accident, corroborated plaintiff’s testimony that the automobile was stopped at the time of the collision and did not protrude into the northbound lane.

Elizabeth Zia witnessed the collision. Through an evidence deposition, Zia established that plaintiff looked to the right, north, when she backed out of the alley, but not to the south. Although Zia stated that the cab did not stray from the northbound lane, Zia also stated at least part of the cab’s front end was on the “wrong” side of the road at the time the cab struck plaintiff’s car. She estimated the speed of the cab at approximately 15 miles per hour, adding that the cab did not slow down as plaintiff continued to back out of the alley.

Prentiss Royston established that as he drove north on Wolcott he was in the middle of the street, but was “mostly to the right.” He first noticed plaintiff’s automobile when his cab was approximately 15 feet away. He estimated his speed to be 15 to 20 miles per hour at the time of the accident.

After considering the evidence, the jury determined defendants 100% negligent.

Defendants’ first contention on appeal concerns the appearance at trial of plaintiff’s treating physician, Dr. Meisels. Prior to opening statements, plaintiff’s counsel presented a motion to continue the trial for one day to take a video evidence deposition of Meisels because scheduling conflicts prevented him from testifying in person. Following consultation, off record, with both counsel, the trial judge asked whether defendants’ counsel had any objection to taking the deposition. Defendants’ counsel did not object, and trial commenced.

Later, in a sidebar diming presentation of plaintiff’s testimony, the trial judge, in the presence of defendants’ counsel, inquired as to whether he, the judge, might attempt to contact Meisels to testify in court. The trial judge caused a telephone call to be placed to Meisels and thereafter advised counsel that Meisels’ nurse had indicated Meisels would be present in court the following afternoon.

Defendants now argue that, in contacting Meisels, the trial judge sacrificed his impartiality and prejudiced defendants.

The record does not support defendants’ argument. In volunteering to contact Meisels, the trial judge was merely attempting to expedite trial proceedings by obviating the need for a video evidence deposition which would necessitate recess of the trial for a day. Moreover, defendants’ counsel was present when the trial judge volunteered to contact Meisels and did not voice the slightest objection to the trial judge’s suggestion to do so. In light of the absence of any such objection, defendants have waived the right to complain of the trial judge contacting Meisels. See Ragen v. Bennigsen (1956), 10 Ill. App. 2d 356, 135 N.E.2d 128.

Defendants also contend the trial judge abused his discretion in denying defendants’ motion for a directed finding based on plaintiff’s alleged negligence in backing her car out of the alley without looking for oncoming traffic or failing to see the cab. Defendants argue that that ruling was improper considering plaintiff’s testimony in light of sections 11 — 906 and 11 — 1402 of the Illinois Vehicle Code (Ill. Rev. Stat. 1981, ch. 95^2, pars. 11 — 906, 11 — 1402). Section 11 — 906 provides that a driver of a vehicle about to enter a highway from an alley shall yield the right of way to approaching vehicles. Section 11— 1402 prohibits drivers of vehicles from backing out into a highway unless such movement could be made with safety.

The evidence simply cannot support defendants’ assertion that the trial judge abused his discretion in not granting a directed finding in defendants’ favor. Plaintiff’s testimony was that she looked both ways as she attempted to back out of the alley and that her car was not in the northbound lane when the northbound cab struck her car. That testimony alone is sufficient to provide a basis for the denial of defendants’ motion. Further, the verdict indicates the jury believed plaintiff’s testimony and discounted evidence to the contrary. Plaintiff’s testimony established compliance with the above code sections.

Defendants next contend the trial judge improperly permitted the jury to be instructed pursuant to Illinois Pattern Jury Instructions, Civil, No. 20.02 (2d ed. 1971), as amended, over defendants’ objection. That instruction directed the jury to find for the plaintiff if it determined the cab was operated at an improper rate of speed. Defendants argue that no witness established that Royston was operating the cab at excessive speed.

The record indicates that after participating in an attempt to resolve language in the instruction which he found unacceptable, defendants’ counsel approved the instruction, as amended. Therefore, defendants may not now challenge the instruction. Additionally, a jury instruction is justified if it is supported by some evidence in the record, and the trial court has discretion to determine which issues have been so raised. (Beiermann v. Edwards (1990), 193 Ill. App. 3d 968, 550 N.E.2d 587, appeal denied (1990), 132 Ill. 2d 543, 555 N.E.2d 374.) The trial judge did not abuse his discretion in the instant case. Royston’s own testimony established that, despite attempts to brake the cab, it collided with plaintiff’s automobile with a significant amount of force, thus supporting the instruction regarding the speed of the cab.

Defendants lastly contend the verdict was against the manifest weight of the evidence.

Plaintiff’s testimony established that, while proceeding only after checking for oncoming traffic, her car was struck by the northbound cab driven by Royston while her car was in the southbound lane as she attempted to back out of the alley. That testimony is sufficient to support the jury’s verdict. (See Trident Industrial Products Corp. v. American National Bank & Trust Co. (1986), 149 Ill. App. 3d 857, 501 N.E.2d 273.) The fact that conflicting evidence, apparently discounted by the jury, may exist in the record provides no reason to disturb the jury’s determination. Sianis v. Kettler (1988), 168 Ill. App. 3d 1071, 523 N.E.2d 157.

Affirmed.

CAMPBELL and BUCKLEY, JJ., concur.


author: JUSTICE GREIMAN

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DENNIS RILEY, Defendant-Appellant.
    First District (3rd Division)
    No. 1—87—0716
    Opinion filed September 11, 1991.

      Randolph N. Stone, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.
    Jack O’Malley, State’s Attorney, of Chicago (Renee Goldfarb, James E. Fitzgerald, and James Brown, Assistant State’s Attorneys, of counsel), for the People.
   JUSTICE GREIMAN

delivered the opinion of the court:

Following a bench trial, defendant, Dennis Riley, was convicted of aggravated criminal sexual assault, criminal sexual assault, and kidnapping. Defendant was sentenced to a single term of nine years’ imprisonment.

On appeal, defendant contends that (1) the convictions for kidnapping were erroneous because the asportation of the victim in connection with intended sexual assault did not constitute kidnapping and the finding of guilty of kidnapping is legally inconsistent with the finding of not guilty of aggravated kidnapping; (2) the evidence was insufficient to establish proof beyond a reasonable doubt for conviction of the offenses of aggravated criminal sexual assault and kidnapping; (3) the aggravated criminal sexual assault convictions should be reduced to criminal sexual assault because the aggravating factors, i.e., kidnapping and being armed with a gun, were implicitly eliminated by other findings of the trial court; (4) the convictions on multiple counts of sexual assault are improper under the one-act-one-crime rule; (5) the absence of closing arguments was reversible error; and (6) the nine-year sentence is excessive.

We vacate the conviction for criminal sexual assault and the convictions for aggravated criminal sexual assault which were predicated on armed robbery and robbery. We affirm the convictions for kidnapping, two convictions for aggravated criminal sexual assault, and the nine-year sentence.

At trial the 15-year-old victim testified that at approximately 11 p.m. (the victim was not wearing a watch) on December 22, 1985, she decided to walk from a bus stop at 63rd Street and Halsted to her home, which was about three or four blocks away. As she was walking, the victim observed defendant approach her from the rear of a restaurant. As she moved into the street and started to run, defendant grabbed her around the neck and threatened her with a gun. Defendant then forced the victim to accompany him from the street through a gangway, down an alley, and to a back porch area about a block away. The victim further testified that defendant took her earmuffs from her coat pocket and asked her for money but she had none.

When they reached the back porch, defendant ordered the victim at gunpoint to remove her coat, boots and pants. After the victim undressed, she told defendant that she was cold. Defendant, while still holding a gun, then ordered the victim to walk across the street in the snow and forced her into a van.

After they were inside the van, defendant made the victim lie down on a small folding bed, removed the rest of her clothes, set down the gun beside him, and placed his penis inside her mouth. After engaging in oral sex, defendant engaged in vaginal intercourse with the victim. The victim testified that she was frightened and asked defendant whether he intended to kill her. Defendant told the victim that he would not kill her as long as she did what he told her to do.

Defendant steadily spoke to her for about two hours. Thereafter she told defendant that she had to go home and she was cold in the unheated van. Defendant replied that she should stay the rest of the night because it was almost daylight and they would move from the van into his house. Defendant retrieved the victim’s clothes which he had left outside the van and the victim dressed.

Defendant, with gun in hand, required that she exit the van and walk to the back of the house next to the van. Defendant then ordered her to stand with her face against a wall while he opened a basement door to the house. The victim did not move because she thought he was watching her to see if she would attempt to leave. Next she heard the back door of the house being opened. Defendant grabbed her and began pulling her inside the house when she heard a noise which sounded as if someone else was descending the stairs. Defendant then pushed her outside the door and told her to wait. She then ran to her home about two blocks away.

When she arrived home, the victim told her mother and older brother that she had been raped. Shortly thereafter the victim and her family reported the incident to the police.

Police Officer Timothy Koren testified that at approximately 5 a.m. on December 23, 1985, he and his partners responded to the call involving the victim. After recounting the events of the evening, the victim directed the police to the van and defendant’s house, where defendant was found and identified. In a search of the house, the police found defendant’s clothing which matched the description given by the victim. The police also searched all areas where the events took place but found neither a gun nor the victim’s earmuffs.

Detective Richard Bedran testified that after arrest, defendant initially denied ever seeing the victim. In a second interview, defendant stated that he had met the victim on 63rd Street at approximately 3 a.m. and she wanted to turn a “trick” for $50. After agreeing to her proposition, defendant and the victim went to the van, she undressed, but due to the cold, they went to his house and he left the victim standing at the back door while he entered through the front door in order to unlock the back door. Defendant stated that once he was inside the house, he decided to leave the victim outside because he did not have $50.

The State also presented, by stipulation between the parties, the results of the victim’s medical examination. The victim had an abrasion on her right cheek. A vaginal smear taken from the victim tested positive for sperm and the underpants worn by the victim also revealed the presence of semen.

Defendant’s case consisted of one stipulation between the parties. The parties agreed that the pelvic examination of the victim revealed no evidence of trauma and that the cervix was closed with no apparent semen in the vaginal vault.

From a 22-count indictment, defendant was convicted of the following 13 offenses: aggravated criminal sexual assault, for oral sodomy and vaginal penetration, predicated on the display of a dangerous weapon (counts I and II), threatening a life by the display of a gun (counts III and IV), robbery (counts V and VI), armed robbery (counts VII and VIII), and kidnapping (counts IX and X); criminal sexual assault (count XI); kidnapping based on asportation (count XVI); and kidnapping based on knowing and secret confinement (count XVII).

Defendant was not convicted of the following nine charges: armed robbery (count XII); robbery (count XIII); aggravated kidnapping based on criminal sexual assault (count XIV) and on robbery (count XV); aggravated criminal sexual abuse, for oral sodomy and vaginal penetration, predicated on the ages of the victim who was under 16 years old and defendant who was 5 years older than the victim (counts XVIII and XIX); armed violence, for oral sodomy and vaginal intercourse (counts XX and XXI); and unlawful restraint (count XXII).

For the reasons which follow, we affirm the convictions for kidnapping (counts XVI and XVII) and two convictions for aggravated criminal sexual assault. We vacate the conviction for criminal sexual assault (count XI) and the convictions for aggravated criminal sexual assault which were predicated on armed robbery and robbery (counts V through VIII). In addition, we find that the nine-year sentence imposed by the trial court was not an abuse of discretion and there is no need for a new sentencing hearing.

We first address defendant’s challenge to his two kidnapping convictions (counts XVI and XVII). Defendant was indicted and convicted under section 10 — 1(a)(1) of kidnapping based on secret confinement and under section 10 — 1(a)(2) of kidnapping based on asportation.

The Criminal Code of 1961 defines “kidnapping” as follows:

“(a) Kidnaping occurs when a person knowingly:
(1) And secretly confines another against his will, or
(2) 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. 1985, ch. 38, pars. 10 — 1(a)(1), (a)(2).

Defendant argues that his kidnapping conviction based on secret confinement, section 10 — 1(a)(1), is legally inconsistent with the trial court’s finding of not guilty of aggravated kidnapping. Defendant submits that the not guilty finding of aggravated kidnapping implies that the trial court did not believe there was a secret confinement. We find defendant’s argument unpersuasive.

“Secret confinement” is a necessary element of kidnapping under section 10 — 1(a)(1). (People v. Siejke (1990), 195 Ill. App. 3d 135, 147, 551 N.E.2d 1361.) Secret confinement may be shown by proof of either the secrecy of confinement or the place of confinement. (People v. Mulcahey (1978), 72 Ill. 2d 282, 285, 381 N.E.2d 254.) In Mulcahey the supreme court established that “secret” denotes concealed, hidden, or not made public. (Mulcahey, 72 Ill. 2d at 285.) Confinement is established where the victim has been clearly enclosed within something, most commonly, a house or a car. (People v. Sykes (1987), 161 Ill. App. 3d 623, 628, 515 N.E.2d 253 (and cases cited therein).) In light of the concealment and enclosure of the victim in defendant’s van, we find that there was sufficient evidence in the present case to establish the element of secret confinement.

Since the trial court expressly found defendant guilty of kidnapping under section 10 — 1(a)(1), it is axiomatic that the trial court found sufficient evidence of a knowing and secret confinement.

A kidnapper is guilty of aggravated kidnapping when he inflicts great bodily harm or commits another felony upon his victim. (Ill. Rev. Stat. 1983, ch. 38, par. 10 — 2(a)(3).) The two aggravated kidnapping charges in the present case were based on the offenses of robbery and simple criminal sexual assault. The trial court made no finding as to the charge of robbery and thus defendant was impliedly acquitted of this predicate offense. People v. Pahl (1970), 124 Ill. App. 2d 177, 260 N.E.2d 405.

Criminal sexual assault merges into aggravated criminal sexual assault because it is a lesser included offense. (People v. Jimenez (1989), 191 Ill. App. 3d 13, 547 N.E.2d 616.) Absent a predicate offense, an enhanced offense like aggravated kidnapping obviously cannot stand.

Defendant next asserts that his conviction under section 10— 1(a)(2) for kidnapping based on asportation should be reversed because the asportation was merely incidental to the criminal sexual assault. We disagree and hold that the asportation in the present case constitutes kidnapping as a separate offense.

To determine whether an asportation or detention rises to the level of kidnapping as a separate offense, Illinois courts have adopted the test which this court established in People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117. The Smith test requires consideration of 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 at 1122.) Whether an asportation is sufficient to constitute a kidnapping depends on the particular facts and circumstances of each case. People v. Casiano (1991), 212 Ill. App. 3d 680, 571 N.E.2d 742.

In Casiano, a case similar to the present case, this district applied the four-factor test delineated in Smith and held that the kidnapping based on asportation was a separate offense and not merely incidental to the aggravated criminal sexual assault. (Casiano, 212 Ill. App. 3d 680, 571 N.E.2d 742.) Like the present defendant, the Casiano defendant, following a bench trial, was convicted of kidnapping based on asportation under section 10 — 1(a)(2) and two counts of aggravated criminal sexual assault based on the kidnapping. The Casiano defendant approached his victim while she was walking from a bus stop between 1 and 2 a.m., stuck a sharp object in her back, grabbed her arm, and forced her to walk with him to his apartment, which was approximately IV2 blocks away. In the apartment the Casiano defendant displayed a knife, ordered his victim to undress, threatened to kill her if she did not follow his orders, sodomized her and raped her. In Casiano this district affirmed the trial court’s findings that the defendant used force to carry the victim from one place to another, i.e., from the street to his apartment, with the intent to confine her secretly against her will and that the criminal sexual assault was aggravated by the kidnapping.

Applying the Smith factors to the present case, we first find that the duration factor is satisfied here where the asportation lasted approximately IV2 blocks as in Casiano. The present victim testified that defendant initially forced her to a back porch area which was about one block from the street and then compelled her to walk across the street to the van. Furthermore, neither the brevity of the asportation nor the limited distance of the movement necessarily precludes a kidnapping conviction. (People v. Thomas (1987), 163 Ill. App. 3d 670, 678, 516 N.E.2d 901.) This court has previously applied the Smith test and determined that the defendant’s conduct rose to the level of kidnapping where the victim was transported only one-half block in a van and then was able to escape through a side panel door (Thomas, 163 Ill. App. 3d 670, 516 N.E.2d 901) and also where the asportation lasted only a few minutes (People v. Pugh (1987), 162 Ill. App. 3d 1030, 516 N.E.2d 396).

Second, the asportation of the present victim occurred prior to, rather than during, the sexual assault as in Casiano and People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091. In Gully the court found that the kidnapping constituted a separate offense based on the Smith test where the victim was robbed, then transported in a car to a different location, and then raped.

Third, the forced movement of a victim from one location to another place is not inherent in the offense of criminal sexual assault. Ill. Rev. Stat. 1985, ch. 38, par. 12 — 13.

Fourth, the asportation created a significant danger to the victim independent of the danger posed by the sexual assault. The danger arises from the movement itself where the victim is grabbed from behind, threatened with a weapon, and forced to walk in this manner. (Casiano, 212 Ill. App. 3d at 688.) In addition, a significant danger arises from the potential of more serious criminal activity due to the privacy of the final location, i.e., the van in the present case and the apartment in Casiano. Similarly, the court in Gulley found that the asportation created a significant danger to the victim independent of that posed by the criminal sexual assault where the victim was taken from a highway intersection to a vacant, dead-end road near a wooded area. The Gulley court reasoned that the likelihood of the victim being discovered if injured was greatly diminished and the likelihood of her being murdered or injured in some other fashion greatly increased. (Gully, 151 Ill. App. 3d at 800; see also Pugh, 162 Ill. App. 3d at 1035 (the court found that the asportation significantly increases the dangerousness and undesirability of the defendant’s behavior by subjecting the victim to further physical abuse and the possibility of even greater harm).) Specifically, a significant and independent danger arises where a victim is forced out of a public area and into the back of a van because as a result of the asportation, a victim’s signal for help is more difficult to detect and the likelihood of a victim being seen by a passerby is greatly decreased. Thomas, 163 Ill. App. 3d at 679.

Based on the facts of this case, an analysis of the Smith factors, and this court’s previous holdings, we find that the kidnapping was properly found to be a separate offense from the criminal sexual assault.

Defendant next contends that insufficient evidence was adduced to prove him guilty beyond a reasonable doubt of aggravated criminal sexual assault and kidnapping. Defendant argues that the victim’s testimony lacked corroboration because no gun and no earmuffs were ever found, and time discrepancies appear in the victim’s account of the events. Defendant also argues that his statement to the police is more reasonable and probable than the testimony presented by the victim. Defendant’s arguments in this regard are without merit.

Contrary to defendant’s contentions, the State is no longer required in sex offense cases to demonstrate that the victim’s testimony be substantially corroborated to prove guilt beyond a reasonable doubt. (People v. Mitchell (1991), 215 Ill. App. 3d 849; People v. Byrd (1990), 206 Ill. App. 3d 996, 1006, 565 N.E.2d 176, 182; People v. James (1990), 200 Ill. App. 3d 380, 394, 558 N.E.2d 732, 742.) Accordingly, the appropriate standard of review 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. (Mitchell, 215 Ill. App. 3d at 861; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.) When presented with a challenge to the sufficiency of the evidence, a reviewing court will not reverse a conviction unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt as to defendant’s guilt. People v. Young (1989), 128 Ill. 2d 1, 51, 538 N.E.2d 461.

Moreover, it is well settled that in a bench trial it is the function of the trial court to determine the credibility of witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Colson (1989), 187 Ill. App. 3d 423, 543 N.E.2d 282.) Conflicting testimony is to be resolved by the trier of fact. People v. Westfield (1990), 207 Ill. App. 3d 772, 566 N.E.2d 392.

In his statement to the police, defendant acknowledged that he was with the victim in the van on the night in question but contended that the victim propositioned him and nothing happened. At trial the victim testified that defendant, armed with a gun, accosted her in the street, threatened her life, forcibly moved her to several locations, compelled her to engage in sexual acts, and held her inside the van for hours. The victim also testified that defendant took her earmuffs from her coat pocket and she was not wearing a watch on that night. In light of the evidence presented and the applicable principles of review, we find that the trial court reasonably could find defendant guilty of aggravated criminal sexual assault and kidnapping.

Defendant argues and the State concedes that counts V through VIII must be vacated because those aggravated criminal sexual assault charges were predicated on the aggravating factors of robbery and armed robbery for which defendant was found not guilty. We agree and accordingly vacate the aggravated criminal sexual assault convictions based on robbery and armed robbery as the predicate offenses, i.e., counts V, VI, VII, and VIII.

Similarly, defendant correctly contends and the State concedes that the conviction for criminal sexual assault, count XI, must be vacated because it merges into the offense of aggravated criminal sexual assault. (Ill. Rev. Stat. 1985, ch. 38, pars. 12 — 13, 12 — 14(a).) Since criminal sexual assault is a lesser included offense of aggravated criminal sexual assault, we vacate the conviction for criminal sexual assault, i.e., count XI. People v. Jimenez (1989), 191 Ill. App. 3d 13, 547 N.E.2d 616.

Defendant also asserts that the convictions for aggravated criminal sexual assault predicated on kidnapping, counts IX and X, should be vacated or reduced to simple criminal sexual assault on the basis of his preceding arguments challenging his kidnapping convictions in counts XVI and XVII. We disagree.

A defendant may properly be convicted of both the aggravated crime and the felony underlying that crime. (Casiano, 212 Ill. App. 3d 680, 571 N.E.2d 742; People v. McDarrah (1988), 175 Ill. App. 3d 284, 529 N.E.2d 808.) In both Casiano and McDarrah, separate convictions for kidnapping and for aggravated criminal sexual assault predicated on the kidnapping were affirmed. Thus, in the present case, defendant can stand convicted of the same offenses. Furthermore, in light of our finding that the kidnapping convictions are supported by the evidence, we find that the aggravated criminal sexual assault convictions based on kidnapping should not be reduced to criminal sexual assault.

Regarding counts I through IV, defendant contends that the convictions for aggravated criminal sexual assault predicated on the display of a dangerous weapon and threatening a life by the display of a gun should be reduced to criminal sexual assault because the aggravating factor, i.e., being armed with a gun, was implicitly eliminated by the trial court’s findings of not guilty of armed robbery and armed violence. Defendant further argues that although the victim testified she was accosted at gunpoint, this detail was never corroborated since the gun was not recovered, and thus, these charges based on the presence of a gun should not be upheld. Again we find defendant’s assumptions flawed and arguments tinpersuasive.

The victim testified that defendant had a gun and he stole her earmuffs. The trial court specifically found defendant guilty of the charges based on the presence of and threat from a gun, i.e., counts I through IV. On the other hand, defendant was found not guilty of robbery (count XIII), armed robbery (count XII), and armed violence (counts XX and XXI). From these facts it can be determined that the trial court could reasonably have believed that defendant had a gun but did not take the earmuffs belonging to the victim. Accordingly, the trial court did not find defendant guilty of the charges based on the taking of property.

Robbery and armed robbery clearly require a finding that property was taken. (Ill. Rev. Stat. 1985, ch. 38, pars. 18 — 1, 18 — 2.) A person commits armed violence when, while armed with a dangerous weapon, he commits any felony. (Ill. Rev. Stat. 1985, ch. 38, par. 33A — 2.) Since both robbery and armed robbery are felonies, they obviously can be the predicate offenses for armed violence. A trial court is not required to specify each fact considered in making its decision. People v. Spencer (1971), 131 Ill. App. 2d 551, 556, 268 N.E.2d 192 (“[a] trial court draws factual conclusions from conflicting testimony but need not specify each fact considered in making its decision.”).

In addition, defendant’s argument that the enhanced charges based on a gun should be reduced because the victim’s testimony was not corroborated by the gun being found is without merit. Substantial corroboration of the victim’s testimony is not required in a sex offense case to prove guilt beyond a reasonable doubt. (Byrd, 206 Ill. App. 3d 996, 565 N.E.2d 176.) The fact that no gun was recovered does not preclude the trial court from such finding where the victim expressly testified that defendant had a gun. In a bench trial, the trial judge determines the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. Colson, 187 Ill. App. 3d 423, 543 N.E.2d 282.

We conclude that the criminal sexual assault charges aggravated by the presence of a gun were not implicitly eliminated by other findings of the trial court and they should not be reduced.

Next defendant submits that under the one-act-one-crime rule established in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, he can be convicted of only two offenses because only two acts of sexual conduct occurred. On the other hand, the State, relying solely on People v. Segara (1988), 126 Ill. 2d 70, 533 N.E.2d 802, maintains that multiple convictions for aggravated criminal sexual assault are proper because each offense constituted separate and distinct acts. We agree with defendant’s contention.

Where a defendant commits more than one criminal act in a single episode or transaction, the State may prosecute for more than one offense unless the charges involve precisely the same physical act. (Segara, 126 Ill. 2d 70, 533 N.E.2d 802; King, 66 Ill. 2d 551, 363 N.E.2d 838.) In promulgating the one-act-one-crime rule, the Illinois Supreme Court reasoned that prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. (King, 66 Ill. 2d at 566.) In King the supreme court upheld the convictions of both rape and burglary because each offense is based on separate acts and requires proof of a different element.

Multiple convictions for aggravated criminal sexual assault based on one act of sexual penetration cannot stand because of the one-act-one-crime rule. In Segara the supreme court held that six of eight aggravated criminal sexual assault convictions were properly vacated where the defendant committed two acts of criminal sexual assault. (Segara, 126 Ill. 2d 70, 533 N.E.2d 802.) Similarly, only one conviction for aggravated criminal sexual assault was upheld where only one act of sexual penetration occurred in People v. Olsen (1987), 161 Ill. App. 3d 945, 514 N.E.2d 233, and in People v. Gutierrez (1987), 156 Ill. App. 3d 555, 509 N.E.2d 787.

The offense of aggravated criminal sexual assault is committed where an accused commits criminal sexual assault and there existed during the commission of the offense an aggravating circumstance, including the use of a deadly weapon; the infliction of bodily harm; the threat or endangerment to the life of the victim; and the commission of the offense during the course of the commission or attempted commission of any other felony. Ill. Rev. Stat. 1985, ch. 38, pars. 12— 14(a)(1), (a)(2), (a)(3), (a)(4).

The factual matrix of the instant case reveals that defendant committed two separate and distinct acts of sexual penetration upon the victim while there existed aggravating factors. Accordingly, defendant was properly convicted of two counts of aggravated criminal sexual assault. The remaining convictions for aggravated criminal sexual assault are vacated. People v. Coleman (1991), 212 Ill. App. 3d 997, 571 N.E.2d 1035.

Defendant next asserts that the absence of closing arguments was reversible error. We disagree.

The right to closing argument can be waived. (Herring v. New York (1975), 422 U.S. 853, 860, 45 L. Ed. 2d 593, 599, 95 S. Ct. 2550, 2554.) If a trial court in a bench trial enters its findings directly after the presentation of evidence, defense counsel has the right to object and be given the opportunity to present a closing argument. (People v. Daniels (1977), 51 Ill. App. 3d 545, 366 N.E.2d 1085 (the court found that no reversible error existed where the trial court entered its findings but then, at the request of defense counsel, permitted closing arguments).) Where no attempt is made to seek closing argument, it cannot be said that a party was denied the opportunity to present a closing argument. Coleman, 212 Ill. App. 3d 997, 571 N.E.2d 1035; People v. Moczarney (1978), 65 Ill. App. 3d 410, 417, 382 N.E.2d 544, 549.

The record reveals that the trial judge began to announce his findings immediately following the close of defendant’s case. However, defendant did not request an opportunity to make a closing argument and did not object to the trial court’s actions. Thus, under the circumstances in this case, we find that the absence of closing argument was not error.

Lastly, defendant contends that the trial court abused its discretion when it imposed a nine-year sentence of imprisonment. Defendant argues that the trial court erroneously gave (1) undue emphasis to the nature and seriousness of the offenses as represented by convictions on 13 separate counts and (2) no consideration to the mitigating factors. Defendant also asserts that remandment for a new sentencing hearing should be granted on the remaining counts when other convictions are vacated. In his reply brief, defendant notes that he has completed the period of incarceration and is currently on mandatory supervised release.

We affirm the sentence imposed.

Absent an abuse of discretion, a trial court’s sentencing decision may not be altered upon review, because the trial judge is in a better position to determine the punishment to be imposed than the courts of review. People v. Martin (1983), 112 Ill. App. 3d 486, 502, 445 N.E.2d 795.

The record reveals that the trial court heard arguments in aggravation and mitigation, and, even though it found defendant guilty of 13 offenses, it imposed only one nine-year sentence. Aggravated criminal sexual assault is a Class X felony. (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 14(c).) The sentencing range prescribed by statute for a Class X felony is 6 to 30 years’ imprisonment. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 — 8—1(a)(3).) In light of the applicable sentencing range provided by statute and the arguments presented in aggravation and mitigation, we find that the trial court’s imposition of a single nine-year sentence was not an abuse of discretion.

Where there is no indication from the record that a vacated conviction had any bearing on the sentence, it is not necessary to remand the cause for resentencing. (People v. Hood (1989), 191 Ill. App. 3d 129, 547 N.E.2d 637; People v. Einstein (1982), 106 Ill. App. 3d 526, 535, 435 N.E.2d 1257; People v. Miles (1981), 96 Ill. App. 3d 721, 422 N.E.2d 5.) Moreover, “where it can be determined from the record that the weight placed on the improperly considered aggravating factor was so insignificant that it did not lead to a greater sentence, remandment is not required.” (People v. Bourke (1983), 96 Ill. 2d 327, 332, 449 N.E.2d 1338 (and cases cited therein).) In Bourke the supreme court affirmed the sentences imposed by the trial court and noted that the sentences were substantially below the maximum sentences permissible for the offenses. (Bourke, 96 Ill. 2d 327, 449 N.E.2d 1338.) Like the sentences imposed and upheld in Bourke, the nine-year sentence imposed on defendant is far below the maximum 30-year term allowed for aggravated criminal sexual assault. Furthermore, remandment for resentencing was found to be unnecessary where, as in the present case, the trial court declined to impose either consecutive sentences or extended-term sentences or the maximum sentence allowed for the offense. Martin, 112 Ill. App. 3d 486, 445 N.E.2d 795.

In light of these sentencing principles, the relevant statutory guidelines, a review of the record, and the convictions upheld in this case, we find that remandment for resentencing is not necessary.

Affirmed in part and vacated in part.

CERDA, RJ., and RIZZI, J., concur.


text:
    GEORGE TRUCCO et al., Plaintiffs-Appellants, v. WALGREEN COMPANY, Defendant and Counterplaintiff-Appellant (Chicago Tribune Company, Defendant and Counterdefendant-Appellee).
    First District (3rd Division)
    Nos. 1—90—0948, 1—90—1050 cons.
    Opinion filed September 11, 1991.

      Robert B. Thompson, of Chicago, for appellants George Trueco and Nor ene Trueco.
    Magiera & Morrissey, P.C., of Chicago (Matthew J. Morrissey, of counsel), for appellant Walgreen Co.
    Querrey & Harrow, Ltd., of Chicago (Michael Resis, of counsel), for appellee.
   JUSTICE GREIMAN

delivered the opinion of the court:

Plaintiffs George Trueco (plaintiff) and Norene Trueco and defendant Walgreens appeal from an order granting summary judgment to defendant Chicago Tribune Company (Tribune) in a negligence action alleging a Tribune driver parked a delivery truck over a portion of Walgreens’ parking lot used as a footpath through snow and ice, thus causing plaintiff to fall on surrounding ice and snow while attempting to walk around the truck.

We affirm the summary judgment.

The issue in this appeal is whether the Tribune agent owed a duty of reasonable care to plaintiff when he parked his delivery truck blocking pedestrian use of a footpath on the defendant Walgreens’ parking lot.

Plaintiff testified that he parked his car in the Walgreens’ parking lot, proceeded on foot to the handicapped parking stalls at the edge of the lot and then walked on an ice-free path between the handicapped parking stalls to reach a sidewalk adjacent to the store. There was an accumulation of snow and ice on either side of the path.

When plaintiff exited the store to return to his car, he found a Tribune delivery truck parked straddling the ice-free path that he had used earlier.

Plaintiff desired to use the direct route to reach his car in the parking lot and attempted to traverse the small mound of snow and ice on a concrete carstop in order to go around the parked truck. He fell on the snow or ice and fractured his hip in the fall.

Plaintiff filed a negligence action against Walgreens and the Tribune contending that Walgreens, as owner of the parking lot, was liable for allowing an unnatural accumulation of snow or ice to exist and the Tribune was liable because its driver parked the delivery truck blocking the pedestrian path restricting ingress and egress to the Walgreens store. Plaintiff argues that but for the Tribune’s action, plaintiff would have used the ice-free path and would not have fallen on the mound of snow. Walgreens filed a counterclaim for contribution against the Tribune, and the trial court entered summary judgment on the initial complaint and on the complaint for contribution.

In any negligence action, it must first be determined as a matter of law whether defendant owed a duty to plaintiff. Such determination is for the court alone. (Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350, 365, 537 N.E.2d 738; Durbin v. St. Louis Slag Products Co. (1990), 206 Ill. App. 3d 340, 354, 564 N.E.2d 242.) Only after the trial court determines the existence of a duty does the trier of fact consider the breach of that duty, injury to the plaintiff by the breach of the duty, proximate cause and damages. Castro v. Chicago Park District (1988), 178 Ill. App. 3d 348, 533 N.E.2d 504.

Because of this analytical progression, arguments tendered here by appellants that refer to proximate cause and breach of duty are premature and would only follow a determination that a duty was owed by defendant to plaintiff in this case. Dunn, 127 Ill. 2d at 364.

Dunn clearly sets forth the order and manner in which a court is to consider duty and proximate cause. In reversing the appellate court, the court commented:

“The appellate court’s error is its failure to analyze separately the elements of duty and proximate cause. To be sure, it is sometimes difficult to separate the two concepts [citation] but we perceive no such difficulty here. In fact, the appellate court did not address the duty element at all; instead, the court focused on causation. *** The analysis is flawed because unless a duty is owed, there is no negligence. And the existence of duty is a question of law for the court to determine.” Dunn, 127 Ill. 2d at 364.

A duty requires a person to conform to a certain standard of conduct for the protection of another against an unreasonable risk of harm. (Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369, 562 N.E.2d 967.) The court must resolve, as an issue of law, whether the defendant and plaintiff stood in such a relationship to one another that the defendant was obligated to conform to a certain standard of conduct for the benefit of the plaintiff. Widlowski, 138 Ill. 2d at 369; Ward v. K mart Corp. (1990), 136 Ill. 2d 132, 140, 554 N.E.2d 223.

Factors that a court considers in determining the existence of a duty are (i) the foreseeability of the injury, (ii) the likelihood of injury, (iii) the magnitude of the burden of guarding against the injury, and (iv) the consequences of placing that burden upon the defendant. Lamkin v. Towner (1990), 138 Ill. 2d 510, 522, 563 N.E.2d 449; Cunis v. Brennan (1974), 56 Ill. 2d 372, 308 N.E.2d 617; Duncavage v. Allen (1986), 147 Ill. App. 3d 88, 497 N.E.2d 433; Nelson v. Commonwealth Edison Co. (1984), 124 Ill. App. 3d 655, 465 N.E.2d 513; Zimmermann v. Netemeyer (1984), 122 Ill. App. 3d 1042, 462 N.E.2d 502.

Initially, Illinois courts placed heavy reliance on the test of foreseeability. (See Rowe v. State Bank (1988), 125 Ill. 2d 203, 531 N.E.2d 1358; Cunis v. Brennan (1974), 56 Ill. 2d 372.) However, foreseeability alone provides an inadequate foundation upon which to base the existence of a legal duty. Widlowski v. Durkee Foods (1990), 138 Ill. 2d 369; Dunn v. Baltimore & Ohio R.R. Co. (1989), 127 Ill. 2d 350; Rowe v. State Bank (1988), 125 Ill. 2d 203; Kirk v. Michael Reese Hospital & Medical Center (1987), 117 Ill. 2d 507, 513 N.E.2d 387.

In Lamkin, neither landlord nor real estate developer, retailer nor manufacturer was held liable for failure to install screens in the minor plaintiff’s apartment that would prevent children from falling out. Certainly, such an occurrence was foreseeable. The court, therefore, relied on the other important factors to be considered in determining the existence of a duty upon which plaintiff’s claim might be based. In the case at bar, even if plaintiff met the test of foreseeability, it is doubtful that he would meet the other tests imposed by Lamkin, Widlowski and Rowe.

Plaintiff and Walgreens argue that there is precedent for finding the Tribune liable for the manner in which the truck was parked (Dory v. Kovatchis (1990), 196 Ill. App. 3d 899, 554 N.E.2d 487; Sutherland v. Guccione (1955), 8 Ill. App. 2d 201, 131 N.E.2d 130) and that the operator of a motor vehicle on private property has a duty to exercise reasonable care. Reuter v. Kocan (1983), 113 Ill. App. 3d 903, 446 N.E.2d 882.

In Sutherland, the court found defendant liable when he parked his car across a public crosswalk and plaintiff was injured crossing by an alternate route she had chosen between cars. In Dory, the court found defendant breached a duty to provide safe, unobstructed passage over a public sidewalk when his parked van blocked the sidewalk, thus forcing plaintiff to walk on defendant’s sloping, ice-covered driveway where she fell.

Plaintiffs argue these cases support their position because in both, plaintiffs were pedestrians seeking alternate routes around illegally parked vehicles and whose route was diverted resulting in injury. They attempt to favorably compare these cases to the one at bar since the Tribune driver acknowledged there was a path and plaintiff was diverted from its use.

The plaintiffs’ analysis neglects to consider that in Sutherland and Dory the defendants had parked their vehicles contrary to the provisions of ordinances enacted to protect pedestrians using the sidewalk or crosswalk. Although the Tribune truck was parked in handicapped parking places in violation of State and local regulations, plaintiff may not rely upon such violation to enhance his cause of action since the application of a statute to one invoking its protection must be determined from a consideration of the ends it was manifestly intended to accomplish. (Sheehan v. Janesville Auto Transport (1981), 102 Ill. App. 3d 507, 430 N.E.2d 131.) Creation of handicapped parking zones was certainly not intended to provide informal footpaths between the parking lot and the Walgreen store. A different rule would obtain had plaintiff been handicapped and thus a member of the class of persons for whose benefit the handicapped parking regulations were enacted. Davis v. Marathon Oil Co. (1976), 64 Ill. 2d 380, 390, 356 N.E.2d 93; N.W. v. Amalgamated Trust & Savings Bank (1990), 196 Ill. App. 3d 1066, 1077, 554 N.E.2d 629.

Having made this observation with respect to statutory construction, we do not rely only on the fact that no ordinance protected the plaintiff or that the injury was on private, rather than public, property. The circumstances in Sutherland or Dory occurring in a private property setting might still impose liability upon the respective defendants since the establishment of paths or walkways for pedestrian travel on private property establishes the same kind of right to unobstructed use of such areas for pedestrian traffic.

Plaintiffs further argue that evidence establishes there was a pedestrian path and that the existence of such a path imposed a duty upon vehicle operators not to create a hazard by blocking the path.

Again we disagree with the plaintiffs’ conclusions. Walgreens provided pedestrians a sidewalk around the handicapped spaces which plaintiff declined to use because he thought it icy and did not wish to wait for cars to pass before he crossed from the sidewalk to the parking lot and then to his parked car.

The plaintiff sought to use a pathway that appeared to have been wrought by pedestrian traffic through ice and snow. It is not clear from the evidence whether the pathway was shovelled or otherwise cleared by the landowner, Walgreens.

The space between the handicapped parking stalls is not a sidewalk; it is not paved as a sidewalk; there are no diagonal stripe markings to indicate it is a crosswalk; there are no signs, markings, temporary horses or other similar indications that would alert the public that the space between the car stops has been designated as a walkway either permanent or temporary.

We have previously noted that the existence of a duty depends on a consideration of the likelihood of injury, the magnitude of the burden to guard against it and the consequences of placing that kind of burden upon the defendant. Widlowski, 138 Ill. 2d at 374-75; Rowe v. State Bank, 125 Ill. 2d at 228.

Pedestrians most often observe a cardinal geometric principle: the shortest distance between two points is a straight line. Hence, they often take shortcuts from the areas provided for pedestrian travel. Here we are faced with a “shortcut” temporarily established in snow and ice in a parking lot. Consider the consequences of placing upon motor vehicle operators the burden of insuring that their cars are not parked over a path carved out of accumulations of snow and ice. Pedestrians frequently walk between parked cars and carstops when traversing a parking lot so that it would be a burden of great magnitude if, when snow is on the ground, every person parking his car owed a duty to all pedestrians who might have crossed the lot where his car is parked.

Plaintiffs suggest that summary judgment is inappropriate since there are still questions of fact to be determined. However, the questions of fact deal with issues of proximate cause rather than duty. We have determined that the Tribune owed no duty to the plaintiff and affirm the trial court’s summary judgment.

Affirmed.

CERDA, P.J., and RIZZI, J., concur.