People v. Mormon

• Decision Date: 22 October 1982
• Docket Number: No. 55352,55352
• Citation: 92 Ill.2d 268,65 Ill.Dec. 939,442 N.E.2d 250
• Court: Illinois Supreme Court
• Parties: , 65 Ill.Dec. 939 The PEOPLE of the State of Illinois, Appellant, v. Michael MORMON, Appellee.

Page 250

442 N.E.2d 250

92 Ill.2d 268, 65 Ill.Dec. 939

The PEOPLE of the State of Illinois, Appellant, v. Michael MORMON, Appellee.

No. 55352.

Supreme Court of Illinois.

Oct. 22, 1982.

Tyrone C. Fahner, Atty. Gen., and Richard M. Daley, State's Atty., Chicago (Melbourne A. Noel, Jr., Asst. Atty. Gen., and Michael E. Shabat, Georgia A. Buglass, and Joel A. Stein, Asst. State's Attys., Chicago, of counsel), for the People.

Steven Clark and Susan Kaplan, State Appellate Defender's Office, Chicago, for appellee.

GOLDENHERSH, Justice:

In a bench trial in the circuit court of Cook County, defendant, Michael Mormon, was convicted of armed robbery (Ill.Rev.Stat.1979, ch. 38, par. 18-2), rape (Ill.Rev.Stat.1979, ch. 38, par. 11-1), deviate sexual assault (Ill.Rev.Stat.1979, ch. 38, par. 11-3), and armed violence based on the rape (Ill.Rev.Stat.1979, ch. 38, par. 33A-2). Defendant was sentenced to concurrent terms of 20 years for rape, 15 years for armed robbery, 25 years for deviate sexual assault, and 20 years for armed violence. The appellate court held that because the convictions for rape and armed violence arose from the same physical act (People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181) the armed-violence conviction, as the less serious of the two offenses, must be vacated. (97 Ill.App.3d 556, 568, 52 Ill.Dec. 856, 422 N.E.2d 1065.) We allowed the People's petition for leave to appeal. 73 Ill.2d R. 315.

The facts are adequately stated in the opinion of the appellate court and need not be repeated here. At oral argument the People conceded that in People v. Donaldson (1982), 91 Ill.2d 164, 61 Ill.Dec. 780, 435 N.E.2d 477, this court held that convictions for armed violence and the underlying felony cannot stand if both arise out of the same physical act. The People contend, however, that the facts of this case are distinguishable from Donaldson in that defendant here committed two separate acts, one by using force to coerce complainant into having sexual intercourse, and the other by carrying a weapon while committing the offense. Thus, the People conclude, the use of the weapon constituted a separate use of force to perpetrate the rape and defendant may be convicted of both crimes because there were two separate criminal acts.

We find Donaldson indistinguishable. In Donaldson, a weapon was used to cause the great bodily harm on which the charge of aggravated battery was based. Here, a weapon was used to overcome the complainant's will. In both cases the use of the weapon was an element of the "force" involved in the offense. In neither case was the use of a weapon an element of the underlying felony.

The People argue, "By holding that only one conviction may stand, the statute serves no purpose" and defeats the...