People v. Schultz

• Decision Date: 03 July 1979
• Docket Number: No. 78-143,78-143
• Parties: , 29 Ill.Dec. 765 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roy SCHULTZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 322

392 N.E.2d 322

73 Ill.App.3d 379, 29 Ill.Dec. 765

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roy SCHULTZ, Defendant-Appellant.

No. 78-143.

Appellate Court of Illinois, Third District.

July 3, 1979.

Robert Agostinelli, Deputy Defender, Theodore A. Gottfried, State Appellate Defender, and Michael Margolies, 2nd year law student, Georgetown University Law Center, Ottawa, for defendant-appellant.

Ronald C. Dozier, State's Atty., McLean County, Bloomington, John X. Breslin, State's Attys. Appellate Service Commission, Ottawa, for plaintiff-appellee.

BARRY, Justice.

On July 24, 1977, Bruce Wood, his wife Ada, and their two children, Tracy (age 5) and Timothy (age 2), were driving to Metamora, Illinois, when they saw a car driven by the defendant Roy Schultz, an escapee from the Kansas State Penitentiary, run off of the road. The Woods, seeking to render whatever assistance they could to the defendant, pulled over, and Bruce Wood offered to give Schultz a ride. Schultz, however, suddenly drew a gun on Bruce Wood and took control of the Wood's car.

The Woods and Schultz drove for some time, during which Schultz took approximately $100 from Bruce Wood's wallet. Eventually they arrived at the Bloomington Ramada Inn. Schultz obtained a room there, and once inside tied up Bruce Wood. He then made Ada Wood undress and perform fellatio upon him. After forcing her to perform this deviate sexual act, he took Bruce and Timothy Wood into the bathroom. He then made Ada Wood undress Tracy and show her how to perform fellatio upon him. Subsequently, Tracy did perform this act upon Schultz. Afterwards, Schultz made Ada Wood join the two others in the bathroom. Approximately thirty minutes later, Tracy came into the bathroom and stated that the defendant had placed his finger in her vagina. Ada Wood corroborated this when she testified that she did in fact see blood on Tracy. Later, the defendant again forced Ada Wood to perform fellatio upon him. Eventually, the Woods subdued the defendant and called the police.

Schultz was charged by information with seven counts of aggravated kidnapping, two counts of deviate sexual assault, two counts of indecent liberties with a child, and one count of armed robbery. For the sake of clarity, listed below are the various counts the particular crime alleged to have been committed by Schultz and the activity performed in each count, the victim in each count and the section of the Illinois Criminal Code that was allegedly violated:

Count I Aggravated kidnapping child under 13 (Tracy Wood). Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(2).

Count II Aggravated kidnapping child under 13 (Timothy Wood). Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(2).

Count III Aggravated kidnapping armed with a dangerous weapon (Bruce Wood). Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(5).

Count IV Aggravated kidnapping armed with a dangerous weapon (Ada Wood). Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(5).

Count V Aggravated kidnapping armed with a dangerous weapon (Timothy Wood). Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(5).

Count VI Aggravated kidnapping armed with a dangerous weapon (Tracy Wood). Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(5).

Count VII Aggravated kidnapping deviate sexual assault (Ada Wood). Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(3).

Count VIII Deviate sexual assault oral copulation (Ada Wood). Ill.Rev.Stat.1975, ch. 38, par. 11-3(a).

Count IX Deviate sexual assault oral copulation (Tracy Wood). Ill.Rev.Stat.1975, ch. 38, par. 11-3(a).

Count X Indecent liberties with a child oral copulation (Tracy Wood). Ill.Rev.Stat.1975, ch. 38, par. 11-4(a)(2).

Count XI Indecent liberties with a child finger in vagina (Tracy Wood). Ill.Rev.Stat.1975, ch. 38, par. 11-4(a)(3).

Count XII Armed Robbery (Bruce Wood). Ill.Rev.Stat.1975, ch. 38, par. 18-2(a).

The case was transferred out of McLean County on motion of the defendant. After a jury trial in Will County, the defendant was found guilty on all counts and received concurrent sentences of 50-100 years on Counts I-VI; 100-150 years on Counts VII and VIII; 150-200 years on Counts IX-XI; and 20-40 years on Count XII. It is from these convictions that defendant appeals.

The sole issue raised on appeal by the defendant is whether the trial court erred in entering judgment and sentencing defendant on multiple convictions arising out of a single physical act. The State agrees with the defendant that several of the aforementioned counts, specifically Counts I and VI (aggravated kidnapping of Tracy Wood, based upon the fact that she is below the age of 13 (Count I), and also based upon the use of a dangerous weapon (Count VI)); Counts II and V (aggravated kidnapping of Timothy Wood on the same grounds); and Counts IX and X (deviate sexual assault and indecent liberties with a child, both based upon the oral copulation of Tracy Wood with the defendant) are duplicative because they arise out of the exact same physical act of the defendant upon a particular victim. The Illinois Supreme Court held in People v. Lilly (1974), 56 Ill.2d 493, 309 N.E.2d 1, that there can be only one conviction of a crime where multiple counts are founded on a single act of the defendant. (Accord, People v. King (1977), 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 897, 363 N.E.2d 838, 844, Cert. denied (1977), 434 U.S. 894, 98 S.Ct. 273, 54 L.Ed.2d 181, where the court stated that "(p)rejudice results to the defendant only in those instances where more than one offense is carved from the same physical act.") On the basis of Lilly and King, we agree that there can be but one conviction based upon Counts I and VI, II and V, and IX and X. The State, exercising its prosecutorial discretion, seeks to pursue Counts I, II and X, and to cease prosecution of Counts VI, V, and IX. The State's decision leaves us with five aggravated kidnapping convictions, one conviction of deviate sexual assault, two convictions of indecent liberties with a child, and one conviction of armed robbery to consider.

We first concern ourselves with the propriety of defendant's convictions on Counts I-IV, all aggravated kidnapping counts. It is true that all of these counts arose out of the same physical act of the defendant, I. e the abduction of the Woods at gunpoint on the highway. However, there are many Illinois cases in which the defendants were found guilty of multiple crimes when the crimes were committed upon different victims, even though all of the crimes were committed in a single act. (People v. Thomas (1977), 67 Ill.2d 388, 10 Ill.Dec. 515, 367 N.E.2d 1281; People v. Butler (1976), 64 Ill.2d 485, 1 Ill.Dec. 204, 356 N.E.2d 330; People v. Prim (1972), 53 Ill.2d 62, 289 N.E.2d 601, Cert. denied (1973), 412 U.S. 918, 93 S.Ct. 2731, 37 L.Ed.2d 144; People v. Terry (1976), 38 Ill.App.3d 517, 347 N.E.2d 869; People v. Thomas (1976), 43 Ill.App.3d 328, 2 Ill.Dec. 75, 356 N.E.2d 1362). It is clear from these cases that the convictions on Counts I-III, the aggravated kidnappings of Bruce, Timothy, and Tracy Wood, may stand even though committed simultaneously by the same individual defendant because three different victims were involved. As concerns Count IV (aggravated kidnapping of Ada Wood, based upon defendant's use of a dangerous weapon), the same might be said. However, the defendant contends that Count IV and Count VII, the aggravated kidnapping of Ada Wood based upon the subsequent deviate sexual assault, are duplicative and one of these convictions must be vacated on the grounds of 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; People v. Manning (1978), 71 Ill.2d 132, 15 Ill.Dec. 765, 374 N.E.2d 200; and People v. Cox (1972), 53 Ill.2d 101, 291 N.E.2d 1.

In Cox, the defendant performed an act of sexual intercourse and then an act involving oral-genital contact upon an eight-year-old girl, for which he was charged by information with two counts of indecent liberties with a child. The first count charged the defendant with an act of intercourse (Ill.Rev.Stat.1965, ch. 38, par. 11-4(a)(1)), and the second charged the defendant with an act of deviate sexual conduct (Ill.Rev.Stat.1965, ch. 38, par. 11-4(a)(2)). Defendant pleaded guilty to both counts. On appeal from his conviction, the defendant contended that his actions constituted only one offense and therefore could not support two separate convictions. The court, in vacating the second count, agreed with the defendant and held that where two counts are based upon a single transaction involving a single victim, charging two almost simultaneous acts, each of which acts is enumerated in subsections of the same section of the Criminal Code, only one conviction may stand. Several years later, the Illinois Supreme Court again grappled with the one act/one crime theory in King. In King, the court, in rejecting the "independent motivation" test of People v. Stewart (1970), 45 Ill.2d 310, 259 N.E.2d 24, stated that the test to be used in determining the permissibility of multiple convictions and concurrent sentences is as follows: "(W)hen more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." 66 Ill.2d at 566, 6 Ill.Dec. at 898, 363 N.E.2d at 845.

Shortly after King was handed down, this court decided the case of People v. Linkogle (1977), 54 Ill.App.3d 830, 11 Ill.Dec. 467, 368 N.E.2d 1075. In Linkogle, the defendant was convicted on two counts of indecent liberties with a child (Ill.Rev.Stat.1975, ch. 38, par. 11-4(a)(3)), the counts arising from the defendant's lewd fondling of both an eight-year-old girl and himself. Even though each of the counts arose from the same subsection of the same section of the Criminal Code, we held on the basis of King that "each of these charged acts were separate and...