                                   2018 IL App (1st) 151312-B

                                         No. 1-15-1312

                                   Opinion filed June 14, 2018 

                                                                                    Second Division


                                              IN THE

                               APPELLATE COURT OF ILLINOIS

                                         FIRST DISTRICT

______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,                           )   Appeal from the
                                                               )   Circuit Court of
        Plaintiff-Appellee,                                    )   Cook County.
                                                               )
     v. 	                                                      )   No. 10 CR 4124
                                                               )
STEVIE SMITH,                                                  )   Honorable
                                                               )   Michele M. Pitman,
        Defendant-Appellant.                                   )   Judge, presiding.



        JUSTICE HYMAN delivered the judgment of the court, with opinion.
        Justices Neville and Pucinski concurred in the judgment and opinion.

                                             OPINION

¶1      The Illinois Supreme Court entered a supervisory order denying defendant Stevie Smith’s

petition for leave to appeal and directing this court to vacate its initial judgment (People v. Smith,

2017 IL App (1st) 151312). People v. Smith, No. 123082 (Ill. Mar. 21, 2018) (supervisory order).

The supervisory order instructed us to consider the effect of People v. Coats, 2018 IL 121926, on

the issue of whether defendant’s convictions for robbery and aggravated battery of a senior

citizen violate the one-act, one-crime rule. After reconsidering the issue, we again vacate the

aggravated battery of a senior citizen conviction and hold that the convictions violate the one-act,
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one-crime rule, as the basis for both convictions—robbery and aggravated battery of a senior

citizen—was Smith’s single physical act of punching the victim.

¶2                                         Background


¶3     Smith and codefendant Jerry Brown were tried on charges of first degree murder,


aggravated battery of a senior citizen, robbery, and aggravated battery. 


¶4     At trial, Deborah Halloran testified that William Burtner served as the commander of the

Veterans of Foreign Wars (VFW) post in Midlothian, where she worked as bar manager. At

about 9:30 a.m. on November 16, 2009, Burtner and Halloran prepared money for deposit into

accounts the VFW maintained at the local A.J. Smith Bank. Deposits for three accounts were

placed into three bank deposit bags. An additional amount was placed inside a cigar box so

Burtner could open a new account. Burtner left the VFW post with the three deposit bags and the

cigar box and drove to the bank.

¶5     A teller at the A.J. Smith Bank, Connie Weimar, testified that at about 10:15 a.m., she

looked out the window and saw Burtner walking toward the bank carrying bank deposit bags. As

Burtner approached the entrance, he passed behind a wall, and Weimar lost sight of him. Weimar

next saw a man wearing a hooded sweatshirt walking quickly past the front of the bank toward

Burtner. The hood covered the man’s head, and Weimar could not see his face. Nothing was in

the man’s hands. The man disappeared from Weimar’s sight for “a matter of seconds.” When she

next saw him, he was carrying something, had turned around, and was running to the adjacent

Wendy’s parking lot. He got into the front passenger seat of a black car that then took off.

Weimar yelled, “Call 911.” Two bank employees brought Burtner inside the bank and sat him

down in a chair. Later, the man wearing the hooded sweatshirt was determined to be Smith.



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¶6     Bank employee Tamara Esposito heard her supervisor yell, “Call 911, I believe

somebody was just robbed.” Esposito went to the front door and saw Burtner on the ground.

Esposito and a security guard helped Burtner. He asked Esposito to retrieve a cigar box from the

ground, which contained money and checks. Esposito saw a black sports car speeding out of the

Wendy’s parking lot. Esposito and the security guard brought Burtner inside the bank. Burtner

was slightly bent over and holding his left side near his rib cage, had labored breathing, and was

experiencing difficulty speaking. Burtner told Esposito that he was punched in his left side.

¶7     A paramedic treated Burtner at the bank. According to the paramedic, Burtner was

holding his left side in his back rib area. Burtner complained of pain in that area and also pain

when taking deep breaths. The paramedic administered oxygen and transported Burtner to the

hospital. The State presented a stipulation that Burtner told the paramedic that “he was hit from

behind, and he fell.”

¶8     Meanwhile, a high-speed police chase of the black car, driven by codefendant Brown,

had ensued. Smith and Brown crashed into another automobile and came to a stop. They ran in

opposite directions. Minutes later, police found Brown hiding underneath a car and placed him in

custody. During a custodial search, police recovered over a thousand dollars from his right

pocket. The A.J. Smith bank deposit bags and money were found inside the black car. The

Illinois State Police crime laboratory tested blood samples taken from the passenger’s side of the

black car. Results of that testing indicated a DNA match with Smith, and he was arrested on

February 5, 2010.

¶9     Mary Burtner, William’s wife, testified that her husband was treated and released from

the hospital on the day of the robbery. When he returned home, he was suffering pain,



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uncomfortable, and favoring his left side. The next day, he felt worse. The following morning,

November 18, although still in a lot of pain, he went to chemotherapy for his lung cancer. At the

hospital, he couldn’t walk due to the pain and needed a wheelchair. When the couple arrived

home at about 3 p.m., her husband was still holding his left side and was unable to get out of the

car. She assisted him into their home and to bed. He fell asleep. She checked on him, and around

8:30 p.m., she found her husband unresponsive.

¶ 10   Paramedics arrived and performed CPR, administered cardiac medications, and

transferred Burtner to the hospital. There were no signs of life. The State presented the death

certificate indicating that Burtner was 65 years old.

¶ 11   An assistant chief medical examiner, Dr. Ponni Arunkumar, performed an autopsy.

Burtner had lung cancer, two prior heart attacks, and heart disease, and there were three fractured

ribs on the left side of his chest wall. The rib fractures, less than three or four days old, were

consistent with being punched. Dr. Arunkumar determined that the cause of death was

hypertensive cardiovascular disease, with the fractured ribs due to an assault as a significant

contributing factor to a heart attack. In her opinion the cause of death was homicide.

¶ 12   The trial court found that the State failed to prove that Smith and Brown caused Burtner’s

death and so entered a not guilty on the charge of first degree murder. The trial court, however,

found that defendants “certainly” inflicted great bodily harm on Burtner and found both men

guilty of aggravated battery of a senior citizen. The trial court also found defendants guilty of

robbery and aggravated battery. The aggravated battery counts were merged into the aggravated

battery of a senior citizen offense. As Burtner was over the age of 60, the trial court elevated the

robbery offense from a Class 2 to a Class 1 felony.



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¶ 13   The trial court sentenced Smith to 12 years’ imprisonment for robbery and a consecutive

term of 6 years’ imprisonment for aggravated battery of a senior citizen. The court expressly

stated that Smith’s criminal history and the nature and circumstances of the offense required

consecutive sentences to protect the public from further criminal conduct by Smith.

¶ 14                                         Analysis

¶ 15   Smith contends that his conviction for aggravated battery of a senior citizen should be

vacated because it violates the one-act, one-crime rule, as it is based on the same single physical

act as his robbery conviction. Smith argues that the only evidence of a physical act committed

against Burtner was the single punch that resulted in fractured ribs. Smith also argues that the

single punch cannot serve as the basis for both the aggravated battery and the force element for

the robbery.

¶ 16   The State responds that Smith committed two separate acts. The State asserts that the

punch was one act and the taking of the deposit bags was a separate act. The State contends that

the common act of the punch can serve as the basis of both offenses because there was another

separate act for the robbery.

¶ 17   Following remand by our supreme court, the State filed a supplemental brief addressing

Coats. Defendant responded to the State’s argument in his emergency motion for bond pending

appeal, which we will consider as his response. The State replied to that argument in responding

to defendant’s motion for bond. Both parties maintain that their original arguments are supported

by Coats.

¶ 18   As a threshold matter, Smith acknowledges that he forfeited this issue for appeal, as he

failed to object to the multiple convictions at trial and did not raise the issue in his posttrial



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motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The parties agree, however, that a one-act,

one-crime violation is reviewable under the second prong of the plain error doctrine because it

affects the integrity of the judicial process. In re Samantha V., 234 Ill. 2d 359, 378-79 (2009).

¶ 19   Whether a conviction should be vacated under the one-act, one-crime rule presents a

question of law, which we review de novo. People v. Johnson, 237 Ill. 2d 81, 97 (2010). Under

this rule, Smith cannot be convicted of multiple offenses that are based on precisely the same

single physical act, and where he is convicted of two offenses, the conviction for the less serious

offense must be vacated. Id. Our supreme court has defined an “act” as “any overt or outward

manifestation which will support a different offense.” People v. King, 66 Ill. 2d 551, 566 (1977).

¶ 20   In clarifying the one-act, one-crime rule from King, the supreme court explained that a

court must first determine whether a defendant’s conduct consisted of a single physical act or

separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). A defendant can be convicted of

two offenses where a common act is part of both crimes. Id. at 188. But where two offenses

share a common act, there must be another separate act to sustain the two convictions. See id. at

188-89. “ ‘As long as there are multiple acts as defined in King, their interrelationship does not

preclude multiple convictions ***.’ (Emphasis added.)” Id. at 189 (quoting People v. Myers, 85

Ill. 2d 281, 288 (1981)).

¶ 21   The State charged Smith with robbery for taking money from Burtner by the use of force

or by threatening the imminent use of force. 720 ILCS 5/18-1(a) (West 2008). The aggravated

battery of a senior citizen offense alleged that Smith intentionally and knowingly caused great

bodily harm to Burtner, a person 60 years of age or older, by striking him about the body,

causing injuries. Id. § 12-4.6(a).



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¶ 22   The evidence presented at trial demonstrates that Smith committed one single physical

act—a single punch to Burtner’s left side. The only evidence of any act by Smith was Esposito’s

testimony that Burtner told her that he was punched in his left side and the State’s stipulation that

Burtner told a paramedic that “he was hit from behind, and fell.” The single punch was used as

the basis for the aggravated battery conviction and as the element of force for the robbery

conviction. There was no evidence of any other use of force or threat of force by Smith. There

was no evidence of a verbal threat. Indeed, because Burtner was punched from behind, he was

likely unaware that Smith was approaching him. Based on this record, we find that Smith

committed a single physical act.

¶ 23   The State asserts that the taking of the money from Burtner constituted a separate

physical act for the robbery and, thus, the two convictions should stand. The State primarily

relies on People v. Pearson, 331 Ill. App. 3d 312 (2002), which it claims is directly on point. In

Pearson, the defendant grabbed a woman’s purse off her shoulder. Id. at 314. A struggle ensued,

knocking the woman to the ground. Id. The defendant was convicted of both robbery and

aggravated battery. Id. at 316. On appeal, we concluded that the two convictions did not violate

the one-act, one-crime rule, as the defendant committed two separate physical acts: he took the

woman’s purse, and then he pushed her to the ground. Id. at 322.

¶ 24   We find the facts here distinguishable from Pearson. There, the act of grabbing the

woman’s purse off her shoulder was, in and of itself, a taking of property by force. Pearson’s

subsequent act of pushing the woman to the ground was a separate act. Here, however, the

evidence demonstrates that Smith committed only one physical act, the punch. There was no

evidence that Smith used another act of force to take the money from Burtner. There is no

evidence explaining how the taking occurred. There is no evidence of a struggle over the deposit

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bags. There is no evidence that Smith forcefully removed the deposit bags from Burtner’s hand.

It is possible that Burtner dropped the bags after he was punched and fell to the ground, as he

apparently did with the cigar box. Accordingly, Pearson does not apply.

¶ 25   Based on this record, we find that Smith’s convictions for robbery and aggravated battery

of a senior citizen were both based on Smith’s single physical act of punching Burtner. The two

convictions violate the one-act, one-crime rule and cannot stand. The aggravated battery of a

senior citizen offense is a Class 2 felony and, thus, less serious than the robbery of a senior

citizen, which was elevated to Class 1. Accordingly, we vacate Smith’s conviction for

aggravated battery of a senior citizen.

¶ 26   We find that our supreme court’s opinion in Coats does not change our disposition. In

Coats, the defendant was convicted of several offenses, including being an armed habitual

criminal and armed violence. Coats, 2018 IL 121926, ¶ 1. The evidence showed that Coats was

found holding a handgun in one hand and two bags of drugs in the other. Id. ¶¶ 3-4. On appeal,

Coats argued that his convictions for being an armed habitual criminal and armed violence

violated the one-act, one-crime rule because they were both predicated on the same physical act

of possessing the handgun. Id. ¶ 14. The supreme court found that, although the two offenses

shared the common act of possession of the handgun, the armed violence conviction involved a

second separate act: possession of the drugs. Id. ¶ 17. The court further found that since

possession of the handgun was only part of the conduct that formed the basis for the armed

violence conviction, the two offenses were not carved from precisely the same physical act. Id.

Thus, the court concluded, the two acts did not violate the one-act, one-crime rule. Id. ¶ 32.




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¶ 27   In making its ruling, the supreme court rejected Coats’s argument that the King analysis

implicitly required a determination of whether the offenses shared a “crucial” act. Id. ¶ 18. Coats

claimed that if the two offenses shared a common act that formed the “crux” or “essence” of the

crime, multiple convictions could not stand. Id. In rejecting the defendant’s construction of King,

the court stated that it had never applied the one-act, one-crime rule in this manner. Id. ¶¶ 18-19.

¶ 28   Unlike Coats, here, the evidence showed that the defendant committed only one physical

act—Smith’s single punch to Burtner’s left side. No evidence indicates a second separate act or

how the taking of the deposit bags occurred. In addition, we reject the State’s argument, raised in

its supplemental brief, that this court’s analysis “implicitly hints at a ‘crux’ of the crime type of

finding” because the force element was crucial to both offenses. We made no “crux” or

“essence” of the crime finding. Simply stated, no evidence of a separate physical act exists to

support a second conviction.

¶ 29   We vacate the aggravated battery of a senior citizen conviction and affirm Smith’s 


conviction and sentence for robbery of a senior citizen. 


¶ 30   Affirmed in part and vacated in part.





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