                                     2017 IL App (1st) 151312
                                          No. 1-15-1312
                                   Opinion filed October 17, 2017
                                                                                   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.
          Presiding Justice Neville and Justice Pucinski concurred in the judgment and opinion.

                                             OPINION

¶1        Following simultaneous but severed bench trials, defendant Stevie Smith and

codefendant Jerry Brown were convicted of robbery and aggravated battery of a senior citizen

(Brown is not a party to this appeal). Smith was sentenced to consecutive prison terms of 12

years and 6 years, respectively. On appeal, Smith contends only that his conviction for

aggravated battery of a senior citizen should be vacated because it violates the one-act, one-

crime doctrine where it is based on the same single physical act as his robbery conviction.

¶2        We agree and vacate the aggravated battery of a senior citizen conviction. On this record,

we hold that the one-act, one-crime principle was violated, as the basis for both convictions—
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robbery and aggravated battery of a senior citizen—was Smith’s single physical act of punching

Burtner.

¶3                                        Background

¶4     Smith and Brown were tried on charges of first degree murder, aggravated battery of a

senior citizen, robbery, and aggravated battery. At trial, Deborah Halloran testified that William

Burtner was the commander of the Veterans of Foreign Wars (VFW) post in Midlothian, where

she was employed as the bar manager. At about 9:30 a.m. on November 16, 2009, Burtner and

Halloran prepared money for deposit into four 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. on

November 16, she looked out the window and saw Burtner walking towards the bank carrying

bank deposit bags in his hand. 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 towards 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 in his hand, 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     Tamara Esposito was at the bank when her supervisor yelled “Call 911, I believe

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

outside. Esposito and a security guard went outside and 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     Paramedic Cory Katsibubas treated Burtner at the bank. 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. Katsibubas administered oxygen and transported Burtner to the hospital. The State

presented a stipulation that Burtner told Katsibubas 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 vehicle and came to a stop. They ran from the

black car in opposite directions. Minutes later, police found Brown hiding underneath a vehicle

in a backyard 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. Blood samples taken from the passenger’s side of the black car were

submitted to the Illinois State Police crime laboratory for testing. 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 in a lot of 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 was unable to walk due to his 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 and called 911.

¶ 10   Paramedics arrived. Burtner was unresponsive, not breathing, and had no pulse or blood

pressure. Paramedics performed CPR, administered cardiac medications, and transferred him to

the hospital. There were no signs of life. The State presented the death certificate indicating that

Burtner was 65 years old at death.

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

Burtner suffered from lung cancer, two prior heart attacks, and heart disease and had three

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

old and were consistent with being punched. Dr. Arunkumar determined that the cause of death

was hypertensive cardiovascular disease with, as a significant contributing factor to the heart

attack, the fractured ribs due to an assault. 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 found them not guilty of first degree murder. The trial court, however, found that

defendants “certainly” inflicted great bodily harm on Burtner and, therefore, 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




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

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

¶ 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 only that his conviction for aggravated battery of a senior citizen should

be vacated because it violates the one-act, one-crime doctrine where 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 the one-act, one-crime doctrine was not violated because 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   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

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

supreme court has repeatedly ruled that a one-act, one-crime violation is reviewable under the




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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). Hence, we will consider the issue.

¶ 18   Whether a conviction should be vacated under the one-act, one-crime doctrine is 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 such 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).

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

court must first determine whether Smith’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)).

¶ 20   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. 720 ILCS 5/12-4.6(a) (West 2008).



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¶ 21   The record reveals that the evidence presented at trial demonstrated 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 paramedic Katsibubas 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 only one single physical act.

¶ 22   We note that the State asserts that the taking of the money from Burtner constituted a

separate physical act for the robbery and, thus, the two convictions may stand. The State

primarily relies on this court’s decision in 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, and the woman was knocked to the ground. Id. The

defendant was convicted of both robbery and aggravated battery. Id. at 316. On appeal, this court

found that the two convictions did not violate the one-act, one-crime doctrine, as the defendant

committed two separate physical acts—he took the woman’s purse, and he then pushed her to the

ground. Id. at 322.

¶ 23   We find the facts of this case 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

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

bags nor any evidence that Smith forcefully removed them 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 to this case.

¶ 24   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 therefore violate the one-act, one-crime principle and cannot stand. The aggravated

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

a senior citizen, which was elevated to Class 1.

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

conviction and sentence for robbery.

¶ 26   Affirmed in part and vacated in part.




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