People v. Cobern

603 N.E.2d 693, 236 Ill. App. 3d 300, 177 Ill. Dec. 623, 1992 Ill. App. LEXIS 1580
CourtAppellate Court of Illinois
DecidedSeptember 30, 1992
Docket1-91-1694
StatusPublished
Cited by12 cases

This text of 603 N.E.2d 693 (People v. Cobern) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Cobern, 603 N.E.2d 693, 236 Ill. App. 3d 300, 177 Ill. Dec. 623, 1992 Ill. App. LEXIS 1580 (Ill. Ct. App. 1992).

Opinion

JUSTICE LINN

delivered the opinion of the court:

Following a bench trial in the circuit court of Cook County, defendant was convicted of armed robbery and aggravated battery (Ill. Rev. Stat. 1989, ch. 38, pars. 18 — 2, 12 — 4(b)(8)), then sentenced to concurrent, respective terms of eight and four years’ imprisonment. On appeal defendant contends that the multiple convictions were improper because they were based on the same physical act.

We affirm the judgment of the trial court.

Background

The record shows that the incident giving rise to the charges in this case occurred in the early morning hours of December 1, 1990, near California Avenue and Point Street in Chicago. At trial, Mauro Bustamante testified that he was returning from work about 4 a.m. that day, and as he walked in that area towards his home, he saw defendant and two other men standing on the sidewalk. He had previously seen defendant in the neighborhood, but he did not know him by name. As Bustamante continued on his way, he observed defendant walk away from the others, and reappear from behind a building which was just beyond him. Defendant was drinking from a beer bottle which he held in his right hand and came up to Bustamante’s side. Defendant hit him in the head with the bottle, which broke and cut Bustamante in the right temple. Bustamante attempted to flee, but defendant followed him as he ran and put his hand on the sports bag Bustamante was carrying. Bustamante had a Walkman on the right side of his leg and the headphones around his neck, and when defendant grabbed hold of the bag, which contained clothing and a paycheck, Bustamante let it go and the Walkman also fell to the ground.

Bustamante ran to his house, about 40 feet away, and once inside, he realized that he was bleeding. He then contacted his cousin, who accompanied him to the police station which was located in the neighborhood. Defendant chased them en route, but Bustamante managed to register his complaint and then toured the neighborhood with two police officers. He saw defendant on the street near the area where the attack took place and pointed him out to the officers.

On cross-examination Bustamante denied that the incident evolved from a gang dispute or that he was a member of any gang. He allowed, however, that his cousin was a member of the Latin Kings. He further stated that no words were spoken during the entire encounter with defendant.

Chicago police officer Richard Rennes testified that he arrested defendant after Bustamante pointed him out on the street. At that time he observed that defendant had a white rag wrapped around his hand, and that the rag had fresh bloodstains on it. At the station he saw that defendant had small, fresh cuts in the web area of his right hand and another cut on the palm of his hand. During cross-examination he stated that the arrest occurred about one-half hour after the offense reportedly occurred, and that he did not recover any beer bottles from the scene nor any of the property allegedly taken from the victim.

Defendant testified that he knew Bustamante from the neighborhood, and asserted that Bustamante “hung out” with his cousins and other gang members in that area. He recalled that he left a bar with two friends about 3:15 that morning and went home. The windows of his home had been broken by gang members two days before that, and when he arrived home on this occasion, he fought with his brother, who pushed him against the glass causing him to cut his hand. After that defendant left his home and walked towards California and Point to call his girl friend. He was arrested in that area, but denied assaulting Bustamante or taking any of his property.

The State called Detective Lawrence Holec in rebuttal. Holec testified that he spoke .with defendant after his arrest and in that conversation defendant denied any involvement in the alleged crime, and attributed the cuts on his hand to a fall in the house after wrestling with his girl friend. Defendant testified in surrebuttal that he did not recall speaking to that particular detective, that he had been drinking for six hours prior to his arrest, and that he had consumed quite a bit of alcohol during that period of time.

The trial court found defendant guilty of both offenses. In announcing its decision, the court stated that the evidence showed that defendant was armed with a beer bottle and smashed it on the victim’s head. The gash sustained by the victim was corroborated by the testimony of the police officer. The court further found that the incident took place on a city street and that defendant grabbed the victim’s property while he was armed and as he was chasing the victim.

Opinion

On appeal, defendant disputes the multiple convictions entered by the court. He maintains that the force used to establish the armed robbery conviction, i.e., striking the victim in the head with a bottle, also caused the bodily injuries referred to in the aggravated battery charge. Thus, he asserts that both offenses were carved from the same physical act and his conviction of aggravated battery must be vacated. The State responds that the evidence established two separate acts and urges this court to uphold the multiple judgments entered by the trial court.

The seminal case concerning the propriety of multiple convictions from a single physical act is People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838. In that case, the supreme court held that multiple convictions and concurrent sentences were proper where defendant committed several acts despite the interrelationship of those acts; and defined “act” in this context as any overt or outward manifestation which would support a different offense. (66 Ill. 2d at 566.) More recently the supreme court reviewed King and its progeny and concluded as follows:

“ ‘[I]f a defendant commits more than one criminal act in an episode or transaction, he may be prosecuted for more than one offense unless the charges involve precisely the same physical act. If the physical acts are distinct, the defendant can be convicted of both, but only concurrent sentences can be imposed. If exactly the same physical act does form the basis for more than one offense, a defendant may still be prosecuted for each offense, but only one conviction and sentence may be imposed.’ [Citation.]” People v. Segara (1988), 126 Ill. 2d 70, 77, 533 N.E.2d 802.

In deciding whether defendant’s conduct in a particular instance constituted separate acts or merely formed distinct parts of a single physical act, reviewing courts have considered the identity of the victim and location, the similarity of the acts and lack of a substantial time interval or intervening act between them, and prosecutorial intent as reflected in the wording of the charging instrument. People v. Baity (1983), 125 Ill. App. 3d 50, 465 N.E.2d 622.

In this case, the record discloses one victim, and action which took place in the same general location within a short period of time.

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Cite This Page — Counsel Stack

Bluebook (online)
603 N.E.2d 693, 236 Ill. App. 3d 300, 177 Ill. Dec. 623, 1992 Ill. App. LEXIS 1580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-cobern-illappct-1992.