People v. Snelling

2021 IL App (1st) 200293-U

• Court: Appellate Court of Illinois
• Decided: November 5, 2021
• Docket: 1-20-0293
• Status: Unpublished

Opinion

2021 IL App (1st) 200293-U

No. 1-20-0293

Order filed November 5, 2021

SIXTH DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

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. 17 CR 11797 ) TITUS SNELLING, ) Honorable ) Neera Walsh, Defendant-Appellant. ) Judge, presiding.

JUSTICE HARRIS delivered the judgment of the court. Presiding Justice Pierce and Justice Mikva concurred in the judgment.

ORDER

¶1 Held: Because the evidence at trial was insufficient to prove beyond a reasonable doubt that defendant was on or about a place of public accommodation when he committed a battery, his conviction for aggravated criminal sexual abuse predicated on aggravated battery must be reduced to criminal sexual abuse. Additionally, sentences on the reduced criminal sexual abuse conviction and defendant’s remaining conviction for aggravated criminal sexual abuse cannot stand and must be vacated pursuant to the one-act, one-crime rule. No. 1-20-0293

¶2 Following a bench trial, defendant Titus Snelling was found guilty of four counts of

aggravated kidnapping, two counts of aggravated criminal sexual abuse, and one count of

aggravated battery. After merging the aggravated kidnapping and aggravated battery counts, the

trial court imposed concurrent prison terms of 10 years for aggravated kidnapping predicated on

criminal sexual abuse (count I), 4 years for aggravated criminal sexual abuse predicated on

kidnapping (count V), and 4 years for aggravated criminal sexual abuse predicated on aggravated

battery (count VI).

¶3 On appeal, defendant first contends that he was not proven guilty beyond a reasonable

doubt of aggravated criminal sexual abuse predicated on aggravated battery (count VI) because

the location of the incident, Jackson Park Hospital, does not qualify as a “public place of

accommodation” under section 12-3.05(c) of the Criminal Code of 2012 (Code) (720 ILCS 5/12-

3.05(c) (West 2016)). He therefore argues that this conviction must be reduced to criminal sexual

abuse and then vacated pursuant to the one-act, one crime rule when it is based upon the same act

as his conviction for aggravated kidnapping predicated on criminal sexual abuse (count I).

Defendant further contends that his conviction for aggravated criminal sexual abuse predicated on

kidnapping (count V) must be vacated pursuant to the one-act, one-crime rule as a lesser-included

offense of aggravated kidnapping predicated on criminal sexual abuse (count I). We affirm in part

and vacate in part.

¶4 Defendant was charged by indictment with four counts of aggravated kidnapping, two

counts of aggravated criminal sexual abuse, and one count of aggravated battery.

¶5 Relevant here, count I for aggravated kidnapping alleged that defendant knowingly and

secretly confined M.B.-F. against her will while committing criminal sexual abuse. 720 ILCS 5/10-

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2(a)(3) (West 2016). Count V for aggravated criminal sexual abuse alleged that defendant

knowingly touched M.B.-F.’s sex organ for sexual arousal or gratification by using or threatening

force during a kidnapping. 720 ILCS 5/11-1.60(a)(6) (West 2016). Count VI for aggravated

criminal sexual abuse alleged that defendant touched M.B.-F.’s sex organ for sexual arousal or

gratification by using or threatening force while committing an aggravated battery. 720 ILCS 5/11-

1.60(a)(6) (West 2016). Count VII for aggravated battery alleged that, while committing a battery,

defendant knowingly made physical contact of an insulting or provoking nature by placing his

mouth on M.B.-F.’s toes while they were inside Jackson Park Hospital, a public place of

accommodation. 720 ILCS 5/12-3.05(c) (West 2016).

¶6 Prior to trial, the State filed a motion to admit proof of other crimes. The motion alleged

that in the instant case, defendant, a nurse technician at Jackson Park Hospital, was assigned to

transport M.B.-F. to her room on February 9, 2017. He pushed her wheelchair to an unused part

of the hospital, touched her vagina over her underwear, removed her socks, and sucked her toes.

Additionally, in October 2016, defendant was assigned to transport A.N. to her room. Defendant

pushed A.N.’s wheelchair into an elevator where he made sexual and flirtatious comments and

kissed her neck. After A.N. told him to stop, defendant responded, “ ‘don’t worry, I know where

you are, I can come back.’ ” The trial court granted the motion, finding the other crimes evidence

was close in time and factually similar to the charged offense, and that its probative value

outweighed potential prejudice.

¶7 M.B.-F. testified that in January 2011 she was diagnosed with a brain tumor. She

underwent gamma knife radiation and was prescribed “a lot of opiates.” When her prescriptions

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ended, she obtained pills from friends and began to use heroin. In February 2017, she decided to

go to the detox center at Jackson Park Hospital.

¶8 M.B.-F. arrived at the emergency room between 7 and 8 p.m. on February 8, 2017, and

was placed in a waiting room. Defendant, whom she identified at trial, brought her a hospital gown

and socks and told her to remove her clothing and don the gown. M.B.-F. complied, but kept her

underwear on. M.B.-F. was “fully sober,” but sick from withdrawal symptoms and asked when

she would go to the detox floor. Defendant entered the waiting area several times, squeezed her

toes, and said she would be going soon. Eventually, defendant pushed M.B.-F. away in a

wheelchair as she held her purse and a pink bag.

¶9 Defendant transported M.B-F. through hallways and elevators for a “very extended period

of time” and wheeled her into a “pitch black” room. After the door closed, M.B.-F. could not see

anything, but heard defendant’s movement and breath and asked him to turn on the light. She then

felt his hand go up her left thigh. She squeezed her legs together and pushed her possessions

forward. Defendant next touched the outside of her panties. M.B.-F. said no, and that she was

married and not interested. Defendant grabbed her ankle “firmly,” “ripped” off her sock, and

sucked and kissed her toes. She asked to go to her room, and said she was feeling sick and would

not say anything. Defendant responded, “are you sure” or “you better not.” He pushed her onto an

elevator where he ran his fingers up and down her neck. When the elevator opened, defendant

pushed her to a nurse’s desk and left. M.B.-F. tried to stand, but fell and “blurt[ed]” what happened.

She spoke to police and later identified defendant in a photographic array. M.B.-F. did not give

defendant permission to remove her sock or touch her.

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¶ 10 The State entered a stipulation to the foundation for a surveillance video for Jackson Park

Hospital and published the video, which is included in the record on appeal. M.B.-F. identified

herself and defendant in the video, which shows defendant pushing M.B.-F. in a wheelchair

through different hallways. M.B.-F. has a large pink bag on her lap.

¶ 11 During cross-examination, M.B.-F. testified that she was prescribed opiates for

approximately three years. M.B.-F. last used heroin the evening before or the morning of February

8, 2017. She found the toe squeezes in the waiting room “endearing,” like defendant was telling

her to “hang on, *** it’s almost your turn.” Once inside the dark room, she could not see defendant

and did not know if anyone else was present. When she asked why defendant did not turn on the

lights, he said it was 3 a.m.

¶ 12 Registered nurse Katherine Raymundo testified that early on February 9, 2017, she was

working with detox patients. M.B.-F., who was nervous and shaking, said that during her transfer

to the unit, she was “molested” when her toes were sucked and legs felt up. Defendant transported

M.B.-F. During cross-examination, Raymundo testified that nervousness and shaking were

symptoms of opiate withdrawal, as were aches and pains, nausea, and memory loss.

¶ 13 A.N. testified that she went to Jackson Park Hospital around October 21, 2016, for alcohol

detox, and defendant pushed her wheelchair to a room. When defendant and A.N. were alone in

an elevator, he massaged her shoulders, neck, and down toward her chest. Defendant then kissed

her neck. She asked him to stop, and defendant responded that he was “just trying to get [her] to

relax.” After exiting the elevator, defendant pushed the wheelchair slowly and continued to

massage her shoulders. After entering a room, defendant said he would return. A.N. asked for his

name, and defendant identified himself as Titus. She then contacted a nurse.

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¶ 14 During cross-examination, A.N. acknowledged being under the influence of alcohol when

she arrived at the hospital, and that during her 20-year history with alcohol, she suffered from

blackouts and memory issues. When defendant said he would return, she took it as a threat and felt

“very uncomfortable.”

¶ 15 Jackson Park Hospital risk manager Mark Parrish testified that on February 9, 2017, he

spoke with M.B.-F. and reviewed surveillance video. The video was published, and Parrish noted

that, after exiting an elevator, defendant pushed M.B.-F. away from the detox unit toward an area

closed to patients. During cross-examination, Parrish testified that defendant’s job was to transport

patients by wheelchair.

¶ 16 The defense moved for a directed finding, arguing, relevant here, that no evidence showed

that Jackson Park Hospital was a place of public accommodation as defined by statute. The court

denied the motion.

¶ 17 After argument, the trial court found defendant guilty of all counts. The trial court rejected

defendant’s argument that Jackson Park Hospital was not a place of public accommodation

because that would mean that only places with “public type funding” qualified. Defendant moved

for a new trial, again arguing that the hospital was not a place of public accommodation. The trial

court denied the motion, finding that hospitals are places of public accommodation although they

are not specifically listed in the statute.

¶ 18 At sentencing, the trial court merged the aggravated kidnapping counts and sentenced

defendant to 10 years on count I. The court also merged the aggravated battery count into the other

counts, and imposed two four-year sentences for aggravated criminal sexual abuse under counts V

and VI. All sentences were concurrent.

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¶ 19 On appeal, defendant first contends that he was not proven guilty beyond a reasonable

doubt of count VI for aggravated criminal sexual abuse predicated on aggravated battery because

Jackson Park Hospital is not a “place of public accommodation.” He further argues that absent this

aggravating factor, the conviction must be reduced to criminal sexual abuse and vacated pursuant

to the one-act, one-crime rule when it rests upon the same physical act as his conviction for

aggravated kidnapping predicated on criminal sexual abuse (count I).

¶ 20 Where a defendant challenges a criminal conviction based on insufficient evidence, a

reviewing court, considering all of the evidence in the light most favorable to the State, must

determine whether any rational trier of fact could have found beyond a reasonable doubt the

essential elements of the crime. People v. Brown, 2013 IL 114196, ¶ 48. In such cases, “a criminal

conviction will be reversed where the evidence is so unreasonable, improbable, or unsatisfactory

as to justify a reasonable doubt of the defendant’s guilt.” Id. However, when the defendant’s

challenge to the sufficiency of the evidence does not attack the credibility of the witnesses, and

instead, questions whether the uncontested facts were sufficient to prove the elements of the crime,

our review is de novo. People v. Smith, 191 Ill. 2d 408, 411 (2000).

¶ 21 In the case at bar, defendant contends the facts are undisputed and therefore requests de

novo review. He does not dispute that he committed a battery at Jackson Park Hospital; rather he

contends that a closed ward located inside Jackson Park Hospital does not qualify as a “public

place of accommodation” under the aggravated battery statute.

¶ 22 Although the State agrees the aggravated battery statute does not define a “place of public

accommodation,” the State argues that the term applies “generically” to places where the public is

invited to enter and partake of services. The State also notes that hospitals and the professional

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offices of healthcare providers are included as “place[s] of public accommodation” in the Illinois

Human Rights Act (775 ILCS 5/5-101(a)(6) (West 2016)). The State therefore concludes that the

trial court properly found that Jackson Park Hospital was a “place of public accommodation”

within the meaning of the statute.

¶ 23 At the outset, we observe that section 5-101 of the Illinois Human Rights Act states that

the terms defined therein, including a “place of public accommodation,” are “applicable strictly in

the context of this Article.” (Emphasis added.) 775 ILCS 5/5-101 (West 2016). This limiting

language demonstrates the legislature’s intention to restrict the applicability of this section to the

Illinois Human Rights Act. See In re D.F., 208 Ill. 2d 223, 229 (2003) (the most reliable indicator

of legislative intent is the language of the statute, which is to be given its plain and ordinary

meaning). Thus, we do not rely on the Illinois Human Rights Act for guidance.

¶ 24 Here, the facts are not in dispute; rather the only question is whether Jackson Park Hospital

qualifies as a “place of public accommodation” within the meaning of the aggravated battery

statute. Where review of the evidence turns on “statutory interpretation, our review is de novo.”

People v. Martin, 2011 IL 109102, ¶ 20.

¶ 25 Defendant was convicted under count VI of aggravated criminal sexual abuse based upon

aggravated battery. Count VII, the sole aggravated battery count, alleged that, while committing a

battery, defendant knowingly made physical contact of an insulting or provoking nature by placing

his mouth on M.B.-F.’s toes while they were inside Jackson Park Hospital, a public place of

accommodation. Therefore, to sustain the aggravated battery charge upon which the aggravated

criminal sexual abuse charge was based, the State was required to establish that defendant

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committed a battery and that the offense occurred at “a public place of accommodation.” 720 ILCS

5/12-3.05(c) (West 2016).

¶ 26 This court has previously determined that a place of public accommodation is a place open

or accessible to the public. People v. Ward, 95 Ill. App. 3d 283, 287-88 (1981) (interpreting the

language of the aggravated battery statute and finding that the “essential allegation *** is that the

battery occurred in a public area”). As we explained, whether “the property was actually publicly

owned and, therefore, ‘public property’ rather than a privately owned ‘public place of

accommodation’ is irrelevant; what is significant is that the alleged offense occurred in an area

accessible to the public.” 1 Id.; see also People v. Williams, 161 Ill. App. 3d 613, 619-20 (1987)

(aggravated battery statute applied to an offense occurring in a private parking lot because the lot

was accessible to the public and, therefore, a public way); People v. Kamp, 131 Ill. App. 3d 989,

993 (1985) (a park open to the public, regardless of ownership, constituted a public way or property

for purposes of the aggravated battery statute). Thus, because the “essence” of the aggravated

battery statute is that the battery “occurred in a public area,” the operative question is “whether the

area where the offense occurred is accessible to the public.” Blackburn v. Johnson, 187 Ill. App.

3d 557, 564 (1989).

¶ 27 Here, M.B.-F. testified that she arrived at the emergency room and was placed in a waiting

room. Defendant thereafter pushed her in a wheelchair through hallways and elevators, and into a

dark room where he molested her. Afterwards, defendant pushed her out of the room, onto an

elevator, and left her at a nurse’s desk. Parrish testified that the surveillance video showed

1 In full, the relevant section of the aggravated battery statute provides: “A person commits aggravated battery when, in committing a battery, other than by the discharge of a firearm, he or she is or the person battered is on or about a public way, public property, a public place of accommodation or amusement, a sports venue, or a domestic violence shelter.” See 720 ILCS 5/12-3.05(c) (West 2016).

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defendant pushing M.B.-F. toward a ward that was closed to patients. No evidence in the record

supports the inference that the location where the battery occurred, a hospital ward closed to

patients, was open and accessible to the public, and therefore, a place of public accommodation.

¶ 28 The State argues that Jackson Park Hospital exists for the “public purpose of providing

medical care to those within the community that sought it,” and because M.B.-F. could freely enter

the hospital to partake of its services, “the hospital, as a whole,” was a place of public

accommodation.

¶ 29 People v. Crawford, 2021 IL App (5th) 170496, is instructive. In that case, the defendant

was convicted of aggravated battery based upon striking the victim in the back of the head with a

beer bottle “at Los Amigos Bar, a public place of accommodation.” Id. ¶4. On appeal, the

defendant argued, relevant here, that the bar was not a public place of accommodation and the trial

court therefore erred in instructing the jury with a non-pattern instruction stating that “the term

public place of accommodation or amusement includes places where the public is invited to come

into and partake of whatever is being offering therein, including without limitation bars and

nightclubs.” (Internal quotation marks omitted.) Id. ¶¶ 54-55.

¶ 30 We noted that the operative question for a conviction under section 3.05(c) of the

aggravated battery statute was whether the location of the offense was accessible to the public, and

that bars and nightclubs “do not inherently always require accessibility to the public at large.” Id.

¶ 60. In other words, although many bars and nightclubs are open to the public, some are private,

and even in those establishments that are open to the public, “there may be areas *** that are not

accessible to the public.” Id.; see also People v. Torres, 144 Ill. App. 3d 187, 190 (1986) (noting

in the context of a fourth amendment case that “an emergency room is not open to the general

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public in the sense that anyone may wander through,” and that access to an emergency room by

anyone other than those seeking treatment may be controlled by medical personnel).

¶ 31 Thus, even assuming that parts of Jackson Park Hospital may have been open to the general

public, it does not follow that as a matter of law, a closed ward situated beyond the emergency

room was available to the general public for purposes of the aggravated battery statute. Moreover,

no evidence in the record shows that the area where the battery occurred, a closed ward on the

third floor of Jackson Park Hospital, was open and accessible to the public as a place of public

¶ 32 Because there is insufficient evidence in the record that the closed ward was open and

accessible to the public, a necessary element of aggravated battery as charged, defendant’s

conviction for aggravated criminal sexual abuse predicated on aggravated battery under count VI

must be reduced to criminal sexual abuse.

¶ 33 Defendant further contends that the now-reduced conviction for criminal sexual abuse

under count VI must be vacated under the one-act, one-crime rule because it is based upon the

same conduct as his conviction for aggravated kidnapping predicated on criminal sexual abuse

under count I, namely, touching M.B.-F.’s sex organ.

¶ 34 Pursuant to the one-act, one-crime doctrine, multiple convictions are improper if they are

“based on precisely the same act.” In re Angel P., 2014 IL App (1st) 121749, ¶ 66. However,

multiple convictions are proper “where a defendant has committed several acts, despite the

interrelationship of those acts.” People v. King, 66 Ill. 2d 551, 566 (1977). “[A]n ‘act’ is defined

as any overt or outward manifestation that will support a separate conviction.” People v. Almond,

2015 IL 113817, ¶ 47. When analyzing one-act, one-crime issues, we first determine “whether a

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defendant’s conduct consisted of separate acts or a single physical act.” People v. Rodriguez, 169

Ill. 2d 183, 186 (1996). If the defendant committed multiple acts, the court then determines whether

any offenses are lesser-included offenses. Id.

¶ 35 To determine whether one offense is a lesser-included offense of another, we apply the

abstract elements approach. People v. Reveles-Cordova, 2020 IL 124797, ¶ 13. “This approach

requires the court to examine the statutory elements of the two offenses.” Id. “ ‘If all of the

elements of one offense are included within a second offense and the first offense contains no

element not included in the second offense, the first offense is deemed a lesser-included offense

of the second.’ ” Id. (quoting People v. Miller, 238 Ill. 2d 161, 166 (2010)). “In other words, it

must be impossible to commit the greater offense without necessarily committing the lesser

offense.” Id. If an offense is a lesser-included offense, then multiple convictions are improper. Id.

¶ 12. Whether a violation of the one-act, one-crime rule has occurred is a question of law, which

we review de novo. In re Angel P., 2014 IL App (1st) 121749, ¶ 63.

¶ 36 Here, defendant committed multiple acts, and, therefore, we must consider whether any

offenses are lesser-included offenses. Relevant here, count I for aggravated kidnapping alleged

that defendant knowingly and secretly confined M.B.-F. against her will and committed criminal

sexual abuse. 720 ILCS 5/10-2(a)(3) (West 2016). Count V for aggravated criminal sexual abuse

alleged that defendant knowingly touched M.B.-F.’s sex organ for sexual arousal or gratification

by using or threatening force during a kidnapping. 720 ILCS 5/11-1.60(a)(6) (West 2016). Count

VI, as originally charged, alleged that defendant committed aggravated criminal sexual abuse

when he touched M.B.-F.’s sex organ for sexual arousal or gratification by using or threatening

force while committing an aggravated battery. 720 ILCS 5/11-1.60(a)(6) (West 2016). Thus, the

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conduct described in all three counts rested on the same physical act, the touching of M.B.-F.’s

sex organ for sexual arousal or gratification. As discussed, however, count VI must be reduced to

criminal sexual abuse, that is, defendant knowingly committed an act of sexual conduct upon

M.B.-F. by touching her sex organ for sexual arousal or gratification by using or threatening force.

720 ILCS 5/11-1.50(a)(1) (West 2016).

¶ 37 Here, the elements of defendant’s now-reduced conviction for criminal sexual abuse are

also included in his conviction for aggravated kidnapping under count I. That is, defendant

knowingly committed an act of sexual conduct upon M.B.-F. by (1) touching his hand to her sex

organ for sexual arousal or gratification, and (2) using force, and each element is included in his

conviction for aggravated kidnapping under count I. Thus, aggravated kidnapping under count I

contains the elements of kidnapping plus the elements of the reduced offense of criminal sexual

abuse under count VI. Consequently, both counts rest upon the same physical act of defendant

touching M.B.-F.’s sex organ. In re Angel P., 2014 IL App (1st) 121749, ¶ 66 (multiple convictions

are improper if they are “based on precisely the same act”).

¶ 38 Moreover, because count I includes all of the elements of count VI plus the additional

element of kidnapping, count VI is a lesser-included offense. In other words, because defendant

could not commit aggravated kidnapping as charged without committing a kidnapping and

criminal sexual abuse, his now-reduced conviction for criminal sexual abuse is a lesser-included

offense of aggravated kidnapping. See Reveles-Cordova, 2020 IL 124797, ¶ 13 (an offense is

deemed a lesser-included offense of another when it is “impossible to commit the greater offense

without necessarily committing the lesser offense”).

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¶ 39 Having found that defendant’s convictions violate the one-act, one-crime rule, we must

determine which offense is the most serious (People v. Artis, 232 Ill. 2d 156, 170 (2009)), as

“judgment and sentence may be entered only on the most serious offense” (People v. Smith, 233

Ill. 2d 1, 20 (2009)). To determine the most serious offense, we compare their relative punishments.

Artis, 232 Ill. 2d at 170.

¶ 40 As charged, aggravated kidnapping is a Class X felony (720 ILCS 5/10-2(a)(3), (b) (West

2016)) with a sentencing range of 6 to 30 years in prison (730 ILCS 5/5-4.5-25(a) (West 2016)).

Criminal sexual abuse is a Class 4 felony (720 ILCS 5/11-1.50(a)(1), (d) (West 2016)) with a

sentencing range of one to four years in prison (730 ILCS 5/5-4.5-45(a) (West 2016)).

Consequently, the less serious sentence on count VI cannot stand, and must be vacated.

¶ 41 Defendant finally contends his remaining conviction for aggravated criminal sexual abuse

predicated on kidnapping under count V must be vacated pursuant to the one-act, one-crime rule

as a lesser-included offense of aggravated kidnapping predicated on criminal sexual abuse under

count I. Defendant acknowledges he failed to preserve this issue by not raising it before the trial

court. See People v. Hillier, 237 Ill. 2d 539, 544-45 (2010) (“to preserve a claim of sentencing

error, both a contemporaneous objection and a written postsentencing motion raising the issue are

required”). However, he asks this court to review his claim pursuant to the plain error doctrine.

¶ 42 Under the plain error doctrine, this court may review unpreserved error when an error

occurred and either (1) “the evidence is so closely balanced that the error alone threatened to tip

the scales of justice against the defendant,” or (2) “that error is so serious that it affected the fairness

of the defendant’s trial and challenged the integrity of the judicial process.” (Internal quotation

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marks omitted.) People v. Thompson, 238 Ill. 2d 598, 613 (2010). A violation of the one-act, one-

crime rule constitutes second-prong plain error. People v. Coats, 2018 IL 121926, ¶ 10.

¶ 43 Defendant contends that because aggravated kidnapping predicated on criminal sexual

abuse and aggravated criminal sexual abuse predicated on kidnapping share the same elements, he

cannot be sentenced for both offenses and his sentence for the latter must be vacated.

¶ 44 Defendant was charged with aggravated kidnapping under count I in that he knowingly and

secretly confined M.B.-F. against her will and committed criminal sexual abuse (720 ILCS 5/10-

2(a)(3) (West 2016)), and aggravated criminal sexual abuse under count V for knowingly touching

M.B.-F.’s sex organ for sexual arousal or gratification during a kidnapping (720 ILCS 5/11-

1.60(a)(6) (West 2016)).

¶ 45 While the complained-of offenses involved multiple physical acts, we agree with defendant

that these offenses share the same elements. As discussed, the elements of aggravated kidnapping

under count I were that defendant committed a kidnapping and criminal sexual abuse, and the

elements of aggravated criminal sexual abuse under count V were that defendant committed

criminal sexual abuse during a kidnapping. Additionally, the criminal sexual abuse alleged in

counts I and V was based upon the same physical act, i.e., defendant touched M.B-F.’s sex organ.

Accordingly, under the abstract elements approach, defendant’s conviction for aggravated criminal

sexual abuse under count V shares the same elements as his aggravated kidnapping conviction

under count I, and his convictions on those two counts violate the one-act, one-crime rule. See

Miller, 238 Ill. 2d at 166.

¶ 46 The State, however, contends that convictions for aggravated kidnapping predicated on

criminal sexual abuse and aggravated criminal sexual abuse predicated on kidnapping can stand

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because the facts supporting defendant’s asportation of M.B.-F. were neither inherent nor

incidental to the criminal sexual assault.

¶ 47 The Code defines kidnapping as:

“(a) A person commits the offense of kidnapping when he or she knowingly:

(1) and secretly confines another against his or her will;

(2) by force or threat of imminent force carries another from one place to another with

intent secretly to confine that other person against his or her will; or

(3) by deceit or enticement induces another to go from one place to another with intent

secretly to confine that other person against his or her will.” 720 ILCS 5/10-1(a) (West

2016).

¶ 48 A defendant thus commits kidnapping by confinement, asportation, or inducement. People

v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009). Here, the State prosecuted defendant under theories

of confinement and inducement. Specifically, defendant was charged under counts I and II with

aggravated kidnapping in that he knowingly and secretly confined M.B.-F. and committed criminal

sexual abuse, and under counts III and IV with aggravated kidnapping in that he knowingly by

deceit or enticement induced M.B.-F. to go from one place to another intending to secretly confine

her against her will and commit criminal sexual abuse. Accordingly, the State’s argument that

defendant was charged with kidnapping under an asportation theory and its arguments in support

fail.

¶ 49 Having determined that defendant’s convictions for aggravated kidnapping predicated on

criminal sexual abuse and aggravated criminal sexual abuse predicated on kidnapping share the

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same elements under the abstract elements approach, we must vacate the sentence for the less

serious offense. Artis, 232 Ill. 2d at 170.

¶ 50 As charged, aggravated kidnapping is a Class X felony (720 ILCS 5/10-2(a)(3), (b) (West

2016)) with a sentencing range of 6 to 30 years in prison (730 ILCS 5/5-4.5-25(a) (West 2016)),

whereas aggravated criminal sexual abuse is a Class 2 felony (720 ILCS 5/11-1.60(a)(6), (g) (West

2016)) with a sentencing range of 3 to 7 years in prison (730 ILCS 5/5-4.5-35(a) (West 2016)).

Thus, aggravated kidnapping is the more serious offense. See Artis, 232 Ill. 2d at 170 (when

“determining which offense is the more serious, a reviewing court compares the relative

punishments prescribed by the legislature for each offense,” as greater punishment is mandated for

the more serious offense). Because defendant may only be sentenced on the more serious offense

(id.), the sentence imposed on aggravated criminal sexual abuse under count V must be vacated.

¶ 51 For the foregoing reasons, we reduce defendant’s conviction under count VI to criminal

sexual abuse. Additionally, as count VI is a lesser-included offense of count I, and count V shares

the same elements as count I under the abstract elements approach, sentences on count V and VI

cannot stand and must be vacated pursuant to the one-act, one-crime rule.

¶ 52 Affirmed in part and vacated in part.

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