FIRST DIVISION

July 30, 2001

No. 1-99-4099

PRESIDING JUSTICE McNULTY delivered the opinion of thecourt:

A jury found defendant, Kevin Phelps, guilty of aggravatedkidnaping and heinous battery. The trial court imposedconsecutive sentences for the offenses. Defendant challengesboth the convictions and the sentences on appeal. He argues thatthe prosecution failed to prove he secretly confined the victim,the prosecutor's closing argument misstated the evidence, and thecourt improperly used the fact that he caused great bodily harmto doubly enhance his sentence.

P.H., a high school student, befriended defendant, aparaplegic, late in 1996. She knew defendant by his nickname,Sniper, and he called her by a nickname few people knew. Throughmost of the summer of 1997, P.H. went to visit defendant aboutevery other day. In August 1997 P.H.'s older sister and legalguardian grounded her, instructing her not to see defendant.

P.H. left the high school after 4 p.m. on September 4, 1997. She returned home around 8 p.m., screaming "Sniper burnt me." P.H.'s sister called for an ambulance. Doctors at the hospitalfound that P.H. had suffered second and third degree burns over36% of her body. She remained in the intensive care unit for twoweeks, undergoing multiple skin grafts and other treatments tohelp her skin heal. She has prominent, permanent scars. Policearrested defendant and charged him with heinous battery,aggravated kidnaping and attempted murder.

At trial P.H. testified that when she left the high schoolon September 4, 1997, two men called to her, using the nicknamedefendant and few others used. One man said, "Folks said comeget your stuff." P.H. knew the man meant defendant, because hishome was the only place she had left anything. She told the menshe would get the stuff later, and she caught a city bus to gohome. When she got off the bus, the men drove up behind her. One pulled her jacket and told her to get in the car. They tookher to defendant's home.

Defendant asked P.H. where she had been, what she had beendoing, and whom she had been seeing for the prior weeks. Sheexplained that her sister had grounded her. He asked the samefew questions repeatedly for an hour.

Defendant then told P.H. to take off her clothes. When sherefused he pulled out a gun and told her again to take off herclothes. She took them off. He threw a cup full of liquid onher, and he threw a lit cigarette lighter at her. The skin ofher stomach and legs immediately went up in flames. P.H. ran tothe bathroom and put out the fire, but she had no way to leavethe house without passing defendant again. She talked with himfor more than an hour before finally persuading him to let herdress and leave. She agreed to tell her sisters a strangerabducted her, raped her and burned her.

On cross-examination P.H. admitted that defendant never saidshe could not leave. Some time before he burned her, he askedher to get him a glass of water. When she went to the kitchen,she was out of his sight, but she made no attempt to flee. Sheexplained that from defendant's tone and his reputation sheunderstood that she would put herself in peril if she left.

In closing the prosecutor argued, without objection, thatthe men who met P.H. said "Sniper[] wants to see you." Theprosecutor later added:

"[Defendant] told her she couldn't leave.

*** He says, 'You can't leave. Remove yourclothes.'

She could not leave at that point."

Defense counsel in closing reminded the jurors of P.H.'stestimony that defendant never said she could not leave.

The jury acquitted defendant on the charge of attemptedmurder, but found him guilty on the charges of heinous batteryand aggravated kidnaping. The trial court sentenced defendant to30 years in prison for heinous battery and 15 years in prison foraggravated kidnaping. The court also found that section 5-8-4(a)of the Unified Code of Corrections mandated consecutive sentencesfor the charges. 730 ILCS 5/5-8-4(a) (West 1996).

On appeal defendant argues first that the prosecution failedto prove him guilty of kidnaping. The prosecutor argued thatdefendant committed the crime when he pulled out a gun and toldP.H. to undress. At that point, defendant secretly confinedP.H., within the meaning of the statutory definition ofkidnaping, against her will.

To establish secret confinement under section 10-1(a)(1) ofthe Criminal Code of 1961 (720 ILCS 5/10-1(a)(1) (West 1996)),the prosecution must show a confinement, usually in an enclosurelike a house or a car (People v. Lloyd, 277 Ill. App. 3d 154,163, 660 N.E.2d 43 (1995)), concealed from the knowledge ofpersons who would be affected by the act (People v. Turner, 282Ill. App. 3d 770, 780, 668 N.E.2d 1058 (1996)). The secrecy ofeither the place of confinement or of the fact that a person isconfined suffices for the secrecy element of kidnaping. Peoplev. Sykes, 161 Ill. App. 3d 623, 628, 515 N.E.2d 253 (1987).

In People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988),the defendant entered the victim's office at work, and several ofthe victim's coworkers saw her go with defendant to the victim'sapartment. In the apartment the defendant bound the victim to achair and did not answer the door or the telephone when peopletried to contact the victim. Our supreme court affirmed theconviction for aggravated kidnaping, holding that the evidenceshowed that no one knew the defendant had confined the victim inher apartment. Enoch, 122 Ill. 2d at 195-96; see also People v.Mulcahey, 72 Ill. 2d 282, 285, 381 N.E.2d 254 (1978).

Here, defendant confined P.H. when he drew a gun and orderedP.H. to undress. She could not then leave the enclosure ofdefendant's home. No one knew of the confinement. Inparticular, P.H.'s guardian, who would be most directly affected,did not know defendant was keeping P.H. in his home against herwill. The crime became aggravated kidnaping when he burned her,inflicting great bodily harm, during her secret confinement. See720 ILCS 5/10-2(a)(3)(West 1996). The prosecution presentedsufficient evidence to support the conviction for aggravatedkidnaping.

Next, defendant contends that the prosecutor made twomisrepresentations in closing arguments, and those statementsdeprived him of a fundamentally fair trial. Because defensecounsel did not object to the statements, we limit our review toa determination of whether plain error occurred. See People v.Turner, 282 Ill. App. 3d 770, 781, 668 N.E.2d 1058 (1996).

Defense counsel, in cross-examining P.H., elicited heradmission that defendant never said she could not leave his home. The prosecution argued that by drawing a gun and telling P.H. toundress, defendant effectively told her she could not leave. Inresponse, defense counsel reminded the jurors that defendantnever actually said P.H. could not leave. We see no basis forconcluding that the prosecutor's argument seriously misled thejurors. See People v. Edgeston, 157 Ill. 2d 201, 219-20, 623N.E.2d 329 (1993).

P.H. testified that a man outside the school said "Folks"wanted her to get her stuff. She knew that the man meantdefendant wanted her to come over. The prosecutor recounted thetestimony as evidence that the man said "Sniper[] wants to seeyou." Again, the paraphrase did not seriously prejudicedefendant. See People v. Williams, 181 Ill. 2d 297, 330, 692N.E.2d 1109 (1998). We find no plain error.

Defendant raises several issues concerning his sentencing. He concedes that the prosecution presented sufficient evidence ofa battery, with the class of offense increased to heinous batterybecause defendant caused severe and permanent disfigurement bymeans of a flammable substance. 720 ILCS 5/12-4.1(a)(West 1996). While battery is a Class A misdemeanor, heinous battery is aClass X felony. 720 ILCS 5/12-3(b), 12-4.1(b) (West 1996). Theprosecution also proved a kidnaping, increased to aggravatedkidnaping because defendant inflicted great bodily harm on P.H. 720 ILCS 5/10-2(a)(3)(West 1996). Kidnaping is a Class 2 felony,but aggravated kidnaping is a Class X felony. 720 ILCS 5/10-1(c), 10-2(b)(West 1996). Defendant argues that the use ofclosely related factors to increase the level of both crimesconstitutes improper double enhancement.

"[T]he legislature has the power to codify provisionswhich enhance a criminal offense (e.g., misdemeanor toa felony) or enhance the applicable range of punishment(e.g., extended term sentence or Class X sentencing). This is known as 'single enhancement.' Doubleenhancement occurs when a factor already used toenhance an offense or penalty is reused to subject adefendant to a further enhanced offense or penalty. For example, the same factor has been used to doubleenhance an offense (People v. Haron, 85 Ill. 2d 261[,422 N.E.2d 627] (1981) (offense enhanced frommisdemeanor battery to felony aggravated battery andfrom aggravated battery to Class X felony armedviolence based on use of a deadly weapon)), apunishment (Fitzsimmons v. Norgle, 104 Ill. 2d 369[,472 N.E.2d 802] (1984) (defendant transferred fromjuvenile to adult criminal court and probationprecluded as potential punishment based on same priorconviction)), or some combination of the two (People v.Hobbs, 86 Ill. 2d 242[, 427 N.E.2d 558] (1981)(misdemeanor theft enhanced to a felony theft andextended term sentence imposed based on same priorconviction))." People v. Thomas, 171 Ill. 2d 207, 223-24, 664 N.E.2d 76 (1996).

While the legislature has the power to authorize such a doubleenhancement, the legislature must express the intention clearlyand unambiguously. People v. Rissley, 165 Ill. 2d 364, 390-91,651 N.E.2d 133 (1995); People v. Ferguson, 132 Ill. 2d 86, 97,547 N.E.2d 429 (1989). Otherwise, double enhancement isimproper. People v. Koppa, 184 Ill. 2d 159, 174, 703 N.E.2d 91(1998). The court presumes that when the legislature establishedthe range of penalties for an offense, it took into account allof the factors inherent in the offense. Ferguson, 132 Ill. 2d at97.

No case or rule forbids multiple uses of single enhancementfactors to increase the levels of separate crimes. Thelegislature decided that a battery involving permanentdisfigurement by means of a flammable substance deservespunishments in the range for Class X felonies, and kidnapingsinvolving great bodily harm deserve punishments in the range forClass 1 felonies. The prosecution proved defendant guilty of allelements of both crimes. We find no double enhancement in theuse of similar factors in the aggravation of both crimes. Defendant offers no further challenge to the sentences for eachindividual offense, so we affirm the sentences.

But defendant argues that the trial court doubly enhancedhis sentence impermissibly by reusing the factor of great bodilyharm to justify the further order for consecutive service of thesentences. Section 5-8-4 of the Unified Code of Correctionsprovides:

"The court shall not impose consecutive sentences foroffenses which were committed as part of a singlecourse of conduct during which there was no substantialchange in the nature of the criminal objective, unless,one of the offenses for which defendant was convictedwas a Class X or Class 1 felony and the defendantinflicted severe bodily injury *** in which event thecourt shall enter sentences to run consecutively." 730ILCS 5/5-8-4(a) (West 1996).

The appellate court interpreted this statute in People v.Miller, 193 Ill. App. 3d 918, 552 N.E.2d 988 (1989). In thatcase the trial court found the defendant guilty of the voluntarymanslaughter of two persons in a single course of conduct withoutchange in the nature of the crime. Because the two Class 1felonies resulted in great bodily harm, the court imposedconsecutive sentences pursuant to section 5-8-4. The appellatecourt held:

"[T]he prohibition against double penaltyenhancement is violated where a trial court considersas aggravation for a greater penalty a factor which isimplicit in the offense for which the defendant isbeing sentenced. In People v. Conover (1981), 84 Ill.2d 400, 419 N.E.2d 906, the supreme court held it waserror to consider as aggravation on a theft or burglarysentence the fact that the defendant receivedcompensation from the offense because the taking ofproceeds was inherent in these offenses. Thus, thiscompensation factor had already been considered by thelegislature in establishing the sentencing range. Thissame reasoning has been applied when a sentencing courthas considered as aggravation the fact that thedefendant threatened harm during an armed robberybecause the threat of harm is inherent in an armedrobbery. [Citations.]

***

*** Obviously, defendant *** inflicted severebodily injury because he caused [the victims'] deaths,the ultimate of severe bodily injury. However, theirdeaths were intrinsically factored into his voluntarymanslaughter convictions. To again use these deaths toimpose a consecutive sentence was improper." Miller,193 Ill. App. 3d at 931-32.

Accordingly, the court affirmed the sentences but modified themto run concurrently.

The appellate court in People v. Durham, 303 Ill. App. 3d763 (1999), rejected the reasoning and result of Miller. Oursupreme court subsequently vacated Durham, and on remand theappellate court did not address Miller. People v. Durham, 312Ill. App. 3d 413, 727 N.E.2d 623 (2000). In the vacated opinionthe court reasoned:

"A reading of the clear and unambiguous language ofsection 5-8-4 does not allow for the interpretationgiven in Miller. Any severe bodily harm caused by adefendant is by necessity going to be included in oneof the charges for which defendant is to be sentenced. Under defendant's theory, if [the victim] had been moreseverely wounded by the bullet that hit him, thatinjury could not have been used to mandate consecutivesentences either, as the injury would have been anessential element of the aggravated battery with afirearm. Only uncharged crimes causing severe bodilyinjury could be used to mandate consecutive sentences. This would be a ridiculous result." Durham, 303 Ill.App. 3d at 770-71.

The vacated opinion misreads Miller. Under Miller, thestatute mandates consecutive sentences if the defendant isconvicted of two or more crimes, including any Class X or Class 1felony that does not include great bodily harm as an element ofthe crime, and the defendant caused great bodily harm in thecourse of committing the Class X or Class 1 felony. Thus, if adefendant committed an aggravated kidnaping of a profoundlyretarded person, and he inflicted great bodily harm during thesecret confinement, the sentence for aggravated kidnaping wouldrun consecutively to the sentence for any other offense thedefendant committed in the same course of conduct. See 720 ILCS5/10-2(a)(2), (b)(West 2000). Attempted murder, a Class X felonythat need not involve bodily harm (720 ILCS 5/8-4(a), (c)(1)(West 2000)), and armed robbery and residential burglary, Class 1felonies that need not involve bodily harm (720 ILCS 5/18-2(a),(b), 19-3(a), (b)(West 2000)), similarly require consecutivesentencing. If the defendant causes great bodily harm in thecourse of an attempted murder, armed robbery or residentialburglary, and he commits another crime in the same course ofconduct, section 5-8-4 directs that the sentence imposed for theClass X or Class 1 felony must be served consecutively to thesentence imposed for the other crime. We find no absurdity inthe Miller court's construction of section 5-8-4. We note thatthe result in People v. Porter, 277 Ill. App. 3d 194, 660 N.E.2d118 (1995), comports with the reasoning of Miller, because thecourt imposed a sentence for murder and correctly ordered thesentences for attempted murder to be served consecutively, afterthe sentence for murder.

The prosecution charged defendant with a kidnaping enhancedto aggravated kidnaping by the great bodily harm he caused P.H. The legislature clearly required the court to impose a sentenceappropriate for Class X felonies because of the great bodily harmcaused in the course of a Class 2 felony. Nothing in the statuteclearly expresses the intention to reuse that same great bodilyharm as a basis for the added punishment of consecutivesentencing. Defendant also committed a battery enhanced toheinous battery because defendant caused severe and permanentdisfigurement by means of a flammable substance in the battery. The proof of an essential element of the crime, severe andpermanent disfigurement, included proof of great bodily harm. The legislature has not clearly expressed an intention toincrease the punishment for this crime beyond that available forClass X felonies by reuse of the same bodily harm to requireconsecutive sentencing. Following Miller, we modify thesentences here to run concurrently.

Defendant secretly confined P.H. in his home when he tookout a gun and ordered her to undress, because no one knewdefendant was holding P.H. against her will. The prosecutor'sstatements in argument paraphrasing the testimony did not amountto plain error. The court correctly found that P.H.'s greatbodily harm showed that defendant committed both an aggravatedkidnaping and a heinous battery. But that same bodily harmcannot warrant the imposition of consecutive sentences, becausegreat bodily harm was a necessary element of both crimes, and thelegislature took into account the harm by increasing theclassifications of the crimes to Class X. Therefore we affirmthe convictions and modify the sentences to run concurrently.

Affirmed.

O'MARA FROSSARD and COHEN, JJ., concur.