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Docket No. 86556-Agenda 9-November 1999.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. 
HECTOR CRESPO, Appellant.

Defendant, Hector Crespo, was convicted of the first degreemurder of Maria Garcia in a jury trial in the circuit court of CookCounty. The jury also convicted him of one count of armedviolence, one count of aggravated battery based on intentionally orknowingly causing great bodily harm, and one count of aggravatedbattery using a deadly weapon, all in connection with the stabbingof Garcia's daughter, Arlene. The circuit court sentenceddefendant to a 75-year term of imprisonment for the murder andto a 30-year term for armed violence. The court also imposed afive-year term for aggravated battery after stating that the twoaggravated batteries were merged. All of the prison terms were tobe served concurrently.

Defendant appealed his convictions. He maintained that hisconviction for aggravated battery could not stand because it wasbased on the same single act as the armed violence charge. He alsoargued that the trial court erred in refusing to give the jury aninstruction on second degree murder. The appellate court affirmeddefendant's convictions and ordered the circuit clerk to amend themittimus to reflect that defendant was convicted of first degreemurder, armed violence, and one count of aggravated battery. No.1-97-3057 (unpublished order under Supreme Court Rule 23).Defendant filed a petition for leave to appeal, arguing only that hisconviction for aggravated battery should be vacated because itstemmed from the same physical act as the armed violence charge.We allowed defendant's petition (177 Ill. 2d R. 315(a)) and nowreverse, in part, the judgment of the appellate court.

Background

The facts giving rise to defendant's convictions are not indispute. Defendant and the murder victim, Maria Garcia, livedtogether with their infant son and Garcia's daughters. On June 25,1995, defendant, after consuming alcohol and cocaine throughoutthe day, returned home at around 9:15 p.m. According to Garcia'sdaughter, Arlene, shortly after defendant's arrival home, he andher mother began to argue over money and the fact that defendantwas wearing a gold necklace that belonged to Garcia. As theargument intensified, Garcia asked defendant to leave the house.Defendant refused, and Garcia told Arlene to call the police.Arlene called 911 and told the dispatcher that she wanted herstepfather escorted from the home because he was getting violent.After the 911 call was made, defendant locked himself in abedroom.

Defendant eventually began to leave the house through a backdoor. At that time, Garcia told him "don't leave you coward."Garcia told defendant that she wanted police to "escort him out."Defendant replied that he was not afraid of police and that he wasnot "a coward." The two then argued more, and moved into thekitchen near some drawers. Defendant attempted to reach into adrawer where knives were kept, but Garcia closed it. A fewminutes later, defendant pulled out a knife about eight inches long.Garcia again tried to shut the drawer, but defendant hit her in thehead with his fist. The two began to fight. When Arlene tried tointercede, defendant stabbed her three times in rapid succession.,once in the right arm, and twice in the left thigh. After defendantstabbed Arlene, defendant turned to Garcia and grabbed her by thehair. He then stabbed her. As defendant stabbed Garcia, Arlene ranout of the house, calling for help.

According to neighbors, Arlene ran from her house screamingfor help. Police officers responded to the scene and found Arlenehysterical. She told them that her stepfather had stabbed her andthat her mother and younger brother were still in the house. Policefound Garcia lying on the kitchen floor in a pool of blood.Witnesses told police that defendant had fled the scene.

Garcia died as a result of the injuries inflicted by defendant.The autopsy revealed that she had sustained multiple stab woundsto the neck, chest, and abdomen. Arlene was treated for herwounds at the hospital, where approximately 20 staples wereneeded to close the three stab wounds.

Police arrested defendant in July 1995, and a grand juryreturned an indictment against him several weeks later.Specifically, the indictment charged defendant with two counts offirst degree murder, one count of attempted first degree murder,two counts of aggravated battery (one count based on battery witha deadly weapon, and one count based on great bodily harm), andone count of armed violence. The armed violence charge waspredicated upon the great bodily harm aggravated battery charge.Defendant was also indicted on one count of theft, which the Statelater agreed to nol-pros. The jury returned verdicts findingdefendant (i) guilty of first degree murder, (ii) guilty of armedviolence, (iii) guilty of aggravated battery based on great bodilyharm, (iv) guilty of aggravated battery based on a deadly weapon,and (v) not guilty of attempted murder.

As noted previously, defendant maintained in the appellatecourt that his aggravated battery conviction must be vacatedbecause it was based on the same physical act as his armedviolence conviction, or, alternatively, that the mittimus, whichreflected two aggravated battery convictions, should be correctedto reflect the fact that the trial court merged defendant's twoaggravated battery convictions into one aggravated batteryconviction. The appellate court rejected defendant's "samephysical act" argument, but amended the mittimus to reflect one,as opposed to two, aggravated battery convictions.⁽¹⁾

Discussion

Defendant maintains that the remaining aggravated batteryconviction must be vacated because the aggravated battery chargestemmed from the same physical act which formed the basis of thearmed violence charge. According to defendant, the three stabwounds to Arlene did not constitute "different offenses" such thatmultiple convictions can be sustained.

The State responds that the appellate court, in rejectingdefendant's contention, properly applied the precedent of thiscourt. The State maintains that defendant stabbed Arlene threetimes and that each act of stabbing properly constitutes a separateoffense. As framed by the State, the issue before this court iswhether these three different stabbings were three "separate anddistinct acts" each capable of independently sustaining a completecriminal conviction.

The seminal case in this area is People v. King, 66 Ill. 2d 551(1977). There, this court explained:

"Prejudice results to the defendant only in thoseinstances where more than one offense is carved from thesame physical act. Prejudice, with regard to multiple acts,exists only when the defendant is convicted of more thanone offense, some of which are, by definition, lesserincluded offenses. Multiple convictions and concurrentsentences should be permitted in all other cases where adefendant has committed several acts, despite theinterrelationship of those acts. 'Act,' when used in thissense, is intended to mean any overt or outwardmanifestation which will support a different offense. Wehold, therefore, that when more than one offense arisesfrom a series of incidental or closely related acts and theoffenses are not, by definition, lesser included offenses,convictions with concurrent sentences can be entered."King, 66 Ill. 2d at 566.

Based on this reasoning, the court in King upheld the defendant'sconvictions for rape and burglary because the offenses were basedon separate acts, each requiring proof of a different element.

Both defendant and the State ask this court to revisit King,albeit for different reasons. Defendant urges us to reconsider thedefinition of an "act" in King and specifically asks us to considera six-part test that has developed in the appellate court. The State,on the other hand, argues that the "multiple acts/lesser includedoffense" portion of the King rule has caused confusion over theyears and asks us to clarify it.

The State correctly notes that, in King, this court defined an"act" as any overt or outward manifestation that will support aseparate offense. King, 66 Ill. 2d at 566. This court hasconsistently used the King definition of an "act." For example, inPeople v. Myers, 85 Ill. 2d 281 (1981), we considered a situationin which the defendant stabbed one victim in the throat, removedthe knife briefly to cut a second victim, then again stabbed the firstvictim in the throat. In determining that the defendant committedtwo physical acts with respect to the first victim, this courtaccorded significance to the fact that there was a distinct,intervening act separating the successively inflicted stab wounds.See Myers, 85 Ill. 2d at 288-89. One year later, in People v. Dixon,91 Ill. 2d 346 (1982), this court again looked to King, interpretingthe definition of an "act" narrowly. There, we rejected theargument that striking the victim several times with a clubconstituted a continuous beating and therefore a single physicalact. Rather, we held that the separate blows, although closelyrelated, constituted separate acts which could properly supportmultiple convictions with concurrent sentences.

As noted, defendant invites this court to apply a six-factor testthat has developed in our appellate court in cases that postdateDixon. See, e.g., People v. Crum, 183 Ill. App. 3d 473, 490-91(1989); People v. Williams, 143 Ill. App. 3d 658, 665-66 (1986),People v. Horne, 129 Ill. App. 3d 1066, 1074-75 (1984). The testis a culmination of points gleaned from various Illinois cases. SeePeople v. Rodriguez, 169 Ill. 2d 183, 188 (1996) (discussing test).This court in Rodriguez acknowledged the existence of theappellate court test, but declined to address its merits. Wecautioned, however, that "a court must not lose sight of the forestfor the trees. The definition of an 'act' under the King doctrineremains simply what this court stated in King: 'any overt oroutward manifestation which will support a different offense.' "Rodriguez, 169 Ill. 2d at 188.

After examining the record in the instant case, we believe thatthe adoption of the six-factor test is unnecessary to the dispositionof this appeal. Under Dixon, each of Arlene's stab wounds couldsupport a separate offense; however, this is not the theory underwhich the State charged defendant, nor does it conform to the waythe State presented and argued the case to the jury.

A careful review of the indictment in this case reveals that thecounts charging defendant with armed violence and aggravatedbattery do not differentiate between the separate stab wounds.Rather these counts charge defendant with the same conduct underdifferent theories of criminal culpability. The armed violencecount of the indictment charged defendant with committingaggravated battery against Arlene while he was armed with a knifethat had a blade of over three inches. The aggravated batterycounts charged defendant as follows:

"He, intentionally or knowingly without legaljustification caused bodily harm to Arlene Guerrero whileusing a deadly weapon, to wit: A knife by stabbing ArleneGuerrero with said knife, in violation, of Chapter 720, Act5, Section 12-4-B(1), of the Illinois Compiled Statutes1992, as amended, and

He, in committing a battery on Arlene Guerrerointentionally or knowingly without legal justificationcaused great bodily harm to said Arlene Guerrero hestabbed Arlene Guerrero with a knife, in violation, ofChapter 720, Act 5, Section 12-4-A of the IllinoisCompiled Statutes, as amended."

Nowhere in these charges does the State attempt to apportion theseoffenses among the various stab wounds.

We believe that to apportion the crimes among the variousstab wounds for the first time on appeal would be profoundlyunfair. When the State originally charged defendant withaggravated battery (great bodily harm), the State alleged that thegreat bodily harm was stabbing the victim with a knife. TheState's original aggravated battery (deadly weapon) charge waspredicated on allegations that defendant stabbed Arlene with aknife. The State's closing argument, with respect to both chargesof aggravated battery, consisted on the following remarks:

"To sustain the charge of aggravated battery, the Statemust prove the following propositions: first, the defendantknowingly and intentionally caused bodily harm to ArleneGuerrero. We know he stabbed her three times. Secondthat he used a deadly weapon other than the discharge of[a] firearm. Ladies and gentlemen, this knife is a deadlyweapon."

Then, when the prosecutor addressed armed violence, which waspredicated on the offense of aggravated battery (great bodilyharm), the assistant State's Attorney read the elements of theoffense and said, "We know that he stabbed Arlene Guerrero threetimes." After addressing all of the elements, the prosecutor stated,"each of these propositions has been proved." Thus, the State'stheory at trial, as shown by its argument to the jury, amplysupports the conclusion that the intent of the prosecution was toportray defendant's conduct as a single attack.

It has been held that what constitutes "great bodily harm" tosupport a charge of aggravated battery is a question of fact to bedetermined by the finder of fact. See People v. Hadley, 20 Ill. App.3d 1072, 1077 (1974). Here, the State specifically argued to thejury that the three stab wounds constituted great bodily harm. TheState never argued that only one of the stab wounds would besufficient to sustain this charge. Again, it must be pointed out thatthe State could have, under our case law, charged the crime thatway, and could have argued the case to the jury that way. TheState chose not to do so, and this court cannot allow the State tochange its theory of the case on appeal. It is possible that, althoughthe jury found that all three stab wounds together constituted greatbodily harm, the jury would not have considered any one of thestab wounds individually to constitute great bodily harm. Thiscourt will not invade the province of the jury and decide thisquestion of fact.

In both People v. Crum, 183 Ill. App. 3d 473, and People v.Ellis, 143 Ill. App. 3d 892 (1986), the appellate court found thatthe charging instruments evinced the State's intent to treat theconduct of the defendants as single acts. Similarly, in this case, thecharging instruments reveal that the State intended to treat theconduct of the defendant as a single act. In order to convictdefendant, the State charged him with stabbing in four differentways, based on four different theories. Apart from the attemptedmurder charge, the State charged that defendant (i) committedaggravated battery because he caused the victim great bodily harm,(ii) committed aggravated battery because he used a deadlyweapon, and (iii) committed armed violence because hecommitted an aggravated battery while armed with a dangerousweapon. The State made no attempt, however, to apportion thesecrimes among the stab wounds, and it is improper for this court todo so now on appeal.

Moreover, we believe that today's decision avoids severalconstitutional problems that might arise were we to agree with theState that multiple convictions are proper under thesecircumstances. We note that the United States and IllinoisConstitutions both require that a defendant in a criminalprosecution be informed of the nature and cause of the accusation.U.S. Const., amend. VI; Ill. Const. 1970, art. I,