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Docket No. 95740-Agenda 8-November 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWARD A. MILKA, Appellant.

Opinion filed March 18, 2004.
 

CHIEF JUSTICE McMORROW delivered the opinion of the court:

A grand jury indicted the defendant, Edward Milka, on five counts,including one count of predatory criminal sexual assault of a child and onecount of felony murder predicated on predatory criminal sexual assault ofa child. During defendant's jury trial, after the State had presented its casein chief, the prosecutor nol-prossed the charge of predatory criminalsexual assault of a child. The trial continued, and defendant was convictedof felony murder predicated on predatory criminal sexual assault of a child.Defendant received an extended-term sentence of 75 years.

On appeal, defendant maintained that the State's dismissal of thecharge of predatory criminal sexual assault of a child had the effect of anacquittal, such that his conviction for felony murder based on that felonyviolated the bar against double jeopardy. Defendant also contended thatthe evidence was insufficient to support his conviction, and that hisextended-term sentence was invalid because it was based on an improperdouble enhancement. The appellate court rejected defendant's doublejeopardy argument and his challenge to the sufficiency of the evidence.However, the court agreed that his extended-term sentence was invalid.The appellate court affirmed defendant's conviction, vacated his sentenceand remanded the cause for resentencing. 336 Ill. App. 3d 206.

Defendant thereafter filed a petition for leave to appeal in this court(see 177 Ill. 2d R. 315(a)) in which he alleged that the appellate courterred both in holding that no double jeopardy violation occurred and inholding that the evidence was sufficient to support his conviction. Weallowed defendant's petition. Our grant of defendant's petition bringsbefore us the State's request for cross-relief (see 155 Ill. 2d R. 318(a);134 Ill. 2d R. 612(b)), in which the State contests the appellate court'sholding that defendant's extended-term sentence was based on animproper double enhancement. For the reasons that follow, we hold thatthe bar against double jeopardy was not violated in this case, that theevidence was sufficient to support defendant's conviction, and thatdefendant's extended-term sentence was based on an improper doubleenhancement.

BACKGROUND

On the evening of May 17, 1997, a group of friends canoeing on theKishwaukee River near Union, Illinois, discovered the lifeless body of ayoung girl lying on a sandbar. The body, which was naked from the waistup and partially decomposed, was later identified as Brittany Martinez, an11-year-old girl who had been missing from her home in Elgin, Illinois,since the evening of May 8, 1997.

The police investigation of Brittany's death led to the arrest of heruncle, the defendant, Edward Milka. On December 18, 1997, a grandjury in McHenry County returned a five-count indictment againstdefendant. Count I of the indictment alleged that defendant committed firstdegree murder (720 ILCS 5/9-1(a)(2) (West 1996)) in that heasphyxiated Brittany Martinez knowing that such act created a strongprobability of death or great bodily harm; count II alleged that defendantcommitted first degree murder (720 ILCS 5/9-1(a)(3) (West 1996)) inthat he asphyxiated Brittany Martinez while committing the forcible felonyof aggravated kidnaping; count III alleged that defendant committed firstdegree murder (720 ILCS 5/9-1(a)(3) (West 1996)) in that heasphyxiated Brittany Martinez while committing the forcible felony ofpredatory criminal sexual assault of a child; count IV alleged thatdefendant committed predatory criminal sexual assault of a child (720ILCS 5/12-14.1(a)(1) (West 1996)); and count V alleged that defendantcommitted aggravated kidnapping (720 ILCS 5/10-1(a)(1) (West 1996);720 ILCS 10-2(a)(2) (West 1996)). A trial was held before a jury in thecircuit court of McHenry County from April 24, 2000, to May 15, 2000.Testimony at trial established the following facts.

The sandbar on which Brittany's body was found was located abouta mile downstream from the Hemmingson Road bridge, just outside thetown of Union, Illinois, in McHenry County. Union is a small community,surrounded primarily by farmland. Several white farmhouses were in thearea where Brittany's body was discovered, including two suchfarmhouses near the Hemmingson Road bridge. Witnesses estimated thatthe drive between Union and Elgin took approximately 30 to 40 minutes.

At the point where Brittany's body was found, the Kishwaukee Riverran through a grassy area and was the size of a large creek. There wereno roads or pathways leading to the river. Police officers searched thesandbar where Brittany's body was discovered, as well as the surroundingriver banks. The officers found no footprints, drag marks or otherevidence. A search of the river downstream also uncovered nothing ofevidentiary value.

The lead police officer investigating Brittany's death considered theHemmingson Road bridge to be the most likely spot for the body to havebeen placed in the river, due to the relatively straight and deep stretch ofwater running downstream from that point. No shoe prints, tire prints, orother evidence was found at the Hemmingson Road bridge, which waspaved. Other bridges upstream from where the body was recovered werealso searched, but no evidence was discovered.

An autopsy was conducted on Brittany's body on May 18, 1997.The pathologist who performed the autopsy, Dr. Larry Blum, testified thatthe clothing found on the body consisted of a pair of blue jeans with thefly opened about 1