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Docket No. 93830-Agenda 1-November 2003.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant and Cross-
Appellee, v. KEVIN PHELPS, Appellee and Cross-Appellant.

Opinion filed January 23, 2004.
 

JUSTICE THOMAS delivered the opinion of the court:

Defendant, Kevin Phelps, was convicted by a jury of heinous battery(720 ILCS 5/12-4.1(a) (West 1996)) and aggravated kidnaping (720ILCS 5/10-2(a)(3) (West 1996)). The circuit court of Cook Countysentenced defendant to consecutive prison terms of 15 years for theaggravated kidnaping and 30 years for the heinous battery. The appellatecourt affirmed defendant's convictions but modified the sentences to runconcurrently. 329 Ill. App. 3d 1. We allowed the State's petition for leaveto appeal. 177 Ill. 2d R. 315(a).

BACKGROUND

P.H., a high school student, testified that, in late 1996, she befriendeddefendant, a paraplegic who she knew also as "Sniper." During thesummer of 1997, P.H. visited defendant almost every other day at histownhouse on South St. Lawrence in Chicago. In August 1997, P.H. wasgrounded and told she could not see defendant anymore.

On September 4, 1997, as P.H. was leaving school, two men shehad never seen before called out to her, using her nickname. One of themen said, "Folks said come get your stuff." P.H. knew that the man wasreferring to defendant, as she had left some things at defendant's house.She told the men that she would pick it up later and got on a bus to headhome. When she exited the bus, the same two men drove up behind her.One of the men grabbed P.H.'s jacket and told her to get into the car. Thetwo men drove her to defendant's house, escorted her inside, and then lefther alone with defendant.

Defendant asked P.H. where she had been, what she had beendoing, and whom she had been seeing for the past several weeks.Although she explained to defendant that her sister had grounded her,defendant continued to interrogate her for the next hour. During this time,defendant twice asked P.H. to get him a glass of water from the kitchen,and P.H. agreed. Defendant then told P.H. to take off her clothes. Whenshe refused, defendant pulled out a gun, placed it his lap, and again askedP.H. to take off her clothes. This time she complied. Once P.H.'s clotheswere off, defendant threw a cup of flammable liquid on her and set her onfire. P.H. ran to an upstairs bathroom, climbed into the tub, andextinguished the flames with water. Hoping to jump out the window, P.H.searched for some clothes. Unable to find any, she had no choice but toreturn to the room that defendant occupied.

P.H. remained with defendant for approximately an hour, duringwhich time she repeatedly asked for her clothes so that she could leave.P.H. explained that she did not leave immediately after the burning bothbecause defendant would not return her clothes and because defendanthad a gun. Defendant gave P.H. some Vaseline to rub on her wounds and,when that proved ineffective, poured hydrogen peroxide over her burns.Eventually, defendant asked P.H. whether anyone knew where she was,to which she replied, "my family would think that this would be the firstplace I was because this was the place I was told not to come."Defendant then asked P.H. what she would tell people if he "let [her] go."P.H. assured defendant that she would blame her attack on someone else.Defendant then gave P.H. her clothes back, told her to get dressed, andallowed her to leave. On cross-examination, P.H. admitted that defendantnever actually told her that she could not leave.

P.H. returned home around 8 p.m., screaming, "Sniper burnt me."P.H.'s sister called an ambulance, and P.H. was taken to the hospitalwhere she was diagnosed with second and third degree burns over 36percent of her body. P.H. spent two weeks in the intensive care unit andtwo months in a rehabilitation center. The burns and resulting skin graftsleft P.H. with permanent and prominent scarring over 80% of her body.

Defendant, in turn, testified that he did not see P.H. on September 4,1997, and that he was not at the South St. Lawrence townhouse at all thatday. According to defendant, he had lived in the South St. Lawrencetownhouse until June of 1997, at which point he moved onto East 62ndStreet with his mother, his brother, and his stepfather. On the day ofP.H.'s attack, he never left the house on East 62nd Street. Although P.H.had been his girlfriend for several months at the time of the attack,defendant had not seen her in several weeks because she was grounded.He first learned of P.H.'s injuries at approximately 10:30 p.m. on the nightof September 4, 1997, when the police arrived at the house on East 62ndStreet to question him.

Defendant was charged with kidnaping (720 ILCS 5/10-1(a)(1)(West 1996)), aggravated kidnaping (720 ILCS 5/10-2(a)(3) (West1996)), heinous battery (720 ILCS 5/12-4.1(a) (West 1996)), andattempted first degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West1996)). The jury convicted defendant of aggravated kidnaping andheinous battery, and the trial court sentenced defendant to consecutiveprison terms of 15 and 30 years respectively.

On appeal, defendant argued that (1) the State failed to prove himguilty of aggravated kidnaping beyond a reasonable doubt; (2) theprosecutor misstated the evidence in closing argument; (3) the impositionof consecutive sentences constituted an improper double enhancement;and (4) the use of the same factor to enhance both of the crimes for whichhe was convicted constituted an improper double enhancement. Theappellate court rejected all but the consecutive sentencing argument.Accordingly, it affirmed defendant's convictions but modified thesentences to run concurrently. 329 Ill. App. 3d at 12.

Before this court, the State argues that the imposition of consecutivesentences in this case does not constitute a double enhancement. By wayof cross-appeal, defendant renews his arguments with respect to thesufficiency of the evidence, the prosecutor's closing argument, and the useof the same factor to enhance both of the crimes for which he wasconvicted.

ANALYSIS

1. Sufficiency of the Evidence

We begin with the sufficiency of the evidence. In assessing thesufficiency of the evidence to sustain a verdict on appeal, a reviewingcourt's inquiry is "whether, after viewing the evidence in the light mostfavorable to the prosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt." (Emphasis inoriginal.) Jackson v. Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560,573, 99 S. Ct. 2781, 2788-89 (1979); People v. Cooper, 194 Ill. 2d419, 430-31 (2000). Under this standard, a reviewing court will notsubstitute its judgment for that of the trier of fact on issues of the weight ofevidence or the credibility of witnesses. Cooper, 194 Ill. 2d at 431.Indeed, it is the responsibility of the trier of fact to "fairly *** resolveconflicts in the testimony, to weigh the evidence, and to draw reasonableinferences from basic facts to ultimate facts." Jackson, 443 U.S. at 319,61 L. Ed. 2d at 573, 99 S. Ct. at 2789.

To obtain a conviction for aggravated kidnaping, the State mustprove that the defendant (1) knowingly and secretly confined the victimagainst her will, and (2) inflicted great bodily harm upon the victim. 720ILCS 5/10-1(a)(1), 10-2(a)(3) (West 1996). Here, defendant concedesthat he inflicted great bodily harm when he doused P.H. with a flammableliquid and set her ablaze. Nevertheless, he insists that P.H.'s ordeal in theSouth St. Lawrence townhouse was neither secret nor against her will. Asfor the visit not being secret, defendant notes that her presence at theSouth St. Lawrence townhouse was known to the two men who forcedher into the car and delivered her to defendant. In addition, defendantrelies upon the fact that, when defendant asked P.H. whether anyoneknew where she was, she replied, "my family would think that this wouldbe the first place I was because this was the place I was told not tocome." As for the visit not being against her will, defendant relies heavilyupon P.H.'s admission that defendant never actually told her that shecould not leave. In addition, defendant argues that, although P.H. couldhave left during either of her trips to the kitchen for a glass of water, shereturned to defendant's presence both times. Finally, defendant maintainsthat his paraplegia rendered him physically unable to prevent P.H. fromleaving.

For purposes of the aggravated kidnaping statute, secret confinementmay be shown by proof of either the secrecy of the confinement or thesecrecy of the place of confinement. People v. Pasch, 152 Ill. 2d 133,187 (1992). In this context, "secret" has been defined as concealed,hidden, or not made public. Pasch, 152 Ill. 2d at 187. "Confinement," inturn, has been defined as "[t]he act of imprisoning or restraining someone."Black's Law Dictionary 294 (7th ed. 1999); see also People v. Enoch,122 Ill. 2d 176, 196 (1988) (assessing "confinement" in terms of"restraint"). Viewed in a light most favorable to the State, the evidencehere shows that P.H was forced into a car on her way home from schooland delivered to defendant's apartment against her will. Once P.H. wasthere, defendant brandished a gun, ordered P.H. to strip naked, set P.H.on fire, withheld the return of P.H.'s clothing for more than an hour afterthe burning, and released P.H. only after she agreed to blame her attackon a stranger. On these facts, a rational jury easily could have concludedthat defendant knowingly and secretly confined P.H. against her will.Given that defendant concedes the infliction of great bodily harm, hisconviction for aggravated kidnaping must be affirmed.

We are unpersuaded by defendant's insistence that both the secrecyand the involuntariness of P.H.'s confinement "is very much in dispute." Tobe sure, P.H. admitted that defendant never actually told her that she wasnot free to leave, and defendant's paraplegia certainly limits his range ofmotion. Nevertheless, a rational trier of fact could conclude that, hisparaplegia notwithstanding, defendant demonstrated that P.H. was notfree to go by brandishing a gun, ordering her to strip naked, setting her onfire, and withholding the return of her clothing for more than an hour.Indeed, P.H. testified that, after extinguishing her burning torso in theupstairs bathroom, she "was trying to find something to put on so [she]could jump out the window." A jury certainly could conclude that jumpingout of a second-story window is not the typical exit strategy of a socialguest who is free to come and go as she pleases. And while P.H. twicereturned to defendant's presence after going to the kitchen for a glass ofwater, she did so before defendant brandished the gun. Even assuming,then, that P.H. was not confined against her will when she returned withthe glasses of water, a rational jury could conclude that P.H. was confinedagainst her will when defendant brandished a gun and set the ensuingevents in motion.

As for secrecy, defendant's case is hardly helped by the fact thatP.H.'s presence at the South St. Lawrence townhouse was known to thetwo men who forced her into a car and delivered her to defendant'sdoorstep. These men either knew what defendant was about to do, inwhich case they were accomplices, or they did not know, in which caseP.H.'s confinement remained a secret even to them. Either way, a rationaljury could conclude that, on the afternoon of September 4, 1997, P.H.was secretly confined in the South St. Lawrence townhouse. Moreover,P.H.'s assertion that "my family would think that this would be the firstplace I was because this was the place I was told not to come" is just aslikely a bluff designed to secure her release as it is an objective statementof fact. When P.H. made this assertion, she was naked, suffering fromthird-degree burns over 36% of her body, attempting to secure the returnof her clothing, and responding to her armed captor's inquiry as towhether anyone knew where she was. We have no trouble affirmingdefendant's aggravated kidnaping conviction.

2. Closing Argument

Defendant next argues that he was deprived of a fair trial when theassistant State's Attorney made certain misleading statements duringclosing arguments. Specifically, defendant notes that (1) although P.H.twice testified that defendant never told her that she could not leave, theassistant State's Attorney told the jury that he did; and (2) although P.H.testified that the two men who forced her into the car told her that "Folks"wanted to see her, the assistant State's Attorney told the jury that P.H.was told that "Sniper" wanted to see her. According to defendant, thesestatements "undoubtedly had a prejudicial impact on the jury" and therebydenied him of his right to a fair trial.

To preserve an issue for review, a defendant must raise an objectionboth at trial and in a written posttrial motion. People v. Enoch, 122 Ill. 2d176 (1988). Here, defendant did neither. Moreover, defendant does noteven attempt to argue that the alleged misstatements rise to the level ofplain error. See 134 Ill. 2d R. 615(a). Accordingly, we find this issuewaived. See People v. Nieves, 192 Ill. 2d 487, 502-03 (2000).

3. Double Enhancement: Sentencing

Next, the State argues that the appellate court erred in concludingthat the imposition of consecutive sentences in this case constituted animproper double enhancement. We agree.

Defendant was found guilty of aggravated kidnaping and heinousbattery. The trial court sentenced defendant to consecutive prison termsof 15 years for the aggravated kidnaping and 30 years for the heinousbattery. In imposing consecutive sentences, the trial court relied uponsection 5-8-4(a) of the Unified Code of Corrections, which provides:

"The court shall not impose consecutive sentences for offenseswhich were committed as part of a single course of conductduring which there was no substantial change in the nature of thecriminal objective, unless, one of the offenses for whichdefendant was convicted was a Class X or Class 1 felony andthe defendant inflicted severe bodily injury *** in which event thecourt shall enter sentences to run consecutively." 730 ILCS5/5-8-4(a) (West 1996).

On appeal, defendant argued that he was subjected to an improper doubleenhancement because the factor relied upon to impose consecutivesentences-the infliction of severe bodily injury-is already an element of theoffenses for which he was convicted. The appellate court agreed andmodified defendant's sentences to run concurrently. 329 Ill. App. 3d at12.

Generally, a factor implicit in the offense for which the defendant hasbeen convicted cannot be used as an aggravating factor in sentencing forthat offense. People v. Ferguson, 132 Ill. 2d 86, 96 (1989). Stateddifferently, a single factor cannot be used both as an element of an offenseand as a basis for imposing "a harsher sentence than might otherwise havebeen imposed." People v. Gonzalez, 151 Ill. 2d 79, 83-84 (1992). Suchdual use of a single factor is often referred to as a "double enhancement."Gonzalez, 151 Ill. 2d at 85. The prohibition against double enhancementsis based on the assumption that, in designating the appropriate range ofpunishment for a criminal offense, the legislature necessarily considered thefactors inherent in the offense. People v. Rissley, 165 Ill. 2d 364, 390(1995). The double-enhancement rule is one of statutory construction(Rissley, 165 Ill. 2d at 390), and the standard of review therefore is denovo (People v. Robinson, 172 Ill. 2d 452, 457 (1996)).

A textbook example of double enhancement is found in People v.White, 114 Ill. 2d 61 (1986). In White, this court held that, although it isa statutory aggravating factor, the victim's age cannot form the basis foran extended-term sentence where the defendant is convicted ofaggravated battery of a child. White, 114 Ill. 2d at 66. As Whiteexplained, in establishing aggravated battery of a child as a statutoryoffense separate from aggravated battery, the legislature included thevictim's age as an element of the offense. As importantly, the legislatureattached a higher penalty to aggravated battery of a child (then a Class 2felony) than it did to mere aggravated battery (a Class 3 felony). Thus, thevictim's age formed not only an element of the offense but also the basisfor an enhanced penalty. By then using the victim's age yet again as thebasis of an extended-term sentence, the trial court did exactly what thedouble enhancement rule is designed to prevent-subjected the defendantto a harsher sentence than might otherwise have been imposed. White,114 Ill. 2d at 66.

Double enhancement also occurs when the same factor is used twiceto elevate the severity of the offense itself. For example, in People v.Haron, 85 Ill. 2d 261 (1981), the defendant committed a battery, whichordinarily is a Class A misdemeanor. See Ill. Rev. Stat. 1979, ch. 38, par.12-3(b). However, because the defendant used a deadly weapon in thecourse of committing that battery, the State elevated the charge toaggravated battery, a Class 3 felony. See Ill. Rev. Stat. 1979, ch. 38, par.12-4(e). The State then used the deadly weapon again to elevate theaggravated battery charge to armed violence, a Class X felony that occurswhen a person commits a felony while armed with a dangerous weapon.See Ill. Rev. Stat. 1979, ch. 38, pars. 33A-2, 33A-3(a). In reviewing thepropriety of these charges, this court explained that "the GeneralAssembly did not intend that the presence of a weapon serve to enhancean offense from misdemeanor to felony and also to serve as the basis forcharge of armed violence." Haron, 85 Ill. 2d at 278. Accordingly, thedismissal of the armed violence charge was affirmed. Haron, 85 Ill. 2d at280.

Applying these principles to the present case, we conclude thatdefendant's consecutive sentences do not constitute a doubleenhancement. Defendant's heinous battery charge alleged that, in thecourse of committing a battery, defendant knowingly caused P.H. to suffersevere and permanent disability by means of a flammable substance. Thus,the infliction of severe and permanent disability was used once to enhancebattery, a Class A misdemeanor punishable by less than a year in prison,to heinous battery, a Class X felony punishable by 6 to 45 years in prison.Once defendant was convicted of heinous battery, however, no furtherenhancements occurred. Defendant stood convicted of a Class X felonypunishable by 6 to 45 years in prison, and he was sentenced to anonextended term of 30 years in prison. Likewise, defendant's aggravatedkidnaping charge alleged that, in the course of kidnaping P.H., defendantinflicted great bodily harm upon her. Thus, the infliction of great bodilyharm was used once to enhance kidnaping, a Class 2 felony punishable by3 to 7 years in prison, to aggravated kidnaping, a Class X felonypunishable by 6 to 30 years in prison. Once defendant was convicted ofaggravated kidnaping, however, no further enhancements occurred.Defendant stood convicted of a Class X felony punishable by 6 to 30years in prison, and he was sentenced to a nonextended term of 15 yearsin prison. Thus, the severity of each offense was enhanced only once.

The fact that the trial court ordered defendant to serve his sentencesconsecutively does not change this outcome. To be sure, the consecutivesentencing order was premised on the fact that defendant "inflicted severebodily injury" (see 730 ILCS 5/5-8-4(a) (West 1996)), an element ofboth aggravated kidnaping and heinous battery. Nevertheless, no doubleenhancement occurred because consecutive sentencing is not a sentencingenhancement. Again, a double enhancement occurs when a single factoris used both as an element of an offense and as a basis for imposing "aharsher sentence than might otherwise have been imposed." Gonzalez,151 Ill. 2d at 83-84. In People v. Carney, 196 Ill. 2d 518 (2001), thiscourt specifically held that a defendant subject to consecutive sentencing"is not exposed to punishment beyond that authorized by the jury'sverdict, provided that the sentence for each separate offense does notexceed the maximum permitted by statute for that offense." Carney, 196Ill. 2d at 532. This is because consecutive sentencing "determines only themanner in which a defendant will serve his sentences for multiple offenses."Carney, 196 Ill. 2d at 532. Thus, even when subject to consecutivesentencing, "[e]ach conviction results in a discrete sentence that must betreated individually." (Emphases added.) Carney, 196 Ill. 2d at 530. Inthe preceding paragraph, we treated defendant's discrete sentencesindividually and concluded that no double enhancements occurred. UnderCarney, no further inquiry is warranted.

We note that, even if defendant's consecutive sentences didconstitute a double enhancement, the appellate court still erred inmodifying those sentences to run concurrently. The general prohibitionagainst double enhancements is "merely a rule of statutory construction,"premised on the assumption that the legislature considered the factorsinherent in the offense in fashioning the appropriate range of punishmentfor that offense. People v. Rissley, 165 Ill. 2d 364, 390 (1995).Consequently, where the legislature clearly intends to enhance the penaltybased upon some aspect of the crime, and such an intention is clearlyexpressed, there is no prohibition. Rissley, 165 Ill. 2d at 390. Indetermining whether the legislature intended a double enhancement, welook to the statute itself as the best indication of the legislature's intent.Rissley, 165 Ill. 2d at 390-91. The best indication of legislative intent isthe statutory language, given its plain and ordinary meaning. IllinoisGraphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994).

Under section 5-8-4(a), consecutive sentencing is mandated where"one of the offenses for which defendant was convicted was a Class X orClass 1 felony and the defendant inflicted severe bodily injury." 730 ILCS5/5-8-4(a) (West 1996). In People v. Whitney, 188 Ill. 2d 91 (1999),this court was asked to construe this provision and decide whether, inorder to qualify for consecutive sentencing, the defendant must inflict greatbodily harm in the course of committing the actual Class X or Class 1felony. This court held that he must. Whitney, 188 Ill. 2d at 98-99.Significantly, the next question was not whether consecutive sentencingapplied even to those Class X and Class 1 felonies for which severebodily harm is an element. Rather, the question was whether consecutivesentencing applied only to those Class X and Class 1 felonies for whichsevere bodily harm is an element. Whitney, 188 Ill. 2d at 99. In holdingthat the statute was not so narrowly drafted, this court explained that "anyClass X or Class 1 felony that results in severe bodily injury being inflictedon the victim of that felony triggers consecutive sentences." (Emphasisadded.) Whitney, 188 Ill. 2d at 99. Thus, in Whitney, this court took it asa given that consecutive sentencing was intended to apply to Class X andClass 1 felonies for which severe bodily harm is an element. The onlyquestion was what additional Class X and Class 1 felonies are subject toconsecutive sentencing.

Again, where the legislature clearly intends to enhance the penaltybased upon some aspect of the crime, and such an intention is clearlyexpressed, there is no prohibition. Rissley, 165 Ill. 2d at 390. As Whitneyteaches, the legislature clearly intended to make consecutive sentencingapplicable to Class X and Class 1 felonies for which severe bodily harmis an element. Even assuming, then, that defendant's consecutive sentencesdid constitute a double enhancement, they constituted a perfectly lawfuldouble enhancement.

Accordingly, we reverse that portion of the appellate court's opinionmodifying defendant's sentences to run concurrently.

4. Double Enhancement: Offenses

Finally, defendant raises another double-enhancement argument. Thistime, defendant argues that one of his convictions must be vacatedbecause a single factor-the infliction of great bodily harm-was used toenhance both of the offenses for which he was convicted. In support,defendant notes that the single fact that he inflicted great bodily harm uponP.H. was used against him twice, once to elevate kidnaping to aggravatedkidnaping and again to elevate battery to heinous battery. According todefendant, this constitutes an unlawful double enhancement.

We disagree. As explained above, the double-enhancement ruleprohibits a single factor from being used twice with respect to the sameoffense. Gonzalez, 151 Ill. 2d at 83-84; Ferguson, 132 Ill. 2d at 96.Defendant does not cite, and we cannot find, any principle that prohibitsthe use of a single factor with respect to separate and distinct offenses. Infact, this court has specifically held that " '[a] person can be guilty of twooffenses when a common act is part of both offenses.' " People v.Rodriguez, 169 Ill. 2d 183, 188 (1996), quoting People v. Lobdell, 121Ill. App. 3d 248, 252 (1983). Such is the case here. Defendant committeda heinous battery not only by causing bodily harm to P.H. but by alsoinflicting severe and permanent disfigurement by means of a flammablesubstance. See 720 ILCS 5/12-4.1(a) (West 1996). In addition, hecommitted an aggravated kidnaping not only by kidnaping P.H. but alsoby inflicting great bodily harm upon her in the process. See 720 ILCS5/10-2(a)(3) (West 1996). As defined by the legislature, these are entirelydistinct offenses, and the State proved each of their elements beyond areasonable doubt. Nothing prohibits such an outcome, and defendant'sheinous battery and aggravated kidnaping convictions therefore will stand.

CONCLUSION

For the foregoing reasons, we reverse that portion of the appellatecourt's judgment modifying defendant's sentences to run concurrently. Thebalance of the judgment is affirmed.

Affirmed in part and reversed in part.