{ "id": 5136552, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH LAMKEY, Defendant-Appellant", "name_abbreviation": "People v. Lamkey", "decision_date": "1992-12-30", "docket_number": "No. 1-91-0689", "first_page": "435", "last_page": "442", "citations": [ { "type": "official", "cite": "240 Ill. App. 3d 435" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "412 N.E.2d 541", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. 2d 268", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5476013 ], "opinion_index": 0, "case_paths": [ "/ill-2d/82/0268-01" ] }, { "cite": "542 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "186 Ill. App. 3d 772", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2655121 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/186/0772-01" ] }, { "cite": "319 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2960454 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0125-01" ] }, { "cite": "438 N.E.2d 180", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "91 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092628 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/91/0346-01" ] }, { "cite": "464 N.E.2d 223", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1982, "opinion_index": 0 }, { "cite": "102 Ill. 2d 23", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156739 ], "year": 1982, "opinion_index": 0, "case_paths": [ "/ill-2d/102/0023-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "414 N.E.2d 1117", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "91 Ill. App. 3d 523", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3150808 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0523-01" ] }, { "cite": "502 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3538787 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0795-01" ] }, { "cite": "381 N.E.2d 254", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "72 Ill. 2d 282", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5442815 ], "pin_cites": [ { "page": "285" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/72/0282-01" ] }, { "cite": "114 N.E.2d 566", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. 2d 60", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5314825 ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0060-01" ] }, { "cite": "365 N.E.2d 1013", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 421", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5643323 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0421-01" ] }, { "cite": "515 N.E.2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 623", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3467140 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0623-01" ] } ], "analysis": { "cardinality": 754, "char_count": 16126, "ocr_confidence": 0.772, "pagerank": { "raw": 1.4191111362721675e-07, "percentile": 0.6486217922357636 }, "sha256": "eb1e76006729f6841c63741678a54f20de315ef5c2f54007addacad995aae259", "simhash": "1:b9f3791e6d14bb44", "word_count": 2662 }, "last_updated": "2023-07-14T17:58:37.771033+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH LAMKEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McNAMARA\ndelivered the opinion of the court:\nFollowing a bench trial, defendant, Kenneth Lamkey, was convicted of aggravated criminal sexual assault and aggravated kidnapping of a 10-year-old girl and was sentenced to serve concurrent terms of 20 years and 15 years, respectively. Defendant appeals, raising as issues whether the State proved defendant guilty of aggravated kidnapping beyond a reasonable doubt; the court erroneously convicted defendant of multiple offenses arising from a single act; and whether the court abused its discretion in the imposition of sentence. (Defendant does not challenge the finding of guilt as to one count of aggravated criminal sexual assault.)\nPrior to trial, the court determined that the victim was competent to testify. On September 15, 1989, as the victim walked alone northbound on Cicero Avenue toward her school, she was grabbed at her wrists by a man who jumped out of a doorway. The man wore only a shirt. The assailant pulled her into a hallway and pushed her against the wall. As she knelt against the wall, he held his penis with one hand and tried to stick it into her mouth. The victim kicked, scratched and bit defendant; however, he continued his assault and tried to put his penis into her mouth a second time. The victim pushed the man away. He ran upstairs into his house. She then ran out of the building into a mechanic\u2019s shop. As a result of the attack, the victim sustained injuries to her lip, chin, and neck.\nOn cross-examination, the victim stated that the hallway which defendant pulled her into was situated between two doors, the outside door leading to the sidewalk onto Cicero Avenue, and a second door, which had been open, led upstairs. She further stated that the hall area was small and only permitted space for two people. The victim estimated that the assault lasted approximately 15 minutes. From where she was positioned inside the hallway, the victim could see cars moving and people walking by on the sidewalk. The following day, she identified defendant in a lineup. The victim also made an in-court identification of defendant as the man who perpetrated the assault against her.\nDick Lorenz testified for the State that at the time the incident occurred, he was traveling southbound on Cicero Avenue when he observed defendant, who was wearing only a shirt, grab the victim. Lorenz slowed down his automobile to try to get a better look. Lorenz established eye contact with defendant. He then drove around the block and stopped directly in front of the hallway where defendant had taken the victim. Lorenz sounded his automobile horn. He again established eye contact with defendant, who released the victim and immediately turned around and ascended the staircase. The victim ran out of the building and entered an adjacent mechanic shop. Lorenz followed her into the building, and the police were called. Lorenz identified defendant from a photographic array on the evening of the assault and from a lineup the following day.\nDuring cross-examination, Lorenz stated that the incident occurred in an area clearly visible to anyone walking or driving down the street. Lorenz estimated that the assault lasted approximately one to two minutes.\nSergeant Kaupert of the Chicago police department was assigned to investigate the assault. He described the building where the incident occurred as a two-story brick building, -with commercial or retail space on the first floor and apartments on the second floor. The initial stairway was a step or two up from the sidewalk through a glass door, and another glass door led to an internal stairwell. Kaupert recovered a small barrette which belonged to the victim during the course of his investigation. He further testified that the victim sustained minor abrasions and cuts to her facial area, nose, chin and lip during the altercation.\nDetective Robert Collins testified that following the identification of defendant by the victim and Lorenz, defendant confessed to him that he committed the assault and that he had been thinking about having sex with a child for a period of time. After the assault, he ran upstairs into his apartment, where he waited for about 15 minutes before he left for work.\nAt the close of the State\u2019s case, the court denied defendant\u2019s motion for a directed verdict. Defendant presented no witnesses on his behalf. The judge first found defendant guilty of aggravated criminal sexual assault. With respect to the aggravated kidnapping charge, the court found that there was no doubt that the victim was taken from one place to another, and that defendant intended to secretly confine her against her will. The judge surmised that the reason that Lorenz was able to see what had occurred was because he had seen defendant abduct the victim off the street; thus, he had a focus on the particular victim. The judge found defendant guilty of aggravated kidnapping. For purposes of sentencing, the judge merged the two counts of aggravated criminal sexual assault and imposed a 20-year sentence upon defendant. The court merged the four counts pertaining to the aggravated kidnapping and sentenced defendant to a concurrent term of 15 years.\nOn appeal, defendant first asserts that his conviction and sentence for aggravated kidnapping must be reversed because the State failed to prove the essential elements of kidnapping beyond a reasonable doubt. Specifically, defendant argues that the State failed to prove that a secret confinement occurred. Alternatively, defendant contends that the asportation of the victim was not established beyond a reasonable doubt because it was incidental to the properly entered conviction for aggravated criminal sexual assault.\nThe crime of kidnapping occurs when a person knowingly and secretly confines another against his will, or by force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will. (Ill. Rev. Stat. 1987, ch. 38, par. 10 \u2014 1.) A kidnapper who takes as his victim a child under the age of 13 years commits aggravated kidnapping. (Ill. Rev. Stat. 1987, ch. 38, par. 10 \u2014 2(a)(2).) \u201cSecret confinement,\u201d the gist of kidnapping, is demonstrated by either the secrecy of confinement or the place of confinement, and must be proved beyond a reasonable doubt. People v. Sykes (1987), 161 Ill. App. 3d 623, 515 N.E.2d 253, citing People v. Mulcahey (1977), 50 Ill. App. 3d 421, 365 N.E.2d 1013.\nIn Illinois, reviewing courts have addressed the necessary proof to establish the \u201csecret confinement\u201d element of the charged offense. In general, the victim has clearly been \u201cconfined\u201d or enclosed within something, such as a house or a car. See People v. Mulcahey, 50 Ill. App. 3d 421, 365 N.E.2d 1013 (the victim was bound to a chair in her own home); People v. Bishop (1953), 1 Ill. 2d 60, 114 N.E.2d 566 (secret confinement in an automobile while it is in motion upon a highway).\nThe facts presented in People v. Sykes are similar to those found in the instant case. There, the defendant confronted the 10-year-old victim as she approached the school playground around 8:30 a.m. Defendant grabbed the victim\u2019s arm and pulled her into an alley. They proceeded through two or three alleys until they reached a partially vacant building. After defendant was denied entry into the building, they returned to the street where the victim yelled for help and defendant ran off. Relying upon the definition of \u201csecret\u201d as \u201cconcealed; hidden; not made public\u201d (People v. Mulcahey (1978), 72 Ill. 2d 282, 285, 381 N.E.2d 254), the Sykes court held that such \u201cconfinement\u201d was not envisioned by the Illinois courts, nor did it comport with the \u201csecret\u201d component of the statute. Accordingly, defendant\u2019s conviction for aggravated kidnapping was reversed since the State failed to prove that the victim was \u201csecretly confined.\u201d\nUnder the factual circumstances presented here, we find that the State failed to prove the element of secret confinement necessary to sustain a conviction for kidnapping. At the outset, we note that the crime occurred in the vestibule of a building located only a couple of steps away from one of the busiest thoroughfares in Chicago. Sergeant Kaupert testified that the initial stairway into the hall of the building was a step or two up from the sidewalk through a glass door. Once inside the hallway, the victim testified that she saw cars driving and people walking by on the sidewalk. It is also significant that defendant made no attempt to move the victim into a more concealed location within the building, such as into his apartment. Rather, defendant remained within public view in the vestibule in an area clearly visible to anyone walking or driving down the street. When Lorenz saw defendant sexually assaulting the victim from his position inside the car, he sounded his automobile horn in an attempt to interrupt defendant\u2019s actions.\nMoreover, we also find that the asportation of the victim was not established beyond a reasonable doubt. Four factors to be considered in determining when an act of detention or asportation rises to the level of kidnapping as a separate offense are: (1) the duration of the detention or asportation; (2) whether the detention or asportation occurred during the commission of a separate offense; (3) whether the detention or asportation which occurred is inherent in the separate offense; and (4) whether the asportation or detention created a significant danger to the victim independent of that posed by the separate offense. People v. Gully (1986), 151 Ill. App. 3d 795, 502 N.E.2d 1091, citing People v. Smith (1980), 91 Ill. App. 3d 523, 414 N.E.2d 1117.\nAccording to Lorenz, the asportation here lasted only for two minutes. Too, the fact that defendant, clad only in a shirt, was able to reach out and grab the victim lends support to defendant\u2019s contention that she was not detained for any substantial period of time. We also note that the asportation and detention occurred during the commission of the aggravated criminal sexual assault and that such detention is, of course, inherent to that offense. Finally, we do not find that the asportation posed a more significant danger to the victim than that already posed by the sexual assault. Collins testified that defendant told him that he committed the assault and that he grabbed the victim and pulled her into the hallway. It appears, therefore, that the asportation or detention which occurred here was merely incidental to the separate offense of aggravated criminal sexual assault.\nIn view of the foregoing factors, we find that the State failed to prove that defendant intended to secretly confine the defendant or that asportation occurred. Accordingly, defendant\u2019s conviction for aggravated kidnapping must be reversed.\nDefendant also argues that the doctrine of lesser included offenses and the rule of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, require the vacatur of one count of aggravated criminal sexual assault. The record reveals that defendant was charged with two counts of aggravated criminal sexual assault. Count I charged that the act of sexual penetration was done while causing bodily harm to the victim (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(a)(2)), and count II charged that the act of sexual penetration was committed with a victim who was under 13 years of age (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(b)(1)). The trial court found defendant guilty of both counts; however, it held that count II merged with count I for purposes of sentencing.\nIt is axiomatic that there is no final judgment in a criminal case until the imposition of sentence, and, in the absence of a final judgment, an appeal cannot be entertained. (People v. Caballero (1984), 102 Ill. 2d 23, 464 N.E.2d 223; People v. Dixon (1982), 91 Ill. 2d 346, 438 N.E.2d 180; People v. Warship (1974), 59 Ill. 2d 125, 319 N.E.2d 507.) However, it does not follow that the conviction must be vacated. Thus, there can be no appeal of defendant\u2019s conviction of a second count of aggravated criminal sexual assault in view of the absence of an imposition of sentence.\nFinally, defendant challenges that his 20-year sentence for aggravated criminal sexual assault is excessive, and that it was improper for the court to rely upon the victim\u2019s age as an aggravating factor since her age was an element of the offense. We find defendant\u2019s contention without merit, since the 20-year sentence was entered on count I, which alleged the offense of aggravated criminal sexual assault based upon bodily harm to the victim (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(a)(2)). Therefore, the victim\u2019s age was not an element of the offense. It is clear from the trial court\u2019s comments at the sentencing hearing that it did consider the victim\u2019s age as an aggravating factor. The court\u2019s comments included the words \u201cyoung,\u201d \u201cvery tender age,\u201d \u201clittle girl\u201d and \u201cyoung children.\u201d However, it is not improper for the sentencing court to consider the victim\u2019s age in considering the nature of the offense and the circumstances present in the case. (People v. Wyatt (1989), 186 Ill. App. 3d 772, 542 N.E.2d 872.) In addition, age was not the only factor relied upon by the court, because the judge also referred to the serious harm caused to the victim and to the fact that the sentence was necessary to deter others from committing the same crime, both of which are proper aggravating factors. (See Ill. Rev. Stat. 1989, ch. 38, pars. 1005 \u2014 5\u2014 3.2(a)(1), (a)(7).) Consequently, we find that the court\u2019s consideration of the victim\u2019s age did not constitute an abuse of discretion warranting a reduction or vacatur of defendant\u2019s sentence.\nRelatedly, defendant argues that the 20-year term of imprisonment was excessive. He refers to the following mitigating factors to support his claim: his age of 21 years at the time of sentencing; a criminal record limited to one prior misdemeanor; his employment at the time of the incident and the possibility of future employment; a poor home life; emotional instability reflected by three suicide attempts; substance abuse and his tendency toward pedophilia; his penitent spirit when he addressed the court before sentencing; and the fact that defendant\u2019s alcohol abuse allegedly diminished his capacity to resist his pedophiliac urges. Defendant also suggests that the court was influenced by the fact that he had attempted a similar crime two days prior to this incident, but there is no support in the record for this contention.\nAfter reviewing the record, we find that the court did not abuse its discretion when it sentenced defendant to the 20-year term, for it was well within the statutory range for this offense. (Ill. Rev. Stat. 1987, ch. 38, pars. 12 \u2014 14(c), 1005 \u2014 8\u20141(a)(3).) The court\u2019s comments indicated that the sentence imposed was based upon the seriousness of the crimes and the need to protect the public and to deter others from committing similar offenses, all of which are proper factors upon which to base a sentence. A reviewing court cannot substitute its judgment for that of the trial court merely because it may have balanced the appropriate factors differently from the trial court. (People v. Cox (1980), 82 Ill. 2d 268, 412 N.E.2d 541.) The record indicates that the court heard and considered proper aggravating and mitigating factors. We will not disturb defendant\u2019s sentence upon review.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed in part and reversed in part.\nAffirmed in part; reversed in part.\nEGAN, P.J., and RAKOWSKI, J., concur.", "type": "majority", "author": "JUSTICE McNAMARA" } ], "attorneys": [ "Michael J. Pelletier and Samuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica Calderon, and Julie Mark, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH LAMKEY, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1 \u2014 91\u20140689\nOpinion filed December 30, 1992.\nRehearing denied February 2, 1993.\nMichael J. Pelletier and Samuel S. Serritos, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Veronica Calderon, and Julie Mark, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0435-01", "first_page_order": 453, "last_page_order": 460 }