{ "id": 126413, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE M. CUNNINGHAM, Defendant-Appellant", "name_abbreviation": "People v. Cunningham", "decision_date": "2001-06-07", "docket_number": "No. 2 \u2014 99\u20141466", "first_page": "811", "last_page": "815", "citations": [ { "type": "official", "cite": "322 Ill. App. 3d 811" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "128 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229022 ], "year": 1989, "opinion_index": 0, "case_paths": [ "/ill-2d/128/0448-01" ] }, { "cite": "292 Ill. App. 3d 644", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 1725053 ], "year": 1997, "pin_cites": [ { "page": "648-49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/292/0644-01" ] }, { "cite": "311 Ill. App. 3d 363", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415301 ], "year": 2000, "pin_cites": [ { "page": "369" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0363-01" ] }, { "cite": "169 Ill. 2d 183", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 909165 ], "year": 1996, "pin_cites": [ { "page": "186-89" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/169/0183-01" ] }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "year": 1977, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "163 Ill. 2d 93", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 477642 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "105-15" }, { "page": "105" }, { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/163/0093-01" ] }, { "cite": "184 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 926989 ], "year": 1998, "pin_cites": [ { "page": "104-05" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/184/0058-01" ] }, { "cite": "307 Ill. App. 3d 991", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 173604 ], "year": 1999, "pin_cites": [ { "page": "998" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/307/0991-01" ] }, { "cite": "128 Ill. 2d 540", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228677 ], "year": 1989, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0540-01" ] } ], "analysis": { "cardinality": 523, "char_count": 9440, "ocr_confidence": 0.769, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.004422265545211323 }, "sha256": "3b67c13c5ee9ce2064209a9c59115fed448b1618b8653e1eb797198b66119eb1", "simhash": "1:ba71db2d64cfb054", "word_count": 1562 }, "last_updated": "2023-07-14T19:05:07.459628+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. JESSE M. CUNNINGHAM, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE O\u2019MALLEY\ndelivered the opinion of the court:\nA jury convicted defendant, Jesse M. Cunningham, of two counts of aggravated unlawful failure to obey an order to stop (625 ILCS 5/4 \u2014 103.2(a)(7)(A) (West 1998)) (aggravated unlawful failure to obey), two counts of unlawful use of a weapon (720 ILCS 5/24 \u2014 1(a)(4), (a)(10) (West 1998)), and one count of unlawful possession of a stolen motor vehicle (625 ILCS 5/4 \u2014 103(a)(1) (West 1998)) (unlawful possession). The trial court vacated one conviction of aggravated unlawful failure to obey and both weapons convictions and sentenced defendant to concurrent terms of 10 years\u2019 imprisonment for aggravated unlawful failure to obey and 6 years\u2019 imprisonment for unlawful possession. The court denied defendant\u2019s motion to reconsider sentence, and he timely appealed.\nOn appeal, defendant asserts that (1) his conviction of unlawful possession must be vacated as a lesser included offense of aggravated unlawful failure to obey; and (2) the trial court abused its discretion in sentencing him to 10 years\u2019 imprisonment for aggravated unlawful failure to obey. We affirm. That portion of our order dealing with defendant\u2019s sentence will be unpublished pursuant to Supreme Court Rule 23 (166 III. 2d R. 23).\nCount I of the indictment states that on or about July 7, 1999, defendant \u201ccommitted the offense of AGGRAVATED UNLAWFUL FAILURE TO STOP, in that said defendant, who was the driver of a 1996 Toyota Corolla of another, and was not entitled to possession of that vehicle, and who knew that the vehicle was stolen, refused to obey the direction of a peace officer, who had signaled said defendant to bring said vehicle to a stop.\u201d Count II states that on or about July 7, 1999, defendant \u201ccommitted the offense of UNLAWFUL POSSESSION OF STOLEN MOTOR VEHICLE, in that the said defendant, a person not entitled to possession of said vehicle, possessed a 1996 Toyota Corolla of another, knowing it to have been stolen.\u201d\nThe evidence at defendant\u2019s jury trial showed the following. On the morning of July 6, 1999, defendant stole a Toyota Corolla in Calumet City and drove off in the car. The next day, at about 7 a.m., defendant held up a gas station in Racine, Wisconsin, then drove the stolen Corolla south on Interstate 94. Two uniformed Kenosha County sheriffs deputies, one on a motorcycle and one in a marked squad car, pursued defendant. Defendant accelerated, and soon he and the officers were going over 100 miles per hour. Defendant drove dangerously, cutting off other cars. As defendant crossed into Illinois and approached a toll plaza, traffic became heavy and he and the officers slowed to 60 or 70 miles per hour. Several cars were stopped at the toll plaza, but defendant veered, crashed through a tollgate, and kept going.\nThe two Wisconsin officers pursued defendant. Officers from Illinois were alerted to the situation. Defendant crossed from the left emergency lane to the right emergency lane and came to where construction had almost halted the other traffic. Defendant and the Wisconsin officers were again going 100 miles per hour or more. The officer on the motorcycle rode up to defendant, pointed his gun at defendant, and ordered him to stop. Defendant ducked down, made a U-turn, drove north on the interstate\u2019s southbound entrance ramp, and then drove west in an eastbound lane of Route 22. Soon, he drove to a subdivision in Lincolnshire, pulled into a parking lot, and collided with the Kenosha County squad car. Defendant jumped out of the Corolla and ran. He was found after a search.\nDefendant argues that his conviction of possession of a stolen motor vehicle must be vacated because, under the circumstances here, it is included in his conviction of aggravated unlawful failure to obey. Although defendant did not raise this issue at the trial level, we may consider it under the plain error rule. See People v. Turner, 128 Ill. 2d 540, 555 (1989); People v. Boyd, 307 Ill. App. 3d 991, 998 (1999). We see no error.\nRelying on the \u201ccharging instrument\u201d approach that our supreme court has approved (see People v. McLaurin, 184 Ill. 2d 58, 104-05 (1998); People v. Novak, 163 Ill. 2d 93, 105-15 (1994)), defendant asserts that count I of the indictment, charging aggravated unlawful failure to obey, also describes the offense charged in count II, unlawful possession of a stolen motor vehicle. Defendant argues that, according to the facts as alleged in the indictment, both convictions are based on one act, i.e., defendant\u2019s driving the stolen Corolla, and that multiple convictions based on this one act cannot stand (see People v. King, 66 Ill. 2d 551, 566 (1977)).\nDefendant\u2019s somewhat cursory argument appears to assume that, to have one conviction vacated, he must establish that the two convictions were carved from the same single act. However, one offense may be \u201cincluded\u201d in another even if there is more than one criminal act involved. See People v. Rodriguez, 169 Ill. 2d 183, 186-89 (1996); People v. Lee, 311 Ill. App. 3d 363, 369 (2000); People v. Eggerman, 292 Ill. App. 3d 644, 648-49 (1997). Thus, although we disagree with defendant that his two convictions are based on one act, this alone does not establish that one conviction is not included in the other.\nAs charged in the indictment, the offense of unlawful possession was complete when defendant possessed the stolen car. The offense of aggravated failure to obey was not complete until later, when defendant disobeyed the order to stop. Although the two convictions obviously involve closely overlapping acts, they do not appear to violate the \u201cone-act, one-crime\u201d rule. Nonetheless, it is conceivable that the possession offense could be included in the unlawful failure offense if the count setting out the latter describes the former. Considered in the abstract, the language of the counts might suggest such a conclusion. However, a simple but crucial consideration refutes defendant\u2019s argument.\nWhat defendant overlooks is that whether one offense is included in another depends on the legislature\u2019s intent, at least insofar as multiple convictions do not implicate double jeopardy. Thus, in Novak, the defendant was convicted of aggravated criminal sexual assault (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 14(b)(1)). On appeal, he argued that the trial court should have instructed the jury on aggravated criminal sexual abuse (Ill. Rev. Stat. 1989, ch. 38, par. 12 \u2014 16(c)(l)(i)), which he claimed was a lesser included offense. The supreme court explained that whether one offense was included in the other depended on the meaning of section 2 \u2014 9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1989, ch. 38, par. 2 \u2014 9), which defined \u201cincluded offense.\u201d Novak, 163 Ill. 2d at 105. It was only because this legislative definition was ambiguous or incomplete that the court resorted to the \u201ccharging instrument\u201d approach .to clarify when one offense is included in another. Novak, 163 Ill. 2d at 106.\nEarlier, in People v. Bryant, 128 Ill. 2d 448 (1989), the supreme court considered whether possession of a stolen motor vehicle (Ill. Rev. Stat. 1985, ch. 95V2, par. 4 \u2014 103(b)) was a lesser included offense of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16 \u2014 1). Observing that at one time this may have been so, the court concluded that under the current legislative scheme it was no longer so. The court reasoned that, by steadily increasing the penalty for the unlawful possession of a stolen motor vehicle, the legislature had manifested its intent to treat that offense as separate from and more serious than theft rather than as a lesser included offense of theft. Bryant, 128 Ill. 2d at 457.\nHere, the legislature\u2019s intent disposes of defendant\u2019s argument that unlawful possession is a lesser included offense of aggravated unlawful failure to obey. Section 4 \u2014 103 of the Illinois Vehicle Code defines offenses including unlawful possession (see 625 ILCS 5/4\u2014 103(a)(1) (West 1998)). Section 4 \u2014 103.2 defines aggravated unlawful failure to obey (see 625 ILCS 5/4 \u2014 103.2(a)(7)(A) (West 1998)). Section 4 \u2014 103.2 explicitly adds, \u201cThe offenses set forth in subsection (a) of this Section shall not include the offenses set forth in Section 4 \u2014 103 of this Code.\u201d 625 ILCS 5/4 \u2014 103.2(d) (West 1998). (Section 4 \u2014 103 also provides that the offenses it defines shall not include those set out in section 4 \u2014 103.2. See 625 ILCS 5/4 \u2014 103(c) (West 1998).)\nThus, no less than in Bryant, the legislature clearly intended not to make one offense a lesser included offense of another. We see no double jeopardy problem or any other basis that would permit us to disregard this plain intent. Therefore, we hold that, because defendant\u2019s conviction of unlawful possession is not included in his conviction of aggravated failure to obey, both convictions and their respective sentences must stand.\nThe judgment of the circuit court of Lake County is affirmed.\nAffirmed.\nHUTCHINSON, EJ., and BOWMAN, J., concur.", "type": "majority", "author": "JUSTICE O\u2019MALLEY" } ], "attorneys": [ "G. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and George S. Pfeifer, of Evanston, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz and Peggy F.J. Bradford, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE M. CUNNINGHAM, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 99\u20141466\nOpinion filed June 7, 2001.\nG. Joseph Weller, of State Appellate Defender\u2019s Office, of Elgin, and George S. Pfeifer, of Evanston, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz and Peggy F.J. Bradford, both of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0811-01", "first_page_order": 829, "last_page_order": 833 }