{ "id": 3262359, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY SCHULTZ, Defendant-Appellant", "name_abbreviation": "People v. Schultz", "decision_date": "1979-07-03", "docket_number": "No. 78-143", "first_page": "379", "last_page": "388", "citations": [ { "type": "official", "cite": "73 Ill. App. 3d 379" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "365 N.E.2d 603", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5640455 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0550-01" ] }, { "cite": "368 N.E.2d 452", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 197", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3390347 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0197-01" ] }, { "cite": "374 N.E.2d 1118", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "58 Ill. App. 3d 1019", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5624515 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/ill-app-3d/58/1019-01" ] }, { "cite": "377 N.E.2d 179", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "60 Ill. App. 3d 1034", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3353665 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/60/1034-01" ] }, { "cite": "364 N.E.2d 408", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "415" } ], "opinion_index": 0 }, { "cite": "49 Ill. 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App. 3d", "case_ids": [ 2714753 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0713-01" ] }, { "cite": "285 N.E.2d 133", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "52 Ill. 2d 107", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395691 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/52/0107-01" ] }, { "cite": "336 N.E.2d 146", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "32 Ill. App. 3d 654", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2791927 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0654-01" ] }, { "cite": "397 U.S. 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12054849 ], "weight": 3, "pin_cites": [ { "page": "468-69" }, { "page": "1207" }, { "page": "489" } ], "opinion_index": 0, "case_paths": [ "/us/397/0436-01" ] }, { "cite": "382 N.E.2d 893", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "382 N.E.2d 150", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "153-54" } ], "opinion_index": 0 }, { "cite": "357 N.E.2d 84", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 586", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2723356 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0586-01" ] }, { "cite": "379 N.E.2d 721", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "723" } ], "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 924", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5622113 ], "weight": 2, "pin_cites": [ { "page": "926" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0924-01" ] }, { "cite": "346 N.E.2d 79", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "82" } ], "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 358", "category": "reporters:state", "reporter": "Ill. 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App. 3d", "case_ids": [ 3403939 ], "weight": 2, "pin_cites": [ { "page": "834" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/54/0830-01" ] }, { "cite": "259 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 310", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895244 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0310-01" ] }, { "cite": "291 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "2" }, { "page": "3" } ], "opinion_index": 0 }, { "cite": "53 Ill. 2d 101", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2926001 ], "weight": 3, "pin_cites": [ { "page": "103" }, { "page": "104" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0101-01" ] }, { "cite": "374 N.E.2d 200", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "year": 1972, "opinion_index": 0 }, { "cite": "71 Ill. 2d 132", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5450360 ], "weight": 4, "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/71/0132-01" ] }, { "cite": "356 N.E.2d 1362", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "43 Ill. App. 3d 328", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2726966 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/43/0328-01" ] }, { "cite": "347 N.E.2d 869", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "38 Ill. App. 3d 517", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2804677 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-app-3d/38/0517-01" ] }, { "cite": "93 S. Ct. 2731", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1976, "opinion_index": 0 } ], "analysis": { "cardinality": 869, "char_count": 24260, "ocr_confidence": 0.889, "pagerank": { "raw": 4.610097799531253e-07, "percentile": 0.9261877816042557 }, "sha256": "5bee67045abb6a428df139bd4ffab3faecdc1d7588c8b81b582a28fee38df1bf", "simhash": "1:b9870dd52ef776a7", "word_count": 4123 }, "last_updated": "2023-07-14T21:56:34.335432+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. ROY SCHULTZ, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE BARRY\ndelivered the opinion of the court:\nOn July 24,1977, Bruce Wood, his wife Ada, and their two children, Tracy (age 5) and Timothy (age 2), were driving to Metamora, Illinois, when they saw a car driven by the defendant, Roy Schultz, an escapee from the Kansas State Penitentiary, run off of the road. The Woods, seeking to render whatever assistance they could to the defendant, pulled over, and Bruce Wood offered to give Schultz a ride. Schultz, however, suddenly drew a gun on Bruce Wood and took control of the Woods\u2019 car.\nThe Woods and Schultz drove for some time, during which Schultz took approximately $100 from Bruce Wood\u2019s wallet. Eventually they arrived at the Bloomington Ramada Inn. Schultz obtained a room there, and once inside tied up Bruce Wood. He then made Ada Wood undress and perform fellatio upon him. After forcing her to perform this deviate sexual act, he took Bruce and Timothy Wood into the bathroom. He then made Ada Wood undress Tracy and show her how to perform fellatio upon him. Subsequently, Tracy did perform this act upon Schultz. Afterwards, Schultz made Ada Wood join the two others in the bathroom. Approximately 30 minutes later, Tracy came into the bathroom and stated that the defendant had placed his finger in her vagina. Ada Wood corroborated this when she testified that she did in fact see blood on Tracy. Later, the defendant again forced Ada Wood to perform fellatio upon him. Eventually, the Woods subdued the defendant and called the police.\nSchultz was charged by information with seven counts of aggravated kidnapping, two counts of deviate sexual assault, two counts of indecent liberties with a child, and one count of armed robbery. For the sake of clarity, listed below are the various counts, the particular crime alleged to have been committed by Schultz and the activity performed in each count, the victim in each count and the section of the Illinois Criminal Code that was allegedly violated:\nCount I \u2014 Aggravated kidnapping \u2014 child under 13 (Tracy Wood). Ill. Rev. Stat. 1975, ch. 38, par. 10\u20142(a)(2).\nCount II \u2014 Aggravated kidnapping \u2014 child under 13 (Timothy Wood). Ill. Rev. Stat. 1975, ch. 38, par. 10-2(a)(2).\nCount III \u2014 Aggravated kidnapping \u2014 armed with a dangerous weapon (Bruce Wood). Ill. Rev. Stat. 1975, ch. 38, par. 10\u20142(a)(5).\nCount IV \u2014 Aggravated kidnapping \u2014 armed with a dangerous weapon (Ada Wood). Ill. Rev. Stat. 1975, ch. 38, par. 10\u20142(a)(5).\nCount V \u2014 Aggravated kidnapping \u2014 armed with a dangerous weapon (Timothy Wood). Ill. Rev. Stat. 1975, ch. 38, par. 10\u20142(a)(5).\nCount VI \u2014 Aggravated kidnapping \u2014 armed with a dangerous weapon (Tracy Wood). Ill. Rev. Stat. 1975, ch. 38, par. 10\u20142(a)(5).\nCount VII \u2014 Aggravated kidnapping \u2014 deviate sexual assault (Ada Wood). Ill. Rev. Stat. 1975, ch. 38, par. 10\u20142(a)(3).\nCount VIII \u2014 Deviate sexual assault \u2014 oral copulation (Ada Wood). Ill. Rev. Stat. 1975, ch. 38, par. 11\u20143(a).\nCount IX \u2014 Deviate sexual assault \u2014 oral copulation (Tracy Wood). Ill. Rev. Stat. 1975, ch. 38, par. 11\u20143(a).\nCount X \u2014 Indecent liberties with a child \u2014 oral copulation (Tracy Wood). Ill. Rev. Stat. 1975, ch. 38, par. 11\u20144(a)(2)\nCount XI \u2014 Indecent liberties with a child \u2014 finger in vagina (Tracy Wood). Ill. Rev. Stat. 1975, ch. 38, par. 11\u20144(a)(3).\nCount XII \u2014 Armed Robbery (Bruce Wood). Ill. Rev. Stat. 1975, ch. 38, par. 18\u20142(a).\nThe case was transferred out of McLean County on motion of the defendant. After a jury trial in Will County, the defendant was found guilty on all counts and received concurrent sentences of 50-100 years on counts I-VI; 100-150 years on counts VII and VIII; 150-200 years on counts IX-XI; and 20-40 years on count XII. It is from these convictions that defendant appeals.\nThe sole issue raised on appeal by the defendant is whether the trial court erred in entering judgment and sentencing defendant on multiple convictions arising out of a single physical act. The State agrees with the defendant that several of the aforementioned counts, specifically counts I and VI (aggravated kidnapping of Tracy Wood, based upon the fact that she is below the age of 13 (count I), and also based upon the use of a dangerous weapon (count VI)); counts II and V (aggravated kidnapping of Timothy Wood on the same grounds); and counts IX and X (deviate sexual assault and indecent liberties with a child, both based upon the oral copulation of Tracy Wood with the defendant) are duplicative because they arise out of the exact same physical act of the defendant upon a particular victim. The Illinois Supreme Court held in People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1, that there can be only one conviction of a crime where multiple counts are founded on a single act of the defendant. (Accord, People v. King (1977), 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273, where the court stated that \u201c[prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act.\u201d) On the basis of Lilly and King, we agree that there can be but one conviction based upon counts I and VI, II and V, and IX and X. The State, exercising its prosecutorial discretion, seeks to pursue counts I, II and X, and to cease prosecution of counts VI, V, and IX. The State\u2019s decision leaves us with five aggravated kidnapping convictions, one conviction of deviate sexual assault, two convictions of indecent liberties with a child, and one conviction of armed robbery to consider.\nWe first concern ourselves with the propriety of defendant\u2019s convictions on counts I-IV, all aggravated kidnapping counts. It is true that all of these counts arose out of the same physical act of the defendant, i.e., the abduction of the Woods at gunpoint on the highway. However, there are many Illinois cases in which the defendants were found guilty of multiple crimes when the crimes were committed upon different victims, even though all of the crimes were committed in a single act. (People v. Thomas (1977), 67 Ill. 2d 388, 367 N.E.2d 1281; People v. Butler (1976), 64 Ill. 2d 485, 356 N.E.2d 330; People v. Prim (1972), 53 Ill. 2d 62, 289 N.E.2d 601, cert. denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731; People v. Terry (1976), 38 Ill. App. 3d 517, 347 N.E.2d 869; People v. Thomas (1976), 43 Ill. App. 3d 328, 356 N.E.2d 1362.) It is clear from these cases that the convictions on counts I-III, the aggravated kidnappings of Bruce, Timothy, and Tracy Wood, may stand even though committed simultaneously by the same individual defendant because three different victims were involved. As concerns count IV (aggravated kidnapping of Ada Wood, based upon defendant\u2019s use of a dangerous weapon), the same might be said. However, the defendant contends that count IV and count VII, the aggravated kidnapping of Ada Wood based upon the subsequent deviate sexual assault, are duplicative and one of these convictions must be vacated on the grounds of People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273; People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200; and People v. Cox (1972), 53 Ill. 2d 101, 291 N.E.2d 1.\nIn Cox, the defendant performed an act of sexual intercourse and then an act involving oral-genital contact upon an eight-year-old girl, for which he was charged by information with two counts of indecent liberties with a child. The first count charged the defendant with an act of intercourse (Ill. Rev. Stat. 1965, ch. 38, par. 11\u20144(a)(1)), and the second charged the defendant with an act of deviate sexual conduct (Ill. Rev. Stat. 1965, ch. 38, par. 11\u20144(a)(2)). Defendant pleaded guilty to both counts. On appeal from his conviction, the defendant contended that his actions constituted only one offense and therefore could not support two separate convictions. The court, in vacating the second count, agreed with the defendant and held that where two counts are based upon a single transaction involving a single victim, charging two almost simultaneous acts, each of which acts is enumerated in subsections of the same section of the Criminal Code, only one conviction may stand. Several years later, the Illinois Supreme Court again grappled with the one-act one-crime theory in King. In King, the court, in rejecting the \u201cindependent motivation\u201d test of People v. Stewart (1970), 45 Ill. 2d 310, 259 N.E.2d 24, stated that the test to be used in determining the permissibility of multiple convictions and concurrent sentences is as follows: \u201c[W]hen more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.\u201d 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845.\nShortly after King was handed down, this court decided the case of People v. Linkogle (1977), 54 Ill. App. 3d 830, 368 N.E.2d 1075. In Linkogle, the defendant was convicted on two counts of indecent liberties with a child (Ill. Rev. Stat. 1975, ch. 38, par. 11\u20144(a)(3)), the counts arising from the defendant\u2019s lewd fondling of both an eight-year-old girl and himself. Even though each of the counts arose from the same subsection of the same section of the Criminal Code, we held on the basis of King that \u201ceach of these charged acts was separate and distinct, for each of which the defendant may be convicted and sentenced.\u201d 54 Ill. App. 3d 830, 834, 368 N.E.2d 1075, 1079.\nFinding King dispositive of the issues in Linkogle, we made no mention of Cox in that case. We did, however, rely upon Cox in our recent decision of People v. Jackson (1978), 64 Ill. App. 3d 159, 380 N.E.2d 1210. In Jackson, the defendant was charged with two counts of felony theft (Ill. Rev. Stat. 1977, ch. 38, par. 16\u20141(d)), each count arising from the unlawful possession of different items of property belonging to two different owners. On the basis of Cox, King, and People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200, we vacated one of the defendant\u2019s convictions on the grounds that his activities constituted one offense. We reached this conclusion after a close examination of Cox, and the reasoning of the Illinois Supreme Court in that case. We stated in Jackson that the supreme court found only one offense committed by the defendant in Cox \u201cbecause the several acts committed by the defendant in Cox were all enumerated in subsections of the same section of the Criminal Code.\u201d 64 Ill. App. 3d 159, 160, 380 N.E.2d 1210, 1212.\nAt first glance, there seems to be an inconsistency between our decision in Linkogle, where we found that two acts constituted two offenses even though they were both enumerated in the same subsection of the same section of the Criminal Code, and our decision in Jackson, where we interpreted the supreme court\u2019s holding in Cox that the defendant\u2019s two acts constituted one offense to be based upon the fact that both acts fell within the same section of the Criminal Code, albeit in different subsections. Because of the importance that our interpretation of Cox and its progeny has on the outcome of the case at bar, it is necessary for us at this time to reexamine Cox in an effort to determine if Linkogle and Jackson can be reconciled.\nIt remains true, as we said in Jackson, that the supreme court\u2019s decision in Cox was grounded on the fact that the acts committed by the defendant in that case were enumerated in subsections of the same section of the indecent liberties statute (Ill. Rev. Stat. 1965, ch. 38, par. 11\u20144(a)(1), (2)). However, that is only one of the factors weighed by the supreme court in determining whether the defendant\u2019s acts constituted one offense or two offenses. The court, in paraphrasing the defendant\u2019s argument in Cox, stated: \u201cPetitioner contends that although either act would constitute the offense with indecent liberties with a child, these acts, which occurred almost simultaneously, at the same, place with the same child, constituted one offense performed in two of the three ways enumerated in the statute defining the crime, and cannot constitute two separate crimes.\u201d (Emphasis added.) (53 Ill. 2d 101, 103, 291 N.E.2d 1, 2.) Later, the court, in examining the defendant\u2019s sentences, stated they \u201cstemmed from two counts based upon a single transaction, charging two acts almost simultaneous in time and involving a single victim, each of which acts was one of the three proscribed by the statute.\u201d (Emphasis added.) (53 Ill. 2d 101, 104, 291 N.E.2d 1, 3.) It is clear from a reading of Cox that the court placed a great deal of weight on the fact that each of the defendant\u2019s acts fell within one section of the Criminal Code. (See People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200; People v. Jackson (1978), 64 Ill. App. 3d 159, 380 N.E.2d 1210.) It is equally as clear that the court considered other factors in reaching its decision that only one offense had been committed, i.e., time interval between acts, the location of these acts, and the identity of the victims involved. (See People v. Manning (1978), 71 Ill. 2d 132, 374 N.E.2d 200; People v. Short (1978), 62 Ill. App. 3d 733, 379 N.E.2d 360; People v. Tate (1976), 37 Ill. App. 3d 358, 346 N.E.2d 79.) In Tate, the defendant performed two deviate sexual acts upon his victim. In holding that these two acts were one offense under Cox, the court not only pointed out that the defendant\u2019s act represented the two ways in which the crime of deviate sexual assault could be committed, but also stated \u201c[a]s the multiple charges in this case clearly arose from a single transaction \u2014 there being a single victim, a single location, and a single time frame, * * * \u2014 we are constrained to hold defendant\u2019s acts constituted a single offense \u00b0 * (37 Ill. App. 3d 358, 361, 346 N.E.2d 79, 82.) Indeed, the time-frame factor was held to be dispositive in People v. Childs (1978), 62 Ill. App. 3d 924, 379 N.E.2d 721. In Childs, the defendant shot his victim three times, each shooting separated by a short time interval. The defendant was subsequently found guilty in the trial court of attempt murder, armed robbery, and three counts of aggravated battery. The appellate court rejected his contention that he could not be convicted of aggravated battery because those convictions arose from the same acts which led to the attempt murder conviction. The court stated: \u201cEach of the three shootings was separated by an interval during which the defendant performed other tasks related to his criminal objective. * ** 0. Each shooting constituted an offense which was clearly divisible from the others. [Citation.]\u201d 62 Ill. App. 3d 924, 926, 379 N.E.2d 721, 723.\nFrom the foregoing it is clear that Cox and the cases that have subsequently discussed it have considered many factors in determining whether a defendant may receive concurrent sentences for multiple convictions including, but not limited to, the fact that the acts for which he is charged are enumerated within the same section of the Criminal Code. If, after an examination of several factors \u2014 time interval between acts; identity of the victim; location of the acts; and whether or not those acts fall within the same section of the Criminal Code \u2014 it is obvious that the defendant has committed several acts which give rise to more than one offense, none of which are lesser included offenses, then multiple convictions are proper under King. Linkogle and Jackson can thus be reconciled because acts which are enumerated in the same section of the Criminal Code, depending upon the existence of the other facts mentioned above, may (as in Linkogle) or may not (as in Jackson) support multiple convictions.\nIn light of this analysis, we now examine the propriety of the defendant\u2019s conviction on count IV (aggravated kidnapping of Ada Wood while armed with a dangerous weapon) and count VII (aggravated kidnapping of Ada Wood based upon the subsequent deviate sexual assault). It is obvious that both counts encompass acts performed upon the same victim, and both acts are enumerated within the same section of the Criminal Code (Ill. Rev. Stat. 1977, ch. 38, par. 10\u20142). However, the acts upon which each count is based were not simultaneous (as were the crimes in Jackson, Manning, and Tate), nor almost simultaneous (as in Cox), but rather were separated by a lengthy time interval. In addition, the acts took place at different locations. The act giving rise to count IV occurred when Ada Wood was abducted along with the rest of her family on the highway. The act giving rise to count VII, the deviate sexual act which the defendant forced Ada Wood to perform upon him, took place in the motel room in Bloomington some time afterwards.\nTaking all of this into consideration, we fail to see the merit in defendant\u2019s argument that his convictions on either count IV or count VII must be vacated because they arose from a single physical act. It is clear to us that the kidnapping of Ada Wood with a dangerous weapon, and the subsequent deviate sexual assault upon her giving rise to a second count of aggravated kidnapping, which occurred some time after the original abduction and at a different location, were not part of the same transaction but were two distinct acts which justify multiple kidnapping convictions under King. As a result, we disagree with the decision reached in People v. Armstrong (1976), 43 Ill. App. 3d 586, 357 N.E.2d 84, insofar as that case says that multiple felonies cannot support two aggravated kidnapping convictions because the kidnapping is continuous and its character unchanged. We are persuaded in this regard by the recent decision of the Indiana Supreme Court in Pruitt v. State (1978),_Ind._, 382 N.E.2d 150. In Pruitt, the defendant was convicted of kidnapping, commission of a rape while armed, and inflicting injury while in the commission of a robbery. We find the following passage from that case applicable to the case at bar:\n\u201cAppellant also argues that it was error to impose sentences for all three crimes because they all \u2018arose from the same criminal activity; that is, the time, place, manner and continuous event, rather than arising from different criminal activities.\u2019 The test for determining whether or not separate sentences may be imposed upon multiple counts is whether the offenses charged are themselves the same, not whether they all arose from the same criminal act or course of conduct. Elmore v. State, (1978) Ind., 382 N.E.2d 893. The position advanced by appellant has been called the \u2018same transaction\u2019 or \u2018single frolic\u2019 concept and has been almost universally rejected by those courts which have considered it. For example:\n\u2018One of the theses underlying the \u201csingle frolic\u201d notion is that the criminal episode is \u201cindivisible.\u201d The short answer to that is that to the victims, the criminal conduct is readily divisible and intensely personal; each offense is an offense against a person. For me it demeans the dignity of the human personality and individuality to talk of \u201ca single transaction\u201d in the context of six separate assaults on six individuals\u2019.\nAshe v. Swenson, (1970) 397 U.S. 436,468-69, 90 S. Ct. 1189, 1207, 25 L. Ed. 2d 469, 489. (Burger, C. J., dissenting) (emphasis in original). We think it is equally demeaning to human dignity to speak of a single transaction consisting of separate assaults upon a single victim. To her, the kidnapping, rape, robbery and injuries are readily distinguishable. As none of the offenses with which appellant was convicted were a lesser included offense of the others, and each required proof of additional facts which the others did not, it was entirely appropriate to impose sentences upon each. Elmore, supra. There is no error here.\u201d (Emphasis added.)_Ind. at_, 382 N.E.2d 150, 153-54.\nFor these reasons, we hold that the convictions on both counts IV and VII were proper.\nSimilarly, we hold that counts X (indecent liberties with a child, based upon the victim\u2019s oral copulation with the defendant) and XI (indecent liberties with a child, based upon the insertion of defendant\u2019s finger into the victim\u2019s vagina) may stand. The lack of any evidence that the two acts giving rise to these counts were simultaneous or almost simultaneous differentiates this case from Cox, Manning, Jackson and Tate. On the basis of our prior decision in Linkogle, we are convinced that each act of the defendant constituted a separate offense which may support a separate conviction.\nThe defendant further contends that count VII, the aggravated kidnapping of Ada Wood based upon the deviate sexual assault, and count VIII, the deviate sexual assault, arose from the same physical act and thus one of the counts must be vacated. We believe both of these convictions may stand on the basis of People v. Elliott (1975), 32 Ill. App. 3d 654, 336 N.E.2d 146. In Elliott, the defendant was found guilty of aggravated kidnapping and deviate sexual assault. The court, following People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133, upheld both convictions. We later cited Elliott approvingly in People v. Neal (1976), 37 Ill. App. 3d 713, 346 N.E.2d 178, and accepted the reasoning of Canale as opposed to that of People v. Sims (1974), 20 Ill. App. 3d 1068, 313 N.E.2d 663, where the court held that the kidnapping of a victim was committed for the purpose of later committing a rape and thus the lesser offense of kidnapping could not stand. We note here that insofar as the Sims decision rests upon an examination of the defendant\u2019s criminal objective (thus necessarily involving the use of the \u201cindependent motivation\u201d test rejected in King), its precedential value is highly questionable. In a case decided after King, People v. Cyburt (1978), 50 Ill. App. 3d 414, 365 N.E.2d 1004, the court relied upon Cox and King to uphold convictions for aggravated kidnapping and indecent liberties with a child. Although Elliott is not cited in Cyburt, we believe the Cyburt holding confirms our belief in the correctness of the Elliott decision.\nTwo remaining matters may be easily dispensed with. First, there is no merit in the argument (indeed, defendant makes no argument along these lines) that the deviate sexual assault upon Ada Wood is a lesser included offense of the aggravated kidnapping based on that assault, and thus conviction for the former is barred by King. In People v. Carroll (1977), 49 Ill. App. 3d 387, 364 N.E.2d 408, 415, the court, relying upon King, rejected the defendant\u2019s argument that rape and aggravated kidnapping offenses arose out of one act, and further stated: \u201cIt follows that the offenses of rape and aggravated kidnapping arose from a series of incidental or closely related acts and are not lesser included offenses.\u201d (Accord, People v. Graham (1978), 60 Ill. App. 3d 1034, 377 N.E.2d 179; People v. Miller (1978), 58 Ill. App. 3d 1019, 374 N.E.2d 1118; People v. Jones (1977), 53 Ill. App. 3d 197, 368 N.E.2d 452; People v. Richardson (1977), 50 Ill. App. 3d 550, 365 N.E.2d 603.) Similarly, the offense of deviate sexual assault is not a lesser included offense of the aggravated kidnapping. Secondly, and lastly, on the basis of King and Cox, there can be no doubt that the armed robbery conviction is a separate offense for which a separate conviction was properly entered.\nOn the basis of the foregoing, counts VI, V, and IX are hereby vacated, and counts I, II, III, IV, VII, VIII, X, XI, and XII are affirmed.\nJudgment affirmed in part and vacated in part.\nSTOUDER, P. J., and ALLOY, J., concur.\nWe note that the record indicates there were two distinct deviate sexual assaults performed upon Ada Wood, separated by a lengthy time interval. The defendant was charged with only one count of deviate sexual assault.", "type": "majority", "author": "Mr. JUSTICE BARRY" } ], "attorneys": [ "Robert Agostinelli and Theodore A. Gottfried, both of State Appellate Defender\u2019s Office, and Michael Margolles, law student, both of Ottawa, for appellant.", "Ronald C. Dozier, State\u2019s Attorney, of Bloomington (John X. Breslin, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROY SCHULTZ, Defendant-Appellant.\nThird District\nNo. 78-143\nOpinion filed July 3, 1979.\nRobert Agostinelli and Theodore A. Gottfried, both of State Appellate Defender\u2019s Office, and Michael Margolles, law student, both of Ottawa, for appellant.\nRonald C. Dozier, State\u2019s Attorney, of Bloomington (John X. Breslin, of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0379-01", "first_page_order": 401, "last_page_order": 410 }