FIRST DIVISION

							July 30, 2001

No. 1-99-4099

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from the

								)	Circuit Court of

		Plaintiff-Appellee,			)	Cook County

								)

	v.							)				 								)

KEVIN PHELPS,						)	Honorable

								)	Mary Maxwell Thomas,

		Defendant-Appellant.		)	Judge Presiding

	PRESIDING JUSTICE McNULTY delivered the opinion of the

court:

	A jury found defendant, Kevin Phelps, guilty of aggravated

kidnaping and heinous battery.  The trial court imposed

consecutive sentences for the offenses.  Defendant challenges

both the convictions and the sentences on appeal.  He argues that

the prosecution failed to prove he secretly confined the victim,

the prosecutor's closing argument misstated the evidence, and the

court improperly used the fact that he caused great bodily harm

to doubly enhance his sentence.

	P.H., a high school student, befriended defendant, a

paraplegic, late in 1996.  She knew defendant by his nickname,

Sniper, and he called her by a nickname few people knew.  Through

most of the summer of 1997, P.H. went to visit defendant about

every other day.  In August 1997 P.H.'s older sister and legal

guardian grounded her, instructing her not to see defendant.

	P.H. left the high school after 4 p.m. on September 4, 1997.  She returned home around 8 p.m., screaming "Sniper burnt me." 

P.H.'s sister called for an ambulance.  Doctors at the hospital

found that P.H. had suffered second and third degree burns over

36% of her body.  She remained in the intensive care unit for two

weeks, undergoing multiple skin grafts and other treatments to

help her skin heal.  She has prominent, permanent scars.  Police

arrested defendant and charged him with heinous battery,

aggravated kidnaping and attempted murder.

	At trial P.H. testified that when she left the high school

on September 4, 1997, two men called to her, using the nickname

defendant and few others used.  One man said, "Folks said come

get your stuff."  P.H. knew the man meant defendant, because his

home was the only place she had left anything.  She told the men

she would get the stuff later, and she caught a city bus to go

home.  When she got off the bus, the men drove up behind her. 

One pulled her jacket and told her to get in the car.  They took

her to defendant's home.

	Defendant asked P.H. where she had been, what she had been

doing, and whom she had been seeing for the prior weeks.  She

explained that her sister had grounded her.  He asked the same

few questions repeatedly for an hour.

	Defendant then told P.H. to take off her clothes.  When she

refused he pulled out a gun and told her again to take off her

clothes.  She took them off.  He threw a cup full of liquid on

her, and he threw a lit cigarette lighter at her.  The skin of her stomach and legs immediately went up in flames.  P.H. ran to

the bathroom and put out the fire, but she had no way to leave

the house without passing defendant again.  She talked with him

for more than an hour before finally persuading him to let her

dress and leave.  She agreed to tell her sisters a stranger

abducted her, raped her and burned her.

	On cross-examination P.H. admitted that defendant never said

she could not leave.  Some time before he burned her, he asked

her to get him a glass of water.  When she went to the kitchen,

she was out of his sight, but she made no attempt to flee.  She

explained that from defendant's tone and his reputation she

understood that she would put herself in peril if she left.

	In closing the prosecutor argued, without objection, that

the men who met P.H. said "Sniper[] wants to see you."  The

prosecutor later added:

	"[Defendant] told her she couldn't leave.

		*** He says, 'You can't leave.  Remove your

clothes.'

		She could not leave at that point."

Defense counsel in closing reminded the jurors of P.H.'s

testimony that defendant never said she could not leave.

	The jury acquitted defendant on the charge of attempted

murder, but found him guilty on the charges of heinous battery

and aggravated kidnaping.  The trial court sentenced defendant to

30 years in prison for heinous battery and 15 years in prison for aggravated kidnaping.  The court also found that section 5-8-4(a)

of the Unified Code of Corrections mandated consecutive sentences

for the charges.  730 ILCS 5/5-8-4(a) (West 1996).

	On appeal defendant argues first that the prosecution failed

to prove him guilty of kidnaping.  The prosecutor argued that

defendant committed the crime when he pulled out a gun and told

P.H. to undress.  At that point, defendant secretly confined

P.H., within the meaning of the statutory definition of

kidnaping, against her will.

	To establish secret confinement under section 10-1(a)(1) of

the Criminal Code of 1961 (720 ILCS 5/10-1(a)(1) (West 1996)),

the prosecution must show a confinement, usually in an enclosure

like a house or a car (People v. Lloyd, 277 Ill. App. 3d 154, 163, 660 N.E.2d 43 (1995)), concealed from the knowledge of

persons who would be affected by the act (People v. Turner, 282 Ill. App. 3d 770, 780, 668 N.E.2d 1058 (1996)).  The secrecy of

either the place of confinement or of the fact that a person is

confined suffices for the secrecy element of kidnaping.  People v. Sykes, 161 Ill. App. 3d 623, 628, 515 N.E.2d 253 (1987).

	In People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988), the defendant entered the victim's office at work, and several of

the victim's coworkers saw her go with defendant to the victim's

apartment.  In the apartment the defendant bound the victim to a

chair and did not answer the door or the telephone when people

tried to contact the victim.  Our supreme court affirmed the conviction for aggravated kidnaping, holding that the evidence

showed that no one knew the defendant had confined the victim in

her apartment.  Enoch, 122 Ill. 2d at 195-96; see also People v. Mulcahey, 72 Ill. 2d 282, 285, 381 N.E.2d 254 (1978).

	Here, defendant confined P.H. when he drew a gun and ordered

P.H. to undress.  She could not then leave the enclosure of

defendant's home.  No one knew of the confinement.  In

particular, P.H.'s guardian, who would be most directly affected,

did not know defendant was keeping P.H. in his home against her

will.  The crime became aggravated kidnaping when he burned her,

inflicting great bodily harm, during her secret confinement.  See

720 ILCS 5/10-2(a)(3)(West 1996).  The prosecution presented

sufficient evidence to support the conviction for aggravated

kidnaping.

	Next, defendant contends that the prosecutor made two

misrepresentations in closing arguments, and those statements

deprived him of a fundamentally fair trial.  Because defense

counsel did not object to the statements, we limit our review to

a determination of whether plain error occurred.  See People v. Turner, 282 Ill. App. 3d 770, 781, 668 N.E.2d 1058 (1996).

	Defense counsel, in cross-examining P.H., elicited her

admission that defendant never said she could not leave his home. 

The prosecution argued that by drawing a gun and telling P.H. to

undress, defendant effectively told her she could not leave.  In

response, defense counsel reminded the jurors that defendant never actually said P.H. could not leave.  We see no basis for

concluding that the prosecutor's argument seriously misled the

jurors.  See People v. Edgeston, 157 Ill. 2d 201, 219-20, 623 N.E.2d 329 (1993).

	P.H. testified that a man outside the school said "Folks"

wanted her to get her stuff.  She knew that the man meant

defendant wanted her to come over.  The prosecutor recounted the

testimony as evidence that the man said "Sniper[] wants to see

you."  Again, the paraphrase did not seriously prejudice

defendant.  See People v. Williams, 181 Ill. 2d 297, 330, 692 N.E.2d 1109 (1998).  We find no plain error.

	Defendant raises several issues concerning his sentencing. 

He concedes that the prosecution presented sufficient evidence of

a battery, with the class of offense increased to heinous battery

because defendant caused severe and permanent disfigurement by

means of a flammable substance.  720 ILCS 5/12-4.1(a)(West 1996). 

While battery is a Class A misdemeanor, heinous battery is a

Class X felony.  720 ILCS 5/12-3(b), 5/12-4.1(b) (West 1996).  The

prosecution also proved a kidnaping, increased to aggravated

kidnaping because defendant inflicted great bodily harm on P.H. 

720 ILCS 5/10-2(a)(3)(West 1996).  Kidnaping is a Class 2 felony,

but aggravated kidnaping is a Class X felony.  720 ILCS 5/10-

1(c), 5/10-2(b)(West 1996).  Defendant argues that the use of

closely related factors to increase the level of both crimes

constitutes improper double enhancement.

	"[T]he legislature has the power to codify provisions

which enhance a criminal offense (e.g., misdemeanor to a felony) or enhance the applicable range of punishment

(e.g., extended term sentence or Class X sentencing).  This is known as 'single enhancement.'   Double

enhancement occurs when a factor already used to

enhance an offense or penalty is reused to subject a

defendant to a further enhanced offense or penalty. 

For example, the same factor has been used to double

enhance an offense (People v. Haron, 85 Ill. 2d 261[, 422 N.E.2d 627] (1981) (offense enhanced from

misdemeanor battery to felony aggravated battery and

from aggravated battery to Class X felony armed

violence based on use of a deadly weapon)), a

punishment (Fitzsimmons v. Norgle, 104 Ill. 2d 369[, 472 N.E.2d 802] (1984) (defendant transferred from

juvenile to adult criminal court and probation

precluded as potential punishment based on same prior

conviction)), or some combination of the two (People v. Hobbs, 86 Ill. 2d 242[, 427 N.E.2d 558] (1981) (misdemeanor theft enhanced to a felony theft and

extended term sentence imposed based on same prior

conviction))."  People v. Thomas, 171 Ill. 2d 207, 223- 24, 664 N.E.2d 76 (1996).

While the legislature has the power to authorize such a double enhancement, the legislature must express the intention clearly

and unambiguously.  People v. Rissley, 165 Ill. 2d 364, 390-91, 651 N.E.2d 133 (1995); People v. Ferguson, 132 Ill. 2d 86, 97, 547 N.E.2d 429 (1989).  Otherwise, double enhancement is

improper.  People v. Koppa, 184 Ill. 2d 159, 174, 703 N.E.2d 91 (1998).  The court presumes that when the legislature established

the range of penalties for an offense, it took into account all

of the factors inherent in the offense.  Ferguson, 132 Ill. 2d at 97.

	No case or rule forbids multiple uses of single enhancement

factors to increase the levels of separate crimes.  The

legislature decided that a battery involving permanent

disfigurement by means of a flammable substance deserves

punishments in the range for Class X felonies, and kidnapings

involving great bodily harm deserve punishments in the range for

Class 1 felonies.  The prosecution proved defendant guilty of all

elements of both crimes.  We find no double enhancement in the

use of similar factors in the aggravation of both crimes. 

Defendant offers no further challenge to the sentences for each

individual offense, so we affirm the sentences.

	But defendant argues that the trial court doubly enhanced

his sentence impermissibly by reusing the factor of great bodily

harm to justify the further order for consecutive service of the

sentences.  Section 5-8-4 of the Unified Code of Corrections

provides:

	"The court shall not impose consecutive sentences for

offenses which were committed as part of a single

course of conduct during which there was no substantial

change in the nature of the criminal objective, unless,

one of the offenses for which defendant was convicted

was a Class X or Class 1 felony and the defendant

inflicted severe bodily injury *** in which event the

court shall enter sentences to run consecutively."  730

ILCS 5/5-8-4(a) (West 1996).

	The appellate court interpreted this statute in People v. Miller, 193 Ill. App. 3d 918, 552 N.E.2d 988 (1989).  In that case the trial court found the defendant guilty of the voluntary

manslaughter of two persons in a single course of conduct without

change in the nature of the crime.  Because the two Class 1

felonies resulted in great bodily harm, the court imposed

consecutive sentences pursuant to section 5-8-4.  The appellate

court held:

		"[T]he prohibition against double penalty

enhancement is violated where a trial court considers

as aggravation for a greater penalty a factor which is

implicit in the offense for which the defendant is

being sentenced.  In People v. Conover (1981), 84 Ill. 2d 400, 419 N.E.2d 906, the supreme court held it was

error to consider as aggravation on a theft or burglary

sentence the fact that the defendant received compensation from the offense because the taking of

proceeds was inherent in these offenses.  Thus, this

compensation factor had already been considered by the

legislature in establishing the sentencing range.  This

same reasoning has been applied when a sentencing court

has considered as aggravation the fact that the

defendant threatened harm during an armed robbery

because the threat of harm is inherent in an armed

robbery. [Citations.] 

		***

		*** Obviously, defendant *** inflicted severe

bodily injury because he caused [the victims'] deaths,

the ultimate of severe bodily injury.  However, their

deaths were intrinsically factored into his voluntary

manslaughter convictions.  To again use these deaths to

impose a consecutive sentence was improper."  Miller, 193 Ill. App. 3d at 931-32.

Accordingly, the court affirmed the sentences but modified them

to run concurrently.

	The appellate court in People v. Durham, 303 Ill. App. 3d 763 (1999), rejected the reasoning and result of Miller.  Our supreme court subsequently vacated Durham, and on remand the appellate court did not address Miller.  People v. Durham, 312 Ill. App. 3d 413, 727 N.E.2d 623 (2000).  In the vacated opinion

the court reasoned:

	"A reading of the clear and unambiguous language of

section 5-8-4 does not allow for the interpretation

given in Miller.   Any severe bodily harm caused by a defendant is by necessity going to be included in one

of the charges for which defendant is to be sentenced. 

Under defendant's theory, if [the victim] had been more

severely wounded by the bullet that hit him, that

injury could not have been used to mandate consecutive

sentences either, as the injury would have been an

essential element of the aggravated battery with a

firearm.  Only uncharged crimes causing severe bodily

injury could be used to mandate consecutive sentences. 

This would be a ridiculous result."  Durham, 303 Ill. App. 3d at 770-71.

	The vacated opinion misreads Miller.  Under Miller, the statute mandates consecutive sentences if the defendant is

convicted of two or more crimes, including any Class X or Class 1

felony that does not include great bodily harm as an element of

the crime, and the defendant caused great bodily harm in the

course of committing the Class X or Class 1 felony.  Thus, if a

defendant committed an aggravated kidnaping of a profoundly

retarded person, and he inflicted great bodily harm during the

secret confinement, the sentence for aggravated kidnaping would

run consecutively to the sentence for any other offense the

defendant committed in the same course of conduct.  See 720 ILCS 5/10-2(a)(2), 5/10-2(b)(West 2000).  Attempted murder, a Class X felony

that need not involve bodily harm (720 ILCS 5/8-4(a), (c)(1)

(West 2000)), and armed robbery and residential burglary, Class 1

felonies that need not involve bodily harm (720 ILCS 5/18-25(a),

(b), 5/19-3(a), (b)(West 2000)), similarly require consecutive

sentencing.  If the defendant causes great bodily harm in the

course of an attempted murder, armed robbery or residential

burglary, and he commits another crime in the same course of

conduct, section 5-8-4 directs that the sentence imposed for the

Class X or Class 1 felony must be served consecutively to the

sentence imposed for the other crime.  We find no absurdity in

the Miller court's construction of section 5-8-4.  We note that the result in People v. Porter, 277 Ill. App. 3d 194, 660 N.E.2d 118 (1995), comports with the reasoning of Miller, because the court imposed a sentence for murder, and correctly ordered the

sentences for attempted murder to be served consecutively, after

the sentence for murder.

	The prosecution charged defendant with a kidnaping enhanced

to aggravated kidnaping by the great bodily harm he caused P.H. 

The legislature clearly required the court to impose a sentence

appropriate for Class X felonies because of the great bodily harm

caused in the course of a Class 2 felony.  Nothing in the statute

clearly expresses the intention to reuse that same great bodily

harm as a basis for the added punishment of consecutive

sentencing.  Defendant also committed a battery enhanced to heinous battery because defendant caused severe and permanent

disfigurement by means of a flammable substance in the battery. 

The proof of an essential element of the crime, severe and

permanent disfigurement, included proof of great bodily harm. 

The legislature has not clearly expressed an intention to

increase the punishment for this crime beyond that available for

Class X felonies by reuse of the same bodily harm to require

consecutive sentencing.  Following Miller, we modify the sentences here to run concurrently.

	Defendant secretly confined P.H. in his home when he took

out a gun and ordered her to undress, because no one knew

defendant was holding P.H. against her will.  The prosecutor's

statements in argument paraphrasing the testimony did not amount

to plain error.  The court correctly found that P.H.'s great

bodily harm showed that defendant committed both an aggravated

kidnaping and a heinous battery.  But that same bodily harm

cannot warrant the imposition of consecutive sentences, because

great bodily harm was a necessary element of both crimes, and the

legislature took into account the harm by increasing the

classifications of the crimes to Class X.  Therefore we affirm

the convictions and modify the sentences to run concurrently.

	Affirmed.

	FROSSO'MARA FROSSARD and COHEN, JJ., concur.