2020 IL App (1st) 171819-U 

 THIRD DIVISION

 September 30, 2020 

No. 1-17-1819 

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent 

by any party except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

______________________________________________________________________________ 

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

 ) Circuit Court of 

Plaintiff-Appellee, ) Cook County. 

 ) 

 v. ) No. 15 CR 17544 

 ) 

KENNETH BLACK, ) Honorable 

 ) Thomas J. Byrne, 

 Defendant-Appellant. ) Judge Presiding.

______________________________________________________________________________ 

PRESIDING JUSTICE HOWSE delivered the judgment of the court.

Justices Ellis and Cobbs concurred in the judgment. 

ORDER

¶ 1 Held: The judgment of the circuit court of Cook County is affirmed in part and reversed

in part; the State proved defendant secretly confined the victim by moving her six to ten 

feet from a sidewalk into a public park in the early morning hours where he sexually 

assaulted the victim; although defendant’s conduct in moving the victim constituted a 

technical violation of the kidnapping statute, the asportation of the victim was inherent in 

the sexual assault, therefore defendant’s conviction for aggravated kidnapping cannot 

stand and defendant’s conviction and sentence for that offense are reversed and vacated.

 

¶ 2 The State indicted defendant for six counts of aggravated kidnapping “in that he 

knowingly and secretly confined T.T. against her will” and committed another felony against 

her, specifically criminal sexual assault (count I), criminal sexual abuse (count III), and/or 

aggravated battery (count V); the State also indicted defendant for aggravated kidnapping in that 
1-17-1819 

- 2 - 

he “knowingly and by force or threat of force carried T.T. from one place to another with the 

intent to secretly confine T.T. against her will” and committed another felony against her, 

specifically criminal sexual assault (count II), criminal sexual abuse (count IV), and/or 

aggravated battery (count VI). The State also indicted defendant for four counts of aggravated 

criminal sexual assault in that he “knowingly committed an act of sexual penetration upon T.T. 

*** by the use of force or threat of force” and caused bodily harm to T.T. in the form of 

abrasions (count VII), acted in such a manner as to threaten or endanger T.T.’s life by strangling 

her (count VIII), and/or the criminal sexual assault was perpetrated during the course of the 

felony of kidnapping (count IX), or aggravated battery (count X) by defendant. The State 

indicted defendant for aggravated criminal sexual abuse in that he “knowingly committed an act 

of sexual conduct upon T.T. *** for the purpose of the sexual arousal or gratification of 

[defendant] by the use of force or threat of force” and defendant caused bodily harm in the form 

of abrasions to T.T. (count XI), acted in a manner that threatened or endangered the life of T.T. 

by strangling her (count XII), and/or the aggravated criminal sexual abuse was committed during 

the course of committing the felony of kidnapping (count XIII), and/or aggravated battery (count 

XIV). The State indicted defendant for five counts of aggravated battery against T.T. (counts 

XV through XIX). 

¶ 3 Following a bench trial the circuit court of Cook County convicted defendant of 

aggravated kidnapping under counts I, II, V, and VI; criminal sexual assault under counts VII, 

VIII, IX, and X; and aggravated battery under counts XV through XIX. The trial court sentenced 

defendant to six years’ imprisonment for aggravated kidnapping under count I and merged the 

remaining kidnapping convictions under count I, and the court sentenced defendant to seven 

years’ imprisonment for aggravated criminal sexual assault under count VII and merged the 
1-17-1819 

- 3 - 

remaining sexual assault charges under count VII. The court ordered the sentences to run 

consecutively. Defendant appeals, arguing the State failed to prove him guilty beyond a 

reasonable doubt of aggravated kidnapping where the evidence failed to establish that defendant 

confined the victim in secret or that defendant intended to secretly confine the victim where the 

alleged kidnapping was merely incidental to the sexual assault. Defendant does not challenge 

the sufficiency of the evidence to prove him guilty beyond a reasonable doubt of aggravated 

criminal sexual assault.

¶ 4 For the following reasons, we reverse defendant’s conviction for aggravated kidnapping 

and vacate defendant’s sentence. 

¶ 5 BACKGROUND

¶ 6 The State adduced the following pertinent evidence at defendant’s trial. The victim, 

T.T., was at her cousin’s house in the area of 76th Street and Rhodes Avenue in Chicago in the 

late hours of September 28, 2013 into the early morning hours of September 29, 2013. T.T. left 

her cousin’s house and went to her sister’s house but no one was home. She then called her 

boyfriend and told him she was coming to his house. To get to her boyfriend’s house T.T. 

walked to 69th Street and then to Loomis Boulevard and proceeded north on Loomis. Ogden 

Park abuts Loomis between 65th Street and 64th Street. As T.T. was walking on 69th Street she 

encountered defendant. Defendant asked T.T. for a cigarette. T.T. responded she only had one 

cigarette but she would share it with defendant. T.T. and defendant walked together for a short 

time on Loomis. After they shared the cigarette defendant “drifted back and took his hand on 

[T.T.’s] throat and took [her] behind [a] tree.” When defendant took T.T.’s throat he was 

standing behind her and squeezing her neck. 
1-17-1819 

- 4 - 

¶ 7 T.T. testified that defendant guided her behind the tree with his hands still on her neck. 

T.T. testified the tree was between six and ten feet from the sidewalk where they had been 

walking. Defendant told T.T. to pull her pants down and not to say anything or he would kill 

her. Defendant forced T.T. to lay face down on the ground and sexually assaulted her. 

¶ 8 After the sexual assault defendant got up and ran. T.T. watched defendant run away. 

Defendant turned and looked at her when he got across the street and was standing under a light 

pole. Defendant then continued running away and T.T. went to a police station that was one 

block away. 

¶ 9 Defendant testified on his own behalf. Defendant testified that at some point, in the area 

of 64th Street and Loomis, T.T. suggested she and defendant go to a hotel. Defendant responded 

he did not have money for a hotel. Defendant testified he then offered T.T. $30 to “just kick it in 

the park” and T.T. agreed. Defendant stated that after T.T. agreed, “We found a secluded 

location and we drank and talked some more,” while engaging in sexual foreplay. Defendant 

testified on cross-examination that they were “five to six feet away from the sidewalk” and 

“[not] really deep in the park.” 

¶ 10 Following closing arguments the trial court found, in pertinent part, that T.T. testified 

reasonably and credibly that she “was taken from where she was walked down the street into the 

park.” The court noted that T.T. described going over behind a tree and that defendant described 

the same area. The court found that T.T.’s injuries “were accompanied by a threat that if she 

didn’t comply she would be killed and the purpose of the injuries were to control and to get her 

as she testified alone, secreted in the park for the attack to occur.” The court found T.T. “was 

taken from the street into the park” and at that point she was sexually assaulted. The court held 

that “[a]s to the Count 5, 6 aggravated kidnapping based on secretly confining the victim, forcing 
1-17-1819 

- 5 - 

the victim from one place to another based on the aggravated battery there will be a finding of 

guilty as to those two counts.” 

¶ 11 This appeal followed.

¶ 12 ANALYSIS

¶ 13 To sustain a conviction for aggravated kidnapping the State was required to prove 

defendant knowingly and secretly confined T.T. against her will, or that defendant carried T.T. 

from one place to another by force or threat of imminent use of force with the intent to secretly 

confine her against her will, and that defendant either inflicted great bodily harm on T.T. or 

committed another felony upon T.T. 720 ILCS 5/10-1(a)(1), (2) (West 2012), 720 ILCS 5/10-

2(a)(3) (West 2012). Defendant challenges the sufficiency of the evidence to prove him guilty 

beyond a reasonable doubt of aggravated kidnapping on the grounds (1) the State failed to prove 

he “secretly” confined T.T. where the confinement occurred six to ten feet from a public 

sidewalk by a tree in a public park and (2) the six-to-ten-foot carrying away (asportation) of T.T. 

was merely incidental to the sexual assault. When a defendant challenges the sufficiency of the 

evidence to sustain a conviction the question for this court is whether any rational trier of fact 

could have found the essential elements of the crime proven beyond a reasonable doubt when 

viewing the evidence in the light most favorable to the State. People v. Sumler, 2015 IL App 

(1st) 123381, ¶ 54. This standard of review also applies to defendant’s argument the asportation

of T.T. was incidental to the aggravated criminal sexual assault. Id. ¶ 53.

¶ 14 We first address defendant’s challenge to the sufficiency of the evidence to establish the 

“secret confinement” element of the offense. This court defines “secret confinement” as 

“imprisoning or restraining someone” or “enclosure within something, most commonly a 

structure or an automobile” in such a manner that the subject or the place is “concealed, hidden, 
1-17-1819 

- 6 - 

or not made public.” See People v. Siguenza-Brito, 235 Ill. 2d 213, 227 (2009), People v. 

Phelps, 211 Ill. 2d 1, 8 (1978). “The secret confinement element may be shown by proof of the 

secrecy of the confinement or the secrecy of the place of confinement.” Siguenza-Brito, 235 Ill. 

2d at 227, Phelps, 211 Ill. 2d at 8. That is, the secret confinement element can be shown if those 

“liable to be affected by the act” are unaware that the victim is confined or those persons are

aware the victim is confined but do not know where. See People v. Gonzalez, 239 Ill. 2d 471, 

480 (2011) (“confinement is secret where it ‘serves to isolate or insulate the victim from 

meaningful contact or communication with the public, that is, when the confinement is in a place 

or in a manner which makes it unlikely that members of the public will know or learn of the 

victim’s unwilling confinement within a reasonable period of time.’ 3 Wayne R. LaFave, 

Substantive Criminal Law § 18.1(c), at 17 (2d ed. 2003)” (Emphasis added.)); People v. 

Mulcahey, 72 Ill. 2d 282, 285 (1978) (holding victim “was ‘secretly confined’ as effectively in 

her own home as if [the] defendant asported her to some remote isolated place of confinement” 

where the defendant called the victim’s husband and told him the victim was being held hostage 

but did not say where). “This court long ago rejected any per se rule that a victim visible in a 

public place precludes a finding of secret confinement.” Gonzalez, 239 Ill. 2d at 481-82 

(“Simply put, the kidnapper may choose to hide the victim in plain sight.”), citing People v. 

Bishop, 1 Ill. 2d 60 (1953). 

¶ 15 In this case, defendant argues that viewing the evidence in a light most favorable to the 

State, he did not “conceal, hide, or otherwise remove T.T. from the public’s view or awareness” 

because “the entire incident *** took place out in the open in a public park.” Defendant asserts 

that “if a passerby happened to walk by *** they would have been able to see or hear T.T. and 

[defendant] just six to ten feet away—or even from the other side of the street,” just as T.T. saw 
1-17-1819 

- 7 - 

defendant across the street under a light pole after he fled the sexual assault. In support of his 

argument defendant cites this court’s decisions in People v. Sykes, 161 Ill. App. 3d 623 (1987), 

and People v. Lamkey, 240 Ill. App. 3d 435 (1992). 

¶ 16 In Sykes, the defendant approached the ten-year-old victim as she walked to school, 

grabbed her by the arm, and dragged her into an alley. Sykes, 161 Ill. App. 3d at 625. The 

defendant threatened to kill the victim if she screamed and placed a gun to her head. The 

defendant pulled the victim through two or three alleys before attempting to gain entry to an 

apartment building, which the manager of the building denied. Id. The defendant pulled the 

victim down the street, the manager of the building followed, and when the victim saw another 

man across the street she yelled for help. Id. at 626. The defendant then ran away. Id. On 

appeal from his conviction for aggravated kidnapping the defendant argued “the State failed to 

prove beyond a reasonable doubt the ‘secret confinement’ element of the charged offense.” Id. 

at 628. The defendant argued the victim was “not confined in any place or thing.” Id. The 

Sykes court noted that Illinois courts had frequently discussed what proof was necessary to 

establish the “secret confinement” element of the offense and “[i]n such cases, the victim [had] 

clearly been ‘confined’ or enclosed within something, most commonly a house or a car.” Id. 

The court held that in Sykes, “the victim simply was not confined or enclosed within any place or 

any thing.” Id. The court held that fact “fails not only to establish the ‘confinement’ envisioned 

by Illinois courts, but also fails to establish the ‘secret’ component of the statute.” Id. at 629. 

The court found: “ ‘Secret’ has been variously defined as: ‘concealed; hidden; not made public 

***.’ [Citation.] In the instant case, at no time was the victim ‘concealed, hidden, or not made 

public’ during the entire incident.” Id. The Sykes court held the State had failed to prove the 

victim was “secretly confined” and reversed the defendant’s conviction. Id. 
1-17-1819 

- 8 - 

¶ 17 In Lamkey, the defendant jumped from the doorway of a building, grabbed the ten-yearold victim as she walked down a busy Chicago street, and pulled her into the hallway of the 

building where he sexually assaulted her. Lamkey, 240 Ill. App. 3d at 436. The hallway was 

between the door to the street where the victim had been walking and an interior door that led 

upstairs and was open during the attack. Id. The victim testified she could see cars and 

pedestrians passing by during the attack in the small hallway. Id. at 437. One such driver saw 

the defendant pull the victim into the door. Id. The driver stopped his car in front of the door, 

sounded his car horn, and the defendant fled up the stairs at the back of the hallway. Id. The 

driver testified the attack “occurred in an area clearly visible to anyone walking or driving down 

the street.” Id. On appeal the defendant argued the State failed to prove that a secret 

confinement occurred and 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.” Id. at 438. The Lamkey court, relying on Sykes, held “the State failed 

to prove the element of secret confinement necessary to sustain a conviction for kidnapping.” Id. 

at 439. The court noted that the defendant “remained within public view in the vestibule in an 

area clearly visible to anyone walking or driving down the street.” Id. The court also held that

“the asportation or detention which occurred here was merely incidental to the separate offense 

of aggravated criminal sexual assault.” Id. at 440. 

¶ 18 The State responds this case is factually distinct from Sykes and Lamkey and therefore 

neither is controlling. The State argues that in both of those cases, “the alleged kidnappings 

occurred in the morning daylight hours,” in both cases “the defendant was seen in the act of 

taking the victim by members of the public, and neither defendant concealed the victim from the 

public view.” In contrast, in this case “T.T. was dragged *** in the early hours of the morning, 
1-17-1819 

- 9 - 

close to 2 a.m., *** into a dark park” where she was “concealed behind a tree [and on the 

ground] *** and obscured from the view of any cars or pedestrians.” Here, the State argues, no 

one saw T.T. because there was no one in the vicinity.

¶ 19 The State argues this case is more like People v. Franzen, 251 Ill. App. 3d 813 (1993) 

and argues for a similar result. In Franzen, the relevant issue was whether the defendant’s 

petition for postconviction relief made a substantial showing, supported by the record, that the 

defendant’s appellate counsel was ineffective in failing to argue on direct appeal that the State 

failed to prove the defendant guilty beyond a reasonable doubt of aggravated kidnapping. 

Franzen, 251 Ill. App. 3d at 819, 822. To resolve that issue the Franzen court considered the 

sufficiency of the evidence under the familiar Jackson standard1

 “for the limited purpose of 

determining whether appellate counsel’s failure to raise the sufficiency of the evidence on direct 

appeal constituted ineffective assistance.” Id. at 822-23. 

¶ 20 In challenging the sufficiency of the evidence the defendant in Franzen argued that “no 

secret confinement was shown” in his case. Id. at 823. The Franzen court disagreed. Id. In 

Franzen, the victim had been lured to the rear of the parking lot of a bar where the defendant 

punched her in the face, chocked her unconscious, and dragged her “160 feet behind a fence into 

a sorghum field where the sorghum plants were of a height to conceal the defendant and [the 

victim] from anyone who might have wandered out into the parking lot.” Id. at 816, 824. The 

defendant relied on Sykes on appeal and argued that “the dragging of the victim *** from one 

outdoor location to another does not establish secret confinement.” Id. at 824. The Franzen

1

 “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of the crime beyond a 

reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
1-17-1819 

- 10 - 

court found Sykes “clearly distinguishable.” Id. The court held that “where the victim was 

dragged against her will from a well-lit parking lot to a place in a dark field where she was 

concealed from public view and not free to leave, we find secret confinement was proven.” Id. at 

824. 

¶ 21 Defendant argues this case is unlike Franzen “in a very significant way” in that in 

Franzen the court relied on the fact the victim was knocked unconscious and concealed from 

public view because the sorghum plants “were of a height to conceal the defendant and [the 

victim].” Franzen, 251 Ill. App. 3d at 824. In this case, defendant argues, T.T. was not 

unconscious and was “exposed to her public surroundings” except for whatever vantage point 

placed defendant and T.T. “behind” a tree. Thus, defendant argues “there was nothing here to 

completely conceal T.T. and [defendant’s] presence from anyone.” We agree with defendant 

that Franzen does not control the outcome in this case because here, unlike in Franzen, the 

victim was not concealed from view by her surroundings in a public place. 

¶ 22 But neither do we find Sykes or Lamkey to be persuasive authority in this case. The Sykes

court did not discuss or apply Illinois law rejecting “any per se rule that a victim visible in a 

public place precludes a finding of secret confinement.” Gonzalez, 239 Ill. 2d at 481-82, citing 

People v. Bishop, 1 Ill. 2d 60 (1953). The Sykes court also failed to consider that “confinement” 

for purposes of kidnapping is broadly defined to include “restraining someone” (Phelps, 211 Ill. 

2d at 8) or “where it ‘serves to isolate or insulate the victim from meaningful contact or 

communication with the public’ ” (Gonzalez, 239 Ill. 2d at 480, citing 3 Wayne R. LaFave, 

Substantive Criminal Law § 18.1(c), at 17). But see 3 Wayne R. LaFave, Substantive Criminal 

Law § 18.1(c), at 17 (“a seizure on the public way *** which is or could readily be observed by 

bystanders *** is not one which meets [a] statutory requirement” of isolation in a place where 
1-17-1819 

- 11 - 

the victim is “not likely to be found”) citing State v. Green, 94 Wash. 2d 216 (1980). Instead, 

the Sykes court relied solely on the fact the alleged confinement did not take the form of 

enclosure “within [a] place or [a] thing.” Sykes, 161 Ill. App. 3d at 628. As the secret 

confinement element of kidnapping is not so limited, Sykes has limited utility in this case. 

¶ 23 In Lamkey the court did not dispute that the victim was enclosed within a place when the 

defendant dragged her into the vestibule of his building. See Lamkey, 240 Ill. App. 3d at 438-39. 

Rather, Lamkey relied on the fact the defendant and victim at all times “remained within public 

view.” Lamkey, 240 Ill. App. 3d at 439. However, the Lamkey court noted the fact that “[o]nce 

inside the hallway, the victim testified that she saw cars driving and people walking by on the 

sidewalk.” Id. at 439. The court further noted that the driver saw the assault taking place after 

stopping his car. Id. (The Lamkey court did not seem to consider the trial court’s reliance on the 

conclusion that the reason the driver who stopped the attack in that case “was able to see what 

had occurred was because he had seen [the] defendant abduct [the victim] off the street; thus, he 

had a focus on the particular victim.” Lamkey, 240 Ill. App. 3d at 438.) We believe these are 

significant facts in Lamkey that are not present in this case and which weigh against defendant’s 

argument in favor of a similar result. 

¶ 24 Nonetheless, after reviewing the evidence in a light most favorable to the State, we 

conclude that a rational trier of fact could find that the State proved beyond a reasonable doubt 

that defendant secretly confined T.T. In this case, despite defendant’s argument there is no 

evidence concerning “the general vehicular and pedestrian traffic *** on the specific night of the 

incident,” in this case there is no evidence of passerby on the street to observe defendant forcing 

T.T. into the park or the ensuing assault on T.T. And, regardless of defendant’s assertion we 

must decline to consider the State’s “baseless claims” about the character of the street at the time 
1-17-1819 

- 12 - 

of the attack, we find that due to the time of morning it would not be reasonable to infer the 

presence of passerby on a residential street2 who could have made those observations. See 

People v. Beauchamp, 241 Ill. 2d 1, 10 (2011) (citing Cunningham for proposition that “courts 

may notice matters of common knowledge), citing People v. Cunningham, 212 Ill. 2d 274, 281 

(2004). We note that in reply to the State’s argument distinguishing Sykes and Lamkey defendant 

argues this court should focus on “the characteristics and locations of the alleged confinement.” 

Defendant argues that in both of those cases the time of day of the alleged kidnappings was not a 

dispositive factor but concedes that “the time of day may have made it more likely that the 

victims would be seen by passers-by.” Defendant admits the logical complement that the time of 

day of the attack on T.T. made it less likely that she would be seen by passers-by but argues that 

“does not mean that a pedestrian *** or someone in a car *** could not see or hear T.T.” and 

further argues “there was nothing about T.T.’s location that concealed her or removed her from 

the public’s view.” (Emphasis in original.) We do not assign dispositive weight to the fact it 

was possible for T.T. to be seen from the street if that were unlikely nor focus solely on the 

location of the alleged confinement. See Gonzalez, 239 Ill. 2d at 480-81 (defining secret 

confinement in terms of what is likely given the manner of confinement and holding that the 

“determination of whether the victim has been confined necessarily depends on the 

circumstances of each case”). See also People v. Turner, 282 Ill. App. 3d 770, 780 (1996) 

(noting, in part, defendant took the victim to “a secluded area without much traffic at that hour”). 

2

 “In People v. Biocic, 80 Ill. App. 2d 65, the court stated that the trial court had a right to take 

judicial notice of the nature of the area involved. A court may take judicial notice of whatever may be 

known by common observation, since a court is presumed to be as well informed as the general public 

and can certainly take judicial notice of that which everyone knows to be true.” People v. Taylor, 95 Ill. 

App. 2d 130, 137 (1968).
1-17-1819 

- 13 - 

The “characteristics of the alleged detention” on which defendant wants this court to focus 

include the location, time of day, and other surrounding circumstances. 

¶ 25 In Gonzalez, the defendant was in a hospital waiting room with the father of the threeweek old victim when the defendant offered to hold the baby while the father completed some 

paperwork. Gonzalez, 239 Ill. 2d at 474. After the father finished the paperwork he could not 

find the defendant or his baby. Id. The defendant had taken the baby to a different nearby 

hospital. Id. A security guard became suspicious of the defendant and approached her but the 

defendant walked away with the baby. Id. at 475-76. The guard was eventually able to stop the 

defendant and took the baby away from her. Id. at 476. On appeal to our supreme court from 

the lower court’s decision reversing the defendant’s conviction, the State argued it proved 

beyond a reasonable doubt that the defendant secretly confined the baby “when she removed the 

baby from the hospital without the parents’ knowledge or consent and kept the baby in a location 

unknown to her parents.” Id. at 478. Our supreme court noted that “the term ‘confinement’ is 

defined as the act of imprisoning or restraining someone.” Id. at 479, citing Phelps, 211 Ill. 2d at 

8. The court found that the defendant’s actions “isolated the baby from the public even though 

[the] defendant kept the baby in public view.” Id. at 481. The court noted that an “individual 

can be restrained without placing her inside a building, vehicle, or other physical structure.” Id. 

The court “recognized that in certain instances keeping a victim in a public place may be more 

effective than taking the victim to a location out of the public’s view.” Id. at 482. 

¶ 26 Although defendant makes much of the fact that what constitutes “behind” a tree depends 

on the vantage point of the observers, viewing the evidence in a light most favorable to the State 

a rational trier of fact could infer that defendant took T.T. to a position where they would be 

obscured from view by an observer from the street. A rational trier of fact could also reasonably 
1-17-1819 

- 14 - 

infer that there was no one to observe defendant and T.T. from the opposite vantage point, i.e., 

from inside the park, at approximately 2 a.m. By taking T.T. into the park and away from the 

street, in the early morning hours, and forcing her to lie down “behind” a tree (i.e., out of view of 

the public street), defendant “isolated the victim from meaningful contact with the public.” 

Gonzalez, 239 Ill. 2d at 482. This manner of confining T.T. was “more effective than taking 

[T.T.] to a location out of the public’s view” (id.) because doing so would have required 

defendant to continue to force defendant down the sidewalk to a different location. Instead, by 

forcing T.T. into the park and to lie behind a tree, defendant “isolated [T.T.] from meaningful 

contact with the public” (id. at 480-81). We hold the State proved beyond a reasonable doubt 

that defendant secretly confined T.T. 

¶ 27 We now turn to defendant’s argument that his conviction should be reversed because the 

asportation was merely incidental to the sexual assault. 

 “In People v. Eyler, 133 Ill. 2d 173, 199 (1989), our supreme court 

reiterated the Levy–Lombardi doctrine, under which a defendant ‘cannot be 

convicted of kidnapping where the asportation or confinement of the victim was 

merely incidental to another crime, such as robbery, rape or murder.’ A court 

must consider the following factors to determine whether the asportation amounts 

to the independent crime of kidnapping: ‘(1) the duration of the asportation or 

detention; (2) whether the asportation or detention occurred during the 

commission of a separate offense; (3) whether the asportation or detention 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.’ Siguenza–Brito, 235 Ill. 2d at 225-26; People v. Jackson, 331 
1-17-1819 

- 15 - 

Ill. App. 3d 279, 294 (2002). Whether the asportation constitutes a kidnapping is 

fact specific and depends on the circumstances of each case. [Citation.]” People 

v. Johnson, 2015 IL App (1st) 123249, ¶ 24. 

¶ 28 This court adopted the Levy-Lombardi test in People v. Smith, 91 Ill. App. 3d 523 (1980). 

There, the court wrote as follows:

 “In establishing an approach for this State to follow, we would adopt four 

factors suggested by Government of the Virgin Islands v. Berry, 604 F.2d 221 (3rd 

Cir. 1979). Those factors are: 

‘(1) ([t])he 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.’ [Citation.]” Smith, 91 Ill. App. 3d at 529. 

In Smith, the court held that “the gist of the case [was] robbery” and that the trial court’s 

judgment on a jury verdict finding the defendants guilty of aggravated kidnapping was improper. 

Id. at 529. The defendants had jumped into an occupied car parked at a curb, told the occupant 

not to make any noise or he would be killed, and drove off with the victim in the car. Id. at 525. 

The defendants demanded the victim’s money. Id. The defendants drove to a gas station to 

obtain gas then continued driving with the victim still in the car. Id. A short time later the 

defendants stopped the car and let the victim out. Id. The defendants were soon stopped by 

police. Id. at 526. The Smith court relied on the decisions from which the Levy-Lombardi rule 

arose and expressly adopted the position taken by the Levy court, which had stated as follows:
1-17-1819 

- 16 - 

 “ ‘We *** limit the application of the kidnapping statute to “kidnapping” 

in the conventional sense in which that term has now come to have acquired 

meaning. There may well be situations in which actual kidnapping in this sense 

can be established in conjunction with other crimes ***. But the case now before 

us is essentially robbery and not kidnapping. 

In the case before us the movement of the automobile, which was itself the 

situs of the robbery, was not essentially different in relation to the robbery than 

would be the tying up of a victim in a bank and his movement into another room. 

In essence the crime remained a robbery although some of the kidnapping 

statutory language might literally also apply to it.’ [Citation.]” Id. at 527, quoting 

People v. Levy, 15 N.Y.2d 159, 165 (1965). 

The Smith court found the case before it was only a robbery and not also a kidnapping because 

“[t]he victim was driven for a short distance—approximately 20 minutes from where he first 

encountered [the] defendants. During that time, [the] defendants took control of his car and 

personal property while threatening the use of force.” Id. at 529. The court held the asportation 

was merely incidental to the commission of a felony “and offered no significant danger to the 

victim independent of that posed by the felony.” Id. 

¶ 29 Thereafter, in People v. Enoch, 122 Ill. 2d 176 (1988), one dissenting justice wrote that 

our supreme court should take the opportunity presented in that case “to distinguish between 

asportations and secret confinements that are merely incidental to an underlying forcible felony 

and those that in fact implicate the separate dangers kidnapping statutes address.” Enoch, 122 

Ill. 2d at 219 (Simon, J., specially concurring in part and dissenting in part). The dissenting 

justice found that “the real harm” that the offense of kidnapping addresses is “that by carrying 
1-17-1819 

- 17 - 

the victim away or secreting the victim, the victim is not only confined but also dispossessed of 

legal and societal protection.” Id. The dissenting justice also noted that “a denial of legal and 

societal protections is assumed to occur during the time an independent crime is being 

perpetrated against the victim.” Id. The dissenting justice concluded by suggesting “that if the 

asportation or confinement in a particular case is not inherent in the substantive crime, but 

substantially facilitates the commission of that other offense and enhances the risk to the victim, 

then a conviction for kidnapping could be affirmed.” Id. at 220. 

¶ 30 The majority felt that the issue should be decided when a proper factual pattern was 

presented to the court. Id. at 197. Nonetheless the majority stated it did “not argue with the 

logic of the dissent’s contention that an aggravated kidnapping conviction should not be 

sustained where the asportation or confinement may constitute only a technical compliance with 

the statutory definition but is, in reality, incidental to another offense.” Id. Later, applying this 

rule in People v. Eyler, 133 Ill. 2d 173, 200 (1989), our supreme court held that “the confinement 

which occurred in [that] case *** was not ‘incidental to’ [a] murder.” In Eyler, our supreme 

court held that the evidence supported 

“the inference that when [the] defendant induced the victim to go to [the] 

defendant’s apartment for the supposed purpose of prostitution, [the] defendant 

had something else in mind: to bind *** torture, and stab his victim before 

murdering him, in a place where the victim was beyond the reach of anyone who 

could help him. The confinement necessary to accomplish this cannot be said to 

be incidental to the crime of murder.” Eyler, 133 Ill. 2d at 200. 

See also People v. Cole, 172 Ill. 2d 85, 104 (1996) (holding the record contained “sufficient 

evidence from which the judge could have concluded that the defendant’s actions constituted 
1-17-1819 

- 18 - 

aggravated kidnapping, and that the confinement *** was not merely incidental to another 

offense”). In Cole: 

“After shooting and killing Ruth Caulk and shooting and injuring Shane Caulk, 

the defendant ordered Stacey and Shane to ‘go for a ride’ with him. The 

defendant sat in the back seat of the car holding the gun, while Stacey drove and 

the injured Shane sat in the front passenger seat. The defendant eventually 

directed Stacey to drive to an isolated area referred to in the record as ‘Lover’s 

Lane,’ where the defendant ordered Shane from the car and then shot and killed 

him.” Cole, 172 Ill. 2d at 105. 

¶ 31 In this case, defendant argues (1) the asportation was brief, lasting only the few seconds 

required to walk six to ten feet from the sidewalk to the tree; (2) the asportation occurred to 

accomplish the sexual assault and arose out of defendant’s commission of that separate offense; 

(3) the asportation and confinement were inherent in the sexual assault because the sexual assault 

was defendant’s sole purpose and the duration of the kidnapping was only long enough to 

commit the sexual assault; and (4) the asportation and detention did not pose any significant 

danger to T.T. aside from the sexual assault because the location in the park did not create the 

potential for more serious activity due to the privacy of the final destination and defendant’s 

threats were only in relation to the sexual assault and not the kidnapping. 

¶ 32 The State responds the kidnapping was not incidental to the sexual assault because (1) the 

brevity of the asportation is not dispositive and the duration of the kidnapping here “is sufficient 

to uphold the *** conviction;” (2) the asportation and detention occurred prior to, not during, the 

commission of the sexual assault because it was not until defendant and T.T. were behind the 

tree that defendant “forced her to the ground and began the sexual assault;” (3) the asportation or 
1-17-1819 

- 19 - 

detention was not inherent in the separate offense because “asportation is not an element of 

criminal sexual assault” and defendant did not need to transport T.T. to sexually assault her; and 

finally, (4) the asportation or detention created a significant danger to the victim independent of 

that posed by the sexual assault because the concealment of T.T. behind a tree “increased the 

danger *** where it made it highly unlikely that she would be able to get the attention of a 

passer-by or would be discovered” and the “likelihood of her being murdered or injured *** 

greatly increased.” 

¶ 33 Based on the foregoing authorities we find that the Levy-Lombardi test is less of a 

quantitative analysis than it is a qualitative one. The qualitative question to be answered by 

application of the Levi-Lombardi factors is whether the acts constituting the alleged kidnapping 

resulted in isolating the victim from legal and societal protections—including protection from the 

risk of harm—to a greater degree than the commission of the separate felony alone or, whether 

the alleged kidnapping was merely essential to and characteristic of the separate felony. See 

https://www.merriam-webster.com/dictionary/inherent (visited November 18, 2019) (defining 

inherent as “involved in the constitution or essential character of something”); see also People v. 

McCarter, 2011 IL App (1st) 092864, ¶ 65 (discussing People v. Lamkey, 240 Ill. App. 3d 435 

(1992) and People v. Smith, 91 Ill. App. 3d 523 (1980)3), overruled on other grounds by People 

3

 “In Lamkey, 240 Ill. App. 3d at 440, the defendant jumped out of a doorway, grabbed the victim, 

pulled her into a hallway, and sexually molested her. [Citation.] The detention of the victim lasted two 

minutes; apparently only long enough to commit the sexual assault. [Citation.] *** In Smith, the 

defendants approached the victim while he was in his car and forced their way into the car. [Citation.] 

The defendants then drove the victim around for approximately 20 minutes, during which time the 

defendants took the victim’s money, his wallet, and finally his car. [Citation.] The court held ‘the gist of 

the case’ was robbery and determined the kidnapping was merely incidental to the robbery because the 

defendants used the 20 minutes to take control of the victim’s personal property and car, after which the 

defendant immediately released the victim. [Citation.] Here, the defendant held Bias at gunpoint for 

approximately 35 minutes before killing Bias. We are unpersuaded that the defendant should be found 

not culpable for kidnapping simply because the defendant waited to commit the murder until the car was 
1-17-1819 

- 20 - 

v. Reese, 2017 IL 120011, ¶ 42. We find this view also supported by People v. Williams, 263 Ill. 

App. 3d 1098 (1994), where this court found the defendant was properly convicted of sexual 

assault and kidnapping. Williams, 263 Ill. App. 3d at 1106-07. The Williams court found the 

detention in that case “lasted for a significant period of time” (id. at 1106), then reasoned as 

follows:

“[T]he defendant’s criminal conduct went beyond that required for the 

commission of the sexual assault crime. While defendant assaulted his first 

victim, he held the second at gun point. While he assaulted his second victim, he 

similarly held his first victim. Thus, each victim was detained both prior to and 

after being violated, significantly longer than the amount of time necessary to 

accomplish the defendant’s sexual assault against her. This type of detention is 

not inherent in the sexual assault offense and indicates that the kidnaping of the 

victims was the result of independent criminal conduct. While the kidnaping was 

certainly related to the sexual assault, these charges are sufficiently dissimilar to 

warrant distinct criminal convictions.” (Emphases added.) Id. at 1107. 

¶ 34 Defendant cites Lamkey, 240 Ill. App. 3d 435, which held that “the asportation or 

detention which occurred [in that case] was merely incidental to the separate offense of 

aggravated criminal sexual assault.” Lamkey, 240 Ill. App. 3d at 440. In determining whether 

the “act of detention or asportation [rose] to the level of kidnapping as a separate offense” the 

Lamkey court applied the Levy-Lombardi factors. Id. at 439-40. In that case, the court found 

that “the asportation *** lasted only for two minutes,” the victim “was not detained for any 

driven to an isolated area.” (Emphases added.) People v. McCarter, 2011 IL App (1st) 092864, ¶ 65,

overruled on other grounds by People v. Reese, 2017 IL 120011, ¶ 65. 
1-17-1819 

- 21 - 

substantial period of time,” and the asportation did not pose a “more significant danger to the 

victim than that already posed by the sexual assault.” Id. at 440. The court also found that “the 

asportation and detention occurred during the commission of the aggravated criminal sexual 

assault, and *** such detention is of course, inherent to that offense.” Id. As noted above, in 

Lamkey, the defendant grabbed the victim off a busy street when traffic and pedestrians were 

present, pulled her into the vestibule of a building that was visible from the street, and proceeded 

to sexually assault her before a passer-by intervened and stopped the assault. Id. at 436-37. 

¶ 35 However, we find the circumstances of this case bear closer resemblance to those initially 

presented in this court’s recent decision in People v. Johnson, 2015 IL App (1st) 123249, which 

the State cites in support of its position. In Johnson, the victim was walking down a public street 

in the early morning hours when the defendant “approached her from behind, started choking her 

by putting his arm around her neck, told her to be quiet and said he would kill her if she 

screamed.” Johnson, 2015 IL App (1st) 123249, ¶ 5. The defendant then moved the victim from 

the sidewalk to an adjacent vacant lot. Id. ¶ 6. The opinion does not state how far this

asportation was, but “[a] couple of cars drove past and someone walked just inches away from 

them.” Id. The defendant again threatened to kill the victim if she screamed, forced her down 

on the ground, and while they were on the ground sexually assaulted her by digital penetration. 

Id. The defendant and the victim then got up and while defendant was still choking the victim he 

pushed her toward a nearby alley and then to an area between two garages off the alley. Id. ¶ 7. 

The victim estimated the second distance they traveled to be “a couple of feet” but the court 

found that “photographs admitted into evidence show the distance between the vacant lot and the 

area between the two garages was greater.” Id. When they got to the area between the two 

garages the defendant was still choking the victim. He then sexually assaulted her two more 
1-17-1819 

- 22 - 

times both by penile penetration. Id. Following his convictions for aggravated kidnapping and 

aggravated criminal sexual assault, the defendant appealed. Id. ¶ 17. 

¶ 36 On appeal the defendant argued the State failed to prove beyond a reasonable doubt the 

asportation element of the offense. Id. ¶ 20. Applying the Levy-Lombardi doctrine, this court 

found the facts supported the defendant’s conviction for aggravated kidnapping. Id. ¶ 24. 

Nonetheless, we believe the court’s findings with regard to the initial asportation in Johnson

provide persuasive authority that the asportation and detention in this case was not a separate 

offense.

¶ 37 First, as to the duration of the asportation, the Johnson court relied on both the combined 

asportation from the sidewalk to the vacant lot and to the area between the two garages (“[the 

defendant] moved [the victim] from a sidewalk to a vacant lot and then from the vacant lot 

across an alley to an area between two garages”) or the asportation from the vacant lot to the area 

between the two garages alone (“the asportation extended from the vacant lot to the rear of a city 

lot [to an area between two garages]”) but it clearly did not rely on the asportation from the 

sidewalk to the vacant lot alone. See id. ¶ 25. Notably, the court took care to point out that the 

victim’s testimony that the defendant “dragged her ‘a couple feet away’ [from the vacant lot to 

an area between two garages] is contradicted by the photographs of the scene.” Id. 

¶ 38 Second, the court found the asportation occurred during the commission of a separate 

offense because the defendant did not sexually assault the victim as he moved her. Id. ¶ 26. The 

Johnson court stated this factor was satisfied because both “the asportation from the sidewalk to 

the vacant lot and from the vacant lot to the area between the two garages occurred before, rather 

than during, a sexual assault.” However, the court then found that there was no evidence the 

defendant sexually assaulted the victim “as he moved her from the vacant lot across the alley to 
1-17-1819 

- 23 - 

the area between the garages.” Id. The court found that the sexual assault in the vacant lot was 

separate and distinct from the sexual assault in the area between the two garages. Id. Thus, it is 

unclear whether the Johnson court would find this factor satisfied based on the sexual assault in 

the vacant lot alone where it specifically noted that the assault in the vacant lot was separate and 

distinct from the assault between the garages but, in finding that the kidnapping constituted a 

separate offense, noted there was no sexual assault during the asportation between the assault in 

the lot and the assault between the two garages. From this we find the Johnson court either 

found the second asportation to be “the commission of a separate offense” for purposes of the 

Levy-Lombardi test and not the first asportation from the street to the vacant lot or failed to 

comment on whether the first asportation was a separate offense. 

¶ 39 Third, the Johnson court held “asportation is inherent in a separate offense when it is an 

element of that offense.” Id. ¶ 27, citing People v. Quintana, 33 Ill. App. 3d 96, 108 (2002). It 

stated: “Asportation of a victim is not an element of aggravated criminal sexual assault. 

[Citations.]” Id. In conjunction with that finding the Johnson the court specifically found that 

“when [the defendant] moved [the victim] from the vacant lot to the rear of the lot and 

ultimately, to the area between the two garages against her will, [the defendant] committed a 

separate offense.” Id. This conclusion by the Johnson court further supports reading the 

decision to hold only that the asportation from the vacant lot to the area between the two garages 

constituted the separate offense and not the asportation from the public sidewalk to the vacant lot 

(where the first sexual assault occurred). Regardless, the Johnson court did not expressly find 

this element of the Levy-Lombardi test satisfied based on the shorter asportation of the victim 

from the sidewalk to the vacant lot. See id. Stated differently, Johnson does not provide a clear 

holding that the asportation from the sidewalk to the front of the adjacent vacant lot—we may 
1-17-1819 

- 24 - 

infer the first assault occurred at the front of the lot because the court noted the defendant then 

transported the victim to the rear of the lot—was not inherent in the sexual assault that occurred 

in the vacant lot. 

¶ 40 Fourth, the Johnson court held the asportation created a significant danger to the victim 

independent of the danger created by the sexual assault. Id. ¶ 28. Here, the court expressly made 

that finding relative to the asportation from the vacant lot to the area between the two garages 

and not the asportation from the sidewalk to the vacant lot. See id. The court found that 

“[w]hile [the defendant] and [the victim] were in the vacant lot, vehicles drove by and an 

individual walked past undoubtedly prompting [the defendant] to move [the victim] to the more 

secluded and private area, which demonstrates his intent to secretly confine [her] during the 

assault.” Id. The court found that in doing so the defendant “heighted the danger to [the victim] 

by decreasing the likelihood that anyone would see or hear what was transpiring, especially in 

the dark in the middle of the night.” Id. The court also found that the fact that the defendant 

threatened to kill the victim and was choking her, and that defendant moved her from the vacant 

lot to a more secluded area between the two garages, “both *** increased the danger to her.” Id. 

This case is unlike Johnson, however, in that here, defendant did not move the victim to a 

“more” secluded location than when the offense began thereby “decreasing the likelihood that 

anyone would see or hear what was transpiring.” We cannot say the area behind the tree six feet 

from the sidewalk was “more secluded and private” or involved a “heightened” danger that no 

one would see or hear what was transpiring than was involved in the sexual assault had 

defendant not moved T.T. behind the tree but chose to remain on or near the sidewalk adjacent 

the park at 2 a.m. 
1-17-1819 

- 25 - 

¶ 41 In contrast, we find that the cases relied upon by the State involve a detention and/or 

asportation that did result in isolating the victim from legal and societal protections—including 

protection from the risk of harm—to a greater degree than the commission of the separate felony 

either because the defendant moved the victim to an area that could reasonably be characterized 

as “more secluded” than the situs of the original felony or encounter with the defendant, the 

victim was moved a significantly greater distance for a longer period of time, or the victim

suffered a significantly higher degree of isolation after the asportation, such that the alleged 

kidnappings in those cases could reasonably be found not inherent in the commission of another 

felony. 

¶ 42 For example, in People v. Ware, 323 Ill. App. 3d 47 (2001), the victim had been talking 

to the defendant in the front of a bagel store. Ware, 323 Ill. App. 3d at 49. The defendant 

followed the victim down a “long hallway toward the back door” (and away from any customers 

or employees serving them) and pulled her into the men’s washroom where the defendant 

“turned off the lights [and] locked the door” (making the washroom appear closed or 

unoccupied). Id. In Ware, the asportation and detention significantly decreased the likelihood 

anyone would see or hear what was transpiring (the sexual assault) compared to where the 

defendant encountered the victim before moving and detaining her. After the victim was 

secluded in the washroom, away from customers and other employees, the defendant sexually 

assaulted her. Id. 

¶ 43 In People v. Pugh, 162 Ill. App. 3d 1030, 1035 (1987), also relied upon by the State, the 

victim had been in the parking lot of her apartment building at approximately 2 a.m. when the 

defendant, who was in the back seat of a vehicle with another man, “got out of the car punched 

[the victim] in the face five or six times, and forced her into the car.” Pugh, 162 Ill. App. 3d at 
1-17-1819 

- 26 - 

1031-32. The other occupant of the vehicle drove away. Id. at 1032. The defendant held the 

victim down on the backseat of the car such than the victim could not see where they were going. 

Id. The Pugh court held that the evidence in that case was sufficient to support the defendant’s 

convictions for aggravated kidnapping and aggravated battery. Id. at 1034. The court held that a 

conviction for kidnapping in addition to the separate offense is improper “where the separate, 

‘ultimate’ offense, such as robbery or rape, could not be committed in the form planned without 

the limited asportation inherent in the crime.” Id., citing Smith, 91 Ill. App. 3d at 528. 

¶ 44 The Pugh court found that the defendant in that case had committed an aggravated 

battery in the parking lot and then “forced the victim into the car *** and held her down on the 

back seat so as to conceal her.” Id. The court found those facts distinguished Pugh from “those 

cases in which the offense of kidnapping may be considered incidental to the separate offense 

and where convictions for both crimes are improper.” Id. The Pugh court concluded that the 

“defendant’s action in striking the victim in the parking lot and in the car were separate acts from 

his transporting her with the intent to confine her.” Id. at 1035. We also note that, as in Ware

and the second asportation in Johnson, in Pugh, the victim was taken to a location that was 

“more secluded” than the initial encounter with the defendant—to the backseat of a moving 

vehicle in the early morning hours making it much less likely anyone would see what was 

transpiring in the car than if the car had remained parked in the victim’s parking lot. Accord, 

Quintana, 332 Ill. App. 3d at 108 (where the victim was pulled off the street into a van, in 

finding the fourth Levy-Lombardi factor satisfied the court found that “[w]hile the van was in 

motion [the victim’s] cries and screams could not be heard”); People v. Lloyd, 277 Ill. App. 3d 

154, 164-65 (1995) (“a significant and independent danger arises where a victim is forced out of 

a public area and into an abandoned apartment because as a result of the asportation, a victim’s 

--
1-17-1819 

- 27 - 

signal for help is more difficult to detect and the likelihood of a victim being seen by a passerby 

is greatly decreased”). The Quintana court rejected the defendant’s argument that “the 

asportation and detention were necessary to sexually assault the victim.” Quintana, 332 Ill. App. 

3d at 107. But the court merely stated, without citing any authority, that “in order for the 

asportation or detention to be inherent in a separate offense, it must constitute an element of that 

offense.” Quintana, 332 Ill. App. 3d. at 108. See also Lloyd, 277 Ill. App. 3d at 164 (holding 

“the forced movement of a victim from one location to another place is not inherent in the 

offense of criminal sexual assault” citing only to the statute defining that offense). But see Pugh, 

162 Ill. App. 3d at 1034; Lamkey, 240 Ill. App. 3d at 440. 

¶ 45 In People v. Banks, 344 Ill. App. 3d 590 (2003), at approximately 7:55 p.m. the defendant 

approached the victim—a 12-year-old boy—in a residential alley and asked the victim if he 

wanted to make some money cleaning out a garage down the alley. Banks, 344 Ill. App. 3d at 

592. As the victim and the defendant started walking down the alley “the defendant grabbed the 

victim’s arm and started dragging him toward a gangway.” Id. The defendant dragged the 

victim approximately 10 feet. Id. A family friend to the victim saw what was transpiring and 

intervened. Id. The defendant ran away. Id. The court held that the defendant “acted with the 

intent to secretly confine the victim but was prevented from doing so.” Id. at 594. The court 

also found that “the asportation of the victim was established beyond a reasonable doubt.” Id. 

The Banks court focused on the rule that “a kidnapping conviction is not precluded by the 

brevity of the asportation or the limited distance of the movement.” (Emphasis added.) Id. at 

594-95, citing People v. Casiano, 212 Ill. App. 3d 680, 687 (1991). The court found the 

evidence in Banks established that “the defendant held the victim against his will and that 

asportation occurred” even if only “ten feet down the alley.” Id. at 596. Significantly, however, 
1-17-1819 

- 28 - 

the court then found that “the asportation was not inherent to a separate offense and the 

asportation created a significant danger to the victim independent of that posed by a separate 

offense.” Id. In other words, in Banks, the defendant committed no other felony that his actions, 

which constituted “a technical compliance with the statutory definition” of kidnapping, were 

incidental to; therefore, the court did not need to address that question. The court held only that 

“the State sufficiently proved that [the] defendant, by enticement and by force, carried the victim 

from one place to another.” Id. 

¶ 46 Looking to the Levy-Lombardi factors on their face, in this case 

(1) The duration of the asportation was brief and of a short distance. It could have taken 

no more than a few seconds to move the six to ten feet from the sidewalk to the tree.

(2) The asportation occurred during the commission of the sexual assault. We reject the 

State’s argument to the contrary. Defendant moved T.T. only a short distance from 

the sidewalk to commit the offense of sexual assault against her. See, e.g., Williams, 

263 Ill. Ap. 3d at 1106; Lamkey, 240 Ill. App. 3d at 440. There is no evidence 

defendant had anything else in mind or that he intended to confine T.T. any longer 

than necessary to complete that crime alone. Cf., Eyler, 133 Ill. 2d at 200. 

(3) The acts constituting the kidnapping were a technical compliance with the statute but 

were inherent in the sexual assault. See supra, ¶¶ 30-33. Defendant’s conduct did 

not go “beyond that required for the commission of the sexual assault crime.” 

Williams, 263 Ill. App. 3d at 1107. See also People v. Young, 115 Ill. App. 3d 455, 

470 (1983) (“The duration of the detention was only for the period of time necessary 

to accomplish the rape and, in fact, marked the beginning of the struggle culminating 

in the rape. It is also clear that the act relied upon was inherent in the rape itself, 
1-17-1819 

- 29 - 

since at some point in time complainant had to be restrained in some manner in order 

to accomplish the rape.”).

(4) The asportation did not create a significant danger to T.T. independent of that posed 

by the sexual assault. The area behind the tree six feet from the sidewalk was not 

significantly “more secluded and private” and did not involve a significantly 

“heightened” danger that no one would see or hear what was transpiring than would 

be present had defendant not moved T.T. behind the tree. Cf., People v. Sumler, 2015 

IL App (1st) 123381, ¶ 60 (“[The] [d]efendant forcibly taking control of the victim’s 

vehicle and driving her around as he did created a potential risk to the victim that was 

substantially increased above the risk present in the initial domestic battery itself.” 

(Emphasis added.)). We do not agree with the State that the risk of harm to T.T. 

increased as a result of the asportation because defendant was choking her as he did 

so. Rather, like the movement itself, the violence inflicted upon T.T. was incidental 

to the sexual assault.

¶ 47 More importantly, we find the gist of the crime committed here was sexual assault, and it 

remained a sexual assault throughout its duration. In this case, defendant’s actions in forcing 

T.T. to the tree were “not essentially different in relation to the [sexual assault]” than would be 

forcing her into a bedroom had the attack happened in a residence. See Smith, 91 Ill. App. 3d at 

527, quoting People v. Levy, 15 N.Y.2d 159, 165 (1965). The danger to T.T. was not 

significantly increased by the movement of six to ten feet and she was not significantly 

dispossessed of legal and societal protection a short distance from the sidewalk in a public park 

than she would have been without the asportation. We find this case presents a clear example of 

conduct that constitutes “only a technical compliance with the statutory definition [of 
1-17-1819 

- 30 - 

kidnapping] but is, in reality, incidental to another offense.” Id. at 220. Accordingly, 

defendant’s kidnapping conviction cannot be sustained. 

¶ 48 Defendant’s conviction for aggravated kidnapping is reversed, defendant’s sentence of 

six years’ imprisonment for aggravated kidnapping is vacated, and defendant’s conviction for 

aggravated criminal sexual assault under Count IX is reversed. In all other respects, the 

judgment of the circuit court of Cook County is affirmed.

¶ 49 CONCLUSION

¶ 50 For the foregoing reasons, the circuit court of Cook County is affirmed in part and 

reversed in part. 

¶ 51 Affirmed in part, vacated in part, and reversed in part.