Illinois Official Reports 

Appellate Court

People v. Smith, 2017 IL App (1st) 151312

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

STEVIE SMITH, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-15-1312

Filed

Rehearing denied

October 17, 2017

November 14, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 10-CR-4124; the 

Hon. Michele M. Pitman, Judge, presiding.

Judgment Affirmed in part and vacated in part.

Counsel on

Appeal

Christopher Cronson and Brett Cronson, of Cronson & Cronson, Ltd., 

of Waukegan, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

Mary P. Needham, and Marci Jacobs, Assistant State’s Attorneys, of 

counsel), for the People.

Panel JUSTICE HYMAN delivered the judgment of the court, with opinion.

Presiding Justice Neville and Justice Pucinski concurred in the 

judgment and opinion. 
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 OPINION 

¶ 1 Following simultaneous but severed bench trials, defendant Stevie Smith and 

codefendant Jerry Brown were convicted of robbery and aggravated battery of a senior 

citizen (Brown is not a party to this appeal). Smith was sentenced to consecutive prison terms 

of 12 years and 6 years, respectively. On appeal, Smith contends only that his conviction for 

aggravated battery of a senior citizen should be vacated because it violates the one-act, 

one-crime doctrine where it is based on the same single physical act as his robbery 

conviction. 

¶ 2 We agree and vacate the aggravated battery of a senior citizen conviction. On this record, 

we hold that the one-act, one-crime principle was violated, as the basis for both 

convictions—robbery and aggravated battery of a senior citizen—was Smith’s single 

physical act of punching Burtner. 

¶ 3 Background 

¶ 4 Smith and Brown were tried on charges of first degree murder, aggravated battery of a 

senior citizen, robbery, and aggravated battery. At trial, Deborah Halloran testified that 

William Burtner was the commander of the Veterans of Foreign Wars (VFW) post in 

Midlothian, where she was employed as the bar manager. At about 9:30 a.m. on November 

16, 2009, Burtner and Halloran prepared money for deposit into four accounts the VFW 

maintained at the local A.J. Smith Bank. Deposits for three accounts were placed into three 

bank deposit bags. An additional amount was placed inside a cigar box so Burtner could open 

a new account. Burtner left the VFW post with the three deposit bags and the cigar box and 

drove to the bank. 

¶ 5 A teller at the A.J. Smith Bank, Connie Weimar, testified that at about 10:15 a.m. on 

November 16, she looked out the window and saw Burtner walking toward the bank carrying 

bank deposit bags in his hand. As Burtner approached the entrance, he passed behind a wall, 

and Weimar lost sight of him. Weimar next saw a man wearing a hooded sweatshirt walking 

quickly past the front of the bank toward Burtner. The hood covered the man’s head, and 

Weimar could not see his face. Nothing was in the man’s hands. The man disappeared from 

Weimar’s sight for “a matter of seconds.” When she next saw him, he was carrying 

something in his hand, had turned around, and was running to the adjacent Wendy’s parking 

lot. He got into the front passenger seat of a black car that then took off. Weimar yelled,

“Call 911.” Two bank employees brought Burtner inside the bank and sat him down in a 

chair. Later, the man wearing the hooded sweatshirt was determined to be Smith. 

¶ 6 Tamara Esposito was at the bank when her supervisor yelled, “Call 911, I believe 

somebody was just robbed.” Esposito went to the front door and saw Burtner on the ground 

outside. Esposito and a security guard went outside and helped Burtner. He asked Esposito to 

retrieve a cigar box from the ground, which contained money and checks. Esposito saw a 

black sports car speeding out of the Wendy’s parking lot. Esposito and the security guard 

brought Burtner inside the bank. Burtner was slightly bent over and holding his left side near 

his rib cage, had labored breathing, and was experiencing difficulty speaking. Burtner told 

Esposito that he was punched in his left side. 
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¶ 7 Paramedic Cory Katsibubas treated Burtner at the bank. Burtner was holding his left side 

in his back rib area. Burtner complained of pain in that area and also pain when taking deep 

breaths. Katsibubas administered oxygen and transported Burtner to the hospital. The State 

presented a stipulation that Burtner told Katsibubas that “he was hit from behind, and he 

fell.”

¶ 8 Meanwhile, a high-speed police chase of the black car, driven by codefendant Brown, 

had ensued. Smith and Brown crashed into another vehicle and came to a stop. They ran from 

the black car in opposite directions. Minutes later, police found Brown hiding underneath a 

vehicle in a backyard and placed him in custody. During a custodial search, police recovered 

over a thousand dollars from his right pocket. The A.J. Smith Bank deposit bags and money 

were found inside the black car. Blood samples taken from the passenger’s side of the black 

car were submitted to the Illinois State Police crime laboratory for testing. Results of that 

testing indicated a DNA match with Smith, and he was arrested on February 5, 2010. 

¶ 9 Mary Burtner, William’s wife, testified that her husband was treated and released from 

the hospital on the day of the robbery. When he returned home, he was in a lot of pain, 

uncomfortable, and favoring his left side. The next day, he felt worse. The following 

morning, November 18, although still in a lot of pain, he went to chemotherapy for his lung 

cancer. At the hospital, he was unable to walk due to his pain and needed a wheelchair. When 

the couple arrived home at about 3 p.m., her husband was still holding his left side and was 

unable to get out of the car. She assisted him into their home and to bed. He fell asleep. She 

checked on him, and around 8:30 p.m., she found her husband unresponsive and called 911. 

¶ 10 Paramedics arrived. Burtner was unresponsive, not breathing, and had no pulse or blood 

pressure. Paramedics performed CPR, administered cardiac medications, and transferred him 

to the hospital. There were no signs of life. The State presented the death certificate 

indicating that Burtner was 65 years old at death. 

¶ 11 An assistant chief medical examiner, Dr. Ponni Arunkumar, performed an autopsy. 

Burtner suffered from lung cancer, two prior heart attacks, and heart disease and had three 

fractured ribs on the left side of his chest wall. The rib fractures were less than three or four 

days old and were consistent with being punched. Dr. Arunkumar determined that the cause 

of death was hypertensive cardiovascular disease with, as a significant contributing factor to 

the heart attack, the fractured ribs due to an assault. In her opinion the cause of death was 

homicide.

¶ 12 The trial court found that the State failed to prove that Smith and Brown caused Burtner’s 

death and so found them not guilty of first degree murder. The trial court, however, found 

that defendants “certainly” inflicted great bodily harm on Burtner and, therefore, found both 

men guilty of aggravated battery of a senior citizen. The trial court also found defendants 

guilty of robbery and aggravated battery. The aggravated battery counts were merged into the 

aggravated battery of a senior citizen offense. As Burtner was over the age of 60, the trial 

court ruled that the robbery offense was elevated from Class 2 to a Class 1 felony. 

¶ 13 The trial court sentenced Smith to 12 years’ imprisonment for robbery and a consecutive 

term of 6 years’ imprisonment for aggravated battery of a senior citizen. The court expressly 

stated that Smith’s criminal history and the nature and circumstances of the offense required 

consecutive sentences to protect the public from further criminal conduct by Smith. 
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¶ 14 Analysis 

¶ 15 Smith contends only that his conviction for aggravated battery of a senior citizen should 

be vacated because it violates the one-act, one-crime doctrine where it is based on the same 

single physical act as his robbery conviction. Smith argues that the only evidence of a 

physical act committed against Burtner was the single punch that resulted in fractured ribs. 

Smith also argues that the single punch cannot serve as the basis for both the aggravated 

battery and the force element for the robbery. 

¶ 16 The State responds that the one-act, one-crime doctrine was not violated because Smith 

committed two separate acts. The State asserts that the punch was one act and the taking of 

the deposit bags was a separate act. The State contends that the common act of the punch can 

serve as the basis of both offenses because there was another separate act for the robbery. 

¶ 17 As a threshold matter, Smith acknowledges that he forfeited this issue for appeal as he 

failed to object to the multiple convictions at trial and did not raise the issue in his posttrial 

motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). The parties agree, however, that our 

supreme court has repeatedly ruled that a one-act, one-crime violation is reviewable under 

the second prong of the plain error doctrine because it affects the integrity of the judicial 

process. In re Samantha V., 234 Ill. 2d 359, 378-79 (2009). Hence, we will consider the issue. 

¶ 18 Whether a conviction should be vacated under the one-act, one-crime doctrine is a 

question of law, which we review de novo. People v. Johnson, 237 Ill. 2d 81, 97 (2010). 

Under this rule, Smith cannot be convicted of multiple offenses that are based on precisely 

the same single physical act, and where he is convicted of two such offenses, the conviction 

for the less serious offense must be vacated. Id. Our supreme court has defined an “act” as 

“any overt or outward manifestation which will support a different offense.” People v. King, 

66 Ill. 2d 551, 566 (1977). 

¶ 19 In clarifying the one-act, one-crime rule from King, the supreme court explained that a 

court must first determine whether Smith’s conduct consisted of a single physical act or 

separate acts. People v. Rodriguez, 169 Ill. 2d 183, 186 (1996). A defendant can be convicted 

of two offenses where a common act is part of both crimes. Id. at 188. But, where two 

offenses share a common act, there must be another separate act to sustain the two 

convictions. See id. at 188-89. “ ‘As long as there are multiple acts as defined in King, their 

interrelationship does not preclude multiple convictions ***.’ (Emphasis added.)” Id. at 189 

(quoting People v. Myers, 85 Ill. 2d 281, 288 (1981)). 

¶ 20 The State charged Smith with robbery for taking money from Burtner by the use of force 

or by threatening the imminent use of force. 720 ILCS 5/18-1(a) (West 2008). The 

aggravated battery of a senior citizen offense alleged that Smith intentionally and knowingly 

caused great bodily harm to Burtner, a person 60 years of age or older, by striking him about 

the body, causing injuries. 720 ILCS 5/12-4.6(a) (West 2008). 

¶ 21 The record reveals that the evidence presented at trial demonstrated that Smith committed 

one single physical act—a single punch to Burtner’s left side. The only evidence of any act 

by Smith was Esposito’s testimony that Burtner told her that he was punched in his left side 

and the State’s stipulation that Burtner told paramedic Katsibubas that “he was hit from 

behind, and fell.” The single punch was used as the basis for the aggravated battery 

conviction and as the element of force for the robbery conviction. There was no evidence of 

any other use of force or threat of force by Smith. There was no evidence of a verbal threat. 

Indeed, because Burtner was punched from behind, he was likely unaware that Smith was 
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approaching him. Based on this record, we find that Smith committed only one single 

physical act. 

¶ 22 We note that the State asserts that the taking of the money from Burtner constituted a 

separate physical act for the robbery and, thus, the two convictions may stand. The State 

primarily relies on this court’s decision in People v. Pearson, 331 Ill. App. 3d 312 (2002), 

which it claims is directly on point. In Pearson, the defendant grabbed a woman’s purse off 

her shoulder. Id. at 314. A struggle ensued, and the woman was knocked to the ground. Id.

The defendant was convicted of both robbery and aggravated battery. Id. at 316. On appeal, 

this court found that the two convictions did not violate the one-act, one-crime doctrine, as 

the defendant committed two separate physical acts—he took the woman’s purse, and he then 

pushed her to the ground. Id. at 322. 

¶ 23 We find the facts of this case distinguishable from Pearson. There, the act of grabbing 

the woman’s purse off her shoulder was, in and of itself, a taking of property by force. 

Pearson’s subsequent act of pushing the woman to the ground was a separate act. Here, 

however, the evidence demonstrates that Smith committed only one physical act, the punch. 

There was no evidence that Smith used another act of force to take the money from Burtner. 

There is no evidence explaining how the taking occurred. There is no evidence of a struggle 

over the deposit bags nor any evidence that Smith forcefully removed them from Burtner’s 

hand. It is possible that Burtner dropped the bags after he was punched and fell to the ground, 

as he apparently did with the cigar box. Accordingly, Pearson does not apply to this case. 

¶ 24 Based on this record, we find that Smith’s convictions for robbery and aggravated battery 

of a senior citizen were both based on Smith’s single physical act of punching Burtner. The 

two convictions therefore violate the one-act, one-crime principle and cannot stand. The 

aggravated battery of a senior citizen offense is a Class 2 felony and, thus, is less serious than 

the robbery of a senior citizen, which was elevated to Class 1. 

¶ 25 We vacate the aggravated battery of a senior citizen conviction and affirm Smith’s 

conviction and sentence for robbery. 

¶ 26 Affirmed in part and vacated in part.