People v. Mays

¶1dissenting:

¶2I respectfully dissent from the opinion of the majority. I agree that a defendant is entitled to an instruction on a lesser-included offense if there is evidence in the record which, if believed by a jury, would reduce the crime to a lesser included offense (People v. Dunagan (1979), 71 Ill. App. 3d 972, 389 N.E.2d 1261; People v. Simpson (1978), 57 Ill. App. 3d 442, 373 N.E.2d 809, aff'd (1978), 74 Ill. 2d 497, 384 N.E.2d 373. See Beck v. Alabama (1980), 444 U.S. 897, 62 L. Ed. 2d 132, 100 S. Ct. 2382.) However, I believe that the instruction tendered by the defendant in this case was not with regard a lesser included of the offense charged, and was properly refused.

¶3In People v. Latham (1979), 73 Ill. App. 3d 995, 997, 392 N.E.2d 43, 45, the Fifth District Appellate Court noted that People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273,

“ ° ° ° makes it clear that two or more offenses are not necessarily lesser included crimes just because they arise out of a series of incidental or closely related acts. To constitute a lesser included offense:

“[I]t is necessary that the greater offense include every element of the lesser offense plus one or more other elements. [Citation omitted]. To say this another way, a lesser included offense, sometimes referred to as a necessarily included offense,’ is one composed of some, but not all of the elements of the greater offense, and which does not have any element not included in the greater offense [citation omitted], so that it is impossible to commit the greater offense without necessarily committing the lesser offense.” People v. Delk (1976), 36 Ill. App. 3d 1027, 1041, 345 N.E.2d 197, 209.

¶4The Illinois battery statute provides that “[a] person commits battery if he intentionally or knowingly without legal justification and by any means, (1) causes bodily harm to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.” (Ill. Rev. Stat. 1979, ch. 38, par. 12 — 3(a).) Thus, in this State a battery can be committed in one of two ways: by intentionally or knowingly causing bodily harm to the victim, or by intentionally or knowingly making physical contact of an insulting or provoking nature. The defendant’s offered instruction No. 5 was an instruction on the crime of battery caused by bodily harm.1 Although I would concede that given the nature of the crime of rape, a battery in the form of an insulting or provoking physical contact is always a lesser-included offense, it does not follow that the same is true for a battery based upon bodily harm to the victim. It is possible to commit the offense of rape without necessarily causing bodily harm to the victim. Consequently, by definition a battery based upon bodily harm to the victim cannot be a lesser-included offense unless there is evidence in the record that bodily harm occurred to the victim during the course of or as a result of the rape. In the absence of such evidence the defendant is not entitled to a battery-based-on-bodily-harm instruction.

¶5The record in the case at bar reveals that the victim, Vicki Dahlstrom, suffered bodily harm, but not during the commission of, or as a result of, the rape. Ms. Dahlstrom testified that after giving the defendant a ride to a Moline tavern, he grabbed her car keys and forced her into the back seat of her car. There he struck her about the face until she was rendered unconscious. After she regained consciousness the defendant removed her clothing and had sexual intercourse with her against her will. The State’s medical testimony established that vaginal smears taken from the victim disclosed sperm cells. In testifying in his own behalf, the defendant admitted striking Ms. Dahlstrom, but denied having sexual intercourse with her. It is thus obvious that the battery offense for which the defendant sought a jury instruction was not committed during the rape, but prior thereto. The battery was a completely separate offense, arising from a separate and distinct act — so separate, in fact, that had the defendant been charged with both battery based upon bodily harm and rape, and convicted of both offenses, the one act/one crime doctrine would not operate to bar the entry of multiple convictions. See King; People v. Schultz (1979), 73 Ill. App. 3d 379, 392 N.E.2d 322.

¶6In my view, the defendant did not seek an instruction on a lesser-included offense. To argue that he is entitled to this battery instruction on such grounds is inconsistent with his defense theory that he did not rape the complainant. Rather, the defendant is seeking an instruction on an offense for which he has not been charged; and as was so aptly put by the court in People v. Simpson (1978), 57 Ill. App. 3d 442, 449, 373 N.E.2d 809, 814, “[n]o defendant has an absolute right to pick and choose his prosecution and his punishment.” To allow him to do so here would have only confused the jury’s deliberative process. Further, “[a] defendant indicted of one offense cannot be convicted of an unindicted offense which is not a lesser-included of the offense for which he is charged.” People v. Hobson (1979), 77 Ill. App. 3d 22, 28, 396 N.E.2d 53, 58.

¶7In short, there is no evidentiary basis for the particular battery instruction tendered by the defendant. Had the instruction been on battery caused by an insulting or provoking physical contact I would agree that the giving of the instruction was warranted on the grounds that it was on a lesser included of the greater offense of rape. The form of battery for which the defendant seeks an instruction, however, is not a lesser included of the offense of rape under these facts. I would affirm the trial court’s refusal to give defendant’s Instruction No. 5, and reach the merits of defendant’s second issue concerning the sufficiency of the record.