Defendant asserts his stabbing and subsequent kicking of the victim represented a single physical act under King. In support of this proposition, defendant cites People v. Ellis, 143 Ill. App.3d 892, 493 N.E.2d 739 (1986), which utilized a series of factors to determine whether the defendant's conduct in that particular case constituted separate physical acts or merely distinct parts of one act. These factors included: (1) the prosecutorial intent, shown by the wording of the charging instruments, as reflective upon whether the State attempted to differentiate between the conduct supporting the charges involved; (2) whether the defendant's acts were interposed by an intervening event; (3) the time interval between the successive parts of the defendant's conduct; (4) the identity of the victim; (5) the similarity of the acts performed; (6) and whether the conduct occurred at the same location.
We have set forth relevant factors for a determination of whether the defendant's conduct constituted separate acts: (1) the time lapse between successive segments of the defendant's conduct; (2) whether an intervening event occurred; (3) the victim's identity; (4) the similarity of the defendant's acts; (5) the site of the defendant's conduct; and (6) prosecutorial intent as evinced in the language of the indictment or information. See People v. Rodarte (1989), 190 Ill. App.3d 992, 1001, 547 N.E.2d 1256, 1261-62; People v. Ellis (1986), 143 Ill. App.3d 892, 895-96, 493 N.E.2d 739, 742. In the case at bar, the information charging defendant based one count of home invasion on his unauthorized entry into Ernst's dwelling place, knowing that one or more persons were present and his threatening the imminent use of force on Ernst while armed with a dangerous weapon, a knife.
Prior to the decision in King, Illinois courts followed what is referred to as the "independent motivation" test with respect to multiple convictions and concurrent sentences. The history of how Illinois courts addressed this issue before and after King was thoroughly articulated by this court in People v. Ellis (1986), 143 Ill. App.3d 892, 493 N.E.2d 739. • 1 It is well settled that multiple convictions based upon the same physical act or acts cannot stand.
The aggravating factor in count I was the causation of great bodily harm; in count II, it was the victim's status as a police officer. We find the instant case analogous to People v. Ellis (1986), 143 Ill. App.3d 892, 493 N.E.2d 739, wherein the defendant was charged with one count of aggravated battery based on great bodily harm, and a second count based on a public place of accommodation. In Ellis, the State argued that there were separate physical acts because the defendant struck the victim on the back of the head and then struck her in the face when she turned to face him.
The trial court heard testimony that the defendant stabbed the victim in the back and also struck her in the face. These actions constituted separate physical acts even though they were closely related, and, thus, both convictions were proper. People v. Nelson (1985), 130 Ill. App.3d 304, 310-11, 474 N.E.2d 23; see also People v. Dixon (1982), 91 Ill.2d 346, 355-56, 438 N.E.2d 180; People v. Myers (1981), 85 Ill.2d 281, 288-89, 426 N.E.2d 535; People v. Hutson (1985), 138 Ill. App.3d 553, 557-58, 486 N.E.2d 259; People v. Jones (1984), 128 Ill. App.3d 842, 846, 471 N.E.2d 590; People v. Post (1982), 109 Ill. App.3d 482, 490-92, 440 N.E.2d 631. But see People v. Ellis (1986), 143 Ill. App.3d 892, 493 N.E.2d 739; People v. Williams (1986), 143 Ill. App.3d 658, 665-66, 493 N.E.2d 362; People v. Hope (1986), 142 Ill. App.3d 171, 175-76, 491 N.E.2d 785; People v. Baity (1984), 125 Ill. App.3d 50, 465 N.E.2d 622. • 4 We emphasize that the case now before us is distinguishable factually from other cases that found multiple convictions improper where the prosecutor's intent, as gleaned from the charging instrument, was to treat the defendant's conduct as a single act. (See, e.g., People v. Ellis (1986), 143 Ill. App.3d 892, 895, 493 N.E.2d 739; People v. Williams (1986), 143 Ill. App.3d 658, 666, 493 N.E.2d 362; People v. Baity (1984), 125 Ill. App.3d 50, 54, 465 N.E.2d 622.)
People v. Moss, 274 Ill. App. 3d 77, 83 (1995). The appellate court first enunciated these factors in People v. Baity, 125 Ill. App. 3d 50 (1984), and has applied them in several subsequent decisions (see, e.g., People v. Cobern, 236 Ill. App. 3d 300, 303-04 (1992); People v. Crum, 183 Ill. App. 3d 473, 490 (1989); People v. Ellis, 143 Ill. App. 3d 892, 895-96 (1986); People v. Hope, 142 Ill. App. 3d 171, 176 (1986); People v. Horne, 129 Ill. App. 3d 1066, 1074 (1984)). At the outset, we note that we have previously cautioned the appellate court not to rely too heavily on the above-cited factors.
This court will not invade the province of the jury and decide this question of fact. In both People v. Crum, 183 Ill.App.3d 473, 131 Ill.Dec. 843, 539 N.E.2d 196, and People v. Ellis, 143 Ill.App.3d 892, 97 Ill.Dec. 932, 493 N.E.2d 739 (1986), the appellate court found that the charging instruments evinced the State's intent to treat the conduct of the defendants as single acts. Similarly, in this case, the charging instruments reveal that the State intended to treat the conduct of the defendant as a single act.
This court will not invade the province of the jury and decide this question of fact. In both People v. Crum, 183 Ill. App.3d 473, and People v. Ellis, 143 Ill. App.3d 892 (1986), the appellate court found that the charging instruments evinced the State's intent to treat the conduct of the defendants as single acts. Similarly, in this case, the charging instruments reveal that the State intended to treat the conduct of the defendant as a single act.
Factors to be considered in determining whether the defendant's conduct constituted a single physical act or several separate and distinct acts are (1) prosecutorial intent, as reflected in the language of the indictment; (2) the existence of an intervening act; (3) the time interval between successive parts of the defendant's conduct; (4) the victim's identity; (5) the similarity of the acts; and (6) the location of the acts. People v. Ellis, 143 Ill. App.3d 892, 895-96, 493 N.E.2d 739 (1986). This test was recently discussed in People v. Rodriguez, 169 Ill.2d 183, 661 N.E.2d 305 (1996).
It is well settled that multiple convictions based on the same physical act cannot stand. ( People v. Ellis (1986), 143 Ill. App.3d 892, 493 N.E.2d 739.) Section 102(h) of the Illinois Controlled Substances Act defines delivery as "the actual, constructive or attempted transfer of possession of a controlled substance."