No. 2--95--0265
________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
) No. 94--CF--1238
v. )
)
JOEY HICKS, ) Honorable
) Melvin E. Dunn,
Defendant-Appellant. ) Judge, Presiding.
________________________________________________________________
JUSTICE RATHJE delivered the opinion of the court:
Following a jury trial, defendant, Joey Hicks, was convicted
of two counts of home invasion (720 ILCS 5/12--11(a)(2) (West
1994)). The court sentenced him to the minimum six-year term of
imprisonment. Defendant appeals, raising the following issues:
(1) whether there was sufficient evidence supporting the conviction
that was based on accountability; (2) whether the court erred in
refusing to instruct the jury on the affirmative defense of defense
of property; and (3) whether one of his convictions must be vacated
because there was only one entry. We affirm and remand.
Officer Richard Johnson of the Aurora police department
testified that at around 8:20 p.m. on June 18, 1994, he was
dispatched to 606 N. Lancaster. A 911 call had been placed from
that address, but the caller either hung up or was disconnected.
When Johnson arrived, Michael Stewart was standing outside the
house. Stewart had a swollen left eye and scratches on his body.
Johnson went inside and found David Edmonds lying face up on the
couch. Edmonds' head was bleeding, his left eye was swollen shut,
his jaw was swollen, and he had cuts on his face.
Johnson testified that he observed shoe prints on the front
door. There were rubber remnants, like pencil eraser shavings, on
the prints. Johnson believed the prints were from tennis shoes.
He identified a photograph as accurately depicting the shoe prints
on the front door.
Michael Stewart testified that he knew defendant from when he
used to live near him and that he knew a woman named Donna Hedge
through defendant. He used to buy marijuana from Hedge, and on the
date in question, he owed her $50 that he had borrowed to buy
marijuana. According to Stewart, on June 18, 1994, he was riding
his bike when defendant and Hedge pulled up in a car and began
harassing him about the money he owed Hedge. Defendant was angry
and told Stewart he was going to "get" him. Defendant jumped out
of the car and began to chase Stewart on foot, while Hedge chased
Stewart in the car. Stewart rode his bike to Edmonds' house and
went inside. Edmonds is Stewart's girlfriend's brother.
Stewart looked outside and saw the car pulling up. John Davis
was now with defendant and Hedge. Stewart then locked the front
door. Davis, defendant, and Hedge came up to the door and asked
for Stewart to come out, and Stewart kept saying no. Edmonds asked
the trio what they wanted, and they kept pushing and kicking on the
door, trying to force their way in. They were finally able to
force their way inside. At the time, Stewart had just dialed 911.
Defendant ripped the phone from Stewart's hand. Defendant then
picked Stewart up, threw him into a bedroom, punched him, and
stomped on his head. Defendant could see Davis beating Edmonds in
the other room. Davis, defendant, and Hedge left after about 5 or
10 minutes. Stewart denied that he stole a gold chain from Hedge,
and he denied hearing Davis, defendant, or Hedge yelling about the
chain when they came to the door.
David Edmonds testified that on the evening in question
Stewart had been at his house. Stewart left for about five
minutes, and when he returned, three people pulled up in a car in
front of the house. The people came up to the door and asked for
Mike Stewart. Stewart went to the door, and Edmonds overheard him
say that he could not let anyone in because he did not live there.
When the people started pushing and kicking on the door, Edmonds
and Stewart tried to hold it closed. They managed to get inside,
and Edmonds told them to leave. Defendant then threw Stewart into
a bedroom. Edmonds could hear grunts and groans coming from the
bedroom. He was just standing there when Davis spun around and hit
him. Edmonds tried to sit up, but Davis hit him again. Davis was
hitting him with something that was cutting him. He suffered
numerous cuts to the face and torn cartilage in his jaw. He went
to the hospital and received stitches.
On cross-examination, Edmonds testified that when Davis,
defendant, and Hedge were still outside the door, he heard them
yelling something about a golden necklace and being ripped off.
Edmonds also testified that the door was not locked when it was
kicked, but rather was ajar, and that he and Stewart were trying to
hold it closed.
Timothy Hedge testified for the defense. On the evening in
question, he was working on a car at his girlfriend's (Jennifer
Hester's) house. Davis was helping him. Timothy's sister, Donna,
and her boyfriend (defendant) came over to get some tapes.
Defendant's and Hedge's children, Joe and Janice, were with them in
their car. Hedge and the children were still in the car when
Stewart rode up on his bicycle. Hedge and Stewart spoke for a few
minutes, and then Timothy saw Stewart reach in the car and pull a
necklace off Hedge's neck. Hedge then honked the car's horn.
Defendant and Davis got in the car and went with Hedge after
Stewart. The two kids were still in the car.
Jennifer Hester testified that on June 18, 1994, defendant and
Hedge were coming over to borrow some Nintendo games. Hester took
a game out to Hedge in the car while defendant went inside to look
at the other games. Hedge's children were also in the car. As
Hester was walking back toward the house, she saw someone pull up
on a bicycle. She recognized him as Michael Stewart. Hester saw
Stewart talking to Hedge, and then she saw Stewart reach into the
car and then pull his hand out quickly. Stewart then "took off" on
his bike. Hedge started honking the horn and yelling that someone
took her chain. Hester went inside and told defendant that Stewart
was messing with Donna. Defendant left, and Hester did not see
anything else. Hedge later told her that they got the chain back.
Denise Turner testified that on the evening of June 18, 1994,
she and her fiancé, Noel Price, were out walking her dog near
Barber Greene Park. Price pointed out a man coming around the
corner on a bicycle and mentioned his name. A car was following
the bicycle. Turner saw the bicyclist ride up to a house, throw
his bike down, and run inside. Price told Turner that the people
in the car looked like defendant and Hedge, who are acquaintances
of Price and Turner. A third person and two children were also in
the car. Turner saw defendant and the other man go up to the door
and begin talking with someone. Turner could not hear the
conversation. Turner then saw the two men walk inside, and she did
not see any kicking, pushing, or fighting. Price substantially
corroborated Turner's testimony. On cross-examination, Price
admitted he was friends with defendant and had taken care of one of
defendant's dogs.
Defendant testified that on the evening in question he was
looking at some tapes at Jennifer Hester's house while Hedge and
their children waited in the car. Defendant heard a car horn
honking, and then Hester came inside and told him there was a
problem. Defendant ran outside, and Hedge told him that Stewart
had stolen her necklace. Defendant and Davis then got in the car.
Defendant said he did not ask Davis to come along, but that Davis
just got in the car because he knew him. They followed Stewart to
a house on Lancaster Street.
Defendant and Davis went to the front door and knocked.
Edmonds answered the door, and defendant asked him if Stewart was
there. Edmonds said "hang on" and pushed the door most of the way
closed. Edmonds then came back to the door and said that Stewart
was in the bathroom. Defendant and Davis then walked into the
house, and Edmonds did not object to their doing so. Defendant
denied that anyone kicked the door. Defendant did not see anyone
on the phone calling 911. When Stewart came out of the bathroom,
defendant asked him if he had Donna's necklace. Stewart denied it.
Defendant then told him that he knew he had it and to give it back.
Defendant then followed Stewart into a bedroom. Again, defendant
asked for the necklace, and Stewart said that he had dropped it.
Defendant said if he did not give it to him that he was going to
take it. Stewart and defendant then struggled with each other, and
defendant punched him once around the eye and once in the stomach.
Stewart then pulled the chain out of his pants and gave it to
defendant.
Defendant then went back toward the front door. Davis was
standing beside the front door, and Edmonds was on the couch.
Edmonds appeared to be injured. Defendant never saw Hedge in the
house. Defendant then left, dropped Davis back at Timothy Hedge's
house, and went home.
The jury found defendant guilty of both counts of home
invasion. Count I was based on defendant's accountability for
Davis' entry and attack on Edmonds; count II was based on
defendant's own entry and attack on Stewart. The court sentenced
defendant to the minimum six-year term of imprisonment and agreed
to recommend him for impact incarceration. Although the court
entered "judgment on the convictions," it gave defendant only one
sentence.
On appeal, defendant first argues that the conviction based on
his accountability for Davis' assault on Edmonds must be reversed
outright. Defendant contends that he did not know that Davis would
attack Edmonds and that there was insufficient evidence to find him
accountable for Davis' actions. We disagree.
When a defendant challenges the sufficiency of the evidence
supporting his conviction, the relevant inquiry is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
elements of the crime beyond a reasonable doubt. People v.
Collins, 106 Ill. 2d 237, 261 (1985). A person can be held
accountable for the conduct of another when "[e]ither before or
during the commission of an offense, and with the intent to promote
or facilitate such commission, he solicits, aids, abets, agrees or
attempts to aid, such other person in the planning or commission of
the offense." 720 ILCS 5/5--2(c) (West 1994). Mere presence or
acquiescence is not sufficient to render a person accountable for
the acts of another. People v. Howard, 209 Ill. App. 3d 159, 184
(1991). The State has met its burden of proving that a defendant
intended to promote or facilitate an offense where it establishes
that the defendant shared the criminal intent of the principal or
where there was a community of unlawful purpose. People v.
Merritte, 242 Ill. App. 3d 485, 491 (1993). Additionally, under
the "common design rule," when two or more people engage in a
common criminal design, any acts in furtherance thereof committed
by one party are considered the acts of all parties to the common
design and all are accountable for those acts. People v. Martin,
271 Ill. App. 3d 346, 351 (1995).
We believe there was sufficient evidence for the jury to find
defendant accountable for Davis' actions. The evidence established
that defendant and Davis' objective was to force their way into
Edmonds' house and either beat Stewart because of the drug debt or
to take the necklace back by force. Davis and defendant forced
their way into the house together, and once inside Davis beat
Edmonds and defendant beat Stewart. We do not believe that
defendant is absolved of responsibility for Davis' actions merely
because he testified that he did not know that Davis would beat
Edmonds. As previously stated, the State can sustain its burden of
proof by showing that there was a "community of unlawful purpose,"
which Davis and defendant clearly had. Further, Davis and
defendant were engaged in a common criminal design. Under the
common design rule, any actions that Davis took in furtherance of
the common design are the actions of defendant. Here, the jury
could have inferred that Davis beat Edmonds to ensure that he would
not try to aid Stewart. We find that the evidence was sufficient
to sustain defendant's conviction of home invasion based on his
accountability for Davis' actions.
Defendant next argues that he should be given a new trial on
the other home invasion count because the court erred in refusing
his tendered instruction on the affirmative defense of defense of
property. The affirmative defense of defense of property is set
out in section 7--3 of the Criminal Code of 1961 (720 ILCS 5/7--3
(West 1994)):
"A person is justified in the use of force against
another when and to the extent that he reasonably believes
that such conduct is necessary to prevent or terminate such
other's trespass on or other tortious or criminal interference
with either real property (other than a dwelling) or personal
property, lawfully in his possession or in the possession of
another who is a member of his immediate family or household
or of a person whose property he has a legal duty to protect.
However, he is justified in the use of force which is intended
or likely to cause death or great bodily harm only if he
reasonably believes that such force is necessary to prevent
the commission of a forcible felony."
A defendant is entitled to an instruction on an affirmative defense
if there is even slight evidence to support the defense. People v.
Alexander, 250 Ill. App. 3d 68, 76 (1993). Defendant claims that
he was entitled to the instruction because the evidence showed that
he was "terminating" Stewart's criminal interference with personal
property.
After carefully reviewing the record, we conclude that
defendant was not entitled to the requested instruction. This is
a case in which the alleged crime had already occurred, and Stewart
had fled the scene and entered a residence. We are of the opinion
that the legislature did not intend to permit people in defendant's
position to enter a residence and beat the occupants to retrieve
stolen property. Defendant argues that such an interpretation
renders superfluous the word "terminate," because it would give
"terminate" and "prevent" the same meaning. We disagree.
"Prevent" would refer to stopping the crime before it actually
happened, while "terminate" would refer to stopping the crime while
it is happening. Here, the alleged crime was complete, and Stewart
had entered a residence. We further note that a defendant must
have a reasonable belief that his conduct is necessary to prevent
or terminate another's criminal interference with property. If
Stewart really did steal a necklace from Hedge, then once defendant
observed Stewart enter Edmonds' house the proper course of action
would have been for defendant to contact the police rather than
resorting to self-help tactics. Under these facts, defendant could
not have had a reasonable belief that his conduct was necessary.
The trial judge did not err in refusing defendant's proposed
instruction.
Finally, defendant contends that one of his convictions must
be vacated because there was only one entry. He cites People v.
Cole, 172 Ill. 2d 85, 102 (1996), for the proposition that only one
count of home invasion may be carved from a single entry, even if
multiple victims are injured following the entry. We have no
quarrel with the rule stated by defendant, except that it does not
apply to his case. Here, there were two entries--defendant's and
Davis'. Defendant and Davis each committed a home invasion; each
of them entered a dwelling and caused injury to a person within the
dwelling. Defendant was convicted of one count of home invasion
based on his attack on Stewart and another count based on his
accountability for Davis' attack on Edmonds. There were two
entries and two crimes, and both convictions can stand.
The Appellate Court, First District, has reached a different
conclusion on slightly different facts. In People v. Brown, 197
Ill. App. 3d 907 (1990), Brown was convicted of two counts of home
invasion. Brown had unlocked the door to an elderly man's
apartment and allowed two men to enter, to hit the man on the head,
and to steal his money. The first district vacated one of the
convictions, relying on the rule that one entry will support only
one home invasion conviction. However, Brown relied on cases in
which only one person entered a dwelling. Brown seemed to confuse
multiple occupants with multiple entrants and thus offered no
explanation for its assumption that only one entry had occurred.
We believe that in Brown, as here, there were two entries. We
cannot agree with Brown's assumption that two people entering a
dwelling to commit a crime is only one entry.
Brown offered an additional explanation for its holding. The
court held that, since each of the two men who entered the
apartment could be convicted of only one count of home invasion,
defendant also could be convicted of only one count. The court
relied on People v. Skiles, 115 Ill. App. 3d 816, 826 (1983), which
held that an accountable defendant is entitled to the same
protections that would be afforded his accomplice, and People v.
King, 66 Ill. 2d 551 (1977), in which the supreme court prohibited
multiple convictions where more than one offense was carved from
the same physical act. Again, we find that Brown's conclusion
rests on a faulty premise. The court did not explain why each of
the two entrants could only be convicted of one count of home
invasion. There, as in our case, each entrant could have been
convicted of one count of home invasion based on his own entry and
another count based on his accountability for the other person's
entry. Brown would not have been carving more than one offense
from the same physical act because the defendant's home invasion
convictions were based on separate entries. We decline to follow
Brown because we believe it was based on flawed reasoning and
incorrect assumptions. Here, both of defendant's convictions can
be sustained. They were based on two different entries, and thus
the "one act, one crime" rule was not implicated.
As an additional matter, we must remand the cause so that the
trial court can enter another sentence. The court entered judgment
on both convictions, but gave defendant only one sentence.
The judgment of the circuit court of Kane County is affirmed,
and the cause is remanded for the entry of another sentence.
Affirmed and remanded.
THOMAS, J., concurs.
PRESIDING JUSTICE GEIGER, concurring in part and dissenting in
part:
I respectfully dissent from that portion of the majority's
opinion which holds that the entry was two separate chargeable
entries in the instant case. Instead, I believe that the
defendant's and Davis' conduct constituted only one entry for
purposes of the home invasion statute (720 ILCS 5/12--11 (West
1994)). I would therefore follow the holding of People v. Brown,
197 Ill. App. 3d 907, 919 (1990), and find that only one home
invasion conviction can stand where there is only one entry,
regardless of the total number of persons who enter.
In People v. Cole, 172 Ill. 2d 85, 102 (1996), our supreme
court interpreted the language of the home invasion statute (720
ILCS 5/12--11 (West 1994)) and concluded "that a single entry will
support only a single conviction, regardless of the number of
occupants." On the basis of this principle, numerous courts have
held that only one home invasion conviction can stand even where
the defendant has injured multiple individuals during a single
entry. See People v. Yarbrough, 156 Ill. App. 3d 643, 646 (1987);
People v. Morrison, 137 Ill. App. 3d 171, 177-78 (1985).
Therefore, had the defendant herein acted alone in inflicting
the injuries suffered by Stewart and Edmonds, he could only have
been convicted of one count of home invasion. Yet, because another
individual entered the premises with him at the same time, the
majority concludes that the defendant was properly convicted of two
counts of home invasion. I agree with the courts in Brown, 197
Ill. App. 3d at 919, and People v. Smith, 275 Ill. App. 3d 207,
213-14 (1995), that these two results are irreconcilably
inconsistent.
For these reasons, I would vacate one of the defendant's
convictions of home invasion.