People v. Standley

NO. 4-03-0872 Filed: 5/1/06

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
SHAWN R. STANDLEY, ) No. 03CF574
Defendant-Appellant. )
) Honorable
) Katherine M. McCarthy,
) Judge Presiding.
______________________________________________________________

PRESIDING JUSTICE TURNER delivered the opinion of the

court:
In May 2003, the State charged defendant, Shawn R.

Standley, with two counts of home invasion (720 ILCS 5/12-

11(a)(3) (West 2002)). After an August 2003 trial, a jury found

defendant guilty of home invasion. At a joint hearing in October

2003, the trial court denied defendant's posttrial motion and

sentenced him to 21 years' imprisonment.

Defendant appealed, asserting (1) the State's evidence

was insufficient to prove him guilty beyond a reasonable doubt;

(2) the 15-year sentence enhancement mandated by Public Act 91-

404 (Pub. Act 91-404, '5, eff. January 1, 2000 (1999 Ill. Laws

5126, 5131) (codified at 720 ILCS 5/12-11(c) (West 2002))) for

violating section 12-11(a)(3) of the Criminal Code of 1961

(Criminal Code) (720 ILCS 5/12-11(a)(3) (West 2002)) is unconsti-

tutional; and (3) if the sentence enhancement is unconstitu-

tional, "the judicially imposed portion of his sentence" should
be allowed to remain.

In September 2005, this court affirmed defendant's

conviction and sentence. People v. Standley, 359 Ill. App. 3d

1096, 835 N.E.2d 945 (2005). In January 2006, our supreme court

vacated our judgment and remanded the cause to our court to

reconsider our judgment in light of People v. Sharpe, 216 Ill. 2d

481, 839 N.E.2d 492 (2005), and People v. Guevara, 216 Ill. 2d

533, 837 N.E.2d 901 (2005), "to determine if a different analysis

or result is required." People v. Standley, 217 Ill. 2d 622,

622, 840 N.E.2d 1233, 1234 (2006). Accordingly, we again address

defendant's aforementioned arguments and again affirm the trial

court's judgment.

I. BACKGROUND

At around midnight on April 28, 2003, two males armed

with guns kicked in the back door of a home at 2757 North Church

Street, Decatur, Illinois, and entered the home. The home

belonged to Gary Lewis, Sharon Conaway, and their then eight-

year-old son Garrett Lewis, who were all home at the time.

During the incident, one of the men hit Gary with a gun. On May

23, 2003, the State charged both defendant and Michael Joyner

with two counts of home invasion.

In August 2003, the trial court held a jury trial on

defendant's charges. The evidence relevant to the issues on

appeal is set forth below.

Decatur police officer Lonnie Lewellyn testified he
arrived at the Church Street residence at 12:41 a.m. on August

28, 2003, in response to a report of a home invasion. There, he

spoke with Gary, Sharon, and Garrett. Gary and Sharon were able

to give descriptions of the two individuals, and Gary was also

able to provide nicknames by which he knew them. He did not

recall Gary mentioning defendant had facial hair but did recall

Gary recognized the hair, eyes, and voice of both suspects.

Officer Lewellyn did note Gary and Sharon told him that both

suspects had taken off their bandanas.

Gary testified that around 12:15 a.m., he heard several

loud booms coming from the kitchen area, which is attached to the

back porch that contains an exterior door. Gary entered the

kitchen, turned the lights on, and saw the door leading to the

porch fly open. Two men then entered the kitchen with guns

pointed at him. In court, Gary identified defendant as the first

man who entered Gary's home. When defendant entered the home, he

was wearing a bandana around his face that began right under his

eyes and covered his mouth and nose. He was also wearing a

hooded sweatshirt or jacket with the hood up.

Defendant ordered Gary to the floor, and Gary laid

stomach down on the floor. He tried to keep his head up and

observe what was taking place. After four or five demands for

money and drugs, defendant told Gary to stand up and moved Gary

to a recliner in the front room. The other man brought Garrett

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into the front room, where Sharon was already located. According

to Gary, he was in the kitchen about 7 to 10 minutes after seeing

defendant, and the kitchen lights were on the entire time.

In the front room, defendant held a gun to the center

of Gary's forehead for about 5 to 10 minutes and continued to

demand money. During that time, defendant was directly in front

of Gary and less than an arm's length away. The lights and

television were on in the front room.

At some point, defendant asked Gary for his wallet, and

Gary indicated it was in the bedroom. While still holding the

gun to Gary's head, defendant walked Gary to the bedroom. The

other man brought Sharon and Garrett into the bedroom. The

lights were also on in there. Gary opened a drawer, and defen-

dant removed the wallet. Defendant threatened to come back and

shoot Gary if he was lying about not having money or drugs.

Defendant then hit Gary across the face with a gun, knocking Gary

unconscious. The men were gone when Gary regained consciousness.

Prior to April 28, 2003, Gary had seen defendant a few

times through mutual friends. About three to four weeks before

the incident, Gary had spoken a few words to defendant at the AIW

Hall. Gary first had a notion defendant was the perpetrator when

they entered the front room. When they reached the dresser in

the bedroom, he got a good look at him because they were face-to-

face, eye-to-eye. He observed defendant had two eyebrow rings

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over one of his eyes, but he was unsure of which eye. He also

noted defendant's bandana slipped down several times during the

encounter but never got below his nose. Gary testified he was

"very certain" and "positive" that defendant was the first man to

enter his kitchen.

Gary acknowledged he had a prior felony for possession

of a controlled substance and two new charges pending against

him. He stated the State had not promised him leniency or a

reward in exchange for his testimony.

Sharon testified she got a good look at the two men

shortly after they entered the house and had not yet seen her.

One was a white male, and the other was a mixed-race male. They

were both wearing black hooded jackets and bandanas on their

faces. She could not recall if the kitchen light was on. When

the white male brought Gary into the living room, she was able to

get a closer look at the white male. The lights were on in the

living room. She identified defendant as the white male in her

home. Sharon was "very sure" and "had no doubt" it was defen-

dant. Sharon noted that during the incident, she was able to see

defendant's face from the tip of his nose to his forehead,

including the front of his hair. Defendant had two eyebrow rings

on the portion of the left eyebrow closest to the ear. She also

noted the mixed-race male took off his bandana after it had

fallen down. She further testified the lights were on in the

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bedroom as well. The closest she was to defendant was about five

feet away.

According to Sharon, the entire incident lasted 20 to

25 minutes. She too had seen defendant a couple times before the

incident and recalled Gary talking to him at the AIW Hall two or

three weeks before the incident. During the incident, she

recognized his voice. When the police officer arrived, she and

Gary told the officer the mixed-race male was known as "mixed

Mike" and the white male was "Shawn." Later, both she and Gary

picked defendant's picture out of a photograph lineup as the

white male that entered their home. Additionally, Sharon ac-

knowledged she was currently on probation.

Decatur police officer Chad Ramey testified that on May

1, 2003, he met with Gary and Sharon and conducted a photograph

lineup. He first showed the lineup to Gary, who pointed to

defendant's photograph "rather quickly." He then showed the

lineup to Sharon, who also pointed to defendant's picture "rather

quickly." According to Officer Ramey, Sharon was unable to see

Gary's identification of defendant. He did not recall any of the

people in the lineup having eyebrow rings.

On May 21, 2003, Officer Ramey met with defendant, who

had voluntarily showed up at the police department. He noticed

that defendant had four holes over his left eyebrow where it had

been pierced. He did not take a picture of defendant's eyebrow,

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and the booking photograph was too blurry to see any holes.

Robert Lewellen, defendant's grandfather, testified

that defendant had been residing at his home for 1 1/2 to 2 years

prior to April 28, 2003, but defendant was not there April 27 or

28, 2003. According to Robert, defendant never had more than one

eyebrow ring and sometimes did not wear it. Defendant also had a

mustache and some chin hair. Robert identified some pictures of

defendant, in which he had only one eyebrow ring and a mustache.

Ann Lewellen, defendant's grandmother, also testified

defendant only had one eyebrow ring and wore a mustache in April

2003. She did not see defendant on April 27 or 28, 2003. She

talked with her daughter Lori Blair on the afternoon of April 27,

2003. During the conversation, Lori indicated she could not

spend the night at Ann's home because her son and defendant would

make a mess. Ann again talked to Lori around 5 p.m. on April 28,

2003, and heard defendant's voice in the background.

Jeannine McCoy, defendant's mother, also testified

defendant had a mustache, some other facial hair, and only one

ring in his left eyebrow. On the night of April 27, 2003, she

talked on the phone with her sister Lori from around 9 or 10 p.m.

to somewhere between 11:30 p.m. and 1 a.m. During the phone

conversation, she could hear defendant's voice in the background.

Between 11:30 p.m. and 1 a.m., she heard defendant ask Lori if

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she was still talking to his mom, and Jeannine told Lori to tell

defendant "hi."

Lori testified defendant stayed at her home the entire

day of April 27, 2003, which was the day before her birthday.

Defendant and her son only left for 5- to 10-minute periods to

smoke a cigarette. That same day, she and Jeannine talked on the

phone until past midnight, and she recalled defendant telling her

to say "hi" to his mom around midnight. Lori also stated she saw

defendant after midnight and as late as 1 a.m. on April 28, 2003.

Lori's two children, Samantha Blair and Christopher Austin, also

testified defendant was at their home between 12 and 1 a.m. on

April 28, 2003.

Defendant testified on his own behalf. He stated he

was at Lori's home during the late-night hours of April 27 and

the early morning hours of April 28, 2003. He only left the

house for five-minute periods to smoke with Christopher. He had

never been to Gary and Sharon's home and did not know them on a

personal level. He did believe they had crossed paths before.

He also had never met Joyner, his alleged codefendant, prior to

his arrest for this offense. Defendant also denied ever wearing

more than one eyebrow ring.

After hearing all the evidence, the jury found defen-

dant guilty of home invasion.

In September 2003, defendant filed a posttrial motion.

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In October 2003, the trial court held a joint hearing on defen-

dant's motion and sentencing. Both parties agreed the 15-year

sentence enhancement contained in section 12-11(c) of the Crimi-

nal Code (720 ILCS 5/12-11(c) (West 2002)) applied to defendant's

conviction. The court denied defendant's motion and sentenced

him to a total of 21 years' imprisonment. Defendant then ap-

pealed. As stated, we affirmed defendant's conviction and

sentence on appeal, and the Supreme Court of Illinois vacated our

judgment and remanded the cause to our court. We now reconsider

defendant's arguments as directed by our supreme court.

II. ANALYSIS

A. Sufficiency of the Evidence

Defendant first asserts the State's evidence was

insufficient to prove him guilty of home invasion beyond a

reasonable doubt since he presented four alibi witnesses and the

State's eyewitness testimony was "suspect."

When considering a defendant's challenge to the suffi-

ciency of the evidence, the question for the reviewing court is

whether, after viewing the evidence in the light most favorable

to the State, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt. Proof

beyond a reasonable doubt does not require the exclusion of every

possible doubt. People v. Shevock, 335 Ill. App. 3d 1031, 1037,

782 N.E.2d 949, 954 (2003). Additionally, the jury had the

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responsibility to (1) determine the witnesses' credibility and

the weight given to their testimony, (2) resolve conflicts of the

evidence, and (3) draw reasonable inferences from the evidence.

People v. Johnson, 353 Ill. App. 3d 954, 956, 819 N.E.2d 1233,

1235 (2004).

An identification is insufficient to sustain a convic-

tion if it is vague or doubtful. However, a single witness's

identification of the accused is sufficient if the witness viewed

the accused under circumstances permitting a positive identifica-

tion. That remains true even in the presence of contradicting

alibi testimony, provided that the witness had an adequate

opportunity to view the accused and that the in-court identifica-

tion is positive and credible. People v. Slim, 127 Ill. 2d 302,

307, 537 N.E.2d 317, 319 (1989). In evaluating identification

testimony, Illinois courts consider the factors set forth in

Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411, 93

S. Ct. 375, 382 (1972), which are (1) the witness's opportunity

to view the criminal at the time of the crime; (2) the witness's

degree of attention; (3) the accuracy of the witness's prior

description of the criminal; (4) the witness's level of certainty

at the identification confrontation; and (5) the length of time

between the crime and the identification confrontation. Slim,

127 Ill. 2d at 307-08, 537 N.E.2d at 319.

Here, we have more than one witness who identified

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defendant as the perpetrator, and the Neil factors do not weigh

in defendant's favor. Since the perpetrator was in their home

between 20 to 25 minutes, both Gary and Sharon had a lot of

opportunities to view him. Gary testified he was at an arm's

length with the man for at least 10 minutes, and at one point,

was able to look him straight in the eyes. Additionally, Gary

had met and talked to defendant on several prior occasions,

including only three weeks before the incident. Sharon said she

was within five feet of defendant. While Sharon was more focused

on the other male, Gary tried to pay close attention to defen-

dant's actions and, as stated, was able to look him straight in

the face.

As to the accuracy of their initial description of the

perpetrator, Gary recognized defendant by his voice, eyes, and

hair and was able to provide defendant's first name to Officer

Lewellyn. Their identification of defendant as one of the

perpetrators remained consistent since talking to the police

shortly after the incident. The only conflict between the

victims' initial statements to the police and their trial testi-

mony that related to defendant's description was as to whether

the men's bandanas fell down and exposed their entire face.

Further, while defendant asserted he only had one eyebrow ring,

Officer Ramey's testimony that defendant had four holes (two per

eyebrow ring) supports Gary's and Sharon's consistent assertion

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that the perpetrator had two rings.

Regarding the final two factors, both Gary and Sharon

"rather quickly" picked defendant's photograph out of a lineup,

which was conducted only three days after the incident. Gary and

Sharon also did not waver or hesitate in stating defendant was

one of the men who entered their home on April 28, 2003.

Moreover, the failure to notice facial hair is not

fatal to a positive and otherwise credible identification. Slim,

127 Ill. 2d at 310, 537 N.E.2d at 320. The case People v.

Marshall, 74 Ill. App. 2d 483, 221 N.E.2d 133 (1966), cited by

defendant in support of his argument that the identification

testimony was suspect, has been criticized and not followed. See

Slim, 127 Ill. 2d at 313, 537 N.E.2d at 322. While defendant

presented an alibi defense and asserted he had only one eyebrow

ring and facial hair, the jury, as the trier of fact, had the

responsibility to resolve the conflicting testimony. See John-

son, 353 Ill. App. 3d at 956, 819 N.E.2d at 1235.

Accordingly, we find the State's identification evi-

dence was sufficient for the jury to find defendant guilty beyond

a reasonable doubt.

B. 15-Year Sentence Enhancement

Defendant also argues his 15-year sentence enhancement

for home invasion while armed with a firearm is unconstitutional

because it violates the proportionate-penalties clause of the
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Illinois Constitution (Ill. Const. 1970, art. I, '11). We

disagree.

Section 12-11(a)(3) of the Criminal Code (720 ILCS

5/12-11(a)(3) (West 2002)) provides as follows:

"(a) A person who is not a peace officer
acting in the line of duty commits home inva-

sion when without authority he or she know-

ingly enters the dwelling place of another

when he or she knows or has reason to know

that one or more persons is present or he or

she knowingly enters the dwelling place of

another and remains in such dwelling place

until he or she knows or has reason to know

that one or more persons is present and

* * *

(3) While armed with a firearm

uses force or threatens the immi-

nent use of force upon any person

or persons within such dwelling

place whether or not injury oc-

curs[.]"

Section 12-11(c) of the Criminal Code (720 ILCS 5/12-11(c) (West

2002)) provides:

"Home invasion in violation of subsec-

tion (a)(1), (a)(2)[,] or (a)(6) is a Class X

felony. A violation of subsection (a)(3) is

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 a Class X felony for which 15 years shall be

added to the term of imprisonment imposed by

the court."

Prior to Sharpe, the Supreme Court of Illinois had used

three separate tests to determine whether a statute violated the

proportionate-penalties clause. See People v. Moss, 206 Ill. 2d

503, 522, 795 N.E.2d 208, 220 (2003). The first test is whether

the penalty is "cruel, degrading, or so wholly disproportionate

to the offense committed as to shock the moral sense of the

community." Moss, 206 Ill. 2d at 522, 795 N.E.2d at 220. The

second test is whether, when comparing similar offenses, "conduct

that creates a less serious threat to the public health and

safety is punished more severely." Moss, 206 Ill. 2d at 522, 795

N.E.2d at 220. The final test is whether offenses with identical

elements are given different sentences. Moss, 206 Ill. 2d at

522, 795 N.E.2d at 220. In Sharpe, the supreme court abandoned

the second test, which was known as the cross-comparison test.

Sharpe, 216 Ill. 2d at 519, 839 N.E.2d at 516-17.

After the Sharpe decision, the Guevara court addressed
the defendants' argument that the 15-year sentence enhancement

for home invasion while armed with a firearm violated the

proportionate-penalties clause under the cross-comparison test

when compared to aggravated battery with a firearm. Guevara, 216

Ill. 2d at 544, 837 N.E.2d at 908. Our supreme court rejected

the defendants' argument because Sharpe prohibits a defendant

from raising a proportionate-penalties-clause challenge under the

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cross-comparison test. Guevara, 216 Ill. 2d at 544-45, 837

N.E.2d at 908. The court further noted the defendants had not

challenged the 15-year enhancement under one of the other

proportionate-penalties-clause tests, and thus their

proportionate-penalties-clause challenge failed. Guevara, 216

Ill. 2d at 545, 837 N.E.2d at 908.

Here, like the defendants in Guevara, defendant argues

the 15-year sentence enhancement for home invasion while armed

with a firearm violates the proportionate-penalties clause under

the cross-comparison analysis when compared to aggravated battery

with a firearm. He also does not argue the 15-year enhancement

violates the proportionate-penalties clause under the other two

tests. Accordingly, defendant's proportionate-penalties-clause

argument fails.
Since we have rejected defendant's proportionate-

penalties-clause challenge to the 15-year sentence enhancement,

we need not address defendant's last argument.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

STEIGMANN and APPLETON, JJ., concur.

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