People v. Howard

FIFTH DIVISION
June 15, 2007

No. 1-05-0917

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County
)
v. )
)
JEROME HOWARD, ) Honorable
) Michael P. Toomin,
Defendant-Appellant. ) Judge Presiding.

JUSTICE GALLAGHER delivered the opinion of the court:

Defendant, Jerome Howard was convicted by a jury of first degree murder, predicated on

felony home invasion, and was sentenced to 45 years in prison. He now appeals his conviction.

We affirm.

BACKGROUND

On December 24, 2002, the decedent, James Saunders (Saunders), was shot and killed in

his girlfriend's town house after defendant entered with his two nephews and confronted

Saunders. At the time, Saunders' girlfriend, Sherita Pollard (Sherita), was married to defendant,

but the two were estranged. Sherita lived in the town house with her two adult children, Lavita

Govan (Lavita) and Alfonso Govan (Alfonso). Although defendant had lived with Sherita in the

town house in the past, he no longer lived there and had never been listed on the lease.

Nonetheless, defendant contends in this appeal that the town house was his dwelling because he
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was still married to Sherita and there was no court order barring him from entering. He therefore

asserts that he was improperly convicted of home invasion because the State did not prove the

necessary element that he entered the dwelling place “of another.”

The evidence adduced at trial showed that Sherita and defendant had dated for several

years before their marriage. During that time, defendant had apparently lived with Sherita

intermittently in different apartments. In 1998, before defendant and Sherita were married, he

moved into Sherita's town house. At the time, Sherita's children, Lavita and Alfonso, were

teenagers. Sherita, Lavita and Alfonso were the only persons listed on the town house lease.

Defendant concedes that he was never on the lease. The town house rent was subsidized by the

Chicago Housing Authority (CHA). Sherita paid the rent, gas, telephone, and electricity bills.

Defendant testified that Sherita would not have gotten the same lease rate from CHA if it knew

that he was living there and was employed.

At some point in 2001, defendant and Sherita ended their relationship. Sherita started

dating Saunders. She reunited with defendant and they married on July 18, 2002. The couple

separated two weeks later. Defendant moved out and took all of his personal belongings, except

for his television, which was also Sherita's property, and some of his weights. He left no clothing

or personal items. Defendant testified that he still had a key and that he had continued to go to

the apartment. Sherita, however, testified that she took her key back, that defendant was not

permitted to have a key when he moved out, and she never saw him use a key to gain access to

the town house. One of Sherita's sisters testified that she dropped by the town house once, two

weeks before the crime, and that defendant was present at the apartment. Sherita, however, was

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not present.

Saunders and Sherita started dating again after she and defendant parted ways. Saunders

lived in the town house off and on during the month of December 2002. He was not named on

the lease, but he kept clothing there.

Sherita testified that, on the day of the crime, defendant telephoned to ask whether the

two of them could celebrate Christmas together. She told him no because she was involved with

someone else. She did, however, ask defendant if he could bring some candy to Lavita, who was

pregnant and craving candy. Defendant brought the candy. When he arrived at the town house,

he rang the doorbell and Lavita opened the door, which was locked, to let him in. During this

visit, defendant again asked Sherita whether they could celebrate Christmas together. She

declined and told him she was involved with someone else. Sherita testified that defendant said,

“I better not catch this nigger here, or you all not going to live to see Christmas” and she told him

to leave. Sherita testified that later that day defendant called her 15 to 16 times; she answered

three calls before turning the ringer off.

Saunders came over at around 11 p.m. smelling of alcohol and appearing as if he had

been drinking. He asked Sherita why she had not answered her telephone, and she said it was

because defendant kept calling her. Defendant called and Saunders answered. They had some

words and Saunders would not let defendant talk to Sherita. Defendant called Sherita's sister,

Denise, and asked her to call with three-way calling so that defendant could get past Saunders to

talk to Sherita. Although the testimony at trial was conflicting as to what exactly happened next,

Denise apparently called two times. At some point, when Saunders answered the telephone, he

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said “Suck my dick.” Also, at some point, when Saunders heard Denise's voice, he gave Sherita

the phone with Denise and defendant on the line. However, Sherita hung up on them.

Shortly after that, Denise showed up at the town house with her two adult children and

another sister, Debbie. Denise wanted to either confront Saunders about what he said or see if

Sherita was okay. In any event, Sherita, Saunders and Denise went up to Sherita's second-floor

bedroom to talk. The four adult children were downstairs.

The testimony here diverges somewhat, but there was a commotion at the front door -

Sherita and Lavita heard loud banging noises coming from the front door. Defendant entered

with his two nephews. The three men barged past Sherita's children - Alfonso and Lavita.

Defendant had no gun, but the nephews did. After going up the first flight of stairs to the first

floor, the three men went up a second flight of stairs to Sherita's bedroom. Sherita and her sister,

Denise, were trying to block the door. The men were shouting to open the door, and one of

defendant's nephews yelled, “Bitch, if you do not open this door, I'll blow your brains out.”

Sherita opened the door and they entered. The two nephews had guns. Defendant ran right up to

Saunders and confronted him. Saunders pulled out a gun from his waistband and held it to

defendant's head. Although defendant was shouting at him, Saunders was looking in the

direction of the two nephews. A struggle ensued, and Saunders was shot dead.

Everybody ran out of the house. Sherita, her two sisters and the four adult children

apparently all got in Denise's car and drove the two blocks to the mother's house. Defendant

arrived there and was told to leave.

Defendant was subsequently convicted of home invasion and felony murder, predicated

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on home invasion. The jury did not return any verdict on a third charge of knowing and

intentional first degree murder.

ANALYSIS

Defendant first argues that the prosecution did not prove an essential element of home

invasion, an unauthorized entry. Defendant's argument in this appeal is that, despite what the

evidence showed, the State did not prove home invasion because it could not prove he entered

the dwelling place of another.

We first note that the parties disagree on the standard of review. Generally, the question

on review in sufficiency of the evidence claims is whether, viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the defendant guilty

beyond a reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365, 369 (1999).

Based upon the evidence presented at trial, it is clear to this court that defendant would not be

successful in having his conviction reversed under the usual standard. The State presented

overwhelming evidence of defendant's guilt. In viewing the evidence in the light most favorable

to the prosecution, a rational trier of fact could have found defendant guilty beyond a reasonable

doubt. We conclude that the evidence at trial was sufficient to convict defendant of home

invasion.

Defendant asserts, however, that this case involves statutory interpretation of the term

“dwelling place of another” which is found in the home invasion statute. 720 ILCS 5/12-11(a)

(West 2002). Thus, he urges this court to conduct a de novo review. Defendant asserts that he

cannot be found guilty of home invasion, as a matter of law, because he did not enter the

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“dwelling place of another.”

In support of his assertion that our standard of review is de novo, defendant cites one

case, People v. Swift, 202 Ill. 2d 378, 781 N.E.2d 292 (2002), for the general proposition that

statutory interpretation is reviewed de novo. The Swift court considered the issue of “what

sentence could be imposed on defendant for his first degree murder conviction, based solely on

the facts found by the jury.” Swift, 202 Ill. 2d at 385, 781 N.E.2d at 296. Defendant also cites

People v. Moulton, 282 Ill. App. 3d 102, 668 N.E.2d 1078 (1996), a case in which the court

interpreted the phrase “dwelling place of another” in the context of a challenge to the sufficiency

of a charging instrument. Neither Moulton nor Swift, however, involved the issue of when a

criminal conviction is reviewable de novo, nor has defendant addressed that precise issue.

“According to the supreme court, where there is no dispute in the underlying facts, a

criminal conviction may be reviewed de novo; otherwise, the conviction should not be reversed

unless no rational trier of fact could find the elements of the crime proved beyond a reasonable

doubt.” (Emphasis added.) People v. Anderson, 364 Ill. App. 3d 528, 533, 848 N.E.2d 98, 103

(2006), citing People v. Smith, 191 Ill. 2d 408, 411-13, 732 N.E.2d 513 (2000) (noting that where

the facts are not in dispute, a defendant's guilt has been said to be a question of law, which is

reviewed de novo), and People v. Lamborn, 185 Ill. 2d 585, 590, 708 N.E.2d 350 (1999). In the

instant case, although there was some dispute in the underlying facts, we shall consider

defendant's argument relating to statutory construction because the relevant facts as to this

precise issue are undisputed.

In People v. Baugh, 358 Ill. App. 3d 718, 726, 832 N.E.2d 903, 911 (2005), this court

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considered a challenge to a home invasion conviction where, while the facts of that case were

different than the facts here, the defendant also contended that he could not be convicted for

home invasion based on an entry into his own home. In Baugh, the defendant had arranged for

gunmen to enter his own home. As the Baugh court explained: “This is not a situation where the

person who actually invaded the home had some ownership interest in the dwelling or was a joint

tenant or resident of the property.” People v. Baugh, 358 Ill. App. 3d at 728, 832 N.E.2d at 912.

The court additionally explained that it was “possible for a defendant to be convicted of a home

invasion of his own home.” People v. Baugh, 358 Ill. App. 3d at 728 n.1, 832 N.E.2d at 912 n.1.

The cardinal rule of statutory construction is to give effect to the intent of the legislature.

People v. Hari, 218 Ill. 2d 275, 292, 843 N.E.2d 349, 359 (2006); People v. Baugh, 358 Ill. App.

3d at 726-27, 832 N.E.2d at 911. The best evidence of legislative intent is the language used in

the statute itself, which must be given its plain and ordinary meaning. People v. Hari, 218 Ill. 2d

at 292, 843 N.E.2d at 359; People v. Baugh, 358 Ill. App. 3d at 727, 832 N.E.2d at 911. In

Illinois, it is also a well-settled principle of statutory interpretation that undefined terms in a

statute shall be accorded their plain and commonly understood meanings. People v. Ward, 215

Ill. 2d 317, 325, 830 N.E.2d 556, 560 (2005); People v. Ellis, 199 Ill. 2d 28, 39, 765 N.E.2d 991,

997 (2002). In construing a statute, a court is not at liberty to depart from the plain language of

the statute by reading into it exceptions, limitations, or conditions that the legislature did not

express. People v. Hari, 218 Ill. 2d at 292, 843 N.E.2d at 359; People v. Baugh, 358 Ill. App. 3d

at 727, 832 N.E.2d at 911. If the plain language of the statute reveals legislative intent, we will

give that intent effect without resorting to other interpretive aids. People v. Hari, 218 Ill. 2d at

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292, 843 N.E.2d at 359. Only where we must resolve some ambiguity in the statutory language,

may we consider extrinsic aids such as legislative history and transcripts of legislative debates.

People v. Collins, 214 Ill. 2d 206, 214, 824 N.E.2d 262, 266 (2005). “The statute should be read

as a whole and construed so that no part of it is rendered meaningless or superfluous.” People v.

Jones, 214 Ill. 2d 187, 193, 824 N.E.2d 239, 242 (2005); People v. Ellis, 199 Ill. 2d 28, 39, 765

N.E.2d 991 (2002). With these principles in mind, we shall address defendant's argument that he

did not enter the “dwelling place of another.”

The home invasion statute provides, in pertinent part, as follows:

“(a) A person who is not a peace officer acting in the line of duty commits

home invasion when without authority he or she knowingly 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

(1) While armed with a dangerous weapon, other than a firearm,

uses force or threatens the imminent use of force upon any person or

persons within such dwelling place whether or not injury occurs, or

(2) Intentionally causes any injury, except as provided in

subsection (a)(5), to any person or persons within such dwelling place, or

(3) While armed with a firearm uses force or threatens the

imminent use of force upon any person or persons within such dwelling

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place whether or not injury occurs, or

(4) Uses force or threatens the imminent use of force upon any

person or persons within such dwelling place whether or not injury occurs

and during the commission of the offense personally discharges a firearm,

or

(5) Personally discharges a firearm that proximately causes great

bodily harm, permanent disability, permanent disfigurement, or death to

another person within such dwelling place, or

(6) Commits, against any person or persons within that dwelling place, a

violation of Section 12-13, 12-14, 12-14.1, 12-15, or 12-16 of the Criminal Code

of 1961.

***

(d) For purposes of this Section, 'dwelling place of another' includes a

dwelling place where the defendant maintains a tenancy interest but from which

the defendant has been barred by a divorce decree, judgment of dissolution of

marriage, order of protection, or other court order.” (Emphasis added.) 720 ILCS

5/12-11(a)(1) through (a)(6), (d). (West 2002).

In his briefs, defendant contended that subsection (d) set forth a bright-line rule with

respect to the statute's application in domestic disputes between married couples. Defendant

further acknowledged the necessity to avoid a “murky application” of the statute in the case of

certain disputes between married couples. Indeed, subsection (d) was enacted shortly after the

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case of People v. Reid, 179 Ill. 2d 297, 688 N.E.2d 1156 (1997), a case which contained a strong

dissent on the very issue that the language of subsection (d) now addresses. Nonetheless, rather

than discuss the plain language of subsection (d), enacted in 1998, defendant launched into a

discussion of the legislative history of the original statute that had been enacted in 1978.

Defendant also relied heavily on the cases of People v. Reid, 179 Ill. 2d 297, 688 N.E.2d

1156 (1997), and People v. Moulton, 282 Ill. App. 3d 102, 668 N.E.2d 1078 (1996), ignoring the

fact that those cases have now been superseded since the legislature amended the statute by

enacting subsection (d), which essentially addressed the necessity of a possessory interest and

adopted the reasoning of the dissent in People v. Reid, 179 Ill. 2d 297, 688 N.E.2d 1156 (1997).

In his dissent in People v. Reid, Justice Miller noted that the case before the court involved a case

“in which the defendant retained an ownership interest, but not a possessory interest, in the

subject property.” People v. Reid, 179 Ill. 2d at 318, 688 N.E.2d 1156 (1997) (Miller, J.

dissenting). Justice Miller concluded that, regardless of the defendant's ownership interest, a

home invasion occurred because defendant had no possessory interest based upon the order of

protection.

As the amendment makes clear, contrary to the reasoning of Reid and Moulton, unless a

defendant has both the requisite tenancy interest and a possessory interest in the dwelling place,

he can be charged with home invasion. Defendant fails to recognize the difference between the

tenancy interest being no longer sufficient and the tenancy interest being no longer necessary.

When the legislature amended the home invasion statute shortly after the decision in Reid, there

was no disagreement regarding the necessity of the tenancy interest. The only area that needed

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clarification was how the lack of a possessory interest affected a defendant's ability to be charged

under the statute. The plain language of subsection (d) now describes situations where a

defendant who has the requisite tenancy interest nonetheless does not have the possessory

interest – a possessory interest that the Reid and Moulton courts had presumed was inviolate.

The tenancy interest alone is no longer sufficient. But it is still required.

Subsection (d) clarified that, contrary to the decisions in Reid and Moulton, an estranged

spouse cannot avoid prosecution for home invasion unless he has both a tenancy interest and a

possessory interest. Here, defendant had neither. He had no tenancy interest because he had no

legal title to the premises. He had no possessory interest because he had no legal title to the

premises, and also because he was no longer living in the town house.1

Defendant claims that because he and Sherita were still married, his entry into Sherita's

town house was a “domestic dispute.” Defendant's entire argument is based on his assertion that

“the legislature clearly intended to exclude domestic disputes from the reach of the home

invasion statute.” This assertion is overly broad and incorrect. This statement is taken out of

context from a statement made in Reid which, as we have explained, has been superseded by

statute. While the legislature may have discussed domestic disputes when it enacted the original

bill, it did so in the context of a married couple with a joint tenancy interest, i.e., where the

1
As we shall discuss later in this opinion, the fact that defendant was no longer currently

residing in the town house defeats his argument that, despite his lack of a tenancy interest, the

town house was his dwelling place under the reasoning of People v. Delacruz, 352 Ill. App. 3d

801, 817 N.E.2d 191, 198 (2004).

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dwelling actually was the defendant's own home and whether it should apply when a defendant

entered his or her “own home.” This tenancy interest was present in Reid and Moulton and

determined to be sufficient, even without a possessory interest. In any event, any ambiguities

that might have existed at the time People v. Reid was decided, were subsequently addressed

when the legislature enacted subsection (d).

In his briefs, defendant nowhere addressed the plain language of subsection (d),

particularly the term “tenancy interest.” Moreover, defendant did not distinguish a tenancy

interest from a possessory interest. Finally, defendant failed to adequately address the Illinois

Supreme court case of People v. Oakley, 187 Ill. 2d 472, 719 N.E.2d 654 (1999), and its reliance

on the existence, or lack thereof, of a “tenancy interest” with respect to the interpretation of the

statute's phrase “dwelling place of another.” We granted oral argument to address these

concerns.

During oral argument, however, defendant posited a novel theory and now invites this

court to judicially create a new type of tenancy interest such that upon marriage, a spouse has an

automatic tenancy interest in his spouse's property, so long as both of them live there together as

a married couple at some point. Defendant claims that this would effectuate the legislative intent

that the home invasion statute not apply to domestic disputes. Under his novel theory, this

judicially created tenancy interest would apparently also involve some continuing possessory

interest in the estranged spouse's dwelling that can only be extinguished by a court order similar

to those found in subsection (d) of the statute. Because defendant does not distinguish the

tenancy interest from the possessory interest, defendant does not explain how this tenancy

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interest is extinguished. The practical effect of that would be that defendant in this case could

continue to enter Sherita's town house without her permission, even after she threw him out, until

such time as she gets a divorce decree or some type of court order barring him from entering.

We decline defendant's invitation to create a new type of tenancy interest.

Defendant has failed to recognize that, without Sherita's permission to stay there, her

town house was never defendant's “own home.” Even under the preamended version of the

statute, the Illinois Supreme Court acknowledged the necessity of the prerequisite legal tenancy

interest. People v. Oakley, 187 Ill. 2d 472, 719 N.E.2d 654 (1999). It is defendant's position that

the marital relationship per se is a dispositive factor under the home invasion statute; thus, his

reliance on the phrase “marital residence,” which does not appear in the statute. Contrary to

defendant's position, the court in People v. Oakley held that the defendant entered the “dwelling

place of another,” for purposes of home invasion statute, when he entered his former marital

residence. The Oakley court reasoned that the dwelling was not that of the defendant because he

no longer had a tenancy interest – it having been extinguished by a final order in the divorce

proceeding. Defendant's attempt to distinguish his own nonexistent tenancy interest from the

Oakley defendant's extinguished tenancy interest is a distinction without a difference.

In People v. Gwinn, 366 Ill. App. 3d 501, 851 N.E.2d 902 (2006), the defendant argued

that his conviction for home invasion should be reversed because the statute was not intended to

apply to “domestic disputes.” The Gwinn court did not discuss the amended statute and instead

relied on Oakley. The court decided that the facts there presented an even stronger case than

Oakley for finding the defendant guilty of home invasion. Although the court noted that the

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parties in Gwinn were not married, it also stressed that, with respect to the defendant, “nothing in

the record indicate[d] that he was named on her lease, he had vacated the premises months

earlier, and his authority to enter the premises was limited to taking the children to day care.”

People v. Gwinn, 366 Ill. App. 3d at 521-22, 851 N.E.2d at 920. Thus, even apart from the

statutory amendment's explicit requirement of the tenancy interest, its implicit requirement under

the original home invasion statute has been recognized by the courts.

Defendant has additionally argued that, in order to determine whether Sherita's town

house was the “dwelling place of another” or his own dwelling place, this court must go beyond

the question of whether he had a legal tenancy interest because he had no “formal” tenancy

agreement with Sherita. Defendant cites People v. Delacruz, 352 Ill. App. 3d 801, 810, 817

N.E.2d 191, 198 (2004), and People v. Taylor, 318 Ill. App. 3d 464, 742 N.E.2d 357 (2000), in

support of this contention. Defendant's reliance on those cases is misplaced. Both Delacruz and

Taylor are inapposite because they involved defendants who were currently living in the

dwellings at issue. In the instant case, it is undisputed that defendant was no longer living in the

town house on the night of the shooting. Thus, while defendant may have had a possessory

interest in the town house during the time Sherita permitted him to live there with her, that

possessory interest ceased to exist when defendant moved out.

Because the plain and unambiguous language of subsection (d) of the home invasion

statute clearly requires a tenancy interest in the premises, there is no need to look to legislative

history to divine the legislature's intent. Nonetheless, we do note that the legislative history

confirms our interpretation of the statute in this case. During the legislative debates on what

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would become Public Act 90-787, Senator Geo-Karis explained that the amendment “redefines

'dwelling place of another' under the home invasion statute to allow for the prosecution of

estranged spouses who break into a residence when they have some legal title to but are

prohibited from entering by court order.” (Emphasis added.) 90th Ill. Gen Assem., Senate

Proceedings, March 24, 1998, at 40 (statements of Sen. Geo-Karis). Thus, had defendant here

had legal title to the premises, Sherita would have had to get a court order prohibiting defendant's

entry by extinguishing his possessory interest before he could have been charged with home

invasion. Because defendant here never had legal title, there was no need for Sherita to get a

court order prohibiting defendant from entering her residence.

If the legislature intended subsection (d) to be interpreted the way defendant interprets it,

the legislature could have easily said: “ 'dwelling place of another' does not includes a dwelling

place where the defendant does not maintain a tenancy interest provided he is still married to the

person who maintains a tenancy interest” or even said “ 'dwelling place of another' does not

include a dwelling place where the defendant formerly resided with a spouse who maintains a

tenancy interest but from which the defendant has been barred by a divorce decree, judgment of

dissolution of marriage, order of protection, or other court order.” Defendant reads into the

statute an exception that is not in the text of the statute. But we have earlier explained that courts

may not depart from plain language of the statute by reading into it exceptions, limitations, or

conditions that the legislature did not express. People v. Hari, 218 Ill. 2d 275, 292, 843 N.E.2d

349 (2006). Moreover, defendant's interpretation renders superfluous the term “tenancy interest,”

which is contrary to the rules of statutory interpretation. People v. Jones, 214 Ill. 2d 187, 193,

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824 N.E.2d 239, 242 (2005); People v. Ellis, 199 Ill. 2d 28, 39, 765 N.E.2d 991 (2002).

The following relevant facts were undisputed: (1) on the date that the shooting and

alleged home invasion occurred, defendant and Sherita were still married, but defendant no

longer lived in the town house and was living elsewhere; (2) defendant had resided in the town

house with Sherita in the past, which included two weeks as a married couple; (3) defendant

moved out of Sherita's town house and took his belongings with him; (4) Sherita took back her

town house key from defendant and, to her knowledge, he never had a key to her home after he

moved out; (5) nobody gave defendant permission to enter the town house on the night of the

shooting; and (6) although defendant at one time had lived there with Sherita's permission,2

defendant was not named in the lease and never had a tenancy interest in the CHA-subsidized

town house. Defendant is incorrect that, under these undisputed facts, Sherita's town house was

his own dwelling place as opposed to the dwelling place of another as a matter of law. In sum,

under the plain language of the home invasion statute, nothing prohibited the jury from deciding

that defendant entered the dwelling place of another. The State satisfied its burden of proving

beyond a reasonable doubt that defendant entered the dwelling place of another without

authority.

Defendant has also claimed that he was denied his right to a fair trial based upon three

2
There is also evidence in the record indicating that Sherita had no authority, in the first

instance, to give permission to defendant, a convicted felon, to be on the CHA-subsidized

premises, let alone reside there. In any event, we need not further address this issue because, at

the time of the crime, it is undisputed that defendant did not reside there.

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instances of prosecutorial misconduct. In determining whether a defendant has been denied a fair

trial, the question is “whether a substantial right has been affected to such a degree that we

cannot confidently state that the defendant's trial was fundamentally fair.” People v. Blue, 189 Ill.

2d 99, 138, 724 N.E.2d 920, 941 (2000). None of defendant's claims of prosecutorial misconduct

denied his right to a fair trial.

Defendant first asserts that the State diminished its burden of proof by asking him on

cross examination whether it was true that Saunders would still be alive if defendant had just

stayed home on the night of the murder. It is a fundamental doctrine of our criminal justice

system that a defendant is presumed innocent until he is proved guilty of an offense beyond a

reasonable doubt. People v. Weinstein, 35 Ill. 2d 467, 469-70, 220 N.E.2d 432, 433 (1966).

Defendant contends that the State effectively diminished its burden of proof from what was

legally required to a proximate cause theory of the case. The State counters that this question

was proper because it was intended to discredit defendant's testimony that after the last telephone

call to Sherita's town house, he proceeded to go over there with his nephews, not with the

intention of killing anyone but, rather, to pick up his belongings.

We do not believe that defendant was denied his right to a fair trial as a result of the

State's questions on cross-examination. The record reflects that the nature of the State's burden

of proof in this case was made abundantly clear to the jurors. The trial judge explained the

burden of proof in opening remarks to the jurors. Moreover, the jurors were properly instructed

at the close of trial that the State bore the burden of proof, that the burden remained on the State

throughout the case, and that defendant was not required to prove his innocence.

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Defendant also argues that the State engaged in deliberate subterfuge by introducing

photographs showing that the door had been broken down when the parties had already stipulated

that it was the police who broke the door down and the pictures falsely appeared to be definitive

proof of a forced entry. A trial court's determination concerning the admissibility of evidence is

not overturned absent a clear abuse of discretion. People v. Robinson, 217 Ill. 2d 43, 62, 838

N.E.2d 930, 941 (2005).

While admission of the photograph may not have been probative of any issue, and its

admission may have been error, we cannot say its admission denied defendant a fair trial. As the

State specifically told the jurors in closing argument, it was not arguing that defendant “busted

through the front door.” Instead, the State argued that the evidence showed that defendant used

force to gain entry, whether he used a key to open the town house door or not. As the State

notes, both Sherita and Lavita heard a bang at the door immediately before defendant appeared in

the house. Additionally, Sherita's sister, Denise, said in her statement to police that she heard a

rumbling downstairs and later realized “it was [defendant] and two other guys forcing their way

through the front door downstairs.

Defendant's final contention is that the State engaged in a persistent campaign to “dirty

up” defendant by using his prior convictions to suggest his guilt for the offenses here and by

repeated gratuitous references to defendant's prior arrests.

It was not the State but, rather, defendant, who introduced evidence of his prior

convictions at trial. Defendant testified on direct examination that he lived at Sherita's town

house from 1998 until December 17, 2002, except for the time periods he was in prison.

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Defendant told the jurors that he was convicted in 1998 of possession of a controlled substance;

convicted again in 2001 of possession of a controlled substance; and then convicted in 2002 for

unlawful use of a weapon by a felon.

On cross-examination, the State elicited testimony from defendant that notwithstanding

his testimony on direct that he lived primarily with Sherita from 1998 through 2002, every single

time he had contact with the police he gave his address as that of his mother's house, not Sherita's

town house. The State did not allude to defendant's “arrests.” The reference made to contacts

with the police by the State did not constitute direct evidence of prior criminality. “When

evidence of prior criminality is not direct, but merely inferential, the determinative issue is the

probative and prejudicial effect of the nexus between the admitted and prior criminality.” People

v. Braddock, 247 Ill. App. 3d 1091, 1096, 618 N.E.2d 413, 416-417 (1993). The reference to

contacts here falls under the Braddock rule because there were no specifics given regarding

whether criminal activity was involved, what the offenses might have been, or on what bases

defendant was suspected of committing the offenses. Furthermore, because the State had the

burden of proving that defendant unlawfully entered the dwelling place of another, evidence that

he consistently represented his home address as someplace other than Sherita's town house was

highly probative.

In accordance with the foregoing, we conclude that defendant was properly convicted of

home invasion. We affirm his conviction.

Affirmed.

O'BRIEN, P.J., and O'MARA FROSSARD, J., concur.

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