dissenting:
Defendant, Levi Quincy Blake, was charged with home invasion, armed robbery and residential burglary. Following a jury trial, defendant was acquitted of home invasion, but convicted of armed robbery and residential burglary. The trial court entered judgment only on the armed robbery conviction and sentenced defendant to 12 years’ imprisonment. The majority opinion reverses the trial court’s decision. I dissent.
In the early morning hours of February 1, 1987, defendant and two acquaintances, Anthony and Willie Dixon, entered the home of Mabel Schadt, age 77. Mrs. Schadt lived alone and, having recently undergone eye surgery, had a neighbor, Rosemary Maloney, who ate dinner with her and slept in the extra bedroom. Schadt and Maloney were asleep upstairs when the Dixons entered through a first-floor door. Initially, the unarmed defendant remained outside while the Dixons, armed with weapons, went upstairs and confronted the elderly occupants. Eventually defendant entered the home, remaining on the first floor, and helped the Dixons remove property, including a microwave, antique clock, television and stereo. Defendant alerted his coperpetrators when he realized the police were approaching, and upon their arrival, defendant hid in the third-floor attic, where he was discovered several hours later. Defendant was convicted on the basis of his accountability for the actions of the Dixons.
Illinois defines armed robbery as the taking of property from the person or presence of another by the use of force or by threatening the imminent use of force while armed with a deadly weapon. (Ill. Rev. Stat. 1987, ch. 38, pars. 18 — 1, 18 — 2.) Defendant maintains that the State failed to adequately establish the presence or threat of force requirements associated with armed robbery. The test for presence is whether the complainant’s proximity to or control over the property was so close that she could have prevented the taking if not subjected to the use or threat of force. (People v. Braverman (1930), 340 Ill. 525.) The majority opines that because defendant removed only first-floor property and the victims were held on the second floor, the presence requirement was not met. Additionally, the majority holds that the State failed to show threat or use of violence by the Dixons to force Schadt and Maloney to relinquish the property. I disagree.
The Illinois Supreme Court has determined that the “requirement that there be a taking ‘from the person or presence’ is not *** limited to *** the immediate presence of the owner *** or custodian.” (People v. Smith (1980), 78 Ill. 2d 298, 302.) This language was directly applied in a case wherein the victim upstairs heard a noise downstairs, went down to investigate and confronted defendants in another room. After defendants left, the victim discovered items missing from the downstairs room. Although the victim was not present in the room during the taking, the property was under his care and control. (People v. Ortiz (1987), 156 Ill. App. 3d 170.) This interpretation has also been used in similar situations, including a case where one defendant held the victim at gunpoint while his co-defendant took a television from a back room (People v. Tiller (1982), 94 Ill. 2d 303), and it applies in the instant case. Although the property may not have been taken before the victims’ eyes, it was in their presence.
Additionally, the majority ascertains that the State failed to prove that threats or violence was used by the Dixons to force the victims to relinquish the property. While Illinois generally refuses to recognize initial force directed at another crime as sufficient for robbery when robbery is committed as an afterthought, such is not the case here. The record reveals nothing to support any conclusion other than that the Dixons entered the home with the intent to commit theft and their force toward the victims was to secure accomplishment of same. Accordingly, I dissent.