People v. Hicks ( 1997 )

                             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.