People v. Richardson

2022 IL App (1st) 191689-USIXTH DIVISION
May 6, 2022
No. 1-19-1689
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
No. 13 CR 1972
v. )
) Honorable
TYREESE RICHARDSON, ) Erica L. Reddick,
) Judge Presiding.
Defendant-Appellant. )
JUSTICE MIKVA delivered the judgment of the court.
Presiding Justice Pierce and Justice Harris concurred in the judgment.
ORDER
¶1 Held: We vacate defendant’s conviction and sentence for home invasion as it violates the
one-act, one-crime doctrine, and otherwise affirm.
¶2 Following a jury trial, defendant Tyreese Richardson was convicted of aggravated criminal
sexual assault (720 ILCS 5/11-1.30(a)(4) (West Supp. 2011)) and home invasion (720 ILCS 5/12-
11(a)(6) (West 2010) (recodified as 720 ILCS 5/19-6(a)(6) (eff. Jan. 1, 2013)) and sentenced to
consecutive terms of 25 and 15 years in prison. On appeal, Mr. Richardson argues, and the State
concedes, that we should vacate his home invasion conviction, as it violates the one-act, one-crime
doctrine because it is a lesser-included offense of his aggravated criminal sexual assault
No. 1-19-1689
conviction. We have reviewed the briefs and record and agree with the parties that these two
convictions violate the one-act one-crime doctrine. We therefore vacate Mr. Richardson’s home
invasion conviction and affirm his conviction for aggravated criminal assault, which is the more
serious offense.
¶3 I. BACKGROUND
¶4 Mr. Richardson was charged by indictment with 15 counts, but the State proceeded to trial
on only 2 counts of aggravated criminal sexual assault and 1 count of home invasion. The
aggravated criminal sexual assault counts charged that Mr. Richardson committed criminal sexual
assault by using force or threat of force to penetrate A.W.H.’s (1) vagina and (2) anus during the
course of committing home invasion. The home invasion count charged that Mr. Richardson, while
not being a peace officer, knowingly entered A.W.H.’s dwelling, remained until he knew someone
was present, and committed criminal sexual assault against A.W.H. therein. Because Mr.
Richardson does not challenge the sufficiency of the evidence to sustain his conviction, we recount
the facts only to the extent necessary to resolve the issue on appeal.
¶5 The evidence adduced at trial showed that a man entered A.W.H.’s home in the early
morning of August 5, 2012, without authority, tied her hands and feet, and sexually assaulted her
multiple times, penetrating her vagina and anus with his penis. He held a knife. He threatened to
kill her and took her engagement ring. A semen stain on A.W.H.’s nightgown contained a major
DNA profile from which Mr. Richardson could not be excluded. Mr. Richardson subsequently
admitted to detectives that he entered A.W.H.’s house through a window, grabbed a knife from
her kitchen, penetrated her vagina with his penis, and took her ring. Mr. Richardson testified,
however, that A.W.H. let him in her home and they had consensual sex. He denied telling the
detectives that he sexually assaulted her or took her ring.
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No. 1-19-1689
¶6 The State also presented proof-of-other-crimes evidence that (1) Mr. Richardson’s DNA
was associated with another sexual assault committed in a similar manner; (2) the victim of that
assault subsequently identified Mr. Richardson as her attacker in a lineup; and (3) Mr. Richardson
admitted to the police that he assaulted the victim.
¶7 The jury found Mr. Richardson guilty of home invasion premised on committing
aggravated criminal sexual assault and one count of aggravated criminal sexual assault based on
penetrating A.W.H.’s vagina while committing home invasion. It acquitted him of aggravated
criminal sexual assault based on penetrating A.W.H.’s anus. Following a hearing, the court
sentenced Mr. Richardson to 25 years in prison for the aggravated criminal sexual assault, and 15
years in prison, to be served consecutively, for the home invasion. Mr. Richardson did not file a
motion to reconsider his sentence.
¶8 II. JURISIDICTION
¶9 The trial court sentenced Mr. Richardson on July 31, 2019, and Mr. Richardson timely filed
his notice of appeal on August 1, 2019. We have jurisdiction pursuant to article VI, section 6, of
the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 603 (eff.
Feb. 6, 2013) and 606 (eff. July 1, 2017), governing appeals from final judgments in criminal
cases.
¶ 10 III. ANALYSIS
¶ 11 Mr. Richardson now appeals, arguing that we should vacate his home invasion conviction.
He contends that his home invasion conviction violates the one-act, one-crime doctrine as it is a
lesser-included offense of his aggravated criminal sexual assault conviction. The State concedes
and we agree.
¶ 12 Initially, Mr. Richardson acknowledges that he did not preserve this issue for our review
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by raising it below. However, Mr. Richardson requests plain-error review. The plain-error doctrine
permits us to review an unpreserved error where a clear or obvious error occurred and (1) “the
evidence is so closely balanced that the error alone threatened to tip the scales of justice against
the defendant, regardless of the seriousness of the error,” or (2) the error “is so serious that it
affected the fairness of the defendant’s trial and challenged the integrity of the judicial process,
regardless of the closeness of the evidence.” (Internal quotation marks omitted.) People v. Coats,
2018 IL 121926, ¶ 9. One-act, one-crime violations will be reversed as second-prong plain error.
Id. ¶ 10. We review violations of the one-act, one-crime rule de novo. Id. ¶ 12.
¶ 13 The one-act, one-crime rule prevents a criminal defendant from being convicted of multiple
offenses that are based on the same physical act. Id. ¶ 11 (citing People v. King, 66 Ill. 2d 551, 566
(1977)). The rule further prevents multiple convictions where the offenses are based on separate
acts, but one offense is a lesser-included offense of another. People v. Miller, 238 Ill. 2d 161, 165
(2010). Thus, first, we must determine whether the relevant convictions are based on the same
physical act. Id. If the offenses are based on multiple acts, we “must determine whether any of the
offenses are lesser-included offenses.” Id. As the parties correctly agree that Mr. Richardson’s
conduct consisted of multiple acts, we proceed directly to analyzing whether one of his convictions
was for a lesser-included offense.
¶ 14 To determine whether one offense is a lesser-included offense of another, our supreme
court has made clear that we are to employ the abstract elements approach. People v. Reveles-
Cordova, 2020 IL 124797, ¶ 13. The abstract elements approach asks whether one offense includes
all of the statutory elements of another offense, and does not contain any element not included in
the other offense. Id. “In other words, it must be impossible to commit the greater offense without
necessarily committing the lesser offense.” Id. In making this determination, we look to the
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specific statutory subsections under which the defendant was charged and convicted. Id. ¶¶ 14-20.
¶ 15 Here, Mr. Richardson was charged with aggravated criminal sexual assault pursuant to
section 11-1.30(a)(4) of the Criminal Code of 1961 (Code) (720 ILCS 5/11-1.30(a)(4) (West Supp.
2011)), predicated on committing criminal sexual assault during the course of committing another
felony, home invasion. Section 11-1.30(a)(4) provides that a person commits aggravated criminal
sexual assault if he commits criminal sexual assault “during the course of committing or attempting
to commit any other felony.” 720 ILCS 5/11-1.30(a)(4) (West Supp. 2011). Section 11-1.20
provides that a person commits criminal sexual assault when he commits an act of sexual
penetration and uses force or threat of force. 720 ILCS 5/11-1.20(a)(1) (West 2012).
¶ 16 Mr. Richardson was also charged with home invasion pursuant to section 12-11(a)(6) of
the Code (720 ILCS 5/12-11(a)(6) (West 2010)), predicated on criminal sexual assault. When
applying the abstract elements approach to home invasion, we are to look to the specific predicate
offense listed in section 12-11(a)(6) for which the defendant was charged and convicted. Reveles-
Cordova, 2020 IL 124797, ¶ 20 (“the five sex offenses identified in subsection (a)(6) should be
construed as separately proscribed offenses”). Section 12-11(a)(6) provides that a person commits
home invasion if he, while not being a peace officer acting in the line of duty, enters or remains in
a dwelling place without authority when he knows or has reason to know someone is present and
commits one of several predicate sex offenses, including sections 11-1.20 (criminal sexual assault)
and 11-1.30 (aggravated criminal sexual assault). 720 ILCS 5/12-11(a)(6) (West 2010).
¶ 17 We agree with the parties that, as charged here, it is impossible to commit aggravated
criminal sexual assault predicated on home invasion without committing home invasion and
impossible to commit home invasion predicated on criminal sexual assault without committing
aggravated criminal sexual assault. The proof necessary to establish home invasion—that Mr.
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No. 1-19-1689
Richardson, while not being a peace officer, entered or remained in A.W.H.’s home knowing
someone was present and committed criminal sexual assault against her therein—necessarily
established that he committed criminal sexual assault while committing home invasion as charged
in the aggravated criminal sexual assault offense. Under the subsections charged here, home
invasion contains no elements absent from aggravated criminal sexual assault, and vice versa. See
People v. Gillespie, 2014 IL App (4th) 121146, ¶¶ 14, 23 (noting that “the predicate offense for
another crime is a lesser-included offense of the other crime,” and concluding that it was
impossible to commit aggravated criminal sexual assault predicated on another felony without
necessarily committing the predicate felony).
¶ 18 We note that, although the indictment predicated Mr. Richardson’s home invasion offense
on criminal sexual assault, the jury instructions predicated his home invasion offense on
aggravated criminal sexual assault. Specifically, the jury instructions provided that a person
committed home invasion if he, while not being a police officer, knowingly entered another’s
dwelling and remained until he knew or had reason to know that someone was present, and
committed aggravated criminal sexual assault.
¶ 19 That difference does not affect the outcome of this case. Here, aggravated criminal sexual
assault predicated on home invasion and home invasion predicated on aggravated criminal sexual
assault have identical elements: entering A.W.H.’s dwelling while not being a peace officer,
remaining until he knew or had reason to know someone was present, and committing criminal
sexual assault, in this case penetrating her vagina by force or threat of force. Thus, Mr.
Richardson’s convictions would rest on the same physical acts, entering A.W.H.’s home and
sexually penetrating her. His convictions therefore violate the one-act, one-crime rule when
examining his offenses as set out in either the the indictment or the jury instructions. Mr.
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Richardson has established plain error. Coats, 2018 IL 121926, ¶ 10.
¶ 20 Having determined that Mr. Richardson’s convictions for aggravated criminal sexual
assault and home invasion share the same elements under the abstract elements approach, we must
determine which is the more serious offense, as “sentence should be imposed on the more serious
offense and the less serious offense should be vacated.” People v. Artis, 232 Ill. 2d 156, 170 (2009).
The seriousness of the offenses is determined by comparing their relative punishments. Id. Mr.
Richardson’s aggravated criminal sexual assault and home invasion offenses are both Class X
felonies carrying potential sentencing ranges of 6 to 30 years to be served at 85%. 720 ILCS 5/11-
1.30(d)(1) (West Supp. 2011); 720 ILCS 5/12-11(c) (West 2010); 730 ILCS 5/5-4.5-25(a) (West
2012); Pub. Act. 97-697, § 5 (eff. June 22, 2012) (amending 730 ILCS 5/3-6-3(a)(2)(ii), (iii)).
However, aggravated criminal sexual assault carries a longer potential term of mandatory
supervised release than home invasion (see 730 ILCS 5/5-8-1(d)(1), (4) (West Supp. 2011)
(mandatory supervised release term is three years for home invasion and three years to life for
aggravated criminal sexual assault)) and subjects Mr. Richardson to registration as a sex offender
(730 ILCS 150/2(E)(1) (West Supp. 2011); 730 ILCS 150/7 (West 2012)). We therefore agree
with the parties that aggravated criminal sexual assault is the more serious offense. Accordingly,
we affirm Mr. Richardson’s conviction and sentence for aggravated criminal sexual assault but
vacate his conviction and sentence for home invasion. See Artis, 232 Ill. 2d at 170.
¶ 21 IV. CONCLUSION
¶ 22 For the foregoing reasons, the judgment of the trial court is affirmed in part and vacated in
part.
¶ 23 Affirmed in part and vacated in part.
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