People v. Johnson

NO. 4-04-0460 Filed: 12/4/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
BOBBY L. JOHNSON ) No. 02CF1373
Defendant-Appellant. )
) Honorable
) Elizabeth A. Robb,
) Judge Presiding.
_________________________________________________________________
JUSTICE STEIGMANN delivered the opinion of the court:
In March 2004, a jury convicted defendant, Bobby L.
Johnson, of (1) two counts of attempt (first degree murder), in
that defendant committed attempted murder of Lyle and Janice Knapp
(720 ILCS 5/8-4, 9-1(a)(1) (West 2002)) and (2) home invasion (720
ILCS 5/12-11(a)(5) (West 2002)). In April 2004, the trial court
sentenced defendant to two concurrent 60-year terms in prison for
attempt (first degree murder) and 85 years in prison for home
invasion, which included a 25-year sentence enhancement imposed
under section 12-11(c) of the Criminal Code of 1961 (720 ILCS 5/12-
11(c) (West 2002)). The court also ordered that defendant's 85-
year prison sentence be served consecutively to the concurrent 60-
year prison terms, as mandated by statute.
Defendant appeals, arguing that (1) the trial court erred
by admitting other-crimes evidence; (2) the State failed to prove
beyond a reasonable doubt that he committed the offense of attempt
(first degree murder) involving Janice; (3) he cannot stand
convicted of both home invasion and attempt (first degree murder)
of Lyle because to do so violates the one-act, one-crime rule; (4)
his 85-year prison sentence for home invasion violates the
proportionate-penalties clause; (5) his 145-year aggregate prison
sentence is void; and (6) the court erred by ordering that his 85-
year prison sentence be served consecutively to his 60-year
concurrent prison terms. We disagree and affirm.
I. BACKGROUND
In November 2002, the State charged defendant with (1)
two counts of attempt (first degree murder) involving Janice (720
ILCS 5/8-4, 9-1(a)(1) (West 2002)), (2) two counts of attempt
(first degree murder) involving Lyle (720 ILCS 5/8-4, 9-1(a)(1)
(West 2002)), and (3) two counts of home invasion (720 ILCS 5/12-
11(a)(5) (West 2002)).
In November 2003, the State filed amended motions in
limine seeking to introduce evidence of (1) other shootings that
occurred on the same day the Knapps were shot and were allegedly
additional acts that defendant committed in retaliation for the
death of Antonio Perry (who is referred to in the record as both
defendant's cousin and his friend) and (2) the gang affiliation of
defendant, Antonio, and others. Defendant later filed a motion in
limine requesting that the trial court bar evidence of his gang
affiliation and prior bad acts. Following a January 2004 hearing,
the court granted the State's motions and denied defendant's, upon
determining that the other-crimes evidence was "inextricably
connected to the issues" of the case.
A. Evidence Regarding the Incident Involving the Knapps
- 2 -
At defendant's March 2004 trial, Janice testified that in
November 2002, she and her husband, Lyle, lived in an apartment
located at 339 Riley Drive in Bloomington. Around 8:30 p.m. on
November 11, 2002, she was standing in the kitchen, while Lyle was
in the bathroom. She heard her door loudly bang open, and a few
seconds later, a black man with a gun appeared from around the
corner and stood staring at her in surprise. He pointed the gun at
Janice, and she curled into a fetal position against the kitchen
wall. She was unsure whether the man had fired any shots toward
her at this point. Lyle came out of the bathroom, the man pointed
the gun at him, and Janice covered her eyes. Janice then heard two
shots being fired. After a short pause, she heard two or three
more shots and then heard the apartment door close. Janice stood
up and tried to put pressure on her left ankle, but "it wouldn't
work." She identified the State's exhibit No. 6 as being a
photograph of her ankle wounds. Janice described the wounds as one
"large open wound" on the outside of her ankle and a smaller cut on
her ankle bone.
Janice also testified that immediately following the
incident, she told the police that the assailant looked like Ty
Johnson, who lived in the apartment located directly above the
Knapps' apartment. She told the police that the assailant looked
like Ty Johnson because both Ty Johnson and the assailant were
black males who had cornrow braids in their hair. However, Janice
denied that Ty Johnson was the man who fired the shots in their
apartment. Janice acknowledged that she initially believed that
- 3 -
the assailant was about the same height as Lyle (5 feet 10 inches
tall). (Defendant was approximately 5 feet 3 inches tall.)
Lyle testified that around 8:30 p.m. on November 11,
2002, he was in the bathroom of their apartment when he heard a
loud crash. He came out of the bathroom and saw a black man
crouched over Janice, with a silver pistol pointed toward her.
Lyle was not certain whether a shot had yet been fired. The man
then turned to face Lyle and pointed the gun at him. Lyle ran
toward the man and tried to hit him. Before Lyle could reach him,
the man shot Lyle in the forearm and Lyle fell to the floor. As he
was lying on the floor, the man shot him three more times (in his
chest, abdomen, and armpit). The man then left the apartment, and
Lyle told Janice to call 9-1-1.
Both Janice and Lyle testified that two days later, on
November 13, 2002, Bloomington police detective Matt Dick came to
the hospital and separately showed each of them a photographic
array of possible suspects. They both identified the photograph of
defendant as the man who broke into their apartment and fired
shots. Janice and Lyle also identified defendant in court as that
same man. Lyle testified that he had "no doubt whatsoever" that
defendant was the man who burst into their apartment and fired
shots.
Corey Cottrell testified that in November 2002, he lived
in the same apartment building as the Knapps and on the same floor.
Around 8:30 p.m. on November 11, 2002, he heard loud banging, and
shortly thereafter, someone knocked on his apartment door. When he
- 4 -
opened the door, a man approached him and asked where the build-
ing's exit was located. Cottrell gave the man directions, and as
the man walked away, Cottrell noticed that he was holding a chrome
pistol. On November 16, 2002, police showed Cottrell a photo-
graphic array of possible suspects, and he identified defendant as
the man he saw on the night of the incident. Cottrell also
identified defendant in court as that same man.
Dick, who was the lead detective investigating the
incident, testified that Janice, Lyle, and Cottrell all identified
defendant from a photographic array as the man involved. On cross-
examination, Dick testified that it was his theory that the
shootings of Janice and Lyle involved gang retaliation and the
intended target was Ty Johnson, the Knapps' upstairs neighbor.
According to Dick, Ty Johnson was targeted because he allegedly was
involved in Antonio's murder.
Bloomington police detective Tommy Walters testified and
identified the State's exhibit Nos. 35 and 36 as photographs
depicting two handguns recovered during a November 14, 2002, search
of the apartment of Kaywanda Childs, defendant's then-girlfriend.
Exhibit No. 36 was a photograph depicting a .357 Magnum revolver,
which was found in a paper bag that was stuffed between the
cushions of a couch in Kaywanda's apartment. Walters also
identified the State's exhibit No. 13 as the .357 magnum revolver.
He further identified the State's exhibit No. 11 as a bullet that
he found underneath the carpet in the Knapps' apartment and exhibit
No. 12 as a bullet fragment recovered from Lyle during surgery.
- 5 -
(The parties stipulated that an Illinois State Police forensic
scientist had determined that the .357 magnum fired both the bullet
fragment recovered from Lyle and the bullet recovered from the
Knapps' apartment.)
Defendant presented a defense based on an alibi--namely,
that on the night of November 11, 2002, he was at the North Lee
Street residence of Denise Perry, Antonio's mother--and mistaken
identity.
B. Evidence Regarding Other Crimes
Steven Roberts testified that on October 31, 2002, he,
along with a male friend and two women, drove to a grocery store in
Bloomington. After they parked, Roberts heard gunshots. He
eventually got out of the car and saw Phil Harris, who was injured.
Roberts tried to help Phil, who was his friend. While an ambulance
took Phil to the hospital, Roberts stood outside the grocery store
with Jackie Caldwell, Makwonda Johnson, and a man Roberts knew only
as Ivan. Roberts learned that Antonio had been killed inside the
grocery store. Roberts also saw defendant standing in the parking
lot. Around 9 p.m. on November 11, 2002, someone fired gunshots
into Roberts' residence. Roberts acknowledged that he did not see
the person who fired the shots.
Aaron Harris, who lived on West Mulberry in Bloomington
with his mother and brothers, Phil and Edward Harris, testified
that Ty Johnson was his cousin. Around 5:45 p.m. on November 11,
2002, he heard gunshots in his mother's room. When he ran to her
room, he saw shattered glass and bullet holes in the bathroom door.
- 6 -
(Walters processed the crime scene and found two partial bullets
and one complete bullet inside the Harris residence. The parties
stipulated that an Illinois State Police forensic scientist had
determined that the .357 Magnum recovered from Kaywanda's apartment
fired the bullet recovered from the Harris' residence.)
Amy Orris testified that she lived on Partner Place in
Bloomington and Caldwell lived next door. Around 6:30 p.m. on
November 11, 2002, Orris heard a "couple of pops." She looked out
the front window and saw a black man standing in Caldwell's
driveway shooting a gun.
Bloomington police detective Timothy McCoy testified that
around 6:40 p.m. on November 11, 2002, he responded to a reported
shooting. When he arrived at the scene, he found Khamandi Johnson,
who informed McCoy that he had been shot in the stomach while
sitting in his car on Partner Place. McCoy acknowledged that
Khamandi did not know who shot him.
Bloomington police officer David Hoover testified that
shortly after he heard the dispatch for the shooting on Partner
Place, he drove his squad car to Denise's residence. While driving
southbound on Lee Street, he saw five black males, including
defendant (who matched the description of the suspect in the
Partner Place shooting), walk to the front of Denise's residence.
Hoover stopped the five individuals and ordered them to show their
hands. After he determined that they did not have any weapons, he
and other responding officers let them go.
As Hoover and the other officers prepared to leave, Phil
- 7 -
and Aaron drove by Denise's residence very slowly. Defendant
pointed at Phil and said, "There is that motherfucker right there."
Defendant then began running after Phil and Aaron's car. Hoover
pulled his squad car in front of defendant, but defendant jumped
across the hood of the car and continued chasing Phil. Aaron then
pulled over, and Phil got out of the car and put his hands up in
the air. When defendant kept running toward Phil, Hoover tackled
defendant and put him in handcuffs. Hoover told Phil and Aaron to
leave the area, which they did. Hoover then released defendant,
upon determining that he was partially provoked by Phil and Aaron's
actions.
Kevin Wilson testified that on November 14, 2002, he was
at Kaywanda's apartment with defendant and Deion Hoskins. Wilson
saw defendant put a brown paper bag containing a gun between the
couch cushions where defendant was sitting. Wilson heard Hoskins
and defendant "talking about some Phil nigger, how he [was] going
to get his."
Dick testified that when he interviewed Wilson on
November 14, 2002, Wilson told him that earlier that day while at
Kaywanda's apartment, defendant told him not to sit on the couch,
which had a brown paper bag stuffed in the cushions. Wilson also
said that defendant talked about Phil, indicating defendant's
"intentions on how he, you know[,] on how he gonna [sic] get
killed."
Dick also testified that during a November 14, 2002,
interview with Kaywanda, she stated that defendant always kept his
- 8 -
gun (which was gray with a brown handle) with him. Dick further
testified on cross-examination that around 11:15 p.m. on November
11, 2002, Gabriel Van was shot. Dick acknowledged that no one
identified defendant as the individual who shot Van.
The parties stipulated that Hoskins was arrested on
November 14, 2002, and the next day, he spoke by telephone with
Kaywanda and Leticia Childs. During part of the conversation that
was recorded, Hoskins said that on November 14, 2002, defendant had
the .357 Magnum on the couch in Kaywanda's apartment.
Based on the evidence, the jury convicted defendant of
(1) attempt (first degree murder) of Lyle (720 ILCS 5/8-4, 9-
1(a)(1) (West 2002)), (2) attempt (first degree murder) of Janice
(720 ILCS 5/8-4, 9-1(a)(1) (West 2002)), and (3) home invasion (720
ILCS 5/12-11(a)(5) (West 2002)). In April 2004, the trial court
sentenced him as earlier stated.
This appeal followed.
II. ANALYSIS
A. Other-Crimes Evidence
1. Admissibility of Other-Crimes Evidence
and the Standard of Review
In People v. Spyres, 359 Ill. App. 3d 1108, 1112, 835
N.E.2d 974, 977 (2005), this court discussed the admissibility of
other-crimes evidence, as follows:
"The term 'other-crimes evidence' encom-
passes misconduct or criminal acts that oc-
curred either before or after the allegedly
criminal conduct for which the defendant is
- 9 -
standing trial. See People v. Illgen, 145
Ill. 2d 353, 365, 583 N.E.2d 515, 520 (1991);
People v. Colin, 344 Ill. App. 3d 119, 126
n.2, 799 N.E.2d 451, 458 n.2 (2003); People v.
Bobo, 278 Ill. App. 3d 130, 132, 662 N.E.2d
623, 625 (1996). Generally, other-crimes
evidence is inadmissible if it is relevant
only to demonstrate a defendant's propensity
to engage in criminal activity. People v.
Richee, 355 Ill. App. 3d 43, 50-51, 823 N.E.2d
142, 149 (2005). Such evidence may be admis-
sible, however, when it is relevant to show
motive, intent, identity, absence of mistake
or accident, modus operandi, or the existence
of a common plan or design. People v. Wilson,
214 Ill. 2d 127, 135-36, 824 N.E.2d 191, 196
(2005), People v. Hansen, 313 Ill. App. 3d
491, 500, 729 N.E.2d 934, 942 (2000). Indeed,
other-crimes evidence is admissible to prove
any material fact other than propensity that
is relevant to the case. People v. Donoho,
204 Ill. 2d 159, 170, 788 N.E.2d 707, 714
(2003). However, even when relevant for a
permissible purpose, the trial court may
exclude other-crimes evidence 'if its prejudi-
cial effect substantially outweighs its proba-
- 10 -
tive value.' Illgen, 145 Ill. 2d at 365, 583
N.E.2d at 519."
Thus, other-crimes evidence is not generally admissible. After the
trial court determines that evidence constitutes other-crimes
evidence, the court must then determine whether it comes within one
of the exceptions to the general rule against such evidence.
This analysis is essentially the same as that which trial
courts use--and are very familiar with--when addressing hearsay
objections. The rule is that hearsay is not generally admissible.
So, when an objection is made to some evidence on the ground that
it is hearsay, a court will first determine whether it is hearsay
and, if so, whether it falls within one of the several hearsay
exceptions.
The admissibility of other-crimes evidence lies in the
trial court's sound discretion, and we will not disturb that
court's decision absent a clear abuse of discretion. Spyres, 359
Ill. App. 3d at 1113, 835 N.E.2d at 978. "'An abuse of discretion
will be found only where the trial court's ruling is arbitrary,
fanciful, unreasonable, or where no reasonable person would take
the view adopted by the trial court.'" People v. Sutherland, No.
99047, slip op. at 67 (September 21, 2006), ___ Ill. 2d ___, ___,
___ N.E.2d ___, ___, quoting People v. Hall, 195 Ill. 2d 1, 20, 743
N.E.2d 126, 138 (2000).
2. Forfeited Claim as to Some Other-Crimes Evidence
Initially, we note that defendant has forfeited his claim
that the trial court erred by admitting evidence of the November
- 11 -
11, 2002, shooting of Van. As the State points out, it was
defendant who elicited this evidence at trial, not the State. A
party cannot complain of error that he himself injected into the
trial. See In re Detention of Swope, 213 Ill. 2d 210, 217, 821
N.E.2d 283, 287 (2004) ("Simply stated, a party cannot complain of
error which that party induced the court to make or to which that
party consented").
3. The Trial Court's Admission of the Other-Crimes Evidence
Defendant argues that the trial court erred by admitting
the following other-crimes evidence: (1) defendant's November 11,
2002, altercation with Phil; (2) the November 11, 2002, drive-by
shooting of the Harris residence; (3) the November 11, 2002, drive-
by shooting of Roberts' residence; and (4) the November 11, 2002,
drive-by shooting of Khamandi. We disagree. For the following
reasons, we conclude that the other-crimes evidence was admissible
under multiple exceptions to the rule against other-crimes
evidence, including (1) continuing narrative, (2) common scheme or
design, (3) motive, (4) intent, and (5) identification. Further,
each of these exceptions (as we discuss below) constitutes a
separate and independent basis for the admission of the other-
crimes evidence.
a. The Continuing-Narrative Exception
to the Rule Against Other-Crimes Evidence
This court has recognized that other-crimes evidence is
admissible if it is part of a continuing narrative of the event
that gave rise to the offense. People v. Thompson, 359 Ill. App.
- 12 -
3d 947, 951, 835 N.E.2d 933, 936 (2005). As we have explained,
"'[w]hen facts concerning uncharged criminal conduct are all part
of a continuing narrative which concerns the circumstances
attending the entire transaction, they do not concern separate,
distinct, and unconnected crimes.'" Thompson, 359 Ill. App. 3d at
951, 835 N.E.2d at 936, quoting People v. Collette, 217 Ill. App.
3d 465, 472, 577 N.E.2d 550, 555 (1991); see also People v. Carter,
362 Ill. App. 3d 1180, 1190, 841 N.E.2d 1052, 1060 (2005) (other-
crimes evidence is admissible to explain an aspect of the crime
charged that otherwise "would be implausible or perhaps even
inexplicable").
Judged in accordance with the applicable case law, we
conclude that the continuing-narrative exception applies here to
the admission of the other-crimes evidence because, without that
evidence, defendant's bursting into the apartment of the Knapps
(who were total strangers) and shooting them for no apparent reason
was inexplicable. We note that defendant argued that the Knapps
were mistaken in their identification of him, and he also asserted
an alibi defense. His inexplicable shooting of the Knapps (absent
the other-crimes evidence) would bolster his theory of misidentifi-
cation. Without the other-crimes evidence, the State would have
been unable to provide any theory as to why defendant attacked the
Knapps.
The altercation with Phil (who had shot and killed
Antonio 11 days earlier) and the drive-by shootings, all of which
occurred within hours of the Knapps' being shot--along with the
- 13 -
evidence that Ty Johnson, who lived directly above the Knapps, was
defendant's intended target--furnished a back story that made the
evidence of the charged crimes understandable.
b. The Common Scheme or Design Exception
to the Rule Against Other-Crimes Evidence
"Evidence of a common design proves the existence of a
larger criminal scheme of which the crime charged is only one
element." Spyres, 359 Ill. App. 3d at 1112, 835 N.E.2d at 977,
citing People v. Jones, 156 Ill. 2d 225, 239, 620 N.E.2d 325, 330
(1993). As we discussed in Spyres, (1) "'the existence of factual
similarities between multiple crimes does not, in itself, establish
that the crimes were committed as part of a common design, scheme,
or plan'" (Spyres, 359 Ill. App. 3d at 1113, 835 N.E.2d at 978,
quoting Hansen 313 Ill. App. 3d at 503, 729 N.E.2d at 944); and (2)
"'[i]n determining whether multiple crimes have been committed as
part of a common design, scheme, or plan, [it is] far more sensible
to focus on the defendant's state of mind or purpose in committing
the offenses than on the factual similarities of the offenses'"
(Spyres, 359 Ill. App. 3d at 1113, 835 N.E.2d at 978, quoting
Hansen, 313 Ill. App. 3d at 505, 729 N.E.2d at 945).
In this case, the evidence showed that when defendant
committed the other crimes (that is, the altercation with Phil, who
murdered Antonio, and the drive-by shootings involving individuals
who were somehow connected to Antonio's murder), defendant's
purpose and state of mind centered around his plan to avenge
Antonio's murder. Thus, the other-crimes evidence clearly
supported the State's theory that (1) defendant was involved in a
- 14 -
larger, overall scheme or design to be a vigilante and avenge
Antonio's murder and (2) the shooting of the Knapps was a part of
defendant's larger scheme or design.
c. The Motive Exception to the
Rule Against Other-Crimes Evidence
Although the State is not required to prove motive, "it
is certainly entitled to do so when evidence of motive exists."
People v. Hale, 326 Ill. App. 3d 455, 466, 762 N.E.2d 59, 68
(2001). As earlier stated, proof of other crimes is admissible to
establish motive. People v. Coleman, 158 Ill. 2d 319, 333, 633
N.E.2d 654, 662 (1994); Hale, 326 Ill. App. 3d at 465, 762 N.E.2d
at 68.
In this case, the other-crimes evidence was relevant to
show defendant's motive--that is, to engage in a vigilante mission
and avenge Antonio's murder--when he burst into the Knapps'
apartment and began shooting. Explaining to the jury why defendant
attacked the Knapps was an important part of the State's case. The
other-crimes evidence enabled the jury to understand the full story
of what motivated defendant to break into the Knapps' apartment and
shoot them.
d. The Intent Exception to the
Rule Against Other-Crimes Evidence
Evidence showing that an event was not caused by accident
tends to show that it was caused intentionally. In addition, the
requisite mental state may be inferred from the defendant's conduct
and the circumstances surrounding his commission of the crime.
People v. Blaney, 324 Ill. App. 3d 221, 224, 754 N.E.2d 405, 409
- 15 -
(2001).
In this case, specific intent to kill was an issue. See
720 ILCS 5/8-4, 9-1(a)(1) (West 2002); People v. Valentin, 347 Ill.
App. 3d 946, 951, 808 N.E.2d 1056, 1061 (2004) (to achieve a
successful prosecution for attempt (first degree murder), the State
must prove beyond a reasonable doubt that the defendant, with the
specific intent to kill, commits any act that constitutes a
substantial step toward the commission of murder). The other-
crimes evidence was relevant to show defendant's intent when he
burst into the Knapps' apartment and began shooting. The jury
could have inferred defendant's intent to kill the Knapps based on
the drive-by shootings, in which defendant shot with the intent to
kill as part of his vigilante mission.
e. The Identification Exception to the
Rule Against Other-Crimes Evidence
Other-crimes evidence is admissible when it is relevant
to show identity or bolster a victim's identification of the
perpetrator. Spyres, 359 Ill. App. 3d at 1112, 835 N.E.2d at 977;
see People v. Jones, 328 Ill. App. 3d 233, 239, 764 N.E.2d 1232,
1237 (2002) (noting that other-crimes evidence is admissible to
bolster the defendant's identification if identity is at issue);
People v. Andrade, 279 Ill. App. 3d 292, 303, 664 N.E.2d 256, 264
(1996) (other-crimes evidence "may be admitted when it is relevant
for some other purpose, such as identification").
As earlier stated, defendant contended that the Knapps
had mistakenly identified him. In light of that contention, the
other-crimes evidence was highly probative of, and admissible to
- 16 -
show, defendant's identity as the man who burst into the Knapps'
apartment and shot them. That evidence also was admissible to
bolster the Knapps' identification of defendant as their assailant.
f. The Trial Court's Exercise of Its Discretion
in Admitting the Other-Crimes Evidence
As earlier stated, the admissibility of other-crimes
evidence lies in the trial court's sound discretion, and we will
not disturb that court's decision absent a clear abuse of discre-
tion. Spyres, 359 Ill. App. 3d at 1113, 835 N.E.2d at 978.
The trial court here was in the best position to (1)
determine whether the other-crimes evidence came within any of the
exceptions to the general rule against other-crimes evidence and
(2) weigh the prejudicial impact of the other-crimes evidence in
the context of the entire case. Reviewing the court's decision
under the appropriate standard, we conclude that the court--
exercising its discretion--could have admitted the other-crimes
evidence under any (or all) of the exceptions discussed above.
Because we have concluded that the trial court did not
abuse its discretion by admitting the other-crimes evidence, we
need not address defendant's claim that the prosecutor exacerbated
the erroneous admission of that evidence by commenting "exten-
sively" on it. Regardless, when viewed in its entirety, the
prosecutor's closing argument did not unduly emphasize the other-
crimes evidence.
g. Rebuttal to Defendant's Evidence
We stress that even if the trial court had decided to not
- 17 -
admit the other-crimes evidence during the State's case in chief,
that evidence would have been separately admissible in the State's
rebuttal case to rebut defendant's alibi defense. Under those
circumstances, the State clearly would have been entitled to rebut
defendant's evidence with evidence that defendant was committing
other crimes and the crimes against the Knapps as part of his
vigilante mission.
4. Defendant's Claim That the Evidence That He
Committed the Drive-By Shootings Was Speculative
Defendant next argues that the evidence that he committed
the November 11, 2002, drive-by shootings was inadmissible because
it "consisted only of mere speculation." We disagree.
The State need not prove beyond a reasonable doubt that
the defendant committed an uncharged crime. However, the State's
proof "must be more than a mere suspicion." People v. Thingvold,
145 Ill. 2d 441, 456, 584 N.E.2d 89, 95 (1991).
In this case, the evidence showed that all of the drive-
by shootings occurred within hours of the shooting at the Knapps'
apartment, which occurred around 8:30 p.m. on November 11, 2002.
Shots were fired into the Harris residence around 5:45 p.m.;
Khamandi was shot around 6:30 p.m.; and shots were fired into
Roberts' residence around 9 p.m. In addition, (1) the same gun
that was used in the Knapps' shooting (which was linked to
defendant) was used in the drive-by shooting of the Harris
residence, (2) defendant matched the description of the suspect in
Khamandi's shooting, and (3) some of the drive-by shooting victims
were connected to the October 31, 2002, murder of Antonio, which,
- 18 -
under the State's theory, was the reason for defendant's vigilante
actions. In particular, Phil Harris was the person who actually
shot and killed Antonio, while Roberts arrived at the scene
immediately following the shooting and tried to help Phil, who had
been injured. Roberts acknowledged that defendant also was at the
scene immediately following the October 31, 2002, shooting.
Further, the drive-by shootings were but a part of defendant's
overall vigilante mission, which also included defendant's
altercation with Phil. Taken together, this far exceeds the
standard of being more than a mere suspicion that defendant
committed or was involved in the commission of the November 11,
2002, drive-by shootings.
5. The Irrelevance of the Fact That Defendant Was Never
Arrested or Charged with the Drive-By Shootings
Defendant next argues that the fact that he was not
arrested or charged with the drive-by shootings somehow diminishes
their value as other-crimes evidence. We disagree.
Whether defendant was ever arrested or charged for his
conduct that constitutes other-crimes evidence is totally irrele-
vant to a determination of whether that evidence is admissible.
See People v. Ash, 346 Ill. App. 3d 809, 816, 805 N.E.2d 649, 654
(2004) ("To hold that evidence of other crimes is more prejudicial
than probative simply because the crimes are uncharged would be
tantamount to barring all evidence of other crimes").
6. The Trial Court's Failure To Sua Sponte Instruct
the Jury Regarding the Other-Crimes Evidence
Defendant next argues that even if the other-crimes
- 19 -
evidence was admissible, the trial court erred by failing to sua
sponte instruct the jury regarding its proper use. We disagree.
Initially, we note that at the hearing on the parties'
motions in limine, (1) defendant, through his counsel, informed the
trial court that he would not request a limiting instruction at
trial and (2) the court did not provide the jury with the pattern
jury instruction on other-crimes evidence. See Illinois Pattern
Jury Instructions, Criminal, No. 3.14 (4th ed. 2000) (hereinafter
IPI Criminal 4th). Given defendant's acquiescence to the court's
handling of the other-crimes evidence, his argument on appeal is
forfeited and not reviewable except under the plain-error doctrine.
In People v. Denny, 241 Ill. App. 3d 345, 360-61, 608
N.E.2d 1313, 1324 (1993), this court stressed the importance of a
contemporaneous jury instruction on the purpose of other-crimes
evidence when it wrote, in pertinent part, as follows:
"Because of the significant prejudice to
a defendant's case that the admission of
other[-]crimes evidence usually risks, we hold
that trial courts should not only instruct the
jury in accordance with IPI Criminal 2d No.
3.14 at the close of the case, but also orally
from the bench (unless [the] defendant ob-
jects) at the time the evidence is first
presented to the jury."
Nonetheless, we concluded in Denny that the trial court's failure
to sua sponte give the pattern jury instruction did not constitute
- 20 -
plain error. Denny, 241 Ill. App. 3d at 360, 608 N.E.2d at 1323;
see also People v. Hensley, 354 Ill. App. 3d 224, 233-34, 819
N.E.2d 1274, 1283 (2004) (reaffirming Denny and concluding that the
plain-error doctrine did not require reversal); People v. Tolbert,
323 Ill. App. 3d 793, 800, 753 N.E.2d 1193, 1200 (2001) ("it is not
always plain error for a court to fail to instruct the jury
regarding the limited purpose for other-crimes evidence"). "[T]he
plain-error doctrine bypasses normal forfeiture principles and
allows a reviewing court to consider unpreserved error when either
(1) the evidence is close, regardless of the seriousness of the
error, or (2) the error is serious, regardless of the closeness of
the evidence." People v. Herron, 215 Ill. 2d 167, 186-87, 830
N.E.2d 467, 479 (2005).
Review of the record shows that the evidence was not
closely balanced nor was defendant deprived of a fair trial by the
trial court's failure to sua sponte instruct the jury on the proper
use of the other-crimes evidence. We thus conclude that the court
did not commit plain error by failing to sua sponte give IPI
Criminal 4th No. 3.14 to the jury.
Although we have so concluded, we nonetheless reaffirm
Denny and Hensley and urge trial courts to not only instruct the
jury in accordance with IPI Criminal 4th No. 3.14 at the close of
the case, but also orally from the bench when the other-crimes
evidence is first presented to the jury (unless the defendant
objects).
7. Defendant's Claim That His Trial Counsel
Provided Ineffective Assistance
- 21 -
Defendant next argues that his trial counsel provided
ineffective assistance of counsel when he failed to request a
limiting instruction for the other-crimes evidence. We disagree.
Ineffective-assistance-of-counsel claims are reviewed
under the standard set forth in Strickland v. Washington, 466 U.S.
668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Evans,
186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). "To obtain
reversal under Strickland, a defendant must prove (1) his counsel's
performance failed to meet an objective standard of competence and
(2) counsel's deficient performance resulted in prejudice to the
defendant." Thompson, 359 Ill. App. 3d at 952, 835 N.E.2d at 937.
To satisfy the deficient-performance prong, the defendant must show
that counsel made errors so serious that he was not functioning as
the "counsel" guaranteed by the sixth amendment (U.S. Const.,
amend. VI). To satisfy the prejudice prong, the defendant must
show that but for counsel's errors, a reasonable probability exists
that the outcome of the proceedings would have been different.
Thompson, 359 Ill. App. 3d at 952, 835 N.E.2d at 937. The failure
to satisfy either Strickland prong will preclude a finding of
ineffective assistance of counsel. People v. Young, 347 Ill. App.
3d 909, 927, 807 N.E.2d 1125, 1140 (2004).
In this case, defendant has not shown that his trial
counsel was not functioning as the "counsel" guaranteed by the
sixth amendment when counsel failed to request a limiting instruc-
tion for the other-crimes evidence. Counsel may have made a
tactical decision not to request such an instruction to avoid
- 22 -
unduly emphasizing the other-crimes evidence. Moreover, this court
has held that a defendant cannot establish prejudice as to his
counsel's failure to request a limiting instruction when--as here--
"'the other-crimes evidence is an integral part of the context of
the crime for which defendant has been tried.'" Thompson, 359 Ill.
App. 3d at 953, 835 N.E.2d at 937, quoting People v. Figueroa, 341
Ill. App. 3d 665, 672, 793 N.E.2d 712, 718 (2003).
B. Sufficiency of the Evidence Regarding
Attempt (First Degree Murder) of Janice
Defendant next argues that the State failed to prove
beyond a reasonable doubt that he committed the offense of attempt
(first degree murder) of Janice. Specifically, he contends that no
evidence showed that he intended to kill Janice. We disagree.
As earlier stated, to achieve a successful prosecution
for attempt (first degree murder), the State must prove beyond a
reasonable doubt that the defendant, with the specific intent to
kill, commits any act that constitutes a substantial step toward
the commission of murder. 720 ILCS 5/8-4, 9-1(a)(1) (West 2002);
Valentin, 347 Ill. App. 3d at 951, 808 N.E.2d at 1061. A defen-
dant's intent is an issue of fact to be determined by the trier of
fact. Intent can be inferred from the surrounding circumstances,
including the character of the attack, use of a deadly weapon, and
severity of the injury. Valentin, 347 Ill. App. 3d at 951, 808
N.E.2d at 1061.
In People v. Ward, 215 Ill. 2d 317, 322, 830 N.E.2d 556,
558-59 (2005), the Supreme Court of Illinois addressed a defen-
dant's argument that the State's evidence was not sufficient to
- 23 -
sustain his conviction and wrote the following:
"When reviewing the sufficiency of the
evidence of a criminal conviction, it is not
the function of [a reviewing] court to retry
the defendant. [Citation.] The relevant
inquiry is whether, viewing the evidence in
the light most favorable to the prosecution,
any rational trier of fact could have found
the essential elements of the crime beyond a
reasonable doubt."
The supreme court has also stated that "[u]nder this standard, a
reviewing court must allow all reasonable inferences from the
record in favor of the prosecution." People v. Bush, 214 Ill. 2d
318, 326, 827 N.E.2d 455, 460 (2005). In addition, "[p]roof beyond
a reasonable doubt does not require the exclusion of every possible
doubt." People v. Standley, 359 Ill. App. 3d 1096, 1101, 835
N.E.2d 945, 950 (2005).
In this case, the evidence showed that (1) defendant
burst into the Knapps' apartment and pointed a gun at Janice; (2)
Janice curled against the kitchen wall in a fetal position; (3)
when Lyle came out of the bathroom, he saw defendant crouched over
Janice, pointing a gun in her direction; (4) Janice and Lyle were
unsure whether defendant fired any shots prior to Lyle's coming out
of the bathroom; (5) Janice, who then had her eyes covered, heard
two shots, a pause, and two or three more shots; (6) Janice
suffered a "large open wound" on the outside of her ankle and a
- 24 -
smaller cut on her ankle bone; (7) Janice identified defendant in
court as the man who broke into the apartment, pointed a gun at
her, and fired several shots inside the apartment; and (8) the
attack on Janice and Lyle was part of defendant's overall scheme to
shoot to kill during his vigilante mission.
Having carefully reviewed the evidence in the light most
favorable to the State, we conclude that the evidence supports the
guilty verdict. Based on the sum of the State's evidence, the jury
reasonably could have (1) inferred defendant's intent to kill
Janice from defendant's use of a deadly weapon, the character of
the attack (including defendant's bursting into the apartment and
pointing a gun at Janice as she was curled in a fetal position),
and the circumstances surrounding the attack and (2) thus found
that defendant committed the offense of attempt (first degree
murder) of Janice.
C. One-Act, One-Crime Rule
Defendant next argues that he cannot stand convicted of
both home invasion and attempt (first degree murder) of Lyle
because to do so violates the one-act, one-crime rule set forth in
People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 844-45 (1977).
We disagree.
The one-act, one-crime doctrine prohibits multiple
convictions when (1) the convictions are carved from precisely the
same physical act or (2) one of the offenses is a lesser-included
offense of the other. People v. Lindsey, 324 Ill. App. 3d 193,
200, 753 N.E.2d 1270, 1277 (2001). Thus, the first step is to
- 25 -
determine whether the defendant's conduct consisted of a single
physical act or separate acts. People v. Harvey, 211 Ill. 2d 368,
389, 813 N.E.2d 181, 194 (2004). "Multiple convictions are
improper if they are based on precisely the same physical act."
People v. Rodriguez, 169 Ill. 2d 183, 186, 661 N.E.2d 305, 306
(1996). Our supreme court has defined an "act" as "'any overt or
outward manifestation which will support a different offense.'"
Rodriguez, 169 Ill. 2d at 188, 661 N.E.2d at 307, quoting King, 66
Ill. 2d at 566, 363 N.E.2d at 845. If the court determines that
the defendant's convictions are based on multiple acts, the court
will determine whether any of the offenses are lesser-included
offenses. If they are, multiple convictions are improper. If none
of the offenses are lesser-included offenses, then multiple
convictions may stand. Harvey, 211 Ill. 2d at 389-90, 813 N.E.2d
at 194-95. We consider this issue de novo. People v. Peacock, 359
Ill. App. 3d 326, 331, 833 N.E.2d 396, 400 (2005).
1. Defendant's Claim That His Convictions
Were Based on the Same Physical Act
Defendant first contends that his conviction for attempt
(first degree murder) was based on the same physical act (shooting
Lyle) that formed the basis for his home-invasion conviction. We
disagree.
In People v. Tate, 106 Ill. App. 3d 774, 778, 436 N.E.2d
272, 275 (1982), the defendant argued on appeal that his convic-
tions for home invasion and aggravated battery had been "'carved'
from the same act." This court disagreed, upon concluding that the
knifing of the victim was the entire basis of the aggravated-
- 26 -
battery conviction but only part of the basis of the home-invasion
conviction. We reasoned that "the entry by the assailant in[to]
the *** home was a separate act which was an important and required
part only of the home[-]invasion offense." Tate, 106 Ill. App. 3d
at 778, 436 N.E.2d at 275.
In People v. Priest, 297 Ill. App. 3d 797, 802, 698
N.E.2d 223, 227 (1998), we concluded that convictions of home
invasion and domestic battery were based upon interrelated acts
rather than a single physical act. We explained that "[t]he fact
that [the] defendant unlawfully entered [the] home [was] an overt
or outward manifestation supporting the home[-]invasion conviction,
a separate act from causing [the victim] bodily harm, [which]
support[ed] the domestic[-]battery conviction." Priest, 297 Ill.
App. 3d at 802, 698 N.E.2d at 227.
In Peacock, 359 Ill. App. 3d at 331-32, 833 N.E.2d at
400-02, this court reaffirmed both Tate and Priest and held that an
offense, such as home invasion, can consist of more than one act.
We concluded that as charged in that case, home invasion contained
two elements--namely, (1) the unauthorized entry of a dwelling and
(2) the intentional injury of a person therein. In so concluding,
we reasoned that "[o]ne element is just as much a physical act as
the other." Peacock, 359 Ill. App. 3d at 333, 833 N.E.2d at 402.
We thus further concluded that the defendant's home-invasion and
aggravated-battery convictions "were based on interrelated acts
rather than 'precisely the same physical act.'" (Emphases in
original.) Peacock, 359 Ill. App. 3d at 333, 833 N.E.2d at 402.
- 27 -
We adhere to the holdings and principles set forth in
Peacock, Tate, and Priest. In this case, defendant was charged
with attempt (first degree murder), which was based solely on the
physical act of shooting Lyle. Defendant also was charged with
home invasion, in that he knowingly, being a person who is not a
peace officer acting in the line of duty, without authority entered
the dwelling place of the Knapps, when he knew or had reason to
know that one or more persons were present therein and personally
discharged a firearm that proximately caused great bodily harm to
Lyle, a person within the dwelling. 720 ILCS 5/12-11(a)(5) (West
2002). Thus, as charged in this case, home invasion was based on
two physical acts--namely, (1) the unauthorized entry of a dwelling
place and (2) the shooting of Lyle, resulting in great bodily
injury. Defendant's unauthorized entry into the Knapps' dwelling
was a separate physical act that was a required part only of the
home-invasion offense. Accordingly, defendant's convictions for
attempt (first degree murder) and home invasion were based on
interrelated acts, not exactly the same physical act.
2. Defendant's Claim That Attempt (First Degree Murder)
Was a Lesser-Included Offense of Home Invasion
Defendant also contends that even if his attempt (first
degree murder) conviction was not based on the same physical act
that formed the basis for his home-invasion conviction, attempt
(first degree murder) is a lesser-included offense of home
invasion. We disagree.
In general, courts have taken two different approaches to
identifying lesser-included offenses--the abstract-elements
- 28 -
approach and the charging-instrument approach. People v. Bowens,
307 Ill. App. 3d 484, 492, 718 N.E.2d 602, 609 (1999). Our supreme
court has expressed its preference for the charging-instrument
approach. See People v. Kolton, 219 Ill. 2d 353, 360-61, 848
N.E.2d 950, 954-55 (2006) (discussing People v. Novak, 163 Ill. 2d
93, 643 N.E.2d 762 (1994) (in which the supreme court adopted the
charging-instrument approach)). "The charging[-]instrument approach
looks to the allegations in the charging instrument to see whether
the description of the greater offense contains a 'broad founda-
tion' or 'main outline' of the lesser offense." Kolton, 219 Ill.
2d at 361, 848 N.E.2d at 954-55. Under the charging-instrument
approach, the decision whether an offense is lesser included
involves a case-by-case determination "using the factual descrip-
tion of the charged offense in the indictment." Kolton, 219 Ill.
2d at 367, 848 N.E.2d at 958. "A lesser offense will be 'included'
in the charged offense if the factual description of the charged
offense describes, in a broad way, the conduct necessary for the
commission of the lesser offense and any elements not explicitly
set forth in the indictment can reasonably be inferred." Kolton,
219 Ill. 2d at 367, 848 N.E.2d at 958.
With these principles in mind, we review the statutory
definition of attempt (first degree murder) and determine whether
the facts alleged in the home-invasion charging instrument contain
a broad foundation or main outline of the offense of attempt (first
degree murder). As earlier stated, a person commits the offense of
attempt (first degree murder) when he, with the specific intent to
- 29 -
kill, commits any act that constitutes a substantial step toward
the commission of murder. 720 ILCS 5/8-4, 9-1(a)(1) (West 2002).
As stated above, the charging instrument alleged that defendant
committed the offense of home invasion in that he knowingly, being
a person who is not a peace officer acting in the line of duty,
without authority entered the dwelling place of the Knapps, when he
knew or had reason to know that one or more persons were present
therein and personally discharged a firearm that proximately caused
great bodily harm to Lyle, a person within the dwelling. 720 ILCS
5/12-11(a)(5) (West 2002).
We conclude that the home-invasion charging instrument
did not set forth a broad foundation or main outline of attempt
(first degree murder). In particular, it did not explicitly allege
that defendant had the specific intent to kill, which is an element
of attempt (first degree murder). Nor can the specific-intent
element be inferred from the allegation that defendant "personally
discharged a firearm that proximately caused great bodily harm."
That allegation could imply acts that do not involve the specific
intent to kill. We thus conclude that the connection between the
charging instrument's allegations and the elements of attempt
(first degree murder) is simply too tenuous to identify attempt
(first degree murder) as a lesser-included offense of home
invasion. See generally People v. Baldwin, 199 Ill. 2d 1, 15-16,
764 N.E.2d 1126, 1134 (2002) (concluding that the connection
between the home-invasion charging instrument and the elements of
aggravated unlawful restraint were too remote to identify aggra-
- 30 -
vated unlawful restraint as a lesser-included offense of home
invasion).
D. Proportionate-Penalties Clause
Defendant next argues that the offense of home invasion
(involving great bodily harm caused by the discharge of a firearm)
(720 ILCS 5/12-11(a)(5) (West 2002)) violates the proportionate-
penalties clause when compared to the offense of armed violence
predicated on trespass to a residence and involving great bodily
harm caused by the discharge of a firearm (720 ILCS 5/33A-2(c),
33A-3(b-10), 19-4(a)(2), (b) (West 2002)). Specifically, he
contends that the two offenses are identical but have different
sentences. We disagree.
In evaluating statutory challenges brought under the
proportionate-penalties clause, our supreme court had--until its
decision in People v. Sharpe, 216 Ill. 2d 481, 517-18, 839 N.E.2d
492, 514-15 (2005)--employed three distinct tests: (1) whether the
penalty is cruel, degrading, or so wholly disproportionate to the
offense committed as to shock the moral sense of the community; (2)
whether the described offense, when compared to a similar offense,
carries a more severe penalty although the proscribed conduct
creates a less serious threat to the public health or safety
(cross-comparison test); or (3) whether the described offense, when
compared to an offense having identical elements, carries a
different sentence. People v. Huddleston, 212 Ill. 2d 107, 130,
816 N.E.2d 322, 335-36 (2004). However, in Sharpe, 216 Ill. 2d at
517, 839 N.E.2d at 514, the supreme court held that a defendant may
- 31 -
no longer challenge a penalty under the cross-comparison test--that
is, a defendant may no longer challenge a penalty under the
proportionate-penalties clause by comparing it with the penalty for
an offense with different elements. The Sharpe court retained the
other two types of proportionate-penalties challenges, including
the identical-elements test defendant raises here. Sharpe, 216
Ill. 2d at 517, 839 N.E.2d at 514; see also People v. McCarty, Nos.
100469, 100813, slip op. at 19 (October 19, 2006), ___ Ill. 2d ___,
___, ___ N.E.2d ___, ___ (discussing Sharpe).
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 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
* * *
(5) Personally discharges a
firearm that proximately causes
great bodily harm, permanent dis-
ability, permanent disfigurement, or
- 32 -
death to another person within such
dwelling place." 720 ILCS
5/12-11(a)(5) (West 2002).
The offense of home invasion involving great bodily harm caused by
the discharge of a firearm is a Class X felony (see 730 ILCS 5/5-8-
1(a)(3) (West 2002) (except as otherwise provided for in the
statute defining the offense, a Class X felony carries a penalty of
6 to 30 years in prison)), for which 25 years or up to a term of
natural life in prison shall be added to the term of imprisonment
imposed by the trial court (720 ILCS 5/12-11(c) (West 2002)).
Thus, the offense carries an enhanced penalty of 31 years to
natural life in prison.
The armed-violence statute provides as follows:
"(c) A person commits armed violence when
he or she personally discharges a firearm that
is a Category I or Category II weapon that
proximately causes great bodily harm, perma-
nent disability, or permanent disfigurement or
death to another person while committing any
felony defined by Illinois law, except first
degree murder, attempted first degree murder,
intentional homicide of an unborn child,
predatory criminal sexual assault of a child,
aggravated criminal sexual assault, aggravated
kidnaping, aggravated battery of a child, home
invasion, armed robbery, or aggravated vehicu-
- 33 -
lar hijacking." 720 ILCS 5/33A-2(c) (West
2002).
Criminal trespass to a residence is defined, in pertinent part, as
follows:
"A person commits the offense of criminal
trespass to a residence when, without author-
ity, he or she knowingly enters the residence
of another and knows or has reason to know
that one or more persons is present or he or
she knowingly enters the residence of another
and remains in the residence after he or she
knows or has reason to know that one or more
persons is present." 720 ILCS 5/19-4(a)(2)
(West 2002).
The offense of armed violence predicated on trespass to a residence
and involving great bodily harm caused by the discharge of a
firearm (720 ILCS 5/33A-2(c), 33A-3(b-10), 19-4(a)(2), (b) (West
2002)) is a Class X felony that carries a penalty of 25 to 40
years. 720 ILCS 5/33A-3(b-10) (West 2002).
Two clear differences exist between the two offenses--the
offense of armed violence predicated on trespass to a residence and
involving great bodily harm caused by the discharge of a firearm
does not contain any requirement that (1) the offender be an
individual "who is not a peace officer acting in the line of duty"
or (2) the victim who suffered great bodily harm was within the
"dwelling place" that the offender entered. Thus, because the
- 34 -
offenses of home invasion (involving great bodily harm caused by
the discharge of a firearm) and armed violence predicated on
trespass to a residence and involving great bodily harm caused by
the discharge of a firearm--as defined by our legislature--are not
identical, we conclude that the identical-elements test was not
violated. We thus further conclude that defendant's 85-year
sentence is not unconstitutional under the proportionate-penalties
clause.
E. Defendant's Aggregate Prison Sentence
Defendant next argues that his 145-year aggregate prison
sentence is void. We disagree.
Section 5-8-4(c)(2) of the Unified Code of Corrections
(Unified Code) provides, in pertinent part, as follows:
"[T]he aggregate of consecutive sentences
for offenses that were committed as part of a
single course of conduct during which there
was no substantial change in the nature of the
criminal objective shall not exceed the sum of
the maximum terms authorized under [s]ection
5-8-2 for the [two] most serious felonies
involved ***." 730 ILCS 5/5-8-4(c)(2) (West
2002).
In this case, defendant was convicted of three Class X felonies.
Section 5-8-2 of the Unified Code provides that a Class X felony is
punishable by a prison term ranging from 30 to 60 years. 730 ILCS
5/5-8-2(a)(2) (West 2002). Defendant thus contends that under
- 35 -
section 5-8-4(c)(2) of the Unified Code (730 ILCS 5/5-8-4(c)(2)
(West 2002)), the maximum aggregate prison sentence was 120 years.
However, as the State points out, in 2000, the legisla-
ture enacted Public Act 91-404 (Pub. Act 91-404, §10, eff. January
1, 2000 (1999 Ill. Laws 5126, 5130-31)), which amended the
sentencing provisions of several different felony offenses--
including home invasion--to provide for an additional mandatory
prison term when a firearm is involved in the commission of the
crime. The degree of the sentencing enhancement depends upon the
degree to which the firearm was involved in the commission of the
felony. Sharpe, 216 Ill. 2d at 485, 839 N.E.2d at 496.
Thus, the home-invasion statute, as amended by Public Act
91-404, provides that the following penalties "shall be added" to
whatever sentence the trial court imposes: (1) a 15-year sentence
enhancement for committing the offense while armed with a firearm,
(2) a 20-year sentence enhancement for personally discharging a
firearm during the commission of the offense, and (3) a sentence of
25 years to natural life for personally discharging a firearm that
proximately causes great bodily harm, permanent disability,
permanent disfigurement, or death to another person during the
commission of the offense. 720 ILCS 5/12-11(c) (West 2002).
When construing a statute, we must give effect to the
legislature's intent. Calibraro v. Board of Trustees of Buffalo
Grove Firefighters' Pension Fund, 367 Ill. App. 3d 259, 262, 854
N.E.2d 787, 790 (2006). "[I]n determining the legislature's
intent, the court may properly consider not only the language of
- 36 -
the statute, but also the reason and necessity for the law, the
evils sought to be remedied, and the purpose to be achieved."
People v. Culbreath, 343 Ill. App. 3d 998, 1010, 798 N.E.2d 1268,
1277 (2003). In addition, when two statutes conflict, the more
recent enactment takes precedence over the earlier enactment.
Calibraro, 367 Ill. App. 3d at 262, 854 N.E.2d at 790.
In People v. Dixon, 359 Ill. App. 3d 938, 943, 835 N.E.2d
925, 929-30 (2005), this court discussed Public Act 91-404 and
wrote as follows:
"Our supreme court has determined the
purpose of Public Act 91-404 (Pub. Act 91-404,
eff. January 1, 2000 (1999 Ill. Laws 5126)) is
'"to deter the use of firearms in the commis-
sion of felonies."' [People v. Moss, 206 Ill.
2d 503, 525, 795 N.E.2d 208, 222 (2003)],
quoting People v. Walden, 199 Ill. 2d 392,
396, 769 N.E.2d 928, 931 (2002). It has also
recognized that gun violence presents a perva-
sive and enhanced danger."
Our supreme court also has held that Public Act 91-404's "amend-
ments add a mandatory additional term of years to whatever sentence
would otherwise be imposed." (Emphases added.) Sharpe, 216 Ill.
2d at 484-85, 839 N.E.2d at 496.
In addition, as earlier noted, Public Act 91-404, which
amended the home-invasion statute to include the firearm enhance-
ment (720 ILCS 5/12-11(c) (West 2002)), was enacted in 2000.
- 37 -
Section 5-8-4(c)(2) of the Unified Code (730 ILCS 5/5-8-4(c)(2)
(West 2002)), on the other hand, was originally enacted in 1973
(Ill. Rev. Stat. 1973, ch. 38, par. 1005-8-4(c); Pub. Act 77-2097,
eff. January 1, 1973 (1972 Ill. Laws 758, 830)) and was most
recently amended in 1997 (Pub. Act 90-128, §5, eff. July 22, 1997
(1997 Ill. Laws 2424, 2424)).
Given (1) that the legislature clearly intended that the
mandatory firearm enhancement penalty be added to "whatever
sentence would otherwise be imposed" (Sharpe, 216 Ill. 2d at 485,
839 N.E.2d at 496), (2) that the home-invasion statute's firearm
enhancement provision was the more recent statute, and (3) the evil
sought to be remedied and the purpose to be achieved by the
firearm-enhancement, we conclude that the home-invasion statute's
firearm-enhancement provision takes precedence over section 5-8-
4(c)(2) of the Unified Code.
F. Consecutive Sentencing
Last, defendant argues that the trial court erred by
ordering his 85-year prison sentence for home invasion be served
consecutively to his 60-year concurrent terms for attempt (first
degree murder). Specifically, he contends that the court failed to
articulate the basis for its determination that consecutive
sentences were statutorily mandated. We disagree.
Although the trial court indicated only that the
consecutive sentences were statutorily mandated, the court ordered
that the sentences run consecutively under section 5-8-4(a)(i) of
the Unified Code. That section provides that the trial court shall
- 38 -
impose consecutive sentences when "one of the offenses for which
defendant was convicted was *** a Class X or Class 1 felony and the
defendant inflicted severe bodily injury." 730 ILCS 5/5-8-4(a)(i)
(West 2002). "'[A]ny Class X or Class 1 felony that results in
severe bodily injury being inflicted on the victim of that felony
triggers consecutive sentences.'" (Emphasis in original.) People
v. Phelps, 211 Ill. 2d 1, 16, 809 N.E.2d 1214, 1222 (2004), quoting
People v. Whitney, 188 Ill. 2d 91, 99, 720 N.E.2d 225, 229 (1999).
Nothing in section 5-8-4(a)(i) of the Unified Code requires that
the trial court set forth in the record its finding that the
defendant inflicted severe bodily injury on the victim.
In this case, defendant was convicted of home invasion,
which is a Class X felony. Lyle testified that after bursting into
the Knapps' apartment, defendant shot him four times--in the
forearm, armpit, abdomen, and chest. In addition, the presentence
investigation report indicated that Lyle was hospitalized for 16
days as a result of the gunshot wounds. During his long hospital-
ization, Lyle underwent several medical procedures and surgeries,
including repair of his left radial artery, repair of gastric
perforations, the open reduction and internal fixation of radial
and ulnar fractures, and skin grafting. The record clearly shows
that Lyle's injuries constituted "severe bodily injury" for the
purpose of consecutive sentencing under section 5-8-4(a)(i) of the
Unified Code.
In so concluding, we commend the trial court for imposing
a prison sentence that, in the trial court's own words, "will
- 39 -
insure that [defendant] will not ever be a free person to engage in
acts of violence against any other persons." Defendant's crimes
were heinous--bursting into an unsuspecting couple's home, shooting
its residents, and leaving one of them severely injured. We agree
with the court that anyone who commits such a terrible crime
forfeits his right ever again to walk among free citizens in a free
society. Only by putting defendant behind bars for a lengthy
period of time could the court ensure that no other couple would
suffer the modern urban nightmare that the Knapps endured.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State's request
that defendant be assessed $50 as costs for this appeal.
Affirmed.
APPLETON and MYERSCOUGH, JJ., concur.
- 40 -