HOME INVASION/RESIDENTIAL BURGLARY |UNLAWFUL RESTRAINT, ILLINOIS

HOME INVASION/RESIDENTIAL BURGLARY/UNLAWFUL RESTRAINT

1st Dist. People v. Baldwin, Docket No. 90433, (February 7, 2002)
1st.div. (JUSTICE KILBRIDE) Reversed and remanded, Charging instrument
did not sufficiently identify aggravated unlawful restraint as a
lesser-included offense of home invasion.

This defendant was charged in connection with a domestic dispute that
occurred in Chicago in 1999. Four counts of home invasion were alleged
by an information which asserted that, at the dwelling he had once
shared with his former girlfriend, he used force upon her while armed
with a butcher knife. A bench trial was held in the circuit court of
Cook County, and the judge acquitted Baldwin of these four charges.
However, instead, the court found him guilty of aggravated assault and
aggravated unlawful restraint. No sentence was imposed for the
aggravated assault offense, which is not at issue here. A five-year term
was imposed for aggravated unlawful restraint.

The defendant complained that aggravated unlawful restraint had not been
charged. These arguments were not successful when he made a motion for a
new trial or when he sought review in the appellate court.

However, the Illinois Supreme Court disagreed with the results reached
below, and vacated the unlawful restraint conviction as uncharged
because the information did not allege detention. Neither the
allegations, nor any inference therefrom, could support a claim that the
charging instrument had identified aggravated unlawful restraint as a
lesser-included offense of home invasion. Under the "charging
instrument" approach to lesser-included offenses, which the supreme
court adhered to in this decision, the fact that evidence later adduced
at trial might show that restraint occurred does not mean that a
defendant may be convicted of an uncharged offense. Due process requires
that there be sufficient notification before trial, as to what is
charged, so that an accused can prepare a defense.

In vacating the aggravated unlawful restraint conviction, the supreme
court remanded for sentencing for aggravated assault, as to which no
sentence had previously been imposed.

1st Dist. People v. Taylor No. 1-99-1253 (December 22, 2000) 5th div. (QUINN) Affirmed in part, vacated in part.

Defendant claims that (1) his conviction on the home invasion charge
must be vacated because the crime was not committed in the "dwelling
place of another" or, in the alternative, because the victim gave a
codefendant permission to enter the apartment; (2) his conviction on the
residential burglary charge must be vacated because his codefendant was
a resident of the apartment involved and because the apartment was no
longer a "dwelling place" after the victim was dead.

The Court affirmed the judgment of the trial court as to the residential
burglary and armed robbery counts and reversed the judgment of the trial
court as to the home invasion count. Defendant who entered residence of
victim with accomplice, who had been staying with victim on regular
basis, could not be guilty of home invasion, since accomplice had
permission to enter premises. However, conviction of residential
burglary and armed robbery on accountability theory will stand. Place
where crime occurred was dwelling, despite death of victim and
permission from accomplice was not sufficient to defeat residential
burglary.

Under Illinois' statute, a person who is not a peace officer commits
home invasion "when without authority he or she knowingly enters the
dwelling place of another when he or she knows or has reason to know
that one or more persons is present" and he or she "[i]ntentionally
causes any injury to any person or persons within such dwelling place."
720 ILCS 5/12-11(a)(2) (West 1998).

The State concedes that defendant could only be guilty of home invasion
and armed robbery based on the theory of accountability for the actions
of codefendant Heath. A person is legally 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
1998). In determining a defendant's legal accountability, the trier of
fact may consider the defendant's presence during the commission of the
offense, the defendant's continued close affiliation with other
offenders after the commission of the crime, the defendant's failure to
report the crime, and the defendant's flight from the scene. People v.
Taylor, 164 Ill. 2d 131, 141, 646 N.E.2d 567 (1995).

The gravamen of a home invasion offense is unauthorized entry. Campbell,
199 Ill. App. 3d at 786.

The State argues that the court should apply the "limited authority
doctrine," which holds that when a defendant comes to a private
residence and is invited in by the occupant, the authorization to enter
is limited and criminal actions exceed this limited authority. People v.
Peeples, 155 Ill. 2d 422, 487, 616 N.E.2d 294 (1993). Under the limited
authority doctrine, where the defendant enters with an innocent intent,
that entry is authorized and criminal actions thereafter engaged in by
the defendant do not change the status of the entry. People v. Bush, 157
Ill. 2d 248, 254, 623 N.E.2d 1361 (1993). Thus, under the limited
authority doctrine, the determination of whether an entry is
unauthorized depends on whether the defendant possessed the intent to
perform a criminal act therein at the time of entry. Bush, 157 Ill. 2d
at 254.

Defendant argues that Heath's authority to enter the apartment at 10810
South Calumet was not limited because Heath lived at the apartment with
Winters. Heath lived at the apartment with Winters. Thus, argues
defendant, Heath did not commit a home invasion by entering the
"dwelling place of another" for which defendant could be held
accountable.

"Given the facts of the cause before this court, we hold that the
limited authority doctrine does not apply. Here, there was evidence that
Heath had been staying with Winters on a regular basis as an overnight
guest. This fact distinguishes this case from the facts in Peeples,
where the evidence supported the inference that defendant gained access
to the victim's apartment through trickery and deceit, under the
pretense of borrowing a cup of sugar. Likewise, in another case cited by
the State, People v. Hill, 294 Ill. App. 3d 962, 965-66, 691 N.E.2d 797
(1998), the elderly victim allowed the defendant into her home for the
limited purpose of loaning him $10 and upon entry the defendant cut her
throat. Although the State on appeal asserts that Heath was not actually
staying in Winters' apartment, this assertion is belied by defendant's
statement. According to that statement, which was written by an
assistant State's Attorney, on the night in question, Winters gave Heath
authority to enter Winters' apartment not only as an invited guest, but
Heath had also been "staying with" Winters "for a while." Based on this
uncontradicted evidence, we find Winters' apartment was also Heath's
dwelling place and his actions inside the apartment did not change his
status as a resident.

Since Heath did not enter the "dwelling place of another," we hold that
the facts in the present case would not allow a rational trier of fact
to conclude beyond a reasonable doubt that defendant was guilty of home
invasion based on an accountability theory. Thus, we vacate defendant's
conviction and sentence on the charge of home invasion."
Under Illinois' statute, "a person commits residential burglary who
knowingly and without authority enters the dwelling place of another
with the intent to commit therein a felony or theft." 720 ILCS 5/19-3
(West 1998). For purposes of the residential burglary statute,
"dwelling" means "a house, apartment, mobile home, trailer, or other
living quarters in which at the time of the alleged offense the owners
or occupants actually reside or in their absence intend within a
reasonable period of time to reside." 720 ILCS 5/2-6(b) (West 1998).
The court stated that "[t]he residential burglary statute applies to
burglaries of structures intended for use as residences, regardless of
whether the structure was being actively used as a residence at the time
of the burglary." Moore, 206 Ill. App. 3d at 773. Despite the fact that
Winters was lying dead in his apartment at the time of the burglary, the
jury could have reasonably concluded that the apartment was a "dwelling
place" for purposes of the residential burglary statute. It was
undisputed in this case that the apartment at 10810 South Calumet was
intended for use as a residence.