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8 November 2000

No. 2-99-0590

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE INGLIS delivered the opinion of the court:

Following a jury trial, defendant, Hugo C. Pena, was found guilty of home invasion (720ILCS 5/12-11(a) (West 1998)), armed robbery (720 ILCS 5/18-2(a) (West 1998)), unlawful use ofa weapon by a felon (720 ILCS 5/24-1.1 (West 1998)), and resisting or obstructing a peace officer(720 ILCS 5/31-1(a) (West 1998)). Defendant appeals and contends (1) that he is entitled to thereversal of his convictions of armed robbery and home invasion because the State failed to prove himguilty beyond a reasonable doubt of those offenses as a principal and because he could not beconvicted of those offenses as an accomplice due to the omission of language regarding accountability in certain jury instructions; and (2) that his conviction of unlawfuluse of a weapon by a felon must be reversed because it violates the one-act, one-crime rule. Weaffirm.

In case No. 98--CF--93, the State charged defendant by indictment with one count each ofhome invasion, armed robbery, and unlawful use of a weapon by a felon. In case No. 98--CM--302,the State charged defendant by complaint with resisting or obstructing a peace officer. The fourcharges were tried simultaneously.

At trial, Saul Camacho testified that on the evening of January 9, 1998, he was at home withhis four children in his residence, a single-family house. At about 10 p.m., Camacho heard a knockon the front door. Camacho went to the front door and looked through the peephole but could notdiscern who was there. Camacho opened the door and saw a man whom he did not know. Camacholater identified the man as defendant. Defendant asked for Jose. Camacho told defendant that therewas no Jose in his house. Camacho testified that defendant then pulled a gun and forced his way intoCamacho's house. Camacho did not invite defendant into his house.

Camacho further testified that, after defendant entered his house, defendant pointed the gunat Camacho, took Camacho into the kitchen, opened the back door of Camacho's house, and let fouror five other persons into Camacho's house. These persons, who had been waiting on the backporch, wore masks. The intruders made Camacho lie on the kitchen floor and asked Camacho wherethe drugs were. Camacho replied that he did not have any drugs. One of the intruders then hitCamacho on the head with an object. The blow caused a cut on Camacho's head. Camacho did notknow which of the intruders hit him or what he was hit with. While at least one of the intrudersstayed with Camacho and pointed a gun at him, other intruders went into a first-floor bedroom andransacked it while looking for drugs. The intruders did not find drugs in the bedroom. Camachotestified that during these events he believed that his children, who were ages 15, 14, 12, and 5, weresomewhere upstairs in the house. However, Camacho did not know exactly where the children were.

Camacho further testified that after the intruders ransacked the first-floor bedroom they tookhim down to the basement of his house. The intruders made Camacho kneel down on the basementfloor and continued looking for drugs. One of the masked intruders pointed a gun at Camacho. Theintruders also brought Camacho's 14-year-old daughter, Anna, down into the basement and made herkneel next to Camacho. Camacho feared that the intruders might use their guns. At that point,Camacho heard a shout and the intruders suddenly ran out of Camacho's house. Camacho testifiedthat the intruders took his wallet from his house. The wallet contained less than $100.

Camacho further testified that shortly after the intruders ran out of his house the policearrived. Later the same evening, the police asked Camacho to look at three men. Camachoidentified one of the men as the man who forced his way into Camacho's house. The man thatCamacho identified was defendant.

As People's exhibit No. 1, the State introduced a wallet into evidence. Camacho identifiedPeople's exhibit No. 1 as the wallet that the intruders took from his house. The wallet containedCamacho's driver's license. Camacho testified that the wallet no longer contained the money thatit had contained when the intruders took it.

As People's exhibit No. 2, the State introduced a silvery handgun into evidence. Camachotestified that the police showed him a similar gun on the night of the intrusion. Camacho recalledthat the gun that the police showed him looked a lot like the gun that defendant had when he forcedhis way into Camacho's house.

On cross-examination, Camacho acknowledged that there was no mention of his wallet ina police report that was made after the incident. Camacho testified that it was not possible that hehad dropped his wallet outside his house or left his wallet outside in his car on the night of theintrusion. Camacho was sure of that because he had paid bills on the day of the intrusion andrecalled counting the money in his wallet on that night. Camacho testified that when the wallet wastaken it contained United States currency totaling $70 in $20, $10, and $1 bill denominations.

On redirect examination, Camacho reiterated that he did not lose his wallet. Camachobelieved that the wallet was on a table in his house when defendant forced his way into the house.

Jason Bailey, a Rockford police officer, testified that at about 10:30 p.m. on January 9, 1998,he was dispatched to Camacho's house in response to a "911 hangup." When he arrived at the house,Bailey observed that two other police officers, Officers Clark and Cebuhar, had apprehended threesuspects. Bailey then went into Camacho's house and observed "a considerable amount of blood onthe floor" and that Camacho was bleeding from the head. Later, Bailey went out the back door ofthe house and followed several sets of footprints in fresh snow. About 45 yards northeast of thehouse, Bailey found a black and silver Smith and Wesson handgun lying in the snow about two feetaway from the sets of footprints. According to Bailey, when he found the gun it appeared as if it hadonly recently fallen into the snow. Bailey identified People's exhibit No. 2 as the gun he found inthe snow.

On cross-examination, Bailey testified that the blood he observed inside Camacho's housewas in the kitchen. Bailey agreed that there were a number of drops of blood but there was no"running or streaming" blood. Bailey identified People's exhibit No. 4 as a magazine that was insidethe gun when he found it and People's exhibit No. 5 as ammunition that was in the gun when hefound it.

Michael Clark, a Rockford police officer, testified that he was dispatched to Camacho's houseon the night of the intrusion. When Clark arrived at Camacho's house, another police officer, OfficerCebuhar, was there. Clark and Cebuhar were in the front of the house when they heard a noise andstarted walking to the back of the house. Clark then observed five persons come out of the back doorof the house. Clark identified himself as a police officer and ordered the persons to stop. Thepersons did not stop; instead, they took off running in a northeasterly direction. Clark and Cebuharchased the persons and continued to yell for them to stop. Clark and Cebuhar caught up with threeof the persons about a block from Camacho's house. The other two persons took off running indifferent directions and got away. Clark testified that from the time the three persons he and Cebuhar caught up with left Camacho's house until they werecaught he never lost sight of them.

Clark further testified that when he and Cebuhar caught up with the three persons, Cebuhardrew his gun and told the three persons to get down on the ground. Two of the persons complied. The third person, whom Clark identified as defendant, did not comply. Rather, defendant remainedstanding and turning around, leading Clark to conclude that defendant might take off running again. Defendant got down on the ground only after Clark took defendant to the ground.

After defendant was on the ground, Clark handcuffed defendant and went through defendant'spockets looking for identification. Clark testified that he found a wallet in defendant's rear pocket. Clark looked in the wallet and saw that it contained a driver's license and other picture identificationsthat did not match defendant. Clark identified People's exhibit No. 1 as the wallet that was indefendant's rear pocket. Clark testified that $114 in cash was found on one of the other three personsthat he and Cebuhar caught. The cash consisted of "four $20's and one $10, three $5's and nine $1's."

Jason Cebuhar, a Rockford police officer, was also dispatched to Camacho's house on thenight of January 9, 1998. Cebuhar's testimony at trial was consistent with and corroborated Clark'stestimony.

The parties stipulated that defendant had been convicted of a felony offense in Illinois onDecember 27, 1994. The State then rested. Without presenting any evidence, defendant then rested.

The jury found defendant guilty of all four charges. After denying defendant's motion for anew trial or to set aside the verdicts, the trial court sentenced defendant to concurrent terms ofincarceration of 20 years for the offense of home invasion, 20 years for the offense of armed robbery,3 years for the offense of unlawful use of a weapon by a felon, and 30 days for the offense of resisting or obstructing a peace officer. After the trial court denied his motion to reconsider thesentences, defendant filed a timely notice of appeal.

On appeal, defendant first contends that his convictions of armed robbery and home invasionmust be reversed because the State failed to prove him guilty beyond a reasonable doubt of theseoffenses as a principal and because he could not properly be found guilty as an accomplice due toinstructional errors. Defendant asserts that the State failed to include recommended languageregarding accountability in each of the pattern jury instructions for these offenses that set out thepropositions that the State was required to prove. Defendant maintains that this resulted in the jurybeing instructed on his culpability only as a principal and not as an accomplice. Defendant arguesthat because of these instructional errors it was improper for the jury to find him guilty of theseoffenses as an accomplice. We first address the alleged instructional error regarding the armedrobbery charge.

We note initially that the State argues that defendant waived the issue of instructional errorby failing to object to the instructions that were given. However, defendant's contentions raiseclaims of substantial defects in jury instructions. In such cases, the waiver rule may be relaxed evenwhere a defendant has failed to make timely objections. See 177 Ill. 2d R. 451(c); People v. Ward,187 Ill. 2d 249, 264-65 (1999).

The jury instruction in question with respect to the armed robbery conviction was People'sinstruction No. 15, which stated:

"To sustain the charge of armed robbery, the State must prove the followingpropositions:

First proposition: That the defendant intentionally took property from the person orpresence of Saul Camacho; and

Second proposition: That the defendant did so by the use of force or by threateningthe imminent use of force; and

Third proposition: That the defendant carried on or about his person a dangerousweapon or was otherwise armed with a dangerous weapon at the time of the taking.

If you find from your consideration of all the evidence that each of these propositionshas been proved beyond a reasonable doubt, you should find the defendant guilty.

If you find from your consideration of all the evidence that any one of thesepropositions has not been proved beyond a reasonable doubt, you should find the defendantnot guilty."

This instruction tracks the language of Illinois Pattern Jury Instructions, Criminal, No. 14.06(4th ed. 2000) (IPI Criminal 4th). As defendant points out, the committee note for this patterninstruction states, in part:

"When accountability is an issue, ordinarily insert the phrase 'or one for whoseconduct he is legally responsible' after the word 'defendant' in each proposition." IPICriminal 4th No. 14.06, Committee Note, at 206.

Defendant asserts that because accountability was an issue in this case it was error for the State totender People's instruction No. 15 without the accountability phrase recommended in the committeenote. Defendant argues that without the accountability phrase the jury could not properly convicthim as an accomplice.

Defendant's argument ignores the fact that the jury was instructed regarding accountabilityby another instruction, People's instruction No. 11., which stated:

"A person is legally responsible for the conduct of another person when, either beforeor during the commission of an offense, and with the intent to promote or facilitate thecommission of an offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aidthe other person in the planning or commission of an offense.

The word 'conduct' includes any criminal act done in furtherance of the planned andintended act."

See IPI Criminal 4th No. 5.03.

The purpose of instructions is to guide the jury in its deliberations and to help it reach aproper verdict through the application of legal principles as applied to the evidence and the law. People v. Hester, 131 Ill. 2d 91, 98 (1989). Jury instructions should not be read in isolation butshould be construed as a whole. Ward, 187 Ill. 2d at 265.

In this case, defendant essentially asks us to read People's instruction No. 15 in isolation. However, People's instruction No. 11 unambiguously sets out a principle of accountability. Inaddition, the jury was instructed by People's instruction No. 1 that "[t]he law that applies to this caseis stated in these instructions, and it is your duty to follow all of them. You must not single outcertain instructions and disregard others." Thus, assuming arguendo that People's instruction No.15, when read in isolation, was defective because it omitted the accountability phrase, we believethe instructions as a whole ameliorated any defect stemming from the omission of the accountabilityphrase. Therefore, when the instructions are read as a whole, as they should be, the jury could haveproperly found defendant guilty of armed robbery as an accomplice.

Furthermore, even if any error in People's instruction No. 15 had not been ameliorated byother instructions, defendant is not entitled to the reversal of his armed robbery conviction becausethe evidence was sufficient to prove him guilty beyond a reasonable doubt as a principal. A juryinstruction that was defective with respect to accountability does not constitute reversible errorwhere sufficient evidence was adduced from which the jury could find a defendant guilty as aprincipal. People v. Jefferson, 227 Ill. App. 3d 491, 496 (1992).

When evaluating the sufficiency of the evidence, a reviewing court is to determine, afterviewing the evidence in the light most favorable to the prosecution, whether any rational trier of factcould have found the essential elements of the offense beyond a reasonable doubt. People v. Collins,106 Ill. 2d 237, 261 (1985). We will not substitute our judgment for that of the fact finder onquestions involving the weight of the evidence or the credibility of the witnesses and will not reversea criminal conviction unless the evidence is so unreasonable, improbable, or so unsatisfactory as tojustify a reasonable doubt regarding the defendant's guilt. Collins, 106 Ill. 2d at 261-62.

In this case, sufficient evidence was adduced from which the jury could have found defendantguilty of armed robbery as a principal. The evidence showed that defendant was armed with a gunwhen he entered Camacho's house. In the house, defendant pointed the gun at Camacho. Whiledefendant was in the house, Camacho's wallet was taken from inside the house. When the policeapprehended defendant, he had Camacho's wallet in his possession. Based on these facts, the jurycould reasonably infer that defendant took the wallet from Camacho's presence while threateningCamacho with the gun. This was sufficient to prove defendant's guilt of armed robbery beyond areasonable doubt as a principal.

Finally, any error in People's instruction No. 15 was harmless. Instructional errors arereviewed under a harmless error analysis. People v. Dennis, 181 Ill. 2d 87, 95 (1998). Under thisanalysis, an error in a jury instruction is deemed harmless where the result of the trial would not havebeen different if a proper jury instruction had been given. People v. Johnson, 146 Ill. 2d 109, 137(1991).

In this case, the State argued defendant's guilt based on an accountability theory and includedan accountability instruction in the jury instructions as People's instruction No. 11. The evidenceof defendant's guilt as an accomplice was overwhelming. The addition of the accountability phrasein People's instruction No. 15 would only have reinforced the accountability instruction that wasgiven to the jury. Based on this record, we conclude that the result of the trial would not have beendifferent if the accountability phrase had been included in People's instruction No. 15. Therefore,to the extent that People's instruction No. 15 was defective, the error was harmless.

For all these reasons, we conclude that defendant has failed to show that he is entitled to thereversal of his conviction of armed robbery on the ground of instructional error.

We now turn to defendant's contention that his conviction of home invasion must be reversedbecause of an instructional error. As he did with respect to his conviction of armed robbery,defendant again argues that because of an instructional error the jury could not convict him of homeinvasion as an accomplice. Defendant also asserts that he was not proved guilty beyond a reasonabledoubt of home invasion as a principal.

The instruction that defendant claims was defective with respect to the home invasion chargewas People's instruction No. 13. That instruction tracked the language of IPI Criminal 4th No. 11.54,which sets out the propositions that the State must prove to sustain the charge of home invasion. SeeIPI Criminal 4th No. 11.54. The related committee note is identical to the committee note in IPICriminal 4th No. 14.06 (the instruction regarding armed robbery) with respect to the insertion of anaccountability phrase in the instruction when accountability is an issue. IPI Criminal 4th No. 11.54,Committee Note, at 534. Our analysis of defendant's contention that his conviction of home invasionmust be reversed due to an instructional error is therefore directly parallel to our analysis of thealleged instructional error related to defendant's armed robbery conviction.

We agree with defendant that when read in isolation People's instruction No. 13, without theaccountability phrase, is arguably defective because accountability was an issue in this case. However, we again note, as we did in our analysis of the armed robbery instruction, that People'sinstruction No. 11 was given to the jury and instructed the jury as to accountability. As with thearmed robbery instruction, the jury could and should have read People's instruction No. 11 inconjunction with People's instruction No. 13. As with the armed robbery instruction, we believe thatreading People's instruction No. 13 in conjunction with People's instruction No. 11 ameliorated anyerror in People's instruction No. 13 that stemmed from the failure to include the accountabilityphrase in People's instruction No. 13. Therefore, based on the instructions the jury was given, thejury could have properly convicted defendant of home invasion as an accomplice.

Unlike the armed robbery, we agree with defendant that the evidence was not sufficient toprove him guilty of home invasion beyond a reasonable doubt as a principal. However, like thearmed robbery, even assuming that People's instruction No. 13 was defective and that People'sinstruction No. 11 did not ameliorate the defect, any error was harmless.

The evidence of defendant's guilt of home invasion as an accomplice was overwhelming. The uncontroverted evidence showed that defendant, who was not a police officer acting in the lineof duty, knowingly entered Camacho's dwelling place without authority, knew Camacho was present,and was armed with a handgun. In addition, defendant, or one of his accomplices, used force onCamacho by striking Camacho in the head causing him to suffer a laceration.

As with the armed robbery, the State argued defendant's guilt of home invasion based on anaccountability theory and included an accountability instruction in the jury instructions as People'sinstruction No. 11. The addition of the accountability phrase in People's instruction No. 13 wouldhave merely reinforced the accountability instruction that was given to the jury. Based on thisrecord, we conclude that the result of the trial would not have been different if the accountabilityphrase had been included in People's instruction No. 13. Therefore, to the extent that People'sinstruction No. 13 was defective, the error was harmless.

For these reasons, we conclude that defendant has failed to show that he is entitled to thereversal of his conviction of home invasion on the ground of instructional error.

Defendant next contends that we must reverse his conviction of unlawful use of a weaponby a felon because the conviction violated the one-act, one-crime rule. Defendant posits that a singleact, his possession of a gun, was a common element of both the charge of home invasion and thecharge of unlawful use of a weapon by a felon. Defendant argues that conviction of both offenseswould therefore violate the one-act, one-crime rule.

Our supreme court announced the one-act, one-crime rule in People v. King, 66 Ill. 2d 551(1977), when it stated:

"Prejudice results to the defendant only in those instances where more than oneoffense is carved from the same physical act. Prejudice, with regard to multiple acts, existsonly when the defendant is convicted of more than one offense, some of which are, bydefinition, lesser included offenses. Multiple convictions and concurrent sentences shouldbe permitted in all other cases where a defendant has committed several acts, despite theinterrelationship of those acts. 'Act,' when used in this sense, is intended to mean any overtor outward manifestation which will support a different offense. We hold, therefore, thatwhen more than one offense arises from a series of incidental or closely related acts and theoffenses are not, by definition, lesser included offenses, convictions with concurrentsentences can be entered." King, 66 Ill. 2d at 566.

In People v. Rodriguez, 169 Ill. 2d 183 (1996), the court reaffirmed and clarified the one-act,one-crime rule. The court reiterated the definition of "act" set out in King and stated that a personcan be guilty of multiple offenses even if a common act is part of the offenses. Rodriguez, 169 Ill.2d at 188. The one-act, one-crime rule is applied in two steps. First, a court determines whether adefendant's conduct consisted of a single act or separate acts. If there was only one act, multipleconvictions arising out of the single act are improper. If there was more than one act, the court nextdetermines whether any of the offenses arising from the act are lesser included offenses. Aconviction is improper for a lesser included offense. Rodriguez, 169 Ill. 2d at 186.

In this case, to support his contention that the one-act, one-crime rule was violated, defendantrelies primarily on People v. Williams, 302 Ill. App. 3d 975 (1999). In Williams, the defendant wasa passenger in a car that was stopped for a traffic violation. The defendant was arrested pursuant toan outstanding warrant. A subsequent search of the car seat where the defendant had been sittingrevealed a gun and drugs that had been stuffed between the seat and the backrest. The defendant wasconvicted of armed violence based on possession of a controlled substance and unlawful possessionof a weapon by a felon and was sentenced on both convictions. The defendant appealed andcontended that his convictions violated the one-act, one-crime rule. Williams, 302 Ill. App. 3d at976-77. This court determined that the conduct giving rise to the multiple offenses was one act andreversed the defendant's conviction of unlawful possession of a weapon by a felon on the ground thatthe conviction violated the one-act, one-crime rule. Williams, 302 Ill. App. 3d at 978.

In People v. White, 311 Ill. App. 3d 374 (2000), the defendant, like the defendant inWilliams, was convicted of both armed violence based on the illegal possession of drugs andunlawful possession of a weapon by a felon. The defendant in White relied on Williams and arguedthat his convictions violated the one-act, one-crime rule. The Fourth District concluded thatWilliams was wrongly decided and declined to follow it. The court concluded that although thedefendant's possession of the gun was common to both offenses, and although the defendant mayhave possessed the gun and the drugs close in time, or even simultaneously, nonetheless thepossession of the gun and the possession of the drugs were separate acts. White, 311 Ill. App. 3dat 385-86. In explaining its conclusion, the White court stated:

"Although both offenses shared the common act of possession of a weapon, armed violencerequired the additional act of possession of the drugs, and unlawful possession of a weaponby a felon required the additional element of status as a felon. Accordingly, the two offensesdid not result from precisely the same physical act." White, 311 Ill. App. 3d at 386.

We believe that this case is more similar to White than it is to Williams. Here, both theoffenses of home invasion and unlawful use of a weapon by a felon shared the common act ofpossession of a weapon. However, in committing the offense of home invasion defendant engagedin the additional acts of entering a dwelling place he knew was occupied while armed with a gun. In addition, while in the dwelling place, defendant or one of his accomplices used force on anoccupant of the dwelling. In committing the offense of unlawful use of a weapon, defendant wasrequired to have and did have the status of being a felon. Based on this record, we conclude thatdefendant's conduct in committing the two offenses did not consist of a single act.

To complete our analysis of whether the one-act, one-crime rule was violated, we nextdetermine whether either offense was an included offense of the other. Our supreme court hasadopted the charging instrument approach in determining whether offenses are included offenses. People v. Novak, 163 Ill. 2d 93, 112-13 (1994). Under this approach, an offense is deemed anincluded offense only if the instrument charging the greater offense sets out, at a minimum, the mainoutline of the included offense. People v. McLaurin, 184 Ill. 2d 58, 104-05 (1998).

In this case, the indictment charging the offense of home invasion stated, in relevant part, thatdefendant and his codefendants:

"committed the offense of Home Invasion, in that each defendant, not a peace officer actingin the line of duty, knowingly and without authority entered the dwelling place of SaulCamacho *** having reason to know Saul Camacho to be present within the dwelling, andwhile armed with a dangerous weapon, a handgun, used force upon Saul Camacho withinthat dwelling place, in that the defendants struck Saul Camacho in the head causing him tosuffer a laceration."

The indictment charging defendant with the offense of unlawful use of a weapon by a felonstated that defendant:

"committed the offense of Unlawful Use of Weapons by a Felon, in that defendant, a personwho has been convicted of a felony, aggravated battery in Boone County, under the law ofIllinois, knowingly possessed on or about his person, a handgun."

The charging instrument for the offense of home invasion does not set out anything regardingdefendant's status as a convicted felon. The status of convicted felon is an essential element of thecharge of unlawful use of a weapon by a felon. Therefore, the charging instrument for the homeinvasion offense does not set out the main outline of the charge of unlawful use of a weapon by afelon. Accordingly, based on the charging instruments, the offense of unlawful use of a weapon bya felon is not an included offense of home invasion. Based on the charging instruments, homeinvasion clearly was not an included offense of unlawful use of a weapon by a felon.

For these reasons, we conclude that defendant has failed to show that he is entitled to thereversal of his conviction of unlawful use of a weapon by a felon on the ground that the convictionviolated the one-act, one-crime rule.

The judgment of the circuit court of Winnebago County is affirmed.

Affirmed.

RAPP and GALASSO, JJ., concur.