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20 October 2000

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PRESIDING JUSTICE COOK delivered the opinion of the

court:

Following a July 20, 1999, jury trial, defendantLeonard Mata was convicted of home invasion (720 ILCS 5/12-11(a)(West 1998)), intimidation (720 ILCS 5/12-6(a)(1) (West 1998)),criminal damage to government-supported property (720 ILCS 5/21-4(1)(a) (West 1998)), and domestic battery (720 ILCS 5/12-3.2(a)(West 1998)). Mata was sentenced to 11 years for home invasion,with concurrent sentences of 364 days for domestic battery, 5years for intimidation, and 3 years for damage to government-supported property. Mata appeals his home invasion conviction,arguing that the trial court erred when it gave a nonpatternissues instruction that "to sustain the charge of home invasion,the State does not have to prove that the injury occurred withinthe dwelling," and refused his nonpattern issues instruction that"the State must prove that the injury was inflicted on a personwho was within the dwelling when the defendant made his unauthorized entry." Mata also argues he was not proved guilty beyond areasonable doubt.

Mata had been involved in a stormy relationship withTina Merchant, who had borne him three children. The couple hadbeen separated when, on February 14, 1999 (Valentine's Day), Mataappeared at Merchant's apartment bearing flowers and candy. Whenshe saw Mata, Merchant closed the door and deadbolted it. Matabegan pounding on the door, eventually breaking it. Merchantfled through the back door of her apartment and began banging onthe door of a neighbor, asking for help. Mata entered the brokenfront door of the apartment, went through the apartment, andexited through the back door, catching Merchant in the courtyardwhere he began to beat her. Mata left the scene when Merchant'sneighbor became involved.

There is some dispute whether Merchant had fled herapartment before Mata broke in her door. Merchant testified oncross-examination, "By the time I hit my back door I heard a loudcommotion. I was assuming he had got the door broken in." Merchant conceded, however, that in a handwritten statement she had prepared four days after the incident, she had stated, "I wasbanging on the [neighbor's] back door when I heard [Mata] breakthe door in." On redirect, Merchant testified, "Everythinghappened so fast. I know I heard a crash. I don't know exactlyat what point it was, where I was at." It does appear that Matahad begun his attempt to break down the door before Merchantattempted to flee. Merchant apparently left the apartmentbecause she was afraid that Mata was coming inside.

Two elements are generally required for the offense ofhome invasion: (1) defendant "knowingly enters the dwellingplace of another when he or she knows or has reason to know thatone or more persons is present" (emphasis added) (720 ILCS 5/12-11(a) (West 1998)) and (2) "[i]ntentionally causes any injury toany person or persons within such dwelling place" (720 ILCS 5/12-11(a)(2) (West 1998)). We do not read section 12-11's knowledgerequirement to impose liability where the defendant mistakenlybelieves someone is present in the dwelling. Rather, we readthat language to avoid liability where the defendant has noreason to know that a dwelling is occupied; for example, wherethe defendant enters a deserted residence in which a trespasserhappens to be present. Does the requirement that the entry occur"when" defendant knows the victim is present require that thevictim be inside the dwelling at the precise moment the entryoccurred, or is it sufficient that the victim was inside thedwelling at about the same time the entry occurred?

Concern has been expressed that defendants who "flushsomebody out of the dwelling and cause injury, in an immediatesequence, within the area of the dwelling," might avoid liability. People v. Kolls, 179 Ill. App. 3d 652, 655, 534 N.E.2d 673,675 (1989). In Kolls, the defendant broke into his ex-wife'sapartment, followed his ex-wife's male friend to the landingoutside her apartment, and began punching and kicking him. Kolls, 179 Ill. App. 3d at 654, 534 N.E.2d at 674. The appellatecourt upheld the conviction of home invasion, holding that thewords, "persons within such dwelling place," merely identifiedthe required victims and did not impose any requirement that theinjury be inflicted within the dwelling. Kolls, 179 Ill. App. 3dat 656, 534 N.E.2d at 675; see also People v. Kovacs, 135 Ill.App. 3d 448, 481 N.E.2d 1071 (1985) (threats upon the persons inthe home, before the unauthorized entry, constituted home invasion).

Kolls did not refer to People v. Pettit, 101 Ill. 2d309, 461 N.E.2d 991 (1984). In Pettit, convictions for homeinvasion were reversed, where defendants forced their way into afirst-floor apartment, then took the occupants to a desertedsecond-floor apartment where they threatened and injured some ofthe individuals. Defendants were charged only with home invasionof the second-floor apartment; but when defendants invaded thatapartment, it was deserted. Pettit, 101 Ill. 2d at 311-12, 461N.E.2d at 992. The court held that "[t]he plain meaning of thehome-invasion statute requires the presence of one or morepersons within the dwelling at the time of the invasion." Pettit, 101 Ill. 2d at 313, 461 N.E.2d at 993. Pettit overruledPeople v. Pavic, 104 Ill. App. 3d 436, 447, 432 N.E.2d 1074, 1083(1982), which had held the basement of an apartment building waspart of the victim's "dwelling place." The defendant in Pavichad lured a woman from her apartment to the basement by flippingcircuit breakers. When the woman left her apartment to turn theelectricity back on, the defendant entered the apartment andraped the woman on her return. Pavic, 104 Ill. App. 3d at 438,432 N.E.2d at 1076-77.

The legislature responded to the specific problemaddressed in Pettit by amending the home invasion statute toinclude as an offender one who "knowingly enters the dwellingplace of another and remains in such dwelling place until he orshe knows or has reason to know that one or more persons ispresent." Pub. Act 85-1387,