People v. BoucheePeople v. Bouchee
- Reporters:
- ,
- Before:
- Jorgensen, Bowman, Burke
OPINION
Presiding Justice JORGENSEN delivered the judgment of the court, with opinion.
¶ 1 Following a bench trial, defendant, Cedric L. Bouchee, was convicted of home invasion (
¶ 2 Counts I and II of an indictment charged defendant with home invasion, in that he entered the dwelling of T.C., knowing her to be present, “and while within said dwelling, committed a criminal sexual assault against T.C. in that he put his penis in the vagina of T.C.” Counts III and IV charged defendant with criminal sexual assault in that “by the use of force said defendant placed his penis in the vagina of T.C.” The State dismissed counts II and IV.
¶ 3 Evidence at trial showed that on March 7, 2007, defendant and Mychal Postlewaite went to the home of T.C., a high school classmate. Defendant forced his way inside T.C.‘s house, pushed her down a hallway and into a bedroom, and forcibly had sex with her.
¶ 4 A jury found defendant guilty of both counts. The trial court sentenced him to six years’ imprisonment for home invasion and four years’ imprisonment for criminal sexual assault. The sentences had to be consecutive. See
¶ 5 Defendant argues that his conviction of criminal sexual assault must be vacated because, as charged in the indictment, criminal sexual assault is a lesser included offense of home invasion.
¶ 6 The supreme court established the one-act, one-crime rule in People v. King, 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977). Under that rule, multiple convictions are prohibited where the offenses are carved from the same physical act or where, with regard to multiple acts, one of the offenses is a lesser included offense of the other. King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838; see People v. Lindsey, 324 Ill.App.3d 193, 200, 257 Ill.Dec. 644, 753 N.E.2d 1270 (2001). However, multiple convictions “should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts.” King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838. “Act” is intended to mean any “overt or outward manifestation which will support a different offense.” King, 66 Ill.2d at 566, 6 Ill.Dec. 891, 363 N.E.2d 838.
“Decisions following King have explained that the one-act, one-crime doctrine involves a two-step analysis. [Citation.] First, the court must determine whether the defendant‘s conduct involved multiple acts or a single act. Multiple convictions are improper if they are based on precisely the same physical act. Second, if the conduct involved multiple acts, the court must determine
whether any of the offenses are lesser-included offenses. If an offense is a lesser-included offense, multiple convictions are improper.” People v. Miller, 238 Ill.2d 161, 165, 345 Ill.Dec. 59, 938 N.E.2d 498 (2010).
¶ 7 Here, defendant does not dispute that his conduct involved multiple acts. His home-invasion conviction was based not merely on his act of criminal sexual assault, but also on his act of entering the home. The entry was a distinct act that supported a different offense. See People v. Rodriguez, 169 Ill.2d 183, 188-89, 214 Ill.Dec. 451, 661 N.E.2d 305 (1996) (defendant properly convicted of aggravated criminal sexual assault and home invasion where, although both counts alleged a sexual assault, defendant‘s unlawful entry into victim‘s bedroom was a separate act supporting a second conviction).
¶ 8 Defendant argues, however, that criminal sexual assault is a lesser included offense of home invasion. In People v. Novak, 163 Ill.2d 93, 112-14, 205 Ill.Dec. 471, 643 N.E.2d 762 (1994), the supreme court held that the charging-instrument approach governs whether an uncharged offense is a lesser included offense of a charged offense. Initially, defendant based his argument on this approach, under which an offense is lesser included if it is described in the charging instrument. Novak, 163 Ill.2d at 106-07, 205 Ill.Dec. 471, 643 N.E.2d 762. However, after defendant filed his initial brief, the supreme court held in Miller, 238 Ill.2d at 173, 345 Ill.Dec. 59, 938 N.E.2d 498, that the abstract-elements approach applies where, as here, the issue is whether a charged offense is a lesser included offense of another charged offense. Under this approach, “If all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser-included offense of the second.” Miller, 238 Ill.2d at 166, 345 Ill.Dec. 59, 938 N.E.2d 498. Whether one charge is a lesser included offense of another is a legal question, which we review de novo. People v. Nunez, 236 Ill.2d 488, 493, 338 Ill.Dec. 877, 925 N.E.2d 1083 (2010).
¶ 9 As Miller explained, the abstract-elements approach is “the strictest approach in the sense that it is formulaic and rigid, and considers `solely theoretical or practical impossibility.’ In other words, it must be impossible to commit the greater offense without necessarily committing the lesser offense.” Miller, 238 Ill.2d at 166, 345 Ill.Dec. 59, 938 N.E.2d 498 (quoting Novak, 163 Ill.2d at 106, 205 Ill.Dec. 471, 643 N.E.2d 762). In Miller, the issue was whether retail theft was a lesser included offense of burglary. The court held that it was not, as “it is possible to commit burglary without necessarily committing retail theft.” Miller, 238 Ill.2d at 176, 345 Ill. Dec. 59, 938 N.E.2d 498.
¶ 10 Likewise, here, it is possible to commit home invasion without necessarily committing criminal sexual assault. See, e.g.,
¶ 12 Defendant asserts, however, that under section 12-11(a)(6) of the Criminal Code of 1961 (
“[A]pplying the [same-elements] test, felony murder (based on an armed robbery predicate) is the same offense as armed robbery because armed robbery does not contain an element that is not also contained in felony murder. Indeed, the United States Supreme Court has consistently treated the predicate felony for felony murder and the felony-murder charge itself as the `same offense’ under the Double Jeopardy Clause. [Citations.] That armed robbery is typically only one of several felonies that may be the predicate for felony murder does not matter because, under Harris [v. Oklahoma, 433 U.S. 682, 97 S.Ct. 2912, 53 L.Ed.2d 1054 (1977) (per curiam)], the predicate felony in a felony-murder prosecution is treated `as a species of lesser-included offense.‘” Lemke, 141 P.3d at 414 (quoting Illinois v. Vitale, 447 U.S. 410, 420, 100 S.Ct. 2260, 65 L.Ed.2d 228 (1980)).
Thus, we do not deny the viability of defendant‘s statement of the law as to felony murder. But the question remains whether felony murder is truly “analogous” to subsection (a)(6) home invasion. We conclude that it is not.
¶ 13 To be sure, like felony murder (see
“The assumption underlying the rule is that Congress ordinarily does not intend to punish the same offense under two different statutes. Accordingly, where two statutory provisions proscribe the `same offense,’ they are construed not to authorize cumulative punishments in the absence of a clear indication of contrary legislative intent.” (Emphases added.) Whalen v. United States, 445 U.S. 684, 691-92, 100 S.Ct. 1432, 63 L.Ed.2d 715 (1980).
Thus, a predicate of felony murder is “a species of lesser-included offense” (Vitale, 447 U.S. at 420, 100 S.Ct. 2260) only because that classification is deemed to comport with legislative intent. See Whalen, 445 U.S. at 694 n. 8, 100 S.Ct. 1432 (“We have simply concluded that, [under the relevant statute], Congress intended rape to be considered a lesser offense included within the offense of a killing in the course of rape.“). The question here, then, is whether treating a predicate of home invasion as an analogous species would contravene legislative intent. We hold that it would.
¶ 14 To commit felony murder, a person must attempt or commit a forcible felony “in performing the acts which cause the death.”
¶ 15 On the other hand, as the State points out, “[t]he gravamen of a home invasion offense is unauthorized entry.” People v. Braboy, 393 Ill.App.3d 100, 113, 331 Ill.Dec. 959, 911 N.E.2d 1189 (2009). As relevant here, that gravamen is complete when a person “without authority * * * knowingly enters the dwelling place of another when he or she knows * * * that one or more persons is present.”
¶ 16 Nor is the predicate necessarily “lesser.” Subsection (a)(6) home invasion is a Class X felony (
¶ 17 These facts demonstrate that the legislature could not have intended the result that defendant proposes. Assume that a defendant commits a home invasion predicated on a criminal sexual assault that is subject to the extended sentence. If criminal sexual assault is deemed “a species of lesser-included offense” (Vitale, 447 U.S. at 420, 100 S.Ct. 2260) of home invasion, the conviction of that offense would be vacated, even though the offense required (1) a criminal purpose separate
¶ 18 It is well settled that, in construing a statute, we may not presume that the legislature intended to create either absurdity or injustice. People v. Zimmerman, 239 Ill.2d 491, 497, 347 Ill. Dec. 648, 942 N.E.2d 1228 (2010). In this instance, defendant would have us presume that the legislature intended that a person could commit the gravamen of a home invasion, and receive punishment for same, but receive no separate punishment for even a more serious sex offense that he commits inside. This despite the fact that, in general, the legislature has insisted that sex offenses be punished not only separately, but consecutively. See
¶ 19 For these reasons, we conclude that criminal sexual assault is not a lesser included offense of home invasion. Thus, defendant‘s convictions of both offenses must stand.
¶ 20 The judgment of the circuit court of Kane County is affirmed.
¶ 21 Affirmed.
Justices BOWMAN and BURKE concurred in the judgment