January 12,2001

JUSTICE HUTCHINSON delivered the opinion of the court:

In June 1995 defendant, Vilaysanh Chanthaloth, was charged byindictment with the offenses of first-degree murder (720 ILCS 5/9--1(a)(1), (a)(2), (a)(3) (West 1994)), residential burglary (720ILCS 5/19--3 (West 1994)), and home invasion (720 ILCS 5/12--11(a)(2) (West 1994)). Following a jury trial, the jury acquitteddefendant of the murder charges but found him guilty of committingthe offenses of residential burglary and home invasion. The trialcourt sentenced defendant to an extended 40-year prison term on theconviction of the offense of home invasion and a consecutive 4-yearterm on the conviction of the offense of residential burglary. Defendant appeals his convictions and sentences. We affirm inpart, vacate in part, and remand.

The victim in the present case is Bryce Dauenbaugh, who was 74years old, suffered from diabetes, poor eyesight, and high bloodpressure, and took insulin injections and other medications. Hisleft leg had been amputated approximately four to five inches belowthe knee. The victim kept cash and important papers in a steel boxin the bedroom of his home; he also kept two rifles and a handgunin the house. During the early morning hours of February 17, 1995,defendant and two others entered the victim's residence, beat thevictim, and took his cash and weapons. The victim died as a resultof the beating.

Lance Dauenbaugh, the victim's son, testified at trial that,one or two weeks prior to the victim's death, he looked in the boxand observed that it contained approximately $3,600 in cash, mostlyin $100 bills. In February 1995 Lance was planning a vacation inFlorida. During his absence, he arranged for a friend, TeresaO'Connor, to look after his father.

Teresa O'Connor testified that she checked in on the victimwhile Lance Dauenbaugh was in Florida. On February 16, 1995,O'Connor stopped in to see the victim and stayed for approximately15 minutes. The following day she went to the victim's house atapproximately 4 p.m. As she entered the house, she noticed thatthe house was cold and papers were strewn on the floor. She couldsee a metal box and a screwdriver on the kitchen table. O'Connorcalled out the victim's name and, receiving no response, called911. She remained at the victim's house until the police arrived. On cross-examination, O'Connor recalled that the victim did notlock his doors.

Richard Wilkinson, Ogle County chief deputy sheriff, testifiedthat on February 21, 1995, he and Officer Clint Myers intervieweddefendant. Wilkinson noticed that defendant's hands were swollenand bruised; defendant told him that he had a fight with hisgirlfriend. Wilkinson told defendant that he had earlier spokenwith Daniel Weeks, another suspect, and recounted Weeks's versionof the events to defendant. Defendant agreed to give an audiotapedstatement to Wilkinson.

Defendant's statement reflected that, on the night of February16, 1995, he and Jayson Spriggle were in a bar until 1:30 a.m. While at the bar, defendant and Spriggle played pool and drankalcohol. He and Spriggle left the bar because defendant ran out ofmoney. Spriggle told defendant that he wanted to get some moneyand that he knew of a place where he could get money. Spriggletold defendant that he did not know where it was but that Weeksknew where it was. After leaving the bar, they picked up Weeksbecause he knew where the victim lived. Defendant told theofficers that he was "so drunk man."

While they were talking about the money, defendant askedSpriggle whether it would be necessary to hurt the man. Spriggleresponded that they would just go in. After they picked up Weeks,they drove to the victim's house. Defendant told the officers thatWeeks was "straight," but that he and Spriggle were "wasted bigtime."

When they arrived at the victim's house, the door was open. Weeks entered first because he was familiar with the house. Thevictim awoke and asked who was there. The victim saw defendant,and defendant told Weeks and Spriggle that the victim needed to beput in a room. Defendant told the officers that he was not abusiveto the victim, but as he attempted to tie up the victim with wiresfrom the vacuum cleaner, the victim was screaming, so defendant hithim twice. Spriggle also hit the victim; they all tried to tie upthe victim but were unsuccessful. They were unable to move thevictim into the bathroom but only to the side of the bathroom. When asked who hit the victim, defendant told the officers that hethought Spriggle hit him with the gun. Defendant also told theofficers that no one kicked the victim and no weapons wereinvolved. Defendant, Spriggle, and Weeks left with guns andapproximately $3,000 cash, which they divided equally. Uponleaving the scene, defendant drove into a ditch. Because of theaccident, defendant needed to replace the windshield and tradetires.

Officer Myers testified that he responded to a 911 call andproceeded to the victim's house. When he entered the victim'sresidence, he noticed clothes in the hallway that appeared to bestained with blood, some shoe prints, and blood on the tile floor. He saw the victim with his head and shoulder area up against thebathroom door and his leg propped up against the bath tub. Thevictim's body contained bruises to his back area as well as sometype of trauma to the skull area. The victim was covered in blood,and a shirt was tied off to the toilet seat. There was also anelectric cord under the victim.

The State's next witness was Mary Hopp, who testified that,between 3:30 and 4 a.m. on February 17, she was delivering copiesof the Rockford Register Star. During her route, she noticed a carin the field. She stated that the car was "light colored" andthere were some people in front of the car. She said the car wasapproximately 100 feet from the road. She continued her route andcalled the police to get them some help.

Anisa Jackowski, defendant's girlfriend, testified that, onthe night of February 16, 1995, she and defendant had an argument. She went into the bathroom, and defendant pounded on the bathroomdoor "really hard" several times. Defendant left, and whenJackowski went to bed at approximately 11 p.m., defendant had notyet returned. She awoke at approximately 5:30 a.m. when she hearda "thumping noise" coming from the basement. Jackowski went downto the basement and she saw shoes and clothes in the dryer. Defendant and Spriggle were present. Jackowski went back to bedand woke up at 9 a.m. Defendant and Spriggle were still in thehouse. She noticed that the car, which belonged to defendant'smother, was in the driveway and had a cracked windshield. Defendant and Spriggle left in the car, and when they returned acouple of hours later, the windshield was fixed.

Jackowski further testified that defendant was actingdifferently and was quieter than usual. When she asked him why hewas behaving differently, defendant recounted to her what hadhappened. Defendant told Jackowski that they took approximately$3,000 and split it three ways. Defendant showed her eight $100bills.

Jackowski testified that defendant told her he needed todispose of his clothes and guns and she offered to help him. Shesaw defendant try unsuccessfully to burn some gloves. They alsodrove toward Wisconsin, where they threw the guns in a river nearBeloit, Wisconsin. She told defendant that, if questioned, shewould say she was with him at the time of the incident. She alsonoticed that his nose was bruised and had some blood on it and hishand looked swollen. Defendant further told her that Sprigglestruck the victim with a rifle. Defendant told her that he did notbeat the victim. Jackowski testified that defendant was stilldrunk when she saw him in the early morning hours of February 17,1995.

Scott Roach testified that he had known defendant forapproximately 10 years. Roach and defendant worked together atReliability Machine at the time of the incident. Defendant askedRoach if he wanted to trade tires with him because he was taking atrip to see his family in Janesville. Defendant offered Roachapproximately $30 for the tires, and Roach accepted.

Dr. Larry Blum, a forensic pathologist, testified regardingthe extent of the victim's injuries, which included externalinjuries as well as signs of heart disease. Blum opined that thevictim died of "head and neck trauma due to multiple blunt forceinjury resulting from a beating." He testified that he found noevidence of stabbing, strangulation, or smothering.

Bonnie Toms testified that, on the night of February 17, 1995,she was at a party where she saw Weeks. She spoke with him for afew minutes about money. During the conversation, Weeks showed herhis wallet, which contained so much cash he could not close it. Weeks had another stack of $100 bills sticking out of his coatpocket. She testified that she had never seen Weeks with that muchcash before.

Michael Lockinger testified on behalf of defendant. Lockingerwas a former bouncer of a night club and had often seen people whowere intoxicated. He testified that he saw defendant atapproximately 11 p.m. on February 16, 1995, at a bar. He spokewith defendant and determined from observing him that he was verydrunk. At approximately 1:30 a.m., Lockinger told defendant thathe should not be driving.

Defendant also testified regarding his version of the eventsof February 16 and 17, 1995. His testimony was substantiallysimilar to that of the officers to whom he offered his statement. Upon returning home, he and Spriggle washed their clothes. Defendant later passed out and could not recall when he awoke. Later on February 17, defendant and Spriggle fixed the windshieldand changed the tires. Defendant later discussed the incident withhis girlfriend. He told her that he, Spriggle, and Weeks went toOregon to get some money. He told her that Spriggle had told himthat, after defendant and Weeks went to the car, Spriggle returnedto the house, got into a fight with the victim, and hit him with agun.

The parties held an instructions conference and defendanttendered proposed instructions on the affirmative defense ofvoluntary intoxication. At the conference, the State argued thatdefendant possessed the presence of mind to form the specificintent to commit the offenses of home invasion and residentialburglary. The State further argued that defendant admitted thatthey planned to drive to the victim's residence to commit aburglary; he drove his car through the City of Rockford obeyingtraffic laws, stop signs, and traffic lights and did not draw theattention of the police; he drove from Rockford to a rural area ofOregon with no obstacles; and he had the presence of mind prior tothe crime to ask Weeks for a glove so he would not leavefingerprints. The State also argued that defendant's testimonyreflected that he had a clear and absolute recollection of theevents that occurred.

The trial court ruled that defendant's intoxication was not soextreme as to suspend his power of reason and render him incapableof forming a specific intent. Speaking also to defendant's requestfor a second-degree murder instruction based on voluntaryintoxication, the trial court relied on People v. Smith, 124 Ill.App. 3d 720 (1984), and ruled that voluntary intoxication would notreduce the crime of first-degree murder to second-degree murder. Defense counsel then tendered the trial court a voluntaryintoxication instruction, which stated:

"A voluntarily intoxicated person is criminallyresponsible for his conduct unless his intoxication is soextreme as to suspend the power of reason and render himincapable of forming a specific intent which is an element ofthe offense of first [degree] murder, second degree murder,involuntary manslaughter, home invasion, residential burglaryand criminal trespass to residence."

See Illinois Pattern Jury Instructions, Criminal, No. 24--25.02(4th ed. 2000).

Following arguments of counsel, the trial court rejecteddefendant's proposed instruction. Thereafter, the parties gavetheir closing arguments and the trial court instructed the jury. The jury acquitted defendant of the charge of murder but convictedhim of both home invasion and residential burglary. The trialcourt sentenced defendant to an extended term of 40 years'imprisonment for the offense of home invasion and a consecutiveterm of 4 years' imprisonment for the offense of residentialburglary. Following the denial of defendant's posttrial motion,defendant timely appeals.

Defendant first contends that the trial court erred when itrefused to instruct the jury on the affirmative defense ofvoluntary intoxication because substantial evidence existeddemonstrating his intoxication. In Illinois, voluntaryintoxication is a defense if the defendant can demonstrate that sheor he, as a result of the intoxication, was unable to form thespecific intent necessary for the crime. 720 ILCS 5/6--3 (West1998); People v. Crosby, 243 Ill. App. 3d 1083, 1085 (1993). Merely being drunk or intoxicated is insufficient to create adefense. People v. Kaczmarek, 243 Ill. App. 3d 1067, 1082 (1993). A trial court is vested with the discretion to determine whether totender or refuse to tender a defense instruction on intoxication. People v. Arnold, 104 Ill. 2d 209, 214 (1984).

We find the recent case of People v. Smith, No. 86775(December 1, 2000), instructive. In Smith, the defendant sought anintoxication defense to reduce his legal culpability based on hisingestion of drugs and alcohol at the time of the murder. Oursupreme court stated that, even if the jury believed that thedefendant had ingested drugs on the day of the murder, it could notconclude that the defendant did not intend to cause the death ofthe victim. Smith, slip op. at 10. The Smith court considered thedefendant's statement to the police, including his ability torecall the events of the murder when he was giving his statement tothe police, and testimony from other witnesses. The Smith courtnoted that the defendant's evidence regarding his intoxication wasspeculative and inconclusive and, in affirming his conviction,concluded that the defendant's intent was apparent from theevidence presented. Smith, slip op. at 11.

In the present case, defendant's voluntary intoxicationdefense is not supported by the evidence. The record shows thatdefendant was consuming alcohol on the night of the crime. However, defendant failed to present sufficient evidence that hisintoxication was so extreme that he could not act in such a way asto commit the offenses of home invasion and residential burglary. Defendant was the operator of the vehicle; defendant drove fromRockford to the victim's home in rural Oregon. Defendant admittedthat he drove with the purpose of going to the victim's home andtaking his money. Defendant admitted that he entered the victim'shome and took part in beating the victim. Afterward, defendant hadthe presence of mind to flee the scene, change his dirty andbloodied clothes, repair the cracked windshield, and trade histires. After defendant committed the offenses of which he waslater convicted, he related the events to Jackowski. Days later hegave a detailed statement to police, discussing the eventsoccurring before, during, and after the murder.

If the record indicates that a defendant acted with anypurpose or rationality, the defense of voluntary intoxication isnot available. People v. McCoy, 281 Ill. App. 3d 576, 584 (1996),citing People v. Martin, 233 Ill. App. 3d 466, 468 (1992). Ourreview of the record in the present case and the relevant case lawpersuades us defendant's testimony presented no reasonablelikelihood that he established the defense of voluntaryintoxication. Accordingly, we hold that the trial court's refusalto tender the voluntary intoxication jury instruction was not anabuse of discretion.

Defendant next contends that his conviction of and sentencefor the offense of residential burglary should be vacated becauseresidential burglary is a lesser-included offense of home invasion. Defendant relies on People v. McLaurin, 184 Ill. 2d 58 (1998), insupport of his contention. A defendant is prejudiced when morethan one offense is carved from the same physical act. People v.King, 66 Ill. 2d 551, 566 (1977). When a judgment is entered upona defendant who is convicted of two crimes arising from one act,the rule in Illinois is that the conviction of the more seriousoffense will stand and the conviction of the less serious offensemust be vacated. People v. Garcia, 179 Ill. 2d 55, 71 (1997). TheMcLaurin court determined that the offenses of residential burglaryand home invasion were predicated upon the same physical act--anunauthorized entry into the victim's home--and vacated thedefendant's conviction of and subsequent sentence for the offenseof residential burglary. McLaurin, 184 Ill. 2d at 106.

The State confesses error on this issue and acknowledges thatthe offenses of home invasion and residential burglary were carvedfrom the same physical act of entering the victim's residence. Pursuant to the State's confession of error and under theprinciples enunciated in McLaurin, we vacate defendant's convictionof and sentence for residential burglary. Defendant's convictionof the more serious offense, home invasion, will stand.

In his supplemental brief on appeal, defendant challenges asunconstitutional the statute authorizing the trial court to imposean extended-term sentence. Defendant was convicted of homeinvasion, a Class X felony. Ordinarily, a Class X felony carriesa term of 6 to 30 years' imprisonment (see 730 ILCS 5/5--8--1(a)(3)(West 1998)), but an offender subjected to extended-term sentencingmay be sentenced to 30 to 60 years' imprisonment (see 730 ILCS 5/5--8--2(a)(2) (West 1998)). The trial court determined thatstatutory aggravating factors were present that subjected defendantto an extended-term sentence under section 5--8--2 of the Code (see730 ILCS 5/5--8--2(a)(2) (West 1998)). The trial court sentenceddefendant to an extended term of 40 years' imprisonment. The trialcourt found that three aggravating factors were present: (1) thecrime was exceptionally brutal and heinous (see 730 ILCS 5/5--5--3.2(b)(2) (West 1998)), (2) the victim was over the age of 60 (see730 ILCS 5/5--5--3.2(b)(4)(ii) (West 1998)), and (3) the victim was physically handicapped at the time of the offense (see 730 ILCS5/5--5--3.2(b)(4)(iii) (West 1998)). Defendant argues that hisextended-term sentence must be vacated in light of the UnitedStates Supreme Court decision of Apprendi v. New Jersey, 530 U.S.___, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).

In Apprendi, the Supreme Court overturned a sentencing schemethat allowed a state judge to enhance a defendant's penalty beyondthe otherwise prescribed statutory maximum where the judge found bya preponderance of the evidence that certain aggravating factorswere present. The defendant Apprendi had been indicted on 23counts relating to four separate shootings and the unlawfulpossession of various firearms. As part of a plea agreement,Apprendi pleaded guilty to two counts of unlawful possession in thesecond degree and one count of unlawful possession in the thirddegree. Under New Jersey law, a conviction of a second-degreecrime carries a penalty of 5 to 10 years. The prosecution moved toenhance Apprendi's sentence on one of the counts of unlawfulpossession in the second degree under New Jersey's "hate crime"statute. The trial court found, by a preponderance of theevidence, that Apprendi had acted with a purpose to intimidate, afinding that enhanced his sentence to 10 to 20 years. The trialcourt sentenced Apprendi to 12 years on that count with thesentences on the other two counts to run concurrently. The SupremeCourt of New Jersey affirmed Apprendi's sentence. The UnitedStates Supreme Court reversed and held that "any fact thatincreases the penalty for a crime beyond the prescribed statutorymaximum must be submitted to a jury, and proved beyond a reasonabledoubt." Apprendi, 530 U.S. at ___, 147 L. Ed. 2d at 455, 120 S.Ct. at 2362-63.

Prior to Apprendi, the Supreme Court's most recent decision inthis area was Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d311, 119 S. Ct. 1215 (1999). In Jones, the Court considered achallenge to a conviction under the federal carjacking statute (18U.S.C.