No. 2--02--0999

Following a jury trial in the circuit court of Kane County, defendant, Tobias L. Dryden, wasconvicted of two counts of home invasion (720 ILCS 5/12--11 (a)(3) (West 2000)) and one countof unlawful use of a weapon by a felon (720 ILCS 5/24--1.1 (West 2000)). He was acquitted of twocounts of armed robbery. 720 ILCS 5/18--2 (West 2000). Defendant was sentenced to 21 years'imprisonment. His sentence included a 15-year enhancement, which was triggered by his possessionof a firearm during the commission of the home invasion. See 720 ILCS 5/12--11(a)(3), (c) (West2000). Defendant now appeals, raising three issues. First, he asserts that he was not proven guiltyof home invasion beyond a reasonable doubt. Second, he contends that section 12--11(a)(3) andsection 12--11(c) of the Criminal Code of 1961 (Code) (720 ILCS 5/12--11(a)(3), (c) (West 2000)),which together mandated the addition of 15 years to his sentence, violate the Illinois Constitution. Finally, he argues that one of his convictions of home invasion must be vacated pursuant to the one-act, one-crime rule (see People v. King, 66 Ill. 2d 551, 566 (1977)). We agree with defendantregarding his latter two contentions. Accordingly, we vacate one of defendant's home-invasionconvictions and we reverse his sentence and remand for a new sentencing hearing.

I. BACKGROUND

Defendant's two convictions of home invasion stem from an incident occurring on September23, 2001. Defendant testified that he went to the apartment of Isaac Gonzalez to purchase marijuana. He knocked on the door, and Raechel Peters, Gonzalez's girlfriend, answered. Defendant andGonzalez went to the kitchen. Defendant added that he was nervous because he owed Gonzalezmoney. Defendant told Gonzalez how much marijuana he wanted. Gonzalez told defendant to showhim his money. Defendant showed Gonzalez a $100 bill. Gonzalez gave defendant $20 worth ofmarijuana and attempted to keep the rest of the money. Defendant grabbed the $100 bill and toldGonzalez that he would settle his debt later. Defendant stated that he then attempted to leave theapartment. Gonzalez said something to a man in the living room, and they followed defendant outof the apartment.

Raechel Peters testified that, on September 23, 2001, she was watching television in her andGonzalez's apartment. Someone knocked at the door, and Gonzalez answered. Gonzalez admitteddefendant into the apartment. After defendant entered, Peters observed him do something to the doorlock. Defendant then followed Gonzalez into the kitchen. After about two minutes, defendant cameout of the kitchen. Peters stated that two men then entered the apartment. One of them grabbedGonzalez by the neck and held a gun to him. Defendant was holding a silver gun. The man holdingGonzalez patted down Gonzalez's pockets, and Gonzalez stated that he had already given everythingto defendant. The man attempted to pull Gonzalez into the hallway outside the apartment, butGonzalez managed to close the door as defendant and the two other men left. Travis Young andLinda Paredes were also present in the apartment. They confirmed portions of Peters' testimony, withsome minor discrepancies.

Finally, Gonzalez testified. He stated that he, Paredes, Young, and Peters were watchingwrestling when he heard a knock at the door. Gonzalez answered and admitted defendant into theapartment. Gonzalez and defendant went to the kitchen. Gonzalez testified that he looked awaybriefly and when he looked back, defendant had a gun. Gonzalez stated that he tried to give somemoney to defendant. Defendant went to the apartment's door, opened it, and two other men entered. One of the men grabbed Gonzalez by the shirt and pointed a gun at his stomach. Gonzalez gave themsome additional money. The men then tried to drag Gonzalez into the hall. As soon as they got outin the hall, defendant and one of the men ran away. Gonzalez managed to break free from the thirdman and ran back inside.

The jury convicted defendant of two counts of home invasion (720 ILCS 5/12--11(a)(3)(West 2000)) and one count of unlawful use of a weapon by a felon (720 ILCS 5/24--1.1 (West2000)). The trial court initially sentenced defendant to 11 years' imprisonment. The State moved tovacate the sentence because it did not include a 15-year enhancement as mandated by sections 12--11(a)(3) and 12--11(c) of the Code. The trial court granted the motion and imposed a 21-yearsentence. Defendant now appeals.

II. SUFFICIENCY OF THE EVIDENCE

Defendant first contends that he was not proven guilty beyond a reasonable doubt of homeinvasion. Defendant points out that, to sustain a conviction of home invasion, the State must provethat he entered the victim's dwelling "without authority." 720 ILCS 5/12--11 (a) (West 2000). Theevidence showed that the victim admitted defendant into his dwelling. Defendant recognizes that thelimited-authority doctrine provides an exception where, though he was admitted into the dwelling,he may still be convicted of home invasion. Specifically, the doctrine holds that where a defendantpossessed a criminal intent at the time of the entry, the victim's consent to the entry is vitiated on thetheory that, had the victim known the defendant's true intentions, the victim would not have allowedthe entry. See, e.g., People v. Hill, 294 Ill. App. 3d 962, 973 (1998). Defendant argues that the Statefailed to prove that he possessed a criminal intent at the time the victim admitted him into the victim'sdwelling. We disagree.

In assessing a challenge to the sufficiency of the evidence, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact couldfind the essential elements of the crime beyond a reasonable doubt." People v. Young, 312 Ill. App.3d 428, 430 (2000). A criminal conviction will not be set aside unless the evidence is sounsatisfactory as to create a reasonable doubt regarding the defendant's guilt. People v. O'Neill, 272Ill. App. 3d 178, 180 (1995). Viewing the record in the light most favorable to the State, defendanthas failed to meet this standard.

Defendant challenges the jury's verdict as it pertains to whether he possessed a criminal intentwhen he entered the victim's home. Thus, the relevant inquiry focuses upon whether there is evidencein the record from which the jury could draw such a conclusion. Such evidence does exist. Two co-perpetrators initially waited in the hall while defendant entered. The victim's girlfriend testified thatshe saw defendant turn around and play with the lock on the door after he entered. Defendant'scohorts entered the apartment after defendant had been inside for a short time. From this evidence,the jury could reasonably conclude that the crime had been planned in advance. Particularly relevanthere is the testimony that defendant did something with the lock on the door, from which the jurycould infer that he insured that the door was unlocked so his accomplices could enter. Obviously,if the crime was planned before defendant entered the dwelling, defendant possessed the intent tocommit it at the time of the entry.

Defendant also contends that the verdict cannot stand because, although the jury found himguilty of home invasion, it acquitted him of two counts of armed robbery (720 ILCS 5/18--2 (West2000)). Defendant contends that these acquittals amount to a finding that he did not intend to robthe victim. Defendant does not use the term, but, in essence, he is advancing an inconsistent-verdictargument. See, e.g., People v. Rhoden, 299 Ill. App. 3d 951, 957 (1998). However, verdicts ofacquittal and conviction are not inconsistent where the crimes at issue involve different elements. People v. Hairston, 46 Ill. 2d 348, 362 (1970). With respect to a charge of home invasion, thelimited-authority doctrine requires that defendant "possessed the intent to perform a criminal act ***at the time of entry." Hill, 294 Ill. App. 3d at 973. A robbery charge requires the State to prove amental state of at least recklessness. People v. Jones, 149 Ill. 2d 288, 297 (1992) (holding that "eitherintent, knowledge or recklessness is an element of robbery even though the statutory definition ofrobbery does not expressly set forth a mental state"). In fact, the armed-robbery indictment chargedthat defendant knowingly took the victim's property. Because two different mental states were atissue in the home-invasion and armed-robbery counts, defendant cannot prevail on this argument.

Therefore, we cannot say that the evidence regarding defendant's intent at the time of theentry is so unsatisfactory as to create a reasonable doubt of his guilt. Defendant was proven guiltybeyond a reasonable doubt, and the judgment of the trial court is affirmed on this point. As weexplain below, however, one of the convictions of home invasion must be vacated pursuant to theone-act, one-crime rule.

III. THE CONSTITUTIONALITY OF THE 15-YEAR SENTENCE ENHANCEMENT

Defendant next argues that sections 12--11(a)(3) and 12--11(c) of the Code (720 ILCS 5/12--11(a)(3), (c) (West 2000)) violate the proportionate penalties clause of the Illinois Constitution (Ill.Const. 1970, art. I,