People v. Priest
State: Illinois
Court: 4th District Appellate
Docket No: 4-96-1016
Case Date: 07/22/1998
NO. 4-96-1016
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
KENNETH O. PRIEST, ) No. 96CF182
Defendant-Appellant. )
) Honorable
) William T. Caisley,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
After a jury trial, defendant Kenneth Priest was
convicted of home invasion, domestic battery, criminal trespass
to a residence, and violation of an order of protection. 720
ILCS 5/12-11(a)(2), 12-3.2(a)(1), 19-4(a), 12-30(a)(1) (West
1996). The trial court vacated the judgment of conviction for
criminal trespass to a residence and entered judgment on the
remaining three counts. The court sentenced defendant to concur-
rent terms of eight years' imprisonment on the home invasion
conviction, and 364 days' incarceration on both the domestic
battery conviction and the conviction for violation of an order
of protection. Defendant's appeal follows denial of his
posttrial motions. We affirm.
Peggy Priest is defendant's ex-wife, having been
divorced from him since July 1995. On February 21, 1995, Peggy
obtained an emergency order of protection against defendant for
herself and her two children, also defendant's children. Theemergency order expired on March 9, 1995, and the court issued a
plenary order of protection effective March 9, 1995, until March
9, 1997. Defendant had notice of the protective order.
On February 9, 1996, Peggy rented a residence at 514
East Market Street in Bloomington. Her name was the only one on
the lease. Peggy and the children were asleep when, around 2
a.m., she was awakened by a loud knocking at the front door.
Peggy opened the door to find defendant, whom she believed was
drunk. Peggy told defendant to go home, she shut the door, and
went back to bed.
As Peggy drifted back to sleep, she saw defendant in
her room. She told him to go home. Defendant asked Peggy if
they could get back together, a proposition she refused. Defen-
dant became angry, climbed onto her bed, straddled her, and put
his hands around her throat. Defendant called her names and
stated he wanted to have sex with her. Defendant choked Peggy a
couple of times. He had his hands tight around her throat,
hurting her, and cutting off her air. Defendant slapped her
across her head and punched her in the jaw. Defendant told Peggy
that he could kill her if he wanted to and that, if she continued
to see her friend, he would kill him and beat her. Peggy called
the police, but defendant left her residence before they arrived.
Officer Fazio of the Bloomington police department
arrived at Peggy's home sometime after 2 a.m. that night. Peggy,
crying hysterically, told Fazio defendant broke into her house
and beat her. Fazio observed "big, long, red streak marks ***
finger marks" on both sides of Peggy's neck. He also noticed
welts on her neck, redness on her left cheekbone, and swelling
around her eyes. Fazio found no signs of forced entry into the
home, but discovered the back door unlocked.
Defendant first argues he was not proved guilty beyond
a reasonable doubt of violating the order of protection. The
order provided:
"1. With respect to [Peggy and the two
children], [defendant] is prohibited from com-
mitting the following: physical abuse***.
2. [Peggy] is granted exclusive possession
of the residence and [defendant] shall not
enter or remain in the household or premises
located at: 404 N. West Street, LeRoy,
Illinois.
* * *
3. a. [Defendant] is ordered to stay
away from [Peggy] and other protected per-
sons***.
* * *
17. [Defendant] is further ordered
and/or enjoined as follows: no contact by
phone, mail or otherwise."
Defendant contends he did not violate the order of protection
because the address where Peggy resided on February 9, 1996, was
different from the address identified in the order. Defendant
asserts he was prohibited only from going to the 404 N. West
Street address.
The standard of review on appeal when considering
whether a defendant has been proved guilty beyond a reasonable
doubt is whether, after viewing the evidence in the light most
favorable to the State, "'any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt.'" (Emphasis in original.) People v. Eyler, 133 Ill. 2d
173, 191, 549 N.E.2d 268, 276 (1989), quoting Jackson v. Virgin-
ia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781,
2789 (1979). A person violates an order of protection of which
he has notice when he commits an act prohibited by a court in a
valid order of protection. People v. Gee, 276 Ill. App. 3d 198,
200, 658 N.E.2d 508, 510 (1995).
Defendant was proved guilty beyond a reasonable doubt
of violating the protective order. It is irrelevant that the
residence where Peggy lived when defendant attacked her was not
the residence identified in the order. On February 9, 1996,
defendant entered Peggy's residence, threatened her, hit and
choked her. The order of protection provided defendant (1) was
prohibited from physically abusing Peggy; (2) was to stay away
from her; and (3) was not to contact her by phone, mail, or
otherwise. Defendant violated these three provisions of the
order, none of which are location-specific provisions. Defendant
was charged with violating the order of protection in that he
physically abused Peggy, not that he only entered a specific
residence. "Neither victims nor courts need tolerate any viola-
tion of an order of protection." Gee, 276 Ill. App. 3d at 201,
658 N.E.2d at 510.
Defendant next contends his conviction for domestic
battery should be vacated because the same conduct supported his
convictions for both domestic battery and home invasion. Defen-
dant argues this violates the one act, one crime doctrine estab-
lished in People v. King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977).
Defendant raises this issue for the first time on
appeal. The State argues since he neither objected at trial nor
raised the claim in a posttrial motion, defendant has waived
review of this issue. An issue is waived on appeal unless a
defendant both makes an objection at trial and raises the issue
in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186,
522 N.E.2d 1124, 1130 (1988). The "plain error" doctrine is an
exception to the waiver rule, permitting a court on direct appeal
to take notice of plain errors and defects affecting a substan-
tial right that were not brought before the trial court. People
v. Owens, 129 Ill. 2d 303, 316, 544 N.E.2d 276, 281 (1989); 134
Ill. 2d R. 615(a). "[I]t 'is well established that in the inter-
est of justice, a reviewing court may consider all questions
which appear to be plain error or affect substantial rights of a
party.'" (Emphasis in original.) People v. Martin, 119 Ill. 2d
453, 458, 519 N.E.2d 884, 886 (1988), quoting People v.
Henderson, 119 Ill. App. 2d 403, 405, 256 N.E.2d 84, 85 (1970).
When a defendant argues for the first time on appeal that he was
improperly convicted of two offenses carved from the same act,
the question is waived, but the reviewing court may determine
whether plain error occurred. People v. Boastick, 140 Ill. App.
3d 78, 84, 488 N.E.2d 326, 330 (1986); see also People v.
Hausman, 287 Ill. App. 3d 1069, 1071-72, 679 N.E.2d 867, 869
(1997) (plain error when error is so fundamental that defendant
may have been denied a fair sentencing hearing). Defendant has
waived this issue as he did not raise it before the trial court.
However, we will address defendant's contention under the plain
error doctrine.
The legislature has expressed its intent that convic-
tions and punishment not be pyramided. "The court shall not
impose consecutive sentences for offenses which were committed as
part of a single course of conduct during which there was no
substantial change in the nature of the criminal objective." 730
ILCS 5/5-8-4(a) (West 1996). In 1988 the legislature added an
exception to that language, language making consecutive sentences
mandatory in some cases. Pub. Act 85-1030, 3, eff. July 1, 1988
(1988 Ill. Laws 200, 203-04). The supreme court has also estab-
lished antipyramiding rules: (1) it is improper to carve more
than one offense from the same act; and (2) when there are multi-
ple acts, it is improper to convict a defendant of both an
offense and a lesser included offense. People v. King, 66 Ill.
2d 551, 566, 363 N.E.2d 838, 844-45 (1977). It could be argued
that King was intended to address concurrent sentences and has no
application to consecutive sentences. See People v. Rodriguez,
169 Ill. 2d 183, 192-94, 661 N.E.2d 305, 309-10 (1996) (Heiple,
J., specially concurring). Nevertheless, the supreme court has
chosen to apply the King rules to mandatory consecutive sentenc-
es, where the statutory antipyramiding language quoted above has
no effect. Rodriguez, 169 Ill. 2d at 186-87, 661 N.E.2d at 307.
When applying King, a court first determines whether a
defendant's conduct consisted of a single physical act or multi-
ple acts. Multiple convictions are improper when they are based
on precisely the same physical act. However, if the defendant
committed multiple acts, the court determines whether any of the
offenses are lesser included offenses. If there are lesser
included offenses, multiple convictions are improper. Rodriguez,
169 Ill. 2d at 186, 661 N.E.2d at 306-07. An "act" is "any overt
or outward manifestation which will support a different offense."
King, 66 Ill. 2d at 566, 363 N.E.2d at 844-45.
Applying King to these facts, we conclude defendant's
conduct consisted of separate, multiple acts. The fact that
defendant unlawfully entered Peggy's home is an overt or outward
manifestation supporting the home invasion conviction, a separate
act from causing Peggy bodily harm, supporting the domestic
battery conviction. As long as defendant committed multiple
acts, their interrelationship does not preclude multiple convic-
tions. Rodriguez, 169 Ill. 2d at 189, 661 N.E.2d at 308. When
multiple offenses arise from a "series of incidental or closely
related acts and the offenses are not, by definition, lesser
included offenses," multiple convictions may be entered. King,
66 Ill. 2d at 566, 363 N.E.2d at 845.
The indictment charged defendant with committing home
invasion in that:
"he knowingly and without authority en-
tered the residence of Peggy A. Priest, knowing
or having reason to know that one or more
persons were present and intentionally caused
bodily harm, redness and swelling to the face
of Peggy A. Priest, occurring within the resi-
dence, when Kenneth Owen Priest was not a
peace officer acting in the line of duty."
Defendant was charged with committing domestic battery
in that "he knowingly without legal justification caused bodily
harm, redness and swelling to the face of Peggy A. Priest, a
family or household member, by hitting her in the face and
choking her."
Under the charging instrument approach, domestic
battery is a lesser included offense of home invasion. All of
the elements of domestic battery, as charged, are encompassed in
home invasion, as charged. Both the home invasion and the
domestic battery charge allege defendant "caused bodily harm,
redness and swelling to the face of Peggy A. Priest." The
domestic battery charge specifically provided that defendant
caused redness and swelling to Peggy's face by "hitting her in
the face and choking her." However, this is a videlicet, as it
only restates in more specific language that which was previously
stated in general language in the home invasion charge. The home
invasion charge set out the broad foundation of domestic battery,
and "it is not necessary for the charging instrument to expressly
allege all the elements of the lesser offense." People v.
Hamilton, 179 Ill. 2d 319, 325, 688 N.E.2d 1166, 1170 (1997).
In this case, applying the King rules, it is necessary
to determine whether domestic battery is a lesser included
offense of home invasion. Many of the cases defining lesser
included offenses involve the question whether a jury should be
allowed to consider a less serious offense that has not been
separately charged but that is included in the charged offense.
See, e.g., Hamilton, 179 Ill. 2d at 323, 688 N.E.2d at 1169.
Either the defense or the prosecution may find it advantageous to
seek an instruction on a lesser included offense in a particular
case. Different issues may be involved in deciding whether there
has been improper pyramiding, or whether a jury should be in-
structed on a less serious offense. Nevertheless, if changes are
to be made in the commonly accepted definition of lesser included
offenses when applying the King rules, those changes should be
made by the supreme court.
It has often been said that a lesser included offense
is one that does not have any element not included in the greater
offense. People v. Jones, 149 Ill. 2d 288, 292-93, 595 N.E.2d
1071, 1073 (1992); People v. Green, 294 Ill. App. 3d 139, 149,
689 N.E.2d 385, 392 (1997) (greater offense must include every
element of lesser offense). A problem with that rule is that by
creating very specific offenses the legislature may prevent those
offenses from qualifying as lesser included offenses even though
they are virtually identical to other offenses that would quali-
fy. Here, for example, it appears that simple battery would be a
lesser included offense of home invasion. Nevertheless, the
legislature has the power to carve more than one offense from the
same physical act. See People v. Donaldson, 91 Ill. 2d 164, 168-
69, 435 N.E.2d 477, 479 (1982); Missouri v. Hunter, 459 U.S. 359,
366, 74 L. Ed. 2d 535, 542, 103 S. Ct. 673, 678 (1983). It will
be a rare situation for an offense to meet our definition of
lesser included offense. See H. Eisenberg, Multiple Punishments
for the "Same Offense" in Illinois, 11 S. Ill. U.L.J. 217, 238
(1987).
Domestic battery does contain an element not present in
home invasion, that the victim was a family or household member
to the defendant. 720 ILCS 5/12-3.2 (West 1996); 725 ILCS
5/112A-3(3) (West 1996) (former spouses included). Here, the
home invasion count charged that defendant caused bodily harm to
Peggy A. Priest, and the domestic battery count charged that
defendant caused bodily harm to that same Peggy A. Priest.
Accordingly, in the facts of this case, it would have been
impossible to have committed the greater offense without neces-
sarily committing the lesser. See People v. James, 246 Ill. App.
3d 939, 944, 617 N.E.2d 115, 117-18 (1993). The fact remains
that domestic battery contains an element not present in home
invasion. The supreme court has employed a "broad foundation"
test and a "main outline" test with lesser included offenses, but
those tests are used to determine whether the lesser offense is
described by a charging instrument. Hamilton, 179 Ill. 2d at
326, 688 N.E.2d at 1170. As discussed above, the fact that there
are some language differences between the home invasion count and
the domestic battery count does not prevent domestic battery from
being a lesser included offense. Under the existing definition
of lesser included offenses, however, we may not ignore the
presence of an element simply because the two counts are other-
wise very similar. The home invasion count charged defendant
with intentionally causing bodily harm, while the domestic
battery count charged defendant with knowingly causing bodily
harm, but an offense can be a lesser included offense when it is
established by a less culpable mental state than the offense
charged. 720 ILCS 5/2-9(a) (West 1996).
There is another problem with finding a lesser included
offense in this case. The jury could not rationally have found
defendant guilty of domestic battery but not guilty of home
invasion. Hamilton, 179 Ill. 2d at 324, 688 N.E.2d at 1169.
There is no dispute that the domestic battery, if it occurred at
all, occurred in Peggy's home. Defendant does argue that he had
implied authority to enter the home, but the only evidence he
sought to introduce in support of that argument was properly
excluded. When the concern is whether offenses are being pyra-
mided it may not be significant whether a jury could rationally
find defendant guilty of the lesser offense yet acquit him of the
greater. Nevertheless, under existing law that fact will prevent
the giving of an instruction on a lesser included offense.
Defendant's final contention on appeal is that the
trial court committed reversible error when it refused to allow
defense counsel to elicit testimony from Peggy that on previous
occasions she had allowed defendant into her residence while the
order of protection was in effect. Defendant asserts the line of
questioning regarding the prior authorized entries is relevant to
the home invasion charge. At trial, defense counsel argued that
because Peggy allowed defendant to violate the order of protec-
tion by allowing him into her residence on occasions before
February 9, 1996, that resulted in her implied authority for
defendant to enter her home. The trial court rejected counsel's
argument and did not allow the line of questioning because
"[Peggy] cannot grant authority in the face of an order of
protection because to do so would violate the order ***." The
trial court was correct in excluding Peggy's testimony regarding
any prior occasions in which she may have allowed defendant into
her home.
One element of the offense of home invasion requires
that the defendant entered the dwelling place of another "without
authority." 720 ILCS 5/12-11(a)(2) (West 1996). The gravamen of
the offense of home invasion is unauthorized entry. People v.
Peeples, 155 Ill. 2d 422, 487, 616 N.E.2d 294, 325 (1993).
Defendant contends the limited authority doctrine
applies here and required the trial court to allow him to elicit
Peggy's testimony regarding any prior authorized entry. The
limited authority doctrine provides that when a defendant is
invited into a private residence by an occupant, the authoriza-
tion to enter is limited. No one who is granted access to a
dwelling is an authorized entrant if, at the time entry was
granted, defendant possessed the intent to perform a criminal act
inside the dwelling. In that situation, the consent to enter the
dwelling is vitiated because the true purpose for entry exceeded
the limited authorization granted. People v. Bush, 157 Ill. 2d
248, 253-54, 623 N.E.2d 1361, 1364 (1993).
The limited authority doctrine is inapplicable in this
situation. The doctrine applies only after a defendant was
invited into or granted access to a dwelling. Even when a
defendant, on previous occasions, was permitted under certain
circumstances to enter a dwelling without knocking, if defendant
was not invited into the house on a particular occasion, suffi-
cient evidence existed that defendant had no authority to enter
the dwelling on that occasion, supporting a conviction of home
invasion. People v. Donnelly, 226 Ill. App. 3d 771, 773-75, 589
N.E.2d 975, 976-77 (1992). Here, Peggy never invited defendant
into her home on February 9, 1996. In fact, the evidence at
trial unequivocally demonstrated that on that night, Peggy told
defendant to go home, and she shut the door without allowing him
into the residence. Sometime after that he gained entry to the
house, without Peggy's authorization, and proceeded to abuse her.
Moreover, any evidence showing that on previous occa-
sions Peggy allowed defendant into her home despite the order of
protection is not relevant in determining whether Peggy autho-
rized defendant to enter her home on February 9. Evidence is
relevant if it has "any tendency to make the existence of any
fact in consequence to the determination of the action more or
less probable than it would be without the evidence." Peeples,
155 Ill. 2d at 455-56, 616 N.E.2d at 309. Any evidence Peggy may
have allowed defendant into her home on prior occasions did not
make more or less probable the issue of whether she allowed
defendant into her home on the night in question. The evidence
clearly showed that, on that night, she explicitly refused entry
by defendant. Defendant presented no evidence Peggy authorized
him to enter her home on that night.
In a final effort, defendant attempts to rely on the
recent supreme court decision of People v. Reid, 179 Ill. 2d 297,
688 N.E.2d 1156 (1997). In Reid, a defendant did not commit home
invasion when he entered a dwelling a protective order prohibited
him from entering, but of which he was an otherwise lawful tenant
when he still paid rent for the dwelling. Reid, 179 Ill. 2d at
316, 688 N.E.2d at 1165. Reid's holding concerned the interpre-
tation of the phrase dwelling "of another" of the home invasion
statute, not the "without authority" provision involved in the
present case. Furthermore, even if the trial court premised its
exclusion of the previous entry evidence on the fact that the
order of protection alone prohibited defendant's entry, the trial
court was correct in not allowing the evidence. See In re B.J.,
268 Ill. App. 3d 449, 452, 644 N.E.2d 791, 793-94 (1994) (persons
subject to a court order are not relieved from obeying it even if
the third party whom the order protected decides he does not want
the benefits of the order).
We affirm defendant's conviction and sentences for home
invasion, domestic battery, and violation of an order of protec-
tion.
Affirmed.
GARMAN, P.J., and STEIGMANN, J., concur.
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