APPEAL from the Circuit Court of Will County; the Hon. ROBERT
R. BUCHAR, Judge, presiding.
MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 6, 1980.
Following a bench trial the defendant, David L. Green, was found guilty of home invasion, armed robbery and armed violence (burglary), all Class X felonies. The trial judge held a sentencing hearing and considered a presentence report and then sentenced the defendant to 10 years imprisonment for each offense, each sentence to be served concurrently with the others, but consecutively to any sentence the defendant was then serving.
The defendant raises three questions on appeal: whether the defendant was proved guilty beyond a reasonable doubt of armed violence (burglary) where the State failed to prove that the defendant remained inside the subject home without authority; whether the trial judge erred in failing to specify on the record for the reasons for his imposition of a consecutive sentence; and whether the language used by the trial court in ordering that the defendant's three concurrent sentences for the instant offenses be served consecutively to "any sentences that the defendant may presently be serving in the Department of Corrections" was improperly vague.
The record reveals that on February 6, 1979, at approximately 6:30 p.m., the defendant entered the home of Shirley George without authority. The home was occupied by the three George children, Tammy (age 15), Jerry (age 13), and Dorothy (age 12), and their cousin, Kimberly (age 8). While in the house the defendant twice pointed a gun at Kimberly's head, both prior to and after removing approximately $80 to $90 worth of meat from the freezer. After placing the meat in a paper bag the defendant told Dorothy to unlock the front door and, when she was unable to unlock the top lock, the defendant pushed her aside, opened the door and left alone.
Identification of the defendant as the perpetrator by the George children occurred during questioning by the police on the night of the incident. Evidence produced at trial showed that Tammy, Jerry, and Dorothy George and their mother, Shirley George, knew the defendant by sight and had seen him take a shortcut through their yard several times prior to the incident in question. The State's evidence at trial was, for the most part, undisputed.
The defendant first argues on appeal that the evidence presented at trial failed to conform to the pleadings in that it failed to prove that the defendant remained inside the George home without authority. Count III of the indictment charged the defendant with the offense of armed violence, in that:
"He, while armed with a dangerous weapon, to wit: a pistol, committed the felony of burglary in that he knowingly remained, without authority, within the building of Shirley George at 508 State Street, Joliet, Illinois, with the intent to commit therein a theft."
The State contends that any variance between the indictment and the proof produced at trial was nonfatal.
We agree with the defendant that his conviction for armed violence must be reversed, because the State failed to prove that he remained within the George home without authority, an essential element of the indictment. Indeed, one of the necessary elements of proof of the home invasion charge was the defendant's unlawful entry into the home. Having proved that fact, the State could not then assert that the defendant entered the George home lawfully and remained unlawfully.
In People v. Vallero (1978), 61 Ill. App.3d 413, 378 N.E.2d 549, we examined burglary-by-remaining and noted that the statutory language is aimed at a situation where a defendant lawfully enters a building and then conceals himself with the intent to commit a felony, as in People v. Manning (1977), 46 Ill. App.3d 877, 361 N.E.2d 370, aff'd in part and rev'd in part (1978), 71 Ill.2d 132, 374 N.E.2d 200. In Vallero the defendant's conviction was overturned because the State failed to prove that the defendant entered or remained within a building with the intent to commit a felony.
Justice Stengel's concurring opinion in Vallero disagreed with the majority's suggestion that the defendant must possess the requisite criminal intent at the time he enters the building lawfully. We cannot agree with the State's argument that a valid interpretation of Vallero and of Justice Stengel's special concurring opinion indicates that burglary by unlawful entry and burglary by remaining are the same offense, and thus, that the "remains within" provision of the burglary statute is superfluous. Justice Stengel's comments in Vallero were meant to clarify the point at which criminal intent is manifested once an individual has lawfully entered and unlawfully remained within a building and did not concern the particular mode of entry.
In the case at bar the point in contention is not at what point the defendant manifested a criminal intent but whether the defendant can be said to have "unlawfully remained" in the George home. Thus, it is clearly distinguishable from Vallero and the "remains within" language is of critical importance. Here the defendant unlawfully entered the George home, as proved by the State in seeking a conviction on the home-invasion charge. The defendant cannot then be said to have lawfully entered and unlawfully remained as the armed violence indictment charges.
The State contends that the language in the indictment specifying how the burglary was perpetrated is surplusage. With this contention we disagree, since the statute provides two alternative ways to commit burglary (by unlawful entry or by unlawfully remaining following lawful entry), and hence an indictment must specify which method is involved. In People v. Lutz (1978), 73 Ill.2d 204, 383 N.E.2d 171, our supreme court held that indictments charging aggravated battery which failed to specify which of the alternative methods of committing the underlying battery was employed were fatally defective. By analogy, in the present case the indictment in question is ...