APPEAL from the Circuit Court of Champaign County; the Hon.
CREED D. TUCKER, Judge, presiding.
MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:
Defendant was convicted by a jury in the circuit court of Champaign County of the offenses of home invasion, attempt (rape), burglary and battery. He was sentenced to concurrent terms of 8 years for home invasion, 5 years for attempt, 4 years for burglary, and 1 year for battery.
On appeal defendant does not challenge any of the factual findings of the jury. His claims are limited to the questions of law as follows: (1) that the information charging home invasion failed to state an offense and therefore should have been dismissed; (2) that the charge of battery was a lesser included offense and therefore judgment should not have been entered on that conviction; and (3) that all of the offenses were based on the same acts and therefore separate judgments were improperly entered. We agree with him as to issues (1) and (2) but disagree as to (3).
Since the reasonable doubt issue was not raised by defendant, only a brief synopsis of the facts is required for purposes of this opinion. The complainant testified that the lock on the door to her apartment was defective and that in the early morning hours of the date of the incident she observed the door partially open. She arose from her bed and attempted to close it, but defendant who was on the other side of it pushed it fully open and entered her apartment. Upon her inquiry as to his business there, he stated that he wanted to engage in sexual intercourse. A struggle ensued during which complainant was bruised and contused. Defendant was unable to perform an act of intercourse. A neighbor, hearing the sounds of the struggle and the outcries of the complainant, summoned police who arrived and placed defendant under arrest. The complainant further testified that defendant was completely unknown to her. The testimony of police officers and certain photographic evidence corroborated complainant's testimony as to her physical condition.
The testimony of defendant and his witnesses was to the effect that he had been acquainted with the complainant for some time and had been with her at a tavern during the evening hours before the incident. He claimed that she had invited him to her apartment and that the struggle occurred when he was attempting to leave and she was attempting to force him to stay.
As previously indicated, the jury elected to believe the complainant and her witnesses, and defendant does not raise this as an issue on appeal.
Defendant's first claim of error is that the informations charging him with home invasion failed to include an allegation of "without authority" and that such an omission was a fundamental defect requiring their dismissal. At the close of all of the evidence defendant moved for such a dismissal, but the trial court denied that motion and allowed a concomitant motion by the State to amend the informations to include the omitted language. Defendant also raised the point in his post-trial motion but it was likewise denied at that stage of the proceedings.
1 Before proceeding to the merits of the first issue, we must digress briefly to discuss the procedural posture of the matter. Section 114-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 114-1) provides for pretrial motions to dismiss charges. Subsection (a)(8) of section 114-1 sets forth the ground that "[t]he charge does not state an offense." Subsection (b) of section 114-1 provides:
"(b) The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived."
We therefore conclude that defendant has not waived the issue by waiting to make the motion until after all the evidence had been received.
2 As we have already indicated, defendant renewed the issue in a post-trial motion. More properly, he should have filed a motion in arrest of judgment under section 116-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1977, ch. 38, par. 116-2). However, we will construe that portion of his post-trial motion which is directed at the sufficiency of the information as a motion in arrest of judgment and then hold that the issue is before us.
Home invasion is a statutory crime and was added to the Criminal Code of 1961 by the legislature as section 12-11(a), effective August 22, 1978 (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)). It reads as follows:
"A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling ...