APPEAL from the Circuit Court of St. Clair County; the Hon.
STEPHEN KERNAN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Rufus Jones, was charged with burglary, attempted armed robbery, aggravated battery and armed violence in a delinquency petition filed in the Circuit Court of St. Clair County. The State's motion to have him tried as an adult was granted, and he was then indicted by a grand jury on two counts of armed violence and one count of burglary. Defendant was found guilty in a bench trial and was sentenced to prison terms of 10 years for armed violence in the commission of a burglary, 20 years for armed violence in the commission of an aggravated battery, and 5 years for burglary to be served concurrently.
On appeal, defendant raises the following issues: (1) whether he can be found guilty of armed violence based upon the underlying felony of burglary where he was unarmed during entry; (2) whether the evidence was legally sufficient to find him guilty of armed violence based upon the underlying felony of aggravated battery where the weapon which served as the basis for the armed violence charge was also a necessary element of the underlying felony; (3) whether the trial court erred in certifying him as an adult for purposes of criminal prosecution; and (4) whether the sentences imposed were improper or excessive.
On June 26, 1978, at approximately 10:30 p.m., the home of Mr. and Mrs. Herbert Mueller, located in East St. Louis, Illinois, was entered by defendant without the knowledge or permission of the Muellers. The unauthorized access was gained through a pantry window in the kitchen. Once inside, defendant armed himself with a knife seized from a kitchen drawer. His presence in the home alerted Mrs. Mueller, who was in bed with her husband after retiring for the evening. She heard a noise and saw an object move in the hall outside the bedroom. Getting out of bed to investigate, she followed the object into the bathroom where she discovered defendant standing with his back to a wall and armed with a knife. Defendant led her back into the hall where he encountered Mr. Mueller. The Muellers were cautioned to cooperate if they did not want to get hurt. Defendant then gestured Mr. Mueller to follow him and commanded Mrs. Mueller to remain in the hall until he returned. He placed Mr. Mueller in a basement and secured the door to prevent escape and then returned to Mrs. Mueller and shoved her into a bedroom. Defendant attempted to remove her nightgown by cutting its straps with the knife, but she resisted and a struggle ensued. While Mrs. Mueller was grappling with him she sustained a cut on her hand which required treatment at a hospital. Defendant ultimately overcame her and, after removing the nightgown, engaged in sexual intercourse with her.
Mr. Mueller managed to escape from the basement through a trap door and fled to a neighbor's house to summon the police. A patrolman from the East St. Louis Police Department was the first officer at the scene. After being fully apprised of the situation, he climbed a ladder used by defendant in his entry and peered into a bedroom window. He observed defendant in the act of intercourse with Mrs. Mueller. The officer then entered the house by kicking in the kitchen door and made his way through the dark house to the bedroom. He entered the room with his service revolver drawn and announced that he was a police officer. Defendant glanced at the officer but continued his act of intercourse. The officer seized defendant by the shoulder and attempted to pull him off the woman but without success. Finally, the officer had to resort to striking defendant on the side of the head with the officer's service revolver. The blow sent defendant sprawling to the floor, where he was immediately handcuffed. Once defendant was subdued, the officer switched on the bedroom lights. After a cursory search of the room, he noticed a knife lying on the bed. The knife was identified by the Muellers as being their paring knife which they kept in a drawer in the kitchen along with other food utensils.
It should be noted that at the time of the incident defendant was 13 years five months old, and Mr. and Mrs. Mueller were 67 and 75 years of age respectively.
Initially, defendant contends that he cannot be guilty of armed violence based upon the underlying felony of burglary, because he was unarmed when he entered the house. He asserts that a burglary is complete upon entry. Therefore, he reasons that since he armed himself with the knife after entering the house, a necessary element of the offense, the commission of a felony while armed with a dangerous weapon, was absent from the State's case. The State agrees that the entry constituted burglary, but it argues that since the entry was the threshold of the crime; the burglary did not cease at this point but continued throughout defendant's unauthorized presence in the house. The State concludes that defendant's presence in the house after the seizure of the knife constituted burglary while armed with a dangerous weapon in contravention of the armed violence statute.
The armed violence statute reflects the policy of this State to reduce the violence attendant to crime by creating an incentive to avoid the commission of felonies while armed. Thus, armed felons are punished more severely than unarmed felons for the same acts. (Ill. Rev. Stat. 1977, ch. 38, pars. 33A-3, 1005-8-1.) Section 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2) states:
"A person commits armed violence when, while armed with a dangerous weapon, he commits any felony defined by Illinois Law."
It is a truism that a felony is committed the instant all proscribed acts deemed essential to its commission are performed, assuming the actor possesses the requisite mental state during the performance of the acts. If a person arms himself after the commission of the felony is complete, there would be no violation of the statute for the reason that the arming would not coincide with the commission of the underlying felony. In deciding this issue we must examine the record to ascertain the time of commission of the underlying burglary to determine whether the arming coincided with the commission of the felony.
Count I of the indictment charges defendant as follows:
"Defendant, while armed with a dangerous weapon, a knife, having a blade of at least three (3) inches in length, a category 1 weapon, committed a felony defined by Illinois law, to wit, burglary, in violation of chapter 38, section 19-1a, Illinois Revised Statutes, in that he without authority, knowingly entered a building * * * with the intent to commit therein a theft."
The only act necessary for the offense of burglary as required by the charging document and by section 19-1(a) is a knowing, unauthorized entry of a building with the intent to commit therein a felony or theft. The uncontroverted testimony at trial is that the knife belonged to the Muellers and was customarily stored in a kitchen drawer. No evidence was introduced suggesting that the knife was other than in the possession and control of the Muellers at the time entry was made. The only conclusion which can be reached from the evidence is that entry was gained while defendant was unarmed. Therefore, the record cannot support a judgment finding defendant guilty of armed violence with respect to the burglary. Our conclusion that the defendant was not armed when the offense of burglary was committed is supported by the decisions in People v. Wilfong (1979), 72 Ill. App.3d 268, 390 N.E.2d 934; People v. Crawford (1978), 59 Ill. App.3d 211, 375 N.E.2d 1314; and People v. Schneller (1966), 69 Ill. App.2d 50, 216 N.E.2d 510, which hold that a burglary is complete when a person knowingly enters into or remains within a building without authority with the intent to commit a felony or theft.
The State contends that armed violence is analogous to felony murder in the sense that each offense necessitates a finding that during its commission the person so engaged was in the process of committing some other felony. The State, relying on People v. Nixon (1939), 371 Ill. 318, 20 N.E.2d 789, a case in which a felony murder conviction was affirmed where the acts causing death were performed in a home after it was broken into, asserts that the offense of burglary continues beyond the original entry. The State concludes that since a burglary ...