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People v. Bitner





APPEAL from the Circuit Court of Fulton County; the Hon. CHARLES H. WILHELM, Judge, presiding.


Rehearing denied November 26, 1980.

Defendant Mark Bitner was charged with intimidation, home invasion, and two counts of battery. After the intimidation charge was severed, the cause proceeded to a jury trial in the circuit court of Fulton County and defendant was convicted of home invasion and one count of battery. This appeal is from those convictions and defendant's concurrent sentences of six years and 364 days in the Department of Corrections.

The incident from which the charges at bar stem occurred during the early morning hours of September 4, 1979, at a house occupied by eight community college students in Canton, Illinois. The home had been purchased by the parents of two of the occupying students and the other six students were tenants. At the time of the incident, six students were in residence and one of the six, Mitch McNeil, was alone in the home's living room watching television.

McNeil testified that at approximately 12:10 a.m., he walked into a downstairs bedroom adjacent to the living room shared by two of his roommates, Derek Dierker and Pete Hoff. As they were conversing, McNeil heard loud talking, making him aware someone else was in the house. When he looked out of the bedroom, he saw defendant and three companions. McNeil testified that no one had knocked on the door or rung either of two doorbells, which he described as "very loud." He then walked into the living room and informed the intruders that there was no party and that everyone was in bed; however, he did not ask defendant to leave and obtained beers for the group because he "didn't want any trouble." McNeil later testified that defendant "scared me to death."

Other students indicated the defendant went to other rooms of the house and awoke the occupants with loud and obscene language demanding that there be a party. Without detailing all of the conduct of the defendant and his companions, as well as the threats and demands made, we believe it is sufficient to say that as the result of the defendant's conduct the students assembled in the living room.

At this point, all 10 individuals were together in the living room. The residents testified to the defendant's tough demeanor, his smashing some cans, and breaking a bottle. One of defendant's companions left when all the beer had been consumed. Defendant then went into the kitchen and obtained some champagne. After "chugging" the champagne, he began to vomit over or behind the kitchen stove. Meehan, one of the student occupants, testified that he had seen defendant vomit and then turned away from the emesis and toward the television when defendant asked him at what was he staring.

All six residents testified that defendant then entered the living room and struck Meehan. While Meehan could not detail the attack, the other five witnesses stated defendant delivered a sharp blow with either his brace or his right elbow to Meehan's right eye. Meehan then fell over and was apparently unconscious for a moment. Defendant then said something to Burgett, another of the student occupants, and five witnesses testified that defendant then grabbed Burgett by the hair and administered another blow. The four residents who had not been attacked testified that defendant forced Burgett's face down as defendant kicked the victim's face with his knee. Burgett then fell to the floor. Defendant's two remaining companions then restrained him, and Myers and Hoff helped Meehan out the door.

At this point, all of the residents fled from the home to call an ambulance, the police, and to hide.

Defendant testified that he believed a party was being held at the residence and that "somebody" knocked on the door upon his group's arrival and he followed the group in. Defendant stated that someone greeted him by saying "Jenks, whatcha' doing?" and admitted attempting to get the residents to drink some beer by calling them "lightweights" but denied the use of profanity or threats of violence. While defendant admitted pushing Myers in the chest and striking Meehan with his elbow, he claimed he was verbally provoked and failed to remember ever going upstairs in the home or kneeing Burgett in the face. Defendant denied any threatening conversations thereafter.

On appeal, defendant raises 10, and by motion, two additional issues for our consideration, which we shall discuss in turn.

Defendant initially challenges the constitutionality of the home invasion provision, which provides in pertinent part:

"Home Invasion. (a) 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

(2) Intentionally causes any injury to any person or persons within such dwelling place." Ill. Rev. ...

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