APPEAL from the Circuit Court of Vermilion County; the Hon.
JAMES K. ROBINSON, Judge, presiding.
PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
JUSTICE GREEN delivered the opinion of the court:
On December 3, 1980, defendant, Rickey Lee Tate, was charged in the circuit court of Vermilion County by a four-count amended information alleging he had committed the offenses of attempted rape, home invasion of the premises occupied by Janice M. Blaylock, home invasion of premises occupied by Irshell Rife, and aggravated battery. After a jury trial ending December 10, 1980, he was convicted of the latter two charges and sentenced to concurrent terms of 20 and 5 years' imprisonment, respectively. He was acquitted of the attempted rape charge, and the jury was unable to agree as to the charge of home invasion of the Blaylock premises.
On appeal defendant asserts: (1) The trial court abused its discretion in denying his motion to sever the charges upon which he was convicted from the other charges; (2) the court erred in entering judgment on the aggravated battery charge because any such battery and any home invasion of the Rife premises were "carved" from the same act; and (3) the sentences were excessive.
Section 111-4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-4(a)) provides that two or more offenses may be charged in the same indictment, information, or complaint if based on acts which "are part of the same comprehensive transaction." Section 114-8 of that Code (Ill. Rev. Stat. 1979, ch. 38, par. 114-8) sets forth that if a defendant is prejudiced by such a joinder "the court may order separate trials, grant a severance of defendants, or provide `any other relief as justice may require." In People v. Bricker (1974), 23 Ill. App.3d 394, 319 N.E.2d 255, denial of a defendant's motion to sever was held to be reversible error. The defendant had been required to defend, in a single trial, charges of having committed two robberies at times three hours apart and at places several miles from each other. The appellate court concluded the robberies each constituted separate transactions. The opinion did not state whether similarities existed as to the manner in which the robberies were carried out. On the other hand, in People v. Mikel (1979), 73 Ill. App.3d 21, 391 N.E.2d 550, charges against the same defendant of two assaults and a murder were held to have been properly tried together despite a defense motion for severance. The first aggravated assault and the murder were shown to have occurred within minutes and just two blocks apart. The time and distance between the murder and the other assault was several more minutes and a few miles. The actions were shown to be part of a shooting spree in which the offender was motivated by racial hatred to harass persons of another race.
The offenses for which the defendant here was convicted occurred at the Rife residence in the 2500 block on East Main Street in Danville, in the early morning hours of August 16, 1980. Lettie Rife testified that after she and her husband had gone to bed and fallen asleep, she felt somebody's hand on her shoulder and a sharp object against her neck. She stated the man she saw before her told her to be quiet and moved his hand across her chest whereupon she heard a zipper being unzipped. She said she pushed the man away and switched on a light. She testified that her husband then arose and was stabbed by the assailant who then fled. The evidence showed that other persons were present in the residence at the time and were playing cards. The other two offenses were shown to have occurred about one hour earlier in a residence in the 200 block of North Bowman in Danville, but one mile from the Rife residence. The victim there testified to having been grabbed by an assailant at the bottom of stairs to her apartment. She testified she grappled with him until he hit her in the face, kicked her, and made her be quiet. She said the man possessed a knife and tore her slacks in the front. She described how the assailant fled when her young nephew appeared at the top of the stairs and screamed.
• 1 When offenses are part of the same transaction, evidence that a defendant committed one of the offenses is probative as to his commission of the other. When the offenses are not so related, probative value may not be present and there is danger that the jury may consider the evidence of the defendant's commission of one of the offenses as showing a propensity to have committed other offenses. In Mikel we stated:
"The law is clear that the decision on whether or not to sever is a matter within the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. (People v. Sockwell (1977), 55 Ill. App.3d 174, 371 N.E.2d 100.) Important factors to be considered in determining this question include the proximity of time and location of the various charges and the identity of evidence which would be presented to prove each charge." 73 Ill. App.3d 21, 27, 391 N.E.2d 550, 555.
In the case on appeal, the two sets of offenses were closer in time and at places closer in distance than in Bricker but more remote in time than the offense in Mikel and more distant in place than the first two offenses in the latter case. Nevertheless, we consider the situation here to have analogy to Mikel. Witnesses at both the East Main Street and Bowman Street residences described the assailant as having worn a sleeveless red shirt and white trousers. In each case the assailant used a knife, attacked a female, ordered her to be quiet, and made sexual advances to her by attempting to remove her clothes. In each case the assailant had gained entrance by cutting through a door or window and, in each case, he fled when he met resistance.
• 2 As defendant relied upon the defense of alibi, the similarities between the attire and method of operation of assailants at the two residences had probative value in negating that defense. As the series of offenses in Mikel was termed a spree of hate, those here gave evidence of being a spree of lust. At both residences the assailant attempted to undress the female victim. The circumstances under which he did this obviously afforded so little chance of success for him as to indicate an uncontrollable lust. The court had a preview of the trial evidence at the hearing on the motion to sever. It did not abuse its discretion in denying the motion.
• 3 The question of the propriety of defendant being convicted of both aggravated battery and home invasion turns upon application of the rule set forth in People v. King (1977), 66 Ill.2d 551, 566, 363 N.E.2d 838, 844, where the supreme court stated:
"Prejudice results to the defendant only in those instances where more than one offense is carved from the same physical act. Prejudice, with regard to multiple acts, exists only when the defendant is convicted of more than one offense, some of which are, by definition, lesser included offenses."
Where, as here, two offenses, by definition, in the manner charged, and by the proof, each contain elements not present in the other, neither offense can be an included offense of the other. (See Ill. Rev. Stat. 1979, ch. 38, par. 2-9(a); People v. Zegart (1980), 83 Ill.2d 440, 415 N.E.2d 341.) The aggravated battery involved here contained the element of the infliction of "great bodily harm" (Ill. Rev. Stat. 1979, ch. 38, par. 12-4) while the home invasion required only the infliction of "injury" (Ill. Rev. Stat. 1979, ch. 38, par. 12-11(a)). Entry of a home was an element of the home invasion while no such entry was a required element of the aggravated battery. Clearly, neither offense was an included offense of the other.
Whether both offenses were "carved" from the same act presents a somewhat more complicated question. The aggravated battery arose from the knifing of Irshell Rife, husband of Lettie Rife. Under the allegations of the information and the evidence, the wound he received thereby was the bodily harm received in the aggravated battery and the injury received in the home invasion. The evidence indicated the knifing was a single act. However, the entry by the assailant in the Rife home was a separate act which was an important and required part only of the home invasion offense. In contending that, nevertheless, both offenses were carved from the same act, ...