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People v. Lobdell

OPINION FILED DECEMBER 29, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RICKY L. LOBDELL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. Peter J. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

The defendant, Ricky L. Lobdell, appeals from his convictions of rape, home invasion, and residential burglary. (Ill. Rev. Stat. 1981, ch. 38, pars. 11-1(a), 12-11, 19-3(a).) He was sentenced to concurrent extended terms of 50 years and 30 years of imprisonment for rape and home invasion, and to eight years' imprisonment for residential burglary, said sentence to run consecutively to the sentence for rape. We affirm.

On appeal, the defendant contends that his burglary conviction must be vacated and his cause remanded for resentencing, because it arose from the same act of entry which constituted the basis for the home invasion. The defendant also asserts that his sentence on all convictions must be vacated and his cause remanded for resentencing, because the trial court improperly considered as an aggravating factor that the defendant received compensation for committing the crimes of rape, home invasion, and residential burglary.

On October 24, 1982, at approximately 8:30 p.m., a brick was thrown through the bedroom window of 61-year-old Beulah Mosher. Mosher then saw the defendant standing in her bedroom doorway. The defendant pulled Mosher over to the front door, unlocked it, and let in his companion. The defendant then tore off Mosher's pajamas and raped her.

After the defendant finished his attack on Mosher, the second man raped her. During the second attack the defendant hit Mosher in the face, choked her, cut her hair, demanded money, and then ransacked the house. After the two men left, Mosher noticed that $300 to $350 and five rings had been taken. On October 25, 1982, Mosher identified the defendant in a photographic display. On October 26, 1982, the day the defendant was arrested, Mosher picked the defendant out of a line-up.

• 1 As to the first issue, the defendant contends that his burglary conviction must be vacated and his cause remanded for resentencing because it arose from the same act of entry which constituted the basis for the home invasion. If, in fact, the same physical act underlies the two convictions, the defendant is correct in his assertion that one conviction must be vacated. People v. King (1977), 66 Ill.2d 551, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273; People v. Donaldson (1982), 91 Ill.2d 164, 435 N.E.2d 477.

The home invasion statute under which the defendant was convicted states in relevant part that:

"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. Stat. 1981, ch. 38, par. 12-11(a).)

The residential burglary statute states that:

"A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a).

The defendant argues that convictions for home invasion and residential burglary both require entry as a physical act. The defendant contends, however, that the evidence at trial showed that there was only one act of entry into the victim's home which served as the basis for both the home invasion and burglary convictions. The defendant acknowledges that residential burglary is not a lesser included offense of home invasion. However, he asserts that the concepts of one-act one-crime and lesser included offenses are not synonymous and that his convictions for residential burglary and home invasion violate the one-act one-crime concept.

The State argues in response that the defendant misinterprets the concept of "act" for purposes of a one-act one-crime analysis when he claims that the same physical act was the basis for both his home invasion and residential burglary convictions. The State maintains that unlawful entry itself is not sufficient to prove either home invasion or residential burglary; it establishes neither crime. The State argues that the "act" necessary for the offense of home invasion is the knowing entry into the dwelling of another with knowledge that an occupant is present and intentionally inflicting injury upon a person located therein. On the other hand, the State argues that the "act" necessary for the offense of residential burglary is the knowing unlawful entry into a dwelling place of another while intending to commit therein a felony or theft.

• 2 We agree that the concept of lesser included offenses is not synonymous with the concept of one-act one-crime. (People v. Austin (1981), 93 Ill. App.3d 495, 417 N.E.2d 671.) In this regard the Illinois Supreme Court has declared that:

"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. Multiple convictions and concurrent sentences should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts. `Act,' when used in this sense, is intended to mean any overt or outward manifestation which will support a different offense. We hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered." (Emphasis added.) People v. King (1977), 66 Ill.2d 551, 566, 363 N.E.2d 838, 844-45.

Under the rule set forth in People v. King, we must decide whether the burglary conviction was carved from the same physical ...


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