Appeal from the Circuit Court of Lake County; the Hon. Robert
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
The defendant, John Ellison, and a co-defendant, Tom Siefert, Ellison's brother-in-law, were indicted in the circuit court of Lake County for the offenses of home invasion and rape. (Ill. Rev. Stat. 1981, ch. 38, pars. 12-11, 11-1(a)(1).) The cases were severed for trial, and Siefert was not involved in this appeal. The defendant was convicted by a jury for both offenses and he was sentenced to serve concurrent 12-year terms.
On appeal, the defendant raises these issues: (1) whether the omission of the words "without authority" from the home-invasion indictment was fatal to the indictment; (2) whether the rape shield statute is unconstitutional; (3) whether admission of evidence of his prior offense of impersonating a police officer was an abuse of the court's discretion; (4) whether admission of his prior conviction for burglary for impeachment purposes was an abuse of the court's discretion; and (5) whether he was proved guilty beyond a reasonable doubt.
During the early morning hours of December 18, 1981, after stopping at several neighborhood taverns, the defendant and Siefert were driving in Round Lake Beach in search of another place to stop. They noticed the lights were still on at Kristof's, a lounge and bowling alley, and they stopped, but the place had just closed.
Brenda Wicinski, a bartender at Kristof's, testified her car had stalled in the parking lot, and would not start again. She testified that the defendant, whom she did not then recognize, approached her, said he was a cop, showed her a badge, and motioned for her to move her car to an area which was like a dead-end alley located between Kristof's and J & W Auto Parts. A police car passed them at that time, without stopping, and she told the defendant she would move as soon as her car warmed up. Siefert then approached the car, and was recognized by Wicinski. The defendant said to Siefert, "You know her?" and then returned to his own car. Defendant testified his only purpose in using the badge and pretending to be a cop was to "have a little fun."
After driving about four blocks from Kristof's, the defendant testified he noticed a light on at the prosecutrix' apartment, whom he knew, and he decided to stop. At that time it was about 3:30 a.m. The defendant testified that he knew the prosecutrix because they worked together at Ozite. Also, he had dated her best friend, Roxanne Burdick, who also worked at Ozite. The defendant was married and had two children. He testified that he knew Roxanne considered him to be her boyfriend, but he stated he did not really like her. He did like the prosecutrix, and testified they had had intercourse twice within three or four months prior to the date in question.
The prosecutrix testified she and the defendant had not ever arranged to meet for a date, but that on one or two occasions he would arrive at a place where she already was and they would have a drink together or go out for pizza. Defendant and the two women often went to Roxanne's house after work to talk, drink, and, according to the defendant, smoke marijuana. Roxanne testified at trial that she was not upset that the defendant had stopped seeing her, and that she was seeing someone else. There was testimony about a statement made by Roxanne to her union steward at Ozite in which she referred to the prosecutrix as "that slut," indicating she had seen her and the defendant at a bar. Roxanne also stated the defendant was "going to be sorry." The statement was made at a time when the prosecutrix and Roxanne were estranged due to an incident involving some money taken from Roxanne for which she blamed the prosecutrix.
Prior to December 18, 1981, Roxanne and the prosecutrix had reconciled and the prosecutrix considered her to be her best friend. The prosecutrix also had told the defendant she did not want to see him anymore because he caused too much trouble between her and Roxanne. She asked him to leave her apartment on this occasion, and she slammed the door in his face. The defendant testified this occurred about two weeks before December 18. The prosecutrix testified she had met Tom Siefert only once before; the defendant testified that she had met him perhaps two or three times. She did not realize who Siefert was until after the men had left her apartment and she was on her way to Roxanne's.
According to the prosecutrix' testimony concerning the event in question, a man whom she did not recognize until later as Tom Siefert, knocked on her door, displayed a badge, and said he was looking for prowlers. After she let him in, he walked around the apartment, turned lights on and off, and a second man came running through the doorway when the lights were off. She tried to run out of the apartment, but the second man, later identified as the defendant, pulled her down to the floor, choked her with his arm across her throat and then made her walk into the bedroom. The prosecutrix testified the defendant held her down as Siefert got on top of her; that he wandered around while Siefert was with her; and that he then had intercourse with her also. The prosecutrix claimed that she did not begin to recognize who the defendant was until he was having intercourse with her. When she addressed him by name, he yelled back that he was not John, "and this guy John, whoever he was, that [she] should treat him better from now on."
The defendant testified that he first knocked on the prosecutrix' door. The light that had been on was turned out by then, but he could hear the stereo playing. After he went downstairs again, and Siefert went upstairs, he testified he waited until he noticed that the lights came back on and saw that Siefert had entered the apartment. He testified he did not know that Siefert used the badge to gain entrance. Defendant testified that when he entered the apartment, Siefert and the prosecutrix were already in the bedroom. When the defendant demanded to know what was going on, Siefert angrily pushed him out of the bedroom, causing him to fall backwards against the living room couch. Defendant and Siefert loudly exchanged words. Siefert turned the stereo up loud, and returned to the bedroom where the prosecutrix was. The defendant observed them having intercourse. He testified that the prosecutrix' arms and legs were up around Siefert.
In her testimony, the prosecutrix stated that Siefert "kept on telling me to moan and to get in different positions, and he was pulling my hair." When she failed to follow his directions, "he pushed [her] legs right on him," and threatened her with anal intercourse.
The defendant testified that after Siefert came out into the living room, the prosecutrix said, in a sarcastic way, "I suppose it's your turn now." The defendant said he "wasn't feeling no pain," and so he did not see anything wrong with it. In contrast to the prosecutrix' testimony that she pushed him away, the defendant testified she did not do anything. "She just laid there" and did not react. The defendant testified he had intercourse with her for about five minutes, and then started feeling kind of sick about the whole idea of her just having been with Siefert, so he got off her. Siefert then reentered the room stating that he would handle her, got on top of her again, and she tried to push him away. When the defendant tried to pull Siefert off the prosecutrix, Siefert took a swing at him and the defendant left the apartment. Siefert eventually came downstairs, got in the car, and they left.
The prosecutrix' neighbor, Karen Divoky, whose bedroom was adjacent to the prosecutrix', testified that on the evening in question she heard the prosecutrix scream, and then heard voices of two men and the prosecutrix' voice, as if there was arguing back and forth. She also heard furniture crashing as if fighting were going on. She stated the stereo was then played very loudly. She testified that she discussed calling the police with her husband, but decided not to because she thought it was a couple who visited the prosecutrix.
After the defendant and Siefert left the prosecutrix' apartment, she did not seek help at the Divokys nor at the police station which was located about one block away from her apartment. Instead, she went immediately to Roxanne's house where she was urged by Roxanne and her mother to call the police.
Several employees of Ozite who knew both Roxanne and the prosecutrix testified that neither one had a good reputation for truthfulness or veracity. A previous offer of defense counsel to have these witnesses testify to the prosecutrix' reputation for chastity was denied by the court on the basis that it was contrary to the rape shield statute. Evidence of the defendant's prior conviction for burglary was admitted. The defendant also testified to an incident which occurred before trial in which Roxanne had driven her car near the jail, and taunted him to come out and play.
• 1, 2 Based on the authority of People v. Pettus (1980), 84 Ill. App.3d 390, and People v. Medreno (1981), 99 Ill. App.3d 449, the defendant contends the failure of the home-invasion indictment to allege the fundamental element that the defendant acted "without authority," and his timely raising of the issue in his post-trial motion, necessitates the reversal of his conviction for that offense.
The State disagrees, asserting that the omission of the words "without authority" was a formal, not fatal, defect. The State asserts the allegation that the defendant was not a peace officer "strongly implies" his lack of authority to enter, and contends no reversal is warranted where no prejudice to the defendant in the preparation of his defense has been shown. The State urges the court to reject the authority of Pettus and Medreno, and to recognize that lack of authority is implicit in the very nature of the offense of home invasion since invasion means that it is without authority. The State argues: "It is also indicative that the criminal intent was present ab initio since interpreting the statute any other way would render meaningless the portion requiring the defendant's knowledge of the victim's presence."
The State argues that entry with knowledge of a person's presence therein is meaningful only if the entry is made with the intent to threaten or harm the person, and since no one would invite an entry for that purpose, it necessarily follows the entry is unauthorized. The State's argument is not well taken.
The offense of home invasion consists of two parts: the knowing unauthorized entry of an occupied dwelling place of another and the use or threat of force by the invader while armed with a deadly weapon or intentional injury by the invader upon an occupant. The offense is committed when both parts of the statute are satisfied. (People v. Robinson (1980), 89 Ill. App.3d 211, 214.) In the face of a due process attack on the statute for the reason no intent to do an unlawful act at the time of entry was required, the Robinson court stated: "No constitutional provision requires that the legislature include criminal intent at the time of entry in the offense of home invasion. (See, e.g., People v. Ruberg (1979), 76 Ill. App.3d 671, 395 N.E.2d 205.)" 89 Ill. App.3d 211, 214.
The cases cited by the defendant in support of his position on this issue are dispositive: People v. Pettus (1980), 84 Ill. App.3d 390, and People v. Medreno (1981), 99 Ill. App.3d 449. As the Pettus court likewise noted, the requirements that a charge be in writing and set forth the nature and elements of the offense charged are mandatory and not directory. (Ill. Rev. Stat. 1981, ch. 38, par. 111-3(a)(3); People v. Troutt (1977), 51 Ill. App.3d 656.) As stated in Pettus:
"In our view, the allegation of `without authority' is fundamental to the offense. Without it, one is left only to speculate as to the status of the defendant, whether he be an invitee, or has entered the premises by error, or in some legal capacity. If any of the latter be true, then the offense would become some form of aggravated assault or battery.
[T]he failure to allege such status is fatally defective to an information." People v. Pettus (1980), 84 Ill. App.3d 390, 393.
Citing People v. Lutz (1978), 73 Ill.2d 204, the Medreno court found:
"Because this defect is fatal to the charge, the defendant need not demonstrate that the defect prevented him from understanding the nature of the charge and preparing a defense thereto, as the State alleges." People v. Medreno (1981), 99 Ill. App.3d 449, 455.
The defendant here specifically amended his post-trial motion to include the allegation that "the indictment is deficient on its face." The State did not object to the amendment, and both parties argued the point during the post-trial hearing. Although the issue would more properly have been raised in a motion in arrest of judgment under section 116-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 116-2), an allegation included in a post-trial motion which concerns the sufficiency of the charging instrument has been construed as a motion in arrest of judgment. (People v. Pettus (1980), 84 Ill. App.3d 390, 392.) We conclude the same construction should be afforded the defendant's post-trial motion here.
It is also well established that a trial court errs in denying a motion in arrest of judgment when the indictment omits an essential element of the offense charged. (People v. Miller (1983), 116 Ill. App.3d 361, 368; People v. Medreno (1981), 99 Ill. App.3d 449, 455.) Accordingly, we conclude the defendant's conviction and sentence for home invasion must be vacated. See People v. Pruden (1982), 110 Ill. App.3d 250, 254.
CONSTITUTIONALITY OF THE RAPE SHIELD STATUTE
• 3 The defendant argues the rape shield statute is unconstitutional as an abrogation of his sixth amendment right to present a full and fair defense to the charge of rape. His reference is to section 115-7 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, par. 115-7). That section provides:
"a. In prosecutions for rape or deviate sexual assault, the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused.
b. No evidence admissible under this Section shall be introduced unless ruled admissible by the trial judge after an offer of proof has been made at a hearing to be held in camera in order to determine whether the defense has evidence to impeach the witness in the event that prior sexual activity with the defendant is denied. Unless the court finds that such evidence is available, counsel for the defendant shall be ordered to refrain from inquiring into prior sexual activity between the alleged victim and the defendant."
He further asserts the statute conflicts with the original legislative intent of the Illinois legislature. He requests this court to find the statute ...