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People v. Hawkins

OPINION FILED JUNE 12, 1984.

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

v.

REGINALD HAWKINS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Pulaski County; the Hon. George Oros, Judge, presiding.

JUSTICE JONES DELIVERED THE OPINION OF THE COURT:

Judgment was entered on jury verdicts that found the defendant, Reginald Hawkins, guilty of misdemeanor theft, robbery, residential burglary and two counts of home invasion. On appeal defendant contends (1) that judgments should not have been entered on both home-invasion verdicts as only one entry was made, and (2) that the conviction for residential burglary should be vacated as that conviction was based on the same entry which underlay the conviction for home invasion. We consider these contentions in reverse order.

On the evening of January 18, 1983, defendant and Donald Tate kicked down the back door of Anthony Pope's residence after Mr. Pope had refused to allow them entry. In the residence with Mr. Pope was a friend, Kim Banks, who was visiting. After forcing Ms. Banks into Mr. Pope's bedroom, defendant twice hit her in the jaw while Tate struck Mr. Pope in the side with a hammer. Subsequently, Tate grabbed Pope while defendant took money from Pope's pocket. Tate and defendant also carried away food from Pope's refrigerator.

Count I alleged that Pope was the recipient of injuries during the home invasion, while count III alleged that Banks was the recipient of injuries during the home invasion. Count IV alleged that defendant committed residential burglary with the intent to commit a theft.

Section 12-11 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 12-11) provides:

"(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

(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs, or

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

(b) Sentence. Home invasion is a Class X felony."

Section 19-3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 19-3) provides:

"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.

(b) Sentence. Residential burglary is a Class 1 felony."

• 1 In People v. King (1977), 66 Ill.2d 551, 566, 363 N.E.2d 838, 845, the supreme court held 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, [multiple] convictions with concurrent sentences can be entered." The dispositive question pertinent to defendant's contention, therefore, is whether residential burglary is "by definition," a lesser included offense of home invasion. We hold that residential burglary requires a different mental element than home invasion and therefore is not a lesser included offense. This conclusion is based on the applicable law which provides that to be a lesser included offense, the greater offense must include every element in the lesser offense plus one or more elements; the lesser offense cannot have any element that is not included in the greater one. In other words, it is impossible to commit the greater offense without necessarily committing the lesser also. Depending on the facts underlying a home-invasion charge, a residential burglary may or may not be simultaneously committed by an offender.

• 2 In the case at bar, the elements of residential burglary are satisfied by defendant's unauthorized entry into the victim's house (regardless of his "knowledge" of the victim's presence) as long as he at the time had the intent to commit a theft or a felony. By definition, however, home invasion does not require that a person have a felonious intent or an intent to steal at the time he or she enters a dwelling without authority. The only "intent" requirement is that the offender have "knowledge" or "reason to know" that a person is present in the dwelling. The home-invasion offense is not completed until the offender, armed with a dangerous weapon, either uses or threatens force against the person (Ill. Rev. Stat. 1981, ch. 38, ...


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