Appeal from the Circuit Court of Du Page County; the Hon.
Helen C. Kinney, Judge, presiding.
JUSTICE NASH DELIVERED THE OPINION OF THE COURT:
After a bench trial defendant, William Snow, was convicted of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2), residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a)), home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(1)), and armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)). Defendant was sentenced to concurrent terms of imprisonment of seven years for armed robbery, seven years for home invasion and five years for residential burglary. The issues presented for review are (1) whether defendant was proved guilty beyond a reasonable doubt of home invasion and residential burglary; (2) whether the State proved defendant had the intent to commit theft at the time he entered the house; (3) whether the residential burglary conviction must be vacated on one-act, one-crime principles; and (4) whether this cause must be remanded for a new sentencing hearing.
Each of defendant's convictions was related to the entry by defendant and Michael Nord, who was tried separately, into a rented house in which Bill Olsen, John Payne and three other men resided. The home invasion charge alleged that defendant knowingly and without authority entered the home with knowledge that it was occupied and, while armed with a wooden club, threatened the imminent use of force against John Payne. The residential burglary charge alleged that defendant knowingly and without authority entered the home with an intent to commit theft. The armed robbery charge alleged that defendant, while armed with a wooden club, took guns and a stereo receiver from the presence of Bill Olsen by threatening the imminent use of force.
Bill Olsen testified in trial that on October 30, 1982, he, John Payne and three other men lived in a house they had rented from John Hingyi. Olsen heard a knock on his ground-floor bedroom window at 4 a.m. and observed Michael Nord outside the window. Nord asked where John Hingyi was and stated, "We are not fooling around, punk. We've got a gun." Olsen then heard a clicking noise sounding like the mechanism of a gun. Olsen testified he believed Nord was accompanied by another person because he could see Nord and he was not making the noise with the suspected gun. Olsen told Nord that John Hingyi did not live there and when Nord asked if anyone else was in the house, Olsen advised him that he believed he was alone. A car then drove up and its occupant entered the house. When Nord directed Olsen to determine who it was, he went upstairs, then returned and told Nord it was his roommate, John Payne. He and Nord continued to talk for about five minutes through the window, during which time Nord repeated the threat, "we have a gun." When Nord told Olsen "they" were coming into the house, Olsen headed towards the unlocked front door. Olsen testified that as he reached it the door was pushed open and he grabbed the knob and opened it the rest of the way. Olsen agreed he had not offered any physical or verbal objection to the entry, testifying that he believed there wasn't much else he could do and that he gave no permission to enter.
Michael Nord came through the door first and pointed a shotgun at Olsen and Payne. Defendant followed Nord into the house carrying a 32-inch-long axe handle. Olsen knew defendant as he had visited the house on prior occasions. Nord wore a nylon mask or stocking over his head, and defendant wore a black knit cap pulled over his eyebrows. Olsen testified he told Payne that the men wanted John Hingyi and weren't bothering us, and that he then just stood there and did what he was told. Defendant asked if Hingyi was there and if they were friends of his and Olsen replied that Hingyi was not in the house and did not live there anymore. Defendant then told Olsen and Payne not to fool around with them and inquired where Michael O'Reilly's room was located. The four men then went upstairs to O'Reilly's bedroom with Nord and defendant walking behind Olsen and Payne with the shotgun pointed at their backs. Defendant and Nord directed the others to enter a bathroom across the hall from O'Reilly's bedroom where they stayed for about five minutes before coming out after hearing a car drive away. While in the bathroom Olsen heard glass breaking; he also heard either Nord or Snow say, "Stay in the bathroom, punks. If you move, you're dead." When defendant and Nord left, Payne and Olsen went to O'Reilly's room, where they noticed that a glass china cabinet had been smashed, drawers emptied and O'Reilly's three shotguns, BB guns, two handguns and stereo receiver were gone.
John Payne testified that he returned home at about 4 a.m. and spoke briefly with Olsen, then went into a bathroom where he removed his contact lenses. As he came out of the bathroom he saw Olsen open the door and two people enter the house. Because he was not wearing his contact lenses, Payne was unable to identify those persons. The man with the shotgun pointed it at Payne and said, "[d]on't move or you're dead"; he then unplugged the telephone in the living room. The man with the axe handle hit Payne's dog with it. Payne testified further that just before he and Olsen were placed in the bathroom both men advised them that if they came anywhere near the door they were dead; similar threats were repeated after the two were placed in the bathroom.
Police officer Donald McCombe testified he arrested defendant at his home and was given permission to search his bedroom. Defendant advised the officer he was innocent and had nothing to hide and stated Michael Nord set him up and that there were two BB guns that Nord had given him in his room. The guns were found in a closet under a pile of clothes and were identified at trial as the property of Michael O'Reilly.
At the police station, defendant was advised of his Miranda rights and gave a statement to the officers in which he admitted his presence at the house. The officers testified defendant told them he and Nord had been at a party the evening before and that Nord persuaded defendant to drive him to John Hingyi's house in defendant's car. Nord did not explain why he wanted to go there, but defendant assumed it was to collect a debt as he knew O'Reilly and Hingyi owed Nord money. When they arrived at the house Nord took a piece of wood from the car's trunk and defendant took an axe handle. The two men went to the back of the house where Nord talked to one of the residents; defendant did not participate and stood off to the side of the window. Shortly thereafter Nord went to the home's front door with defendant following and the two went inside. Defendant told the officers the man with whom Nord had talked must have been a little crazy not to run to the front door and lock it before Nord got there. Defendant also told the officers that the only thing he recalled having said when in the house was to ask Payne and Olsen if they knew anything about what happened to his car, which was parked in the garage. He was unsure if he had made any threats, but might have done so because he thought Nord was crazy and might do something bad. Defendant also told the officers that he watched Nord go into the bedroom and take several guns and a stereo receiver down to the car.
Officer Francis Marrocco testified to the same matters as did Officer McCombe and recalled further that defendant had said he had helped Nord take the property out of the house and had also told the officers he was angry about the incident because he did not obtain any money.
Michael O'Reilly testified that when he returned home after 4 a.m. on October 30, he found that his room had been ransacked, the china closet smashed and guns and a stereo were missing. No one had been given permission to take these items. O'Reilly was aware of a dispute between Snow and Hingyi over damage to a car and the title to that car.
Defendant testified in his own behalf that he and Nord had been to a Halloween costume party the evening before entry into the home and Nord had worn the nylon stocking over his head most of the evening. At the party Nord persuaded defendant to drive him to the house in which he and defendant believed John Hingyi still lived. Defendant testified that Hingyi owed him $500 and title to a car which defendant had purchased from him about 18 months earlier. Hingyi, who still had possession of the car, had put off delivering the car's title to defendant. Prior to that night defendant had heard that someone had damaged the car by shooting into it and stated that he only went to the house to obtain what Hingyi owed him and had no idea Nord would steal anything.
Defendant further testified that when he got to the house Nord suggested they go around the back to see if anyone was home. Defendant did so, but he was 10 feet from the back window and did not hear what Nord said to Olsen. After this conversation Nord picked up a 24-inch long board on the ground and instructed defendant to do the same with an axe handle lying there because there might be trouble inside. Defendant testified he feared there would be an argument because five people lived in the house and he had, on an earlier visit, been beaten up by them. Defendant denied that Nord had a gun.
Defendant also testified that when he and Nord reached the front porch he saw Olsen opening the front door and Nord opened the screen door and they both walked in. Nord then asked Payne and Olsen if Hingyi or O'Reilly were there, and defendant asked them if they knew who had shot into his car. Nord then ordered the two into the bathroom and threatened to kill them if they came out. Defendant denied having threatened Payne and Olsen or having any prior notice from Nord that he intended to threaten anyone for any purpose. Nord then went into O'Reilly's bedroom and told defendant he was going to take what O'Reilly and Hingyi owed him. Defendant testified he did not want to be involved and walked out of the house and Nord followed carrying the stolen property. Defendant testified that he permitted Nord to place the property in his car only because Nord pointed one of the guns at him. The two BB guns were left at defendant's house because Nord said he could not sell them.
Defendant testified that he did not know that his entry into the house was unauthorized and that he had not intended to commit a theft when he entered. He denied telling the officers that he had heard ...