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03/27/87 the People of the State of v. John Haybron

March 27, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JOHN HAYBRON, DEFENDANT-APPELLANT

THE DEFENDANT, JOHN HAYBRON, APPEALS FROM HIS CONVICTION FOR HOME INVASION, ARMED ROBBERY, UNLAWFUL RESTRAINT, AND INTIMIDATION. (ILL. RE

v.

STAT. 1985, CH. 38, PARS. 12-11(A), 18-2(A), 10-3(A), 12-6(A), RESPECTIVELY.) WE AFFIRM IN PART AND REVERSE IN PART.



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

506 N.E.2d 369, 153 Ill. App. 3d 906, 106 Ill. Dec. 662 1987.IL.382

Appeal from the Circuit Court of Will County; the Hon. Robert R. Buchar, Judge, presiding.

APPELLATE Judges:

Justice Stouder delivered the opinion of the court. Barry, P.J., and Heiple, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STOUDER

At approximately 2 a.m., the 80-year-old victim was woken by the sound of glass. She rose from her bedroom and found her dining-room window broken. Thereafter, she returned to her bedroom to activate the police alarm button which was beside the light switch there.

When she arrived at the bedroom, she was confronted by a man who held a gun and told her not to move. At first she did not move; but briefly thereafter she tried to reach up towards the light and the alarm switches. The gunman pushed her to the floor, but she got up and managed to turn on the light. A split second thereafter, the gunman grabbed her arm and yelled, "Turn that off." Before she and the gunman together turned off the light, she noticed a second man shaking her chest of drawers. In turning off the light, the victim also activated the alarm, which sounded both for the police and in the house. In the confusion caused by the alarm, she ran from the house. The defendant and his codefendant were soon apprehended near the house.

The defendant and co-defendant were tried together. The jury returned guilty verdicts on home invasion, armed robbery, unlawful restraint, intimidation, and aggravated battery. The court imposed on the defendant concurrent, 40-year extended-term sentences for home invasion and armed robbery. It also imposed a five-year sentence for unlawful restraint and an eight-year sentence for intimidation. It vacated the aggravated battery as a lesser included offense of home invasion. The defendant brought the instant appeal.

The first argument raised on appeal is whether the defendant was proved guilty beyond a reasonable doubt of unlawful restraint. We agree with the defendant that he was not, and we reverse that conviction.

A person commits unlawful restraint when he knowingly and without authority detains another. (Ill. Rev. Stat. 1985, ch. 38, par. 10-3(a).) To commit unlawful restraint, the defendant must detain his victim with an overriding intent and motivation to detain. See People v. Kuykendall (1982), 108 Ill. App. 3d 708, 710, 439 N.E.2d 521.

We find insufficient proof of unlawful restraint. While the gunman instructed the victim not to move and grabbed her hand to turn out the light, that conduct was merely derivative of and circumstantially related to the armed robbery and home invasion. The record shows no separable detention of the victim.

The defendant's second argument on appeal is that he was not proved guilty beyond a reasonable doubt of intimidation. Again, we agree and reverse the conviction.

The defendant was charged by information with committing intimidation in that, with the intent to cause the victim not to call a police officer, he communicated to her a threat to unlawfully harm her. The defendant asserts that the State was required but failed to prove that there was a threat communicated to the victim with the specific intent of causing her to omit calling the police. The State argues initially that the type of act which the defendant intended to cause or preclude was not an element of the offense and did not require proof. According to the State, the portion of the information specifying the act may be stricken. Further, according to the State, it was sufficient to prove that the defendant used the threat of force to prevent the victim from performing any act. Alternatively, the State argues that the defendant's intent to prevent the victim from calling the police was established by the facts and circumstances surrounding the offense.

Intimidation is a specific intent crime. (Ill. Rev. Stat. 1985, ch. 38, par. 12-6(a); People v. Randle (1976), 38 Ill. App. 3d 720, 721, 348 N.E.2d 488.) We disagree with the State's contention that it was not required to prove, as the information charged, that the defendant communicated a threat with the intent to prevent the victim from calling the police. (See People v. Fry (1963), 29 Ill. 2d 455, 194 N.E.2d 267.) Further, we reject the State's alternative argument. The State correctly notes both that the gunman was in a position to see the alarm button located beside the bedroom light switch and that the defendant admitted knowledge that the victim's house was ...


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