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06/11/87 the People of the State of v. Frederick E. Yarbrough

June 11, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

FREDERICK E. YARBROUGH, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

509 N.E.2d 747, 156 Ill. App. 3d 643, 109 Ill. Dec. 86 1987.IL.799

Appeal from the Circuit Court of McLean County; the Hon. Wayne C. Townley, Jr., Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. SPITZ, and McCULLOUGH, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

On July 16, 1986, defendant was found guilty by a jury in the circuit court of McLean County of two counts of home invasion and heinous battery, two counts of robbery, aggravated battery, and residential burglary in violation of sections 12-11(a)(2), 12-4.1, 18-1, 12-3, and 19-3, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, pars. 12-11(a)(2), 12-4.1, 18-1, 12-3, 19-3). On August 28, 1986, the defendant was sentenced to the following concurrent terms of imprisonment: 50 years, 50 years, 50 years, 14 years, 14 years, 10 years, and 30 years, respectively. Defendant appeals claiming (1) the convictions for one count of home invasion, one count of robbery, aggravated battery, and residential burglary should be vacated; (2) the extended-term sentences imposed for the convictions for home invasion and heinous battery were improper because the trial court relied on conduct inherent in each offense in finding the defendant eligible for the extended-term sentences; and (3) the sentences for the convictions for robbery, residential burglary, and aggravated battery should be reduced because the trial court imposed extended-term sentences for which the defendant is not eligible. We affirm in part and vacate in part.

The evidence shows that on February 7, 1986, Virgil Willis and his aunt, Anna Spitzer, resided at 408 North Livingston Street in Bloomington. At approximately 6 p.m., the defendant knocked at the front door. Willis opened the door, and a liquid substance was thrown into his face and eyes resulting in a burning sensation. The defendant then knocked Willis backward into the house. Anna Spitzer entered the room. The defendant slapped her and knocked her down. She got to her feet, and later the defendant grabbed her and threw her into the bedroom, breaking her hip. He then slapped her across the face, knocking off and breaking her glasses. Subsequently, in pursuit of valuables, the defendant, finding Spitzer could not stand up due to her injury, dragged her by the hair to another room. During the incident, Willis asked to be allowed to wash the substance off his face, and the defendant refused. At one point, in an effort to alleviate the burning, Willis attempted to get to the bathroom, but the defendant barred his way. The defendant made off with a diamond ring and approximately $30 to $40 in cash. Willis suffered extreme scarring on his face, total loss of vision in his left eye, and substantial damage to his right eye. Anna Spitzer suffered a broken hip. Anna Spitzer was 82 years of age at the time of the incident, and Willis was 56. The testimony of medical experts indicated that the burns and the injury of Willis were caused by a substance of alkaline nature that had been thrown in his face. The only treatment for such burns is to flush the area with gallons of water as soon as possible.

Defendant argues that various convictions should be vacated. He first urges, and the State concedes, that one of the home invasion convictions should be vacated since a defendant can only receive one home invasion conviction per entry. The home invasion statute (Ill. Rev. Stat. 1985, ch. 38, par. 12-11) refers to "person or persons" as potential victims which indicates that only one offense can be carved from one entry regardless of the number of victims. (People v. Hawkins (1984), 125 Ill. App. 3d 520, 466 N.E.2d 299; People v. Ammons (1983), 120 Ill. App. 3d 855, 458 N.E.2d 1031.) Therefore, we must vacate count II, the home invasion conviction involving Virgil Willis.

Defendant next asserts that the home invasion conviction involving Anna Spitzer arises from the same physical acts as the aggravated battery conviction and the residential burglary conviction. Therefore, he believes the aggravated battery and residential burglary convictions should be vacated. He is mistaken. We answered that very question, only involving burglary rather than residential burglary, in People v. Rathgeb (1983), 113 Ill. App. 3d 943, 949, 447 N.E.2d 1351, 1354:

"Neither burglary, aggravated battery, nor home invasion are included offenses of the other either by definition or as charged. Burglary occurs when an unauthorized entry is made with the intent to commit a felony or theft. (Ill. Rev. Stat. 1981, ch. 38, par. 19-1(a).) Home invasion requires no specific intent at the time of unauthorized entry but requires injury to a person after the entry. (Ill. Rev. Stat. 1981, ch. 38, par. 12-11(a)(2).) Battery can be an included offense of home invasion, but here the aggravated battery charged was based upon the battery being against a victim 60 years of age or older. (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(b)(10).) Neither by the statutory provision for home invasion, nor as charged was the victim required to be 60 years of age or older. . . . None of the convictions need be set aside because of the existence of other convictions."

We see no reason to change our decision simply because this case involves residential burglary rather than burglary.

Defendant also argues he should receive only one robbery conviction. Our review of the transcript shows the robbery charges were alternately worded counts of the same offense. One was worded with taking by the use of force and the other taking with threat of imminent use of force. Since these two counts rise out of the same physical act, one 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.) Therefore, we vacate the conviction for count IV, robbery by threatening the imminent use of force.

Defendant, therefore, stands properly convicted of count I (home invasion involving Anna Spitzer), count III (heinous battery involving Virgil Willis), count V (robbery), count VI (aggravated battery) and count VII (residential burglary). Defendant argues now that the sentences he received for this conduct are incorrect.

Defendant first alleges the extended-term sentences for the home invasion and the heinous battery convictions must be reduced since the trial court relied on conduct inherent in each offense in finding ...


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