APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
519 N.E.2d 1137, 165 Ill. App. 3d 1060, 116 Ill. Dec. 922 1988.IL.194
Appeal from the Circuit Court of Logan County; the Hon. David L. Coogan, Judge, presiding.
JUSTICE KNECHT delivered the opinion of the court. GREEN, P.J., and SPITZ, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT
Following a bench trial, defendant Jeffrey Ehrich was convicted of home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12-11(a)(2)) and residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a)). He appeals, contending (1) the State did not disprove his affirmative defense of voluntary intoxication beyond a reasonable doubt; (2) the State did not prove him guilty of burglary beyond a reasonable doubt in that there was insufficient evidence he entered a dwelling with an intent to commit a theft; (3) the State did not prove him guilty of home invasion beyond a reasonable doubt because there is no evidence he caused injury to any of the occupants of the dwelling which he entered; and (4) he is entitled to a new sentencing hearing because in imposing sentence, the trial court improperly considered as an aggravating factor an essential element of the offense of home invasion.
The charges against Ehrich stemmed from his unauthorized entry into the Lincoln residence of the Norman Clark family. Testifying on behalf of the State, Mr. Clark stated his house has three stories and a full basement. The bedrooms are on the second floor. The first floor contains a kitchen, dining room, living room, bathroom and office. At approximately 3 a.m. on the morning of July 3, 1986, he was awakened by the sound of his then seven-year-old daughter Krista crying. He went to Krista's bedroom and saw Ehrich sitting on the bed with Krista in his lap. Ehrich had his arms around Krista and his hand over her mouth. Clark began hitting Ehrich from behind in order to enable Krista to get free. The two men struggled, and the bed fell apart. Ehrich rolled on top of Clark and then stood up and started swinging at him. All the while, Ehrich was "whimpering about why I was hurting him, that he wasn't doing anything." Clark kicked Ehrich off of him and sent him falling across the room into a window.
Clark then chased Ehrich into the master bedroom, where Ehrich turned, put his fists up and said he was leaving the house. Clark told Ehrich he (Ehrich) was not going to leave, and he was going to "get down on the floor and do exactly what I tell you" until the police arrived. Clark testified he did not have any trouble understanding Ehrich's words. After Ehrich persisted in his attempts to leave the Clark home, Clark started hitting him with a bed slat. Eventually Ehrich sat down on a couch where he remained until the police arrived.
Clark further testified Ehrich gained entry to his home through an unlocked basement window, which was hinged at the top. A few days earlier Clark had taken some items out of the basement through the window and had forgotten to lock it. Directly below the window are some pipes which are two feet off the ground. There is apparently a drop of six feet from the window to the pipes. Laundry detergent which had been located on a stand near the window was found spilled on the floor after Ehrich's intrusion into the Clark home. All doors in the house were locked at the time of Ehrich's intrusion. Once inside the basement, Ehrich would have had to go through the laundry room, the furnace room and up two staircases in order to get to the second floor of the Clark home.
During the days immediately following Ehrich's intrusion, Krista and the Clark's then 11-year-old son Brian remained frightened. Krista did not want to be away from her parents. For the first several months after the incident, both children spent nights in their parents' bedroom. On the first few nights after the intrusion, Clark had to hold Krista's hand and talk to her before she could go to sleep. Prior to Ehrich's intrusion, Krista never had any problems sleeping in her own room. Krista and Brian underwent extensive counseling for problems stemming from Ehrich's intrusion into their home.
On cross-examination, Clark stated he did not smell an odor of alcohol about Ehrich on the night of the intrusion. He further testified examination of the rooms which Ehrich must have traversed in order to reach the second floor revealed nothing was disturbed, with the apparent exception of the spilled laundry detergent near the basement window through which Ehrich must have entered.
Clark's wife Gail testified that in the early morning hours of July 3, 1986, she was awakened by her husband screaming, "What are you doing in my house?" She ran to Krista's room and saw Ehrich kneeling on the floor beside Krista's bed with his head and chest on the bed as Clark pulled Ehrich's arm behind his back. On Clark's instructions, she grabbed Krista and left Krista's room for the master bedroom in order to call the police. As she heard a continuing struggle coming from Krista's room, Mrs. Clark picked up a belt. After a few minutes she returned to that room to see what was happening. She saw Clark and Ehrich struggling, saw them crash into the bed and saw Clark push Ehrich into a window. Ehrich then ran into the master bedroom. Clark followed him and continued his attempts to subdue him until the police arrived.
Mrs. Clark also described Krista's trouble in falling asleep after Ehrich's intrusion. She stated she did not notice a smell of alcohol on Ehrich's breath at the time of his intrusion.
Psychologist Leon Jackson testified as to his interviews with and counseling of Krista. He stated the child suffered from an acute and severe post-traumatic stress disorder caused by her physical contact with Ehrich. When he interviewed her on July 9, 1986, she was very frightened by what had happened. During the first interview, Krista was very withdrawn and was curled in a fetal position. Mrs. Clark had to be present during the first 15 minutes of the interview. Jackson interviewed Krista a second time on July 17, 1986. At that time she had modified her description of the events of July 3 so as to remove herself from what had actually happened. Jackson stated this was a normal defense mechanism. When asked about the prognosis for Krista, Jackson stated that even after periods of remission, certain situations would cause Krista's original feelings of anxiety, depression, and panic about her encounter with Ehrich to resurface.
Over defense objections, Jackson also described an interview of Brian Clark. He stated Brian also suffered trauma as a result of Ehrich's intrusion because he felt it was his responsibility to take care of his sister Krista, and he had not done so.
Lincoln police officer Michael Harberts, who arrested Ehrich at the Clark residence, stated he did not smell alcohol on Ehrich's breath at that time. He also testified Ehrich did not stumble or fall as he was taken from the Clark residence to the squad car.
Ehrich testified that on July 2, 1986, he was living in Elkhart with his grandmother. Around 9 or 10 a.m. he left Elkhart for Lincoln. He began walking because he did not have a car. He got a ride for part of the way, and arrived in Lincoln at about noon or 1 p.m. Ehrich first went to the Brew Tavern and had two or three beers. He then went to Madigan's Tavern and drank more beer. Then he went to the Blue Dog Tavern where he drank still more beer. During the afternoon he probably ate a sandwich and some popcorn.
Apparently toward evening, Ehrich left the Blue Dog Tavern and resumed drinking at yet another tavern, the name of which he could not remember. Upon leaving that tavern, he went to Mannie's. He recalled he was at Mannie's when the band started playing, and he drank more beer as well as shots of whiskey there. He did not remember leaving Mannie's. Ehrich estimated that on July 2, he drank 15 to 20 glasses of beer and an unknown number of shots of whiskey.
Ehrich had no recollection of being in the Clark home during the early morning hours of July 3, and he did not know any members of the Clark family. The next thing he remembered after drinking at Mannie's was awakening in a jail cell.
Lincoln police officer David Morrow also testified on Ehrich's behalf. He stated that on July 3, 1986, he responded to a call at the Clark residence. When he saw Ehrich at the Clark residence, he ...