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July 22, 1994


Appeal from the Circuit Court of Lake County. No. 92-CF-1205. Honorable Christopher C. Starck, Judge, Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Quetsch, Woodward, Geiger

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Defendant, Timothy Cunningham, was charged with two counts of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3(a) (now 720 ILCS 5/19-3(a) (West 1992))). A jury acquitted him of the first count, residential burglary with the intent to commit a theft, but found him guilty of residential burglary with the intent to commit a criminal sexual assault. The trial court sentenced defendant to 15 years' imprisonment. Defendant appeals his conviction and raises the following issues: whether the State proved beyond a reasonable doubt that defendant had the intent to commit a sexual assault; andwhether an attached garage is part of a dwelling for purposes of residential burglary.

We summarize here only the essential facts. Defendant had been employed as a laborer by Robert K. In June 1991, Mary L. K., Robert's wife, began to receive phone calls in which the caller would hang up. In later calls, the caller spoke, and Mary recognized that it was defendant's voice. Defendant always called when Robert was not at home. Because of the calls, the K's made a police report and had a telephone trap placed on their phone on August 16 and 20, 1991. Mary kept a diary of the comments defendant made during the calls on those days; defendant made similar comments in calls made before and after August 16 and 20. The K's pressed charges against defendant for telephone harassment, and he admitted to making harassing calls. Between September 11, 1991, and March 13, 1992, defendant did not have access to a telephone.

Around 5 a.m. on May 13, 1992, Robert left his home to go on a business trip out of State. Mary and her five children, ages 7 months through 10 years old, were asleep. He drove only a short distance when he realized that he had forgotten some items at home. He returned to his house and entered the attached garage. He had been gone about 10 to 15 minutes. At the bottom of a stairway he discovered defendant standing at the door leading into the family room. Robert had not seen defendant in about a year, and he asked defendant what he was doing there. Defendant fled without answering. The police arrested defendant shortly thereafter. Neither Mary nor Robert had given defendant permission to be in the garage.

Later, Robert discovered a partially smoked, stamped-out cigarette on the third step. Neither he nor his wife smoked. He also found a large screwdriver on a ledge near the family room door. This screwdriver had been in the Ks' storage barn. The weatherstripping on the side door to the garage and the lock on that door had been damaged. The puncture marks on the weather-stripping matched the tip of the screwdriver found by the family room door.

Defendant first contends that the State failed to prove beyond a reasonable doubt that defendant committed residential burglary with the intent to commit a criminal sexual assault. Apparently, defendant concedes that his intent in committing the burglary was to engage in sexual intercourse with Mary; therefore, we focus our analysis on whether the evidence establishes, beyond a reasonable doubt, that defendant intended to use force.

A defendant's intent may be inferred from the character of his acts and the circumstances surrounding the commission of the offense. ( People v. Hopkins (1992), 229 Ill. App. 3d 665, 672, 171 Ill. Dec. 208, 593 N.E.2d 1028.) Whenthe facts give rise to more than one inference, the reviewing court may not substitute its judgment for that of the jury unless the jury's inference in inherently impossible or unreasonable. ( People v. Price (1992), 225 Ill. App. 3d 1032, 1035, 168 Ill. Dec. 78, 589 N.E.2d 192.) It is the province of the jury to draw reasonable inferences from the evidence, and we may not overturn a finding of guilt unless the evidence is so unreasonable, improbable or unsatisfactory that there remains a reasonable doubt of defendant's guilt. ( People v. Stanciel (1992), 153 Ill. 2d 218, 235, 180 Ill. Dec. 124, 606 N.E.2d 1201.) We view all the evidence in the light most favorable to the prosecution to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 131 Ill. Dec. 78, 538 N.E.2d 453.

Defendant argues that the evidence does not establish that when he entered the garage he intended to have sexual intercourse by force with Mary. He analogizes the facts here to those in People v. Toolate (1984), 101 Ill. 2d 301, 78 Ill. Dec. 153, 461 N.E.2d 987. In Toolate, the supreme court reversed a defendant's conviction of residential burglary with the intent to commit rape. The defendant entered the victim's home while she slept, formed an enclosure with furniture around one side of the bed, and "pulled on her left side." The court concluded that "strange as Toolate's behavior was, the record contains no evidence whatever that he used force against or that intended to have sexual intercourse" with the victim. Toolate, 101 Ill. 2d at 305.

Defendant's reliance on Toolate is misplaced. In Toolate, there was no evidence of the defendant's intent. Here, as noted above, defendant concedes that he intended to have sex with Mary; the only question is whether he intended to use force. The State presented such evidence in the form of the content and number of the harassing phone calls.

Defendant also relies on People v. Matthews (1976), 44 Ill. App. 3d 342, 3 Ill. Dec. 84, 358 N.E.2d 84. In Matthews, the defendant entered the victim's apartment in the afternoon, through an unlocked screen door. He sat across from her in her living room and said, "'You are wearing your ring.'" ( Matthews, 44 Ill. App. 3d at 343.) She ordered him to leave, and he responded, "'I want to fuck you.'" ( Matthews, 44 Ill. App. 3d at 343.) He then started walking toward the back of the house and suggested that she call the police. She went to a neighbor's apartment, called the police, and returned with the neighbor. The defendant was standing in the home, naked from the waist down. The appellate court reversed the defendant's conviction of burglary with the intent to rape because his statement and nakedness were not sufficient evidence that he intended to use force to have sex with the victim. In particular, the court noted that he did not threaten the victim orattempt to prevent her from leaving, and it was in the middle of the afternoon. The court emphasized that "his statement, although worded in the active and not in the subjunctive, does not, in itself, convey the impression that force was to have been a necessary ingredient of the proposed coupling." 44 Ill. App. 3d at 344.

We conclude that Matthews also is distinguishable. Here, according to Mary's diary of the calls on August 16, defendant made over 100 calls that day, and 70 of those calls were between 6:40 a.m. and 7:54 a.m., when she took the phone off the hook for a while. In some of these calls, defendant asked what Mary was wearing and whether she was alone. In addition, defendant made the following comments, some more than once: "'I want your p/--; Oh I'm c/--; Why won't you talk to me? Don't ...

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