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02/19/97 PEOPLE STATE ILLINOIS v. JOEY HICKS

February 19, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JOEY HICKS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 94--CF--1238. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication March 20, 1997.

The Honorable Justice Rathje delivered the opinion of the court. Thomas, J., concurs. Presiding Justice Geiger, concurring in part and dissenting in part.

The opinion of the court was delivered by: Rathje

The Honorable Justice RATHJE delivered the opinion of the court:

Following a jury trial, defendant, Joey Hicks, was convicted of two counts of home invasion (720 ILCS 5/12--11(a)(2) (West 1994)). The court sentenced him to the minimum six-year term of imprisonment. Defendant appeals, raising the following issues: (1) whether there was sufficient evidence supporting the conviction that was based on accountability; (2) whether the court erred in refusing to instruct the jury on the affirmative defense of defense of property; and (3) whether one of his convictions must be vacated because there was only one entry. We affirm and remand.

Officer Richard Johnson of the Aurora police department testified that at around 8:20 p.m. on June 18, 1994, he was dispatched to 606 N. Lancaster. A 911 call had been placed from that address, but the caller either hung up or was disconnected. When Johnson arrived, Michael Stewart was standing outside the house. Stewart had a swollen left eye and scratches on his body. Johnson went inside and found David Edmonds lying face up on the couch. Edmonds' head was bleeding, his left eye was swollen shut, his jaw was swollen, and he had cuts on his face.

Johnson testified that he observed shoe prints on the front door. There were rubber remnants, like pencil eraser shavings, on the prints. Johnson believed the prints were from tennis shoes. He identified a photograph as accurately depicting the shoe prints on the front door.

Michael Stewart testified that he knew defendant from when he used to live near him and that he knew a woman named Donna Hedge through defendant. He used to buy marijuana from Hedge, and on the date in question, he owed her $50 that he had borrowed to buy marijuana. According to Stewart, on June 18, 1994, he was riding his bike when defendant and Hedge pulled up in a car and began harassing him about the money he owed Hedge. Defendant was angry and told Stewart he was going to "get" him. Defendant jumped out of the car and began to chase Stewart on foot, while Hedge chased Stewart in the car. Stewart rode his bike to Edmonds' house and went inside. Edmonds is Stewart's girlfriend's brother.

Stewart looked outside and saw the car pulling up. John Davis was now with defendant and Hedge. Stewart then locked the front door. Davis, defendant, and Hedge came up to the door and asked for Stewart to come out, and Stewart kept saying no. Edmonds asked the trio what they wanted, and they kept pushing and kicking on the door, trying to force their way in. They were finally able to force their way inside. At the time, Stewart had just dialed 911. Defendant ripped the phone from Stewart's hand. Defendant then picked Stewart up, threw him into a bedroom, punched him, and stomped on his head. Defendant could see Davis beating Edmonds in the other room. Davis, defendant, and Hedge left after about 5 or 10 minutes. Stewart denied that he stole a gold chain from Hedge, and he denied hearing Davis, defendant, or Hedge yelling about the chain when they came to the door.

David Edmonds testified that on the evening in question Stewart had been at his house. Stewart left for about five minutes, and when he returned, three people pulled up in a car in front of the house. The people came up to the door and asked for Mike Stewart. Stewart went to the door, and Edmonds overheard him say that he could not let anyone in because he did not live there. When the people started pushing and kicking on the door, Edmonds and Stewart tried to hold it closed. They managed to get inside, and Edmonds told them to leave. Defendant then threw Stewart into a bedroom. Edmonds could hear grunts and groans coming from the bedroom. He was just standing there when Davis spun around and hit him. Edmonds tried to sit up, but Davis hit him again. Davis was hitting him with something that was cutting him. He suffered numerous cuts to the face and torn cartilage in his jaw. He went to the hospital and received stitches.

On cross-examination, Edmonds testified that when Davis, defendant, and Hedge were still outside the door, he heard them yelling something about a golden necklace and being ripped off. Edmonds also testified that the door was not locked when it was kicked, but rather was ajar, and that he and Stewart were trying to hold it closed.

Timothy Hedge testified for the defense. On the evening in question, he was working on a car at his girlfriend's (Jennifer Hester's) house. Davis was helping him. Timothy's sister, Donna, and her boyfriend (defendant) came over to get some tapes. Defendant's and Hedge's children, Joe and Janice, were with them in their car. Hedge and the children were still in the car when Stewart rode up on his bicycle. Hedge and Stewart spoke for a few minutes, and then Timothy saw Stewart reach in the car and pull a necklace off Hedge's neck. Hedge then honked the car's horn. Defendant and Davis got in the car and went with Hedge after Stewart. The two kids were still in the car.

Jennifer Hester testified that on June 18, 1994, defendant and Hedge were coming over to borrow some Nintendo games. Hester took a game out to Hedge in the car while defendant went inside to look at the other games. Hedge's children were also in the car. As Hester was walking back toward the house, she saw someone pull up on a bicycle. She recognized him as Michael Stewart. Hester saw Stewart talking to Hedge, and then she saw Stewart reach into the car and then pull his hand out quickly. Stewart then "took off" on his bike. Hedge started honking the horn and yelling that someone took her chain. Hester went inside and told defendant that Stewart was messing with Donna. Defendant left, and Hester did not see anything else. Hedge later told her that they got the chain back.

Denise Turner testified that on the evening of June 18, 1994, she and her fiance, Noel Price, were out walking her dog near Barber Greene Park. Price pointed out a man coming around the corner on a bicycle and mentioned his name. A car was following the bicycle. Turner saw the bicyclist ride up to a house, throw his bike down, and run inside. Price told Turner that the people in the car looked like defendant and Hedge, who are acquaintances of Price and Turner. A third person and two children were also in the car. Turner saw defendant and the other man go up to the door and begin talking with someone. Turner could not hear the conversation. Turner then saw the two men walk inside, and she did not see any kicking, ...


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