Appeal from the Circuit Court of Kendall County. Nos. 98--CF--229 98--CF--230 98--CF--231 Honorable James M. Wilson, Judge, Presiding.
The opinion of the court was delivered by: Justice Galasso
Following a jury trial, the defendant, Glen Dale Waldrup, was found guilty of home invasion (720 ILCS 5/12--11 (West 1998)), three counts of aggravated criminal sexual assault (720 ILCS 5/12--14(a)(1) (West 1998)), and two counts of aggravated unlawful restraint (720 ILCS 5/10--3.1(a) (West 1998)). The defendant was sentenced to terms of imprisonment in the Department of Corrections as follows: 15 years on each count of aggravated criminal sexual assault to be served consecutively to each other; 20 years for home invasion; and 3 years on each count of aggravated unlawful restraint. The sentences for home invasion and aggravated unlawful restraint were ordered to be served concurrently with the sentences imposed for aggravated criminal sexual assault. The defendant filed a timely notice of appeal.
On appeal, the defendant raises the following issues: (1) whether the State proved the element of unauthorized entry beyond a reasonable doubt; (2) whether the trial court erred when, in responding to a note from the jury, it failed to clarify the doctrine of limited authority for the jury; and (3) whether the trial court erred when it ordered the defendant's sentences for aggravated criminal sexual assault to be served consecutively.
At the outset, we note that the defendant does not challenge the sufficiency of the evidence supporting his convictions of aggravated criminal sexual assault and aggravated unlawful restraint. Therefore, we will recite only those facts related to his conviction on the charge of home invasion.
Section 12--11 of the Criminal Code of 1963 defines the offense of home invasion as follows:
"(a) A person who is not a peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the dwelling place of another and remains in such dwelling place until he or she knows or has reason to know that one or more persons is present and
(1) While armed with a dangerous weapon uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs[.]" 720 ILCS 5/12--11(a)(1) (West 1996).
The gravamen of the offense is unauthorized entry. People v. Peeples, 155 Ill. 2d 422, 487 (1993).
The information in this case charged that the defendant committed the offense of home invasion in that he entered the dwelling place of Michelle Griesmann, knowing Michelle and Joseph M. (Mark) Hansen to be present therein and, while armed with a dangerous weapon, threatened the imminent use of force upon Michelle and Mark.
Michelle, who was 18 years of age at the time of the incident, testified that on July 26, 1998, Mark, who was her boyfriend, and she were in the apartment that she shared with her roommate, Autumn Wilson. Autumn was not present that evening. At approximately 1:30 a.m., while Mark and Michelle were watching television, the defendant, whom Michelle knew, entered the apartment via the back door, which had been left unlocked. The defendant, who is 6 feet 2 inches tall and weighed 198 pounds, asked where Autumn was. After Michelle explained that Autumn was at her ex-husband's, the defendant told her that he was running from the police and needed a place to stay. After Mark refused the defendant's request to go outside to look for the police, the defendant left. At Michelle's request, Mark then locked the back door. Michelle heard the defendant knocking at the back door and jiggling the door handle. She then heard a noise that sounded like the door being kicked in. The defendant entered the living room and grabbed Mark, asking why the door had been locked. When Michelle told him to stop, the defendant complied and sat on the couch.
According to Michelle, the defendant renewed his request for a place to stay, offering to pay several months' rent, at which time he pulled out several packets or pieces of paper and laid them on the table. At that point, Michelle and Mark went to bed in Michelle's bedroom, leaving the defendant sitting on the couch with the television on.
At approximately 3:30 or 4 a.m., the overhead light in the bedroom came on, and Michelle saw the defendant standing in the bedroom doorway with a knife in one hand and a cord in the other. She recognized the knife as a steak knife from the kitchen. The defendant sat on top of Mark and Michelle and began cutting up a curling iron cord. When Michelle resisted, the defendant struck her in the face. After the defendant had tied up Mark, he took Michelle into the living room, where he sexually assaulted her.
Michelle acknowledged that she met the defendant approximately one month prior to July 26, 1998, when the defendant came over to the apartment looking for Autumn. Michelle sat and talked to the defendant while he waited for Autumn. He was still there at 3 a.m. when she went to bed. She denied ever going out on a date with the defendant.
The defendant testified that he had met Michelle in May 1998 and that since that time they had had sexual relations on two occasions. On July 26, 1998, he arrived at Michelle's apartment and knocked on the door. When Michelle answered the door, she seemed surprised to see him. When he explained that the police were after him, she told him that Mark was in the apartment. When the defendant asked if he could come in, she admitted him but cautioned him not to start anything with Mark. After he explained what had happened, he asked Michelle if he could spend the night, to which Michelle agreed. Mark and Michelle went into Michelle's bedroom while the defendant remained in the living room. Later, Michelle and the defendant had consensual sex. When Mark discovered them, he came at the defendant with a knife, and the defendant left.
It is the function of the jury to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. Peeples, 155 Ill. 2d at 487. On appeal, a reviewing court, considering all the evidence in the light most favorable to the prosecution, must determine whether any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime. Peeples, 155 Ill. 2d at 487. A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant's guilt. Peeples, 155 Ill. 2d at 487.
The defendant contends that, under its theory of "limited entry," the State failed to prove beyond a reasonable doubt that his entry into Michelle's apartment was unauthorized. In his brief, the defendant quotes a portion of the information charging him with home invasion, as follows:
" 'GLEN D. WALDRUP, ...knowingly and without authority, entered the dwelling place Michelle A. Griesmann (sic) and Joseph M. Hansen, Jr. to be present within the dwelling and while armed with a dangerous weapon ***.' "
The defendant argues that the "language shift 'to be present within the dwelling and while armed with a dangerous weapon' indicates that the State's theory is one of trespass ab initio, or also known as the limited entry doctrine." The ...