Appeal from the Circuit Court of Kane County. No. 07-CF-638 Honorable Timothy Q. Sheldon, Judge, Presiding.
The opinion of the court was delivered by: Presiding Justice Jorgensen
Order filed April 7, 2011
PRESIDING JUSTICE JORGENSEN delivered the judgment of the court, with opinion. Justices Bowman and Burke concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant, Cedric L. Bouchee, was convicted of home invasion (720 ILCS 5/12-11(a)(6) (West 2006)) and criminal sexual assault (720 ILCS 5/12-13(a)(1) (West 2006)). He received consecutive prison sentences of six and four years, respectively. Defendant appeals, contending that his criminal sexual assault conviction must be vacated because, as charged, criminal sexual assault is a lesser included offense of home invasion. We affirm.
¶ 2 Counts I and II of an indictment charged defendant with home invasion, in that he entered the dwelling of T.C., knowing her to be present, "and while within said dwelling, committed a criminal sexual assault against T.C. in that he put his penis in the vagina of T.C." Counts III and IV charged defendant with criminal sexual assault in that "by the use of force said defendant placed his penis in the vagina of T.C." The State dismissed counts II and IV.
¶ 3 Evidence at trial showed that on March 7, 2007, defendant and Mychal Postlewaite went to the home of T.C., a high school classmate. Defendant forced his way inside T.C.'s house, pushed her down a hallway and into a bedroom, and forcibly had sex with her.
¶ 4 A jury found defendant guilty of both counts. The trial court sentenced him to six years' imprisonment for home invasion and four years' imprisonment for criminal sexual assault. The sentences had to be consecutive. See 730 ILCS 5/5-8-4(a)(i), (a)(ii) (West 2006). Defendant timely appealed.
¶ 5 Defendant argues that his conviction of criminal sexual assault must be vacated because, as charged in the indictment, criminal sexual assault is a lesser included offense of home invasion.
¶ 6 The supreme court established the one-act, one-crime rule in People v. King, 66 Ill. 2d 551 (1977). Under that rule, multiple convictions are prohibited where the offenses are carved from the same physical act or where, with regard to multiple acts, one of the offenses is a lesser included offense of the other. King, 66 Ill. 2d at 566; see People v. Lindsey, 324 Ill. App. 3d 193, 200 (2001). However, multiple convictions "should be permitted in all other cases where a defendant has committed several acts, despite the interrelationship of those acts." King, 66 Ill. 2d at 566. "Act" is intended to mean any "overt or outward manifestation which will support a different offense." King, 66 Ill. 2d at 566.
"Decisions following King have explained that the one-act, one-crime doctrine involves a two-step analysis. [Citation.] First, the court must determine whether the defendant's conduct involved multiple acts or a single act. Multiple convictions are improper if they are based on precisely the same physical act. Second, if the conduct involved multiple acts, the court must determine whether any of the offenses are lesser-included offenses. If an offense is a lesser-included offense, multiple convictions are improper." People v. Miller, 238 Ill. 2d 161, 165 (2010).
¶ 7 Here, defendant does not dispute that his conduct involved multiple acts. His home-invasion conviction was based not merely on his act of criminal sexual assault, but also on his act of entering the home. The entry was a distinct act that supported a different offense. See People v. Rodriguez, 169 Ill. 2d 183, 188-89 (1996) (defendant properly convicted of aggravated criminal sexual assault and home invasion where, although both counts alleged a sexual assault, defendant's unlawful entry into victim's bedroom was a separate act supporting a second conviction).
¶ 8 Defendant argues, however, that criminal sexual assault is a lesser included offense of home invasion. In People v. Novak, 163 Ill. 2d 93, 112-14 (1994), the supreme court held that the charging-instrument approach governs whether an uncharged offense is a lesser included offense of a charged offense. Initially, defendant based his argument on this approach, under which an offense is lesser included if it is described in the charging instrument. Novak, 163 Ill. 2d at 106-07. However, after defendant filed his initial brief, the supreme court held in Miller, 238 Ill. 2d at 173, that the abstract-elements approach applies where, as here, the issue is whether a charged offense is a lesser included offense of another charged offense. Under this approach, "If all of the elements of one offense are included within a second offense and the first offense contains no element not included in the second offense, the first offense is deemed a lesser-included offense of the second." Miller, 238 Ill. 2d at 166. Whether one charge is a lesser included offense of another is a legal question, which we review de novo. People v. Nunez, 236 Ill. 2d 488, 493 (2010).
¶9 As Miller explained, the abstract-elements approach is "the strictest approach in the sense that it is formulaic and rigid, and considers 'solely theoretical or practical impossibility.' In other words, it must be impossible to commit the greater offense without necessarily committing the lesser offense." Miller, 238 Ill. 2d at 166 (quoting Novak, 163 Ill. 2d at 106). In Miller, the issue was whether retail theft was a lesser included offense of burglary. The court held that ...