People v. Rachel

• Decision Date: 11 April 1984
• Docket Number: No. 83-315,83-315
• Citation: 123 Ill.App.3d 600,78 Ill.Dec. 840,462 N.E.2d 959
• Parties: , 78 Ill.Dec. 840 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tory L. RACHEL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 959

462 N.E.2d 959

123 Ill.App.3d 600, 78 Ill.Dec. 840

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tory L. RACHEL, Defendant-Appellant.

No. 83-315.

Appellate Court of Illinois Second District.

April 11, 1984.

Rehearing Denied May 17, 1984.

G. Joseph Weller, Deputy State Appellate Defender, Kathleen J. Hamill, Elgin, for defendant-appellant.

Theodore Floro, States Atty., Woodstock, Phyllis J. Perko, Judith M. Pietrucha, States Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

NASH, Justice:

After trial by jury defendant, Tory Lee Rachel, was found guilty of indecent liberties with a child (Ill.Rev.Stat.1981, ch. 38, par. 11-4(a)(3)), home invasion (Ill.Rev.Stat.1981, ch. 38, par. 12-11(a)(2)) and battery. He was sentenced to concurrent terms of six years imprisonment by the circuit court for indecent liberties and home invasion. Defendant appeals contending (1) he was not proved guilty beyond a reasonable doubt of home invasion; (2) that the admission in evidence of certain testimony was irrelevant and prejudicial; and (3) that he was denied effective assistance of counsel when his attorney tendered an improper jury instruction which prejudiced defendant.

Evidence adduced at trial disclosed that on July 27, 1982, in the early evening, Suzanne Dowell and Kristin Voska, aged 13 years, were walking home from the beach when a car, later identified as defendant's, came towards them, stopped, then turned around and went back in the other direction. A few minutes later as they were walking, defendant came out of the bushes near the road and followed them. The girls noticed defendant's car parked nearby with the driver's door open; they became frightened and walked faster until they reached the driveway of a house where a man was standing. The girls told the man about the defendant's conduct and continued walking home. While doing so they again saw defendant's car pass them on the road and proceed in the same direction in which they were walking. On their way home, the girls walked past the "Hager" house.

In the Hager house at that time on the same evening the Hager sisters, Hollie, aged 15 years; Heidi, aged 14 years; Valli, aged 11 years; and Heather, aged 8 years, were home alone. Heather and Valli were in a bedroom playing a video game, Hollie was in the kitchen baking and Heidi was sleeping on the living room couch. When Valli and Heather looked up from their game, they noticed defendant looking at them through the bedroom window. He asked them if their father was home and Valli responded that he was not; defendant then asked if their mother was home and Valli responded that she was, but Heather reminded her that she had gone out. Defendant then walked away in the direction of the front door and Valli went to the kitchen to ask Hollie if she expected any callers. All three sisters then heard Heidi scream from the living room and the girls next saw defendant running out of the front door. Defendant got into his car, which had been parked pointing away from the house, and as he drove off he turned around and waved and smiled at the girls.

Heidi Hager testified she had been sleeping on the living room couch when she was awakened by a man who was pulling at the crotch of her shorts and trying to get his hand into them. A pillow was over her face. Heidi got the pillow off of her face and screamed whereupon her sisters ran into the room and the man ran from the house. Heidi testified that she had struggled with defendant in attempting to get the pillow off of her face so that she could breath. She was frightened and crying, but freed her face sufficiently so that she could scream. On cross-examination, Heidi testified that she had sustained no scratches, bruises or swelling as a result of the incident and required no medical treatment.

Defendant testified on his own behalf and in explanation for his presence at the Hager home on July 27, 1982, stated that in early June 1982 he had been in the vicinity of the Hager home en route to a customer's house and had stopped at the Hager's for directions. A lawn party was then in progress and a girl had given him directions. When defendant informed her he was a car salesman the girl said she was interested in buying a car, but had financial problems.

Defendant testified further that on July 27, 1982, he had spent the day at a sales promotion seminar and that evening was proceeding to the Hager home to see whether he could sell a car. On the way, he saw someone who looked like the girl he had spoken to at the Hagers' in early June and turned down the road towards her. Because he could not tell for sure whether the girl was the same person, he decided to approach her on foot and parked his car around the corner and cut back through a yard walking up near to the girls. He then decided neither of the girls was the person to whom he had spoken previously and returned to his car and drove to the Hagers' home.

At the Hagers', defendant testified no one answered when he knocked on the door. He heard noises in the house and looked into a bedroom window where he saw two young girls playing, and he asked if their parents were home. He was told they were not and that he could talk to a sister. Defendant walked to the partially opened front door, stuck his head in and said "excuse me" a couple of times. He could see someone lying on the couch so he entered the room, walked over to the couch, and placed his hand on the sleeping person's shoulder and hip to shake her in order to wake her up. The sleeper awoke and began to yell and scream, frightening defendant who then hurried out the door to his car. Before driving away he shrugged and waved goodbye to two girls he saw looking out of the house after him. Defendant testified he did not put his hands in Heidi's pants or try to remove them nor did he intend to arouse his sexual desires or injure the girl.

In the conference on instructions the State tendered an instruction based upon Illinois Pattern Jury Instruction, Criminal, No. 2.01 (2d ed. 1981) (hereinafter cited as IPI Criminal) stating that the offense of home invasion includes the offense of battery and instructions defining the offense when committed by one who causes bodily harm to another (Ill.Rev.Stat.1981, ch. 38, par. 12-3(a)(1)). Defendant's counsel also tendered instructions as to battery based upon having physical contact of an insulting or provoking nature with another (Ill.Rev.Stat.1981, ch. 38, par. 12-3(a)(2)). These instructions were given to the jury and general verdict forms for the offense of battery were submitted to it.

Defendant contends first that the evidence was insufficient to establish he caused injury to the complainant and that necessary element of the offense of home invasion was thus lacking.

The home invasion statute provides, inter alia, as follows:

"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 and * * *.

Intentionally causes any injury to any person or persons within such dwelling place." (Ill.Rev.Stat.1981, ch. 38, par. 12-11(a)(2).)

Defendant asserts that since Heidi Hager was not bruised, scratched or swollen because of defendant's assault upon her that she was not injured.

It is true that the girl was not treated for any injury and there were no marks left on her body. An officer who interviewed her two hours after the incident stated she was shaking and crying at that time, but mentioned no injury which he had observed. The only evidence relating to possible injury to the girl was her testimony defendant held a pillow against her face and pushed her back into the couch. She stated it was then difficult to breath and she struggled to free herself from the constraints of the pillow in order to scream.

The question of what constitutes "any injury" for purposes of the home invasion statute has not been directly considered by our reviewing courts. In People v. Bitner (1980), 89 Ill.App.3d 1106, 1112, 45 Ill.Dec. 370, 412 N.E.2d 721, leave to appeal denied, the court considered whether the offense of battery (Ill.Rev.Stat.1977, ch. 38, par. 12-11(a)(1)), in which defendant had been charged with causing bodily harm, was a lesser included offense of home invasion so as to preclude defendant's convictions of both offenses. The court noted that to commit home invasion in that case defendant had to have caused "injury" to a person to be within the statute, while the battery statute speaks of "bodily harm". It found that while injury and bodily harm were not identical terms, "that to cause an injury within the meaning of the home-invasion statute, one must cause bodily harm, thus committing a battery. Thus, whenever a person violates the home-invasion statute, he simultaneously commits a battery." The court concluded in People v. Bitner that battery was a lesser-included offense of home invasion and thus barred as a multiple conviction for the same conduct under the principles of People v. King (1977), 66 Ill.2d 551, 6 Ill.Dec. 891, 363 N.E.2d 838.

In People v. Foster (1982), 103 Ill.App.3d 372, 377, 59 Ill.Dec. 145, 431 N.E.2d 430, this court noted People v. Bitner had held that to cause injury within the meaning of the home-invasion statute one must cause bodily harm, thus committing a battery. This court also noted, however, that evidence of visible injury to the victim is not necessary in order for a battery to have occurred. (People v. Choate (1979), 71 Ill.App.3d 267, 276, 27 Ill.Dec. 606, 389 N.E.2d 670; see People v. Hamilton (1980), 81 Ill.App.3d 297, 36 Ill.Dec. 637, 401 N.E.2d 318, leave to appeal denied; People v. Taylor (1977), 53 Ill.App.3d 810, 815, 11 Ill.Dec. 342, 368 N.E.2d 950.) In People v. Foster evidence was presented that defendant entered the victim's residence and...