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                                                                            Date: 2018.02.20
                                 Appellate Court                            14:14:21 -06'00'




                  People v. Witherspoon, 2017 IL App (4th) 150512



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             MARCELUS WITHERSPOON, Defendant-Appellant.



District & No.      Fourth District
                    Docket No. 4-15-0512



Filed               December 6, 2017



Decision Under      Appeal from the Circuit Court of Macon County, No. 14-CF-1056; the
Review              Hon. Thomas E. Griffith, Judge, presiding.



Judgment            Affirmed in part, reversed in part, and cause remanded with directions.


Counsel on          Michael J. Pelletier, Patricia Mysza, and Adrienne N. River, of State
Appeal              Appellate Defender’s Office, of Chicago, for appellant.

                    Jay Scott, State’s Attorney, of Decatur (Patrick Delfino, David J.
                    Robinson, and John M. Zimmerman, of State’s Attorneys Appellate
                    Prosecutor’s Office, of counsel), for the People.



Panel               JUSTICE STEIGMANN delivered the judgment of the court, with
                    opinion.
                    Presiding Justice Turner and Justice Appleton concurred in the
                    judgment and opinion.
                                             OPINION

¶1       Under Illinois law, an individual 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 *** [i]ntentionally causes any injury ***
     to any person or persons within the dwelling place.” (Emphasis added.) 720 ILCS
     5/19-6(a)(2) (West 2014).
¶2       After an April 2015 bench trial, the trial court found defendant, Marcelus Witherspoon,
     guilty of home invasion. The court found that defendant entered the dwelling of another
     without authority because a court order prohibited him from going to or entering that
     particular residence. Defendant had argued that he had authority because the resident, S.L.,
     consented to his entry. The court rejected that argument and later sentenced defendant to 14
     years in prison.
¶3       On appeal, defendant argues only that the State failed to prove him guilty beyond a
     reasonable doubt of home invasion because S.L. consented to his entry. We agree,
     concluding that a defendant is not guilty of home invasion when, with the resident’s consent,
     he enters that resident’s dwelling place even though his doing so is in violation of a court
     order. Accordingly, we reverse defendant’s conviction.

¶4                                        I. BACKGROUND
¶5       In August 2014, the State charged defendant in Macon County case No. 14-CF-0924 with
     domestic battery and criminal trespass to a residence. S.L. was the alleged victim in that case.
     On August 10, 2014, defendant was released on bond subject to the conditions that he refrain
     from (1) contacting S.L., (2) going to her residence, or (3) entering her residence.
¶6       In September 2014, the State charged defendant with the following crimes of which S.L.
     was the alleged victim: home invasion (720 ILCS 5/19-6 (West 2014)), aggravated criminal
     sexual assault (720 ILCS 5/12-13(a)(1) (West 2014)), domestic battery (720 ILCS
     5/12-3.2(a)(1) (West 2014)), unlawful possession of a controlled substance (720 ILCS
     570/402(c) (West 2014)), and violation of bail bond (720 ILCS 5/32-10(b) (West 2014)). The
     State alleged that these offenses were committed on August 28, 2014. Before trial, the State
     dropped the violation of bail bond charge.
¶7       In April 2015, defendant’s case went to trial, beginning as a jury trial. However, midway
     through trial, defendant waived his right to a jury, and the trial continued as a bench trial.
¶8       At trial, S.L. testified that she previously had a romantic relationship with defendant
     throughout 2014. On August 28, 2014, around 10 p.m., defendant arrived at her home. She
     and defendant argued, and defendant left with her phone and keys. S.L. testified that she
     went to bed, expecting defendant to return the items later. When she awoke around 2 a.m.,
     she discovered defendant standing over her, and he then attacked and raped her. She called
     the police around 5:30 a.m., and they arrested defendant as he slept at S.L.’s home. Police
     found three-tenths of a gram of cocaine in his pants. The State also introduced defendant’s
     condition of bond from his earlier pending criminal case, Macon County case No.
     14-CF-0924.
¶9       Defendant testified that on August 28, 2014, he had been at S.L.’s home and left to get
     marijuana. When he returned, S.L. opened the door to let him in her residence. Defendant

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       testified that they had a physical fight, and he defended himself. According to defendant, he
       had consensual sex with S.L. following the fight.
¶ 10       The trial court found defendant guilty of domestic battery and possession of a controlled
       substance but not guilty of aggravated criminal sexual assault. The trial court reserved ruling
       on the home invasion charge so that it could receive further argument from counsel regarding
       the effect of the bail bond condition. However, when the court so ordered, the court first
       essentially found that S.L. had consented to defendant entering her residence, with the court’s
       noting that “by [S.L.’s] own testimony[,] [defendant] had authority to enter [S.L.’s]
       residence.” The court further explained that if defendant’s violation of the condition of his
       bail bond that he not enter S.L.’s residence was sufficient “in and of itself” to render his entry
       as being without authority, “then he is guilty of home invasion.” However, if defendant
       violating that condition of his bail bond was not sufficient, “then he is not guilty of home
       invasion.” The trial court continued the trial so that the parties could brief this issue.
¶ 11       At a subsequent hearing in April 2015, the State argued that “judicial authority is the
       ultimate controlling factor here as far as authority to enter a residence and trumps any other
       authority that an individual might attempt to give to another person as far as entering their
       residence.” The State cited subsection (d) of the home invasion statute, which defined
       “dwelling place of another” to include a dwelling place “where the defendant maintains a
       tenancy interest but from which the defendant has been barred by a divorce decree, judgment
       of dissolution of marriage, order of protection, or other court order.” 720 ILCS 5/19-6(d)
       (West 2014). Defendant countered that the authority to enter a dwelling comes from the
       resident and that S.L. consented to defendant’s entry.
¶ 12       The trial court accepted the State’s argument and found that defendant entered S.L.’s
       residence without authority because he violated the conditions of his bond requiring him to
       stay away from and not enter her residence. The court therefore convicted defendant of home
       invasion, merged the domestic battery conviction with the home invasion conviction, and
       sentenced defendant to 14 years in prison. The court also sentenced defendant to serve a
       concurrent three-year sentence based upon his conviction for possession of a controlled
       substance.
¶ 13       This appeal followed.

¶ 14                                         II. ANALYSIS
¶ 15       On appeal, defendant argues only that the State failed to prove him guilty beyond a
       reasonable doubt of home invasion. Specifically, defendant contends that he had authority to
       enter S.L.’s home within the meaning of the home invasion statute because S.L. consented to
       his entry.
¶ 16       The State counters that defendant entered the victim’s residence without authority
       because a court order prohibited him from going to or entering that residence. The State
       maintains that a victim’s consent cannot override a court order requiring a defendant to not
       enter a particular residence. Alternatively, because the trial court found defendant guilty of
       home invasion, the State requests that we affirm the conviction for any reason the record
       supports.




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¶ 17      We disagree with the State’s arguments and reverse defendant’s conviction for home
       invasion.

¶ 18                      A. The “Without Authority” Element of Home Invasion
¶ 19       A defendant may not be convicted except upon proof beyond a reasonable doubt of every
       fact necessary to constitute the crime with which he is charged. U.S. Const., amend. XIV; Ill.
       Const. 1970, art. I, § 2; People v. Wheeler, 226 Ill. 2d 92, 114, 871 N.E.2d 728, 740 (2007).
       When reviewing a challenge to the sufficiency of the evidence, the appropriate standard is
       whether, after viewing the evidence in a light most favorable to the State, any rational trier of
       fact could have found the essential elements of the crime beyond a reasonable doubt.
       Wheeler, 226 Ill. 2d at 114, 871 N.E.2d at 740; Jackson v. Virginia, 443 U.S. 307, 318
       (1979). A trial court’s factual findings are entitled to great weight. Wheeler, 226 Ill. 2d at
       115, 871 N.E.2d at 740. However, the trial court’s construction of a statute is a question of
       law and is reviewed de novo. People v. Williams, 393 Ill. App. 3d 77, 81, 910 N.E.2d 1272,
       1276 (2009); People v. Davis, 199 Ill. 2d 130, 135, 766 N.E.2d 641, 644 (2002). A conviction
       will be reversed only when the evidence is so unreasonable, improbable, or unsatisfactory
       that it justifies reasonable doubt of defendant’s guilt. People v. Smith, 185 Ill. 2d 532, 542,
       708 N.E.2d 365, 370 (1999).

¶ 20                         1. The Trial Court’s Determinations in This Case
¶ 21       As earlier noted, the trial court here found that S.L. essentially consented to defendant’s
       entry. The trial court reasoned as follows:
                   “[The] *** issue comes down to the alleged victim’s word versus the defendant’s
               word, and in terms of how [these events] occurred[,] I simply can’t say with any
               degree of certainty. When it comes down to the fact that he simply did not have the
               authority to enter the residence, by the alleged victim’s own testimony she said,
               [‘]well, he took the keys, and he took the car[,] and I didn’t worry about it because I
               knew he was going to be back.[’] So[,] by her own testimony[,] he had authority to
               enter the residence.”
       We note that the issue before us is not whether this court would have concluded that “S.L.
       essentially consented to defendant’s entry.”
¶ 22       Nonetheless, the trial court found defendant guilty of home invasion based upon its
       understanding of the holding of People v. Howard, 374 Ill. App. 3d 705, 709, 870 N.E.2d
       959, 963 (2007). The court explained as follows:
                   “The court finds on the basis of the plain language of subsection (d) of the home
               invasion statute and the Howard[ ] underlying case that the defendant entered the
               dwelling of another without authority and intentionally caused a battery, and,
               therefore, the defendant is guilty of Count I, home invasion. There is a judgment of
               conviction entered.
                   The court does believe that the Howard case is exactly on point. *** [W]hen [the
               legislature] amended the statute with subsection (d), the case makes it very clear that
               to have authority to enter[,] one must have the requisite tenancy interest, which is
               what the limited authority cases are about, and the possessory interest[,] and when
               there is the court order barring entry, one does not have the possessory interest.


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              Therefore, that makes Mr. Witherspoon guilty in this circumstance.”

¶ 23                                       2. This Court’s Analysis
¶ 24        We disagree with the trial court’s analysis on two grounds.
¶ 25        First, the plain language of subsection (d) does not address the circumstances of this case,
       in which the trial court found that S.L. essentially consented to defendant’s entry despite the
       court order prohibiting that entry.
¶ 26        Second, Howard dealt with whether a residence was the dwelling place of another. 374
       Ill. App. 3d at 709, 870 N.E.2d at 963. The Howard court did not reach the issue before this
       court, which is whether the dwelling place’s resident had the authority to give defendant
       permission to enter her residence despite the court order prohibiting such entry. In Howard,
       the court affirmed the defendant’s conviction for home invasion because the defendant
       entered the dwelling of another without the permission of the tenant. Id. at 716, 870 N.E.2d at
       968. No court order barring such entry was involved in that case. See id. at 713-14, 870
       N.E.2d at 966-67. Thus, Howard has no bearing on whether a court order negates the consent
       given by a tenant, which is the issue in this case, as it relates to the “without authority”
       element of the offense of home invasion.
¶ 27        As earlier noted, the issue in this case is whether the consent of the resident of a dwelling
       place for a person to enter trumps—for purposes of the home invasion statute—a court order
       that prohibited that person from entering that dwelling place. Subsection (d) says nothing
       about that issue and instead addresses a situation in which a person who claims to have some
       possessory interest in a dwelling place enters it despite a court order telling him to stay away
       from it. In that situation, assuming no involvement by the dwelling place’s resident, that
       person’s entry into the dwelling place would be without authority for purposes of the home
       invasion statute because of subsection (d). But again, in the present case, we have the trial
       court’s finding that S.L. essentially consented to defendant’s entry into her residence, so case
       law addressing whether defendant would have committed a home invasion absent that
       consent is simply irrelevant.
¶ 28        By going to S.L.’s residence and then entering it, defendant might very well have
       violated conditions of his bail bond that prohibited him from doing so, and we note that the
       State initially charged him with that offense, among other charges. None of that matters. The
       only issue before us is the question of whether he entered S.L.’s dwelling place “without
       authority” because of the condition of his bail bond even though S.L. essentially consented to
       that entry (as the trial court found). We hold he did not.
¶ 29        People are sovereign in their homes, and the law should be loath to attempt to regulate
       whom homeowners may permit to enter. This remains true even though a court order exists
       directing some person to stay away from that residence and to not enter it. The homeowner
       may simply change her mind or otherwise decide that—for whatever reason—she wishes to
       admit into her home a person who is otherwise under a court order not to enter. Her decision
       may be unwise, but it is one that the law must respect, particularly regarding a situation, like
       this case, where a person charged with a Class X offense may have relied upon that consent.
¶ 30        Our research about the narrow issue before us has not disclosed many cases on point, but
       the few we found support our conclusion. For instance, in State v. Hall, 47 P.3d 55, 56 (Or.
       Ct. App. 2002), the defendant was convicted of criminal trespass and argued on appeal that


                                                   -5-
       because he was given permission to enter the premises by the owner, he was improperly
       convicted even though a court order prohibited him from entering those premises. The
       appellate court agreed with the defendant and reversed his conviction, rejecting the State’s
       argument (which the trial court had accepted) that the owner’s invitation to the defendant to
       enter was irrelevant in light of the conditions of the bond through which the defendant had
       obtained his release from jail. He had been in jail on an earlier charge involving a claim that
       he physically assaulted the same victim. The appellate court explained its decision, in part, as
       follows:
               “As a general rule, one of the incidents of property ownership is the right to invite
               other persons to use property or, conversely, to exclude them from doing so. See, e.g.,
               Robert A. Cunningham et al., The Law of Property § 7.1, 411 (1984) (right to invite or
               to exclude ‘is the most nearly absolute of the many property rights that flow from the
               ownership or other rightful possession of land’). That much the state does not contest.
               ***
                   *** Defendant signed a conditional release order that restrained him from
               engaging in certain conduct. But nothing in the record of this case suggests that the
               conditional release order limited [the victim’s] authority to invite whomever she
               pleased to her residence. In short, the state failed to establish that [the victim] lacked
               actual authority to invite defendant onto her premises.” (Emphases in original.) Id. at
               57.
¶ 31       Two other decisions of the Court of Appeals of Oregon cited Hall approvingly. They are
       State v. Maxwell, 159 P.3d 1255 (Or. Ct. App. 2007), and State v. Klein, 342 P.3d 89 (Or. Ct.
       App. 2014).

¶ 32                                           B. Double Jeopardy
¶ 33       Alternatively, the State argues that even if this court concludes that the trial court erred
       by finding defendant guilty of home invasion based upon his violation of the conditions of
       his bail, the evidence nonetheless was sufficient to prove defendant guilty. By making this
       argument, the State is asking us to second-guess the trial court’s finding that S.L. consented
       to defendant’s entry. We decline the State’s request to do so.
¶ 34       “In criminal cases[,] the State may appeal only from an order or judgment the substantive
       effect of which results in dismissing a charge for any of the grounds enumerated in section
       114-1 of the Code of Criminal Procedure of 1963 [(725 ILCS 5/114-1 (West 2014))];
       arresting judgment because of a defective indictment, information or complaint; quashing an
       arrest or search warrant; or suppressing evidence.” Ill. S. Ct. R. 604(a) (eff. Dec. 11, 2014). If
       the trial court as trier of fact finds that a defendant is not guilty, the State may not appeal that
       decision even if the court made a legal error. Sanabria v. United States, 437 U.S. 54, 64
       (1978); People v. Laxton, 139 Ill. App. 3d 904, 906-07, 488 N.E.2d 303, 304 (1986). To do
       otherwise would subject the defendant to double jeopardy. U.S. Const., amend. V; Ill. Const.
       1970, art. I, § 10; People v. Bean, 135 Ill. App. 3d 336, 338-39, 481 N.E.2d 888, 890-91
       (1985).
¶ 35       In this case, the trial court found defendant factually innocent of home invasion due to
       S.L.’s consent but guilty as a matter of law due to the court order barring him from entering
       that residence. That is, the court made a specific factual finding that S.L. essentially granted
       defendant authority to enter her dwelling. However, we have concluded that the court made

                                                    -6-
       an erroneous legal conclusion when it ruled that S.L.’s permission was irrelevant because
       defendant’s entry into S.L.’s residence was in violation of the conditions of his bail bond.
¶ 36        Apparently foreseeing the possibility that this court might so conclude, the State asks us
       nevertheless to affirm defendant’s home invasion conviction. Citing Beacham v. Walker, 231
       Ill. 2d 51, 61, 896 N.E.2d 327, 333 (2008), the State suggests that this court can affirm
       defendant’s conviction based on “any ground which is called for by the record, regardless of
       whether the lower court relied on those grounds and regardless of whether the lower court’s
       reasoning was correct.” The State further asks this court to review the evidence in the light
       most favorable to the State. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277
       (2005). However, for the reasons stated, our doing so would violate Illinois Supreme Court
       Rule 604(a) (eff. Dec. 11, 2014) and the double jeopardy clause of the fifth amendment,
       which prohibits an appellate court from reversing a trial court’s factual findings that resulted
       in an acquittal.
¶ 37        We reiterate that the trial court has already found defendant factually innocent of the
       home invasion charge. To review the record on appeal in the light most favorable to the State
       and to then find defendant factually guilty of home invasion (contrary to the trial court’s
       findings) would subject defendant to double jeopardy. U.S. Const., amend. V; Ill. Const.
       1970, art. I, § 10.

¶ 38                                     III. CONCLUSION
¶ 39      We reverse defendant’s conviction for home invasion and remand for sentencing on his
       conviction for domestic battery. We otherwise affirm.

¶ 40      Affirmed in part, reversed in part, and cause remanded with directions.




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