                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Bouchee, 2011 IL App (2d) 090542




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    CEDRIC L. BOUCHEE, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-09-0542


Rule 23 order filed        April 7, 2011
Modified opinion filed
on denial of rehearing     December 6, 2011


Held                       Defendant’s convictions for home invasion and criminal sexual assault
(Note: This syllabus       were upheld over defendant’s contention that criminal sexual assault was
constitutes no part of     a lesser included offense of home invasion, since defendant’s conduct
the opinion of the court   involved multiple acts, his entry was distinct from the assault, and
but has been prepared      adopting defendant’s argument would require a presumption that the
by the Reporter of         legislature intended that a person could commit the gravamen of a home
Decisions for the          invasion and be punished for the same, but receive no separate
convenience of the         punishment for the more serious sex offense committed inside the
reader.)
                           victim’s dwelling.


Decision Under             Appeal from the Circuit Court of Kane County, No. 07-CF-638; the Hon.
Review                     Timothy Q. Sheldon, Judge, presiding.



Judgment                   Affirmed.
Counsel on                 Thomas A. Lilien and Darren E. Miller, both of State Appellate
Appeal                     Defender’s Office, of Elgin, for appellant.

                           Joseph H. McMahon, State’s Attorney, of St. Charles (Lawrence M.
                           Bauer and Scott Jacobson, both of State’s Attorneys Appellate
                           Prosecutor’s Office, of counsel), for the People.


Panel                      PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                           court, with opinion.
                           Justices Bowman and Burke concurred in the judgment and opinion.




                                             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

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       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 it was not, as “it is possible to commit burglary without necessarily
       committing retail theft.” Miller, 238 Ill. 2d at 176.
¶ 10        Likewise, here, it is possible to commit home invasion without necessarily committing
       criminal sexual assault. See, e.g., 720 ILCS 5/12-11(a)(5) (West 2006) (a person can commit
       home invasion by entering and then “[p]ersonally discharg[ing] a firearm that proximately


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       causes,” inter alia, a death). Further, even if we may consider only the statutory subsection
       under which defendant was charged, it is possible, even under that subsection, to commit
       home invasion without necessarily committing criminal sexual assault. See 720 ILCS 5/12-
       11(a)(6) (West 2006) (a person can commit home invasion by entering and then committing,
       inter alia, criminal sexual abuse). Thus, under the abstract-elements approach, criminal
       sexual assault is not a lesser included offense of home invasion.
¶ 11       Addressing Miller in his reply brief and on rehearing, defendant acknowledges that
       “subsection (a)(6) home invasion theoretically could be predicated on other sex crimes.”
       However, he insists that, because the indictment “specifically charge[d]” that he committed
       home invasion by entering and then committing criminal sexual assault, it was impossible
       for him to commit home invasion, “[a]s charged,” without committing the criminal sexual
       assault. Defendant, though, is merely reverting to the charging-instrument approach. Quite
       arguably, the indictment for home invasion described the criminal sexual assault, such that,
       under the charging-instrument approach, the criminal sexual assault was a lesser included
       offense. Although the abstract-elements approach does consider “the statutory elements of
       the charged offenses” (emphasis added) (Miller, 238 Ill. 2d at 175), it considers the charged
       offenses in the statutory abstract, not in terms of how they are framed in a particular charging
       instrument. As noted, it “considers ‘solely theoretical or practical impossibility.’ ” Miller,
       238 Ill. 2d at 166 (quoting Novak, 163 Ill. 2d at 106). When defendant admits that home
       invasion “theoretically could be predicated on” something other than criminal sexual assault,
       he essentially admits that his argument must fail.
¶ 12       Defendant asserts, however, that under section 12-11(a)(6) of the Criminal Code of 1961
       (720 ILCS 5/12-11(a)(6) (West 2006)) home invasion is “analogous to felony murder, where
       the predicate felony is deemed to be a lesser-included offense of felony murder. People v.
       Smith, 183 Ill. 2d 425, 432 (1998).” Smith, of course, preceded Miller. However, in Miller,
       the supreme court stated that the abstract-elements approach is “equivalent” to “the same
       elements test” that is employed for double jeopardy purposes. Miller, 238 Ill. 2d at 174-75.
       The court then cited with approval an Arizona case that applied that test and held that,
       indeed, the predicate felony is a lesser included offense of felony murder. Miller, 238 Ill. 2d
       at 175 (citing Lemke v. Rayes, 141 P.3d 407, 413 (Ariz. Ct. App. 2006)). In Lemke, the court
       noted:
           “[A]pplying the [same-elements] test, felony murder (based on an armed robbery
           predicate) is the same offense as armed robbery because armed robbery does not contain
           an element that is not also contained in felony murder. Indeed, the United States Supreme
           Court has consistently treated the predicate felony for felony murder and the felony-
           murder charge itself as the ‘same offense’ under the Double Jeopardy Clause. [Citations.]
           That armed robbery is typically only one of several felonies that may be the predicate for
           felony murder does not matter because, under Harris [v. Oklahoma, 433 U.S. 682 (1977)
           (per curiam)], the predicate felony in a felony-murder prosecution is treated ‘as a species
           of lesser-included offense.’ ” Lemke, 141 P.3d at 414 (quoting Illinois v. Vitale, 447 U.S.
           410, 420 (1980)).
       Thus, we do not deny the viability of defendant’s statement of the law as to felony murder.
       But the question remains whether felony murder is truly “analogous” to subsection (a)(6)

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       home invasion. We conclude that it is not.
¶ 13        To be sure, like felony murder (see 720 ILCS 5/9-1(a)(3) (West 2010)), subsection (a)(6)
       home invasion can be based on any of various predicates. However, critical to this inquiry
       is the fact that the same-elements test, and thus the abstract-elements test, is simply a rule of
       statutory construction:
            “The assumption underlying the rule is that Congress ordinarily does not intend to
            punish the same offense under two different statutes. Accordingly, where two statutory
            provisions proscribe the ‘same offense,’ they are construed not to authorize cumulative
            punishments in the absence of a clear indication of contrary legislative intent.”
            (Emphases added.) Whalen v. United States, 445 U.S. 684, 691-92 (1980).
       Thus, a predicate of felony murder is “a species of lesser-included offense” (Vitale, 447 U.S.
       at 420) only because that classification is deemed to comport with legislative intent. See
       Whalen, 445 U.S. at 694 n.8 (“We have simply concluded that, [under the relevant statute],
       Congress intended rape to be considered a lesser offense included within the offense of a
       killing in the course of rape.”). The question here, then, is whether treating a predicate of
       home invasion as an analogous species would contravene legislative intent. We hold that it
       would.
¶ 14        To commit felony murder, a person must attempt or commit a forcible felony “in
       performing the acts which cause the death.” 720 ILCS 5/9-1(a)(3) (West 2010). Felony
       murder is still first-degree murder (720 ILCS 5/9-1(a)(3) (West 2010)); the felony merely
       “provides the mens rea as a substitute for an actual murderous mental state” (People v. Holt,
       91 Ill. 2d 480, 485 (1982)). Because the felony supplies the mental state for first-degree
       murder, we can safely assume that the legislature did not intend to allow convictions of both
       the murder and the felony.
¶ 15        On the other hand, as the State points out, “[t]he gravamen of a home invasion offense
       is unauthorized entry.” People v. Braboy, 393 Ill. App. 3d 100, 113 (2009). As relevant here,
       that gravamen is complete when a person “without authority *** knowingly enters the
       dwelling place of another when he or she knows *** that one or more persons is present.”
       720 ILCS 5/12-11(a) (West 2006). Although subsection (a)(6) home invasion requires the
       subsequent commission of, e.g., a criminal sexual assault, that criminal sexual assault is, of
       course, a discrete offense with its own elements, including its own mental state. See 720
       ILCS 5/12-13(a)(1) (West 2006); People v. Terrell, 132 Ill. 2d 178, 209 (1989) (mental state
       is implied). Whereas for felony murder the felony supplies the mental state for the
       murder–such that it is literally “included”–here the gravamen of the home invasion requires
       one criminal purpose, while the “predicate” offense (which actually occurs subsequently)
       requires a completely separate one. In that sense, the predicate is distinct.
¶ 16        Nor is the predicate necessarily “lesser.” Subsection (a)(6) home invasion is a Class X
       felony (720 ILCS 5/12-11(c) (West 2006)) subject to a sentencing range of 6 to 30 years’
       imprisonment (730 ILCS 5/5-8-1(a)(3) (West 2006)). Criminal sexual assault is generally a
       Class 1 felony but under certain circumstances is a Class X felony subject to a sentencing
       range of 30 to 60 years. 720 ILCS 5/12-13(b)(1), (b)(2) (West 2006).
¶ 17        These facts demonstrate that the legislature could not have intended the result that

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       defendant proposes. Assume that a defendant commits a home invasion predicated on a
       criminal sexual assault that is subject to the extended sentence. If criminal sexual assault is
       deemed “a species of lesser-included offense” (Vitale, 447 U.S. at 420) of home invasion,
       the conviction of that offense would be vacated, even though the offense required (1) a
       criminal purpose separate from that for the gravamen of home invasion; and (2) a sentence
       greater than that for home invasion. Certainly, the defendant might receive the maximum
       sentence for home invasion; but the legislature’s judgment as to the penalties for the
       defendant’s offenses would be thwarted almost completely. In a very real way, the defendant
       would pay for his home invasion but not pay for the criminal sexual assault.
¶ 18       It is well settled that, in construing a statute, we may not presume that the legislature
       intended to create either absurdity or injustice. People v. Zimmerman, 239 Ill. 2d 491, 497
       (2010). In this instance, defendant would have us presume that the legislature intended that
       a person could commit the gravamen of a home invasion, and receive punishment for same,
       but receive no separate punishment for even a more serious sex offense that he commits
       inside. This despite the fact that, in general, the legislature has insisted that sex offenses be
       punished not only separately, but consecutively. See 730 ILCS 5/5-8-4(a)(i), (a)(ii) (West
       2006). We simply cannot imagine that the legislature intended the result that defendant
       proposes. It would be more than merely absurd and unjust; it would shock this court’s
       collective conscience.
¶ 19       For these reasons, we conclude that criminal sexual assault is not a lesser included
       offense of home invasion. Thus, defendant’s convictions of both offenses must stand.
¶ 20       The judgment of the circuit court of Kane County is affirmed.

¶ 21       Affirmed.




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