People v. Allen

2024 IL App (1st) 221681, 244 N.E.3d 394

Opinion

2024 IL App (1st) 221681 Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.) Opinion filed June 20, 2024 Third Division ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) ) Nos. 17 CR 16663 v. ) 17 CR 16664 ) 17 CR 16665 ) JAMES ALLEN, ) Honorable ) Charles P. Burns Defendant-Appellant. ) Judge, presiding.

JUSTICE VAN TINE delivered the judgment of the court, with opinion. Presiding Justice Reyes and Justice Lampkin concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant James Allen was found guilty of two counts of residential

burglary, two counts of aggravated criminal sexual assault, and one count of home invasion and

was sentenced to a total of 63 years in prison. On appeal, defendant argues that (1) his waiver of

his right to trial counsel was invalid, (2) the jury instructions on residential burglary were

erroneous, (3) the State failed to prove him guilty of residential burglary because the evidence did

not establish his intent to commit theft, and (4) his conviction for home invasion should be vacated Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

pursuant to the one-act, one-crime rule. For the following reasons, we affirm defendant’s

convictions for aggravated criminal sexual assault and home invasion but reverse his convictions

for residential burglary and remand for a new trial on those charges.

¶2 I. BACKGROUND

¶3 Defendant was charged under three case numbers: 17 CR 16663, 17 CR 16664, and 17 CR

16665. All charges arose out of events that occurred in a condominium building in downtown

Chicago on October 29, 2017, and the three cases were tried together. 1 Each case number related

to a different unit in the building. The State proceeded to trial on the following charges: one count

of residential burglary premised on entering unit 407 with intent to commit theft (720 ILCS 5/19-

3(a) (West 2016)) in case number 17 CR 16663; one count of residential burglary premised on

entering unit 909 with intent to commit theft (id.) in case number 17 CR 16664; and, in case

number 17 CR 16665, two counts of aggravated criminal sexual assault premised on bodily harm

(id. § 11-1.30(a)(2)) and one count of home invasion premised on criminal sexual assault (id. § 19-

6(a)(6)) arising out of defendant’s actions in unit 515.

¶4 A. Pretrial Proceedings

¶5 Approximately five months before trial, on April 7, 2021, defendant stated that he sought

to “exercise [his] Fifth Amendment rights to self-representation, pro per, not to be confused with

pro se, also reserving the right to be assisted by counsel.” Defendant complained that he had been

appointed three different assistant public defenders (APDs) and the most recent APD “ha[d] the

least experience” of all three. The court agreed that defendant had the right to represent himself

1 We will refer to the condominium units by their numbers because that is how the State charged the case and because it aids in understanding the facts of the case. However, for the sake of the residents’ privacy, we will not otherwise identify the building’s location.

-2- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

but cautioned that he would be held to the same standard as an attorney and suggested that he

confer with his most recent APD before making a final decision.

¶6 On May 11, 2021, defendant’s APD stated that he conferred with defendant and that

defendant still wanted to represent himself. The court explained to defendant that he had “three

open cases” and that “[a]ll these cases are serious” and asked if he was sure he wanted to represent

himself. Defendant responded, “I’m positive.” The court then advised defendant of the charges in

each case and explained that defendant could be sentenced to 18 to 90 years in prison in case

number 17 CR 16665 and 4 to 15 years each in case numbers 17 CR 16664 and 17 CR 16663. The

court also explained that probation was not available, that defendant could be fined $25,000 in

each case, and that he would be on parole for four years after completing his sentence. Defendant

stated that he understood the charges and possible sentences and that he wanted to represent

himself. The court then explained that defendant had the right to an attorney and what an attorney

would do at trial, and again advised defendant that he would be held to the same standard as an

attorney if he represented himself. Defendant again confirmed that he wanted to represent himself.

¶7 The court explained that defendant did not have a right to standby counsel and that

appointing standby counsel was a matter of the court’s discretion. Defendant never requested

standby counsel but expressed doubt that he could “cross-examin[e]” himself at trial. At a hearing

on August 6, 2021, a private attorney informed the court that she met with defendant the previous

day. Defendant asked the private attorney to serve as standby counsel, but she told him she could

not. Defendant again informed the court that he wanted to represent himself.

¶8 Shortly before trial, on September 9, 2021, the State filed a motion for defendant to be

evaluated for fitness to represent himself, which the court granted. The following day, Dr.

-3- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

Christofer Cooper found that defendant was fit to represent himself or to stand trial with counsel,

whichever he chose. Dr. Cooper noted that defendant was able to explain why he wanted to

represent himself and that he understood the charges against him and the nature and purpose of

legal proceedings. Defendant was taking antipsychotic medication. Dr. Cooper evaluated

defendant again during trial on September 15, 2021, and reached the same conclusions.

¶9 B. Trial

¶ 10 In his opening statement, defendant explained to the jury that it was his first time at trial

and his first time representing himself. He conceded that “[e]verything the State is saying,

happened” but argued that the State could not prove his intent. Defendant also explained that he

was “pleading insanity” because he “was out of [his] mind on the night of the commission of the

crime” and had been “diagnosed with over six different disorders.”

¶ 11 1. The State’s Case-in-Chief

¶ 12 The evidence established that residents of the condominium building used a key fob to

enter the building’s main door but that guests had to ring the buzzer, be admitted by security, and

sign in. The State moved into evidence security camera video recordings from the early morning

hours of October 29, 2017. The videos depict defendant, who is naked, crossing the street toward

the building and approaching the glass lobby doors. Defendant stands outside the lobby doors until

a security guard stationed at the front desk lets him in. Defendant sits at the security desk and looks

at a computer, then boards an elevator and takes it to one of the upper floors. The security guard

who allowed defendant into the building did not testify at trial. The evidence established that he

was fired after this incident.

-4- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

¶ 13 Timothy Parent testified that he lived in unit 509. At approximately 5:30 a.m. on October

29, 2017, Parent awoke to someone knocking on his door and yelling, “I know she’s in there, I

know—my girl is in there, I know my daughter’s in there.” Parent looked through the peephole

and saw defendant, whom he identified in court. Parent called security from inside his unit. A

security guard responded within minutes, but no one was in the hallway outside Parent’s unit. The

security guard then left. Parent exited his apartment, and as he waited to board an elevator, a man

ran down the hallway screaming for help, yelling “he’s on top of my roommate and he’s raping

her.” Parent followed the man yelling for help to another unit and saw defendant standing naked

in the doorway. Parent told defendant to get out, and defendant charged at him, so Parent ran down

a stairwell hoping to lead defendant to security in the lobby. Parent reached the lobby, but

defendant did not follow him. Parent told a security guard that defendant was attacking someone,

and the security guard called police. Parent identified a photograph of a decorative wreath that was

taken from his unit’s front door sometime between October 28 and October 29, 2017.

¶ 14 T.F. testified that she lived in unit 515. 2 She and her friend Daniel McEvoy went out to

celebrate her birthday and returned to her unit at approximately 2 a.m. on October 29, 2017. T.F.

slept in her bed, and McEvoy slept on the couch. T.F. did not remember whether she locked the

door that night. She awoke to defendant, whom she identified in court, naked on her bed. Defendant

grabbed T.F.’s hair, shoved her head toward his erect penis, and “told [her] to suck it.” T.F. tried

to pull back, but the man shoved her head down “[v]ery forcefully.” T.F. started to cry and said

“no,” but defendant repeatedly told her to “shut the f*** up, don’t say anything, be quiet.”

Defendant forced his penis into T.F.’s mouth for several minutes, then pulled her dress up and told

T.F. is a victim of sexual assault, so we use her initials to protect her privacy. See People v. 2

Munoz-Salgado, 2016 IL App (2d) 140325, ¶ 1 n.1.

-5- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

her to lie down. Defendant lay on top of T.F., inserted his penis into her vagina, placed his hand

on her throat, and applied pressure.

¶ 15 McEvoy came into the bedroom, and T.F. said, “[P]lease help me.” McEvoy asked

defendant who he was, and defendant responded, “I’m Satan.” Defendant removed himself from

T.F. and chased McEvoy into the hallway. Police arrived approximately five minutes later, and

T.F. told them what happened. She noticed handprints on the wall of her unit and a wreath and a

fire extinguisher tag that did not belong to her in the unit. T.F. went to the hospital, and staff

performed a sexual assault kit. She suffered a vaginal tear and a whiplash-like neck injury. T.F.

then went to a police station but was unable to identify defendant in a photo array. At trial, T.F.

identified a photograph of the wreath and fire extinguisher tag she found on her bedroom floor, a

photograph of her bed, the clothing she was wearing when defendant sexually assaulted her, the

clothing she wore to the hospital, and her bedding. The State moved these items into evidence.

T.F. identified defendant in court as the man who sexually assaulted her, and defendant apologized

to her for doing so.

¶ 16 McEvoy’s testimony was consistent with T.F.’s. He testified that he and T.F. went out to

celebrate her birthday and returned to T.F.’s unit at approximately 2:30 a.m. on October 29, 2017.

He woke up when he heard a struggle in T.F.’s bedroom. He went to check on her and saw

defendant, whom he identified in court, naked on top of T.F., sexually assaulting her. McEvoy

moved toward defendant and asked who he was; defendant responded, “I’m Satan.” Defendant

lunged at McEvoy, who ran into the hallway outside the unit and yelled for help as defendant

pursued him into a stairwell and grabbed the hood of his sweatshirt. When McEvoy reached the

lobby, he told security that a man was sexually assaulting T.F. and asked them to call police.

-6- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

McEvoy later saw defendant as police were escorting him out of the building in handcuffs.

Defendant was “jovial” and “laughing under his breath” and said, “I got her good.”

¶ 17 Daniel Devine testified that he and his roommate lived in unit 407. They went out with

friends on the night of October 28, 2017, and, upon returning home, left the door unlocked so that

Devine’s roommate’s brother could sleep on the couch. Between 4 and 5 a.m. on October 29,

Devine woke up and saw a naked man, whom he identified as defendant, walking toward his bed.

Devine told defendant to leave. Defendant said he had friends in unit 909 or 929. Devine testified

that “it sounded like [defendant] was sort of not all there, like he was on something.” Defendant

was wearing Devine’s hats and a scarf. Defendant then sat on Devine’s balcony with a bottle of

wine from the kitchen counter and yelled, “I own this place, I own this building.” Devine again

told defendant to leave and demanded that he take off the hats and scarf. Defendant put a hat on

the counter but left the unit with “a handful of stuff” belonging to Devine and his roommate.

Sometime later, a resident of a ninth-floor unit returned Devine and his roommate’s belongings,

including a cell phone, keys, and a scarf.

¶ 18 Brian Morrill testified that he lived in unit 909. Morrill went to bed at approximately 10:30

p.m. on October 28, 2017, and did not lock his door. At approximately 5:30 the following morning,

he awoke to his dog barking and saw defendant, whom he identified in court, standing naked in

his kitchen. Morrill asked defendant what he was doing; defendant mumbled a response that

sounded like “I own this building.” Morrill returned to his bedroom, shut the door, and called

security. When Morrill opened his bedroom door again, defendant was standing in front of it.

Defendant picked up Morrill’s guitar and pretended to play it. Morrill closed the bedroom door

until police arrived. At that point, defendant was sitting on Morrill’s couch with the guitar and a

-7- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

bottle of wine from Morrill’s wine rack. Police handcuffed defendant and removed him from the

unit. Morrill found a scarf and a set of keys, neither of which belonged to him, in his unit. He also

noticed that his wallet had been moved from the kitchen to near the wine rack. Morrill identified

still photographs from a police body camera video recording, which depicted defendant sitting

naked on his couch playing a guitar and wearing sunglasses. Morrill also identified photographs

of the lobby of the condominium building, the hallway of his unit, the couch that defendant sat on,

and his guitar that defendant picked up. The State moved these photographs into evidence.

¶ 19 John Jones testified that he worked as a security guard at the building. When he arrived at

approximately 6:25 a.m. on October 29, 2017, an alarm was going off, and a resident said that

someone was “still in the building.” Jones called police, and another resident came to the lobby

and said, “he’s raping my roommate.” A resident on the ninth floor called the security desk and

said that “the individual was in his apartment and he was behind a locked door,” which Jones

relayed to police. Jones later saw defendant naked in the lobby with police. Jones identified still

photographs from one of the building’s security cameras, which depicted defendant crossing the

street, entering the building through the front door, and waiting for an elevator in the lobby. The

State moved these photographs into evidence.

¶ 20 Chicago police sergeant Mary Nanninga testified that she responded to a sexual assault call

at the condominium building at approximately 6 a.m. on October 29, 2017. Nanninga found

defendant in Morrill’s unit naked on the couch with a guitar and a bottle of wine and wearing

sunglasses. Another officer handcuffed defendant and escorted him to the lobby. Defendant was

calm and cooperative and said that he lived in Morrill’s unit. Nanninga identified a video recording

from Officer Rafael Lee’s body camera, which the State moved into evidence. The video depicts

-8- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

Morrill allowing Lee into his unit, where Lee finds defendant naked on Morrill’s couch, wearing

sunglasses and holding a guitar. Defendant complies with being handcuffed, and Lee escorts him

out of the unit.

¶ 21 Officer Robert Williams testified that between 5:30 and 6 a.m. on October 29, 2017, he

responded to a call for assistance at the condominium building and saw defendant, whom he

identified in court, naked and handcuffed in the lobby. Williams placed defendant in his police

vehicle and transported him to a hospital. Defendant told a triage nurse that his back hurt because

he “was f***ing her.”

¶ 22 Officer Ron Bialota testified that he was on duty as an evidence technician on the morning

of October 29, 2017. At approximately 7:45 a.m., he went to the condominium building and

photographed the lobby and unit 515. He recovered and inventoried bedding and clothing from

unit 515’s bedroom, along with a fingerprint on the wall. Bialota also photographed unit 909.

Bialota identified all the photographs he took and items he recovered, and the State moved them

into evidence.

¶ 23 Detective Andrew Burns testified that he interviewed defendant, whom he identified in

court, at the hospital on October 29, 2017. Burns provided Miranda warnings (see Miranda v.

Arizona, 384 U.S. 436 (1966)), and defendant indicated that he understood them. Defendant

consented to a buccal swab, which Burns performed and inventoried. Burns identified the buccal

swab and the consent form that defendant signed, and the State moved them into evidence.

¶ 24 Nurse Debra Terri-Larson testified that she administered a sexual assault kit on T.F. at the

hospital on October 29, 2017. At the hospital, T.F. said that she woke to a man on top of her

demanding that she perform oral sex and that the man “went on to assault her vaginally.” Terri-

-9- Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

Larson identified the sexual assault kit she performed. The parties stipulated that police inventoried

the sexual assault kit.

¶ 25 Four Illinois State Police forensic scientists testified as expert witnesses. Their testimony

established that fingerprints recovered in this case were not suitable for comparison and the sexual

assault kit and T.F.’s clothing and bedding were negative for the presence of semen. However,

defendant’s DNA matched Y chromosome profiles on T.F.’s oral and face swabs.

¶ 26 2. Defendant’s Case in Chief

¶ 27 Defendant testified that he had “no recollection of the night in question.” The last thing he

remembered was smoking cannabis at home approximately a week prior to October 29, 2017.

Defendant testified that, on October 29, 2017, he was “under the hallucination that [he] was

looking for [his] daughter and that [her] mother was throwing [his] daughter a hotel party” and

that “people in the building took off [his] clothes.” Defendant acknowledged that he told police

the condominium building’s address and identified other buildings nearby. He also told police

about Morrill’s dog barking and that he played a guitar, knocked on doors on the fifth floor, and

went to the ninth floor.

¶ 28 Dr. Michael Byrne, whom one of defendant’s previous attorneys retained, was qualified as

an expert in forensic psychiatry. He evaluated defendant on November 6, 2019. Defendant told Dr.

Byrne that he did not remember the events of October 29, 2017. Defendant experienced delusions

of “being abducted by aliens and being involved in the Illuminati, [and] knowing Jay-Z.” Dr. Byrne

opined that defendant was not “able to appreciate the criminality of [his] conduct” on October 29,

2017. Dr. Byrne based that opinion on defendant’s calm entry into the building, which was

inconsistent with “trying to discreetly commit a crime,” and defendant taking “items of

- 10 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

inconsequential value” while entering units that he happened to find unlocked. Defendant’s

statements that he owned the building suggested a “grandiose delusional thought that [defendant

was] wealthy and important.” Defendant did not attempt to leave the building as though he were

fleeing a crime scene and did not resist arrest. Dr. Byrne acknowledged that intent to commit

crimes such as sexual assault and burglary can be formed when the opportunity arises and that

people with schizoaffective disorder can understands the criminality of their conduct. Dr. Byrne

testified that defendant being administered antipsychotic medication at the hospital after his arrest

was “indicative of a very serious psychotic decompensation.” Dr. Byrne diagnosed defendant with

schizoaffective disorder, bipolar type, and opioid and cannabis disorder. Dr. Byrne acknowledged

that he was the only doctor to have diagnosed defendant with schizoaffective disorder.

¶ 29 3. The State’s Case in Rebuttal

¶ 30 The State’s evidence in rebuttal established that defendant was first hospitalized for mental

illness at St. Bernard Hospital and Health Care Center (St. Bernard) on October 31, 2015. He tested

positive for cannabis and alcohol and was diagnosed with acute psychosis due to substance abuse.

Defendant was transferred to Chicago Lakeshore Hospital and then to the University of Illinois

Hospital (UIC). Doctors at UIC concluded that defendant was suffering from cannabis-induced

psychosis and ruled out any other kind of primary psychotic illness. Defendant was discharged

from UIC on November 9, 2015, and was not prescribed any medication. Defendant was evaluated

at St. Bernard following his arrest on October 29, 2017. He tested positive for cannabis and was

diagnosed with acute psychosis. The following day, Dr. Kartan of Cermak Health Services of Cook

County (Cermak) diagnosed defendant with substance abuse disorder, depression, and anxiety, but

ruled out schizophrenia and bipolar disorder. Defendant told Dr. Kartan he used a synthetic form

- 11 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

of cannabis called “K2” two days before the incident and had used heroin, Xanax, and alcohol in

the past. On November 5, 2017, defendant told another doctor at Cermak that he smoked “a blunt

laced with PCP” near the time of the offense and did not remember anything that happened after

that. At the time of trial, defendant was taking antipsychotic medication.

¶ 31 Dr. Christofer Cooper testified that he was a forensic psychologist and the assistant director

of forensic clinical services for the circuit court of Cook County. He was qualified as an expert in

forensic psychology. Dr. Cooper examined defendant on February 4, 2020, and concluded that

defendant did not exhibit “any symptoms of a mental illness at the time of the offense that would

have impaired his ability to appreciate the criminality of his conduct.” That is, defendant was

legally sane on October 29, 2017. Dr. Cooper diagnosed defendant with substance-induced

psychotic disorder and severe cannabis use disorder as of October 29, 2017, and severe cannabis

use disorder and malingering as of February 4, 2020. The differing diagnoses reflected that, at the

time of the incident, defendant “was experiencing substance-induced symptoms or psychotic

symptoms that he doesn’t normally have.” The diagnosis of malingering indicated that defendant

exaggerated having delusions about the Illuminati and “various rappers.” Dr. Cooper opined that

defendant being disruptive in the courtroom was not the product of mental illness; rather, it was

intentional behavior. Dr. Cooper disagreed with Dr. Byrne’s diagnosis that defendant suffered

from schizoaffective disorder as unsupported by defendant’s clinical history.

¶ 32 Dr. Mathew Markos testified that he was a forensic psychiatrist and the director of forensic

clinical services for the circuit court of Cook County. He was qualified as an expert in the field of

forensic psychiatry. Dr. Markos examined defendant on September 1, 2020. Defendant said that

he had no memory of this incident. Dr. Markos opined that defendant experienced cannabis-

- 12 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

induced psychosis but was legally sane on October 29, 2017. He diagnosed defendant with

“cannabis disorder” and concluded that defendant did not suffer from a primary psychotic illness,

including schizophrenia or schizoaffective disorder.

¶ 33 At the end of its case in rebuttal, the State moved into evidence a video recording of

Detective Burns’s interview of defendant at the hospital. Defendant did not object. No witnesses

testified regarding this video. The video depicts defendant lying in a hospital bed. He says that he

understands his Miranda rights and agrees to speak with Burns and an assistant state’s attorney

(ASA). Defendant is groggy and appears to be falling asleep at times during the interview but says

he is following the ASA’s questions. Defendant states that he went downtown for his daughter’s

birthday party early on the morning of October 29, 2017. He was not under the influence of drugs

or alcohol and was clothed when he entered the condominium building. Defendant says that his

daughter and her mother had lived in that building for “a couple of years” but that he may have

“picked the wrong hotel.” Defendant identifies the building by the street it was on and buildings

that were across the street from it. He had never been to that building before. Defendant spoke to

a man at the front desk, who directed him to the elevators. Defendant was looking for unit 929 but

went to the fifth floor because his daughter was turning five. He knocked on the door of unit 529,

which Burns tells him is actually unit 509. Someone allowed defendant into a unit where a dog

was barking. Defendant wanted to play “a whole bunch of guitars,” but someone in the unit

“snatched” his clothes. Defendant repeatedly denies that he sexually assaulted a woman.

Approximately 16 minutes into the interview, defendant says that he is “through f*** talking” and

is hungry and thirsty. Burns and the ASA give defendant water, and Burns says that they will try

- 13 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

to get him food. Defendant claims that police arrested him for no reason. Burns and the ASA end

the interview shortly after defendant again says that he is “through talking.”

¶ 34 4. Jury Instructions, Verdict, and Posttrial Proceedings

¶ 35 During the jury instructions conference, the State proposed Illinois Pattern Jury

Instructions, Criminal, No. 14.13 (approved July 29, 2022) (hereinafter IPI Criminal No. 14.13),

and Illinois Pattern Jury Instructions, Criminal, No. 14.14 (approved July 29, 2022) (hereinafter

IPI Criminal No. 14.14), on residential burglary. Defendant did not object. The court sua sponte

noted that the residential burglary “statute also says enters or [ ]knowingly and without authority

remains within the dwelling place of another.” The State said that it had “no objection to doing a

non-IPI to include ‘or remains within.’ ” The following exchange occurred:

“THE COURT: Here’s the statute: Residential burglary, 720 ILCS 5/19-3(a). A

person commits residential burglary when he or she knowingly and without authority enters

or knowingly and without authority remains within the dwelling place of another, or any

part therein, with the intent to commit a felony or theft.

That’s the statute. Do you have any objection to changing that instead of—it’s

going to be—it would be for the first proposition, knowingly entered or knowingly without

authority remains within the dwelling place of another with the intent to commit the offense

of theft.

Do you have any objection to that?

THE DEFENDANT: No objection.

THE COURT: I think that needs to be changed. I’m kind of surprised that’s not an

IPI, but that’s what the statute says.

- 14 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

[THE STATE]: I agree.”

¶ 36 Prior to closing arguments, the court orally instructed the jury as follows:

“A person commits the offense of residential burglary when he knowingly and

without authority enters the dwelling place of another with the intent to commit therein the

offense of theft.

To sustain the charge of residential burglary, the State must prove the following

propositions:

First Proposition: That the defendant knowingly entered the dwelling place of

another; and

Second Proposition: That the defendant did so without authority; and

Third Proposition: That the defendant did so with the intent to commit therein the

offense of theft.”

¶ 37 However, the written instructions that the jury received, which the court had previously

proposed and which neither party objected to, stated:

“A person commits the offense of Residential Burglary when he knowingly and

without authority enters or knowingly and without authority remains within the dwelling

place of another with the intent to commit therein the offense of theft. ***

To sustain the charge of Residential Burglary, the State must prove the following

n [sic]

First Proposition: That the defendant knowingly and without authority entered or

knowingly and without authority remained within the dwelling place of another; and

- 15 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

Second Proposition: That the defendant did so without authority; and

Third Proposition: That the defendant did so with the intent to commit therein the

offense of theft.” 3

¶ 38 In closing, the State read the residential burglary definition instruction as saying that a

person commits residential burglary “when he knowingly and without authority enters or

knowingly without authority remains within the dwelling place of another with the intent to

commit therein the offense of theft.” (Emphasis added.). However, the State read the first

proposition of the residential burglary issues instruction as “the defendant knowingly entered and

remained in the dwelling place of another.” (Emphasis added.). The State argued that defendant

entered Morrill’s unit without authority and entered and remained in Devine’s unit without

authority. With respect to defendant’s intent to commit theft, the State contended that “[i]t doesn’t

matter what his intention was when he walked in” because he took “electronics, a lanyard, a scarf,

*** somebody’s cell phone and a bottle of wine” from Devine’s unit and picked up a wallet, a

bottle of wine, and a guitar in Morrill’s unit.

¶ 39 In response, defendant argued that T.F., McEvoy, and Morrill were not credible and blamed

the security guard who let him into the condominium building. He complained about the trial

court’s rulings on his objections and explained that he did not “trust the Public Defender’s Office.”

Defendant then began discussing the Illuminati and celebrity Jennifer Hudson’s supposed

connection to the trial court judge, at which point the trial court sustained the State’s objection and

held a sidebar in chambers. Defendant also threatened to bring the jury back to retry the case

3 We note that the first and second propositions of the written issues instruction on residential burglary contain duplicative language regarding lack of authority.

- 16 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

indefinitely by “catch[ing] a contempt charge.” He conceded that the State “proved [him] guilty

beyond a reasonable doubt” but argued that it was up to the jury “to decide if [he] was able to

appreciate the criminality of [his] acts.” Defendant concluded by arguing that there was reasonable

doubt as to whether he was intoxicated at the time of the offense and contended that he could not

appreciate the criminality of his acts due to mental illness.

¶ 40 During the State’s rebuttal argument, the court held defendant in contempt for giving the

court “the finger” when it overruled an objection and for swearing at the court during a sidebar in

chambers.

¶ 41 The jury found defendant guilty of two counts of aggravated criminal sexual assault and

one count of home invasion as to T.F., one count of residential burglary as to Devine’s unit, and

one count of residential burglary as to Morrill’s unit.

¶ 42 Defendant filed a pro se motion for a new trial, arguing that the State improperly

introduced hearsay evidence and his 2016 burglary conviction, that Dr. Cooper and Dr. Markos’s

diagnoses were incorrect, and that records from the day of his arrest indicated that he was

involuntarily admitted to a mental health facility. An APD filed an amended motion for a new trial,

which argued in relevant part that the State failed to prove defendant guilty beyond a reasonable

doubt. Neither motion for a new trial raised the validity of defendant’s waiver of his right to

counsel, the residential burglary jury instructions, or one-act, one-crime issues. The trial court

denied defendant’s motions for a new trial.

¶ 43 The court sentenced defendant to a total of 63 years in prison. Defendant filed a motion to

reconsider sentence, which was denied.

¶ 44 Defendant timely appealed.

- 17 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

¶ 45 II. ANALYSIS

¶ 46 On appeal, defendant contends that (1) his waiver of his right to counsel was invalid, (2) the

jury instructions on residential burglary were erroneous, (3) the State failed to prove his intent to

commit theft as an element of residential burglary, and (4) his conviction for home invasion should

be vacated pursuant to the one-act, one-crime rule.

¶ 47 A. Waiver of Trial Counsel

¶ 48 Defendant contends that trial court erred in accepting his waiver of his right to counsel.

Specifically, defendant argues that (1) he could not validly waive his right to counsel due to mental

illness, (2) he did not understand the potential consequences of presenting an insanity defense, and

(3) the trial court abused its discretion by not appointing standby counsel.

¶ 49 The sixth amendment to the United States Constitution guarantees criminal defendants the

right to assistance of counsel and the right to proceed pro se. U.S. Const., amend. VI; People v.

McNutt, 2020 IL App (1st) 173030, ¶ 78 (citing People v. Haynes, 174 Ill. 2d 204, 235 (1996)). A

defendant’s right to self-representation is “as basic and fundamental as [the] right to be represented

by counsel.” (Internal quotation marks omitted.) People v. Marcum, 2024 IL 128687, ¶ 43. A trial

court must honor a defendant’s decision to proceed pro se even though it might be unwise. McNutt,

2020 IL App (1st) 173030, ¶ 78. We will reverse a trial court’s acceptance of a defendant’s waiver

of counsel only if the trial court abused its discretion. Id. ¶ 85. An abuse of discretion occurs when

the trial court’s ruling was arbitrary, fanciful, or unreasonable to such an extent that no reasonable

person would agree with it. Id.

¶ 50 Defendant did not raise his waiver of counsel in his posttrial motion. Generally, to preserve

an issue for appellate review, a defendant must object at trial and raise the issue in a posttrial

- 18 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

motion. People v. Brand, 2021 IL 125945, ¶ 32. If the defendant fails to do so, he forfeits the issue

on appeal. Id. However, the plain error rule allows us to review an unpreserved issue when a clear

or obvious error occurred and either (1) the evidence was so closely balanced that the error alone

threatened to tip the scales of justice against the defendant regardless of the seriousness of the error

or (2) the error was so serious that it affected the fairness of the trial and challenged the integrity

of the judicial process regardless of the closeness of the evidence. People v. Sebby, 2017 IL

119445, ¶ 48. The validity of a defendant’s waiver of counsel affects a fundamental right, so we

will review for plain error. See People v. Khan, 2021 IL App (1st) 190051, ¶ 40. The defendant

has the burden of persuasion in a plain error analysis. Id. ¶ 41. The first step of plain error review

is to determine whether a clear or obvious error occurred. Id.

¶ 51 1. Validity of Waiver

¶ 52 Defendant argues that he did not validly waive his right to counsel due to his mental illness.

To validly waive the right to counsel, a defendant must first be fit to stand trial. People v. Harris,

2013 IL App (1st) 111351, ¶ 79. To be fit to stand trial, a defendant must have a rational and factual

understanding of the proceedings against him. People v. Washington, 2016 IL App (1st) 131198,

¶ 70. Illinois law presumes that a defendant is fit to stand trial. 725 ILCS 5/104-10 (West 2016).

A defendant is unfit if, because of a mental or physical condition, he is unable to understand the

nature and purpose of the proceedings or unable to assist in his defense. Id. In this case, there is

no dispute that defendant was fit to stand trial. Dr. Cooper found defendant fit before and during

trial, and even retained defense expert Dr. Byrne agreed with that conclusion.

¶ 53 Because defendant was fit to stand trial, the issue becomes whether his waiver of counsel

was knowing and voluntary. Harris, 2013 IL App (1st) 111351, ¶ 79; Godinez v. Moran, 509 U.S.

- 19 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

389, 400-02 (1993) (if a defendant is fit to stand trial and knowingly and voluntarily waives his

right to counsel, then he receives a fair trial that comports with due process); People v. Kidd, 178

Ill. 2d 92, 104 (1997). All waivers of counsel must be “voluntary, knowing, and intelligent.”

Marcum, 2024 IL 128687, ¶ 43. To ensure that a defendant’s waiver of counsel is voluntary,

knowing, and intelligent, the trial court must comply with Illinois Supreme Court Rule 401(a) (eff.

July 1, 1984). Marcum, 2024 IL 128687, ¶ 44. Rule 401(a) provides:

“ ‘Any waiver of counsel shall be in open court. The court shall not permit a waiver of

counsel by a person accused of an offense punishable by imprisonment without first, by

addressing the defendant personally in open court, informing him of and determining that

he understands the following:

(1) the nature of the charge;

(2) the minimum and maximum sentence prescribed by law, including,

when applicable, the penalty to which the defendant may be subjected because of

prior convictions or consecutive sentences; and

(3) that he has the right to counsel and, if he is indigent, to have counsel

appointed for him by the court.’ ” Id. (quoting Ill. S. Ct. R. 401(a) (eff. July 1,

1984)).

Strict, technical compliance with Rule 401(a) is not always required. Id. ¶ 46. Substantial

compliance with Rule 401(a) is sufficient if the record indicates that the defendant’s waiver of

counsel was knowing and voluntary and the admonishments the defendant received did not

prejudice his rights. Id. We assess each waiver of trial counsel on its own facts. Id.

- 20 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

¶ 54 When defendant first expressed his desire to represent himself, the trial court advised him

to discuss the matter with his APD, which he did. On the following court date, defendant confirmed

that he wanted to proceed pro se, and the court admonished him pursuant to Rule 401(a). The court

informed defendant of the charges in all three cases, the sentencing ranges in each case, the

unavailability of probation, possible fines, and the length of his parole. The court also advised

defendant that he had the right to an attorney, explained what an attorney would do, and reminded

defendant that he would be held to the same standard as an attorney if he represented himself. The

record establishes that the court thoroughly advised defendant of the consequences he faced and

the risks of representing himself and that the court confirmed multiple times that defendant wanted

to proceed pro se. There is no question that the trial court complied with Rule 401(a).

¶ 55 Nevertheless, defendant argues that the “totality of the circumstances,” such as his history

of mental illness, “use of psychoactive drugs,” and behavior during trial shows that he was

incapable of waiving his right to counsel. The record does reflect defendant engaging in

inappropriate arguments with the trial court and using profanity and obscene gestures. However,

the court was vigilant about holding sidebars in chambers when defendant began acting out.

Because the jury did not see many of defendant’s outbursts, it is difficult for us to say whether or

how those outbursts affected the jury’s verdict. During deliberations, the jury expressed no

concerns about defendant’s self-representation. In addition, defendant’s disrespectful statements

were almost always the product of his frustration with the trial court’s rulings. That is, defendant

clearly understood what was happening at trial; he simply did not agree with the court’s rulings

and expressed that disapproval outside of the jury’s presence in inappropriate ways.

- 21 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

¶ 56 Defendant’s argument on this point comes with the benefit of hindsight. When the court

allowed defendant to proceed to trial pro se, the court did not know if and how defendant might

act during trial. The court knew only that Dr. Cooper had found defendant fit to stand trial and to

represent himself and that defendant had insisted on proceeding pro se even after the court’s

admonishments about the risks of doing so.

¶ 57 Defendant cites People v. Lego, 168 Ill. 2d 561 (1995), for the proposition that a defendant

who is fit to stand trial may still be unable to validly waive his right to counsel. In Lego, unrebutted

testimony from two expert witnesses established that the pro se defendant suffered from mental

illnesses that caused him to experience delusions that he had practiced as a lawyer for decades and

that his legal skills were equal to or better than any attorney. Id. at 568-78. The supreme court

found that, considering the impact of the defendant’s mental illnesses on his ability to judge his

own legal skills, he could not validly waive his right to counsel. Id. at 577. By contrast, in this

case, defendant’s history of mental illness does not suggest that he was wholly incapable of making

a knowing, voluntary, and intelligent waiver of counsel. Rather, it indicates that defendant has

psychotic episodes when he abuses cannabis. There is no indication that defendant was

experiencing a cannabis-induced psychotic episode when he decided to proceed pro se or at any

point during trial. Unlike Lego, no expert witness in this case testified that defendant was unable

to validly waive his right to trial counsel. And, unlike the defendant in Lego, defendant was not

under the delusion that his trial skills were equal to those of an attorney. Defendant repeatedly

acknowledged the disadvantage he was at in trying this case without formal legal training. Lego is

distinguishable and does not support reversal. Accordingly, we find that defendant’s waiver of

- 22 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

counsel was knowing, voluntary, and intelligent and that defendant’s mental illness did not render

him incapable of validly waving his right to counsel.

¶ 58 2. Insanity Defense

¶ 59 Defendant next contends that his waiver of counsel was invalid because he presented an

insanity defense without understanding the risks of doing so. Specifically, defendant claims that

he did not know that an acquittal by reason of insanity might result in his involuntary commitment

rather than going free as he would after a typical acquittal.

¶ 60 An insanity defense asserts that the defendant lacked the capacity to appreciate the

criminality of his conduct due to “mental disease or mental defect.” 720 ILCS 5/6-2(a) (West

2016). A finding of not guilty by reason of insanity is an acquittal. People v. Harrison, 226 Ill. 2d

427, 441 (2007). However, when a defendant is acquitted by reason of insanity, the Department of

Human Services (DHS) must conduct an evaluation as to whether the defendant requires mental

health services. 730 ILCS 5/5-2-4(a) (West 2016). If the evaluation is inpatient, the defendant must

be “placed in a secure setting.” Id. That is, section 5-2-4 “authorizes the acquitee’s involuntary

commitment.” People v. Bethke, 2014 IL App (1st) 122502, ¶ 14. A person committed to DHS

custody following an acquittal by reason of insanity may petition for discharge but must prove by

clear and convincing evidence that he no longer suffers from a mental illness. People v. Gunderson,

2017 IL App (1st) 153533, ¶ 19; 730 ILCS 5/5-2-4(e), (g) (West 2016).

¶ 61 Rule 401(a) does not require admonishments about the potential consequences of an

insanity defense. Ill. S. Ct. R. 401(a) (eff. July 1, 1984). It requires only admonishments about the

“minimum and maximum sentence” in the event of conviction. Id. As explained above, the trial

court complied with that requirement. Defendant asks us to create additional Rule 401(a)

- 23 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

admonishments when a pro se defendant plans to present an insanity defense. We decline that

invitation for two reasons. First, the current version of section 6-2(a), which codifies the insanity

defense, has been unaltered since 1998 (720 ILCS 5/6-2(a) (West 1998)), and Illinois Supreme

Court Rule 401(a) (eff. July 1, 1984) has been unaltered since 1984. Neither provision has been

amended to connect an insanity defense to a waiver of counsel. Our supreme court and our

legislature certainly know that criminal defendants sometimes represent themselves, sometimes

present insanity defenses, and could potentially do both. We will not create additional Rule 401(a)

admonishments when our supreme court and legislature have declined to do so for at least 25 years.

¶ 62 Furthermore, no Illinois authority supports the additional Rule 401(a) admonishments that

defendant seeks. The Fourth District has suggested 10 additional admonishments to defendants

who wish to proceed pro se, but none of them addresses the risks of an insanity defense. People v.

Hood, 2022 IL App (4th) 200260, ¶ 79 (citing People v. Ward, 208 Ill. App. 3d 1073, 1081-82

(1991)). The case law that defendant cites does not suggest the creation of additional Rule 401(a)

admonishments regarding the potential consequences of presenting a pro se insanity defense. See,

e.g., People v. Gettings, 175 Ill. App. 3d 920, 921 (1988) (the represented defendant chose not to

present an insanity defense); United States v. Read, 918 F.3d 712, 719 (9th Cir. 2019) (counsel

presented an insanity defense over the defendant’s clear rejection of such a defense). Accordingly,

we find that the trial court did not err by not admonishing defendant about the potential

consequences of an acquittal by reason of insanity before accepting his waiver of counsel.

¶ 63 3. Standby Counsel

¶ 64 Defendant argues that the trial court abused its discretion by not appointing him standby

counsel for trial. Standby counsel assists a pro se defendant “ ‘ “in overcoming routine procedural

- 24 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

or evidentiary obstacles” ’ ” to goals such as introducing evidence or objecting to testimony.

People v. Khan, 2021 IL App (1st) 190679, ¶ 72 (quoting People v. Gibson, 136 Ill. 2d 362, 378

(1990), quoting McKaskle v. Wiggins, 465 U.S. 168, 183 (1984)). Standby counsel can also help

ensure compliance with the rules of courtroom protocol and procedure. Id. However, a pro se

defendant does not have a right to standby counsel. Id. Ultimately, “a defendant who chooses to

represent him or herself ‘must be prepared to do just that’ ” without the assistance of standby

counsel. People v. Moore, 2023 IL App (1st) 211421, ¶ 106 (quoting Gibson, 136 Ill. 2d at 383).

When deciding upon a defendant’s request to appoint standby counsel, a court should consider the

nature and gravity of the charges, the factual and legal complexity of the proceedings, and the

ability and experience of the defendant. Gibson, 136 Ill. 2d at 380. We review whether the trial

court erred in deciding not to appoint standby counsel for an abuse of discretion. Id.

¶ 65 We find that the trial court’s decision not to appoint standby counsel was not an abuse of

discretion. One Gibson factor weighed in favor of appointing standby counsel: the gravity of the

charges against defendant. Defendant proceeded to trial on multiple felony charges, and there is

no question that he faced substantial prison time if convicted. However, that factor alone is not

enough to warrant reversal. See People v. Pratt, 391 Ill. App. 3d 45, 46, 58 (2009) (no abuse of

discretion in denying standby counsel where the defendant was convicted of first degree murder

and sentenced to 40 years’ imprisonment). The other Gibson factors weighed against the necessity

of standby counsel. This trial was not particularly complex in that defendant did not dispute the

facts put forth by the State. In fact, defendant conceded that the events occurred as the State alleged

and challenged only his intent to commit theft and his sanity. He and Dr. Byrne presented a

substantial defense on those issues. As to defendant’s experience and ability, while this was the

- 25 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

first time he had represented himself, Dr. Markos testified that defendant was of moderate to high

intelligence and had completed two years of college. Altogether, the Gibson factors favored not

appointing standby counsel or, at most, were roughly balanced. The trial court’s decision was not

so unreasonable that no one would agree with it.

¶ 66 While defendant did not explicitly request standby counsel, the record does suggest that

defendant wanted standby counsel. Defendant expressed doubt that he could examine himself on

the stand. He asked a private attorney to act as standby counsel, and the attorney declined to do so.

However, we question how effective appointed standby counsel would have been as a practical

matter. If standby counsel had been requested, the court would have appointed an APD as standby

counsel. But defendant had made it clear that he did not want assistance from APDs. He repeatedly

denigrated the abilities of APDs, claiming that they are not actually attorneys and that “the Public

Defender has never done their job.” Even if the trial court had appointed standby counsel, we are

skeptical that defendant would have accepted standby counsel’s assistance.

¶ 67 Defendant argues that the State took advantage of the absence of standby counsel by

leading witnesses on direct examination and eliciting hearsay. To some extent that is true, and on

one occasion, the trial court said as much at sidebar. However, trial court sua sponte intervened to

stop this improper questioning. The court’s intervention had approximately the same effect as a

sustained objection made by standby counsel would have had.

¶ 68 Just because we or another court might have appointed standby counsel does not mean that

the trial court abused its discretion in deciding otherwise. See In re Marriage of Samardzija, 365

Ill. App. 3d 702, 708 (2006). Abuse of discretion review is the most deferential standard of review

in Illinois law. People v. Radojcic, 2013 IL 114197, ¶ 33. Considering the trial court’s familiarity

- 26 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

with defendant and this case, we cannot say that no reasonable person would have taken the trial

court’s approach to standby counsel. Accordingly, we affirm the trial court’s acceptance of

defendant’s waiver of his right to counsel.

¶ 69 B. Jury Instructions on Residential Burglary

¶ 70 Defendant contends that the jury instructions on residential burglary were erroneous

because the written instructions stated that the jury could find defendant guilty of that offense if

they concluded that he “knowingly and without authority entered or knowingly and without

authority remained within the dwelling place of another.” (Emphasis added.) Defendant objects to

the inclusion of the “remained within” language because the State charged only burglary by

unauthorized entry. The State agrees that including that language was error but contends that it

was “harmless error.”

¶ 71 Defendant did not raise this issue in his posttrial motion. “Generally, a defendant forfeits

review of any putative jury instruction error if the defendant does not object to the instruction or

offer an alternative instruction at trial and does not raise the instruction issue in a posttrial motion.”

(Internal quotation marks omitted.) People v. Hartfield, 2022 IL 126729, ¶ 44. Nevertheless,

defendant requests plain error review. Plain error occurs where “(1) the evidence is close,

regardless of the seriousness of the error, or (2) the error is serious, regardless of the closeness of

the evidence.” (Internal quotation marks omitted.) Id. ¶ 50. Relatedly, Illinois Supreme Court Rule

451(c) (eff. Apr. 8, 2013) provides that “substantial defects [in criminal jury instructions] are not

waived by failure to make timely objections thereto if the interests of justice require.” “Rule 451(c)

is coextensive with the ‘plain error’ clause of [Illinois] Supreme Court Rule 615(a), and we

construe these rules identically.” (Internal quotation marks omitted.) Hartfield, 2022 IL 126729,

- 27 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

¶ 49. A “jury instruction error rises to the level of plain error only when it creates a serious risk

that the jurors incorrectly convicted the defendant because they did not understand the applicable

law.” (Internal quotation marks omitted.) Id. ¶ 50.

¶ 72 “Inherent in plain-error analysis is a determination of whether any error occurred.” Id. ¶ 51.

“The function of jury instructions is to provide the jury with accurate legal principles to apply to

the evidence so it can reach a correct conclusion.” Id. “We must determine whether the

instructions, taken as a whole, fairly, fully, and comprehensively apprised the jury of the relevant

legal principles.” (Internal quotation marks omitted.) Id. We review de novo whether the jury

instructions accurately conveyed the appliable law. Id.

¶ 73 The residential burglary statute provides that a “person commits residential burglary when

he or she knowingly and without authority enters or knowingly and without authority remains

within the dwelling place of another, or any part thereof, with the intent to commit therein a felony

or theft.” 720 ILCS 5/19-3(a) (West 2016). Illinois courts have interpreted this language as

describing two mutually exclusive theories of culpability: burglary by unauthorized entry or

burglary by unauthorized remaining. People v. Boose, 139 Ill. App. 3d 471, 473 (1985) (addressing

burglary under section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, ¶ 19-

1(a), currently codified in the Criminal Code of 2012 (720 ILCS 5/19-1(a) (West 2016))); see

People v. Acklin, 2020 IL App (4th) 180588, ¶ 23 (same). Burglary by unauthorized remaining

requires that the defendant initially entered with authority and later remained without authority.

People v. Rudd, 2012 IL App (5th) 100528, ¶ 12 (citing People v. Boone, 217 Ill. App. 3d 532,

533 (1991)); see People v. Tinkler, 85 Ill. App. 3d 528, 530-31 (1980).

- 28 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

¶ 74 The pattern jury instructions on residential burglary reflect these two theories of culpability

in two separate sets of instructions: IPI Criminal No. 14.13 and IPI Criminal No. 14.14 for

unauthorized entry and IPI Criminal No. 14.13A (approved July 29, 2022) and IPI Criminal No.

14.14A (approved July 29, 2022) for unauthorized remaining. As to the first set, the definition

instruction states that a “person commits the offense of residential burglary when he knowingly

and without authority enters the dwelling place of another *** with the intent to commit therein

the offense of [theft].” IPI Criminal No. 14.13. The issues instruction requires proof “[t]hat the

defendant knowingly entered the dwelling place of another” and “did so without authority.” IPI

Criminal No. 14.14. As to the second set, the definition instruction states that a “person commits

the offense of residential burglary when he knowingly enters with authority the dwelling place of

another *** and thereafter without authority remains within that dwelling place *** with the intent

to commit therein the offense of [theft].” (Emphases added.) IPI Criminal No. 14.13A. The issues

instruction requires proof that (1) “the defendant knowingly entered the dwelling place of another

***; and” (2) “the defendant did so with authority; and” (3) “the defendant thereafter, without

authority, knowingly remained within that dwelling place ***; and” (4) “the defendant remained

within that dwelling place *** with the intent to commit therein the offense of [theft.]” (Emphases

added.) IPI Criminal No. 14.14A.

¶ 75 In this case, the State charged defendant with residential burglary by unauthorized entry,

alleging that “he, knowingly and without authority, unlawfully entered the dwelling place[s]” of

Devine and Morrill. Therefore, the trial court should have given IPI Criminal Nos. 14.13 and 14.14

without modification. A trial court must use the Illinois Pattern Jury Instructions (IPIs) unless they

do not accurately state the law. Ill. S. Ct. R. 451(a) (eff. Apr. 8, 2013); see People v. Edmondson,

- 29 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

2018 IL App (1st) 151381, ¶ 63 (a trial court may deviate from the IPIs only to accommodate

unusual facts or changes in the law). The trial court’s oral instructions correctly followed the IPIs

on residential burglary by unauthorized entry. However, the written instructions modified IPI

Criminal Nos. 14.13 and 14.14 by adding “or knowingly and without authority remains” to the

first element of residential burglary. 4 In addition, during closing argument, the State read the issues

instruction as “the defendant knowingly entered and remained in the dwelling place of another.”5

(Emphasis added.). In total, the jury received three different instructions as to the first element of

residential burglary. The oral instructions required the State to prove that defendant entered

without authority, the written instructions allowed the State to prove that defendant entered or

remained without authority, and the State’s description of the instructions required proof that

defendant entered and remained without authority.

¶ 76 “[T]wo directly conflicting instructions on an essential element, one stating the law

correctly and the other erroneously” result in a situation in which “we can never know which

instruction the jury was following.” Hartfield, 2022 IL 126729, ¶ 59. Such a scenario produces an

error that compromises “the integrity of the judicial system itself” and that requires reversal under

either a plain-error or harmless-error analysis. Id. That is exactly what happened in this case. We

do not know whether the jury followed the court’s oral instructions, which stated the law correctly,

or the written instructions, which did not. If the jury followed the written instructions, we do not

know which theory the jury used to find defendant guilty. The jury may have properly found

4 The trial court’s written instructions on residential burglary tracked the language of the residential burglary statute, but this case illustrates why using the IPIs is important. The IPIs clearly reflect the mutually exclusive nature of the two theories of burglary, whereas the statute does not. 5 The State’s brief repeats this incorrect description of the first element of residential burglary; it says that “[d]efendant entered and remained within the dwelling places of units 909 and 407 without authority.” (Emphasis added.).

- 30 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

defendant guilty of residential burglary because he entered Devine and Morrill’s units without

authorization. However, the jury may have found defendant guilty simply because he remained in

Devine and Morrill’s units without authorization. Devine and Morrill’s testimony certainly

supported such a conclusion. But the State never charged that theory of residential burglary. Even

if it had, a defendant cannot commit residential burglary solely by unauthorized remaining; rather,

authorized entry must precede unauthorized remaining. See Rudd, 2012 IL App (5th) 100528, ¶ 12.

Here, there was no dispute that defendant’s entry into Devine and Morrill’s units was not

authorized. So, if the jury followed the written instructions and found defendant guilty because he

remained inside Devine and Morrill’s units without authorization, then the jury found defendant

guilty of residential burglary based on a theory that Illinois law does not even recognize. The same

is true if the jury followed the State’s reading of the instructions and found defendant guilty

because his entry and remaining were unauthorized.

¶ 77 Furthermore, there is a risk that the jury’s seemingly unanimous verdict is actually a blend

of these three theories: unauthorized entry, unauthorized remaining, and unauthorized entry

followed by unauthorized remaining. Even if some jurors followed the oral instructions and

properly found defendant guilty based on unauthorized entry, other jurors may have followed the

written instructions or the State’s suggestion and found defendant guilty based on uncharged,

nonexistent theories of culpability. Altogether, the residential burglary instructions in this case are

so flawed and contradictory as to create a serious risk that defendant was improperly convicted of

that offense.

¶ 78 The State concedes that the written residential burglary instructions were erroneous but

argues that such error was “harmless” because “it was undisputed that defendant had no authority

- 31 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

to enter or remain within any of the dwellings.” Harmless error review does not apply here because

defendant did not preserve this issue. See People v. Thompson, 238 Ill. 2d 598, 611 (2010)

(harmless error applies to preserved issues while plain error applies to forfeited issues). Rather,

plain error review, as our supreme court has defined it in the context of jury instructions, applies.

See Hartfield, 2022 IL 126729, ¶ 50. Regardless, defendant’s authority or lack thereof to remain

in the units was irrelevant because the State never charged residential burglary by unauthorized

remaining. Accordingly, we hold that the residential burglary instructions constitute plain error.

We reverse defendant’s convictions for residential burglary and remand for a new trial on those

charges. See People v. Gonzalez, 326 Ill. App. 3d 629, 632 (2001).

¶ 79 Our reversal and remand of defendant’s residential burglary convictions raises a double

jeopardy issue. The double jeopardy clause of the United States Constitution prohibits the State

from having a second opportunity to try the case unless the first trial presented sufficient evidence

to prove the defendant guilty. People v. Sperry, 2020 IL App (2d) 180296, ¶ 30; see People v.

Olivera, 164 Ill. 2d 382, 393 (1995) (the double jeopardy clause forbids a second trial to give the

State another opportunity to supply evidence that it failed to introduce in the first trial.). “Thus,

before remanding for a new trial, the possibility of double jeopardy requires us to rule upon the

sufficiency of the evidence.” See Sperry, 2020 IL App (2d) 180296, ¶ 30. Specifically, defendant

argues that the State failed to prove him guilty of residential burglary because it did not introduce

sufficient evidence of his intent to commit theft.

¶ 80 Reviewing the record in the light most favorable to the State (see People v. Newton, 2018

IL 122958, ¶ 24), we conclude that there was sufficient evidence to support the jury’s conclusion

that defendant intended to commit theft. Theft is knowingly obtaining or exerting unauthorized

- 32 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

control over the property of the owner. 720 ILCS 5/16-1(a)(1) (West 2016). There is no dispute

that defendant took, used, and moved several items that did not belong to him, such as hats, a scarf,

wine, a cell phone, and keys in Devine’s unit and wine, a guitar, and a wallet in Morrill’s unit.

Additionally, multiple witnesses testified that defendant said, “I own this building,” suggesting

that he intended to exert control over the building and objects within it even though nothing in the

building was his property. That is the definition of theft. See id. A rational trier of fact could have

concluded that, when defendant entered Devine and Morrill’s units, he intended to exert

unauthorized control over items within those units, i.e., to commit theft. Therefore, we find no

double jeopardy issue with remanding for a new trial on the residential burglary charges. However,

this conclusion will not be binding on retrial and does not express our opinion of defendant’s guilt

or innocence. See Sperry, 2020 IL App (2d) 180296, ¶ 30.

¶ 81 C. One-Act, One-Crime

¶ 82 Finally, defendant argues that his conviction for aggravated criminal sexual assault is a

lesser included offense of home invasion predicated on criminal sexual assault, so his conviction

for home invasion, as the less serious of the two offenses, should be vacated pursuant to the one-

act, one-crime rule. Defendant did not raise this issue in his posttrial motion, but he seeks plain

error review. Plain error review applies to potential one-act, one-crime violations. People v. Coats,

2018 IL 121926, ¶¶ 9-10.

¶ 83 1. State’s Forfeiture

¶ 84 In its response brief, the State agreed that defendant’s conviction for home invasion should

be vacated pursuant to the one-act, one-crime rule. However, after we ordered oral argument on

this issue, the State filed a motion to withdraw its concession of error and for leave to file a

- 33 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

supplemental brief, which we granted. The State now argues that no one-act, one-crime violation

occurred because aggravated criminal sexual assault is not a lesser included offense of home

invasion predicated on criminal sexual assault. We also allowed defendant to file a supplemental

brief, in which he argues that we should hold the State to its original concession of error.

¶ 85 Defendant is correct that the State forfeited its current position by not raising that argument

in its brief. See People v. Ward, 2023 IL App (1st) 190364, ¶ 122 (citing Ill. S. Ct. R. 341(h)(7)

(eff. Oct 1, 2020)). However, forfeiture only binds the parties, not the reviewing court. People v.

Melvin, 2023 IL App (4th) 220405, ¶ 11. The State’s initial failure to recognize that defendant’s

convictions for home invasion and aggravated criminal sexual assault may not constitute a one-

act, one-crime violation does not automatically preclude us from considering that issue.

¶ 86 Moreover, whether a one-act, one-crime violation occurred is a question of law we review

de novo. People v. Scott, 2015 IL App (1st) 133180, ¶ 14. We review the trial court’s judgment,

not its reasoning, and we can affirm on any basis supported by the record. People v. Betance-

Lopez, 2015 IL App (2d) 130521, ¶ 60. As we will explain below, we affirm defendant’s multiple

convictions based on the charging documents and the jury instructions, which are included in the

record on appeal.

¶ 87 Defendant cites Jackson v. Board of Election Commissioners of Chicago, 2012 IL 111928,

¶ 33, for the principle that a reviewing court can override forfeiture only “in the interests of

achieving a just result and maintaining a sound and uniform body of precedent.” In this case, we

overlook the State’s forfeiture of this issue to achieve a just result. The just result here is upholding

a jury verdict that properly found defendant guilty of both aggravated criminal sexual assault and

home invasion. An unjust result would be allowing defendant to escape accountability for one of

- 34 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

these serious crimes simply because of the State’s oversight in briefing this appeal. We are also

compelled to provide guidance on why aggravated criminal sexual assault is not a lesser included

offense of home invasion predicated on criminal sexual assault because little if any Illinois

authority squarely addresses that issue. Accordingly, we will consider the one-act, one-crime issue

on the merits.

¶ 88 2. Lesser Included Offense

¶ 89 The one-act, one-crime rule provides that a defendant cannot be convicted of multiple

offenses based on the same physical act. People v. Reveles-Cordova, 2020 IL 124797, ¶ 12 (citing

People v. King, 66 Ill. 2d 551, 566 (1977)). The rule also prohibits multiple convictions when the

offenses are based on separate acts but one offense is a lesser included offense of the other. People

v. Miller, 238 Ill. 2d 161, 165 (2010). The one-act, one-crime rule requires a two-step analysis.

Reveles-Cordova, 2020 IL 124797, ¶ 12. First, we determine whether the defendant’s conduct

involved multiple acts or a single act. Id. If the conduct involved multiple acts, we must determine

whether one offense is a lesser included offense of the other. Id. We review potential violations of

the one-act, one-crime rule de novo. Coats, 2018 IL 121926, ¶ 12. Defendant raises only the second

part of the one-act, one-crime analysis, arguing that his convictions for aggravated criminal sexual

assault are lesser included offenses of home invasion predicated on criminal sexual assault. He

contends that the home invasion conviction should be vacated because it is the less serious offense.

¶ 90 Defendant was convicted of two counts of aggravated criminal sexual assault predicated

on bodily harm (720 ILCS 5/11-1.30(a)(2) (West 2016)) and one count of home invasion

predicated on “criminal sexual assault against T.F.” (id. § 19-6(a)(6)). To determine whether one

offense is a lesser included offense of another, we use the “abstract elements” test. Reveles-

- 35 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

Cordova, 2020 IL 124797, ¶ 13. Under this approach, we examine the statutory elements of the

two offenses. Id. “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.” (Internal quotation marks omitted.) Id. It must be

impossible to commit the greater offense without committing the lesser offense. Id.

¶ 91 A defendant commits home invasion when he knowingly and without authority enters the

dwelling place of another, has reason to know that one or more persons are present, and engages

in one of six predicate acts. 720 ILCS 5/19-6(a)(1)-(6) (West 2016). The predicate acts include

using force or threatening to use force while armed with a firearm or other dangerous weapon (id.

§ 19-6(a)(1), (3)), intentionally causing injury (id. § 19-6(a)(2)), using force or threatening to use

force and discharging a firearm (id. § 19-6(a)(4)), personally discharging a firearm that

proximately causes great bodily harm (id. § 19-6(a)(5)), and, relevant here, committing one of five

listed sexual offenses (id. § 19-6(a)(6)). The predicate sexual offenses under subsection (a)(6) are

criminal sexual assault (id. § 11-1.20), aggravated criminal sexual assault (id. § 11-1.30),

predatory criminal sexual assault of a child (id. § 11-1.40), criminal sexual abuse (id. § 11-1.50),

and aggravated criminal sexual abuse (id. § 11-1.60). Id. § 19-6(a)(6). In this case, the indictment

did not specify a predicate offense for home invasion by statutory number, but it stated that the

predicate offense was “criminal sexual assault.” The jury instructions on home invasion said the

same thing. We interpret this language to mean that the predicate offense for home invasion was

criminal sexual assault under section 11-1.20 as opposed to aggravated criminal sexual assault

under section 11-1.30. Relevant here, a defendant commits criminal sexual assault when he

commits an act of sexual penetration and uses force or threat of force. Id. § 11.20(a)(1). A

- 36 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

defendant commits aggravated criminal sexual assault when he commits criminal sexual assault

and causes bodily harm to the victim. Id. § 11-1.30(a)(2).

¶ 92 The issue is whether, for purposes of the abstract elements test, the third element of home

invasion is the commission of any of the five sex offenses listed in subsection (a)(6) or the

commission of the specific sex offense identified by the State as the predicate. Our supreme court

addressed a version of this question in Reveles-Cordova. In that case, the court analyzed how to

apply the abstract elements test when the defendant was convicted of both criminal sexual assault

and home invasion predicated on criminal sexual assault. Reveles-Cordova, 2020 IL 124797, ¶¶ 1,

14. The court held:

“Proof of criminal sexual assault is a necessary element of proof of home invasion

predicated on criminal sexual assault. All the elements of criminal sexual assault are

included in the offense of home invasion predicated on criminal sexual assault, and

criminal sexual assault contains no element not included in home invasion. It is impossible

to commit home invasion predicated upon criminal sexual assault without committing

criminal sexual assault. As such, criminal sexual assault is a lesser-included offense of

home invasion.” Id. ¶ 21.

¶ 93 Applying the holding of Reveles-Cordova to this case, the question is whether all the

elements of aggravated criminal sexual assault are included in the offense of home invasion

predicated on criminal sexual assault. See id. We find that they are not. Home invasion predicated

on criminal sexual assault under section 11-1.20 does not include the element of bodily harm

present in aggravated criminal sexual assault under section 11-1.30(a)(2). It is possible to commit

home invasion predicated on criminal sexual assault without committing aggravated criminal

- 37 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

sexual assault. For example, if the jury found that defendant sexually assaulted T.F. but did not

cause bodily harm, it could acquit defendant of aggravated criminal sexual assault but still find

him guilty of home invasion predicated on criminal sexual assault. Therefore, under the abstract

elements test, defendant’s convictions for aggravated criminal sexual assault are not lesser

included offenses of home invasion predicated on “simple” criminal sexual assault.

¶ 94 Defendant argues that “pars[ing] among the different offenses enumerated in subsection

(a)(6) to avoid merger would have absurd, unfair consequences that the legislature could not have

intended.” But “parsing” is exactly what our supreme court requires: “the five sex offenses

identified in subsection (a)(6) should be construed as separately proscribed offenses.” Id. ¶ 20.

¶ 95 This case is not, as defendant contends, like People v. Richardson, 2022 IL App (1st)

191689-U. 6 In Richardson, the defendant was convicted of aggravated criminal sexual assault

predicated on committing criminal sexual assault during a home invasion (720 ILCS 5/11-

1.30(a)(4) (West Supp. 2011)) as well as home invasion predicated on criminal sexual assault (720

ILCS 5/12-11(a)(6) (West 2010)). 7 Richardson, 2022 IL App (1st) 191689-U, ¶¶ 15-16. This court

concluded that the defendant’s convictions violated the one-act, one-crime rule because, under

those facts, “it is impossible to commit aggravated criminal sexual assault predicated on home

invasion without committing home invasion and impossible to commit home invasion predicated

on criminal sexual assault without committing aggravated criminal sexual assault.” Id. ¶ 17. By

contrast, in this case, defendant’s convictions for aggravated criminal sexual assault were not

6 Although Richardson is an unpublished order under Rule 23, defendant properly cites it as persuasive authority because it was issued after January 1, 2021. See Ill. S. Ct. R. 23(e)(1) (eff. Feb. 1, 2023). 7 In 2013, the home invasion statute was renumbered from section 12-11 to section 19-6. See 720 ILCS 5/12-11 (West 2010); 720 ILCS 5/19-6 (West 2012).

- 38 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

predicated on home invasion, and defendant could have committed home invasion without

committing aggravated criminal sexual assault. If defendant had sexually assaulted T.F. without

causing bodily harm, he would be guilty of home invasion predicated on criminal sexual assault

but not guilty of aggravated criminal sexual assault. That is, defendant’s commission of aggravated

criminal sexual assault was not necessary to his commission of home invasion predicated on

criminal sexual assault. Therefore, aggravated criminal sexual assault is not a lesser included

offense of home invasion in this case.

¶ 96 Finally, defendant argues that this approach to the lesser included offense analysis results

in defendant being subject to a greater penalty—convictions for both aggravated criminal sexual

assault and home invasion—solely because the State charged a lesser offense, “simple” criminal

sexual assault, as the predicate for home invasion. That is, had the State charged home invasion

predicated on aggravated criminal sexual assault instead of “simple” criminal sexual assault, the

convictions would have merged. That may be true, but it is up to the legislature to address that

issue if it wishes to do so. We must apply the criminal statutes as written and the abstract elements

test as our supreme court instructed in Reveles-Cordova. We also note that the State has wide

discretion in charging defendants (People v. Perry, 224 Ill. 2d 312, 339 (2007)) and is entitled to

charge strategically to avoid merger of convictions under the one-act, one crime rule. Accordingly,

we affirm defendant’s separate convictions for home invasion and aggravated criminal sexual

assault.

¶ 97 III. CONCLUSION

- 39 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

¶ 98 For the foregoing reasons, we affirm defendant’s convictions for aggravated criminal

sexual assault and home invasion. We reverse defendant’s convictions for residential burglary and

remand for a new trial on those charges.

¶ 99 Affirmed in part and reversed in part; cause remanded.

- 40 - Nos. 1-22-1681, 1-22-1682, 1-22-1683 (cons.)

People v. Allen, 2024 IL App (1st) 221681

Decision Under Review: Appeal from the Circuit Court of Cook County, Nos. 17-CR- 16663, 17-CR-16664, 17-CR-16665; the Hon. Charles P. Burns, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Jonathan Yeasting, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Mary L. Boland, John E. Nowak, and Beth Pfeiffer Appellee: Burns, Assistant State’s Attorneys, of counsel), for the People.

- 41 -