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Illinois Supreme Court Announces Predicate Offenses of Home Invasion Statute are Lesser-Included Offenses of Home Invasion Statute

A jury convicted Alejandro Reveles-Cordova of criminal sexual assault and of home invasion predicated upon criminal sexual assault. On appeal, Reveles argued his criminal sexual assault conviction must be set aside under the “one-act, one-crime” doctrine because it is a lesser-included offense of his home invasion conviction. The appellate court rejected his argument and affirmed. The Illinois Supreme Court granted further review.

The Court observed “[i]n People v. King, 66 Ill.2d 551 (1977) [363 N.E.2d 838], this [C]ourt held that, when the State charges a defendant with multiple offenses that ‘arise from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses,’ multiple convictions and sentences can be entered.” This became known as the one-act, one-crime doctrine. People v. Miller, 938 N.E.2d 498 (Ill. 2010).

To determine if one offense is a lesser included offense of another, courts are to employ the “abstract elements approach” by examining the statutory elements of the two offenses. Miller. If all of the elements of one offense are included within the 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. Id.

In Illinois, home invasion is committed when a person, without authority, knowingly enters the dwelling place of another while another is present and engages in one of the following six predicate acts: using/threatening to use force while armed with a firearm or other dangerous weapon, 720 ILCS 5/12-11(a)(1), (3); intentionally causing injury, § 12-11(a)(2); using/threatening to use force and discharging a firearm, § 12-11(a)(4); personally discharging a firearm that proximately causes great bodily harm, § 12-11(a)(5); or committing any one of five enumerated sexual offenses including criminal sexual assault, § 12-11(a)(6).

In employing the abstract elements approach to the home invasion statute, a split had arisen among the districts of the appellate court. Under People v. Bouchee, 962 N.E.2d 15 (Ill. App. Ct. 2011), the appellate court, second district, determined criminal sexual assault is not a lesser-included offense of home invasion predicated on criminal sexual assault because the home invasion statute also contains elements of using a firearm, intentionally causing injury, etc., which are not found in the criminal sexual assault statute. That is, home invasion could be committed without committing criminal sexual assault.

But in People v. Skaggs, 137 N.E.3d 875 (Ill. App. Ct. 2019), the appellate court, fourth district, ruled that Miller requires courts to consider only the subsection under which the defendant was actually charged and convicted. Consequently, criminal sexual assault would be a lesser-included offense of home invasion predicated on criminal sexual assault because it would be “impossible to commit home invasion under section 12-11(a)(6) without committing the sex offense listed in the home invasion charge.” Skaggs.

To resolve the split, the Court relied on Whalen v. United States, 445 U.S. 684 (1980). In Whalen, the defendant was convicted of rape and felony murder predicated on rape. The Supreme Court of the United States (“SCOTUS”) reversed. SCOTUS rejected the Government’s argument that because the felony murder statute allowed conviction based on six separate predicate felonies in the alternative, rape was not a lesser-included offense. SCOTUS reasoned that if Congress had written six separate felony murder statutes each with one of the predicate offenses, then conviction of the predicate offenses would be barred by the test announced in Blockburger v. United States, 284 U.S. 299 (1932). (The Blockburger test is materially the same as the “abstract elements approach” of Miller.) That is, the Government would have to prove all of the elements of the predicate offense, plus a homicide, to convict of felony murder; therefore, the predicate offense would be a lesser-included offense of the felony murder. SCOTUS declined to reach an opposite conclusion simply because Congress had drafted the felony murder statute to include all of the predicate offenses in one compound statute.

The Illinois Supreme Court concluded that all of the alternative predicates of 720 ILCS 5/12-11(a)(1) through (a)(5) and the five sexual offenses of subsection (a)(6) should be construed as separately proscribed offenses. Consequently, it is impossible to commit home invasion based on criminal sexual assault without committing the lesser-included offense of criminal sexual assault, the Court ruled.

In addition, the Court expressly overruled Bouchee and its progeny to the extent they conflict with the rule announced in this opinion.

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Related legal case

People v. Reveles-Cordova



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