{ "id": 3591321, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN PETTIT, Defendant-Appellant; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CARR, JR., et al., Defendants-Appellants", "name_abbreviation": "People v. Pettit", "decision_date": "1983-06-17", "docket_number": "Nos. 81\u2014671, 81\u2014781, 81\u2014782 cons.", "first_page": "876", "last_page": "890", "citations": [ { "type": "official", "cite": "114 Ill. App. 3d 876" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "81 Ill. 2d 513", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5481877 ], "opinion_index": 0, "case_paths": [ "/ill-2d/81/0513-01" ] }, { "cite": "78 Ill. App. 3d 603", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5602498 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0603-01" ] }, { "cite": "83 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5551744 ], "year": 1979, "pin_cites": [ { "page": "987" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0982-01" ] }, { "cite": "62 Ill. App. 3d 847", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5620987 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0847-01" ] }, { "cite": "78 Ill. App. 3d 326", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5603289 ], "pin_cites": [ { "page": "329" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/78/0326-01" ] }, { "cite": "96 Ill. App. 3d 700", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12141006 ], "year": 1979, "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0700-01" ] }, { "cite": "96 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 12124559 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/96/0113-01" ] }, { "cite": "57 Ill. App. 3d 234", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422518 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/0234-01" ] }, { "cite": "76 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3277516 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0878-01" ] }, { "cite": "92 Ill. App. 3d 112", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5537700 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/92/0112-01" ] }, { "cite": "23 Ill. App. 2d 167", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5204351 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/23/0167-01" ] }, { "cite": "98 S. Ct. 1513", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "55 L. Ed. 2d 533", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "435 U.S. 937", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3106, 3091, 2397 ], "opinion_index": 0, "case_paths": [ "/us/435/0937-02", "/us/435/0937-01", "/us/435/0937-03" ] }, { "cite": "67 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811071 ], "year": 1978, "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0564-01" ] }, { "cite": "15 Ill. App. 3d 741", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2462414 ], "year": 1977, "pin_cites": [ { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0741-01" ] }, { "cite": "62 Ill. App. 3d 747", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621912 ], "pin_cites": [ { "page": "749" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0747-01" ] }, { "cite": "83 Ill. App. 3d 834", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5556790 ], "year": 1978, "pin_cites": [ { "page": "838" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/83/0834-01" ] }, { "cite": "15 Ill. App. 3d 445", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2459972 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/15/0445-01" ] }, { "cite": "55 Ill. App. 3d 795", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3408306 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/55/0795-01" ] }, { "cite": "68 Ill. App. 3d 687", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3305380 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "691" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0687-01" ] }, { "cite": "105 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5469945 ], "weight": 4, "year": 1979, "pin_cites": [ { "page": "789-90" }, { "page": "790" }, { "page": "789" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0785-01" ] }, { "cite": "68 Ill. 2d 198", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5809127 ], "opinion_index": 0, "case_paths": [ "/ill-2d/68/0198-01" ] }, { "cite": "40 Ill. App. 3d 730", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2969592 ], "year": 1977, "pin_cites": [ { "page": "734" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0730-01" ] }, { "cite": "447 F.2d 314", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3582426, 808372 ], "pin_cites": [ { "page": "319" } ], "opinion_index": 0, "case_paths": [ "/f2d/447/0314-01" ] }, { "cite": "85 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5469128 ], "weight": 2, "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0092-01" ] }, { "cite": "93 Ill. App. 3d 352", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3130381 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/93/0352-01" ] }, { "cite": "91 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3092555 ], "weight": 4, "pin_cites": [ { "page": "255" }, { "page": "255" }, { "page": "258" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/91/0251-01" ] }, { "cite": "90 Ill. App. 3d 22", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3159230 ], "pin_cites": [ { "page": "26" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/90/0022-01" ] }, { "cite": "104 Ill. App. 3d 436", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5477307 ], "weight": 4, "pin_cites": [ { "page": "447" }, { "page": "447-48" }, { "page": "447" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/104/0436-01" ] }, { "cite": "89 Ill. App. 3d 211", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5541743 ], "weight": 3, "pin_cites": [ { "page": "214-15" }, { "page": "214" }, { "page": "214-15" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/89/0211-01" ] }, { "cite": "55 Ill. 2d 565", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2940450 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0565-01" ] }, { "cite": "57 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5408379 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/ill-2d/57/0353-01" ] }, { "cite": "74 Ill. 2d 240", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994807 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-2d/74/0240-01" ] } ], "analysis": { "cardinality": 1259, "char_count": 33162, "ocr_confidence": 0.724, "pagerank": { "raw": 1.5735968071051837e-07, "percentile": 0.6791231844018706 }, "sha256": "c1a55f8a26883fe3955237b3ea79df7a4481a01542fc76f9a98c35444cd4002e", "simhash": "1:312b36f6634bd565", "word_count": 5562 }, "last_updated": "2023-07-14T18:05:13.547892+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN PETTIT, Defendant-Appellant.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CARR, JR., et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nSteven Pettit, Robert Carr, Jr., and Gerald Rein were charged by information in the circuit court of Winnebago County with home invasion (Ill. Rev. Stat. 1981, ch. 38, par. 12 \u2014 11(a)(1)), and Pettit was also charged with aggravated battery. Ill. Rev. Stat. 1981, ch. 38, par. 12\u2014 4(b)(1).\nPettit\u2019s motion for severance was granted. Carr and Rein were convicted in a bench trial, and Pettit\u2019s trial proceeded immediately thereafter before the same judge. Pettit was convicted of both charges. Each defendant\u2019s post-trial motion was denied; Carr and Rein were each sentenced to eight years\u2019 imprisonment. Pettit received concurrent terms of four years for aggravated battery and 10 years for home invasion. Each defendant appealed, and these cases were consolidated for our consideration.\nOn Tuesday, March 17, 1981, Robert Carr, Jr., Steven Pettit, and Gerald Rein went to the home of Duane Moore. Moore had recently sold them drugs which they believed to be bad. Using the pretense of wanting more drugs, and claiming not to be upset about the bad drugs already delivered, they convinced Moore to have his source, Ned Bassett, come over to the house with a delivery of additional drugs. When Bassett arrived, Pettit, Carr and Rein each pulled out a gun and held the two men hostage. They then forced Bassett to lead them to the home of his source, Steve Anderson. That residence was the lower apartment in a two-story house on North Court Street in Rockford, Illinois. Carr, Pettit and Rein brought Bassett and Moore with them to that apartment. Anderson was not home, but a babysitter, Mary Lynn, was there with the four-year-old son of Anderson\u2019s girlfriend.\nThe three defendants broke into the apartment and held Lynn hostage together with Bassett and Moore, and George Meek, who came down from the upstairs apartment where he lived with Mary Lynn when he heard her scream. After IW to two hours waiting for Anderson to return, Meek, Mary Lynn, the child, Bassett and Moore were forced to go upstairs to Meek\u2019s apartment where the defendants continued to hold that group of people hostage for another two hours waiting for Anderson to return. During that two-hour wait, Pettit repeatedly beat Ned Bassett, and when Bassett finally began to fight back, two shots were fired. The first shot discharged into the ceiling; the second shot hit Bassett in the right thigh and traveled into his right calf. Shortly thereafter the three defendants left the apartment, taking Bassett and Moore with them.\nThree issues are presented: (1) Whether Pettit, Carr and Rein were proved guilty of home invasion; (2) Whether Pettit was proved guilty of aggravated battery, and (3) Whether Pettit was denied due process based on comments made by the judge at the conclusion of Carr and Rein\u2019s trial concerning Pettit\u2019s role in the incident.\nI\nHome invasion\nThe same argument is made on behalf of all three defendants. They point out that the home invasion statute proscribes entry of the dwelling place of another \u201cwhen without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present ***.\u201d (Ill. Rev. Stat. 1981, ch. 38, par. 12 \u2014 11(a).) The premises involved was a house which was used as two apartments. The owner of the house, Steve Anderson, lived on the main floor level with his girlfriend and her four-year-old son; George Meek and Mary Lynn lived upstairs. Anderson was their landlord. Before leaving Moore\u2019s house, Bassett was made to \u201cwrite down the plans of the house [Anderson\u2019s] and how to get in it.\u201d Bassett testified Pettit made him write down the plans of the house because Pettit \u201cwanted to know all of the exits, bushes and all, surroundings, the garage and the upstairs and the downstairs.\u201d Bassett testified he thought Anderson lived alone at the house; Bassett was not aware that different people lived upstairs. Bassett also testified that the doorway he and Pettit entered led only into the lower apartment; there was no other passageway or doorway once entry had been made through the outside aluminum door and the inside door which Mary Lynn had opened in response to Bassett\u2019s knock.\nThere was testimony tending to show that there was a common hallway used by occupants of the upper and lower apartments for access to the outside. However, the door to that hallway was not the door through which the three defendants entered; they entered through the door which faces south, and which is the \u201cfront\u201d door of the lower apartment.\nThe defendants argue that since all the people present in the house were in the lower level apartment at the time Pettit decided they should all move upstairs, the defendants knew or had reason to know that no one was present in the upper apartment. The defendants point out that a reviewing court should give effect to the actual intention of the legislature (People v. Beam (1979), 74 Ill. 2d 240; People v. Scott (1974), 57 Ill. 2d 353), and may discover legislative intent by considering the evil to be remedied. People v. Dednam (1973), 55 Ill. 2d 565.\nThe defendants\u2019 suggestion that the \u201cevil to be remedied\u201d or prevented by the home invasion statute, the unlawful entry of an occupied dwelling, is consonant with the clear language of the statute and is in accord with express judicial interpretation of the statute. (People v. Robinson (1980), 89 Ill. App. 3d 211, 214-15.) In rejecting a due process attack on the statute, the Robinson court determined that the offense of home invasion consists of two parts: unauthorized entry and the use or threat of force by the invader while armed with a deadly weapon or intentional injury by the invader upon an occupant. (89 Ill. App. 3d 211, 214.) It found the statute was not unconstitutionally vague because \u201c[i]t informs all who might be tempted that they cannot, with impunity, enter another\u2019s dwelling, with reason to believe that the other is home, and therein threaten force with a deadly weapon or actually injure the occupant.\u201d People v. Robinson (1980), 89 Ill. App. 3d 211, 214-15.\nThe State urges rejection of the defendants\u2019 argument that no home invasion occurred because the defendants were aware everyone was downstairs and no one was upstairs. The State argues the record shows that Mary Lynn, the child, and Pettit preceded everyone upstairs, and that Carr and Rein must have been aware of their presence since they followed them up. The State similarly argues that Pet-tit entered the upstairs three separate times: first, to check to see if anybody else was up there; second, when he decided everyone should move upstairs in order to surprise Anderson when he returned, and third, after he had gone back downstairs to carry Duane Moore, who was in a wheelchair, upstairs. At the time of Pettit\u2019s last entry, the State notes that he had to be aware that Mary Lynn and the child at least were present in the upstairs apartment, because he had told them to lie down on the bedroom floor.\nThe State posits the home invasion statute does not require that persons be \u201cwithin\u201d or \u201cat home\u201d or that the dwelling be \u201coccupied,\u201d only that persons be \u201cpresent\u201d when entry is made. It concludes, therefore, that the victims need not be within the dwelling, they must simply be at the site of the crime. In support, the State cites People v. Pavic (1982), 104 Ill. App. 3d 436. The defendant there gained access to the circuit breaker of the victim\u2019s apartment, and switched it to the \u201cOff\u201d position. When the victim left her apartment to restore her electrical service, the defendant entered the apartment. The Pavic court upheld the defendant\u2019s conviction for home invasion, finding that the victim was \u201cconstructively\u201d present in the apartment. The court considered that the evidence supported the inference that the defendant knew the victim was home, and deliberately lured her out of the apartment by subterfuge so that he could gain entrance. (People v. Pavic (1982), 104 Ill. App. 3d 436, 447.) The court expressed its belief its holding was consonant with the legislative intent in that the victim was within the class of people the statute was designed to protect, and that the defendant\u2019s conduct was of the type of harm the statute was enacted to prevent. 104 Ill. App. 3d 436, 447-48.\nThe defendants find Pavic distinguishable and not dispositive, and we agree. The statute is not ambiguous, and resort to definition of the word \u201cpresent\u201d is unnecessary. As the Pavic court stated: \u201cThe emphasis of the home invasion statute *** is solely to protect the personal safety of people in their homes.\u201d 104 Ill. App. 3d 436, 447.\nThe evidence here shows positively that no one was present in the upstairs apartment at the time the defendant Pettit decided everyone should go upstairs. Pettit and Mary Lynn had already surveyed the upstairs for the express purpose of seeing \u201cif there was anybody else up there.\u201d Nor was anyone \u201cconstructively\u201d present as in the Pavic case. George Meek was not \u201clured\u201d out of the upstairs apartment so that the defendants could invade his home. The stated purpose of having everyone go upstairs was to make it look to Anderson like no one was downstairs, and he would then have to go upstairs where the defendants were waiting in ambush for him.\nCertainly a home invasion occurred here; but it was an invasion of Anderson\u2019s home, not Meek\u2019s, and the defendants were not charged with the invasion of Anderson\u2019s home. The evidence, in fact, fails to show that the defendants \u201cknowingly entered the dwelling place of another [Meek\u2019s].\u201d Ned Bassett testified he drew the defendants a plan of the house, including the upstairs. He also testified that, although he had been buying drugs from Anderson for two to three years, he thought Anderson lived alone, was not aware that different people lived upstairs, and that he did not know Meek or Mary Lynn prior to the night of the occurrence. George Meek testified he told defendant Pettit that \u201cwe [he and Mary Lynn] were babysitting for Anderson.\u201d\nThe relief requested by the defendants here was reversal; however, this court took note of arguments made by defense counsel at the two trials to the effect that the evidence at most showed defendants were guilty, perhaps, of kidnaping, unlawful entry, aggravated assault or aggravated battery. This court agreed that the evidence indeed would have sustained conviction of all three defendants for aggravated battery, Carr and Rein on accountability principles. Consequently, pursuant to the broad powers granted by Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3)), this court reduced the degree of offense to aggravated battery which it considered was a lesser included offense of home invasion.\nIn a petition for rehearing subsequently denied by this court, the defendants argued aggravated battery is not a lesser included offense of the subsection of the home invasion statute with which they were charged; i.e., section 12 \u2014 11(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 12 \u2014 11(a)(1)). Defendants note that \u201c[fjor an offense to be a lesser included offense, it must not have any element not included in the greater offense so that it is impossible to commit the greater offense without necessarily committing the lesser.\u201d (People v. Rudd (1980), 90 Ill. App. 3d 22, 26.) Defendants point out battery requires either bodily harm or physical contact of an insulting or provoking nature, and aggravated battery requires inter alia, the use of a deadly weapon during the commission of a battery. Defendants argue that since the precise offense with which they were charged can be committed whether or not injury occurs and that the offender need only be armed with a deadly weapon, it is possible to commit the greater offense of home invasion without also committing aggravated battery. Consequently, the defendants argue aggravated battery may not be considered a lesser included offense of home invasion. The defendants suggested in their rehearing petition that aggravated assault (Ill. Rev. Stat. 1981, ch. 38, par. 12\u2014 2) is the lesser included offense to which their convictions should be reduced.\nUpon this court\u2019s invitation to the State to respond to the defendants\u2019 petition for rehearing, the State declined to submit an argument in support of reducing the degree of the offense. Instead, citing People v. Mays (1982), 91 Ill. 2d 251, it asserted that the law on the concept of lesser included offenses is not yet settled.\nIn Mays, the defendant appealed his conviction for rape contending, inter alia, that battery was a lesser included offense of rape and, therefore, that the court erred in refusing his tendered jury instruction as to that offense. The appellate court agreed that battery was a lesser included offense of rape, and remanded the cause for a new trial. (People v. Mays (1981), 93 Ill. App. 3d 352.) The supreme court reversed and reinstated the circuit court\u2019s judgment.\nIn so reversing, the supreme court noted that although an \u201cincluded offense\u201d is defined in the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 2 \u2014 9):\n\u201cThe definition *** does not indicate which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial.\u201d (91 Ill. 2d 251, 255.)\nContinuing, the court noted:\n\u201cIn People v. Cramer [(1981), 85 Ill. 2d 92] this court recently approved the use of the second test, while at the same time pointing out that the first test was seldom used and expressing no opinion on the propriety of the third test. Under the facts of this case, however, we reach the same result no matter which test is applied.\u201d People v. Mays (1982), 91 Ill. 2d 251, 255.\nThe State here posits this court\u2019s reduction of the degree of the offense to aggravated battery could be sustained if the third test in Mays were accepted as determinative in deciding if a particular offense is an included offense of another. That is, if the evidence presented at trial to prove the elements of the greater offense also proved the elements of a lesser offense.\nIn reply, the defendants point out that the use of the third test in Mays would not sustain a reduction of the home invasion offense to aggravated battery because that test is actually the \u201cinherent relationship\u201d test applied in several Federal cases.\n\u201cBy \u2018inherent relationship,\u2019 the Federal courts of appeals meant that the two offenses \u2018must relate to the protection of the same interest, and must be so related that in the general nature of these crimes, though not necessarily invariably, proof of the lesser offense is necessarily presented as part of the showing of the commission of the greater offense.\u2019 (United States v. Whitaker (D.C. Cir. 1971), 447 F.2d 314, 319.)\u201d (91 Ill. 2d 251, 258.)\nDefendants contend there is no such \u201cinherent relationship\u201d between the offenses of home invasion and aggravated battery.\nThe issues in Cramer and Mays were framed in the context of an instructional error being made, whereas this court\u2019s consideration of the issue is framed in the context of its discretion to reduce the degree of an offense pursuant to Supreme Court Rule 615(b)(3). Power to exercise that discretion, however, is only available when lesser included offenses are involved. (People v. Trinkle (1976), 40 Ill. App. 3d 730, 734, aff\u2019d (1977), 68 Ill. 2d 198.) Notwithstanding the seeming lack of certainty as to which of the three tests in Mays is determinative, Cramer did utilize the second test; i. e., that the greater crime as it is alleged in the indictment or other charging document is determinative in deciding if a particular offense is an included offense therein. That test also has been used at the appellate level. See, e.g., People v. Barkenlau (1982), 105 Ill. App. 3d 785; People v. Robinson (1979), 68 Ill. App. 3d 687; People v. Thompson (1977), 55 Ill. App. 3d 795.\nCramer expressed no opinion \u201cwhether the evidence as adduced at trial could support a defendant\u2019s tendered instruction where the terms of the indictment could not.\u201d (People v. Cramer (1981), 85 Ill. 2d 92, 98.) This court in Barkenlau, however, in addition to eschewing the use of the first test (comparison of the abstract elements of the crime-charged statute and the instruction-tendered statute), considered that the issue sidestepped in Cramer was not open for its consideration. Barkenlau noted that when conduct is violative of more than one statute and each statute requires different proof for conviction, it is well established that it is for the State, not the defendant, to choose under which statute prosecution will proceed. (People v. Barkenlau (1982), 105 Ill. App. 3d 785, 789-90.) \u201c[0]ne may not be convicted of an unindicted offense which is not a lesser-included of the offense for which he is charged. [Citations.]\u201d 105 Ill. App. 3d 785, 790.,\nThe information at bar charged Pettit, Car and Rein committed the offense of:\n\u201cHome Invasion, in that they, without authority and not being peace officers, knowingly entered the dwelling place of George Meek located at 1413 North Court Street, Rockford, Illinois, having reason to know that one or more persons were present therein, and while armed with a dangerous weapon, to-wit: a certain handgun, did within such dwelling place, use force or threaten the imminent use of force upon the said George Meek. ***.\u201d\nThe offense of aggravated battery is not a lesser included offense of home invasion as charged in the information because the elements of bodily harm and use of a deadly weapon are not alleged therein. Aggravated assault is also not a lesser included offense because there is no allegation that Meek was placed in \u201creasonable apprehension of receiving a battery,\u201d an element essential to proof of that offense. (People v. Barkenlau (1982), 105 Ill. App. 3d 785, 789; People v. Robinson (1979), 68 Ill. App. 3d 687, 691.) Accordingly, defendants\u2019 convictions for home invasion are hereby reversed and their sentences for that offense vacated.\nII\nAggravated battery conviction\nDefendant Pettit also appeals his conviction for the aggravated battery of Ned Bassett, contending the State\u2019s evidence failed to prove a knowing or intentional act on his part which caused bodily harm. He notes that the State\u2019s burden was to prove he was \u201cconsciously aware\u201d that his conduct was \u201cpractically certain\u201d to cause the result. (Ill. Rev. Stat. 1981, ch. 38, par. 4 \u2014 5(b).) He finds People v. Barrington (1973), 15 Ill. App. 3d 445, applicable. The court in Barrington reversed the defendant\u2019s battery conviction because it found the evidence did not show beyond all reasonable doubt that he knew his conduct would result in harm. The defendant there was a high school teacher, and several female students present for cheer-leading practice had blocked off the corridor in front of his office door with a coatrack. The defendant heard laughter emanating from the hallway, exited his office, and attempted to push the coatrack aside, unaware that one of the casters was jammed. The rack fell on the students, injuring them.\nThe defendant finds the testimony given by the State\u2019s four witnesses to be proof that \u201cthe shooting was quite clearly accidental.\u201d Mary Lynn could only testify that from her position in the bedroom with the child, she heard fighting and two shots. Meek heard the defendant threaten to shoot Bassett at one point, and he heard two shots. After one of the shots, he looked up to see the defendant about two feet away from Bassett, pointing the gun right at Bassett, but he could not testify that that shot hit Bassett. Moore testified that the defendant and Bassett struggled over the gun and it went off, striking the ceiling. When the second shot went off, Bassett, crouched in the doorway between the living room and the entry way, had just begun to stand up and the gun went off. Moore testified he did not recollect, though, that the defendant was pointing the gun at Bassett.\nPettit notes particularly the testimony of the victim himself. Bassett testified that he and the defendant were wrestling around, and that the gun was in the defendant\u2019s poncho sweatshirt pocket. Bassett testified the first shot went through his thigh and also through the ceiling.\nThe State argues the factual testimony given supports the finding that the shooting was \u201cknowing.\u201d It discounts Bassett\u2019s testimony as being \u201cless than lucid,\u201d due to the beating the defendant had inflicted upon him. The court found Bassett\u2019s testimony unreliable as well, because he was a drug dealer and may have been scared or afraid.\nThe State points out Moore testified the defendant had cocked the gun and it went off when Bassett rushed at the defendant during the fight. The second shot did not occur during the fight, but when Bassett was crouched in the doorway starting to get up. The State posits that Meek\u2019s testimony undeniably suggests intentional injury. Meek testified the defendant stated Bassett \u201cought to be shot,\u201d the gun went off, and Meek observed the defendant about two feet away from Bassett, pointing the gun right at him.\nThe State urges that if this court should find the evidence insufficient to sustain the aggravated battery conviction, that the conviction be reduced to reckless conduct as permitted by Supreme Court Rule 615(b)(3) (87 Ill. 2d R. 615(b)(3)) and as argued by defense counsel below.\nThe defendant finds the State\u2019s discounting of Bassett\u2019s testimony to be very irregular, and urges this court to reject the State\u2019s claim because \u201cnothing in the record supports the State\u2019s contention that Bassett was unable to remember clearly the events of the evening in question.\u201d\nWe believe the evidence supports the defendant\u2019s conviction for \u00e1ggravated battery. Certainly the defendant\u2019s conduct here cannot be equated with that of the defendant in Barrington. (15 Ill. App. 3d 445.) The requisite mental state for a crime may be proved by acts and circumstances surrounding the defendant\u2019s conduct. (People v. Colley (1980), 83 Ill. App. 3d 834, 838; People v. Trump (1978), 62 Ill. App. 3d 747, 749.) The testimony of one witness, if positive and credible, is sufficient to sustain a conviction. (People v. Johnson (1973), 15 Ill. App. 3d 741, 743.) In a bench trial, the credibility of witnesses is for the trial judge to determine, and the decision of the trier of fact in this regard will not be disturbed unless it is based upon evidence which is so improbable as to raise a reasonable doubt of defendant\u2019s guilt. People v. Manion (1977), 67 Ill. 2d 564, 578, cert. denied, (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.\nHere, Meek\u2019s testimony was positive and credible. Further, his testimony that the defendant was pointing the gun right at Bassett was based on his observation after the second shot was fired which was the shot which struck Bassett\u2019s thigh. Moore testified the first shot went into the ceiling, and both Moore and Meek testified the second shot was fired when Bassett was crouched in the doorway and beginning to stand up. Photos of Bassett taken the next morning at the hospital show a wound consistent with the posture described by those two witnesses, in that the bullet passed through Bassett\u2019s thigh and entered his calf.\nFurther, contrary to the defendant\u2019s assertion, Bassett\u2019s own testimony is replete with statements indicating he was less than lucid, to-wit:\n\u201cQ. [Prosecutor] How long did the group remain at Anderson\u2019s apartment [downstairs]?\nA. [Bassett] Roughly an hour and a half.\nQ. What happened after that?\nA. I woke up in a scalding hot water bathtub with a bullet wound in my leg.\n* * *\nA. [Bassett] And he [defendant] started beating on me and that\u2019s all I remember.\n* * *\nA. [Bassett] *** I think while we were wrestling around, the first shot went through my thigh and also through the ceiling and so we started rolling around again. I was crawling after that and that\u2019s the next thing I remember was I was in the tub.\n* * *\nQ. [Defense counsel] That\u2019s the length of any struggle or wrestling upstairs?\nA. [Bassett] Yes. I was pretty well out of my head at that time, after being beat so much.\nQ. So you don\u2019t recall too much of what happened upstairs?\nA. That\u2019s right.\n* * *\nQ. [Defense counsel] How many shots do you actually recall being fired upstairs?\nA. [Bassett] One. ***\u201d\nThe photos taken of Bassett reveal a person who had indeed undergone quite a beating, and we believe the court correctly determined Bassett\u2019s testimony was not reliable.\nIn sum, we conclude the evidence sustains Pettit\u2019s conviction for aggravated battery, and no reversal or reduction in the degree of the offense is warranted.\nIll\nImpartial trier of fact\nDefendant Pettit lastly charges that the trial judge was predisposed to find him guilty and he was therefore denied a fair trial before an impartial trier of fact. He finds the basis for his charge in certain comments made by the trial judge at the conclusion of Rein and Carr\u2019s trial which immediately preceded his, to-wit:\n\u201c[The two codefendants] go upstairs with the guns because they are in it with Pettit and under the Accountability Statute [sic], at least, they are guilty. Buy they went upstairs when they could have disengaged. They could have left. They could have gone. They are so overwhelmed by Pettit, they couldn\u2019t do anything? That\u2019s sheer, utter nonsense. They went there because they had been ripped off with bad drugs and they were as much a part of it as Pettit was and they had the pistols.\u201d\nThe defendant alleges the comments show the judge was so convinced the defendant was guilty beyond a reasonable doubt, that he believed Rein and Carr were guilty under accountability principles. Thus, he contends he was denied his well-established right to a trier of fact free from prejudice or preconceived notions of guilt. (People ex rel. Przyblinski v. Scott (1959), 23 Ill. App. 2d 167.) Defendant asserts the error may not be considered to be waived by counsel\u2019s failure to file a motion for substitution of judges (Ill. Rev. Stat. 1981, ch. 38, par. 114 \u2014 5(c)), since the record does not indicate defense counsel was aware of the trial judge\u2019s prejudicial comments. Defendant\u2019s further position is not only that he has not waived the issue, but that the judge should have recused himself sua sponte from the defendant\u2019s case.\nThe State counters that the defendant has waived the issue, and that the comments do not demonstrate prejudice. It points out the court has no duty to recuse itself sua sponte when the defendant has failed to move for a substitution of judges prior to trial. (People v. Rynberk (1980), 92 Ill. App. 3d 112.) Further, the trial court does not have the burden of justifying its retention of the case; rather, the defendant bears the burden of showing that prejudice will result if his motion to substitute is not granted. People v. Mitchell (1979), 76 Ill. App. 3d 878; People v. Ganci (1978), 57 Ill. App. 3d 234; see also People v. Bianchi (1981), 96 Ill. App. 3d 113.\nThe State finds the defendant\u2019s \u201cno waiver\u201d argument untenable. It reasons that defense counsel most likely would have well acquainted himself with the outcome of the preceding trial and/or even been present during same. Additionally, it denies the court\u2019s comments reflect any prejudice whatsoever since the comments were made only as a function of considering the guilt of the codefendants, and the record of the defendant\u2019s case fails to reveal that the court relied on its resolution of the preceding case, or that it gave less than attentive and impartial consideration to the evidence presented in the defendant\u2019s trial.\nThe defendant replies the cases cited by the State in opposition to his waiver argument are not apposite because the defendants in those cases (Rynberk, Mitchell and Ganci) were aware prior to their trials of the facts upon which their motions for substitution were based. Contrary to the State\u2019s argument, the defendant finds it highly unlikely that defense counsel would have been free to spend half his day to attend a trial which was not part of his caseload. Further, the defendant asserts the court\u2019s comments were inherently prejudicial because it necessarily would had to have decided the defendant was guilty beyond a reasonable doubt in order to have found the codefendants accountable.\nDespite the defendant\u2019s petition for rehearing urging reconsideration of our decision of this issue, we agree with the common sense logic underlying the State\u2019s argument that the defendant has waived this issue. If we were to reach the merits of the issue under the plain error rule (87 Ill. 2d R. 615(a)), the result would be the same.\nWe believe the defendant\u2019s contention that he was denied a fair trial by an impartial trier of fact is without merit. Clearly, defense counsel knew his client\u2019s trial would possibly immediately follow Rein and Carr\u2019s. The court had advised him in advance that it would proceed directly to defendant\u2019s trial at the conclusion of Carr and Rein\u2019s, even if only part of the day remained. Thus, counsel impliedly was placed on notice that he should be \u201cat the ready.\u201d\nThe record reflects the court was cognizant of its duty to recuse itself if necessary: at the hearing on the defendant\u2019s motion for severance, the judge, noting he had received a letter from Pettit, advised Pettit he had turned the letter over to defense counsel, explaining that if he had read the letter and there were any things prejudicial to either side in it, he would have to disqualify himself.\nDefense counsel\u2019s motion for severance alleged the defendant would be adversely prejudiced if tried jointly with Rein and Carr due to their signed statements which had been ruled admissible. The statements plainly suggest their guilt under accountability principles. Unlike the defendant\u2019s construction of the court\u2019s comments, we believe they may more correctly be construed as an expression of the court\u2019s belief that Carr and Rein were guilty as \u201cprincipals\u201d rather than as \u201caccountables.\u201d\nConstruction aside, we note that section 5 \u2014 3 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 5 \u2014 3) permits the conviction of a person legally accountable for the conduct of another even if that other person has not yet been prosecuted or convicted, or actually has been acquitted. (See generally People v. Luigs (1981), 96 Ill. App. 3d 700, 703; People v. Ruiz (1979), 78 Ill. App. 3d 326, 329.) With that in mind, we are led to the conclusion that the court\u2019s reference to Rein and Carr\u2019s guilt under the accountability theory did not ipso facto amount to an expression of its belief in the defendant\u2019s guilt as principal as well.\nThe defendant bears the burden of choosing defense tactics and preserving alleged errors for review. (People v. Driver (1978), 62 Ill. App. 3d 847.) Defense counsel surely was aware that virtually the same evidence would be presented in the former prosecution as in the latter. His defense strategy at trial was apparently not that the defendant was not guilty but, rather, that he was not guilty of the offenses charged. Defense counsel made arguments in the trial court suggesting the defendant\u2019s conduct amounted perhaps to lesser offenses. The fact defense counsel made no motion for substitution of judges may have been a deliberate tactic rather than a lack of knowledge of the allegedly prejudicial comments made by the court.\nIn sum, it is our view that the court\u2019s comments did not amount to \u201ca personal expression\u201d of its belief that Pettit was guilty, and that Pettit received a fair trial.\nIn accord with the foregoing, the convictions of the defendants Pettit, Carr and Rein for home invasion are reversed and their sentences for that offense vacated.\nThe judgment against defendant Pettit for aggravated battery (which was committed on Edward Bassett) is affirmed, but that cause is remanded for resentencing because the trial court may well have been influenced by the defendant\u2019s conviction for home invasion in sentencing him for the aggravated battery conviction. People v. Green (1980), 83 Ill. App. 3d 982, 987; People v. McTush (1979), 78 Ill. App. 3d 603, rev\u2019d on other grounds (1980), 81 Ill. 2d 513.\nAffirmed in part; vacated in part and remanded with directions.\nSEIDENFELD, P.J., and LINDBERG, J., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "G. Joseph Weller, David S. Morris, Josette Skelnik, Paul J. Glaser, and Kathleen Hamill, all of State Appellate Defender\u2019s Office, of Elgin, for appellants.", "Daniel Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. STEVEN PETTIT, Defendant-Appellant.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT CARR, JR., et al., Defendants-Appellants.\nSecond District\nNos. 81\u2014671, 81\u2014781, 81\u2014782 cons.\nOpinion filed June 17, 1983.\nG. Joseph Weller, David S. Morris, Josette Skelnik, Paul J. Glaser, and Kathleen Hamill, all of State Appellate Defender\u2019s Office, of Elgin, for appellants.\nDaniel Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and Cynthia N. Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0876-01", "first_page_order": 898, "last_page_order": 912 }