{ "id": 5665334, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH ZEHR, Defendant-Appellant", "name_abbreviation": "People v. Zehr", "decision_date": "1986-05-30", "docket_number": "No. 3-85-0233", "first_page": "875", "last_page": "881", "citations": [ { "type": "official", "cite": "143 Ill. App. 3d 875" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "483 N.E.2d 1298", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "136 Ill. App. 3d 878", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3564379 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/136/0878-01" ] }, { "cite": "436 N.E.2d 272", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "106 Ill. App. 3d 774", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3030464 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/106/0774-01" ] }, { "cite": "464 N.E.2d 1262", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. App. 3d 955", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3428580 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/124/0955-01" ] }, { "cite": "459 N.E.2d 260", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "121 Ill. App. 3d 248", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3560064 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/121/0248-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "weight": 3, "pin_cites": [ { "page": "566" }, { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "457 N.E.2d 77", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 845", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3630137 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0847-01" ] }, { "cite": "450 U.S. 24", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6181086 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/450/0024-01" ] }, { "cite": "386 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994769 ], "opinion_index": 0, "case_paths": [ "/ill-2d/74/0514-01" ] }, { "cite": "447 N.E.2d 193", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. 2d 327", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3106892 ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0327-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "469 N.E.2d 1062", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "103 Ill. 2d 472", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3152531 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/103/0472-01" ] }, { "cite": "442 N.E.2d 581", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "110 Ill. App. 3d 458", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2996016 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/ill-app-3d/110/0458-01" ] } ], "analysis": { "cardinality": 544, "char_count": 9683, "ocr_confidence": 0.734, "pagerank": { "raw": 8.841659136963344e-08, "percentile": 0.4982508632742681 }, "sha256": "f95ea6cdee229ce3e3addf9cbcfa7ea1a004795b615ecc6c91ea81809290b148", "simhash": "1:aa47bd0a67ce69b1", "word_count": 1603 }, "last_updated": "2023-07-14T15:11:23.440803+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. KENNETH ZEHR, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BARRY\ndelivered the opinion of the court:\nIn 1981, following a jury trial, the defendant, Kenneth Zehr, was convicted of home invasion, burglary, and aggravated battery. On appeal, however, the defendant\u2019s convictions were reversed and remanded for a new trial. People v. Zehr (1982), 110 Ill. App. 3d 458, 442 N.E.2d 581, affd (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.\nIn 1985, the defendant was again tried by a jury, and was again convicted of all charges. He was sentenced to concurrent terms of 20 years for home invasion, 6 years for burglary, and SVz years for aggravated battery.\nThe defendant raises a number of issues on appeal, the first of which is that the trial court abused its discretion in permitting the use of a videotaped evidence deposition of the complaining witness, Mrs. Hazel Fox, at the trial. We disagree.\nAt the first trial, Mrs. Fox\u2019 physician, Dr. Anton Geiger, testified concerning Mrs. Fox\u2019 physical condition. In his opinion, Mrs. Fox would never be able to testify in person at the defendant\u2019s trial. Based on this, the trial court found the witness to be unavailable and allowed the admission of the videotaped deposition. On appeal, the supreme court found no abuse of the trial court\u2019s discretion to determine whether to permit the use of the videotaped deposition. People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.\nIn the instant case, on nearly identical facts, the trial court found Mrs. Fox to be unavailable for trial and allowed the use of the videotaped deposition. On three occasions from April 1984 to January 1985, a new physician, Dr. Charles Waldron, examined Mrs. Fox in Arizona, where she had since moved. Dr. Waldron testified that Mrs. Fox complained of chest pains occurring regularly. His examination of her revealed her to be suffering from arteriosclerosis. He testified that her condition had neither improved nor worsened much in the last few years. In his opinion, if Mrs. Fox had to testify, she would probably suffer further chest pains and possibly cause injury to her heart. Dr. Waldron believed it unlikely that Mrs. Fox could take a three-hour plane trip from Arizona without any detriment to her health. On these facts, we find that the trial court did not abuse its discretion in permitting the use of the videotaped deposition.\nThe defendant\u2019s second argument, raised for the first time on appeal, is that the prosecutor\u2019s cross-examination of the defendant and closing argument comments about the defendant\u2019s silence at arrest amounted to prejudicial error.\nThe general rule is that where a defendant fails to preserve an issue for review, he waives that issue on appeal. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) However, the waiver rule may be relaxed where the evidence is closely balanced, or if the error deprives the defendant of a fair trial. People v. Szabo (1983), 94 Ill. 2d 327, 447 N.E.2d 193.\nThe evidence of guilt in this case is not closely balanced. Both the victim of the crime and the defendant\u2019s codefendant positively identified the defendant as one of the perpetrators of the crime. A number of items taken from the victim\u2019s home during the crime were found in the defendant\u2019s possession. Further, the defendant admitted being in the vicinity of the crime on the night it was committed.\nNeither was any arguable error so great that it deprived the defendant of a fair trial. Use of a defendant\u2019s post-arrest silence to impeach his exculpatory story told for the first time at trial can be harmless error. (People v. Beller (1979), 74 Ill. 2d 514, 386 N.E.2d 857.) Considering the substantial evidence of the defendant\u2019s guilt, we are satisfied that any error in the prosecutor\u2019s questions on cross-examination and his comments on closing did not contribute to the defendant\u2019s conviction.\nBased on our two-pronged analysis, we find that the defendant has waived for consideration on appeal the issue of the use of his silence at arrest.\nThe third issue presented by the defendant is that the trial court contravened the proscription against ex post facto laws by applying a new statutory factor in aggravation in sentencing the defendant; and therefore his cause should be remanded for resentencing. We disagree.\nAt sentencing, a trial court may consider, as an aggravating factor of the crime, that the victim was 60 years of age or over. (Ill. Rev. Stat. 1985, ch. 38, par. 1005 \u2014 5\u20143.2(a)(8).) The defendant argues that because this statutory factor was not in existence until added in 1984 by Public Act 83 \u2014 432, the consideration of this factor in sentencing the defendant violated the proscription against ex post facto laws.\nFor a criminal or penal law to be ex post facto, and thus its application to be forbidden, it must be retrospective, that is, it must apply to events which occurred before its enactment, and it must be disadvantageous to the offender affected by it. (Weaver v. Graham (1981), 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960.) We find that the sentencing court\u2019s use of the victim\u2019s age was neither retrospective nor disadvantageous to the offender.\nA trial court, when sentencing a defendant, may consider nonstatutory factors in aggravation. (People v. Allen (1983), 119 Ill. App. 3d 845, 457 N.E.2d 77.) The court\u2019s use of the victim\u2019s age as an aggravating factor did not depend on the existence of the statutory factor. Because the trial court could have considered the victim\u2019s age in aggravation with or without the statutory factor, the court\u2019s consideration of that factor, albeit with reference to the statute enacted after the offense, constituted no retrospective application of a law in violation of the ex post facto proscription. We therefore find no reason to remand for resentencing.\nFinally, the defendant argues that his convictions for burglary and aggravated battery must be vacated. Specifically, he contends that those convictions are based on the same physical act as the home invasion conviction, in violation of the prohibition against multiple convictions for the same physical act. To consider this argument, we outline the relevant facts.\nMrs. Fox testified that she saw the defendant and another man in her basement on the night in question. After the other man knocked her glasses off, the defendant tied her wrists, knocked her to the floor, tied her ankles, and gagged her. Following this, the defendant repeatedly pulled on her gag and bindings, and repeatedly pushed her head into a pile of clothing in order to smother her. He then went upstairs to ransack the house on four occasions, returning each time to Mrs. Fox to pull on her gag and bindings and to smother her in the clothes.\nThe supreme court has stated that multiple convictions are prohibited where more than one offense is carved from the same physical act, or where the offense, or offenses, are by definition, lesser included offenses. (People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838.) Multiple convictions and concurrent sentences are permitted where a defendant has committed several acts, despite the interrelationship of those acts. (66 Ill. 2d 551, 566, 363 N.E.2d 838.) In this analysis, the term \u201cact\u201d means any overt or outward manifestation which will support a different offense. 66 Ill. 2d 551, 566, 363 N.E.2d 838.\nWe have held that burglary is not a lesser included offense of home invasion. (People v. Lobdell (1983), 121 Ill. App. 3d 248, 459 N.E.2d 260.) This is because burglary can be completed upon the defendant\u2019s unlawful entry with the requisite felonious intent; while the home invasion is not completed until the defendant uses or threatens force or intentionally causes injury after unlawful entry. People v. Snow (1984), 124 Ill. App. 3d 955, 464 N.E.2d 1262.\nIn the case at bar, the evidence shows that the burglary was completed when the defendant entered Mrs. Fox\u2019 home. The home invasion was not completed until, following the unlawful entry, the defendant injured Mrs. Fox. We find the evidence to be sufficient to support both the burglary and the home invasion convictions.\nWe also find that the evidence supports separate convictions for aggravated battery and home invasion. It has been held that aggravated battery is not an included offense of home invasion. (People v. Tate (1982), 106 Ill. App. 3d 774, 436 N.E.2d 272.) In Tate, the defendant was convicted of aggravated battery and home invasion after he unlawfully entered the victim\u2019s home and stabbed the victim once. The court, in affirming the defendant\u2019s convictions, stated that the stabbing constituted a single act, while the entry into the victim\u2019s home was a separate act.\nThis case is even more clear than Tate. As noted earlier, the defendant unlawfully entered the victim\u2019s home, tied her up, attacked her, and then returned four separate times to attack her again. Further, unlike in People v. Gorney (1985), 136 Ill. App. 3d 878, 483 N.E.2d 1298, on which the defendant relies, there were sufficient separate acts to support the convictions for aggravated battery and home invasion. We therefore will not vacate the burglary and aggravated battery convictions.\nAccordingly, the judgment of the circuit court of La Salle County is affirmed.\nAffirmed.\nSTOUDER and HEIPLE, JJ., concur.", "type": "majority", "author": "JUSTICE BARRY" } ], "attorneys": [ "Robert Agostinelli and Peter A. Carusona, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.", "Gary L. Peterlin, State\u2019s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, 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. KENNETH ZEHR, Defendant-Appellant.\nThird District\nNo. 3 \u2014 85\u20140233\nOpinion filed May 30, 1986.\nRobert Agostinelli and Peter A. Carusona, both of State Appellate Defender\u2019s Office, of Ottawa, for appellant.\nGary L. Peterlin, State\u2019s Attorney, of Ottawa (John X. Breslin and Terry A. Mertel, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0875-01", "first_page_order": 897, "last_page_order": 903 }