{ "id": 1281439, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMANUEL J. BOOSE, Defendant-Appellant", "name_abbreviation": "People v. Boose", "decision_date": "2002-01-11", "docket_number": "No. 2-00-0579", "first_page": "867", "last_page": "873", "citations": [ { "type": "official", "cite": "326 Ill. App. 3d 867" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "265 Ill. App. 3d 3", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 872598 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "6" }, { "page": "6" }, { "page": "7" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/265/0003-01" ] }, { "cite": "311 Ill. App. 3d 388", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 415288 ], "weight": 2, "year": 2000, "pin_cites": [ { "page": "391" }, { "page": "398-99" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/311/0388-01" ] }, { "cite": "44 Ill. App. 3d 342", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2811903 ], "weight": 3, "year": 1976, "pin_cites": [ { "page": "343" }, { "page": "343-44" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/44/0342-01" ] }, { "cite": "68 Ill. App. 3d 1021", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3307309 ], "year": 1979, "pin_cites": [ { "page": "1025" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/1021-01" ] }, { "cite": "91 Ill. App. 3d 410", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3152683 ], "year": 1980, "pin_cites": [ { "page": "411-12" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/91/0410-01" ] }, { "cite": "101 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3160607 ], "weight": 9, "year": 1984, "pin_cites": [ { "page": "303" }, { "page": "303" }, { "page": "303" }, { "page": "304" }, { "page": "305-06" }, { "page": "307" }, { "page": "305-06" }, { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/101/0301-01" ] }, { "cite": "106 Ill. 2d 237", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3138930 ], "year": 1985, "pin_cites": [ { "page": "261" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/106/0237-01" ] } ], "analysis": { "cardinality": 711, "char_count": 16518, "ocr_confidence": 0.793, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.04834451738305978 }, "sha256": "0bd260cf897b0d907c4d52059921adfab5d215221974e8f35cb7518169859e0f", "simhash": "1:bba6b17c530d0178", "word_count": 2798 }, "last_updated": "2023-07-14T21:10:13.053989+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. EMMANUEL J. BOOSE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE CALLUM\ndelivered the opinion of the court:\nThe State charged defendant, Emmanuel J. Boose, with residential burglary (720 ILCS 5/19 \u2014 3(a) (West 2000)). The information alleged that he knowingly and without authority entered Marilyn Nelson\u2019s dwelling with the intent to commit criminal sexual assault (720 ILCS 5/12 \u2014 13(a) (West 2000)). Following a bench trial, the court found him guilty and sentenced him to five years\u2019 imprisonment. Defendant appeals, arguing that (1) the State did not prove him guilty beyond a reasonable doubt; and (2) the court erred in failing to conduct the proper balancing test before allowing the State to use his convictions to impeach him. We agree that the State did not establish defendant\u2019s guilt beyond a reasonable doubt, and we therefore reverse his conviction and sentence.\nDefendant challenges the sufficiency of the evidence on two bases. First, he alleges that the victim\u2019s identification of him was not reliable. Second, he argues that the State did not prove beyond a reasonable doubt that the perpetrator entered the residence with the intent to commit criminal sexual assault. We agree with defendant\u2019s second contention and thus summarize only the evidence relevant to-that issue.\nBACKGROUND\nOn September 6, 1999, Marilyn Nelson went to sleep on the second floor of her residence. Nelson\u2019s three daughters slept with her in her bed, and her two sons slept in the room across the hall. Nelson slept in shorts and a T-shirt. At 3:58 a.m., Nelson awoke when she felt someone touch her thigh. She noticed a man in her bedroom. Nelson described the touch as lasting for \u201ca quick second\u201d on the inner part of her mid-thigh, underneath her shorts. Nelson immediately jumped up and screamed, and the man fled down the stairs.\nNelson called the police and described the intruder and his clothing. The police found defendant near Nelson\u2019s residence. Shortly thereafter, the police conducted a showup, and Nelson identified defendant as the intruder.\nThe State charged defendant with residential burglary, a Class 1 felony, alleging that he \u201cknowingly and without authority, entered the dwelling place of Marilyn Nelson *** with the intent to commit criminal sexual assault.\u201d The parties presented a negotiated plea agreement in which defendant would plead guilty to misdemeanor battery and be sentenced to time served. The State explained to the trial court that it was offering the agreement because its case was weak. The assistant State\u2019s Attorney told the court that the initial charge was misdemeanor criminal trespass, but it was later upped to a felony. The following colloquy occurred:\n\u201cMS. FITZGERALD [Assistant State\u2019s Attorney]: [Nelson] remembers what happened, but she\u2019s going to have an ID problem.\nIn and of that itself, Judge, you go to the underlying offense of proving that you broke into a house for purposes of sexual assault? How am I going to prove why he went there just for [sic] the rubbing of a leg? I have no fondling\u2014\nTHE COURT: I don\u2019t know about that.\nMS. FITZGERALD: That\u2019s the underlying offense. That he broke in with the purpose not to commit a theft, but the purpose to commit therein a criminal sexual assault.\nMR. SIMMONS [Assistant Public Defender]: Involving penetration.\nMS. FITZGERALD: And I have him touching a leg.\u201d\nThe court stated that it would accept the plea agreement if Nelson approved, but no other discussion of the plea agreement appears in the record, and the case was transferred to another judge for trial. When the court found defendant guilty, it did not mention the intent issue. However, when it earlier denied defendant\u2019s motion for a directed finding, the court stated that it was \u201cobvious\u201d that the perpetrator\u2019s intent was to commit a sexual assault.\nANALYSIS\nIn reviewing the sufficiency of the evidence to support a criminal conviction, our inquiry is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261 (1985). A residential burglary conviction requires proof that the defendant knowingly and without authority entered the dwelling place of another with the intent to commit therein a felony or theft. 720 ILCS 5/19 \u2014 3(a) (West 2000). Here, the State alleged, and thus was required to prove, that defendant entered Nelson\u2019s residence with the intent to commit criminal sexual assault. For the purposes of this analysis, we will assume that Nelson\u2019s identification of defendant was reliable and that he did break into her house.\nThe leading case on this issue is People v. Toolate, 101 Ill. 2d 301 (1984). In that case, the defendant broke into a woman\u2019s home at 3 a.m. She and her two daughters were asleep in an upstairs bedroom. She awoke when she felt someone pull on her left side. Upon getting out of bed, she noticed that the lamp next to the bed had been unplugged. She turned on the bathroom and bedroom lights and noticed the defendant standing in her bedroom. She said, \u201cI knew somebody else was in there with us.\u201d 101 Ill. 2d at 303. The defendant replied, \u201cThat makes two of us that know that now, doesn\u2019t it?\u201d 101 Ill. 2d at 303. The woman told the man to get out of her apartment, and the man replied, \u201cI\u2019m going, I\u2019m going, I\u2019m gone,\u201d and fled. 101 Ill. 2d at 303. The evidence showed that, in addition to unplugging the bedside lamp, the defendant had moved furniture to form an enclosure around the bed. 101 Ill. 2d at 304.\nThe defendant was convicted of residential burglary, predicated on the intent to commit rape. The Criminal Code of 1961 defined rape as sexual intercourse with a female not one\u2019s wife by force and against her will. Ill. Rev. Stat. 1981, ch. 38, par. 11 \u2014 1(a). The supreme court reversed the defendant\u2019s conviction, holding that the State had not proved beyond a reasonable doubt that the defendant intended to use force against or have sexual intercourse with the victim. The court noted that the defendant did not use any force against the victim or engage in any sexual contact. The court also noted that the defendant\u2019s behavior was inconsistent with that of a would-be rapist in that he did not attempt to hide his identity, did not attempt to restrain the victim, and left willingly when she told him to leave. Toolate, 101 Ill. 2d at 305-06.\nThe Toolate court reviewed cases in which courts had upheld convictions of residential burglary predicated on the intent to commit rape. In People v. Tackett, 91 Ill. App. 3d 410, 411-12 (1980), the defendant wrestled the sleeping victim to the floor, did not stop when she asked him to, and attempted to unbutton her shirt while holding one hand over her mouth. In People v. Clerk, 68 Ill. App. 3d 1021, 1025 (1979), the defendant was partially masked and held a knife to the victim\u2019s throat. He ordered her to be quiet and to lie on the floor. He unbuckled his belt and unzipped his pants, but fled when he heard noises upstairs.\nToolate contrasted those cases with People v. Matthews, 44 Ill. App. 3d 342 (1976). In that case, the complaining witness knew the defendant because he had been in her home previously to repair her clothes dryer. On the date in question, he entered her home through an open door and said, \u201cI want to fuck you.\u201d Matthews, 44 Ill. App. 3d at 343. He then suggested that she call the police. The woman went to a neighbor\u2019s house to call the p\u00f3lice, and the defendant did not try to stop her. She returned with a neighbor and found the defendant naked from the waist down. The appellate court reversed the defendant\u2019s conviction of residential burglary with the intent to commit rape, noting that, although the defendant expressed a desire to have sex with the victim, there was no evidence that he intended to do so by force. He did not attempt to touch her, and he even suggested that she call the police. He did not try to stop her when she went to do so. Matthews, 44 Ill. App. 3d at 343-44.\nThe Toolate court determined that the case before it was more like Matthews than Tackett or Clerk because there was no evidence that the defendant intended to use force. The supreme court held that the State\u2019s case was even weaker than in Matthews because there was no evidence that the defendant intended to have sex with the victim. Toolate, 101 Ill. 2d at 307. The court stated that the defendant\u2019s strange and unexplained behavior \u2014 such as forming a furniture barricade around the bed \u2014 was not proof beyond a reasonable doubt that he entered the residence intending to commit rape. Toolate, 101 Ill. 2d at 305-06.\nSince Toolate was issued, the appellate court has twice upheld convictions of residential burglary predicated on the intent to commit criminal sexual assault. In People v. Maggette, 311 Ill. App. 3d 388, 391 (2000), the victim awoke to find the defendant sucking her breast and caressing her vagina. He was also using her hand to rub his penis. In upholding his conviction, the court noted that the victim had previously rejected advances by the defendant, he was not permitted to enter the home, and he knew that she was alone and intoxicated. Maggette, 311 Ill. App. 3d at 398-99.\nIn People v. Cunningham, 265 Ill. App. 3d 3, 6 (1994), the defendant, who worked for the victim\u2019s husband, made scores of obscene calls to the victim when her husband was not home. In most of the calls, the defendant merely expressed a desire to engage in sexual acts with the victim. In one, however, he threatened, \u201c \u2018I\u2019m going to f\u2014 you\u2019re a \u2014 .\u2019 \u201d Cunningham, 265 Ill. App. 3d at 6. The defendant broke into the victim\u2019s house at 5 a.m., shortly after her husband left for work. This court upheld the defendant\u2019s conviction. We noted that the evidence showed that the defendant had repeatedly expressed a desire to have sex with the victim and that he knew that the victim would be unreceptive. Further, the evidence showed that the defendant had been watching the house and broke in right after the victim\u2019s husband had left. We held that a rational jury could infer beyond a reasonable doubt that the defendant entered with the intent to commit criminal sexual assault. Cunningham, 265 Ill. App. 3d at 7.\nHere, we must conclude that a rational trier of fact could not find beyond a reasonable doubt that defendant entered Nelson\u2019s residence with the intent to commit criminal sexual assault. Defendant broke into Nelson\u2019s house between 3 and 4 a.m. and thus clearly did commit a crime. Further, a rational trier of fact could conclude that defendant entered the residence with a criminal intent. In Toolate, however, the supreme court held that the mere act of breaking and entering could not be used to infer an intent to commit a felony. Otherwise, the statute\u2019s requirement of specific intent to commit a felony would be meaningless. The court stated that it would not \u201cindulge in the hopelessly circular reasoning that the entry must be accompanied by an intent which stands proven by the entry itself.\u201d Toolate, 101 Ill. 2d at 308.\nThe question thus becomes whether defendant\u2019s briefly rubbing the inside of Nelson\u2019s thigh while she slept proved beyond a reasonable doubt that he entered with the intent to commit criminal sexual assault. We hold that it did not. The facts here are not similar to those in which courts have upheld residential burglary convictions based on the intent to commit rape or criminal sexual assault. Defendant never expressed a desire to have sex with Nelson, used no force against her, did not threaten her in any way, and did not touch her genitals. Further, as in Toolate, defendant\u2019s actions were somewhat inconsistent with those of a would-be rapist. Defendant made no attempt to hide his identity and fled the house the moment the victim woke up. These do not seem like the actions of someone who entered the residence with the specific intent to commit a criminal sexual assault.\nThe touch defendant used here \u2014 rubbing the inside of Nelson\u2019s thigh \u2014 was perhaps more sexual than the pull on the victim\u2019s left side in Toolate. On the other hand, defendant here did not build a furniture barricade around the bed or unplug the bedside light as did the defendant in Toolate. Regardless, defendant\u2019s actions were simply not sufficient for a rational trier of fact to conclude beyond a reasonable doubt that defendant entered with the intent to commit an act of sexual penetration by the use or threat of force (see 720 ILCS 5/12\u2014 13(a)(1) (West 2000)).\nThe State argues that criminal sexual assault (720 ILCS 5/12\u2014 13(a) (West 2000)) is not the same as rape and thus Toolate does not control. According to the State, the rape statute required proof of sexual intercourse by force and against the complainant\u2019s will (see Ill. Rev. Stat. 1981, ch. 38, par. 11 \u2014 1(a)), while criminal sexual assault can be committed in four different ways, three of which do not require the use of force (see 720 ILCS 5/12 \u2014 43(a) (West 2000)). The State concedes that two of these (720 ILCS 5/12 \u2014 13(a)(3), (a)(4) (West 2000)) are inapplicable. The State posits, however, that defendant could have been found guilty of entering with the intent to commit criminal sexual assault under subsection 12 \u2014 13(a)(2) (720 ILCS 5/12 \u2014 13(a)(2) (West 2000)), which is defined as the accused committing \u201can act of sexual penetration [when] the accused knew that the victim was unable to understand the nature of the act or was unable to give knowing consent.\u201d According to the State, the trial court could have properly found that defendant intended to have sexual intercourse with Nelson while she was asleep.\nThere are numerous problems with the State\u2019s argument. First, its statutory argument is simply incorrect. Although the rape statute required a showing that the act of sexual intercourse was by force and against the victim\u2019s will, the statute specifically explained that sex was \u201cby force and against [the victim\u2019s] will\u201d if the victim was unconscious. See Ill. Rev. Stat. 1981, ch. 38, par. 11 \u2014 1(a)(1). Thus, contrary to the State\u2019s assertion, sex with a sleeping person would have been rape without any additional showing of force or threatened force.\nThe second problem with the State\u2019s argument is that the State never argued this theory in the trial court. If anything, the State\u2019s argument suggests that the charging instrument may have been defective in that defendant was never given proper notice of the precise charge against him. Neither in the charging instrument nor at trial did the State ever specify what type of criminal sexual assault defendant intended to commit. Essentially, the State is suggesting that it can charge defendant with entering with the intent to commit criminal sexual assault and not state until the cause is on appeal what type of criminal sexual assault it is alleging. Defendant, however, has not challenged the charging instrument.\nThe most fundamental problem with the State\u2019s argument is that the evidence is simply insufficient to support this theory. Just as it was insufficient to show an intent to commit an act of sexual penetration by the use or threat of force, proof that defendant rubbed Nelson\u2019s thigh is simply not sufficient to show beyond a reasonable doubt that he entered her residence with the intent to commit an act of sexual penetration on a sleeping person.\nWe emphasize that we are not saying that defendant committed no crime when he entered Nelson\u2019s residence. Instead of charging defendant with crimes that it probably could have proved (e.g., battery, criminal trespass to a residence), however, the State elected to charge defendant with a crime of which there simply was not sufficient evidence. The State acknowledged at a pretrial conference that it did not believe it had sufficient evidence to convict defendant of residential burglary, yet it decided to proceed with that charge.\nAccordingly, we have no choice but to reverse defendant\u2019s conviction of residential burglary, the only crime with which he was charged.\nReversed.\nMcLAREN and BYRNE, JJ., concur.", "type": "majority", "author": "JUSTICE CALLUM" } ], "attorneys": [ "G. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Michael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Paul Benjamin Linton, of Northbrook, for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EMMANUEL J. BOOSE, Defendant-Appellant.\nSecond District\nNo. 2 \u2014 00\u20140579\nOpinion filed January 11, 2002.\nG. Joseph Weller and Darren E. Miller, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nMichael J. Waller, State\u2019s Attorney, of Waukegan (Martin P. Moltz, of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), and Paul Benjamin Linton, of Northbrook, for the People." }, "file_name": "0867-01", "first_page_order": 885, "last_page_order": 891 }