1 No. 2--04--0100 filed: 6/28/06

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________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 01--CF--0268 ) ERNEST E. GWINN, ) Honorable ) John T. Phillips, Defendant-Appellant. ) Judge, Presiding.

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_____ JUSTICE BOWMAN delivered the opinion of the court: Following a jury trial, defendant, Ernest E. Gwinn, was found guilty of home invasion (720 ILCS 5/12--11(a)(2) (West 2002)) and aggrav ated domestic battery (720 ILCS 5/12-- 3.3(a) (West 2002)). The trial court did not impose a sentence fo r aggravated domestic battery but sentenced defendant to 20 years' im prisonment for home invasion. On appeal, defendant argues that (1) he was not proven guilty beyond a reasonable doubt of home invasion; (2) the trial court erred by admitting evidence that defendant attempted to tamper with witnesses; (3) the victim's out-of-court statement to po lice was inadmissible hearsay; (4) the trial court erred by refusing to give two jury instructions; and (5) the home invasion statute was not intended to extend to the domestic arena. We affirm.2 I. BACKGROUND Defendant was charged with three counts of home invasion and one count of aggravated domestic battery. Count I alleged that on July 18, 2002, defendant knowingly and without authority entered the dwelling place of Tanya Allen and intentionally injured her by striking her in the face. Count II alleged that defendant committed home invasion while armed with barber clippers, a dangerous weapon, and threatened the imminent use of force by stating that he was "going to beat" All en. Count III alleged that defendant committed home invasion while armed with barber clippers and threatened the imminent use of force by swinging the barber clippers at Allen. Count IV alleged that defendant knowingly caused great bodily harm to Allen, a member of defendant's family or household, by striking her in the face with his fist. A. Other-Crimes Evidence Trial was originally set for March 3, 2003, and a jury was selected. The parties and the court then discussed various motions, one of which was the State's motion to admit evidence of Western Union money transfers. A ccording to the State, defendant was wiring money to Allen in order to influence her testimony. Defendant, under the assumed name "Aaron Daniels," was transferring money to a re cipient named "Theresa Ausmer," who was Allen's sister. The court denied the State's motion to admit the Western Union records, finding that a "mini-trial" regarding those documents was not proper when they were not directly tied to defendant. However, the St ate was allowed to question Allen about receiving money from defendant. After the State filed a certif icate of impairment and a notice of appeal, the trial court releas ed the jurors, who had not been sworn.No. 2--04--0100

3 With respect to the money transfers, def endant was arraigned on multiple charges of bribery, unlawful communicati on with a witness, and obstruction of justice, on March 31,
2003. On May 28, 2003, the State advised the cour t that it had withdrawn the interlocutory appeal and that it wished to pr oceed with the home invasion and aggravated domestic battery charges before the witness-tampering charges. On October 21, 2003, the St ate again sought to admit evidence of the Western Union wire transfers. Defendant filed a motion to clarify the trial court's March 2003 ruling denying the State's motion to introduce such ev idence. The State filed a response and the court heard arguments on November 11, 2003. According to the State, Allen moved to Georgia after the home invasion and aggravated domestic battery offenses, and defendant wired her various amounts of money. The St ate argued that it was now able to tie defendant to the wire transfers based on the testim ony of Danielle Hubbard, an eyewitness, and Joy Baker, defendant's former girlfriend. Specifically, Hubbard testified before the grand jury that defendant gave her $500 to encourage her to hide and to avoid testifying at his trial. According to the State, defendant, under the assumed name of Melvin Lewis, also planned to wire transfer another $500 to Hubbar d around midnight on January 10, 2003. Defendant was arrested before wiring the addi tional $500, although Western Union forms listing Melvin Lewis as the sender were found in his possession. In addition, Baker testified before the grand jury that defendant had a stack of blank Western Union forms listing Aaron Daniels as the sender. Approximatel y 12 times, defendant gave Baker cash to wire to Allen, who was in Atlanta, although Ausmer was listed as the recipient on the forms. Allen received several thousand dollars from defendant during the period that his trial wasNo. 2--04--0100

4 continued. Defendant continued to assert that the documents we re not sufficiently tied to him. The court found that this testimony could tie defendant to the Western Union documents, rendering them admissible to show defendant's consciousness of guilt. B. Trial Testimony Trial commenced on November 17, 2003. Jose Nieves, a 911 operator, testified first on behalf of the State. On July 18, 2002, at 9:15 p.m., Nieves received a call from apartment 6 of 124 Drew Lane in Waukegan. He heard a woman scream ing hysterically, but could not tell what she was saying. The jury was allowed to hear a tape recording of the conversation. Waukegan police officer John Fong testified as follows. On July 18, 2002, he was the first officer to arrive at apartment 6 of 124 Drew Lane. Officer Fong knocked on the door and stated "Waukegan Police," but no one answered. A short time later, Officers Hall and Schultes and Sergeant Mullen arrived. Officer Fong then went outside and climbed onto the rear balcony to look into the apartment. He knocked on the patio door and saw an inside light go out. Officer Sc hultes was on the ground level facing the balcony while the other officers remained at the apartment door. There were no officers on the east side of the apartment building. After about 15 minutes , Allen opened the patio door. Officer Fong rushed into the apartment and opened the front door fo r the other officers. Inside, he saw a young boy and an infant, and he not iced that Allen was "crying," "trembling," and "visibly shaken up." In addition, there was blood on t he bridge of her nose, and her left eye was swollen shut. Officer Fong sat on the couch with Allen, w ho was "rocking a little bit" and clutching her infant. She said she had been punched. In a side-bar conference, defense counselNo. 2--04--0100

5 made a hearsay objection to the testimony of Offi cer Fong's conversation with Allen, but the trial court found her statements admissible under the excited u tterance exception. Allen told Officer Fong that defendant, the father of her children, had forced his way into her apartment and punched her in the face. Officer F ong did not recall seeing anyone run from the apartment building, nor did he recall seei ng any damage to Allen's apartment door or the interior of her apartment. Officer Montague Hall testified as follows. He reported to the scene of the domestic disturbance to cover other offi cers. For approximately 15 minutes, he and Sergeant Mullen waited outside Allen's apartment door while Offi cer Fong climbed onto the balcony. Officer Schultes was positioned on the ground by the balcony. None of the four officers investigating the incident were on the east or south side of the building. When Officer Fong opened the apartment door, Officer Hall and Sergeant Mullen searched the apartment and found Allen and her two children. Allen's young boy was excited, walking back and forth from the hallway to the living room. Detective Hall noticed that the window in the master bedroom was open and had no screen. The window, wh ich was 4 feet by 3 feet, was on the east side of the building and about 8 to 10 feet above the ground. Detective Hall did not see any signs of forced entry or damage to the apartment. Sergeant Anthony John Joseph testified as fo llows. He was assigned to investigate the incident that occurred on Ju ly 18, 2002. During the invest igation, he learned that defendant lived at 1984 Eagle Ridge Drive in Waukegan. Defendant's residence was 18 blocks from Allen's apartment, approximately a 10-minute drive. Four days after the incident, Sergeant Joseph met with Allen and saw t hat her face was injured. Allen had two black eyes, her left eye was swollen shut, and she had a cut on the bridge of her nose.No. 2--04--0100

6 Sergeant Joseph attempted to find witnesses in October 2002. He located an individual named Danielle Hubbard but was unable to find A llen. Eventually, he located Allen in an Atlanta suburb in February 2003. Allen testified as follows. Allen, age 24, had two childr en with defendant: a boy (Taige), age four, and a girl (Tam aria), age two. In July 2002, she lived in apartment 6 at 124 Drew Lane in Waukegan. Her neighbor, Hubbar d, lived in another apartment building across the street. On July 18, 2002, Hubbard was at Allen's apartment and they were all watching movies in Allen's bedroom. All en denied that she heard the main-door buzzer ring in her apartment ar ound 9 p.m. that night. Allen wa s impeached by her July 24, 2002, grand jury testimony, where she testified that the buzzer rang around 9 p.m. According to Allen's grand jury testimony, Taige went downs tairs to the building entrance after hearing the buzzer and came up with defendant, whom Allen saw standing outside the apartment door. Contrary to her grand jury testimony , at trial Allen denied that Taige left the apartment or came up the stairs with defendant. A side-bar conference was held, and over defense counsel's objection, the c ourt allowed the State to treat Allen as a hostile witness. On July 24, 2002, which was six days after the incident, Allen testified before the grand jury as follows. On July 18, defendant tried to force open the door, while she was on the other side pushing the door cl osed. Allen told defendant not to come in "tripping" and acting crazy. She tried to keep the door clos ed, but defendant kept pus hing on it until it eventually opened. Defendant told her to let him in and get away from the door, so she stepped back. Allen told defendant to leave and that she had company, meaning that Hubbard was still in her bedr oom. Defendant refused to leave and searched the apartment. In the bedroom, defendant told Hubbar d to leave because he was going toNo. 2--04--0100

7 "beat [Allen's] ass." Defendant was angry and hi s voice was raised. Allen then called 911, which made defendant angry and he punched her in the face with his fist. The force of the blow knocked her to the ground. Defendant was still in her apar tment when the police arrived, and he told her not to open the door. Defendant told Allen that he was sorry and that he was going "to run." Defendant jumped out the bedr oom window, and then Allen let the officers in through the sliding door to t he balcony. Later, an ambulance took Allen to the hospital, where she told the tri age nurse that her boyfriend had hit her. At trial, Allen testified that her grand jury testimony on July 24 was incorrect. According to Allen, defendant wa s not at her apartment on July 18 and did not try to force his way in through the door. Although someone struck Allen and injured her face, she did not know who was responsible. Pictures of her in juries that were taken at the hospital were admitted into evidence. After the incident, Allen took her childr en to Georgia and stayed with her sister, Ausmer. Although Allen testified that she did not maintain contact with defendant while in Georgia, she was again impeac hed with her February 5, 2003, grand jury testimony. At that time, Allen testified t hat defendant sent her money under the "made-up" name of Aaron Daniels. Contrary to her February 5 testimony , at trial Allen claim ed that Aaron Daniels was the name of Ausmer's fianc é. At trial, she also deni ed calling defendant's sister to speak to defendant, denied being aware that defendant knew she wa s staying with her sister in Georgia, and denied receiving money from defendant while living in Georgia. According to Allen, the Februar y 5 grand jury testimony did not reflect her words, but those of Sergeant Joseph.No. 2--04--0100

8 On cross-examination, Allen testified that defendant had continuing permission to go to her apartment; he took the children to day care and paid her $200 per month for child support. Allen lied to the police about defendant punching her in the fa ce because she had recently learned that defendant had a newborn child with another woman. Allen's anger at defendant caused her to lie before the grand ju ry on July 24, 2002, and on February 5, 2003. According to Allen, on July 18, she went outside to throw a bag into the garbage can when she was struck in the face. She fell to the ground, got up, and ran back into her apartment. Although she did not know who struck her, she told Hubbard that she thought it was defendant because they had ar gued earlier that day. Allen instructed Hubbard to tell the police that defendant had been in her apartment that ni ght, to make the story more believable. Hubbard went home because she did not want to get involved. Allen opened the bedroom window to support her story and told the police where defendant lived. On August 7, 2002, Allen told Daniel Haxt on, a private investi gator hired by the defense, her current version of events. In addition, she saw Sergeant Joseph at McDonald's and tried to tell him about her changed story. In August 2002, Allen went to school in Atlanta and stayed with her sister. Sergeant Joseph and another investigator then brought her back to Illinois to testif y with respect to t he witness-tampering investigation. Her testimony on February 5, 2003, was based on police threats and was not
true. Joy Baker testified as follows. In A ugust 2002, she moved into an apartment with defendant. Defendant told Baker t hat he was going to meet with Allen's father and give him money to move Allen to Atlanta so that the "c ourt stuff could kind of die down." DefendantNo. 2--04--0100

9 met with Allen's father more than once and gave him $5,000. In addition, defendant and Baker met with Hubbard one night in a parking lo t. Defendant asked Hubbard if she could leave town for a week so that the "c ourt thing [could] di e down." Defendant handed Hubbard a roll of cash and told her that he w ould take care of her job, rent, and car payments. In October 2002, Baker sent money to All en using Western Union money transfers. Defendant filled out the forms and gave Baker the money to send to Allen, which Baker would do on her way to work. None of the fo rms listed defendant as the sender or Allen as the recipient. On January 10, 2003, defendant and Baker went to Western Union to send money to Allen and Hubbard. After Baker sent money to Allen, defendant told her to go back inside the Western Union and see how much it would cost to send $500 to Hubbard. They were unable to send the money that day. Baker left defendant in February 2003. The parties subsequently stipulated that on Januar y 10, 2003, defendant possessed a Western Union form and $500 cash. The court provided a limiting instruction to t he jury that evidence of defendant's other conduct was limited to his intent and consciousness of guilt. Western Union compliance officer Don Rigby testified as follows. To send money via Western Union, the sender fills out a send form with his nam e, address, and phone number. No identification is required when the amount sent is less than $1,000. Regarding the time period from Oct ober 2002 to February 2003, Rigby located several money transfers listing Aaron Daniels as sender and Theresa Ausmer as receiver. The money was sent from Waukegan, Illinoi s, to a suburb of Atlanta.No. 2--04--0100

10 Hubbard testified as follows. On July 18, 2002, she went to Allen's apartment after dinner. At some point, All en went outside to throw a diaper in the garbage. When she returned to the apartment, there was not hing unusual about her appearance and she did not say that she had been struck while outside. A few minutes later, the doorbell rang and Allen went out to the hall to look through the window of the building's front security door. Allen came back into the apartment and said that defendant was at the door. The court admonished the jury that Hubbard's statement was not allowed for its truth, but to show the circumstances of her conduct and to explain what she knew. Everyone was in the bedroom when defendant entered. At fi rst, defendant talked to Allen, and then began yelling at her while holding barber clippers. With the cord wrapped around his hand, he swung the clippers at Allen but missed her because she ducked. The clippers broke away from the cord and put a gas h in the wall. Defen dant then told Hubbard to leave, grabbed her by the wrist, and led her to the door. Although Hubbard resisted, defendant managed to get her out of the bedroom. Allen yell ed for Hubbard to call the police, and Hubbard told defendant that she needed to go back in the bedroom to get her keys. Allen made it to the apartment's front door, but defendant pulled her back by her hair and pushed her into a corner. Defendant told Hubbard not to call the police because he was just going to talk to Allen. Allen yell ed to call the police and def endant hit Allen in the left eye with his fist. Allen "hollered out," grabbed her eye, and dropped to the floor. After defendant punched Allen, Hubbard got out of t he apartment and went to Allen's aunt's apartment, which was in the next building. Allen's aunt called 911. A few weeks later, in late July or early August 2002, Allen told Hubbard that she was going to change her story. Now, Allen was going to say that someone hit her when sheNo. 2--04--0100

11 went outside to throw away the diaper, but s he did not know who. Allen asked what Hubbard wanted in exchange for changing her stor y as well. In addition, sometime in September 2002, defendant talked to Hubbard on the phone and said that he would give her whatever she wanted in exchange for her cooperation and that Allen had already changed her story. In October 2002, Hubbard agreed to change her story 1 because defendant was becoming persistent, and because A llen had left town. Defendant said that investigator Haxton would t ape her new story, which he di d on October 7, 2002. On October 8, Hubbard met with def endant in a parking lot. Defendant told Hubbard that she would not be able to go back to work and that she was to leave until the trial was over. Defendant gave Hubbard $500, and she took it and left town. On January 10, 2003, defendant told Hubbard over the phone that he was worried because he had not heard from her and that he w ould wire money to whatever nam e she provided him. Hubbard called defendant back to say that she did not want any money.

1 The record contains Hubbard's testimony before the grand jury on July 24, 2002, in which she testified that defendant punched Allen in the face. Baker's mother, Yvette Baker, testified as follows. On November 8, 2003, Yvette received a call from defendant saying that he did not want Baker to te stify and that Baker could keep the money. Yvette ended the call, and from 9:24 to 9:30 p.m., Yvette's phoneNo. 2--04--0100

12 rang six more times. The trial court again adm onished the jury that its consideration of evidence of other conduct was lim ited to defendant's intent and co nsciousness of guilt. The parties stipulated that defendant was in possession of Yvette's phone number. After the State rested, defense counsel mo ved for a directed verdict on all four counts. The court denied the motion, finding that a rational jury could find the elements of home invasion and aggravated domestic battery, based on the substantiv e use of the grand jury testimony. Senior probation officer Estralita Jones test ified first on behalf of the defense. Jones was defendant's pretrial bond service officer on July 18, 2002. At appr oximately 8:24 p.m. on July 18, Jones performed a routine checkup by calling defendant on his home telephone. Defendant answered, and the call la sted only a couple of seconds. Jones could not say where defendant was after 8:24 p.m. Sandie Duffie, Allen's father, testified as fo llows. On July 18, he went to Allen's apartment and observed police and squad cars in the parking lot. Police were questioning Allen when he entered the apartment. Allen's fa ce was bruised as if she had been beaten, and she was confused and disori ented. There was no sign of forced entry through the apartment door. Duffie was with Allen when she me t with investigator Ha xton on August 7, 2002, and her demeanor during that interview was fine. She was not disoriented and knew what she was saying and doing. Duffie deni ed receiving $5,000 from defendant. Allen went to Atlanta to go to sc hool, and she stayed with her sister Ausmer, who lives there. Allen's mother, Madeline Duffie, testified that Allen was injured when she saw her daughter on July 18, 2002.No. 2--04--0100

13 Venus Kindle testified that she lived with de fendant and their infant daughter on July 18, 2002. According to Kindle, she and def endant had dinner around 6: 30 p.m., defendant bathed the baby, and they watched television. Defendant did not leave the house that night. Around 10 p.m., defendant's sister called to say that the police were looking for defendant. The police never contacted Kindle in regard to the incident. Defendant's sister, Nicole Gwi nn, testified as follows. On July 18, 2002, around 9 p.m., she returned to the home she shared with her mother. Police in squad cars followed her as she parked, asked her if defendant was inside her hous e, and searched her home. After they left, she called defendant at home to te ll him that the police were looking for him. Defendant answered the phone. Defendant's mother, Josephine Gwinn, ca me home around 10 p.m. on July 18. Nicole explained that the police had searched the house and just left, and Josephine called defendant at home and talked to him. Defendant testified as follows. He denied being at Allen's apartment and denied all conduct in connection with the incident. Def endant had a key to All en's apartment and had permission to take their two children to day care. Defendant was a licensed barber who owned about 20 barber clippers. When defendant had work, he would pay Allen $200 per month in child support. While Allen was in Atlanta, defendant did not make payments directly to her because there was a no-contac t order in place. Instead, he would make payments to Ausmer under the nam e of Ausmer's fiancé, Aaron Daniels. He also sent money under the name Robert Ta ylor. Defendant denied meeting Hubbard on October 8, 2002, and trying to pay her. T he court admonished the jury that evidence of other conduct was limited to defendant's in tent and guilty knowledge.No. 2--04--0100

14 On July 18, defendant was at home with Kindle and their baby, and Jones called him for a routine check. In August 2002, Ki ndle moved in with her parents and defendant moved in with his sister. Baker was a fr iend whom he helped out by letting her use his address. Baker left in February 2003 becaus e they had a falling out; defendant did not know where she went. Defendant found Bake r's mother's phone number and called her on November 8, 2003. He called to plead with Yvette to not let Baker "lie on [him]" about false charges; he was not calling to prevent Baker from testifying. On rebuttal, Sergeant Joseph testified as follows. When investigating the incident on July 18, he spoke with Madeline, Allen's mo ther, who said that she had seen defendant's green, four-door Plym outh Breeze parked behind Allen's apartment. Sergeant Joseph asked Madeline how she knew that the car belonged to defendant, and she replied that she had seen defendant drive it on numerous occasi ons and that she had purchased the child seat in the car. The trial court admonished the jury that this evidence could be considered only for the limited purpose of showing in consistent statements by a witness. The State also recalled Yvette, who test ified regarding the phone calls she received on November 8, 2003. Over objection, t he jury heard an audiotape of the voice mail messages that Yvette received that night. The trial court admonished the jury about evidence of defendant's other conduct and about inconsistent statements. During the jury instruction conferenc e, defense counsel sought an accomplice instruction and an instruction on criminal trespa ss, as a lesser offense of home invasion. The court refused the tendered instructions. The jury found defendant guilty of one count of home invasion (causing injury) and aggravated domestic battery. De fendant filed a posttrial moti on, which the trial courtNo. 2--04--0100

15 denied. At the sentencing heari ng, the State pointed out that the court should not sentence defendant on both charges because, under t he one-act, one-crime rule, the aggravated domestic battery offense merged into the hom e invasion offense. See People v. King , 66 Ill. 2d 551 (1977). The tria l court agreed and did not enter a conviction or impose a sentence for aggravated domestic battery. Defendant was sentenced to 20 years' imprisonment for home invasion. Defendant timely appealed. II. ANALYSIS A. Sufficiency of the Evidence Defendant first argues that he was not proven guilty beyond a reasonable doubt of home invasion because the only evidence agains t him was unreliable. According to defendant, Allen recanted her grand jury testimony and attempted to tell the truth at trial by explaining that she had fabricat ed a story against defendant to punish him for leaving her. Defendant also argues that Hubbard recanted her grand jury testimony when she was interviewed by investigator Haxton. The St ate counters that the jury was in the best position to evaluate the witnesses' testimony in light of the various inconsistencies and to determine which version was more credible. T he State further argues that there was other evidence supporting defendant's convicti on. We agree with the State. To sustain a conviction of home invasion, the State must pr ove that defendant entered Allen's dwelling without aut hority and intentionally caused her injury. See 720 ILCS 5/12--11(a)(2) (West 2002). In assessing a cha llenge to the sufficiency of the evidence, the question is whether, after viewing the evidenc e in the light most favorable to the prosecution, any rational trier of fact coul d have found the essential elements of the crime beyond a reasonable doubt. People v. Cunningham , 212 Ill. 2d 274, 278 (2004). We mustNo. 2--04--0100

16 view the evidence in the light most favorable to the prosecution, whic h means that we must allow all reasonable inferences from the record in favor of the prosecution. Cunningham , 212 Ill. 2d at 280. "A criminal conviction will not be set aside unless the evidence is so unsatisfactory as to create a reasonable doubt regarding the def endant's guilt." People v. Dryden , 363 Ill. App. 3d 447, 450 (2006). As we ca refully examine the record evidence, we must not retry the defendant and must keep in mi nd that it was the fa ct finder who saw and heard the witnesses. Cunningham , 212 Ill. 2d at 279-80. At trial, Allen denied that defendant forced his way into her apartment and struck her in the face with his fist. This testimony was contrary to her testim ony before the grand jury, given only six days after the incident, wher e she stated that defendant forced his way through the door and punched her in the face. Allen's grand jury testimony, which was admitted as substantive evidenc e pursuant to section 115--10. 1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/ 115--10.1 (West 2002)), was as follows. On July 18, defendant tried to force open the door. Alt hough Allen tried to keep the door closed, defendant kept pushing on it until it eventually opened. Allen told defendant to leave and that she had company, meaning that Hubbard wa s still in her bedroom. Defendant refused to leave and told Hubbard that he was going to " beat [Allen's] ass." Allen then called 911, which made defendant angry. Defendant punched Allen in the face and the force of the blow knocked her to the ground. Defendant was still in her apar tment when the police arrived, and he told her not to open the door. Defendant told Allen that he was going "to run," and he jumped out the bedroom window. Significantly, Hubbard's grand jury testimony and trial testimony were consis tent with Allen's gr and jury testimony.No. 2--04--0100

17 Corroborating Allen's original account of the incident, Hubbard, the other eyewitness, testified that defendant hit Allen in the left eye with his fist, causing her to drop to the floor. With respect to defendant's claim that Allen testif ied truthfully at trial, it is evident that the jury found her grand jury te stimony implicating defendant mo re credible than her trial testimony. See People v. Logan , 352 Ill. App. 3d 73, 79-80 (2004) (even though eyewitness recanted at trial her grand jury testimony that s he saw the defendant shoot the victim, the jury obviously found her grand ju ry testimony more cr edible than her trial testimony); see also People v. Thomas , 354 Ill. App. 3d 868, 882 (2004) (accomplice's statements from his own tria l that implicated the defendan t, which he recanted at the defendant's trial, could lead a rational jury to c onclude that the accomplice told the truth at his own trial but lied at the defendant's trial). In addition, Hubbard's trial testimony supported the conclusion that Allen was not te stifying truthfully. According to Hubbard, Allen had decided to change her story and want ed Hubbard to change her story as well. Hubbard even testified as to the details of Allen's changed story, which was that some unidentified individual struck Allen while she was outside. While defendant argues that Hubbard's tria l testimony was unreliable because she gave a different statement when interviewed by investigator Haxton, Hubbard testified that she changed her story because bot h defendant and Allen pressured her to do so, because defendant became persistent, and because Allen had left town. Again, it wa s up to the jury to resolve any inconsistencies in Hubbard's test imony, and the trier of fact is free to accept or reject as much or as little as it pleases of a witness's testimony. Logan , 352 Ill. App. 3d at 80-81. Considering her testim ony in the light most favorable to the State, a rational jury could conclude that Hubbard's trial testimony implicating defendant and explaining Allen'sNo. 2--04--0100

18 changed story was true. See Cunningham , 212 Ill. 2d at 279 (where a finding of guilt depends on eyewitness testimony, we must decide w hether, in light of th e record, a trier of fact could reasonably accept the testim ony as true beyond a reasonable doubt). In weighing the statements of All en and Hubbard, the jury resolv ed the inconsistencies in favor of the State, and we find no reason to subs titute our judgment for that of the jury. We also note that, contrary to defendant's assertion, there was other evidence before the jury to support defendant's conviction. For example, as we discuss later, Officer Fong properly testified regarding his conversation with Allen directly after the incident. Officer Fong's testimony matched Allen's gr and jury testimony and Hubbard's trial testimony in that Allen told him that defendant had forced his way into her apartment and punched her in the face. As the State point s out, the jury also heard evidence that defendant went to great lengths to prevent Allen and Hubbard, as well as other witnesses, from testifying against him. While we discu ss this other-crimes evidence in more detail below, the evidence supported Allen's original account that defendant forced his way into her apartment and struck her. In sum, after consi dering all of the evidenc e in the light most favorable to the prosecution, the jury could reasonably conclude beyond a reasonable doubt that defendant committed the offense of home invasion. B. Other-Crimes Evidence Defendant next argues that the trial court err ed by admitting evidence that he bribed a witness as showing consciousness of guilt. According to defendant, while the evidence showed that he regularly support ed his children financially, it failed to raise more than a mere suspicion that he was involved in wit ness tampering. Def endant maintains that admission of this overly prej udicial evidence requires reversal. The State responds thatNo. 2--04--0100

19 defendant attempted to fix the trial by bribing wit nesses not to testify agai nst him, that this evidence was relevant to show his consciousne ss of guilt, and that the trial court carefully instructed the jury on the limit ed purpose of this evidence. Evidence of "other crimes" is inadmissibl e to show a defendant's propensity to commit a crime. People v. Hawkins , 326 Ill. App. 3d 992, 997 (2001). Such evidence is prejudicial because a jury might convict the defendant because it believes that the defendant is a bad person and deserves punishment. People v. Tolbert , 323 Ill. App. 3d 793, 796 (2001). Other-crimes evidence is admissi ble, however, if it is relevant for a purpose other than to show the defendant's disposition or propensity to commit a crime. People v. Bedoya , 325 Ill. App. 3d 926, 937 (2001). Exam ples of relevant purpose include modus operandi , motive, intent, identity, absence of mistake (Bedoya , 325 Ill. App. 3d at 937), and consciousness of guilt (People v. Boand , 362 Ill. App. 3d 106, 124 (2005)). This list is not exclusive, and evidence is relevant if it has any tendency to make the existence of a fact that is of consequence in the case more probable or less probable than it would be without the evidence. Bedoya , 325 Ill. App. 3d at 937. When the trial court finds some relevance in other-crimes evidence, it must then conduct a balancing test. Bedoya , 325 Ill. App. 3d at 937. Ev idence of other crimes is admissible only if its probative va lue outweighs the risk of unfai r prejudice to the defendant. Boand , 362 Ill. App. 3d at 125. "However, befor e such evidence is admitted, the State must first show that a crime took place and that the defendant committed it or participated in its commission." (Emphasis omitted.) People v. Thingvold , 145 Ill. 2d 441, 455 (1991). Proof that the defendant committ ed the crime, or participat ed in its commission, need not be beyond a reasonable doubt, but it must be more than a mere suspicion. Thingvold , 145No. 2--04--0100

20 Ill. 2d at 456; see also Bedoya , 325 Ill. App. 3d at 938 (the standard for admissibility of other crimes has not been clearly established in Illinois; it is more than mere suspicion, but less than beyond a reasonable doubt). It is within the trial court's discretion to determine whether the evidence of other crimes is relevant to a material issue and whether the probative value outweighs its prejudicial impact. Tolbert , 323 Ill. App. 3d at 797. We will not reverse a trial court's ruling as to the adm issibility of such evidence absent an abuse of discretion, which occurs when t he court's decision is arbitrary, fanciful, or unreasonable. Tolbert , 323 Ill. App. 3d at 797. We determine that the trial court properly admitted evidenc e of witness tampering. First, we disagree with defendant's assertion that the money he wired to Allen failed to raise more than a mere suspicion that he was attempting to bribe her. See Hawkins , 326 Ill. App. 3d at 998 (because evidence that the def endant had attempted to br ibe the trial judge during his murder trial was not ambiguous but strong and overwhelming, it was admissible to show the defendant's consciousness of guilt). At trial, defendant adm itted that he wired money to Allen via Western Union but listed Ausmer as the recipient. Defendant also admitted that he did not send the money under his own name, but under assumed names such as Aaron Daniels and Robert Taylor. While defendant testified that Aaron Daniels was the name of Ausmer's fiancé, this expl anation conflicted with A llen's testimony before the grand jury on February 5, 2003, where she testified that Aaron Daniels was a "madeup" name defendant used to send her money. Western Union compliance officer Rigby confirmed that he located several money tr ansfers listing Aaron Daniels as sender and Theresa Ausmer as receiver, and these records were admitted into evidence.No. 2--04--0100

21 Second, in asserting that the money he sent to Allen was for child support, defendant fails to explain his attempts to influenc e other witnesses. At trial, Baker testified that defendant not only had her s end money to Allen, but that he also met with Allen's father and gave him $5,000 to move Allen to Atlanta. See People v. Gacho , 122 Ill. 2d 221, 247 (1988) (letters written by the defendant asking the State' s principal witness to leave town and stay with her sister until after his trial were relevant to show the defendant's consciousness of guilt). In addition, Ba ker testified that she and defendant met with Hubbard and gave her a roll of cash in exc hange for Hubbard leaving town until the "court thing die[d] down." Hubbard sim ilarly testified that, as a re sult of defendant's persistence, she eventually met with him and agreed to change her story and leave town in exchange for $500. Both Baker and Hubbard confirm ed that defendant wanted to wire Hubbard money on January 10, 2003, and the parties stipulated t hat defendant possessed a Western Union form and $500 on that date. In addition, Baker' s mother testified that defendant called her repeatedly, saying that Baker could k eep the money and that he did not want Baker to testify. Finally, we note that the court carefully limited the evidence of witness tampering, repeatedly instructing the jury that the purpose of admitting the bribery evidence related only to defendant's intent and consciousne ss of guilt. See People v. Aleman , 313 Ill. App. 3d 51, 65 (2000) (evidence of the bribe was properly admitted wher e the trial court explicitly instructed the jury that the purpose of the bribery evidence related only to the defendant's consciousness of guilt and his relationships with other witnesses). In this case, the evidence of witness tampering, although prejudicial, was clearly probative and relevant toNo. 2--04--0100

22 show defendant's intent and consciousness of guil t. Accordingly, the trial court did not abuse its discretion in admitting such evidence. C. Excited Utterance Exception to Hearsay Rule Defendant next argues that the trial cour t abused its discretion by allowing Officer Fong to testify as to Allen's hearsay statem ent after the incident. According to defendant, the 15 to 20 minutes between the incident and the statement allowed Allen time to fabricate a story implicating defendant, whic h is contrary to the purpose of the excited utterance exception. The State maintains that the trial court correctly determined that the time period was short enough for Allen to still be under the effects of what had occurred, and that Allen's physical and mental state after the inci dent support the court' s finding. We agree with the State. Three factors have been deemed necessary to lay the foundation for the admission of a statement under the exci ted utterance exception to the hearsay rule. People v. Georgakapoulos , 303 Ill. App. 3d 1001, 1012 (1999). They are: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) an absence of time to fabricate; and (3 ) a relation of the statement to the circumstances of the occurrence. People v. Williams , 193 Ill. 2d 306, 352 (2000). In determining whether a hearsay statement is admissible under this ex ception, courts us e a totality of the circumstances analysis. Williams , 193 Ill. 2d at 352. "T his analysis involves the consideration of several factors, including ti me, 'the nature of the event, the mental and physical condition of the declarant, and the pr esence or absence of self-interest.' " Williams , 193 Ill. 2d at 352, quot ing People v. House , 141 Ill. 2d 323, 382 (1990). No one factor is determinative, as each case mu st rest on its own facts. Georgakapoulos , 303 Ill.No. 2--04--0100

23 App. 3d at 1012. Whether a statement qualifies as an excit ed utterance is within the trial court's discretion. Georgakapoulos , 303 Ill. App. 3d at 1012. In this case, Officer Fong testified that approximately 15 minutes after police knocked on Allen's door, Allen opened the pat io door. Officer Fong rushed into the apartment and opened the front door for the other officers. Officer Fong then sat on the couch with Allen, who was "rocking a little bit" and clutching her infant. Allen told Officer Fong that she had been punched in the face by defendant, the father of her children, who had forced his way into her apartment. We not e that even if Allen's statement was in response to a question Officer Fong posed, the fact that a statement is made in response to a question does not necessarily destroy spontaneity. Williams , 193 Ill. 2d at 353; see also Georgakapoulos , 303 Ill. App. 3d at 1014 (the fact that a statement is made in response to the single question "what happened" has been held not to destroy spontaneity). According to Officer Fong, Allen wa s crying, trembling, and visibly shaken. In addition, there was blood on the bridge of her nose, and her left eye was swollen shut. Given the above circumstances, defendant's ar gument that Allen fabricated a story between the time of the incident and the time of the statement is un persuasive. As our supreme court has stated, "[t]he time fact or has been described as an 'elusive' factor, 'whose significance will vary with the facts of each case.' " Williams , 193 Ill. 2d at 353, quoting House , 141 Ill. 2d at 382. Indeed, the per iod of time that may pass without affecting the admissibility of a statement under this exception varies greatly. See Williams , 193 Ill. 2d at 353 (a statement made 6 2 hours after the occurrence was admissible although a statement made 20 minut es after the occurrence was properly excluded). The question we ask is whether the statement wa s made while the excitement of the eventNo. 2--04--0100

24 predominated. P eople v. Smith , 152 Ill. 2d 229, 260 (1992). Although approximately 15 minutes passed before Allen opened the door, s he made the statement to Officer Fong shortly after he entered her apartment and while she was still under the shock of the event. See People v. Smith , 127 Ill. App. 3d 622, 628 (1984) (the mental state of the declarant, in light of whether the decla rant is injured or crying, very nerv ous or upset, or in great pain, is a factor to be considered). Here, Allen was "rocking" on the couch, crying, trembling, visibly shaken, and noticeably injured and in pai n at the time she made the statement. Considering the totality of the circumstances, we cannot say that the trial court abused its discretion in finding that Allen's statement was admissible as an excited utterance. D. Jury Instructions 1. Criminal Trespass to a Residence Defendant next argues that the tr ial court erred by refusing to give a jury instruction on the lesser-included offense of cr iminal trespass to a residence. As previously stated, defendant was charged with three counts of home in vasion. Count I alleged that defendant knowingly and without authority entered Allen's dw elling place and intentionally caused her injury by striking her in the face. Count II alleged that defendant committed home invasion while armed with a dangerous weapon, barber cli ppers, and threatened the imminent use of force by stating that he was going to beat All en. Count III alleged that defendant committed home invasion while armed with barber clippers and threatened the imminent use of force by swinging the barber clippers at Allen. At the jury in struction conference, defense counsel argued that an instruct ion on criminal trespass should be given along with each instruction on home invasion. Defense couns el argued that the jury could find defendant guilty of criminal trespass to a residence, which is committed when a person knowinglyNo. 2--04--0100

25 enters or remains within a residence without aut hority (720 ILCS 5/19--4(a) (West 2002)), but not home invasion. The St ate responded that an instructi on on criminal trespass could result in inconsistent verdicts , because the jury could find defen dant guilty on the first count of home invasion (causing injury) but also fi nd defendant guilty of crim inal trespass rather than home invasion on the remaining counts. T he court refused to instruct the jury on criminal trespass to a residence, finding that that lesser offense was not raised by the evidence presented at trial. "The purpose of an instruction on a lesser off ense is to provide 'an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise c onvict rather than acquit the defendant of the greater o ffense.' " People v. Hamilton , 179 Ill. 2d 319, 323-24 (1997), quoting People v. Bryant , 113 Ill. 2d 497, 502 (1986). Howeve r, although criminal trespass to a residence is a lesser-included offense of home invasion, it does not automatically follow that a jury must be instructed on the lesser offense. See Hamilton , 179 Ill. 2d at 324. "A defendant is entitled to a lesser included offense instruction only if an examination of the evidence reveals that it would permit a jury to rationally find the defendant guilty of the lesser offense yet acquit the defendant of t he greater offense." (Emphasis added.) Hamilton , 179 Ill. 2d at 324. In addition, where the evidence shows that a defendant is either guilty of the more severe offense or not guilty of any offense, an instruction on the lesser-included offense is unnecessary and properly refused. People v. Austin , 216 Ill. App. 3d 913, 917 (1991). In this case, the trial court properly refused to instruct the jury on the lesser-included offense of criminal trespass. Based on the evidence, the jury could not have rationallyNo. 2--04--0100

26 convicted defendant of criminal trespass and acquitted him of home invasion. In other words, if the jury acquitted defendant of home invasion, it could not find him guilty of criminal trespass. At trial, Hubbard testified that she sa w defendant in Allen's apartment swinging barber clippers, yelling, grabbing A llen's hair, and punching her. Officer Fong testified that Allen told him that defendant had punched her in the face. Conversely, defendant's defense was that he never entered Allen's apartment on the night of the incident and was not involved in the incident. Both defendant and Kindle testified that defendant was home all night. As a result, t he evidence showed either that defendant was at his apartment or that he committed one or more counts of home invasion as charged by the State. As the Stat e points out, neither vers ion would support a guilty verdict for criminal trespass and an acquittal for home inva sion. See People v. Gagliani , 251 Ill. App. 3d 1019, 1026 (1993) (the defendant was eit her guilty of the offenses as charged or not guilty altogether; thus the trial cour t properly refused the defendant's instructions on the lesserincluded offenses). Accordingly, the trial court properly refused defendant's instruction on the lesser-included offense of criminal trespass to a residence. 2. Accomplice Testimony Defendant also argues that the trial court erred by refusing to give an instruction on accomplice testimony in regard to Baker's testimony. According to defendant, Baker was his accomplice in the commission of a crime bec ause she assisted him in bribing a witness. The State counters that Baker was not an accomplice in the charged offenses. The accomplice-witness jury instruction should be given if the totalit y of the evidence and the reasonable inferences that can be dr awn from the evidenc e establish probable cause to believe that a witness participated in the commission of a crime. People v.No. 2--04--0100

27 Campbell , 275 Ill. App. 3d 993, 997 (1995) . The Illinois Pattern Jury Instructions state, "When a witness says he was invo lved in the commission of a crime with the defendant, the testimony of that witness is subject to su spicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case." Illinois Pattern Jury Instructions, Criminal, No. 3.17 (4 th ed. 2000). Where the witness, rather than the defendant, could have been the person respons ible for the crim e, the defendant is entitled to have the pattern accomplice-wit ness jury instruction given. Campbell , 275 Ill. App. 3d at 997. In other words, if a witne ss could have been indicted ei ther as a principal or under a theory of accountabilit y, or if the witness admits presence at the scene of the crime, a defendant is entitled to an acco mplice-witness instruction. Campbell , 275 Ill. App. 3d at 997. As the trial court found, Ba ker was not an accomplice in the charged offenses of home invasion and aggravated domestic battery. At trial, Baker's testimony in no way suggested that she was involved in the incident at Allen's apartment on July 18. Rather, her testimony related to sending money via Western Union on forms prepared by defendant, as well as her presence at a m eeting between defendant and Hubbard. This evidence was offered for the limited pur pose of showing defendant's intent and consciousness of guilt. Even with respect to t he witness-tampering charges that were then pending against defendant, the trial court determined that Baker could not be charged as a principal or under a theory of accountability in that case. Because there was no evidence suggesting that anyone acted as an accomplice to the charged offenses, the trial court properly refused to give the jury the accomplice-witness instruction. E. Aggravated Domestic BatteryNo. 2--04--0100

28 We note that defendant raises several i ssues regarding the guilty verdict for aggravated domestic battery. While defendant clai ms that a judgment of conviction was entered on the aggravated domestic battery charge, and that his contentions of error are properly before this court, this is not accurate. As the State points out, the trial court did not enter a conviction or impose a sentence on the aggravated domestic battery verdict. Rather, the aggravated domestic battery off ense merged into the home invasion offense under the one-act, one-crime rule. Consequently, def endant is barred from challenging that verdict on appeal. See People v. Eure , 140 Ill. App. 3d 387, 397 (1 986) (since no judgment of conviction was entered on t he aggravated battery charges, nor was there any sentence imposed for either offense, the defendant was ba rred from challenging findings of guilt). F. Home Invasion Conviction Defendant's final argument on appeal is that his conviction of home invasion should be reversed because that statute was not intended to apply to domestic disputes. First, we note that this issue is waived, as defendant never raised it below. See People v. Enoch , 122 Ill. 2d 176, 186 (1988). Even if the issue were not waived, howev er, it is meritless. In People v. Oakley , 187 Ill. 2d 472 (1999), our supreme court considered the validity of a home invasion conviction where the defendant's interest in the former marital residence had been extinguished by a final order in the divorce proceeding. Oakley , 187 Ill. 2d at 480. Because the defendant's ex-wife was aw arded the house and the def endant retained no interest therein, the s upreme court held that the defendant had entered the "dwelling place of another" for the purposes of the home-invasion statute. Oakley , 187 Ill. 2d at 480. The facts here present an even stronger ca se for finding defendant guilty of home invasion. In this case, defendant and Allen were not married, nothing in the recordNo. 2--04--0100

29 indicates that he was named on her lease, he had vacated the premises months earlier, and his authority to enter the pr emises was limited to taking the children to day care. Stated simply, nothing in this case implicates the legislature's concer n that a party to a domestic dispute would be charged under the home-invasion statute for conduct committed in his own home. See Oakley , 187 Ill. 2d at 479. Thus, defendant committed home invasion when he entered Allen's apartment and his argument necessarily fails. III. CONCLUSION For the reasons stated, the Lake County circuit court's judgment is affirmed. Affirmed. HUTCHINSON and O'MALLEY, JJ., concur.