People v. Cramer

• Decision Date: 05 March 1980
• Docket Number: No. 79-153,79-153
• Citation: 36 Ill.Dec. 803,401 N.E.2d 644,81 Ill.App.3d 525
• Parties: , 36 Ill.Dec. 803 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard CRAMER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 644

401 N.E.2d 644

81 Ill.App.3d 525, 36 Ill.Dec. 803

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard CRAMER, Defendant-Appellant.

No. 79-153.

Appellate Court of Illinois, Third District.

March 5, 1980.

Peter A. Carusona, Asst. State Appellate Defender, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Michael M. Mihm, State's Atty., Peoria County, Peoria, Gary F. Gnidovec, John X. Breslin, State's Attys. Appellate Service Commission, Ottawa, for plaintiff-appellee.

SCOTT, Justice:

This is an appeal by the defendant, Richard Cramer, from a conviction by the circuit court of Peoria County of the offense of theft of property having a value in excess of $150.00. The indictment charging the defendant alleged that he knowingly exerted unauthorized control over a truck belonging to another, having a value in excess of $150.00, with the intent to permanently deprive the owner of its benefit and use. In this appeal the only issue raised by the defendant is whether the trial court erred by refusing to instruct the jury as to an offense related to a motor vehicle, which the defendant claims is a lesser included offense of the offense charged.

The relevant portions of the statutes involved are these:

"A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over property of the owner;

(d)(1) Intends to deprive the owner permanently of the use or benefit of the property;

* * *." (Ill.Rev.Stat.1977, ch. 38, par. 16-1(a), (d)(1).)

Theft is a class 3 felony. (Ill.Rev.Stat.1977, ch. 38, par. 16-1(e)(3).)

The Motor Vehicle Code of our State provides:

"It is a violation of this Chapter for:

(a) A person not entitled to the possession of a vehicle to receive, possess, conceal, sell or dispose of it, knowing it to have been stolen or converted;

* * *." (Ill.Rev.Stat.1977, ch. 95 1/2, par. 4-103(a).) An offense related to a motor vehicle is a class 4 felony. Ill.Rev.Stat.1977, ch. 95 1/2, par. 4-108(b).

The Illinois supreme court has recently recited the appropriate standards for determining when one offense is to be considered an included offense of another.

"An included offense is defined by statute as an offense which '(a) (i)s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or (b) (c)onsists of an attempt to commit the offense charged or an offense included therein.' (Ill.Rev.Stat.1975, ch. 38, par. 2-9.) In order to be classified as a lesser included offense, 'all the elements of the lesser must be included within the greater.' People v. King (1966), 34 Ill.2d 199, 200, 215 N.E.2d 223, 224." (People v. Smith (1980), 78 Ill.2d 298, 306, 35 Ill.Dec. 761, 766, 399 N.E.2d 1289, 1294.)

To prove an offense related to a motor vehicle, neither the element of intent to permanently deprive the owner of use or benefit of the property nor the element of the value of the vehicle need be established, but in all other respects, the elements of an offense related to a motor vehicle are contained in the offense of theft. (People v. Johnson (1st Dist., 1978), 64 Ill.App.3d 1018, 21 Ill.Dec. 791, 382 N.E.2d 85.) While the issue raised in Johnson is not the precise issue raised in the instant appeal, the analysis there is dispositive of the issue here. An offense related to a motor vehicle is a lesser included offense of theft as defined in chapter 38, paragraph 16-1(a) (1).

The State's reliance on this court's decision in People v. Beauchemin (3rd Dist., 1979), 71 Ill.App.3d 102, 27 Ill.Dec. 516, 389 N.E.2d 580, is misplaced. In Beauchemin it was stated that the offense of theft as defined in chapter 38, paragraph 16-1(d) is not a lesser included offense of the theft offense in paragraph 16-1(a). Paragraph 16-1(d) and paragraph 4-103(b) are not identical in that paragraph 16-1(d) requires that the property be stolen by another while paragraph 4-103(b) does not.

The State also argues that, as an included offense or otherwise, the defendant has presented no evidence which would support a verdict under paragraph 4-103(a). However, when evidence of the commission of the greater offense has been admitted, evidence of the commission of the lesser offense is necessarily included. (See People v. Delk (5th Dist., 1976), 36 Ill.App.3d 1027, 345 N.E.2d 197.) And "where there is evidence in the record which, if believed by the jury, would reduce the crime to a lesser included offense, an instruction defining the lesser offense should be given." (People v. Bembroy (1st Dist., 1972), 4 Ill.App.3d 522, 525, 281 N.E.2d 389, 392.) Although this rule applies even though the theory of defense is inconsistent with a possibility of guilt of the lesser offense, no error occurs if a review of the evidence indicates that the only justifiable verdict would be guilty or not guilty of the offense charged. People v. Bembroy (1st Dist., 1972), 4 Ill.App.3d 522, 281 N.E.2d 389.

At the trial, Carl Witt, a car dealer, testified that People's Exhibit # 1 was a photograph of a 1967 pick-up truck he had earlier examined. Witt estimated that the truck's fair market retail value was $495.99.

T. R. Bonds testified that the truck portrayed in People's Exhibit # 1 was his, and on August 9, 1978, this truck was taken from in front of his home. No one had his permission or authorization to drive his truck, and the keys had not been left in the ignition. At the time of the incident there were $1,000 worth of yard and cleaning tools in the truck. In addition, there were sign boards on the back of the truck.

Victor Stenson, T. R. Bonds' nephew, saw a stranger drive his uncle's truck past a park where Stenson and his friends were sitting. This occurred around midnight in early August of 1978. The truck stopped at a flashing light on the corner. A Thunderbird with two occupants, one male and one female, stopped in front of the truck and there appeared to be a conversation between the people in the Thunderbird and the person in his uncle's truck.

Stenson and his friend, Mike English, ran to the corner to get a better look at the truck. English yelled to the car to stop the truck but both vehicles "took off". Stenson and English went to their cars. English followed the truck alone because Stenson dropped his keys. Fifteen minutes later, English returned and said he knew where the truck was located. After phoning the police, English and Stenson drove to the Purple Martin Station on Jefferson Street in the city of Peoria. When the police arrived they brought the defendant out of a building located on Jefferson Street.

Stenson testified that the individual he saw driving his uncle's truck was white with shoulder-length hair and he was wearing a light colored T-shirt. However, he was not sure whether the defendant was the person he saw driving his uncle's truck.

Detective Sylvester was the next witness to testify. On August 9th at 9:45 a. m. he interviewed defendant at the Peoria County Jail. After being advised of his Miranda rights, the defendant denied any involvement in the theft of the truck. Later Sylvester had a second conversation with the defendant. Diane Johnson, a secretary, was present. After informing defendant of his...