People v. Hamilton, 4-94-0961

• Decision Date: 25 September 1996
• Docket Number: No. 4-94-0961,4-94-0961
• Citation: 670 N.E.2d 1189,283 Ill.App.3d 854
• Parties: , 219 Ill.Dec. 301 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antonio HAMILTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1189

670 N.E.2d 1189

283 Ill.App.3d 854, 219 Ill.Dec. 301

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Antonio HAMILTON, Defendant-Appellant.

No. 4-94-0961.

Appellate Court of Illinois Fourth District.

Argued May 15, 1996.

Decided Sept. 25, 1996.

Daniel D. Yuhas, Deputy Defender, Martin J. Ryan (argued), Asst. Defender, Springfield, for Antonio Hamilton.

Charles G. Reynard, State's Attorney, Bloomington, Norbert J. Goetten Director, State's Attorneys Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, State's Attorneys Appellate Prosecutor, Springfield, Kathy Shepard (argued), Staff Atty., State's Attorneys Appellate Prosecutor, Springfield, for People.

Justice KNECHT delivered the opinion of the court:

After a jury trial, defendant Antonio Hamilton was found guilty of residential burglary (720 ILCS 5/19-3 (West 1992)), and was sentenced to 18 years in prison. He appeals, arguing (1) the trial court committed reversible error in failing to submit to the jury his included offense instruction of theft; (2) the State failed to prove the offense beyond a reasonable doubt; and (3) the trial court failed to consider two applicable statutory mitigating factors in sentencing. We affirm.

I. BACKGROUND

Defendant was charged in July 1994 with residential burglary. The bill of indictment charged he "knowingly without authority entered the dwelling place of Bob and Rita Williams with the intent to commit therein a theft," in violation of section 19-3 of the Criminal Code of 1961 (720 ILCS 5/19-3 (West 1992)).

On the morning of January 29, 1994, Robert Williams was in his kitchen, when his six-year-old son came to him and said that someone was at the door to see him. When Robert went to the front door, he saw someone exiting the bedroom where his wife was sleeping. He identified defendant as the intruder at trial. He also testified he previously picked him out of a photo lineup. Robert testified when defendant saw him he immediately said "[ ]she owes me money['] or something like that." Robert took hold of him and started pushing him toward the door, but before he was able to eject him he observed his wife's purse was hidden beneath the person's jacket. He tried to grab the purse and scuffled with defendant. Defendant pulled away and escaped with the purse, but left his jacket in Robert's hands.

Robert yelled for his wife to call the police. Rita Williams woke up, heard her husband yelling, and saw him pushing someone out of the house. After calling the police, she saw the intruder in the backyard and told her husband. Defendant then came back to the front door, placed the purse on the front porch, and said he wanted his jacket. Robert warned defendant the police were coming, told him to step away from the porch, took the purse, and threw the jacket (and a small bag containing a substance Robert assumed to be marijuana, which had fallen out of the jacket during the scuffle) outside. Defendant walked to a parked car and left.

Shortly after retrieving the purse, Robert and Rita discovered Rita's wallet was not in the purse where she had left it the night before. The wallet was never recovered.

Detective Richard Barkes of the Bloomington police department was assigned to investigate the incident. After Robert identified defendant in a photo lineup, Barkes arrested defendant. After waiving his Miranda rights, defendant admitted going to the Williams residence and taking the purse out of the bedroom. He gave a typewritten statement admitting he had taken the purse and stating he dropped the wallet into a mailbox after returning the purse. The statement was admitted into evidence.

At the jury instruction conference, defendant tendered an included offense instruction on theft. The trial judge initially agreed to give the instruction, believing "the jury could find [defendant] guilty of theft and not guilty of residential burglary." However, before the end of the conference the court reversed itself when the State presented authority for the proposition theft was not an included offense of burglary. The court refused to tender the theft instruction. The jury convicted defendant of residential burglary. Defendant was sentenced and this appeal followed.

II. ANALYSIS

A. Included Offense Instruction

1. Merits

A defendant generally may not be convicted of an offense with which he has not been charged. People v. Landwer, 166 Ill.2d 475, 485, 211 Ill.Dec. 465, 471, 655 N.E.2d 848, 854 (1995). In some cases a defendant is entitled to have the jury instructed concerning less serious offenses which are included in the charged offense. Landwer, 166 Ill.2d at 485-86, 211 Ill.Dec. at 471, 655 N.E.2d at 854. This practice provides an important option to a jury which, believing a defendant is guilty of something, but uncertain whether the charged greater offense has been proved, might otherwise convict rather than acquit. Landwer, 166 Ill.2d at 486, 211 Ill.Dec. at 471, 655 N.E.2d at 854. Whether an instruction on a lesser offense should have been given is a matter of law, on which we accord no deference to the trial court's decision. Landwer, 166 Ill.2d at 486, 211 Ill.Dec. at 471, 655 N.E.2d at 854.

An "included" offense "[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." 720 ILCS 5/2-9(a) (West 1992). In the past, Illinois has used three different approaches to determining whether a particular offense is an included offense of another: (1) the "abstract elements" approach, (2) the "charging instrument" approach, and (3) the "factual" or the "evidence" approach, also known as the "inherent relationship" approach. People v. Novak, 163 Ill.2d 93, 106-07, 205 Ill.Dec. 471, 478-79, 643 N.E.2d 762, 769-70 (1994). Recent supreme court case law has adopted the "charging instrument" approach. Landwer, 166 Ill.2d at 486, 211 Ill.Dec. at 471, 655 N.E.2d at 854; Novak, 163 Ill.2d at 112, 205 Ill.Dec. at 481, 643 N.E.2d at 772.

This approach has two steps. First, the court must look to the charging instrument and determine whether it sets out the " ' "main outline," ' " or at least a " ' "broad foundation," ' " of the lesser offense. Landwer, 166 Ill.2d at 486, 211 Ill.Dec. at 471, 655 N.E.2d at 854, quoting Novak, 163 Ill.2d at 107, 205 Ill.Dec. at 479, 643 N.E.2d at 770, quoting People v. Bryant, 113 Ill.2d 497, 505, 101 Ill.Dec. 825, 828, 499 N.E.2d 413, 416 (1986). The lesser crime need not be "a theoretically or practically 'necessary' part of the greater crime" (Novak, 163 Ill.2d at 107, 205 Ill.Dec. at 478-79, 643 N.E.2d at 769-70); rather, it suffices for the lesser offense to be "described" by the instrument. Novak, 163 Ill.2d at 107, 205 Ill.Dec. at 479, 643 N.E.2d at 770.

If the court finds the lesser offense meets this first test, it then determines whether the evidence presented at trial would allow a jury to find the defendant guilty of the lesser offense but acquit on the greater. Landwer, 166 Ill.2d at 486, 211 Ill.Dec. at 471, 655 N.E.2d at 854, citing Novak, 163 Ill.2d at 108, 205 Ill.Dec. at 479, 643 N.E.2d at 770. Instruction on the lesser offense is proper only if the jury would have to find a disputed factual element to convict on the greater offense which is not required to convict on the lesser. Novak, 163 Ill.2d at 108, 205 Ill.Dec. at 479, 643 N.E.2d at 770. This evidentiary requirement is usually satisfied by the presentation of conflicting testimony on the element that distinguishes the greater from the lesser offense, but where the testimony is not conflicting, it may be satisfied if the conclusion as to the lesser offense may be fairly inferred from the evidence presented. Novak, 163 Ill.2d at 108, 205 Ill.Dec. at 479, 643 N.E.2d at 770.

Theft was not an included offense of residential burglary in this case. First, our supreme court has explicitly held "[t]heft is not a lesser included offense of burglary." People v. Schmidt, 126 Ill.2d 179, 183-84, 127 Ill.Dec. 816, 818, 533 N.E.2d 898, 900 (1988), citing People v. Baker, 57 Ill.App.3d 401, 405, 14 Ill.Dec. 427, 430, 372 N.E.2d 438, 441 (1978). Second, the charging instrument here did not set out the "main outline" or even a "broad foundation" of a theft. It did not allege a theft had been committed. There are two elements to the crime of theft: a person must knowingly obtain control over the property of another (720 ILCS 5/16-1(a)(1) through (a)(4) (West 1992)), and he must have the intent permanently to deprive the owner of the use or benefit of the property (720 ILCS 5/16-1(a)(4)(A) through (a)(4)(C) (West 1992)). People v. Jones, 149 Ill.2d 288, 296, 172 Ill.Dec. 401, 405, 595 N.E.2d 1071, 1075 (1992).

The indictment here merely alleged the defendant "knowingly without authority entered the dwelling place of [Robert] and Rita Williams with the intent to commit therein a theft." There is no "outline" or "foundation" of theft in this language; theft was not "described." See Novak, 163 Ill.2d at 114, 205 Ill.Dec. at 482, 643 N.E.2d at 773 (aggravated criminal sexual abuse not an included offense of aggravated criminal sexual assault under indictment charging defendant " 'was seventeen years of age or over and committed an act of sexual penetration upon [the victim], to wit: contact between [defendant]'s penis and [the victim's] mouth and [the victim] was under thirteen years when the act of sexual penetration was committed' "). Compare Landwer, 166 Ill.2d at 487, 211 Ill.Dec. at 471, 655 N.E.2d at 854 (instruction on solicitation to commit aggravated battery should have been given where indictment alleged defendant " 'committed the offense of SOLICITATION OF MURDER FOR HIRE, in that said defendant with the intent that the offense of First Degree Murder, in violation of Illinois Revised Statutes Chapter 38, Section 9-1(a)(1), be committed, procured another, Robert Holguin,...