People v. Jones

• Decision Date: 25 June 1992
• Docket Number: No. 72346,72346
• Citation: 149 Ill.2d 288,172 Ill.Dec. 401,595 N.E.2d 1071
• Parties: , 172 Ill.Dec. 401 The PEOPLE of the State of Illinois, Appellant, v. Henry JONES, Appellee.
• Court: Illinois Supreme Court

Page 1071

595 N.E.2d 1071

149 Ill.2d 288, 172 Ill.Dec. 401

The PEOPLE of the State of Illinois, Appellant, v. Henry JONES, Appellee.

No. 72346.

Supreme Court of Illinois.

June 25, 1992.

Roland W. Burris, Atty. Gen., Springfield, and Robert Haida, State's Atty., Belleville (Rosalyn B. Kaplan, Solicitor Gen., Terence M. Madsen and Mary Brigid Kenney, Asst. Attys. Gen., Chicago, and Kenneth R. Boyle, Stephen E. Norris and Kendra S. Mitchell, Office of State's Attys. Appellate Prosecutor, Mt. Vernon, of counsel), for the People.

Daniel M. Kirwin, Deputy Defender and Rita K. Peterson, Office of the State Appellate Defender, Mt. Vernon, for Henry Jones.

Justice BILANDIC delivered the opinion of the court:

Henry Jones (Jones) was charged by information with armed robbery. (Ill.Rev.Stat.1987, ch. 38, par. 18-2.) The information stated that "defendant, while armed with a dangerous weapon, a gun, took property of Lizzie [sic ] Harden, being one 1984 green-gray 2-door Buick-Regal, and property of Barbara Clark, being one beige ladies purse from the person of Barbara Clark, by threatening the imminent use of force."

Following a bench trial, the trial judge found that there was insufficient evidence to prove the presence of a weapon or a threat of force and that Jones therefore was not guilty of armed robbery. The court, however, found that Jones was guilty of theft (Ill.Rev.Stat.1987, ch. 38, par. 16-1), and sentenced him to 2 1/2 years in the Illinois Department of Corrections. The appellate court, with one justice dissenting, reversed Jones' theft conviction, holding that theft is not a lesser included offense of armed robbery and therefore Jones could not have been found guilty of theft when he had been charged with armed robbery 217 Ill.App.3d 175, 160 Ill.Dec. 184, 576 N.E.2d 1138. We allowed the State's petition for leave to appeal. (134 Ill.2d R. 315.) We now reverse the appellate court.

According to the testimony at trial, on October 24, 1988, Barbara Clark (Clark) was seated in a Dodge automobile in East St. Louis, Illinois, and her sister, Sandra Harden (Harden), was directly behind her, seated in their mother's Buick Regal. The Dodge apparently was not operable, and the two women were using the Buick Regal to push the Dodge. A man, later identified by Clark in a lineup as Jones, approached Clark's car. Clark testified that Jones pointed a gun at her and told her to get out of the car. When Clark got out of the car, Jones took a purse from inside the Dodge. Jones then got into the Buick Regal and drove away after Harden left that car.

The next day, Jones was apprehended after a deputy sheriff saw the Buick Regal taken from Harden roll to a stop in a parking lot after hitting a garbage dumpster in an adjoining alley. The deputy apprehended Jones, who was driving the car, after Jones attempted to flee on foot from the parking lot. The purse taken from Clark was found in the car. Jones denied taking the car or the purse from Harden and Clark.

At issue in this appeal is whether Jones could properly be convicted of theft where the charging instrument expressly charged him only with armed robbery. Section 16-1 of the Criminal Code of 1961 defines the offense of theft as follows:

"A person commits theft when he knowingly:

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

(b) Obtains by deception control over property of the owner; or

(c) Obtains by threat control over property of the owner; or

(d) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen, and

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

(2) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or

(3) Uses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit." (Emphasis added.) Ill.Rev.Stat.1987, ch. 38, par. 16-1.

The offense of robbery is committed when a person "takes property from the person or presence of another by the use of force or by threatening the imminent use of force." (Ill.Rev.Stat.1987, ch. 38, par. 18-1.) A person commits armed robbery when he or she commits a robbery "while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." Ill.Rev.Stat.1987, ch. 38, par. 18-2.

It is axiomatic that no person may be convicted of an offense the person has not been charged with committing. (People v. Lewis (1980), 83 Ill.2d 296, 300, 47 Ill.Dec. 314, 415 N.E.2d 319.) However, an accused may be convicted of an offense not expressly included in the charging instrument if that offense is a "lesser included offense" of the offense expressly charged. (Lewis, 83 Ill.2d at 300, 47 Ill.Dec. 314, 415 N.E.2d 319; People v. Schmidt (1988), 126 Ill.2d 179, 183, 127 Ill.Dec. 816, 533 N.E.2d 898.) A lesser included offense is defined by the Criminal Code as an offense which "[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." (Ill.Rev.Stat.1987, ch. 38, par. 2-9(a).) Stated more simply, a lesser included offense is one composed of some, but not all, of the elements of the greater offense, and which does not have any element not included in the greater offense.

There is a split among the panels of the appellate court of this State on the question of whether theft is a lesser included offense of robbery. Some panels have found that theft was a lesser included offense of robbery. Those panels have generally based their conclusion upon the language of the charging instrument in that particular case. (See, e.g., People v. Rivers (1990), 194 Ill.App.3d 193, 141 Ill.Dec. 133, 550 N.E.2d 1179; People v. Romo (1980), 85 Ill.App.3d 886, 41 Ill.Dec. 163, 407 N.E.2d 661; People v. Beck (1976), 42 Ill.App.3d 923, 1 Ill.Dec. 566, 356 N.E.2d 848; see also People v. King (1979), 67 Ill.App.3d 754, 24 Ill.Dec. 146, 384 N.E.2d 1013.) Other panels have determined that theft is not a lesser included offense of robbery. (See People v. Thomas (1983), 119 Ill.App.3d 464, 75 Ill.Dec. 1, 456 N.E.2d 684; People v. Gray (1980), 80 Ill.App.3d 817, 36 Ill.Dec. 53, 400 N.E.2d 473; People v. Kimble (1980), 90 Ill.App.3d 999, 46 Ill.Dec. 413, 414 N.E.2d 135; People v. Baker (1979), 72 Ill.App.3d 682, 28 Ill.Dec. 892, 391 N.E.2d 91; People v. Pack (1976), 34 Ill.App.3d 894, 341 N.E.2d 4; People v. Yanders (1975), 32 Ill.App.3d 599, 335 N.E.2d 801.) In general, those panels have concluded that theft is not a lesser included offense of robbery because the statutory definition of theft contains the additional element of intent (or other mental state as set forth in the theft statute) to permanently deprive the victim of the property, an element that is not found in the statutory definition of robbery. (See, e.g., People v. Kimble (1980), 90 Ill.App.3d 999, 46 Ill.Dec. 413, 414 N.E.2d 135; Ill.Rev.Stat.1987, ch. 38, pars. 16-1(d)(1), (d)(2), (d)(3).) The defendant here urges this court to adopt this latter reasoning and to conclude that theft is not a lesser included offense of robbery because the statutory definition of theft includes an element not included in the statutory definition of armed robbery.

This court's decision in People v. Bryant (1986), 113 Ill.2d 497, 101 Ill.Dec. 825, 499 N.E.2d 413, provides guidance on this issue. In Bryant, the defendant was expressly charged with attempted burglary. At trial, the defendant requested a jury instruction that would permit the jury to find him guilty of criminal damage to property for breaking a window of the building he allegedly attempted to enter. The trial court, however, denied the defendant's request on the grounds that criminal damage to property was not a lesser included offense of attempted burglary. This court reversed, finding that criminal damage to property was a lesser included offense of attempted burglary as charged in that particular case. Bryant, 113 Ill.2d at 505, 101 Ill.Dec. 825, 499 N.E.2d 413.

In Bryant, this court looked to the charging instrument to decide whether criminal damage to property was a lesser included offense of the charged attempted burglary. The indictment in Bryant did not contain any express allegation of the mental state of knowledge necessary to sustain a conviction for criminal damage to property. (Bryant, 113 Ill.2d at 502, 101 Ill.Dec. 825, 499 N.E.2d 413.) Nevertheless, this court found that the indictment "set out the main outline of the lesser offense proposed by the defendant here. The property damage to the building was the obvious foundation of the charge * * *." (Bryant, 113 Ill.2d at 505, 101 Ill.Dec. 825, 499 N.E.2d 413.) This court found that it was not necessary that the indictment expressly allege all of the elements of the lesser offense. (Bryant, 113 Ill.2d at 505, 101 Ill.Dec. 825, 499 N.E.2d 413.) On the contrary, this court determined that the indictment in that case "implicitly set out the required mental state of knowledge." The court determined that the statutory definition of attempted burglary "required a knowing entry, and therefore the indictment may be read as alleging an attempt to knowingly enter the [premises]." (Bryant, 113 Ill.2d at 505, 101 Ill.Dec. 825, 499 N.E.2d 413.) The Bryant court therefore concluded that the defendant was entitled to an instruction on criminal damage to property as a lesser included offense. (Bryant, 113 Ill.2d at 505-06, 101 Ill.Dec. 825, 499 N.E.2d 413.) The court further noted that the requested instruction was proper because the evidence introduced at trial was sufficient to support a conviction for criminal damage to property. Bryant, 113 Ill.2d at 506, 101 Ill.Dec. 825, 499 N.E.2d...