People v. Payne

• Decision Date: 01 February 1990
• Docket Number: No. 1-86-1435,1-86-1435
• Citation: 194 Ill.App.3d 238,550 N.E.2d 1214,141 Ill.Dec. 168
• Parties: , 141 Ill.Dec. 168 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leanard PAYNE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1214

550 N.E.2d 1214

194 Ill.App.3d 238, 141 Ill.Dec. 168

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Leanard PAYNE, Defendant-Appellant.

No. 1-86-1435.

Appellate Court of Illinois First District, Fourth Division.

Feb. 1, 1990.

Michael J. Pelletier, Deputy Defender, Karen Daniel, Asst. Appellate Defender, Chicago, for defendant-appellant.

Cecil Partee, State's Atty., Cook County, Chicago (Inge Fryklund, Judy L. Groeneveld, Sidney Z. Felischman, of counsel), for plaintiff-appellee.

Justice JOHNSON delivered the opinion of the court:

After a jury trial, defendant, Leanard Payne, was found guilty of residential burglary with intent to commit a felony therein (Ill.Rev.Stat.1985, ch. 38, par. 19-3), and sentenced to 4 years' imprisonment. He appeals from this judgment of the circuit court of Cook County. The following issues are raised on appeal: (1) whether the People proved that defendant was guilty of residential burglary beyond a reasonable doubt; (2) whether the trial court incorrectly instructed the jury on the mental state required in order to be convicted of residential burglary; and (3) whether the trial court improperly permitted the People to amend the charge immediately prior to trial.

We reverse.

Originally defendant was charged by information with residential burglary with intent to commit theft. Prior to trial and before jury selection, the People moved to amend the charge to residential burglary with intent to commit a felony. The trial court overruled his objection and granted the motion to amend.

At trial, Ernestine Jackson testified that shortly before midnight on March 3, 1985, she was sitting in the living room of her home, located at 139 South 11th Avenue, Maywood, Illinois, listening to the radio. The house had two front doors; one leading to an enclosed porch, and one, the main door, leading directly into the house. When she heard the outside door slam, she looked out of the window and saw a man, later identified as Leanard Payne, the defendant, throwing his body against the door. Ernestine called to the man, but he failed to respond. She ran to the kitchen and picked up a knife; however, she put it back. She could still hear the intruder pushing against the door. Thereafter, she ran upstairs to awaken her mother, Leona Jackson. Leona immediately attempted to telephone the police, but she had dialed the wrong number; upon her second attempt to call them, there was no dial tone. Ernestine stated that she then left the house through a bedroom window and ran 6 blocks to the police station.

Leona Jackson testified that she awakened her husband, Eugene Jackson, to tell him someone was trying to break into the house. Eugene loaded his gun and went to the top of the stairs. Defendant, after gaining entry, began screaming, "Daddy! Daddy!" Eugene told him he had the wrong house and that he was not his father. Eugene asked defendant to identify himself, but there was no response. The defense objected to this testimony on the basis that the contents of the oral statement by defendant had not been tendered to the defense through discovery. The objection was overruled. Eugene further testified that he told defendant to leave, but he continued to come up the stairwell. Eugene fired a warning shot and defendant disappeared.

When Ernestine returned home with a police officer, she noticed that the window on the door leading from the stairs to the porch was broken. She also noticed that the lock on the outside door was damaged and that the entire frame to the main door was hanging off its hinges. The jacket defendant wore was lying on the living room floor. Eugene went into the downstairs bathroom and found one shoe and a broken window.

Lieutenant Harold Jenkins testified that on March 4, 1985, at approximately midnight, he was called to a home located at 111 South 10th Avenue, in Maywood, which is directly across the alley from the Jackson home. Officer Barnett met Jenkins at that location. Barnett and Jenkins observed defendant standing in the doorway, between the screen and frame doors. He was forcefully knocking at the door. He was not wearing a jacket and one of his shoes was missing. Jenkins asked defendant why was he at the door, but there was no reply. He then ordered defendant to move away from the door. Again, defendant failed to respond in any manner. The resident of the house stated that she did not know the individual. Jenkins later established that the one shoe defendant was wearing matched the shoe found in the Jackson home.

After the People rested, defendant moved for a directed verdict, which was denied. Thereafter, the court held an instructions conference. The People tendered non-Illinois Pattern Jury Instructions (hereinafter IPI Criminal) for residential burglary. The court overruled defendant's objections to these instructions.

The jury found defendant guilty of residential burglary with intent to commit a felony therein. The court ordered a TASC (Treatment Alternatives to Street Crimes) evaluation to have defendant treated for drug addiction in lieu of sentencing. Defendant admitted his drug addiction and stated that he wanted help. However, the TASC representative found defendant ineligible for the program because defendant lacked recognition of the need for treatment. The trial court, therefore, found defendant ineligible for the program and sentenced him to 4 years' incarceration with a recommendation for psychiatric treatment.

Defendant's first contention on appeal is that the People failed to prove him guilty of residential burglary beyond a reasonable doubt. Defendant argues that the People failed to prove that he entered the house with a felonious intent.

Residential burglary is the knowingly unauthorized entry into the dwelling place of another with the intent to commit a felony or theft therein. (Ill.Rev.Stat.1985, ch. 38, par. 19-3(a).) Felonious intent may be inferred from the defendant's words, actions, violence and any other conduct. (People v. Cabrera (1987), 116 Ill.2d 474, 492, 108 Ill.Dec. 397, 508 N.E.2d 708.) It is within the province of the trier of fact to consider all the facts and circumstances surrounding the offense in determining the question on intent. Cabrera, 116 Ill.2d at 492, 108 Ill.Dec. 397, 508 N.E.2d 708.

"[B]reaking and entering cannot be used to infer an intent to commit any other felony. If it could, the requirement of specific intent to commit that other felony would be meaningless. There would be no need to prove any specific intent at all, since all types of intent would be inferred from the unauthorized entry. Intent is often, of course, inferred from circumstantial evidence. But that does not mean that there is no separate element of intent, or that we can indulge in the hopelessly circular reasoning that the entry must be accompanied by an intent which stands proven by the entry itself." People v. Toolate (1984), 101 Ill.2d 301, 308, 78 Ill.Dec. 153, 461 N.E.2d 987.

The People argue that defendant's felonious intent was to either harm the Jackson family or to take Eugene's gun away from him. Initially we note that all instances of harm to another are not felonious. For example, battery, defined as causing bodily harm to another, is classified as a misdemeanor. (Ill.Rev.Stat.1985, ch. 38, par. 12-3(b).) In order for a battery to constitute a felony one or more of the following aggravating factors pertinent to the case at bar must be present: (1) the use of a deadly weapon; (2) the use of a disguise to conceal one's identity; or (3) the infliction of great bodily harm. Ill.Rev.Stat.1985, ch. 38, par. 12-4.

The evidence fails to support the inference that defendant intended to commit aggravated battery. Defendant was not disguised nor did he have a weapon. There was no indication that he intended to inflict great bodily harm to any member of the Jackson family. As a matter of fact, defendant's conduct was quite bizarre, as noted by the trial court. The trial court believed, and defendant admitted, that he was a drug addict and was under the influence of drugs on the day in question. Thus, we do not find that defendant intended to commit an aggravated battery.

Unlike battery, robbery is a felony. (Ill.Rev.Stat.1985, ch. 38, par. 18-1(b).) Robbery is the taking of property from another by use of threat of force. (Ill.Rev.Stat.1985, ch. 38, par. 18-1(a).) Again, we find no evidence to support the People's argument that defendant intended to commit a felony. As mentioned above, defendant was not armed with a weapon nor did he threaten the Jackson family with the use of force. The only act that defendant committed was to break and enter into the Jackson home without their authority. This act alone is not sufficient to infer an intent to commit a felony. People v. Toolate (1984), 101 Ill.2d 301, 308, 78 Ill.Dec. 153, 461 N.E.2d 987.

Defendant next contends that the trial court incorrectly instructed the jury on the mental state required for a conviction of residential burglary with intent to commit a felony. He argues that the jury instructions failed to specifically define felonious conduct and erroneously included the intent to commit a theft as a permissible basis for conviction. The following jury instructions taken from IPI Criminal 2d Nos. 4.04, 14.05, and 14.06 (Illinois Pattern Jury Instructions, Criminal Nos. 4.04, 14.05, 14.06 (2d ed. 1981)), pertaining to burglary were given:

"A person commits the offense of residential burglary when he knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft.

The word 'felony' means an offense punishable by death or by imprisonment in the penitentiary.

To sustain the charge of residential burglary, the State must prove the following propositions:

First: That the defendant knowingly entered the dwelling place of another; and

Second: That the defendant did so without authority; and

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