
People v. Hamilton, 



               Docket No. 82148--Agenda 31--May 1997.

     THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. ANTONIO

                        HAMILTON, Appellant.

                  Opinion filed December 18, 1997.

                                   

          JUSTICE NICKELS delivered the opinion of the court:

          Following a jury trial in the circuit court of McLean County, defendant,

     Antonio Hamilton, was convicted of residential burglary (720 ILCS 5/19--3(a)

     (West 1994)) and sentenced to a prison term of 18 years. A divided appellate

     court affirmed (283 Ill. App. 3d 854), and this court granted defendant's petition

     for leave to appeal (166 Ill. 2d R. 315(a)).

          The evidence at trial revealed that at approximately 8:30 a.m. on January

     29, 1994, Bob Williams was in the kitchen of his home drinking coffee and

     reading the newspaper. At the time, Bob's wife, Rita, was still asleep in the

     couple's bedroom adjacent to the dining room of the home. Bob's six-year-old son

     entered the kitchen and told his father that there was someone at the front door

     to see him. As Bob walked through the dining room towards the front door, he

     observed defendant coming out of the bedroom where Rita was sleeping.

          Bob testified that defendant immediately said "something to the effect of,

     she owes me money or something like that." Bob yelled at defendant, grabbed

     him, and then pushed him towards the front door. As the two reached the front

     door, Bob noticed that defendant was concealing Rita's purse beneath his jacket.

     Bob attempted to take the purse and defendant tried to pull away from Bob's

     grasp. During the scuffle, defendant somehow slipped out of the jacket and

     escaped out the front door, still carrying Rita's purse.

          Rita testified that she was awakened by the sounds of a scuffle and her

     husband yelling, "What are you doing here? You just don't walk into people's

     houses." Bob then yelled for Rita to call the police. As Rita was on the telephone

     talking to the police, she could see that defendant was standing in their backyard.

     Defendant then returned to the front door, placed the purse on the porch, and

     requested his jacket. Bob warned defendant that the police were on the way and

     then stepped out, picked up the purse, and threw defendant the jacket. Defendant

     walked to a car parked across the street and departed. Shortly thereafter, Rita

     discovered that her wallet was missing from the purse.

          During the investigation into the incident, Bob identified defendant from

     a photo lineup as the assailant. Detective Richard Barkes testified that during an

     interview, defendant admitted that he went to the Williamses' residence and took

     a purse out of a bedroom. In a typewritten statement allowed into evidence,

     defendant claimed that he went to the home in search of a woman named Chrissy,

     who owed him money for drugs. Defendant asserted that he was let into the home

     and directed to the bedroom to find the woman. In the bedroom defendant found

     a purse, but before he could retrieve the money he was owed he was grabbed by

     Bob. Defendant claimed that when he noticed Rita was not the woman he was

     looking for, he returned the purse. However, defendant admitted taking a wallet

     from the purse and later dropping it into a mailbox.

          Defendant did not present any evidence. At the jury instruction conference,

     defense counsel tendered instructions in the form of Illinois Pattern Jury

     Instructions, Criminal, No. 26.01Q (3d ed. 1992) (theft as a lesser included offense

     of residential burglary) (hereinafter IPI Criminal 3d), IPI Criminal 3d No. 13.01

     (definition of theft by unauthorized control), and IPI Criminal 3d No. 13.02 (issues

     in theft by unauthorized control). The circuit court initially accepted defendant's

     tendered instructions over the State's objection. However, after the State cited

     authority for the proposition that theft is not a lesser included offense of

     residential burglary, the circuit court reversed itself and denied all defendant's

     instructions. Subsequently, defendant was convicted of residential burglary, and,

     with one justice dissenting, the appellate court affirmed (283 Ill. App. 3d 854).

          Before this court, defendant contends that he is entitled to a new trial

     because the circuit court erroneously refused his tendered instructions on the lesser

     included offense of theft (720 ILCS 5/16--1 (West Supp. 1995)). Defendant

     observes that the circuit court relied on People v. Schmidt, 126 Ill. 2d 179 (1988),

     for its finding that theft is not a lesser included offense of residential burglary.

     Defendant argues that this was error because Schmidt did not utilize the charging

     instrument approach, adopted in People v. Novak, 163 Ill. 2d 93 (1994), as the

     appropriate method to determine whether a lesser offense is included in the

     charged offense. Defendant further argues that, although the majority of the

     appellate court discussed Novak, it nevertheless applied the analysis incorrectly in

     affirming the circuit court. Defendant believes that a proper analysis leads to the

     conclusion that, as charged in this case, theft is a lesser included offense of

     residential burglary.

          We note at the outset that the appellate court, after thoroughly addressing

     the jury instruction issue, determined that it was waived. Nevertheless, the waiver

     rule is a limitation on the parties, not a limitation on the jurisdiction of the courts.

     Herzog v. Lexington Township, 167 Ill. 2d 288, 300 (1995). In the interest of

     preserving a sound and uniform body of precedent, we address the issue. Jackson

     Jordan, Inc. v. Leydig, Voit & Mayer, 158 Ill. 2d 240, 251 (1994).

          Generally, a defendant may not be convicted of an offense for which he

     has not been charged. Novak, 163 Ill. 2d at 105. However, in an appropriate case,

     a defendant is entitled to have the jury instructed on a less serious offense if that

     offense is included in the charged offense. People v. Landwer, 166 Ill. 2d 475,

     485-86 (1995). The purpose of an instruction on a lesser offense 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 convict rather than acquit the defendant of the greater offense." People

     v. Bryant, 113 Ill. 2d 497, 502 (1986), citing Keeble v. United States, 412 U.S.

     205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98 (1973).

          An included offense is 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." 720

     ILCS 5/2--9(a) (West 1994). In determining whether a particular offense is

     included in a charged offense, this court has held that the proper approach is to

     examine both the charging instrument and the evidence adduced at trial. Landwer,

     166 Ill. 2d at 486. Under this charging instrument approach, an offense is

     identified as a lesser included offense if it is described by the charging instrument.

     People v. Jones, 175 Ill. 2d 126, 135 (1997), citing Novak, 163 Ill. 2d at 107.

          Once a lesser included offense is identified, however, it does not

     automatically follow that the jury must be instructed on the lesser offense. Novak,

     163 Ill. 2d at 108. 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 the greater offense. Jones, 175 Ill. 2d at 135; Landwer, 166 Ill. 2d at 486.

          Applying these principles to the instant case, we must first determine

     whether the charging instrument describes the included offense such that the

     included offense may be proved by the same facts or a less culpable mental state.

     Landwer, 166 Ill. 2d at 486-87. The bill of indictment in this case alleged that

     defendant "committed the offense of Residential Burglary in that 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]."

          The offense of theft by unauthorized control is committed when a person

     knowingly "[o]btains or exerts unauthorized control over property of the owner"

     and "[i]ntends to deprive the owner permanently of the use or benefit of the

     property." 720 ILCS 5/16--1(a) (West Supp. 1995); see also People v. Jones, 149

     Ill. 2d 288, 296 (1992). By alleging in the indictment that defendant entered the

     Williamses' dwelling place with the intent to commit a theft, the charging

     instrument necessarily infers that defendant intended to obtain unauthorized

     control over and deprive another of property. This intent can typically be inferred,

     as it was in this case, only through showing an actual taking of property.

     Moreover, the indictment expressly charged the specific intent to commit theft,

     which has been deemed sufficient to satisfy the first step of the charging

     instrument approach. See People v. Dace, 104 Ill. 2d 96, 102-03 (1984). Thus, the

     charging instrument in the instant case sufficiently identifies theft as a lesser

     included offense of the charged offense of residential burglary.

          The majority of the appellate court in the instant case analyzed the

     charging instrument and concluded that it did not set out the broad foundation of

     theft because the indictment did not mention all the statutory elements of theft.

     However, to warrant instructions on a lesser offense under the charging instrument

     approach, it is not necessary for the charging instrument to expressly allege all the

     elements of the lesser offense. Bryant, 113 Ill. 2d at 505. This court has readily

     found necessary statutory elements to be "implicitly" contained in a charging

     instrument. See, e.g., Jones, 149 Ill. 2d at 296-98; Bryant, 113 Ill. 2d at 505-06.

     Moreover, to conclude that a lesser crime is an included offense, it need not be

     a theoretical or practical necessity of the greater crime. Novak, 163 Ill. 2d at 107.

          The appellate majority also rejected defendant's arguments which relied on

     People v. Dace, 104 Ill. 2d 96 (1984). The appellate court, reasoning that the

     Dace decision was incompatible with this court's subsequent decision in People

     v. Schmidt, 126 Ill. 2d 179 (1988), found that Dace had been implicitly overruled.

     We find the appellate court's reasoning flawed.

          In Dace, two defendants in unrelated cases were charged with residential

     burglary with intent to commit a theft. In a consolidated appeal, this court

     examined the charging instruments and the evidence presented at trial and

     concluded that the trial court erred in refusing to instruct the jury on theft. This

     court stated:

          "The proof of the offense charged requires proof of the specific intent

               (People v. Toolate (1984), 101 Ill. 2d 301), and the evidence adduced in

               each case would support a conviction of theft (People v. Housby (1981),

               84 Ill. 2d 415). We hold that under these circumstances, where the

               information charged the specific intent to commit theft and the offense of

               theft was proved by the evidence, refusal to give defendant's tendered

               instructions was error." Dace, 104 Ill. 2d at 103.

          Although Dace does not refer to the charging instrument approach by

     name, the court nevertheless applied the same two-step analysis of the approach.

     This becomes evident when the Dace progeny is carefully examined. In Bryant,

     this court looked to Dace for guidance on the application of the charging

     instrument approach. See Bryant, 113 Ill. 2d at 503-05. Subsequently, it was

     Bryant from which this court derived the " `broad foundation' " and " `main

     outline' " standards used to determine when a lesser offense is described by a

     charging instrument. See Novak, 163 Ill. 2d at 107, quoting Bryant, 113 Ill. 2d at

     505.

          It should not be surprising that this court utilized the charging instrument

     approach in Dace, even though that decision preceded Novak. Contrary to the

     observations of the appellate court and both parties, this court did not first adopt

     the charging instrument approach in Novak. Rather, in Novak we simply

     reaffirmed our preference for this approach (Novak, 163 Ill. 2d at 110-12) and, in

     fact, observed that the charging instrument approach had long been recognized in

     Illinois (Novak, 163 Ill. 2d at 112 (citing People v. Lewis, 375 Ill. 330, 334-36

     (1940), People v. Gilday, 351 Ill. 11, 21-22 (1932), and Earll v. People, 73 Ill.

     329, 332-33 (1874))).

          In contrast with Dace, Schmidt simply stands for the proposition that where

     a defendant is charged with a single offense he cannot be convicted of an offense

     not charged unless it is a lesser included offense of the crime for which defendant

     is expressly charged. Schmidt, 126 Ill. 2d at 183; see also Jones, 149 Ill. 2d at

     292. The Dace decision does not differ with Schmidt on this proposition, as this

     court in Schmidt expressly recognized. Schmidt, 126 Ill. 2d at 184-85.

          We acknowledge that Schmidt stated that theft is not a lesser included

     offense of burglary. Schmidt, 126 Ill. 2d at 183-84. However, in coming to this

     conclusion, the court merely cited to People v. Baker, 57 Ill. App. 3d 401 (1978).

     A close reading of Baker, however, reveals that the court in that case applied the

     abstract elements approach in holding that theft was not a lesser included offense

     of burglary. Baker, 57 Ill. App. 3d at 404-05. Because this court has since

     expressly rejected the harsh and mechanical abstract elements approach (Novak,

     163 Ill. 2d at 111-13), Schmidt, at least for this particular proposition, has been

     disavowed.

          Although we conclude that the charging instrument in the instant case

     sufficiently identified theft as a lesser included offense of residential burglary,

     defendant is not necessarily entitled to a lesser included offense instruction

     (Novak, 163 Ill. 2d at 108). In this case, defendant would be entitled to a lesser

     included offense instruction on theft only if the evidence presented at trial could

     rationally support a finding that defendant was guilty of theft but innocent of

     residential burglary. See Jones, 175 Ill. 2d at 135; Landwer, 166 Ill. 2d at 487-88.

          The evidence presented in the instant case could lead a jury to rationally

     conclude that defendant came to the residence to collect a debt, was allowed into

     the home by the Williamses's six-year-old son, and while searching for the woman

     who owed him money found a purse and decided to take it. The State presented

     no direct evidence that defendant possessed the intent to commit a theft at the

     time he entered the dwelling place. Rather, as is common in burglary trials, the

     State presented circumstantial evidence of the requisite intent by establishing that

     defendant committed a theft once inside the dwelling place.

          A lesser included offense instruction is proper only where the charged

     greater offense requires the jury to find a disputed factual element that is not

     required for conviction of the lesser included offense. Novak, 163 Ill. 2d at 108.

     In this case, there existed the disputed factual element of whether defendant

     entered the dwelling place with the requisite intent. The jury could have rationally

     concluded that defendant did not formulate the intent to commit a theft until after

     he was inside the Williamses' home. Therefore, the evidence presented at trial

     could have rationally sustained a conviction for theft and an acquittal for

     residential burglary. Thus, we find the trial court erred in refusing to instruct the

     jury on the lesser included offense of theft and, accordingly, reverse and remand

     for a new trial.

     

                           CONCLUSION

          For the reasons set forth herein, the appellate court judgment affirming

     defendant's conviction is reversed. The circuit court judgment is reversed. The

     cause is remanded to the circuit court of McLean County for a new trial.

     

     Appellate court judgment reversed;

                               circuit court judgment reversed;

                                                cause remanded.

                                                               

                                                                      JUSTICE HARRISON, dissenting:

          I agree with the appellate court that the circuit court did not err when it

     refused to give defendant's instruction on theft. Such an instruction would have

     been proper only if theft were a lesser included offense of residential burglary.

     Under the charging instrument approach followed in Illinois (People v. Novak, 163

     Ill. 2d 93, 112-13 (1994)), theft cannot be considered a lesser included offense of

     residential burglary as that crime was charged here.   

          To be considered a lesser included offense under the charging instrument

     approach, an offense must be described by the charging instrument. At a

     minimum, the instrument charging the greater offense must set out the main

     outline of the lesser offense. People v. Jones, 175 Ill. 2d 126, 135 (1997).

     Contrary to my colleagues, I do not believe that requirement was met in this case.

          For there to be theft by unauthorized control, a person must knowingly

     obtain or exert unauthorized control over property of the owner. 720 ILCS 5/16--

     1(a) (West Supp. 1995). This requirement goes to the very heart of the crime. As

     such, it is an indispensable part of any outline of the offense. In the case before

     us, however, nothing in the charging instrument alleged that defendant actually

     took anything that did not belong to him. The instrument alleged simply that

     defendant entered the Williamses' home knowingly and without authority with the

     intent to commit a theft.

          The majority argues that a completed theft is implicit in and necessarily

     follows from the charge that defendant intended to commit a theft. That contention

     is valid if and only if intending to do something is the same as actually doing it.

     Common sense and everyday experience are ample proof that such is not the case.

          My colleagues try to find support for their position in People v. Dace, 104

     Ill. 2d 96 (1984), but Dace is not dispositive of this appeal. Contrary to the

     majority's assertion, Dace did not apply or purport to apply the charging

     instruments approach which our court has now adopted. Indeed, that case failed

     to articulate any governing principle for its conclusion that the circuit court should

     have given an instruction on theft where the informations charged only residential

     burglary. Dace, 104 Ill. 2d at 104 (Simon, J., dissenting). Moreover, four years

     after Dace our court specifically held that where the defendant was charged with

     residential burglary based on unauthorized entry with intent to commit theft, as

     defendant was here, he could not be convicted of theft because theft is not a lesser

     included offense of burglary. People v. Schmidt, 126 Ill. 2d 179 (1988).

          Following this court's discussion of the charging instrument approach in

     Novak, the appellate court held, as it did in this case, that where an indictment

     charges burglary based on entry of premises with the intent to commit a theft,

     theft is not a lesser included offense, and a defendant's tendered instruction on

     theft was therefore properly rejected by the circuit court. People v. Hage,  288 Ill.

     App. 3d 1014, 1020  (1997). I believe this view is the correct one and am

     unpersuaded by the majority's claims to the contrary.  Accordingly, I dissent.

