APPEAL from the Circuit Court of Cook County; the Hon. FRED G.
SURIA, Judge, presiding.
MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 24, 1981.
Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) and aggravated arson (Ill. Rev. Stat. 1977, ch. 38, par. 20-1.1(a)). She was sentenced concurrently to 22 years for murder and 8 years for aggravated arson. The only issue she presents on appeal is that the trial court erred when it refused to give the jury an instruction on criminal damage to property. A full recitation of the facts is, therefore, not necessary and only those facts pertinent to this issue will be discussed.
On June 3, 1978, Peter Hoban was found dead from carbon monoxide in his townhouse. Testimony at trial established that the townhouse had been deliberately set aflame. In the basement there was evidence of two separate fires, and on the first floor there was evidence of three separate fires.
Officer John Eshoo testified that on a trip to Hoban's townhouse during his investigation of the homicide on June 6, 1978, he found a piece of paper with the name Bobbie and a telephone number written on it. He also found a Chicagoland register form with defendant's name and address. He proceeded to defendant's address and interviewed her, but she told him that she had never met Hoban, although she had spoken to him regarding a future date. The officer noticed some keys in her apartment that looked similar to the keys he used to get into Hoban's apartment, whereupon he asked defendant if she would accompany him and his partner to Hoban's apartment. He tried the keys, found in defendant's apartment, and opened Hoban's front door and then used the foreign auto key on the ring to start Hoban's automobile. He returned to the squad car and informed defendant that she was under arrest for the murder of Hoban.
Willie Green, defendant's boyfriend, testified that he was residing with her on June 2, 1978. He stated that when defendant returned home in the early hours of June 3, 1978, she solicited his help in bringing some items upstairs from a blue Mercury Cougar. He was arrested on June 7, 1978, while driving the Mercury Cougar, whereupon he was interviewed by the police and then took them to Bobbie Ryan's apartment, where he identified the items that he brought from the automobile on June 3, 1978.
Defendant testified that she had talked with Hoban on June 2, 1978, after receiving a message from the Chicagoland Register Dating Service that he was interested in meeting her. She arranged to visit his apartment later that day and arrived there at approximately 8 p.m. They talked and had several drinks together. At about 10:30 p.m. he told her that he had to leave the apartment to take care of some business but she could remain. Upon his return, he told her that they were going to go down to Rush Street to meet a friend for dinner. They left in his car, drove around for approximately 1 1/2 hours and then returned to his apartment.
Defendant stated that Hoban went upstairs and she went to the bathroom on the top floor. When she came out, she observed him sitting on his bed naked, and he asked her to sit next to him. As they were sitting on the bed, he began struggling with her, ripping some of her clothing. After a few minutes, he rolled over and fell asleep. She got up and went downstairs, where she telephoned a friend and then returned upstairs to see if Hoban was still asleep. She decided to remove certain property from his apartment and to light fires with papers on the living room carpet and in the basement, as she wanted to get back at him, but did not want to hurt him physically. She testified that she lit the fires on the carpets as she knew that they would not burn. She left his residence in his car and returned to her apartment. She solicited her boyfriend's help in carrying the property she had taken from Hoban's apartment into her apartment.
She further testified that she talked with Investigator John Eshoo in regard to the death of Peter Hoban on June 5 and initially did not tell him the truth about the homicide. Later at the police station, she gave the officers the same statement concerning the incident as she did, in writing, to the State's Attorney's Office.
On cross-examination, defendant testified that Hoban was drunk; that she considered driving with him to be dangerous and when they returned to his apartment she had to help him upstairs. She also indicated that when she lit the pieces of paper with a match, she was aware of what she was doing but thought that all of the carpeting in the house was fire retardant.
At the jury instruction conference, defense counsel requested that the court instruct the jury on the issues and elements of criminal damage to property, but the court declined the request. This appeal follows.
Defendant argues that she was deprived of a fair trial when the court refused to instruct the jury on the definition and elements of criminal damage to property. It is her contention that she did not possess the requisite mental state for aggravated arson, as evidenced by her testimony, thus necessitating that the court instruct the jury on criminal damage to property in addition to the instructions on murder, felony-murder and aggravated arson. We disagree.
• 1 "It is a well-settled rule that if there is any 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. Willis (1977), 50 Ill. App.3d 487, 490, 365 N.E.2d ...