Appeal from the Circuit Court of Du Page County; the Hon.
Anthony M. Peccarelli, Judge, presiding.
PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
In a jury trial, the defendant, Guy McCreary, was convicted of residential burglary and theft of property of a value in excess of $300. He was sentenced to concurrent terms of eight years' imprisonment for residential burglary and three years' imprisonment for felony theft. He appeals, contending that the offenses of burglary and theft involve the same physical act, that he was not proved guilty of residential burglary beyond a reasonable doubt, that the jury verdict was insufficient to convict him of felony theft, and that various rulings on the admission of evidence denied him a fair trial.
The charges arose from the taking of approximately $330 from a container located in the home where defendant's sister, Kelly McCreary, and her fiance, Wade Young, lived.
• 1 The record fully supports the conviction of the offense of residential burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a).) Defendant argues principally that he did not go into the house when Robert J. Browne, co-defendant, separately tried, broke into the house and took the coins; that he was not shown to be accountable for Browne's action in breaking in. The record is otherwise. The defendant was in the residence earlier in the day to visit his sister and saw Young counting the money which he kept in a water jug. There was testimony that defendant was aware that his sister and her fiance were to drive into Chicago later in the day to order a wedding cake. There was some conversation that he was to accompany them as they did not know the way. They drove into Chicago without him. In the afternoon he drove Browne to the house and himself knocked on the front door. According to defendant's statement, Browne told him to wait for him in the car. Defendant was "not sure" whether he went into the house himself. Entry was gained by Browne by breaking a rear window. Defendant was in the car when Browne came out with the money in the water container. Defendant accompanied Browne to a grocery store and himself secured the paper bags. He then drove the car with Browne as a passenger to a bank after first, with Browne, dumping the money into the bags. The defendant went into the bank and secured paper money for the coins. Later in the car Browne either gave him part of the money or defendant took it before giving it to Browne. Defendant threw the jug which had contained the coins into a dumpster.
Defense counsel sought to advance the theory that the State had failed to prove that defendant was not authorized to go into the house, and also that there was not proof beyond a reasonable doubt that defendant had the intent to commit a felony or a theft. (See People v. Weaver (1968), 41 Ill.2d 434, 439.) Based on his sister's testimony to the effect that defendant "was supposed to come back to the house that day," he argues that his presence was thereby explained and that his acts following the taking were not proof of burglary. We cannot agree. First, the jury could infer that the sister's testimony was in reference to the fact that defendant was to return to drive them into Chicago at an earlier time. In addition, Young testified that defendant did not have authority and defendant in his statement admitted this. Defendant's subsequent acts were also circumstantial evidence of his participation in the entire scheme. The jury could properly infer from the evidence that defendant was an accomplice to the burglary. See People v. Davis (1977), 54 Ill. App.3d 517, 524.
• 2 The bank teller testified that the person who said he was Guy McCreary brought in $298.63 in coins. Young testified that there was approximately $330 in the jug, and this included "thirty some" dollars in bills. He said that in the morning when he was counting the money he gave $4 to defendant. The jury was instructed on both the definition of misdemeanor theft (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(e)(1)) and felony theft (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(e)(3)). Under the issues instructions the jury was informed that proof of value of over $300 was required to find the defendant guilty of "theft." However the verdict furnished to the jury and which they returned found the defendant "[g]uilty of the offense of Theft." A separate verdict of "[n]ot guilty of the offense of theft under $300" was submitted to the jury and returned.
The defendant argues that the two verdicts were conflicting and ambiguous so that the failure of the jury to specify whether the defendant was found guilty of theft of property with a value greater than $300 (particularly in light of the fact that the value of the property was contested) was insufficient to prove guilt of the felony theft beyond a reasonable doubt.
Defendant's counsel failed to object to the verdict forms which were submitted by the State. The rule of waiver does not apply where instructions are so contradictory that the jury cannot perform its constitutional function. (See People v. Jenkins (1977), 69 Ill.2d 61, 66-67.) In Jenkins a mandatory instruction as to the offense of attempted murder was submitted by the State. There was no reference to an essential element of the case, that the defendant was not justified in using the force employed. Another instruction proffered by the defendant and given, did however correctly state that element. The court held that two mandatory instructions containing such a substantial conflict confused the jury and amounted to reversible error. However the failure to give instructions to which a defendant is entitled but does not request will not rise to plain error when the total instructions to the jury together with arguments of counsel apprise them of the missing element. (See People v. Huckstead (1982), 91 Ill.2d 536, 544-45.) In People v. Tannenbaum (1980), 82 Ill.2d 177, the jury was not instructed on the element of felony value nor did the verdict forms reflect that item; and defense counsel did not object nor raise the issue post-trial. The supreme court held that, particularly when value is disputed, the jury should be instructed as to the amount required to prove felony theft. However, since the record clearly established value over the required amount, it was held that no prejudice occurred and that the waiver rule would not be applied. 82 Ill.2d 177, 182.
The omission of value on the felony verdict form here would not appear to be a Jenkins class of error. The issues instruction states that proof over $300 in value is necessary to find defendant guilty of theft; and since the jury found the defendant not guilty of theft under $300 it does not appear to have been misled or confused by the failure to include the $300 figure in the theft verdict. It was obviously intended that the verdict was for felony theft, and it appears that the jury while deliberating sent a note to the judge which was apparently not answered in which they asked if they needed to find the defendant guilty of theft under $300 if they decided his guilt as to "theft."
The theft verdicts also were not subject to defendant's assertion of their inconsistence. The only issue is whether the verdict of guilt is supported by the evidence and neither legal nor logical consistency is required in assessing guilty and not guilty verdicts. (People v. Lavas (1983), 113 Ill. App.3d 196, 198.) We conclude that the form on which the guilty verdict was returned does not rise to the level of plain error under all the circumstances so as to justify an exception to the rule of waiver.
• 3 Defendant's argument that the convictions for residential burglary and for theft were based on the same physical act contrary to People v. King (1977), 66 Ill.2d 551, is based on the premise that defendant was not accountable for the entry into the house and was only involved to the extent he went to the bank with the co-defendant and converted the coins into currency. As we have previously indicated, the jury could properly and did find otherwise. Theft is not an included offense of burglary, and each has elements not included in the others so ...