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People v. Grass

OPINION FILED AUGUST 8, 1984.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JOSEPH A. GRASS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of St. Clair County; the Hon. Patrick J. Fleming, Judge, presiding.

JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Defendant, Joseph A. Grass, was adjudged guilty after a jury trial in the circuit court of St. Clair County of criminal damage to property exceeding $300, a felony, in violation of section 21-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 21-1(a)). He contends that the trial court erred in failing to instruct the jury on the lesser included offense of misdemeanor criminal damage to property.

Defendant and his friend, Timothy Joellenbeck, were involved in an altercation with Michael Huber, Jim Brede and Donald Fix. According to the State's evidence, Huber's Ford Bronco suffered $419.04 damage. Defendant was alleged to have knowingly caused this damage by breaking out a side window, throwing a hammer into the windshield, throwing a beer can at the windshield and bending the radio antenna.

Brede and Huber were sitting in Brede's car at the McDonald's restaurant parking lot. They had returned to McDonald's to get Huber's Bronco, which had been parked there earlier. Joellenbeck's Ford Maverick came into the lot and screeched to a halt within a foot of the front of Brede's car. Joellenbeck approached Brede's car and asked for the whereabouts of "Mike White." Huber testified that he had never seen Joellenbeck or Grass before and that he had no idea what Joellenbeck was talking about. Joellenbeck testified that he was looking for some people that had beat him up at the same location about 15 minutes before. Joellenbeck walked over to the passenger's side and struck Huber repeatedly in the face because "he wouldn't shut up." Grass then got out of the Maverick wielding a hammer, and Fix arrived at the scene in another vehicle. Fix testified that after being threatened by Grass he returned to his vehicle and left to call the police.

Meanwhile, according to Huber, Grass stood in front of Brede's car with the hammer and Joellenbeck remained on the passenger's side. Brede and Huber got out on the driver's side and walked away from the car. Huber entered his Bronco and pulled away. Huber testified that as he was leaving, defendant turned around and smashed the driver's side window with the hammer. Huber drove around in a semicircle and headed back toward the scene because "I didn't want to leave [Brede] there alone." He stopped the Bronco and defendant threw the hammer, smashing the windshield and denting the hood. Approximately 15 seconds later, according to Huber, defendant threw a beer can at the windshield, causing Huber to become startled, and his foot "slipped off the clutch." The Bronco lunged forward and smashed into Joellenbeck's Maverick from the rear. Huber testified that he did not intend to ram the Maverick.

Joellenbeck's testimony was materially different in several respects. He testified that after Huber turned around, "[h]e came heading straight for the corner of my car * * *." Joellenbeck and Grass, he testified, were standing between the Maverick and the approaching Bronco. To avoid being hit, he jumped right and Grass jumped left while hitting the passenger's side window. Huber then backed up and headed the Bronco directly at Grass. Grass threw the beer can first, then threw the hammer in an effort to stop the Bronco's advance. He and Grass returned to the Maverick and drove off without further incident.

The State's witness presented the only evidence of damages. An expert in the auto body business testified that the cost of repair totaled $419.04 for materials and labor, itemized as $211 to install a new windshield, $54.85 for the side window, $33.90 for the antenna, and the remainder to repair the hood dents, painting and sales tax. Cost of repairs is an accurate indication of the damage suffered and is therefore a proper method by which to determine the damage for which a defendant is criminally responsible. People v. Carraro (1979), 77 Ill.2d 75, 80, 394 N.E.2d 1194, 1196.

At the instructions conference, defendant argued that some evidence established that he acted in self-defense. His tendered instruction, Illinois Pattern Jury Instruction (IPI), Criminal, No. 24-25.06 (2d ed. 1981), on self-defense, was given. He also argued that if the jury were to find that some of the force used was justified, the monetary amount of damage for which he was criminally responsible would be reduced. Therefore, he concluded he was entitled to an instruction on the lesser included offense of criminal damage to property under $300. This instruction was refused. Defendant repeats this argument here.

The jury was instructed in pertinent part as follows:

"To sustain the charge of criminal damage to property over $300.00, the State must prove the following propositions:

Third: That the damage to the vehicle exceeds $300.00. * * *."

The jury was given two verdict forms supplied by the State: guilty or not guilty of criminal damage to property over $300. Defendant's lesser offense instruction and two verdict forms were refused. His tendered verdict forms provided: guilty or not guilty of criminal damage to property under $300. His refused instruction reads in pertinent part as follows:

"To sustain the charge of criminal damage to property, the State must prove the ...


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