Appeal from the Appellate Court for the Third District; heard
in that court on appeal from the Circuit Court of Peoria County,
the Hon. Donald C. Courson, Judge, presiding.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Following a jury trial in the circuit court of Peoria County, the defendant, Donald L. Bryant, was convicted of attempted burglary and sentenced to six years' imprisonment, an extended term. The appellate court granted the defendant a new trial, finding error in the way the jury had been instructed (131 Ill. App.3d 1011), and we allowed the State's petition for leave to appeal (103 Ill.2d R. 315(a)).
The offense charged here occurred on August 3, 1983, at a service station in Peoria. David McGraw testified that at about 3 o'clock that morning, as he was sitting on the porch of his father's home, he heard the sound of glass breaking. He inspected the area of his own building and found nothing; several minutes later McGraw heard the noise again, and this time he thought it came from a service station across the street. McGraw walked over to the station, and through the front windows he saw what appeared to be two persons behind the building. McGraw's brother called the police.
Officer Gerald Ulrich of the Peoria police department testified that he was sent to the service station at about 3 a.m. Ulrich went to the rear of the lot and saw the defendant running away from the building. The distance between the back of the station and the fence around an adjacent yard was about 20 feet, and the defendant was midway between the building and the fence, at the end of the building. Ulrich called for the defendant to stop, but the defendant continued running, jumping the fence. Ulrich shouted a second command, and the defendant then stopped and returned to the service station, where he was arrested. The defendant was not wearing a shirt at the time, and Ulrich found one next to the fence in the neighbor's yard. The shirt was torn, and it had been knotted.
The service station's owner, Fred Strubbe, also testified at trial. Strubbe went to his station at about 4 o'clock that morning, and he found that a chain-link fence covering the rear windows had been pried up and some of the panes of glass had been broken. Strubbe noticed also that several tires had been stacked below the windows, and that inside the building a display of thermostat gaskets had been knocked from its usual position over the windows. Nothing was missing from the building, however, and nothing else had been disturbed.
At trial the State also presented the results of tests on physical evidence. Latent fabric impressions were detected on pieces of glass taken from the area under the rear windows at the service station, and they were found to be consistent with the impression that would be produced by the shirt Ulrich discovered in the neighbor's yard. Also, shards of glass in the defendant's shoes were found to have the same refractive index as the window glass at the service station.
The defendant did not present any evidence. Defense counsel tendered instructions on criminal damage to property as a lesser offense included in the charge of attempted burglary, and counsel also asked that the jury be given the second paragraph of Illinois Pattern Jury Instruction (IPI), Criminal, No. 3.02 (2d ed. 1981), which expresses the evidentiary burden when all the evidence of guilt is circumstantial. The trial judge refused these instructions, and the defendant was convicted of attempted burglary. With one justice dissenting, the appellate court reversed the conviction and granted the defendant a new trial, finding error in the refusal of the tendered instructions.
The State first argues that criminal damage to property is not an included offense of the crime charged here, attempted burglary. The State believes that the appellate court incorrectly based its decision on the evidence adduced at trial and ignored the language of the indictment, which did not contain any allegation of a mental state necessary to sustain a conviction for criminal damage to property. The effect here, according to the State, is to deprive the prosecutor of his discretion to decide what charges to lodge against a defendant.
The principle is well established that a defendant may be entitled to have the jury instructed on a less serious offense that is included in the one he is charged with. (Beck v. Alabama (1980), 447 U.S. 625, 636-37, 65 L.Ed.2d 392, 401-02, 100 S.Ct. 2382, 2388-89.) The reason for this is clear: an instruction on a lesser offense provides 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. Keeble v. United States (1973), 412 U.S. 205, 212-13, 36 L.Ed.2d 844, 850, 93 S.Ct. 1993, 1997-98.
The grounds for determining whether a particular offense is included in another are not always clear. Section 2-9 of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 2-9) defines the term "included offense" in the following manner:
"`Included offense' means an offense which
(a) Is 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, or
(b) Consists of an attempt to commit the offense charged or an offense included therein."
As this court has recognized, the definitions provided by section 2-9 do not explain "which of the following is determinative in deciding if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial." (People v. Mays (1982), 91 Ill.2d 251, 255.) In People v. Cramer (1981), 85 Ill.2d 92, 98, the court looked at the offense as it was charged and declined to express a view on "whether the evidence as adduced at trial could support a defendant's tendered instruction where the terms of the indictment could not." In a later case, Mays, the defendant proposed the adoption of the inherent-relationship test, which looks to the proof presented at trial but ...