APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
503 N.E.2d 1124, 151 Ill. App. 3d 1000, 105 Ill. Dec. 118 1987.IL.81
Appeal from the Circuit Court of Champaign County; the Hon. Harold L. Jensen, Judge, presiding.
PRESIDING JUSTICE SPITZ delivered the opinion of the court. McCULLOUGH and LUND, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SPITZ
The following evidence was adduced at trial. Officer James Spires was dispatched to investigate a burglary in progress at a Champaign parking lot in the early morning hours of December 23, 1985. Defendant, who matched the description of the prowler, was standing next to the car which was burglarized. He started to walk away but stopped when the officer called out his name. Another man was walking across the lot about 20 to 30 feet away. The passenger window of the car was shattered, and the radio knobs were missing. Officer Spires found several knobs and two buttons on the ground 15 feet from the car. Defendant's coat was missing two buttons, and the knobs appeared to fit the car radio. Two cassette tapes discovered in defendant's pocket were later identified as belonging to the automobile owner. Defendant denied breaking into the car. He claimed to have seen two other men in the area and to have found the tapes on the ground. Defendant testified that he picked them up for safekeeping and return to the owner.
Defense counsel tendered both paragraphs of the Illinois Pattern Jury Instruction, Criminal, No. 3.02 (2d ed. 1981) (hereinafter IPI Criminal 2d). The full instruction provides:
"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [(the) (a)] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence."
The committee comments state that the second paragraph of the instruction may be given when the proof of guilt is entirely circumstantial. The trial court refused to give the second paragraph of IPI Criminal 2d No. 3.02 stating that defendant's possession of the
Defendant's only argument on appeal is that the trial court's refusal of the circumstantial evidence instruction (IPI Criminal 2d No. 3.02) constituted reversible error.
In People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, the supreme court held that the second paragraph of the circumstantial-evidence instruction (IPI Criminal 2d No. 3.02) should no longer be used. In so holding, the supreme court stated:
"The use of an additional instruction setting out the reasonable theory of innocence' charge may, . . ., confuse the jury. The language in the reasonable theory' instruction suggests that a unique standard governs cases in which the evidence of guilt is entirely circumstantial, that the burden of proof in those cases is different in some fundamental respect.
. . . Thus, no purpose is served by preserving here, for this category of cases, an instruction that is at once obscure and misleading. We conclude, then, that the second paragraph of IPI Criminal No. 3.02 should no longer be used." People v. ...