APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
531 N.E.2d 1139, 177 Ill. App. 3d 170, 126 Ill. Dec. 512 1988.IL.1867
Appeal from the Circuit Court of Sangamon County; the Hon. C. Joseph Cavanagh, Judge, presiding.
JUSTICE LUND delivered the order of the court. McCULLOUGH, P.J., and GREEN, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
Defendant Phillip C. Talley was convicted in the circuit court of Sangamon County of two counts of armed robbery and one count of residential burglary, in violation of sections 18-2(a) and 19-3, respectively, of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1987, ch. 38, pars. 18-2(a), 19-3). Defendant appeals contending he was denied his rights to a fair trial because the trial court failed to instruct as to a mental state when giving the elements instruction for armed robbery.
Armed robbery is defined, in pertinent part, as follows:
"A person commits armed robbery when he or she violates Section 18-1 while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon." (Ill. Rev. Stat. 1987, ch. 38, par. 18-2.)
Section 18 -- 1 provides:
"A person is not guilty of an offense, other than an offense which involves absolute liability, unless, with respect to each element described by the statute defining the offense, he acts while having one of the mental states described in Sections 4-4 through 4-7." (Ill. Rev. Stat. 1987, ch. 38, par. 4-3(a).)
"A person may be guilty of an offense without having, as to each element thereof, one of the mental states described in Section 4-4 through 4- 7 if the offense is a misdemeanor which is not punishable by incarceration or by a fine exceeding $500, or the statute defining the offense clearly indicates a legislative purpose to impose absolute liability for the conduct described." Ill. Rev. Stat. 1987, ch. 38, par. 4-9.
Defendant argues since armed robbery is not a crime of absolute liability, a mental state is incorporated in the definition of armed robbery by section 4 -- 3(a), and failure to instruct as to the incorporated mental state is reversible error. The issue instruction in this case relating to armed robbery followed the Illinois Pattern Jury Instructions, Criminal, No. 14.02 (2d ed. 1981), which does not include reference to a mental state.
Defendant's argument has surfaced in cases before this court since the First District decision in People v. Grant (1981), 101 Ill. App. 3d 43, 427 N.E.2d 810. Grant was followed by People v. Ogunsola (1981), 87 Ill. 2d 216, 429 N.E.2d 861. Both cases stand for the proposition that error cannot be waived by failure to object or failure to submit an instruction when an essential element of a crime is omitted from the issue instruction.
Grant involved assault (Ill. Rev. Stat. 1987, ch. 38, par. 12-1), criminal trespass and criminal trespass to land (Ill. Rev. Stat. 1987, ch. 38, par. 21-1), neither of the statutes expressly including a mental state. Section 4-3(a) was credited with providing the required mental state, and it was found necessary to instruct as to that mental state. Assault is a specific intent crime. It is triggered when one engages in conduct placing another in apprehension of receiving a battery. Battery specifically calls for intentional or knowing conduct by the offender. (Ill. Rev. Stat. 1987, ch. 38, par. 12-3.) One who accidentally places another in apprehension does not intend a battery and could not commit the criminal act of assault. The intent is a necessary element. The offense is a specific intent crime in contrast to a general intent crime. Criminal trespass to land (Ill. Rev. Stat. 1987, ch. 38, par. 21-1) requires an entry upon land with notice that the entry is forbidden. While the word "knowledge" is not specifically used, the mental ...