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09/28/89 the People of the State of v. Leanard Payne

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LEANARD PAYNE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION 1989.IL.1529

545 N.E.2d 406, 189 Ill. App. 3d 463, 136 Ill. Dec. 882

September 28, 1989, filed

Appeal from the Circuit Court of Cook County; the Hon. Adam M. Stillo, Judge, presiding.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

After a jury trial, defendant, Leanard Payne, was found guilty of residential burglary with intent to commit a felony therein (Ill. Rev. Stat. 1985, ch. 38, par. 19-3) and sentenced to four years' imprisonment. He appeals from this judgment of the circuit court of Cook County. The following issues are raised on appeal: (1) whether the People proved that defendant was guilty of residential burglary beyond a reasonable doubt; (2) whether the trial court incorrectly instructed the jury on the mental state required in order to be convicted of residential burglary; and (3) whether the trial court improperly permitted the People to amend the charge immediately prior to trial.

We reverse and remand.

Originally defendant was charged by information with residential burglary with intent to commit theft. Prior to trial and before jury selection, the People moved to amend the charge to residential burglary with intent to commit a felony. The trial court overruled his objection and granted the motion to amend.

At trial Ernestine Jackson testified that shortly before midnight on March 3, 1985, she was sitting in the living room of her home, located at 139 South 11th Avenue, Maywood, Illinois, listening to the radio. The house had two front doors; one leading to an enclosed porch, and one, the main door, leading directly into the house. When she heard the outside door slam, she looked out of the window and saw a man, later identified as Leanard Payne, the defendant, throwing his body against the door. Ernestine called to the man, but he failed to respond. She ran to the kitchen and picked up a knife; however, she put it back. She could still hear the intruder pushing against the door. Thereafter, she ran upstairs to awaken her mother, Leona Jackson. Leona immediately attempted to telephone the police, but she had dialed the wrong number; upon her second attempt to call them, there was no dial tone. Ernestine stated that she then left the house through a bedroom window and ran six blocks to the police station.

Leona Jackson testified that she awakened her husband, Eugene Jackson, to tell him someone was trying to break into the house. Eugene loaded his gun and went to the top of the stairs. Defendant, after gaining entry, began screaming, "Daddy! Daddy!" Eugene told him he had the wrong house and that he was not his father. Eugene asked defendant to identify himself, but there was no response. The defense objected to this testimony on the basis that the contents of the oral statement by defendant had not been tendered to the defense through discovery. The objection was overruled. Eugene further testified that he told defendant to leave, but he continued to come up the stairwell. Eugene fired a warning shot and defendant disappeared.

When Ernestine returned home with a police officer, she noticed that the window on the door leading from the stairs to the porch was broken. She also noticed that the lock on the outside door was damaged and that the entire frame to the main door was hanging off its hinges. The jacket defendant wore was lying on the living room floor. Eugene went into the downstairs bathroom and found one shoe and a broken window.

Lieutenant Harold Jenkins testified that on March 4, 1985, at approximately midnight, he was called to a home located at 111 South 10th Avenue, in Maywood, which is directly across the alley from the Jackson home. Officer Barnett met Jenkins at that location. Barnett and Jenkins observed defendant standing in the doorway, between the screen and frame doors. He was forcefully knocking at the door. He was not wearing a jacket and one of his shoes was missing. Jenkins asked defendant why he was at the door, but there was no reply. He then ordered defendant to move away from the door. Again, defendant failed to respond in any manner. The resident of the house stated that she did not know the individual. Jenkins later established that the one shoe defendant was wearing matched the shoe found in the Jackson home.

After the People rested, defendant moved for a directed verdict, which was denied. Thereafter, the court held an instructions conference. The People tendered non-Illinois Pattern Jury Instructions (hereinafter IPI Criminal) for residential burglary. The court overruled defendant's objections to these instructions.

The jury found defendant guilty of residential burglary with intent to commit a felony therein. The court ordered a TASC (Treatment Alternatives to Street Crimes) evaluation to have defendant treated for drug addiction in lieu of sentencing. Defendant admitted his drug addiction and stated that he wanted help. However, the TASC representative found defendant ineligible for the program because defendant lacked recognition of the need for treatment. The trial court, therefore, found defendant ineligible for the program and sentenced him to four years' incarceration with a recommendation for psychiatric treatment.

Defendant's first contention on appeal is that the People failed to prove him guilty of residential burglary beyond a reasonable doubt. Defendant argues that the People failed to prove ...


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