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February 20, 1996


Appeal from the Circuit Court of Cook County. Honorable Paul J. Nealis, Judge Presiding.

Petition for Leave to Appeal Denied April 3, 1996.

Presiding Justice Hartman delivered the opinion of the court: Scariano and DiVITO, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Following a jury trial, defendant Thomas Chandler was charged with and convicted of burglary, on the basis of accountability, and was sentenced to four years in prison. Ill. Rev. Stat. 1991, ch. 38, par. 19-(1)(a) (now 720 ILCS 5/19-1(a) (West 1992)). On appeal, defendant contends the circuit court erred in refusing to instruct the jury on the charge of theft. Codefendant Alvin Austin, who pleaded guilty to charges relating to the burglary, did not participate in this appeal.

On December 13, 1991, several boxes of oranges, which had been placed in the storage room of a church in Chicago Heights, Illinois, were stolen.

Tommy Woodard, chairman of the church board of elders, testified that he paid $20 to three men, one of whom he identified as defendant, to help him unload boxes of oranges from a truck which arrived at the church on December 13, 1991. The following day, Woodard observed that the storage room had been broken into and that 15 boxes of the fruit were missing. Woodard noticed that a window to the room was broken and the glass and wood around the window were stained with blood. He told police that the church was locked when he left it and that he had not given anyone permission to remove the boxes of fruit. The next evening, at the police station, Woodard identified six boxes of fruit, which had blood on them.

Rami Haddad, the owner of a supermarket located across the street from the church, testified that he had purchased five boxes of oranges from defendant and codefendant and an unidentified third man, who came into his store at 7 p.m. on December 13, 1991. Codefendant was bleeding heavily from a cut on his hand and Haddad gave him a bandage. When police questioned Haddad the next day, he identified defendant and codefendant as the sellers of the fruit.

Several days later, defendant told Chicago Heights Detective Robert Pinnow that codefendant and he met in front of the supermarket on December 13, 1991. Defendant asked codefendant if he wanted to break into the church with him to get the oranges they had unloaded at the church earlier that day. Defendant, codefendant and a third man, known to defendant as Willy, went across the street to the church. Defendant walked over to a set of burglar gates which he raised so that codefendant and Willy could get under them. Codefendant then broke a church window with a rock and Willy boosted codefendant up through the window. Willy and defendant went to the front north door of the church. Codefendant opened the door and handed defendant two boxes of oranges. Willy and codefendant also carried boxes of oranges as they left the area. The three men walked behind the church and down an alley and hid the boxes in a field. Defendant and codefendant then went to the supermarket and negotiated the sale of the fruit to Haddad. For his efforts, defendant received $5. Defendant refused to sign a written statement. *fn1

Codefendant testified that he removed six or seven orange boxes from the church by himself, stored them in the alley, went to the supermarket and the owner agreed to buy some oranges. Defendant and another man accompanied codefendant back to the alley and helped him carry the boxes of oranges to the supermarket. Codefendant claimed that he had been beaten by police after he was arrested and was forced to sign a statement implicating defendant.

On cross-examination, codefendant admitted that he did not report the beating to the judge during the entry of his guilty plea nor did he ever divulge the beating to any judge despite being in a courtroom five times in the preceding six months. On rebuttal, Detective Pinnow denied that codefendant was physically abused or otherwise forced to give a statement. Photographs of codefendant, taken on the day he was in custody, were admitted into evidence and revealed that codefendant exhibited no signs of physical abuse.

At the instructions conference, accountability instructions relating to burglary were to be given, without objection. Defense counsel asked that the jurors be given an instruction for theft based on codefendant's testimony. The circuit court refused on the ground that defendant was not entitled to a lesser included instruction on theft because the alleged theft was committed after the burglary and, therefore, was a separate crime.

Defendant's sole argument on appeal is that the circuit court erred in refusing to give his proffered instruction on theft. Defendant acknowledges that he was not charged with theft and cannot be convicted of an uncharged offense unless it is considered a lesser included crime of the charged offense. The State argues that the theft committed here was separate from the burglary offense and, therefore, defendant is not entitled to a lesser included offense instruction. Both parties cite People v. Novak, 163 Ill. 2d 93, 643 N.E.2d 762, 205 Ill. Dec. 471 (1994) (Novak), to support their positions.

The supreme court in Novak described three approaches courts currently utilize to determine whether one crime is a lesser included offense of another, and concluded that the "charging instruments" approach best serves the purposes of the lesser included offense doctrine, and "results in a broader range of possible lesser included ...

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