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September 25, 1996


Appeal from Circuit Court of McLean County. No. 94CF60. Honorable William T. Caisley, Judge Presiding.

As Corrected October 18, 1996. Released for Publication October 25, 1996.

Honorable James A. Knecht, J., Honorable Robert J. Steigmann, J. - Concur, Honorable Robert W. Cook, P.j. - Dissent. Justice Knecht delivered the opinion of the court.

The opinion of the court was delivered by: Knecht

The Honorable Justice KNECHT delivered the opinion of the court:

After a jury trial, defendant Antonio Hamilton was found guilty of residential burglary (720 ILCS 5/19-3 (West 1992)), and was sentenced to 18 years in prison. He appeals, arguing (1) the trial court committed reversible error in failing to submit to the jury his included offense instruction of theft; (2) the State failed to prove the offense beyond a reasonable doubt; and (3) the trial court failed to consider two applicable statutory mitigating factors in sentencing. We affirm.


Defendant was charged in July 1994 with residential burglary. The bill of indictment charged he "knowingly without authority entered the dwelling place of Bob and Rita Williams with the intent to commit therein a theft," in violation of section 19-3 of the Criminal Code of 1961 (720 ILCS 5/19-3 (West 1992)).

On the morning of January 29, 1994, Robert Williams was in his kitchen, when his six-year-old son came to him and said that someone was at the door to see him. When Robert went to the front door, he saw someone exiting the bedroom where his wife was sleeping. He identified defendant as the intruder at trial. He also testified he previously picked him out of a photo lineup. Robert testified when defendant saw him he immediately said "[']she owes me money['] or something like that." Robert took hold of him and started pushing him toward the door, but before he was able to eject him he observed his wife's purse was hidden beneath the person's jacket. He tried to grab the purse and scuffled with defendant. Defendant pulled away and escaped with the purse, but left his jacket in Robert's hands.

Robert yelled for his wife to call the police. Rita Williams woke up, heard her husband yelling, and saw him pushing someone out of the house. After calling the police, she saw the intruder in the backyard and told her husband. Defendant then came back to the front door, placed the purse on the front porch, and said he wanted his jacket. Robert warned defendant the police were coming, told him to step away from the porch, took the purse, and threw the jacket (and a small bag containing a substance Robert assumed to be marijuana, which had fallen out of the jacket during the scuffle) outside. Defendant walked to a parked car and left.

Shortly after retrieving the purse, Robert and Rita discovered Rita's wallet was not in the purse where she had left it the night before. The wallet was never recovered.

Detective Richard Barkes of the Bloomington police department was assigned to investigate the incident. After Robert identified defendant in a photo lineup, Barkes arrested defendant. After waiving his Miranda rights, defendant admitted going to the Williams residence and taking the purse out of the bedroom. He gave a typewritten statement admitting he had taken the purse and stating he dropped the wallet into a mailbox after returning the purse. The statement was admitted into evidence.

At the jury instruction conference, defendant tendered an included offense instruction on theft. The trial judge initially agreed to give the instruction, believing "the jury could find [defendant] guilty of theft and not guilty of residential burglary." However, before the end of the conference the court reversed itself when the State presented authority for the proposition theft was not an included offense of burglary. The court refused to tender the theft instruction. The jury convicted defendant of residential burglary. Defendant was sentenced and this appeal followed.


A. Included Offense Instruction

1. Merits

A defendant generally may not be convicted of an offense with which he has not been charged. People v. Landwer, 166 Ill. 2d 475, 485, 655 N.E.2d 848, 854, 211 Ill. Dec. 465 (1995). In some cases a defendant is entitled to have the jury instructed concerning less serious offenses which are included in the charged offense. Landwer, 166 Ill. 2d at 485-86, 655 N.E.2d at 854. This practice provides an important option to a jury which, believing a defendant is guilty of something, but uncertain whether the charged greater offense has been proved, might otherwise convict rather than acquit. Landwer, 166 Ill. 2d at 486, 655 N.E.2d at 854. Whether an instruction on a ...

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