Appeal from the Circuit Court of Lake County, No. 94--CF--1875
The opinion of the court was delivered by: Honorable Charles F. Scott, Judge, Presiding.
JUSTICE RATHJE delivered the opinion of the court:
Following a jury trial, the defendant, Douglas Monroe, was convicted of burglary (720 ILCS 5/19--1(a) (West 1994)). The court sentenced him to 11 years' imprisonment. On appeal, this court affirmed his conviction, rejecting his argument that the trial court should have instructed the jury on theft because it is a lesser included offense of burglary.
Following the filing of the opinion in this case, our supreme court issued its opinion in People v. Hamilton, No. 82148 (Ill. December 18, 1997). In Hamilton, our supreme court reversed the decision of the appellate court and held that the indictment in that case sufficiently identified theft as a lesser included offense of residential burglary under the charging instrument approach. Hamilton, slip op. at 4; see People v. Novak, 163 Ill. 2d 93 (1994). Because our decision in this case relied upon the appellate decision in Hamilton, 283 Ill. App. 3d 854 (1996), we have ordered the original opinion in this case withdrawn and will consider this case anew based upon the supreme court's decision in Hamilton.
The charge against the defendant arose out of a break-in at the North Shore Academy in Highland Park. The evidence at trial showed that the defendant and three other people, Russell Lezak, Josh Mirochnick, and Tim VanDerlinde, used a tire iron to break into the school and then broke into a pop machine inside the school, stealing the money from the machine's coin box. A mail scale was also stolen.
The participants in the incident gave varying accounts of what happened. Lezak testified that they went to the school to "mess around," which meant to walk around or "do whatever." The defendant used a tire iron to pry open the greenhouse door. According to Lezak, the defendant also used the tire iron to break open the pop machine in the teachers' lounge. The defendant placed the money from the pop machine in Lezak's pocket.
VanDerlinde testified that their reason for breaking into the school was to steal a cash box for donations for handicapped children. After breaking in, they all looked for valuables to steal. According to VanDerlinde, Lezak and he broke into the pop machine, and the defendant and Mirochnick were not there when they did it.
Mirochnick testified that the four of them intended to break into the school to steal a cash box. The defendant and Lezak used a tire iron to pry open the greenhouse door. When they got inside, the defendant started ransacking desks. Mirochnick saw the defendant take a scale. Lezak and VanDerlinde took money from the pop machine, but that was after Mirochnick and the defendant had gone back to the car.
At the jury instructions conference, the defendant tendered instructions on criminal trespass and theft. The trial court denied those instructions, finding that criminal trespass and theft were not lesser included offenses of burglary.
On appeal, the defendant contends that he was entitled to a jury instruction on theft because it is a lesser included offense of burglary.
When a defendant is charged with a single offense, he can be convicted of an offense that was not charged only if it is a lesser included offense of the one charged. People v. Faircloth, 234 Ill. App. 3d 386, 389 (1992). An included offense is defined by statute as follows:
" `Included offense' means an offense which (a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, or
(b) Consists of an attempt to commit the offense charged or an offense included therein." 720 ILCS 5/2--9 (West 1994). Our supreme court has determined that the "charging instrument" approach is to be used to identify lesser included offenses. Novak, 163 Ill. 2d 93. The charging instrument must set out the "main outline" of the offense, or the lesser ...