Kenneth Wadas, Honorable Judge Presiding.
Appeal from the Circuit Court of Cook County.
PRESIDING JUSTICE ZWICK delivered the opinion of the court:
This is an appeal from a consolidated bench trial. Defendant, Timothy Fitzgerald, was charged with two counts of home invasion and one count of criminal damage to property in appeal No. 1-98-3932. He was charged with one count of attempted murder and three counts of aggravated battery in appeal No. 1-98-4531.
The record in No. 1-98-3932 shows that defendant, who was in a drunken and jealous rage at 2 a.m., broke through a door at the home of Gail Cari, his former girlfriend. Defendant threw Cari to the ground, repeatedly kicked her, and struck her with various objects that were around the apartment. He also struck her guest, Michael Druzinski. Cari was treated at the hospital for contusions to her body. Druzinski had redness on his ear and cheek, but he was not treated.
The court acquitted defendant of home invasion. Although defendant had not been charged with aggravated battery, the court convicted him of that crime as a lesser included offense to home invasion. The court also convicted defendant of felony criminal damage to property.
The record in No. 1-98-4531 shows that defendant approached Steven Schlegel as Schlegel was leaving Cari's apartment at 12:30 a.m., a few days after the attack on Cari and Druzinski. As Schlegel was getting into his car, defendant shoved Schlegel to the ground and struck him with what a witness described as the wooden handle of a hammer. Schlegel subsequently assisted police in locating defendant and, approximately an hour later, went to the hospital and received treatment to the back of his head. The court acquitted defendant of attempted murder and one count of aggravated battery. The court convicted defendant of two counts of aggravated battery.
The trial court sentenced defendant to two year's felony probation for the convictions in 1-98-3932 to run concurrently with two year's felony probation for the convictions in No. 1-98-4531. The court also ordered defendant to pay $2000 restitution to Cari and $1650 in restitution to Schlegel.
Initially, defendant argues that he cannot be convicted of aggravated battery in appeal No. 1-98-3932 because he was never charged with aggravated battery, and aggravated battery is not a lesser included offense of home invasion. A person cannot be convicted of an offense with which he has not been charged unless it is a lesser included offense. People v. Jones, 149 Ill. 2d 288, 292, 595 N.E.2d 1071(1992).
There has been general agreement among the appellate decisions that aggravated battery is not a lesser included offense of home invasion. See People v. Tate, 106 Ill. App. 3d 774, 778, 436 N.E.2d 272 (1982); People v. Rathgeb, 113 Ill. App. 3d 943, 949, 447 N.E.2d 1351 (1983); People v. Pettit, 114 Ill. App. 3d 876, 884, 449 N.E.2d 1044 (1983), aff'd 101 Ill. 2d 309, 461 N.E.2d 991 (1984); People v. Yarborough, 156 Ill. App. 3d 643, 646, 509 N.E.2d 747 (1987); People v. Doe, 175 Ill. App. 3d 371, 380, 529 N.E. 2d 980 (1988); People v. Donnelly, 226 Ill. App. 3d 771, 777, 589 N.E.2d 975 (1992). The State, however, argues that all of these decisions were decided before the supreme court determined that the "charging instrument" approach should be used to determine whether one crime is a lesser included offense of another. Under the charging instrument approach, an offense is deemed to be a lesser included offense if it is fairly described by the charging instrument used by the State to initiate the defendant's prosecution. People v. Novak, 163 Ill. 2d 93, 643 N.E.2d 762 (1994). The lesser offense must have a "broad foundation" in the instrument charging the greater offense, or at least set out the "main outline" of the offense. Novak, 163 Ill. 2d at 107, quoting People v. Bryant, 113 Ill. 2d 497, 505, 499 N.E.2d 413 (1986).
In this case, the charging instruments alleging home invasion states that the defendant "injured" Gail Cari and Michael Druzinsky and that he "kicked" Cari and "punched" Druzinsky. The elements of the subsection of the home invasion statute which the State sought to charge required the State to prove that defendant: (1) knowingly entering the dwelling place of a victim with knowledge that the dwelling was occupied, and (2) caused "any injury" to a victim. See 720 ILCS 5/12-11(a)(2)(West 1996). In contrast, the charge of aggravated battery based upon injury to a victim requires the State to establish that the victim suffered "great bodily harm." 720 ILCS 5/12-4(a)(West 1996). Thus, the infliction of great bodily harm is an essential element of the offense of aggravated battery. People v. Figures, 216 Ill. App. 3d 398, 401, 576 N.E.2d 1089 (1991).
Although the State alleged that the defendant caused Gail Cari injury in his attack on her, it is clear that the State did not set out in the indictment -- in any way -- that defendant caused Cari "great bodily harm." Thus, the main outline or broad foundation of the home invasion charges filed by the State are insufficient to support the conviction. Allegations that the defendant "punched" and "kicked" Cari are simply insufficient to put the defendant on notice that his trial could turn upon the State's ability to prove the essential element of "great bodily harm." Accordingly, we find that aggravated battery based upon great bodily harm is not a lesser included offense of home invasion as that crime has been charged. Therefore, defendant's conviction in appeal No. 1-98-3932 must be reversed.
In light of our determination that defendant's conviction for aggravated battery in appeal No. 1-98-3932 must be set aside, we need not address his claim that the evidence is insufficient to prove aggravated battery.
We turn to defendant's conviction in appeal No. 1-98-3932 for criminal damage to property. Defendant claims that the State failed to prove that he caused more than $300 to Cari's property, an essential element of the felony criminal damage to property charge. 720 ILCS 5/21-1(2)(West 1996). (In cases where the defendant causes less than $300 in damage, the charge is a Class A misdemeanor. 720 ILCS 5/21-1(2)(West 1996).) Because the proper measure of damage is the cost required to repair the damage, defendant argues that the proof Cari spent $876 to replace the broken french doors was insufficient.
We reject defendant's claim as the evidence is sufficient to support the felony charge. When a defendant challenges the sufficiency of the evidence on appeal, the relevant question is whether, after reviewing all the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267 (1985). Here, the trial court saw pictures of the door and its frame which were cracked by defendant's conduct at the top, bottom and sides. The trial court also heard testimony that defendant smashed one of the double-paned glass plates in the door and broke flower pots and smashed a computer desk inside Cari's home. It was undisputed that Cari replaced the desk at a cost of $232.35. (Although defendant testified that he had originally purchased the desk, the facts suggest that Cari had acquired an ownership ...