NO. 4-94-0961
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
ANTONIO HAMILTON, ) No. 94CF60
Defendant-Appellant. )
) Honorable
) William T. Caisley,
) Judge Presiding.
_________________________________________________________________
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.
I. BACKGROUND
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 sec-
tion 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 po-
lice were coming, told him to step away from the porch, took the
purse, and threw the jacket (and a small bag containing a sub-
stance 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 Rob-
ert identified defendant in a photo lineup, Barkes arrested de-
fendant. 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 ini-
tially 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 propo-
sition 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.
II. ANALYSIS
A. Included Offense Instruction
1. Merits
A defendant may generally not be convicted of an of-
fense with which he has not been charged. People v. Landwer, 166
Ill. 2d 475, 485, 655 N.E.2d 848, 854 (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 defen-
dant 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 lesser offense should have been given
is a matter of law, on which we accord no deference to the trial
court's decision. Landwer, 166 Ill. 2d at 486, 655 N.E.2d at
854.
An "included" offense "[i]s 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." 720 ILCS 5/2-9(a) (West 1992). In
the past, Illinois has used three different approaches to deter-
mining whether a particular offense is an included offense of an-
other: (1) the "abstract elements" approach, (2) the "charging
instrument" approach, and (3) the "factual" or the "evidence" ap-
proach, also known as the "inherent relationship" approach. Peo-
ple v. Novak, 163 Ill. 2d 93, 106-107, 643 N.E.2d 762, 769-70
(1994). Recent supreme court case law has adopted the "charging
instrument" approach. Landwer, 166 Ill. 2d at 486, 655 N.E.2d at
854; Novak, 163 Ill. 2d at 112, 643 N.E.2d at 772.
This approach has two steps. First, the court must
look to the charging instrument and determine whether it sets out
the "'"main outline,"'" or at least a "'"broad foundation,"'" of
the lesser offense. Landwer, 166 Ill. 2d at 486, 655 N.E.2d at
854, quoting Novak, 163 Ill. 2d at 107, 643 N.E.2d at 770, quot-
ing People v. Bryant, 113 Ill. 2d 497, 505, 499 N.E.2d 413, 416
(1986). The lesser crime need not be "a theoretically or practi-
cally 'necessary' part of the greater crime" (Novak, 163 Ill. 2d
at 107, 643 N.E.2d at 769-70); rather, it suffices for the lesser
offense to be "described" by the instrument. Novak, 163 Ill. 2d
at 107, 643 N.E.2d at 770.
If the court finds the lesser offense meets this first
test, it then determines whether the evidence presented at trial
would allow a jury to find the defendant guilty of the lesser
offense but acquit on the greater. Landwer, 166 Ill. 2d at 486,
655 N.E.2d at 854, citing Novak, 163 Ill. 2d at 108, 643 N.E.2d
at 770. Instruction on the lesser offense is proper only if the
jury would have to find a disputed factual element to convict on
the greater offense which is not required to convict on the less-
er. Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770. This eviden-
tiary requirement is usually satisfied by the presentation of
conflicting testimony on the element that distinguishes the
greater from the lesser offense, but where the testimony is not
conflicting it may be satisfied if the conclusion as to the less-
er offense may be fairly inferred from the evidence presented.
Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770.
Theft was not an included offense of residential bur-
glary in this case. First, our supreme court has explicitly held
"[t]heft is not a lesser included offense of burglary." People
v. Schmidt, 126 Ill. 2d 179, 183-84, 533 N.E.2d 898, 900 (1988),
citing People v. Baker, 57 Ill. App. 3d 401, 405, 372 N.E.2d 438,
441 (1978). Second, the charging instrument here did not set out
the "main outline" or even a "broad foundation" of a theft. It
did not allege a theft had been committed. There are two ele-
ments to the crime of theft: a person must knowingly obtain con-
trol over the property of another (720 ILCS 5/16-1(a)(1) through
(a)(4) (West 1992)), and he must have the intent permanently to
deprive the owner of the use or benefit of the property (720 ILCS
5/16-1(a)(4)(A) through (a)(4)(C) (West 1992)). People v. Jones,
149 Ill. 2d 288, 296, 595 N.E.2d 1071, 1075 (1992).
The indictment here merely alleged the defendant "know-
ingly without authority entered the dwelling place of [Robert]
and Rita Williams with the intent to commit therein a theft."
There is no "outline" or "foundation" of theft in this language;
theft was not "described." See Novak, 163 Ill. 2d at 114, 643
N.E.2d at 773 (aggravated criminal sexual abuse not an included
offense of aggravated criminal sexual assault under indictment
charging defendant "'was seventeen years of age or over and com-
mitted an act of sexual penetration upon [the victim], to wit:
contact between [defendant]'s penis and [the victim's] mouth and
[the victim] was under thirteen years when the act of sexual
penetration was committed ***'"). Compare Landwer, 166 Ill. 2d
at 487, 655 N.E.2d at 854 (instruction on solicitation to commit
aggravated battery should have been given where indictment al-
leged defendant "'committed the offense of SOLICITATION OF MURDER
FOR HIRE, in that said defendant with the intent that the offense
of First Degree Murder, in violation of Illinois Revised Statutes
Chapter 38, Section 9-1(a)(1), be committed, procured another,
Robert Holguin, to commit that offense pursuant to an agreement
whereby Robert Holguin would kill [count I Aric Cherim; count II,
James Haliotis], and Charles Landwer would pay Robert Holguin
$600.00 United States Currency'"); Bryant, 113 Ill. 2d at 505,
499 N.E.2d at 416 (criminal damage to property was an included
offense where indictment alleged defendant "'did perform a sub-
stantial step toward the commission of [attempt (burglary)] in
that he pulled away a screen and broke a window of a building
known as Strubes 66, located at 700 Spring Street, Peoria, Illi-
nois, with the intent to enter said building without
authority'"); and Jones, 149 Ill. 2d at 290-91, 595 N.E.2d at
1072 (theft was an included offense of armed robbery where in-
formation alleged "'defendant, while armed with a dangerous weap-
on, a gun, took property of Lizzie [sic] Harden, being one 1984
green-gray 2-door Buick-Regal, and property of Barbara Clark,
being one beige ladies purse from the person of Barbara Clark, by
threatening the imminent use of force'").
People v. Dace, 104 Ill. 2d 96, 470 N.E.2d 993 (1984),
explicitly found error in the refusal to give a tendered included
offense instruction on theft when the information charged resi-
dential burglary with intent to commit a theft, and the evidence
would support a conviction for theft. Dace, 104 Ill. 2d at 102-
03, 470 N.E.2d at 996. However, we conclude Dace is no longer
good law. First, the Schmidt court's holding theft is not an in-
cluded offense of residential burglary (Schmidt, 126 Ill. 2d at
184, 533 N.E.2d at 900) calls it into question. Second, Dace did
not follow the analysis Landwer and Novak have established is
currently the law in Illinois. While Dace rejected the "inherent
relationship" test for included offenses (Dace, 104 Ill. 2d at
102, 470 N.E.2d at 996), it concluded there was error because the
information charged specific intent to commit theft and the evi-
dence would support a conviction. Dace, 104 Ill. 2d at 103, 470
N.E.2d at 996. The evidence adduced at trial is irrelevant to
the first step in included offense analysis under the "charging
instrument" approach, which is concerned solely with the charging
instrument. Novak, 163 Ill. 2d at 107, 643 N.E.2d at 769-70.
Only after the court has determined the charging instrument sets
out the lesser offense to the requisite degree does it weigh the
evidence adduced to determine whether it would support a convic-
tion on the lesser offense and an acquittal on the greater.
Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770. As Dace fused the
two steps, and in light of the Schmidt court's holding theft is
not an included offense of burglary (Schmidt, 126 Ill. 2d at 184,
533 N.E.2d at 900), we find Dace has been implicitly overruled.
Our holding conflicts with the conclusion recently
reached by the first district in People v. Buress, 274 Ill. App.
3d 164, 653 N.E.2d 841 (1995). The Buress court found theft was
an included offense of burglary under an information alleging de-
fendant "'without authority, knowingly entered into a building,
to wit: the building of Dollar Buster[,] Inc[.,] with the intent
to commit the offense of theft, therein, in violation of Chapter
38, section 19-1-A, of the Illinois Revised Statutes 1989, as
amended ***.'" Buress, 274 Ill. App. 3d at 165, 653 N.E.2d at
842.
The issue in Buress, as in this case, was whether theft
was an included offense of burglary. The appellate court found
it was. Buress, 274 Ill. App. 3d at 167, 653 N.E.2d at 843,
citing People v. Buress, 259 Ill. App. 3d 217, 227, 630 N.E.2d
1143, 1149 (1994). This conclusion appears to have been based on
Bryant and Dace. See Buress, 274 Ill. App. 3d at 166-67, 653
N.E.2d at 842-43. As noted, we have concluded Dace is no longer
good law, and we do not agree Bryant compels us to hold theft is
an included offense of residential burglary with the intent to
commit theft. Bryant held criminal damage to property was an in-
cluded offense under an indictment for attempt (burglary) which
alleged defendant "did perform a substantial step toward the com-
mission of [attempt (burglary)] in that he pulled away a screen
and broke a window of a building ***, with the intent to enter
said building without authority." Bryant, 113 Ill. 2d at 505,
499 N.E.2d at 416. While this instrument certainly sets out the
outline of criminal damage to property, it bears little resem-
blance to the indictment in this case, which only alleges entry
"with the intent to commit therein a theft." No facts relating
to the theft were alleged; a theft was not alleged. Accordingly,
defendant has failed to pass the first of the "charging instru-
ment" tests, and we need not-- indeed, we may not--consider the
evidence in the case.
2. Waiver
Defendant's argument is well thought out albeit in the
end unconvincing. We are able to resist his efforts to persuade,
because defendant waived his argument by failing to make it in
front of the trial court. As an appellate court, we have the
luxury of time to research and ponder delicate questions of law.
We have clerks to aid us. We also have the benefit of hindsight.
Not so the trial courts. Often they are obliged to rely upon the
authority cited by counsel in making their rulings, as in this
case. We will not impute error to a trial court for failure to
consider a theory not fairly presented. The trial court does not
have a duty to consider all possible theories; rather, its task
is to rule on the basis of the theories presented. Salcik v.
Tassone, 236 Ill. App. 3d 548, 555, 603 N.E.2d 793, 798 (1992).
In the context of evidentiary rulings it is firmly es-
tablished objections on specific grounds waive all other grounds.
People v. Barrios, 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419
(1986); Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157,
164, 642 N.E.2d 1348, 1354 (1994); M. Graham, Cleary & Graham's
Handbook of Illinois Evidence §103.2, at 8 (6th ed. 1994). A
proponent preserves for appellate consideration only those theo-
ries proposed at the time of trial. Salcik, 236 Ill. App. 3d at
555, 603 N.E.2d at 798; M. Graham, Cleary & Graham's Handbook of
Illinois Evidence §103.7, at 25 (6th ed. 1994).
The same rule applies in the context of jury instruc-
tions. The following is the sum total of defendant's argument in
support of the instruction at trial: "The way they define resi-
dential burglary, the only two issues are whether or not there
was an intent to commit a theft and whether or not there was
authority to enter, and if, and if authority to enter is an is-
sue, then an instruction concerning theft should be given."
Defendant cited no cases, no authority for its position. This
court, on the other hand, was presented with a 30-page brief, of
which over seven pages were devoted solely to argument on the
question of whether the instruction should have been given. It
is true, the trial court initially ruled it would give the in-
struction. But when the prosecutor cited Schmidt, defendant
presented no counterargument at all. He neither presented a
cogent theory nor cited any evidence to support giving the in-
struction. If defendant believed a particular instruction should
be given, he was obligated to explain his theory of the case to
the trial court and cite the evidence that supported the theory.
It is up to the parties to make their arguments, and they must
live with the arguments they make at trial.
Defendant's post-trial motion also failed to preserve
the error for review. Supreme Court Rule 366(b)(2)(iii) provides
a party may not raise on appeal any "point, ground, or relief"
not specified in a post-trial motion after a jury trial. 155
Ill. 2d R. 366(b)(2)(iii). With respect to the issue of jury
instructions, defendant's post-trial motion simply alleges the
court "erred in refusing the Defendant's jury instruction numbers
one (IPI 26.01Q), two (IPI 13.01), and three (IPI 13.02)." This
does not articulate defendant's position, and is insufficient to
preserve the issue for review. Thacker v. UNR Industries, Inc.,
151 Ill. 2d 343, 353, 603 N.E.2d 449, 454 (1992); Brown v.
Decatur Memorial Hospital, 83 Ill. 2d 344, 348-49, 415 N.E.2d
337, 339 (1980).
B. Failure to Establish Guilt
Beyond a Reasonable Doubt
Defendant next argues the State did not prove his guilt
beyond a reasonable doubt. The question for this court is wheth-
er any rational trier of fact could have found Perry guilty be-
yond a reasonable doubt, viewing the evidence in the light most
favorable to the prosecution. People v. Campbell, 146 Ill. 2d
363, 374, 586 N.E.2d 1261, 1266 (1992). Circumstantial evidence
alone may suffice to convict. Campbell, 146 Ill. 2d at 379, 586
N.E.2d at 1268. In order to sustain a residential burglary con-
viction, the State must prove "the defendant possessed the intent
to commit a theft at the time of his unauthorized entry into the
victim's dwelling." People v. Jackson, 181 Ill. App. 3d 1048,
1051, 537 N.E.2d 1054, 1057 (1989). In determining whether the
evidence is sufficient to permit the inference of intent, the
relevant circumstances include "the time, place and manner of
entry into the premises, the defendant's activity within the
premises, and any alternative explanations offered for his pres-
ence." People v. Richardson, 104 Ill. 2d 8, 13, 470 N.E.2d 1024,
1027 (1984).
Defendant argues the State did not prove his guilt
beyond a reasonable doubt because he (1) arrived at the Williams
home at 8:30 a.m., i.e., during daylight hours; and (2) provided
a plausible sounding explanation of his presence (viz, Rita
"owe[d him] money"). The jury was free to disbelieve the
defendant's explanations. See People v. Hopkins, 229 Ill. App.
3d 665, 672, 593 N.E.2d 1028, 1032 (1992). Determinations of
intent are best left to the trier of fact, and will not be dis-
turbed on review unless the evidence is so improbable there is a
reasonable doubt of the defendant's guilt. People v. Ybarra, 272
Ill. App. 3d 1008, 1011, 651 N.E.2d 668, 671 (1995). Defendant
has not met his burden here.
C. Statutory Mitigating Factors
Defendant last argues the trial court "disregarded"
mitigating factors enumerated in sections 5-5-3.1(a)(1) and
(a)(2) of the Unified Code (730 ILCS 5/5-5-3.1(a)(1), (a)(2)
(West 1992)). Those sections require the court in sentencing to
accord weight to a finding defendant's criminal conduct "neither
caused nor threatened serious physical harm to another" (730 ILCS
5/5-5-3.1(a)(1) (West 1992)); or defendant "did not contemplate
that his criminal conduct would cause or threaten serious physi-
cal harm to another" (730 ILCS 5/5-5-3.1(a)(2) (West 1992)).
At sentencing, the trial court found defendant "did not
inflict serious bodily injury on [Robert]." However, it found
his conduct "did threaten serious physical harm to [Robert] and
to members of his family, and [defendant] contemplated that his
conduct would threaten serious physical harm to them." (Emphasis
added.) It is clear the court considered the mitigating factors,
as evidenced by its discussion of them. It did not arrive at the
factual conclusions the defendant would have preferred. However,
a trial court's findings in sentencing are within its discretion,
and absent an abuse thereof, we will not disturb the result on
appeal. See People v. Hudson, 157 Ill. 2d 401, 452, 626 N.E.2d
161, 183 (1993).
Defendant argues the court abused its discretion by
rejecting his argument there was no threat of serious physical
harm. However, this court has approved rejection of this miti-
gating factor where a defendant attempts to enter a residence he
knows to be occupied, not only because of the danger to the vic-
tims but also because of the risk of the victims' reactions.
People v. Cisco, 202 Ill. App. 3d 633, 636, 560 N.E.2d 419, 421
(1990). A threat of confrontation--and therefore violence and
harm--is always present when an unauthorized entry is made in an
occupied building. Defendant knew the residence was occupied, as
there was uncontroverted evidence a child let him in. The trial
court did not abuse its discretion in finding the mitigating
factors inapplicable.
III. CONCLUSION
For the reasons above stated, we affirm the trial court
in all respects.
Affirmed.
STEIGMANN, J., concurs.
COOK, P.J., dissents.
PRESIDING JUSTICE COOK, dissenting:
The majority decision is contrary to the supreme
court's recent decision in Novak. I respectfully dissent and
would reverse for a new trial so that the jury could be instruct-
ed on theft as a lesser included offense of residential burglary.
The majority correctly notes that in Dace, the supreme
court found that the trial court should have given a tendered
instruction on theft where (1) the information charged the
specific intent to commit theft, and (2) the offense of theft was
proved by the evidence adduced at trial. Dace, 104 Ill. 2d at
102-03, 470 N.E.2d at 996. The majority then suggests that Dace
was wrongly decided because it impermissibly "fused the two
steps" of the charging-instrument approach adopted by Novak.
Slip op. at 8. I disagree. Although Dace did not refer to the
charging-instrument approach by name, it nevertheless applied the
same two-step analysis of the charging-instrument approach. That
Dace applied the charging-instrument approach is not surprising;
Novak stated that the charging-instrument approach was a rule
whose lineage could be traced back to Earll v. People, 73 Ill.
329, 332-33 (1874). Novak, 163 Ill. 2d at 112, 643 N.E.2d at
772.
Subsequent to Dace, but prior to Novak, the supreme
court declared that theft is not a lesser included offense of
burglary. Schmidt, 126 Ill. 2d at 184, 533 N.E.2d at 900. The
Schmidt court provided no rationale for its departure from Dace.
Indeed, the court suggested that there was no inconsistency
between the two decisions. The Schmidt court wrote:
"In concluding that where an accused is charged
with a single offense he cannot be found guilty
of an offense not charged unless it is a lesser
included offense, we are not unaware of [Dace].
We would observe that in Dace the fundamental
question just stated was not presented to or
considered by the court." Schmidt, 126 Ill.
2d at 184-85, 533 N.E.2d at 901.
Recognizing, however, that Dace and Schmidt are fundamentally
incompatible, this court held that Schmidt implicitly overruled
Dace. People v. Johnson, 206 Ill. App. 3d 318, 320-21, 564
N.E.2d 232, 234 (1990). Likewise, in People v. Buress, 259 Ill.
App. 3d 217, 630 N.E.2d 1143 (1994) (Buress I), the first dis-
trict concluded that Dace was no longer good law after Schmidt.
Accordingly, the Buress I court concluded that a defendant
charged with burglary is not entitled to a theft instruction.
Buress I, 259 Ill. App. 3d at 228-29, 630 N.E.2d at 1150.
As noted above, the Schmidt court provided no analysis
of the relationship between burglary and theft. The court merely
cited People v. Baker, 57 Ill. App. 3d 401, 372 N.E.2d 438
(1978), for the proposition that theft was not a lesser included
offense. Schmidt, 126 Ill. 2d at 183-84, 533 N.E.2d at 900.
Baker reasoned that theft was not an included offense of burglary
because "each offense has elements not included in the other
offense," i.e., burglary requires an entry into a building and
theft requires the taking of property. Baker, 57 Ill. App. 3d at
405, 372 N.E.2d at 441. Baker applied the "abstract elements
approach," which "requires only a textual comparison of criminal
statutes" to determine whether one offense is included in anoth-
er. Novak, 163 Ill. 2d at 110-11, 643 N.E.2d at 771. Novak ex-
pressly rejected the harsh and mechanical abstract-element ap-
proach for the more flexible charging-element approach. Novak,
163 Ill. 2d at 111-12, 643 N.E.2d at 772. Schmidt therefore
belongs to a lineage that was disavowed by Novak.
The supreme court ordered the first district to recon-
sider Buress I in light of Novak. People v. Buress, 158 Ill. 2d
573, 643 N.E.2d 839 (1994) (supervisory order). On remand, the
first district applied the charging-instrument approach to
conclude that theft was a lesser included offense of burglary
where the information alleged that the defendant had the specific
intent to commit theft, and the State's evidence established that
defendant committed theft. Buress, 274 Ill. App. 3d at 167, 653
N.E.2d at 843 (Buress II). I would follow Buress II.
Here, as in Buress, the charging instrument alleges that defen-
dant entered a dwelling "with the intent to commit therein a
theft." Theft is named in the indictment. The majority con-
cludes that the indictment does not set forth the "main outline"
or "broad foundation" of theft because a statutory element of
theft is not described, i.e., the indictment does not allege that
defendant knowingly obtained control over the property of anoth-
er. Slip op. at 5-6. The majority thus focuses on the abstract
statutory elements. However, the mere fact that the indictment
fails to allege that defendant obtained control over another's
property (a necessary element of theft) is not determinative.
"The charging instrument approach does not require the lesser
crime to be a theoretically or practically 'necessary' part of
the greater crime." Novak, 163 Ill. 2d at 107, 643 N.E.2d at
769-70. By alleging that defendant had the intent to commit a
theft, the indictment necessarily alleges that defendant intended
to deprive another of property, and this intent may ordinarily be
inferred only through an actual taking of property. Thus, the
charging instrument contains the "broad outline" of theft.
In the garden-variety burglary case, e.g., where defen-
dant forms the intent to enter a house and steal a television
set, and does so, theft is not a lesser-included offense of
burglary. That is because, in that situation, a jury could not
rationally find the defendant guilty of the lesser included
offense and acquit him of the greater offense. If he is guilty
of one, he is guilty of both. Novak, 163 Ill. 2d at 107, 643
N.E.2d at 770; Buress II, 274 Ill. App. 3d at 166, 653 N.E.2d at
842. The present case is different.
The evidence adduced at trial supports the giving of a
theft instruction. A jury could conclude that defendant came to
the Williams' dwelling to collect a debt, knocked on the door,
was allowed inside by a six-year-old child, and while he was
waiting for an adult, saw a purse and decided to take it. As is
often the case in burglary trials, the State presented no direct
evidence that defendant possessed the intent to commit a theft at
the moment of entry. Instead, the State presented circumstantial
evidence of the requisite intent by establishing that defendant
committed a theft once inside. Where there is overwhelming
evidence that a defendant committed a theft, but there exists a
real question whether the defendant committed burglary (whether
the defendant entered with the requisite intent), the failure to
give a tendered theft instruction may seriously prejudice the
defendant. The jury, faced with the dilemma of letting a thief
go free, or convicting him of a questionable burglary, may choose
to convict.
I also disagree with the majority's finding of waiver.
The State never raised the issue of waiver, at trial or on
appeal. The issue of waiver itself can be waived. See, e.g.,
People v. Banks, 243 Ill. App. 3d 525, 530, 611 N.E.2d 1270, 1274
(1993). Defendant raised the issue whether theft was a lesser
included offense, both during the instruction conference and in a
post-trial motion, albeit with little argument. Defendant can
hardly be faulted for failing to cite authority in opposition to
Schmidt. The most pertinent cases supporting defendant's posi-
tion (Novak, Buress II, and Landwer) were all decided after
defendant's trial.