dissenting:
I fail to see how our supreme court’s reasoning in Dace supports the majority’s conclusion on the facts before us and must, accordingly, express my dissent. By glossing over the requirement that the charging instrument at issue contains a specific intent allegation, the majority has effectively readopted the “inherent relationship” test as espoused by the defendant and rejected by our supreme court in Dace. Regardless of what crimes were proved by the evidence adduced at trial, the focus of the jury instruction issue in Dace was the mental state element as alleged in the charging instrument. I do not find this to be mere coincidence, as the majority apparently does, but crucial here to the determination of whether the trial court erred in refusing the defense-tendered instruction on criminal damage to property.
In Dace, the charging instrument for residential burglary alleged the mental state element for the lesser offense of theft. It did not, however, charge commission of the act of theft. In order to prove residential burglary, the State was required to prove intent to commit theft (Ill. Rev. Stat. 1981, ch. 38, par. 19 — 1(a)), but was not required to prove that defendant obtained control of property of another (Ill. Rev. Stat. 1981, ch. 32, par. 16 — 1). The evidence at trial, in fact, proved both the act and mental state elements of theft. Without adopting the “inherent relationship” test, the supreme court nonetheless approved the giving of a defense tendered instruction on theft under these circumstances:
“The proof of the offense charged requires proof of the specific intent (People v. Toolate (1984), 101 Ill. 2d 301), and the evidence adduced in each case would support a conviction of theft (People v. Housby (1981), 84 Ill. 2d 415.) We hold that under these circumstances, where the information charged the specific intent to commit theft and the offense of theft was proved by the evidence, refusal to give defendant’s tendered instructions was error.” (Emphasis added.) People v. Dace (1984), 104 Ill. 2d 96,103, 470 N.E.2d 993, 996.
To charge criminal damage to property, the State must allege, not merely that property of another was broken by the defendant, but that it was broken knowingly. Criminal damage is, thus, a “specific intent” crime (W. LaFave & A. Scott, Criminal Law 195-98 (1972)), and a conviction cannot be obtained without proof that the property was broken with the requisite mental state.
The two-part test approved in Dace — i.e., charging the mental state element of the lesser offense and proving all elements of that offense at trial — is not satisfied in the converse situation which the instant case represents — ie., charging the act element of the lesser offense and proving all elements of that offense (including mental state) at trial — in my opinion. The charging instrument in this case, to comport with the Dace test, would have had to allege that the defendant “knowingly broke a window *** with the intent to enter said building without authority and to commit therein a theft.”
Since the mental state element for criminal damage to property does not appear in the charging instrument at issue, the first prong of the Dace test was not satisfied. Accordingly, I find no error in the trial court’s refusal to instruct the jury on criminal damage to property.
Further, I do not view the evidence of attempt (burglary) admitted at trial entirely circumstantial. The events witnessed and testified to by Officers Ulrich and Weston, in my opinion, comprised some direct evidence of the defendant’s guilt.
For these reasons I would affirm the judgment of the circuit court.