People v. Austin

JUSTICE DUNN,

dissenting:

I respectfully dissent because I believe the trial court committed reversible error by refusing to instruct the jury about the lesser-in-eluded offense of criminal trespass to residence. While the majority opinion correctly sets forth the applicable principles of law with regard to this issue, I disagree with the majority’s application of those principles.

As the majority recognizes, the dispositive question in determining whether defendant was entitled to have the jury instructed on the lesser-included offense is whether a jury could rationally have acquitted defendant of the greater offense while convicting him of the lesser. It is obvious from the evidence that defendant was guilty of criminal trespass to residence. The majority goes on to conclude that it is so clear from the evidence that the sole additional element of the offense of residential burglary, intent to commit a felony, was present that no rational jury could conceivably have concluded otherwise. I cannot agree.

The two residential burglary counts in the indictment charged that defendant intended to commit the offenses of theft and unlawful restraint when he entered the Sparks’ residence. The evidence establishes doubt as to whether defendant intended to commit a theft when he entered the residence because, when Mary Jane Sparks awoke, defendant was standing over her rather than rummaging through the house looking for items to take. Furthermore, defendant did not take anything from the house. The jury could have rationally concluded from the evidence that defendant did not intend to commit a theft when he entered the home.

Although the evidence more strongly indicates that defendant intended to commit the offense of unlawful restraint when he entered the Sparks residence, a rational jury could have concluded to the contrary. Mary Jane Sparks testified that when she awoke, defendant was standing right by her with his hand a few inches from her mouth. The jury could have concluded from this testimony that if defendant had intended to restrain her or harm her he could have done so before she screamed for help. Instead, defendant did nothing for a few seconds and then ran out the back door without touching Sparks after she screamed and pulled the glove off his hand.

The reason a defendant is sometimes entitled to have a jury instructed on a Iesser-included offense is that such an instruction “provides an important third option to a jury which, believing that the defendant is guilty of something but uncertain whether the charged offense has been proved, might otherwise convict rather than acquit the defendant of the greater offense.” (People v. Bryant (1986), 113 Ill. 2d 497, 502, 499 N.E.2d 413.) I believe this “important third option” should have been presented to the jury in this case because it could have rationally concluded that defendant lacked felonious intent when he entered the Sparks home and was therefore guilty of criminal trespass to residence rather than residential burglary. I therefore respectfully dissent and would remand the cause for a new trial.