dissenting:
I respectfully dissent because I believe that there was ample evidence from which a properly instructed jury could have found defendant guilty of theft rather than armed robbery. The majority finds that the trial court erred in failing to so instruct the jury and that it should have been for the jury to decide whether defendant was guilty of theft or armed robbery. Yet the majority then finds this error to be harmless. I cannot reconcile these holdings. It was prejudicial error requiring reversal and remand for the trial court to refuse to instruct the jury on the offense of theft. The trial evidence pertinent to this issue is as follows.
The victim, Derrius Perry (Perry) testified that as defendant approached the group, defendant pulled a knife out of his wallet. When defendant reached the group, he observed the situation very briefly before Perry’s wallet fell to the ground. Perry speculated that one of the other men dropped the wallet. Defendant walked behind Perry to pick up the wallet and then walked back in front of Perry. At trial, Perry testified that the knife’s blade was pointed outward and upward at a 30-degree angle. Perry testified that he was frightened by the gun and the knife. However, upon cross-examination by defendant’s counsel, Perry admitted that when he spoke to the police immediately after the incident he did not mention that defendant had a knife.
Officers Michael Rimkus and Charmaine Kielbasa received notice of the incident while on routine patrol in the area of 87th Street and California Avenue. The officers spotted two men walking westbound between Komensky and Karlov Avenues. Because of a recent increase in storefront burglaries, the officers decided to observe the men. The officers then saw a tan Ford Focus without headlights turn westbound onto 63rd Street. The officers noted that the time was 12:30 a.m., and the car was moving very slowly. The officers lost sight of the two individuals and the Ford Focus began to pick up speed. The officers followed the vehicle and called the police station. The officers reported that they spotted a vehicle matching the description from the earlier reported incident. The officers continued to follow the vehicle and soon turned on their Mars lights to signal the driver of the vehicle to stop. The Ford Focus stopped at a gas station at 67th Street and Pulaski Avenue.
The officers ordered the occupants out of the vehicle one at a time. Defendant was the driver of the vehicle and Thornton and Reed were passengers. A search of the vehicle resulted in the discovery of a knife, a BB gun, the items which Perry had described as purchased from Walgreen’s, and a sweatshirt. No items were found on defendant’s person. Later, Perry was escorted to the gas station by police officers where he identified the three men as the assailants who had taken his possessions earlier. Defendant Washington, Thornton and Reed were then arrested and taken to the Evergreen Park police station. The fourth man who participated in the robbery was never identified or apprehended.
In separate proceedings, Thornton and Reed both pled guilty to aggravated robbery and were sentenced to four years’ imprisonment. Defendant was indicted for armed robbery under the theory of accountability.
At trial defendant gave the following testimony. Defendant became acquainted with Thornton and Reed a few weeks before the crime. On the night of the occurrence, Thornton and Reed suggested that the group drive around and “holler at some females.” Defendant borrowed his aunt’s car and went driving with Thornton and Reed. As they were driving, Thornton told defendant to stop the car because he recognized a man, Perry, walking down the street. Thornton and Reed got out of the car and approached Perry. Defendant also got out of the vehicle to smoke a cigarette. While Thornton and Reed were standing around Perry, defendant observed Perry taking off his sweatshirt. Defendant thought this was peculiar because it was a cold November night. Defendant then walked toward Thornton, Reed and Perry and observed Perry giving Thornton and Reed his personal belongings. As defendant approached the men, Perry asked him, “[h]ere you want this?” and threw an item to defendant. Defendant dropped the first item and then Perry threw defendant his wallet, which he caught. Thornton or Reed then told defendant to run, and the men ran back to the car.
When they entered the car, defendant asked Thornton and Reed what they had just done. Neither man answered the question; they just took Perry’s wallet from defendant. Defendant then started the car and drove away, but he was afraid that Thornton and Reed might rob him also and steal his aunt’s car. He eventually stopped at a gas station to refuel the car as Thornton and Reed rummaged through Perry’s wallet. He drove away from the gas station only to stop again a short time later. He got out of the vehicle to smoke a cigarette and Thornton and Reed also got out and walked down the street. Thornton and Reed eventually returned to the vehicle and the group drove away. Defendant testified that he was so nervous as he was driving that he forgot to turn on his headlights. The police then stopped the vehicle at the gas station where all the occupants were arrested.
At the jury instruction conference, the defense requested that the court give instructions to the jury on the lesser included offenses of robbery and theft. The State objected to the theft instruction and the court agreed with the State and allowed only the instructions for robbery and armed robbery. The jury were also instructed on the theory of accountability. During the deliberation process, the jury asked the court to clarify whether the commission of robbery and armed robbery included the getaway. The court, in agreement with both the State and defense counsel, agreed that the response should be “You have heard the evidence and have been instructed as to the law — please continue your deliberations.” The judge also denied the jury’s request for transcripts of the proceeding. Twice the jury indicated to the judge that they were deadlocked; however, the judge ordered them to continue their deliberations.
After IV2 days of deliberations, defendant was convicted of armed robbery and sentenced to seven years in the custody of the Illinois Department of Corrections.
At issue is whether defendant was entitled to a jury instruction for the lesser included offense of theft. Defendant argues that the evidence adduced at trial was such that the jury could reasonably have convicted him of the lesser included offense of theft and acquitted him of the greater offense of armed robbery. Therefore, it was error for the trial court to refuse his request for the theft instruction.
Defendant asserts that his trial testimony, in which he told the jury that he had no prior knowledge of the robbery, did not possess a knife, and did not threaten or use force to obtain Perry’s wallet, was sufficient to support a theft instruction if the jury believed him. Defendant also claims that the robbery instruction was insufficient to cover the scenario depicted by his testimony if the jury chose to believe him. I agree with this argument, as does the majority. Unlike the majority, I cannot find this error to be harmless.
The State argues that there is no evidence in the record to support a theft instruction and that no rational jury could have found defendant guilty of theft. But the jury are charged with the responsibility of deciding whom and what to believe. Thus I must disagree with the State’s suggestion, that any jury which disagreed with the State’s version of the evidence would be acting irrationally. First, the State argues that Perry’s testimony is sufficient to support an armed robbery conviction because Perry testified that defendant was armed with a knife. The State points out that the only contradictory evidence to dispute the presence of a knife was defendant’s own testimony. The State is clearly implying that defendant’s testimony is irrelevant and should have been disregarded by the jury. But again, only the jury should be permitted to make such a determination, not the State or a reviewing court looking at a cold transcript.
Additionally, the State argues that under the theory of accountability, defendant is accountable for the actions of Thornton and Reed. Thornton and Reed’s actions qualify as force under the statutory definition of robbery and the BB gun qualifies as a dangerous weapon under the statutory definition of armed robbery. The State claims that this evidence is sufficient to support an instruction for armed robbery or the lesser included offense of robbery. Lastly, the State argues that if the jury had believed defendant’s testimony, they would have acquitted him of the crime. In my view this assertion by the State is an oversimplified response to a complex issue which the jury had to resolve.
“It is axiomatic that no person may be convicted of an offense [that] the person has not been charged with committing.” People v. Jones, 149 Ill. 2d 288, 292, 595 N.E.2d 1071, 1074 (1992). However, an accused may be convicted of an offense not expressly included in the charging instrument if that offense is a “lesser included offense” of the offense expressly charged. Jones, 149 Ill. 2d at 293, 595 N.E.2d at 1074. “An indictment for a particular offense serves as an indictment for all included offenses, even though the latter are not specifically set forth in the indictment.” People v. Dressier, 317 Ill. App. 3d 379, 387, 739 N.E.2d 630, 637 (2000). For the purpose of this rule, every element of the lesser offense must be included in the greater offense charged. Dressier, 317 Ill. App. 3d at 387, 739 N.E.2d at 637. Such a practice 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. Hamilton, 179 Ill. 2d 319, 323-24, 688 N.E.2d 1166, 1169 (1997), quoting People v. Bryant, 113 Ill. 2d 497, 502, 499 N.E.2d 413, 415 (1986), citing Keeble v. United States, 412 U.S. 205, 212-13, 36 L. Ed. 2d 844, 850, 93 S. Ct. 1993, 1997-98 (1973).
“Where some evidence supports the instruction, the [trial] court’s failure to give the instruction constitutes an abuse of discretion.” People v. DiVincenzo, 183 Ill. 2d 239, 249, 700 N.E.2d 981, 987 (1998). Thus one can infer from the trial court’s refusal to give the theft instruction, and the State’s arguments on appeal, that both the trial court and the State believe that no serious consideration could or should be given by the jury to defendant’s version of the facts. This approach intrudes upon the most basic function of a jury under our system of law. In a jury trial, it is the province of the jury to determine whether the defendant is guilty of the greater offense charged or of a lesser included offense. People v. Upton, 230 Ill. App. 3d 365, 377, 595 N.E.2d 56, 63 (1992). “Very slight evidence upon a given theory of a case will justify the giving of an instruction.” People v. Jones, 175 Ill. 2d 126, 132, 676 N.E.2d 646, 649 (1997). As another court has stated, “It is well settled that where there is even slight evidence in the record which, if believed by a jury, would reduce the crime to a lesser included offense, an instruction defining the lesser included offense should be given.” People v. Monroe, 294 Ill. App. 3d 697, 701, 691 N.E.2d 1171, 1173 (1998). Thus the trial court’s role is to determine whether there is some evidence supporting that theory; it is not the court’s role to weigh the evidence. Jones, 175 Ill. 2d at 132, 676 N.E.2d at 649. There is sufficient evidence to require an instruction if the “ ‘evidence would permit a jury rationally to find the defendant guilty of the lesser included offense and acquit him or her of the greater offense,’ ” should the instruction be given. People v. Smith, 274 Ill. App. 3d 84, 91, 653 N.E.2d 944, 950 (1995), quoting People v. Novak, 163 Ill. 2d 93, 108 (1994).
Theft, a specific intent offense, is a lesser included offense of the general intent offense of armed robbery. Dressier, 317 Ill. App. 3d at 387-88, 739 N.E.2d at 638; People v. Jones, 149 Ill. 2d 288, 295-96, 595 N.E.2d 1071, 1074-75 (1992). A person commits theft when he knowingly obtains or exerts unauthorized control over the property of the owner. 720 ILCS 5/16 — 1(a) (West 2006). A person commits armed robbery when he violates section 18 — 1 of the Criminal Code of 1961 (720 ILCS 5/18 — 1 (West 2006)) and carries or is otherwise armed with a dangerous weapon or otherwise armed with a firearm. 720 ILCS 5/18— 2(a)(l)(2) (West 2006).
In the instant case, I believe that the trial court abused its discretion by refusing to give a jury instruction for theft. The refusal to give a theft instruction left the jury without a crucial third option by which they could find guilt. As noted above, the supreme court stated in People v. Hamilton that an instruction on a lesser offense provides a third option to a jury which would otherwise have only the choice of convicting a defendant they did not believe to be guilty of the greater offense or acquitting him outright, despite a belief that he was guilty of some offense. Hamilton, 179 Ill. 2d at 323-24, 688 N.E.2d at 1169. That is precisely the situation here. Defendant denied having prior knowledge of the armed robbery, participating in it or having possession of a knife. He also testified that he was fearful of his cohorts after discovering what they had done. However, his testimony still could amount to theft. Although he denied participating in the criminal activity of his cohorts, he admitted to having the victim’s wallet in his possession and taking it with him as he returned to the car. Defendant’s own testimony put him squarely in the action surrounding the crime. For this reason it is unlikely that a properly instructed jury which had considered all of the evidence would acquit him outright.
But if the jury chose to believe defendant’s testimony, a decision the majority agrees should have been their prerogative, their instructions left them with only two options. The jury could either convict defendant of the greater offense of armed robbery or acquit him of all wrongdoing. Defendant admitted during his testimony that he possessed Perry’s wallet. Thus, the jury could reasonably have concluded that acquittal was not an option. Under that scenario there was no instruction which allowed the jury to believe defendant’s testimony and find him guilty of an offense other than armed robbery. The majority’s opinion seems to find that defendant had the right to an instruction which gave the jury the option of convicting him of theft based upon his testimony, but that being deprived of that right by the trial court’s error in refusing that instruction was not prejudicial.
The trial court’s instruction on the offense of robbery likewise does not solve the problem. It was neither sufficient nor even appropriate as an option if the jury believed defendant. A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. 720 ILCS 5/18 — 1(a) (West 2006). Although robbery is a lesser included offense of armed robbery, if the jury chose to believe defendant’s testimony, no facts presented by the State support a simple robbery conviction. Rather, the evidence supported either armed robbery or theft. Defendant claims he did not have a knife or knowledge that Thornton and Reed were going to rob Perry. If the jury chose to believe the State’s evidence and theories, defendant was guilty of armed robbery through his personal use of a knife or through accountability for Thornton and Reed’s use of force. Neither of these theories establishes the necessary force element of simple robbery because both instances involve a dangerous weapon. The presence of a knife or BB gun satisfies the dangerous weapon requirement for an armed robbery conviction. Thus, no evidence, facts or theory presented by either the State or the defense to the jury supports a simple robbery instruction. Under these facts, theft and armed robbery instructions were the only proper instructions by which the jury could find guilt.
The State erroneously asserts that there is no evidence in the record to support a theft instruction. The State also asserts that Perry’s testimony is sufficient to support an armed robbery conviction because Perry testified that defendant was armed with a knife. Although these are two possible theories, they are not the only theories supported by the evidence. And, again, the State’s arguments seem to assume that its evidence is the only version that the jury could or should accept. As the finder of fact, the jury must examine the evidence and determine whom and what to believe. Whether the State agrees or disagrees with the jury’s finding, the jury have the right to accept or reject the evidence and the theories presented at trial. Thus, although the State believes it would be irrational for the jury to do so, the jurors could reasonably have rejected the State’s theory and evidence and accepted defendant’s version of events. Defendant maintained throughout his interrogation and trial testimony that he had no knowledge of the armed robbery plan or the armed robbery itself until after that activity was completed. The testimony given by Assistant State’s Attorney Bailey at trial and summarized in the State’s brief outlines the statement made by defendant when he was taken into custody, shortly after the event. It does not differ materially from defendant’s own testimony at trial.
For defendant to be found guilty of armed robbery under the theory of accountability, the jury had to find that defendant possessed knowledge of his cohorts’ actions. An accused may be held accountable for acts performed by another under a common plan or purpose; however, mere presence at the scene of an offense is not sufficient to sustain a conviction on an accountability theory. People v. Jones, 364 Ill. App. 3d 740, 747, 847 N.E.2d 702, 709 (2006). “ ‘Evidence that a defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design supports an inference that he shared the common purpose and will sustain his conviction for an offense committed by another.’ ” (Emphasis added.) Jones, 364 Ill. App. 3d at 747, 847 N.E.2d at 709, quoting People v. Cooper, 194 Ill. 2d 419, 435, 743 N.E.2d 32 (2000). Defendant consistently testified that he had no knowledge of Thornton and Reed’s intentions or acts until after they had carried out the crime. This testimony, if accepted by the jury, negates the element of knowledge needed to find defendant guilty of armed robbery under the theory of accountability. The jury had the discretion to accept defendant’s testimony and find that defendant was not culpable for the acts of Thornton and Reed but only for his own act in possessing the wallet. But they were not given appropriate instructions which would have allowed them to decide in favor of this theory or version of events.
Defendant also testified that he was not armed with a knife, and Perry’s testimony on this point was impeached at trial. Defendant’s testimony also suggests that he was not a part of the criminal activity until after the completion of the crime of armed robbery. He took the victim’s wallet and drove Thornton and Reed away from the scene of the crime. Without possession of a knife or prior knowledge of the acts of Thornton and Reed, defendant’s actions amounted to theft.
The jury’s conduct during deliberations suggests that they did not easily determine defendant’s guilt based on the choices they were given. The jury deliberated for IV2 days although the actual trial lasted less than one day. During the deliberations, the jury requested a transcript of the proceeding and asked the judge if the getaway was part of the crime. The jury notified the judge twice that they were deadlocked and could not reach a decision. The judge instructed the jury to continue deliberating both times, and the jury eventually found the defendant guilty of armed robbery. The jury’s inquiry regarding whether the getaway was part of the crime strongly suggests that the jury were considering defendant’s version of the facts. The jury’s lengthy deliberations also suggest that the evidence was being carefully considered.
I find, as do my colleagues, that the trial court’s refusal to submit a theft instruction to the jury under these facts was error. But I cannot find that this error was harmless or did not prejudice the rights of the defendant. The Illinois Supreme Court and this appellate court have held in numerous cases that a defendant is entitled to an instruction of a lesser included crime if evidence is presented that would permit a jury to rationally find a defendant guilty of the lesser crime yet acquit the defendant of the greater offense. Hamilton, 179 Ill. 2d at 324, 688 N.E.2d at 1169; Jones, 175 Ill. 2d at 135, 676 N.E.2d at 650 (“[bjefore a defendant is entitled to a lesser included offense instruction, the trial court must examine the evidence presented and determine if it would ‘permit a jury rationally to find the defendant guilty of the lesser included offense and acquit him or her of the greater offense,’ ” quoting People v. Novak, 163 Ill. 2d 93, 108, 643 N.E.2d 762, 771 (1994)). Indeed People v. Smith quoted and applied this holding by the Novak court. Smith, 274 Ill. App. 3d at 91, 653 N.E.2d at 950. Our supreme court has also said that only a showing of either slight, any or some evidence is needed to justify the giving of an instruction of a lesser included offense. Jones, 175 Ill. 2d at 132, 676 N.E.2d at 649; People v. DiVincenzo, 183 Ill. 2d 239, 249, 700 N.E.2d 981, 987 (1998) (“we note that an instruction is justified on a lesser offense where there is some evidence to support the giving of the instruction”); People v. Monroe, 294 Ill. App. 3d 697, 701, 691 N.E.2d 1171, 1173 (1998) (“[i]t is well settled that where there is even slight evidence in the record which, if believed by a jury, would reduce the crime to a lesser included offense, an instruction defining the lesser included offense should be given”). Our supreme court further explained in Novak that “[tjhis evidentiary requirement is usually satisfied by the presentation of conflicting testimony on the element that distinguishes the greater offense from the lesser offense.” Novak, 163 Ill. 2d at 108, 643 N.E.2d at 771. This distinction is directly applicable to the facts in this case.
As discussed above, the evidence demonstrates that a jury could rationally acquit defendant of armed robbery but convict him of theft based on his testimony and theory of the crime if they believed him. The conflicting evidence and theories of the State and defendant distinguish the greater offense from the lesser offense. See Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770. The jury should have been given an instruction which would have allowed them to consider all of the options presented by the evidence, not just the State’s options. The instructions given by the trial court did not offer the jury that third option. The jury were left to accept the State’s evidence or acquit defendant outright. I believe that under the facts and circumstances brought out at trial, acquittal was unlikely. Thus the only real option left to the jury was convicting defendant of armed robbery.
The trial court deprived defendant of the opportunity to be convicted only of the lesser offense of theft on the basis of his trial testimony. The jury were left with no instruction that allowed them to accept defendant’s testimony and yet find him guilty of this lesser included offense which was supported by his testimony. The majority fail to explain why, despite their finding that this instruction should have been given, defendant was not prejudiced by the trial court’s error in not doing so. Thus, I would find that the trial court’s refusal to give a theft instruction constituted an abuse of discretion and reversible error. I would reverse defendant’s conviction and remand for a new trial.