People v. Monroe
Annotate this Case
No. 2--95-1001
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the
ILLINOIS, ) Circuit Court of
) Lake County.
Plaintiff-Appellee, )
)
v. ) No. 94--CF--1875
)
DOUGLAS MONROE, )
) Honorable
Defendant-Appellant. ) Charles F. Scott,
) Judge, Presiding.
JUSTICE RATHJE delivered the opinion of the court:
Following a jury trial, the defendant, Douglas Monroe, was
convicted of burglary (720 ILCS 5/19--1(a) (West 1994)). The court
sentenced him to 11 years imprisonment. On appeal, this court
affirmed his conviction, rejecting his argument that the trial
court should have instructed the jury on theft because it is a
lesser included offense of burglary.
Following the filing of the opinion in this case, our supreme
court issued its opinion in People v. Hamilton, No. 82148 (Ill.
December 18, 1997). In Hamilton, our supreme court reversed the
decision of the appellate court and held that the indictment in
that case sufficiently identified theft as a lesser included
offense of residential burglary under the charging instrument
approach. Hamilton, slip op. at 4; see People v. Novak, 163 Ill. 2d 93 (1994). Because our decision in this case relied upon the
appellate decision in Hamilton, 283 Ill. App. 3d 854 (1996), we
have ordered the original opinion in this case withdrawn and will
consider this case anew based upon the supreme court s decision in
Hamilton.
The charge against the defendant arose out of a break-in at
the North Shore Academy in Highland Park. The evidence at trial
showed that the defendant and three other people, Russell Lezak,
Josh Mirochnick, and Tim VanDerlinde, used a tire iron to break
into the school and then broke into a pop machine inside the
school, stealing the money from the machine s coin box. A mail
scale was also stolen.
The participants in the incident gave varying accounts of what
happened. Lezak testified that they went to the school to mess
around, which meant to walk around or do whatever. The
defendant used a tire iron to pry open the greenhouse door.
According to Lezak, the defendant also used the tire iron to break
open the pop machine in the teachers lounge. The defendant placed
the money from the pop machine in Lezak s pocket.
VanDerlinde testified that their reason for breaking into the
school was to steal a cash box for donations for handicapped
children. After breaking in, they all looked for valuables to
steal. According to VanDerlinde, Lezak and he broke into the pop
machine, and the defendant and Mirochnick were not there when they
did it.
Mirochnick testified that the four of them intended to break
into the school to steal a cash box. The defendant and Lezak used
a tire iron to pry open the greenhouse door. When they got inside,
the defendant started ransacking desks. Mirochnick saw the
defendant take a scale. Lezak and VanDerlinde took money from the
pop machine, but that was after Mirochnick and the defendant had
gone back to the car.
At the jury instructions conference, the defendant tendered
instructions on criminal trespass and theft. The trial court
denied those instructions, finding that criminal trespass and theft
were not lesser included offenses of burglary.
On appeal, the defendant contends that he was entitled to a
jury instruction on theft because it is a lesser included offense
of burglary.
When a defendant is charged with a single offense, he can be
convicted of an offense that was not charged only if it is a lesser
included offense of the one charged. People v. Faircloth, 234 Ill.
App. 3d 386, 389 (1992). An included offense is defined by statute
as follows:
Included offense means an offense which
(a) Is 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 charged, or
(b) Consists of an attempt to commit the offense charged
or an offense included therein. 720 ILCS 5/2--9 (West 1994).
Our supreme court has determined that the charging
instrument approach is to be used to identify lesser included
offenses. Novak, 163 Ill. 2d 93. The charging instrument must set
out the main outline of the offense, or the lesser offense must
have a broad foundation in the charging instrument. Novak, 163 Ill. 2d at 107.
In Hamilton, the indictment charged, in pertinent part, that
Hamilton committed the offense of residential burglary in that he
knowingly without authority entered the dwelling place of Bob and
Rita Williams with the intent to commit therein a theft ***. Our
supreme court stated as follows:
The offense of theft by unauthorized control is
committed when a person knowingly [o]btains or exerts
unauthorized control over property of the owner and
[i]ntends to deprive the owner permanently of the use or
benefit of the property. [Citations.] By alleging in the
indictment that defendant entered the Williamses dwelling
place with intent to commit a theft, the charging instrument
necessarily infers that defendant intended to obtain
unauthorized control over and deprive another of property.
This intent can typically be inferred, as it was in this case,
only through showing an actual taking of property. Moreover,
the indictment expressly charged the specific intent to commit
theft, which has been deemed sufficient to satisfy the first
step of the charging instrument approach. [Citation.] Thus the
charging instrument in the instant case sufficiently
identifies theft as a lesser included offense of the charged
offense of residential burglary. Hamilton, slip op. at 4.
In the case before us, the indictment charged that the
defendant without authority, knowingly entered a building of the
North Shore Academy, located at 760 Red Oak Lane, Highland Park,
Illinois, with the intent to commit therein a theft. The
pertinent parts of the indictment in this case are substantially
the same as the indictment in Hamilton, and therefore, in this
case, theft was a lesser included offense of the charged offense of
burglary.
This conclusion, however, does not end our inquiry. The
defendant here is entitled to a lesser included offense instruction
only if the evidence presented at trial could rationally support a
finding that the defendant was guilty of theft but innocent of
burglary. See Hamilton, slip op. at 7. A lesser included offense
instruction is proper only where the charged offense requires the
jury to find a disputed factual element that is not required for
conviction of the lesser included offense. Hamilton, slip op. at
7; Novak, 163 Ill. 2d at 108.
As in Hamilton, there exists the disputed factual element of
whether the defendant entered the school with the requisite intent.
Mirochnick and VanDerlinde both testified that the motive for
breaking into the school was to steal a cash box. Lezak, however,
testified that originally the group had entered the building to
mess around and that there was no intention of taking anything at
first. The defendant did not testify.
Both the State and the defendant are entitled to appropriate
instructions which present their theories of the case to the jury
when the evidence supports such theories. People v. Lyda, 190 Ill.
App. 3d 540, 544 (1989). 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.
Upton, 230 Ill. App. 3d 365, 374 (1992).
The State argues that Lezak s testimony is suspect because he
gave a false exculpatory statement at the request of the
defendant s girlfriend and that, in any event, Lezak s testimony
that the group merely entered the school to mess around is
incredible, given the effort they expended to enter the building.
However, a defendant is entitled to present his theory of defense
even if the trial court believes that the evidence offered in
support of that defense is inconsistent or of doubtful credibility.
Lyda, 190 Ill. App. 3d at 545. Where such evidence exists, the
trial court may not weigh the evidence in deciding whether an issue
has been raised entitling the defendant to the instruction. Upton,
230 Ill. App. 3d at 375; Lyda, 190 Ill. App. 3d at 544.
We are aware that our supreme court noted in People v.
Everette, 141 Ill. 2d 147 (1990), that the Court of Appeals for the
Seventh Circuit held that a trial judge should give a requested
jury instruction only if credible evidence in the record would
support a verdict based upon that instruction. Everette, 141 Ill. 2d at 156, quoting United States ex rel. Bacon v. DeRobertis, 551 F. Supp. 269 (N.D. Ill. 1982), aff d 728 F.2d 874, 875 (7th Cir.
1984). While the supreme court placed the emphasis on credible,
the court went on to hold in Everette that some evidence, if
believed by a jury, would support the giving of an instruction even
where the defendant presents inconsistent defenses. Everette, 141 Ill. 2d at 156-57.
Since there was some evidence which, if believed, would permit
the jury in this case to find the defendant guilty of theft but not
guilty of burglary, the failure of the trial court to instruct the
jury on the lesser included offense of theft requires that the
defendant receives a new trial (Hamilton, slip op. at 7).
The judgment of the circuit court is reversed, and the cause
is remanded for a new trial.
Reversed and remanded.
GEIGER, P. J., and THOMAS, J., concur.
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
THE PEOPLE OF THE STATE ) Appeal from the
ILLINOIS, ) Circuit Court of
) Lake County.
Plaintiff-Appellee, )
)
v. ) No. 94--CF--1875
)
DOUGLAS MONROE, )
) Honorable
Defendant-Appellant. ) Charles F. Scott,
) Judge, Presiding.
JUSTICE RATHJE delivered the opinion of the court:
Following a jury trial, the defendant, Douglas Monroe, was
convicted of burglary (720 ILCS 5/19--1(a) (West 1994)). The court
sentenced him to 11 years imprisonment. On appeal, this court
affirmed his conviction, rejecting his argument that the trial
court should have instructed the jury on theft because it is a
lesser included offense of burglary.
Following the filing of the opinion in this case, our supreme
court issued its opinion in People v. Hamilton, No. 82148 (Ill.
December 18, 1997). In Hamilton, our supreme court reversed the
decision of the appellate court and held that the indictment in
that case sufficiently identified theft as a lesser included
offense of residential burglary under the charging instrument
approach. Hamilton, slip op. at 4; see People v. Novak, 163 Ill. 2d 93 (1994). Because our decision in this case relied upon the
appellate decision in Hamilton, 283 Ill. App. 3d 854 (1996), we
have ordered the original opinion in this case withdrawn and will
consider this case anew based upon the supreme court s decision in
Hamilton.
The charge against the defendant arose out of a break-in at
the North Shore Academy in Highland Park. The evidence at trial
showed that the defendant and three other people, Russell Lezak,
Josh Mirochnick, and Tim VanDerlinde, used a tire iron to break
into the school and then broke into a pop machine inside the
school, stealing the money from the machine s coin box. A mail
scale was also stolen.
The participants in the incident gave varying accounts of what
happened. Lezak testified that they went to the school to mess
around, which meant to walk around or do whatever. The
defendant used a tire iron to pry open the greenhouse door.
According to Lezak, the defendant also used the tire iron to break
open the pop machine in the teachers lounge. The defendant placed
the money from the pop machine in Lezak s pocket.
VanDerlinde testified that their reason for breaking into the
school was to steal a cash box for donations for handicapped
children. After breaking in, they all looked for valuables to
steal. According to VanDerlinde, Lezak and he broke into the pop
machine, and the defendant and Mirochnick were not there when they
did it.
Mirochnick testified that the four of them intended to break
into the school to steal a cash box. The defendant and Lezak used
a tire iron to pry open the greenhouse door. When they got inside,
the defendant started ransacking desks. Mirochnick saw the
defendant take a scale. Lezak and VanDerlinde took money from the
pop machine, but that was after Mirochnick and the defendant had
gone back to the car.
At the jury instructions conference, the defendant tendered
instructions on criminal trespass and theft. The trial court
denied those instructions, finding that criminal trespass and theft
were not lesser included offenses of burglary.
On appeal, the defendant contends that he was entitled to a
jury instruction on theft because it is a lesser included offense
of burglary.
When a defendant is charged with a single offense, he can be
convicted of an offense that was not charged only if it is a lesser
included offense of the one charged. People v. Faircloth, 234 Ill.
App. 3d 386, 389 (1992). An included offense is defined by statute
as follows:
Included offense means an offense which
(a) Is 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 charged, or
(b) Consists of an attempt to commit the offense charged
or an offense included therein. 720 ILCS 5/2--9 (West 1994).
Our supreme court has determined that the charging
instrument approach is to be used to identify lesser included
offenses. Novak, 163 Ill. 2d 93. The charging instrument must set
out the main outline of the offense, or the lesser offense must
have a broad foundation in the charging instrument. Novak, 163 Ill. 2d at 107.
In Hamilton, the indictment charged, in pertinent part, that
Hamilton committed the offense of residential burglary in that he
knowingly without authority entered the dwelling place of Bob and
Rita Williams with the intent to commit therein a theft ***. Our
supreme court stated as follows:
The offense of theft by unauthorized control is
committed when a person knowingly [o]btains or exerts
unauthorized control over property of the owner and
[i]ntends to deprive the owner permanently of the use or
benefit of the property. [Citations.] By alleging in the
indictment that defendant entered the Williamses dwelling
place with intent to commit a theft, the charging instrument
necessarily infers that defendant intended to obtain
unauthorized control over and deprive another of property.
This intent can typically be inferred, as it was in this case,
only through showing an actual taking of property. Moreover,
the indictment expressly charged the specific intent to commit
theft, which has been deemed sufficient to satisfy the first
step of the charging instrument approach. [Citation.] Thus the
charging instrument in the instant case sufficiently
identifies theft as a lesser included offense of the charged
offense of residential burglary. Hamilton, slip op. at 4.
In the case before us, the indictment charged that the
defendant without authority, knowingly entered a building of the
North Shore Academy, located at 760 Red Oak Lane, Highland Park,
Illinois, with the intent to commit therein a theft. The
pertinent parts of the indictment in this case are substantially
the same as the indictment in Hamilton, and therefore, in this
case, theft was a lesser included offense of the charged offense of
burglary.
This conclusion, however, does not end our inquiry. The
defendant here is entitled to a lesser included offense instruction
only if the evidence presented at trial could rationally support a
finding that the defendant was guilty of theft but innocent of
burglary. See Hamilton, slip op. at 7. A lesser included offense
instruction is proper only where the charged offense requires the
jury to find a disputed factual element that is not required for
conviction of the lesser included offense. Hamilton, slip op. at
7; Novak, 163 Ill. 2d at 108.
As in Hamilton, there exists the disputed factual element of
whether the defendant entered the school with the requisite intent.
Mirochnick and VanDerlinde both testified that the motive for
breaking into the school was to steal a cash box. Lezak, however,
testified that originally the group had entered the building to
mess around and that there was no intention of taking anything at
first. The defendant did not testify.
Both the State and the defendant are entitled to appropriate
instructions which present their theories of the case to the jury
when the evidence supports such theories. People v. Lyda, 190 Ill.
App. 3d 540, 544 (1989). 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.
Upton, 230 Ill. App. 3d 365, 374 (1992).
The State argues that Lezak s testimony is suspect because he
gave a false exculpatory statement at the request of the
defendant s girlfriend and that, in any event, Lezak s testimony
that the group merely entered the school to mess around is
incredible, given the effort they expended to enter the building.
However, a defendant is entitled to present his theory of defense
even if the trial court believes that the evidence offered in
support of that defense is inconsistent or of doubtful credibility.
Lyda, 190 Ill. App. 3d at 545. Where such evidence exists, the
trial court may not weigh the evidence in deciding whether an issue
has been raised entitling the defendant to the instruction. Upton,
230 Ill. App. 3d at 375; Lyda, 190 Ill. App. 3d at 544.
We are aware that our supreme court noted in People v.
Everette, 141 Ill. 2d 147 (1990), that the Court of Appeals for the
Seventh Circuit held that a trial judge should give a requested
jury instruction only if credible evidence in the record would
support a verdict based upon that instruction. Everette, 141 Ill. 2d at 156, quoting United States ex rel. Bacon v. DeRobertis, 551 F. Supp. 269 (N.D. Ill. 1982), aff d 728 F.2d 874, 875 (7th Cir.
1984). While the supreme court placed the emphasis on credible,
the court went on to hold in Everette that some evidence, if
believed by a jury, would support the giving of an instruction even
where the defendant presents inconsistent defenses. Everette, 141 Ill. 2d at 156-57.
Since there was some evidence which, if believed, would permit
the jury in this case to find the defendant guilty of theft but not
guilty of burglary, the failure of the trial court to instruct the
jury on the lesser included offense of theft requires that the
defendant receives a new trial (Hamilton, slip op. at 7).
The judgment of the circuit court is reversed, and the cause
is remanded for a new trial.
Reversed and remanded.
GEIGER, P. J., and THOMAS, J., concur.
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