People v. Poe ( 2008 )

No. 3--06--0461
Filed October 7, 2008
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 2008
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Tazewell County, Illinois
Plaintiff-Appellee, )
)
v. ) No. 05--CF--616
)
STEVEN R. POE, )
) Honorable J. Peter Ault,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SCHMIDT delivered the opinion of the court:
Defendant, Steven Poe, was convicted of burglary (720 ILCS
5/19--1(a) (West 2004)) and theft (720 ILCS 5/16--1(a)(1) (West
2004)) in the circuit court of Tazewell County. He was sentenced
to 4½ years' incarceration on the burglary conviction and 3
years' incarceration for the theft. This timely appeal followed
defendant's convictions. Defendant claims, on appeal, that his
theft conviction must be vacated as theft is a lesser-included
offense of the burglary for which he was charged.
BACKGROUND
On September 21, 2005, defendant was charged by information
with theft. The information stated that defendant committed a
theft when he "knowingly exerted unauthorized control over
property of Heartland Home Improvement, being siding and
materials *** with the intent to permanently deprive the owner of
the use or benefit of said property" in violation of section
5/16--1(a)(1) of the Criminal Code of 1961 (the Code) (720 ILCS
5/16--1(a)(1) (West 2004)). Then, on October 6, 2005, a grand
jury returned a two-count indictment in the matter. Count I was
worded exactly the same as the theft count in the original
information.
Count II of the grand jury indictment accused defendant of
burglary, claiming he "knowingly and without authority entered a
building of Lumberyard Suppliers with the intent to commit
therein a theft" in violation of section 19--1(a) of the Code.
720 ILCS 5/19--1(a) (West 2004). After bonding out of jail,
defendant failed to appear for a number of court hearings and a
warrant for his arrest was issued. Ultimately, defendant was
tried in absentia.
Testimony at trial showed that on September 13, 2005,
defendant went to Lumberyard Suppliers in East Peoria, Illinois,
and told an employee, James Holloway, that he was supposed to
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pick up an order for a Heartland Home Improvement customer who
was having work done on his house. Holloway printed a "pick
ticket" and gave it to defendant to take to the warehouse.
Defendant entered the warehouse where Jason Lykins loaded the
order, which primarily consisted of siding valued at $1,601.69,
onto defendant's truck.
An employee of Heartland Home Improvement, Shayne Diebel,
testified that he had hired the defendant. Diebel had called
Lumberyard Suppliers and requested a delivery date for a
particular job and he was told that the order had already been
picked up. Diebel stated that defendant had not been authorized
to pick up that order or any other order. The prosecution also
presented additional evidence that defendant had committed
similar crimes in the past wherein he obtained siding material
under false pretenses. A jury found defendant guilty of both
burglary and theft.
Defendant was arrested following his convictions and a
sentencing hearing was conducted on June 13, 2006. A
postsentencing motion was denied on June 19, 2006, and this
timely appeal followed. Defendant's sole contention on appeal is
that his theft conviction should be vacated.
ANALYSIS
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Defendant claims that his conviction for theft must be
vacated as it is a lesser-included offense of the burglary for
which he was convicted. He acknowledges that his trial counsel
failed to raise the issue below and that the first time he has
raised the issue is on appeal. He argues, however, that "a one-
act-one, crime violation should be deemed plain error" under
Supreme Court Rule 615(a). 134 Ill. 2d R. 615(a). "Before plain
error can be considered as a means of circumventing the general
waiver rule, it must be plainly apparent from the record that an
error affecting substantial rights was committed." People v.
Precup, 73 Ill. 2d 7, 17, 382 N.E.2d 227, 231 (1978). Therefore,
if no such error was committed below, "the waiver rule precludes
us from considering" a question raised by defendant for the first
time on appeal. Precup, 73 Ill. 2d at 19. We find no error was
committed below.
Defendant's convictions do not violate one-act, one-crime
principles. Defendant was charged with and convicted of burglary
in violation of section 19--1(a) of the Code. 720 ILCS 5/19--
1(a) (West 2004). Section 19--1(a) of the Code states as
follows, "A person commits burglary when without authority he
knowingly enters or without authority remains within a building,
housetrailer, watercraft, aircraft, motor vehicle as defined in
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The Illinois Vehicle Code, railroad car, or any part thereof,
with intent to commit therein a felony or theft." 720 ILCS 5/19-
-1(a) (West 2004). The indictment filed on October 6, 2005,
alleges defendant committed burglary "in that said defendant
knowingly and without authority entered a building of Lumberyard
Suppliers with the intent to commit therein a theft."
Defendant was also charged with theft in violation of
section 16--1(a)(1) of the Code. Under this section, one commits
a theft when he knowingly "obtains 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." 720 ILCS
5/16--1(a)(1)(A) (West 2004). Using the statutory wording, the
indictment returned by the grand jury alleged defendant
"knowingly exerted unauthorized control over property of
Heartland Home Improvement, being siding and materials having a
total value in excess of $300.00 but less than $10,000, with the
intent to permanently deprive the owner of the use or benefit of
said property."
Again, defendant argues that since his burglary indictment
identifies the crime of theft, he cannot also be charged and
convicted of theft under "one-act, one-crime" principles as it is
a lesser-included offense of burglary. We disagree.
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"Theft is not an included offense of burglary, and each has
elements not included in the others so that multiple convictions
of theft and burglary are not contrary to the [one-act, one-
crime] doctrine of King." People v. McCreary, 123 Ill. App. 3d
880, 884, 463 N.E.2d 455, 458-459 (1984). "[I]t is well
recognized that theft is not an included offense of burglary by
definition. Burglary does not require a taking and theft does
not require an entry." People v. Johnson, 103 Ill. App. 3d 564,
567, 431 N.E.2d 1381, 1383 (1982). "Multiple convictions and
concurrent sentences should be permitted *** where a defendant
has committed several acts, despite the inter-relationship of
those acts." People v. King, 66 Ill. 2d 551, 566, 363 N.E.2d
838, 844 (1977).
Our legislature has defined an included offense as one that
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."
720 ILCS 5/2--9(a) (West 2004). Again, as the Johnson court
succinctly and correctly noted, "Burglary does not require a
taking and theft does not require an entry." Johnson, 103 Ill.
App. 3d at 567. Therefore, neither "the same" nor "less than all
of the facts" of either crime are sufficient to obtain a
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conviction for the other offense.
Burglary, in general and as charged in this case, is a fait
accompli the moment defendant makes an unauthorized entry with
the requisite intent regardless of whether a subsequent felony or
theft is ever committed. It is the entry coupled with the intent
to commit the theft or felony that completes the burglary. Once
the burglary was complete, defendant then committed the theft. A
separate act; a separate offense.
Theft is simply not an included offense of burglary in a
one-act, one-crime analysis. To the extent that People v.
Bussan, 306 Ill. App. 3d 836, 715 N.E.2d 820 (1999), holds
otherwise, we disagree with the holding of Bussan. The appellate
court cited the supreme court's decisions in People v. Hamilton,
179 Ill. 2d 319, 688 N.E.2d 1166 (1997), and People v. McLaurin,
184 Ill. 2d 58, 703 N.E.2d 11 (1998), in support of its holding
that convictions of both theft and burglary violated the one-act,
one-crime principle. Again, theft and burglary are simply not
one act. Whether defendant goes on to commit another act and,
therefore, another crime is simply irrelevant to the burglary
prosecution and conviction.
There is no doubt that the law of lesser-included offenses
in this state has been muddied to the point where it is almost
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unintelligible. However, it is important to note that the
supreme court has never said that one cannot be convicted of both
burglary and theft where one commits a burglary by entering a
building with the intent to commit a theft and, once inside,
actually commits a theft. Common sense and common experience
tell us that people are often convicted of burglary where no
theft occurs. It is routine that burglars are either apprehended
by police while in the building before a theft could be committed
or scared away either by an alarm, a police siren or the
unexpected presence of a person or vicious dog. Although no
theft has occurred, the perpetrator is still guilty of burglary,
notwithstanding the fact that he was charged with burglary on the
basis that he entered a place where he had no right to be with
the intent to commit a theft.
The supreme court in People v. Schmidt, 126 Ill. 2d 179, 533
N.E.2d 898 (1988), found that theft was not a lesser-included
offense of burglary. It is important to note that Schmidt
involved a defendant charged only with residential burglary and
yet convicted of both residential burglary and theft. The
supreme court correctly noted that a conviction for an uncharged
offense cannot stand unless it is a lesser-included offense of
the one charge. Schmidt, 126 Ill. 2d at 183. Keep in mind that,
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in the case at bar, the defendant was charged with both theft and
burglary. The similarity between the cases is that in Schmidt,
as here, the defendant was convicted of both theft and burglary.
In Schmidt, the theft was uncharged; in the case before us it was
charged. Should this make a difference? Of course it should.
The main purpose of charging instruments is to permit the
defendant to properly prepare a defense. People v. Woodrum, 223
Ill. 2d 286, 297, 830 N.E.2d 259, 268 (2006). Defending oneself
against entering with the intent to commit a theft, in many
circumstances, will be entirely different from defending oneself
from the act of actually committing a theft. Of course, in some
cases, not so different since it will be the evidence of the
theft that will be used as circumstantial evidence of the
defendant's intent when entering the building.
Therefore, Schmidt was not unusual in that it simply recited
the long-standing legal principle that one could not be convicted
of an uncharged crime unless the crime was a lesser-included
offense. The theft conviction was vacated by the supreme court
on that basis.
People v. Hamilton involved a different scenario in which
the defendant was charged only with burglary, although there was
evidence that while in the victim's home, he stole a wallet from
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a purse. In Hamilton, the defendant was charged with and
convicted only of residential burglary. He appealed, alleging
that the trial court erred when it denied his request for a theft
instruction. The defendant argued that Schmidt was wrongly
decided because the supreme court did not utilize the charging
instrument approach adopted in People v. Novak, 163 Ill. 2d 93,
643 N.E.2d 762 (1994). Ironically, this is not a position that
would have been endorsed by the Schmidt defendant, who
successfully challenged the theft instruction and conviction.
The Hamilton court agreed Schmidt simply stands for the
proposition that where a defendant is charged with a single
offense, he cannot be convicted of an offense not charged unless
it is a lesser-included offense of the crime for which defendant
is expressly charged. Hamilton, 179 Ill. 2d at 327. The
Hamilton court goes on to acknowledge that Schmidt stated that
theft is not a lesser-included offense of burglary and then
points out that Schmidt relied upon People v. Baker, 57 Ill. App.
3d 401, 372 N.E.2d 438 (1978), in coming to this conclusion. The
supreme court opined that a close reading of Baker reveals that
the court in that case applied the abstract elements approach in
holding that theft was not a lesser-included offense of burglary.
The court stated, "Because this court has since expressly
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rejected the harsh and mechanical abstract elements approach
[citation], Schmidt, at least for this particular proposition,
has been disavowed." Hamilton, 179 Ill. 2d at 327. Keep in mind
that had the Schmidt court applied the Hamilton logic, Schmidt's
uncharged theft conviction would have stood. Undoubtedly,
Schmidt, rung up on the uncharged crime of theft, would have
found the Hamilton approach draconian. He might reasonably have
been indignant over being convicted of a crime that was alleged
at trial to have occurred after the crime with which he was
charged and prepared to defend. Undoubtedly, harshness, like
beauty, is in the eye of the beholder.
A careful reading of People v. Novak, 163 Ill. 2d 93, 643
N.E.2d 762 (1994), illustrates the logical problems created with
the charging instrument approach. Chester Novak was convicted of
aggravated criminal sexual assault based on a charging instrument
that alleged that Novak was 17 years of age or older and
committed an act of sexual penetration upon the victim, to wit:
contact between Chester Novak's penis and the victim's mouth and
the victim was under 13 years of age when the act of sexual
penetration was committed. Novak appealed the conviction,
alleging that the trial court erred in refusing an instruction on
the lesser-included offense of aggravated criminal sexual abuse.
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The supreme court affirmed, explaining that aggravated criminal
sexual abuse was committed if the accused was 17 years of age or
older and committed an act of sexual conduct with a victim who is
under 13 when the act was committed. Sexual conduct means any
means in pertinent part, any intentional annoying touching or
fondling by the accused either directly or through the clothing
of any part of the body of the child under 13 years of age for
the purpose of sexual gratification or arousal. People v. Novak,
163 Ill. 2d at 114. That is, the supreme court held that an
indictment charging Novak with putting his penis in the victim's
mouth did not broadly describe an intentional touching of any
part of the body of a child for the purpose of sexual
gratification. Novak, 163 Ill. 2d at 115. This is hard to
reconcile logically with the Hamilton decision, which, as Justice
Harrison pointed out, equated intending to commit a theft with
actually committing a theft. Hamilton, 179 Ill. 2d at 329-30
(Harrison, J., dissenting).
Novak was later abrogated by People v. Kolton, 219 Ill. 2d
353, 848 N.E.2d 950 (2006). In Kolton, the defendant was charged
in a single-count indictment with predatory criminal sexual
assault of a child. The indictment alleged:
"'[D]efendant was 17 years of age or older and
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committed an act of sexual penetration upon
[C.S.], to wit: an intrusion of Marian Kolton's
finger into [C.S.'s] vagina, and [C.S.] was under
thirteen years of age when the act of sexual
penetration was committed.'" People v. Kolton,
219 Ill. 2d at 356, 848 N.E.2d at 952.
Following a bench trial, the trial court found that sexual
penetration had not been proven beyond a reasonable doubt. The
trial court found the defendant guilty on the uncharged, lesser-
included offense of aggravated criminal sexual abuse. The
supreme court cited Novak with approval with respect to the
court's unanimous adoption of the charging instrument approach in
determining whether an offense is a lesser-included offense of
another, but disavowed the way the majority in Novak applied the
charging instrument approach to the facts in the Novak case.
People v. Kolton, 219 Ill. 2d at 364, 848 N.E.2d at 956.
The confusion created stems from the fact that these supreme
court cases, Hamilton, Novak, and Kolton, deal with whether a
particular crime is a lesser-included offense for purposes of
jury instructions or convicting one of uncharged crimes in bench
trials. They do not adequately explain how this relates to one-
act, one-crime principles. That is, we are not disputing that
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the supreme court has stated that theft is a lesser-included
offense of burglary for purposes of jury instruction issues. For
reasons stated above, we find no logical reason to apply this
concept to one-act, one-crime principle issues, specifically:
whether a defendant can be convicted of both theft and burglary
when the evidence shows that the defendant entered a building
with the intent to commit theft and once therein, actually
committed a theft. We find that the considerations that guided
the supreme court in finding theft to be a lesser-included
offense of burglary for purposes of jury instructions (giving the
jury an option to find a defendant guilty only of theft if there
is a question as to whether he intended to commit the theft
before he entered the building) are logically not related to the
one-act, one-crime principle. We find no reason to say that
burglary and theft are carved out of the same act for purposes of
dual convictions in this case. We find that the convictions of
both theft and burglary were proper and affirm.
To best illustrate the problem with applying the charging
instrument approach to one-act, one crime analysis, consider a
hypothetical. Suppose that the defendant was charged with
burglary "in that he knowingly and without authority entered a
building of XYZ, Inc. with the intent to commit therein a felony,
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to wit: a rape," and was also charged in count II with rape.
Would anyone seriously argue that because intent to commit rape
was referred to as the predicate for the burglary charge, that
the defendant could not be convicted of both burglary and the
rape, assuming proof of the requisite intent upon entry into the
building? The fact that our supreme court has held in Hamilton
that theft could be a lesser-included offense of burglary for
purposes of jury instructions is clearly based on a concern that
one might be convicted of burglary if that was the only option
available to jurors, even though there was evidence to suggest
that the intent to commit the theft was not created until the
defendant had entered the building. The rationale behind the
Hamilton decision does not support defendant's contention that
his convictions for both burglary and theft violate one-act, one-
crime principles.
Defendant continues by arguing that once a crime is labeled
a "lesser-included offense" of a greater crime, no conviction can
stand for the lesser-included offense if defendant is also
convicted of the more serious offense. We disagree. Certainly,
if the lesser-included offense merges into the greater offense
under the one-act, one-crime principle, that is true. People v.
King, 66 Ill. 2d 551, 363 N.E.2d 838 (1977). However, our
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supreme court has noted many times that criminal sexual abuse is
a lesser-included offense of criminal sexual assault and yet has
allowed convictions for both crimes to stand against a single
defendant. People v. Wittenmyer, 151 Ill. 2d 175, 179, 601
N.E.2d 735, 737 (1992) (defendant's convictions for three counts
of aggravated criminal sexual abuse and one count of aggravated
criminal sexual assault affirmed even though single incident of
defendant rubbing and sucking victim's breasts then penetrating
the victim with his finger "served as the basis for two of the
counts of aggravated criminal sexual abuse, and the one count of
aggravated criminal sexual assault").
As we have found that no error occurred below, we need not
consider defendant's appeal under a plain error analysis.
CONCLUSION
For the foregoing reasons, the judgment of the circuit court
of Tazewell County is affirmed.
Affirmed.
O'BRIEN and WRIGHT, JJ., concur.
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