
                              NO.  4-94-0961



                          IN THE APPELLATE COURT



                                OF ILLINOIS



                              FOURTH DISTRICT



THE PEOPLE OF THE STATE OF ILLINOIS,    	)  Appeal from

          Plaintiff-Appellee,           			)  Circuit Court of

          v.                            				)  McLean County

ANTONIO HAMILTON,                       		)  No. 94CF60

          Defendant-Appellant.          			)

                                        				)  Honorable

                                        				)  William T. Caisley,

                                        				)  Judge Presiding.

_________________________________________________________________





          JUSTICE KNECHT delivered the opinion of the court:

          After a jury trial, defendant Antonio Hamilton was

found guilty of residential burglary (720 ILCS 5/19-3 (West

1992)), and was sentenced to 18 years in prison.  He appeals,

arguing (1) the trial court committed reversible error in failing

to submit to the jury his included offense instruction of theft;

(2) the State failed to prove the offense beyond a reasonable

doubt; and (3) the trial court failed to consider two applicable

statutory mitigating factors in sentencing.  We affirm.

                              I.  BACKGROUND

          Defendant was charged in July 1994 with residential

burglary.  The bill of indictment charged he "knowingly without

authority entered the dwelling place of Bob and Rita Williams

with the intent to commit therein a theft," in violation of sec-

tion 19-3 of the Criminal Code of 1961 (720 ILCS 5/19-3 (West

1992)). 

          On the morning of January 29, 1994, Robert Williams was

in his kitchen, when his six-year-old son came to him and said

that someone was at the door to see him.  When Robert went to the

front door, he saw someone exiting the bedroom where his wife was

sleeping.  He identified defendant as the intruder at trial.  He

also testified he previously picked him out of a photo lineup. 

Robert testified when defendant saw him he immediately said

"[']she owes me money['] or something like that."  Robert took

hold of him and started pushing him toward the door, but before

he was able to eject him he observed his wife's purse was hidden

beneath the person's jacket.  He tried to grab the purse and

scuffled with defendant.  Defendant pulled away and escaped with

the purse, but left his jacket in Robert's hands. 

          Robert yelled for his wife to call the police.  Rita

Williams woke up, heard her husband yelling, and saw him pushing

someone out of the house.  After calling the police, she saw the

intruder in the backyard and told her husband.  Defendant then

came back to the front door, placed the purse on the front porch,

and said he wanted his jacket.  Robert warned defendant the po-

lice were coming, told him to step away from the porch, took the

purse, and threw the jacket (and a small bag containing a sub-

stance Robert assumed to be marijuana, which had fallen out of

the jacket during the scuffle) outside.  Defendant walked to a

parked car and left. 

          Shortly after retrieving the purse, Robert and Rita

discovered Rita's wallet was not in the purse where she had left

it the night before.  The wallet was never recovered.

          Detective Richard Barkes of the Bloomington police

department was assigned to investigate the incident.  After Rob-

ert identified defendant in a photo lineup, Barkes arrested de-

fendant.  After waiving his Miranda rights, defendant admitted

going to the Williams residence and taking the purse out of the

bedroom.  He gave a typewritten statement admitting he had taken

the purse and stating he dropped the wallet into a mailbox after

returning the purse.  The statement was admitted into evidence.

          At the jury instruction conference defendant tendered

an included offense instruction on theft.  The trial judge ini-

tially agreed to give the instruction, believing "the jury could

find [defendant] guilty of theft and not guilty of residential

burglary."  However, before the end of the conference the court

reversed itself when the State presented authority for the propo-

sition theft was not an included offense of burglary.  The court

refused to tender the theft instruction.  The jury convicted

defendant of residential burglary.  Defendant was sentenced and

this appeal followed.

                               II.  ANALYSIS

                     A.  Included Offense Instruction

                                1.  Merits

          A defendant may generally not be convicted of an of-

fense with which he has not been charged.  People v. Landwer, 166

Ill. 2d 475, 485, 655 N.E.2d 848, 854 (1995).  In some cases a

defendant is entitled to have the jury instructed concerning less

serious offenses which are included in the charged offense. 

Landwer, 166 Ill. 2d at 485-86, 655 N.E.2d at 854.  This practice

provides an important option to a jury which, believing a defen-

dant is guilty of something, but uncertain whether the charged

greater offense has been proved, might otherwise convict rather

than acquit.  Landwer, 166 Ill. 2d at 486, 655 N.E.2d at 854. 

Whether an instruction on a lesser offense should have been given

is a matter of law, on which we accord no deference to the trial

court's decision.  Landwer, 166 Ill. 2d at 486, 655 N.E.2d at

854.  

          An "included" offense "[i]s 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."  720 ILCS 5/2-9(a) (West 1992).  In

the past, Illinois has used three different approaches to deter-

mining whether a particular offense is an included offense of an-

other:  (1) the "abstract elements" approach, (2) the "charging

instrument" approach, and (3) the "factual" or the "evidence" ap-

proach, also known as the "inherent relationship" approach.  Peo-

ple v. Novak, 163 Ill. 2d 93, 106-107, 643 N.E.2d 762, 769-70

(1994).  Recent supreme court case law has adopted the "charging

instrument" approach.  Landwer, 166 Ill. 2d at 486, 655 N.E.2d at

854; Novak, 163 Ill. 2d at 112, 643 N.E.2d at 772.

          This approach has two steps.  First, the court must

look to the charging instrument and determine whether it sets out

the "'"main outline,"'" or at least a "'"broad foundation,"'" of

the lesser offense.  Landwer, 166 Ill. 2d at 486, 655 N.E.2d at

854, quoting Novak, 163 Ill. 2d at 107, 643 N.E.2d at 770, quot-

ing People v. Bryant, 113 Ill. 2d 497, 505, 499 N.E.2d 413, 416

(1986).  The lesser crime need not be "a theoretically or practi-

cally 'necessary' part of the greater crime" (Novak, 163 Ill. 2d

at 107, 643 N.E.2d at 769-70); rather, it suffices for the lesser

offense to be "described" by the instrument.  Novak, 163 Ill. 2d

at 107, 643 N.E.2d at 770.  

          If the court finds the lesser offense meets this first

test, it then determines whether the evidence presented at trial

would allow a jury to find the defendant guilty of the lesser

offense but acquit on the greater.  Landwer, 166 Ill. 2d at 486,

655 N.E.2d at 854, citing Novak, 163 Ill. 2d at 108, 643 N.E.2d

at 770.  Instruction on the lesser offense is proper only if the

jury would have to find a disputed factual element to convict on

the greater offense which is not required to convict on the less-

er.  Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770.  This eviden-

tiary requirement is usually satisfied by the presentation of

conflicting testimony on the element that distinguishes the

greater from the lesser offense, but where the testimony is not

conflicting it may be satisfied if the conclusion as to the less-

er offense may be fairly inferred from the evidence presented. 

Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770.  

          Theft was not an included offense of residential bur-

glary in this case.  First, our supreme court has explicitly held

"[t]heft is not a lesser included offense of burglary."  People

v. Schmidt, 126 Ill. 2d 179, 183-84, 533 N.E.2d 898, 900 (1988),

citing People v. Baker, 57 Ill. App. 3d 401, 405, 372 N.E.2d 438,

441 (1978).  Second, the charging instrument here did not set out

the "main outline" or even a "broad foundation" of a theft.  It

did not allege a theft had been committed.  There are two ele-

ments to the crime of theft:  a person must knowingly obtain con-

trol over the property of another (720 ILCS 5/16-1(a)(1) through

(a)(4) (West 1992)), and he must have the intent permanently to

deprive the owner of the use or benefit of the property (720 ILCS

5/16-1(a)(4)(A) through (a)(4)(C) (West 1992)).  People v. Jones,

149 Ill. 2d 288, 296, 595 N.E.2d 1071, 1075 (1992).

          The indictment here merely alleged the defendant "know-

ingly without authority entered the dwelling place of [Robert]

and Rita Williams with the intent to commit therein a theft." 

There is no "outline" or "foundation" of theft in this language;

theft was not "described."  See Novak, 163 Ill. 2d at 114, 643

N.E.2d at 773 (aggravated criminal sexual abuse not an included

offense of aggravated criminal sexual assault under indictment

charging defendant "'was seventeen years of age or over and com-

mitted an act of sexual penetration upon [the victim], to wit: 

contact between [defendant]'s penis and [the victim's] mouth and

[the victim] was under thirteen years when the act of sexual

penetration was committed ***'").  Compare Landwer, 166 Ill. 2d

at 487, 655 N.E.2d at 854 (instruction on solicitation to commit

aggravated battery should have been given where indictment al-

leged defendant "'committed the offense of SOLICITATION OF MURDER

FOR HIRE, in that said defendant with the intent that the offense

of First Degree Murder, in violation of Illinois Revised Statutes

Chapter 38, Section 9-1(a)(1), be committed, procured another,

Robert Holguin, to commit that offense pursuant to an agreement

whereby Robert Holguin would kill [count I Aric Cherim; count II,

James Haliotis], and Charles Landwer would pay Robert Holguin

$600.00 United States Currency'"); Bryant, 113 Ill. 2d at 505,

499 N.E.2d at 416 (criminal damage to property was an included

offense where indictment alleged defendant "'did perform a sub-

stantial step toward the commission of [attempt (burglary)] in

that he pulled away a screen and broke a window of a building

known as Strubes 66, located at 700 Spring Street, Peoria, Illi-

nois, with the intent to enter said building without

authority'"); and Jones, 149 Ill. 2d at 290-91, 595 N.E.2d at

1072 (theft was an included offense of armed robbery where in-

formation alleged "'defendant, while armed with a dangerous weap-

on, a gun, took property of Lizzie [sic] Harden, being one 1984

green-gray 2-door Buick-Regal, and property of Barbara Clark,

being one beige ladies purse from the person of Barbara Clark, by

threatening the imminent use of force'"). 

          People v. Dace, 104 Ill. 2d 96, 470 N.E.2d 993 (1984),

explicitly found error in the refusal to give a tendered included

offense instruction on theft when the information charged resi-

dential burglary with intent to commit a theft, and the evidence

would support a conviction for theft.  Dace, 104 Ill. 2d at 102-

03, 470 N.E.2d at 996.  However, we conclude Dace is no longer

good law.  First, the Schmidt court's holding theft is not an in-

cluded offense of residential burglary (Schmidt, 126 Ill. 2d at

184, 533 N.E.2d at 900) calls it into question.  Second, Dace did

not follow the analysis Landwer and Novak have established is

currently the law in Illinois.  While Dace rejected the "inherent

relationship" test for included offenses (Dace, 104 Ill. 2d at

102, 470 N.E.2d at 996), it concluded there was error because the

information charged specific intent to commit theft and the evi-

dence would support a conviction.  Dace, 104 Ill. 2d at 103, 470

N.E.2d at 996.  The evidence adduced at trial is irrelevant to

the first step in included offense analysis under the "charging

instrument" approach, which is concerned solely with the charging

instrument.  Novak, 163 Ill. 2d at 107, 643 N.E.2d at 769-70. 

Only after the court has determined the charging instrument sets

out the lesser offense to the requisite degree does it weigh the

evidence adduced to determine whether it would support a convic-

tion on the lesser offense and an acquittal on the greater. 

Novak, 163 Ill. 2d at 108, 643 N.E.2d at 770.  As Dace fused the

two steps, and in light of the Schmidt court's holding theft is

not an included offense of burglary (Schmidt, 126 Ill. 2d at 184,

533 N.E.2d at 900), we find Dace has been implicitly overruled.

          Our holding conflicts with the conclusion recently

reached by the first district in People v. Buress, 274 Ill. App.

3d 164, 653 N.E.2d 841 (1995).  The Buress court found theft was

an included offense of burglary under an information alleging de-

fendant "'without authority, knowingly entered into a building,

to wit:  the building of Dollar Buster[,] Inc[.,] with the intent

to commit the offense of theft, therein, in violation of Chapter

38, section 19-1-A, of the Illinois Revised Statutes 1989, as

amended ***.'"  Buress, 274 Ill. App. 3d at 165, 653 N.E.2d at

842.

          The issue in Buress, as in this case, was whether theft

was an included offense of burglary.  The appellate court found

it was.  Buress, 274 Ill. App. 3d at 167, 653 N.E.2d at 843,

citing People v. Buress, 259 Ill. App. 3d 217, 227, 630 N.E.2d

1143, 1149 (1994).  This conclusion appears to have been based on

Bryant and Dace.  See Buress, 274 Ill. App. 3d at 166-67, 653

N.E.2d at 842-43.  As noted, we have concluded Dace is no longer

good law, and we do not agree Bryant compels us to hold theft is

an included offense of residential burglary with the intent to

commit theft.  Bryant held criminal damage to property was an in-

cluded offense under an indictment for attempt (burglary) which

alleged defendant "did perform a substantial step toward the com-

mission of [attempt (burglary)] in that he pulled away a screen

and broke a window of a building ***, with the intent to enter

said building without authority."  Bryant, 113 Ill. 2d at 505,

499 N.E.2d at 416.  While this instrument certainly sets out the

outline of criminal damage to property, it bears little resem-

blance to the indictment in this case, which only alleges entry

"with the intent to commit therein a theft."  No facts relating

to the theft were alleged; a theft was not alleged.  Accordingly,

defendant has failed to pass the first of the "charging instru-

ment" tests, and we need not-- indeed, we may not--consider the

evidence in the case.

                                2.  Waiver

          Defendant's argument is well thought out albeit in the

end unconvincing.  We are able to resist his efforts to persuade,

because defendant waived his argument by failing to make it in

front of the trial court.  As an appellate court, we have the

luxury of time to research and ponder delicate questions of law. 

We have clerks to aid us.  We also have the benefit of hindsight. 

Not so the trial courts.  Often they are obliged to rely upon the

authority cited by counsel in making their rulings, as in this

case.  We will not impute error to a trial court for failure to

consider a theory not fairly presented.  The trial court does not

have a duty to consider all possible theories; rather, its task

is to rule on the basis of the theories presented.  Salcik v.

Tassone, 236 Ill. App. 3d 548, 555, 603 N.E.2d 793, 798 (1992).

          In the context of evidentiary rulings it is firmly es-

tablished objections on specific grounds waive all other grounds. 

People v. Barrios, 114 Ill. 2d 265, 275, 500 N.E.2d 415, 419

(1986); Zook v. Norfolk & Western Ry. Co., 268 Ill. App. 3d 157,

164, 642 N.E.2d 1348, 1354 (1994); M. Graham, Cleary & Graham's

Handbook of Illinois Evidence §103.2, at 8 (6th ed. 1994).  A

proponent preserves for appellate consideration only those theo-

ries proposed at the time of trial.  Salcik, 236 Ill. App. 3d at

555, 603 N.E.2d at 798; M. Graham, Cleary & Graham's Handbook of

Illinois Evidence §103.7, at 25 (6th ed. 1994).

          The same rule applies in the context of jury instruc-

tions.  The following is the sum total of defendant's argument in

support of the instruction at trial:  "The way they define resi-

dential burglary, the only two issues are whether or not there

was an intent to commit a theft and whether or not there was

authority to enter, and if, and if authority to enter is an is-

sue, then an instruction concerning theft should be given."

Defendant cited no cases, no authority for its position.  This

court, on the other hand, was presented with a 30-page brief, of

which over seven pages were devoted solely to argument on the

question of whether the instruction should have been given.  It

is true, the trial court initially ruled it would give the in-

struction.  But when the prosecutor cited Schmidt, defendant

presented no counterargument at all.  He neither presented a

cogent theory nor cited any evidence to support giving the in-

struction.  If defendant believed a particular instruction should

be given, he was obligated to explain his theory of the case to

the trial court and cite the evidence that supported the theory. 

It is up to the parties to make their arguments, and they must

live with the arguments they make at trial.  

          Defendant's post-trial motion also failed to preserve

the error for review.  Supreme Court Rule 366(b)(2)(iii) provides

a party may not raise on appeal any "point, ground, or relief"

not specified in a post-trial motion after a jury trial.  155

Ill. 2d R. 366(b)(2)(iii).  With respect to the issue of jury

instructions, defendant's post-trial motion simply alleges the

court "erred in refusing the Defendant's jury instruction numbers

one (IPI 26.01Q), two (IPI 13.01), and three (IPI 13.02)."  This

does not articulate defendant's position, and is insufficient to

preserve the issue for review.  Thacker v. UNR Industries, Inc.,

151 Ill. 2d 343, 353, 603 N.E.2d 449, 454 (1992); Brown v.

Decatur Memorial Hospital, 83 Ill. 2d 344, 348-49, 415 N.E.2d

337, 339 (1980).

                      B.  Failure to Establish Guilt

                         Beyond a Reasonable Doubt

          Defendant next argues the State did not prove his guilt

beyond a reasonable doubt.  The question for this court is wheth-

er any rational trier of fact could have found Perry guilty be-

yond a reasonable doubt, viewing the evidence in the light most

favorable to the prosecution.  People v. Campbell, 146 Ill. 2d

363, 374, 586 N.E.2d 1261, 1266 (1992).  Circumstantial evidence

alone may suffice to convict.  Campbell, 146 Ill. 2d at 379, 586

N.E.2d at 1268.  In order to sustain a residential burglary con-

viction, the State must prove "the defendant possessed the intent

to commit a theft at the time of his unauthorized entry into the

victim's dwelling."  People v. Jackson, 181 Ill. App. 3d 1048,

1051, 537 N.E.2d 1054, 1057 (1989).  In determining whether the

evidence is sufficient to permit the inference of intent, the

relevant circumstances include "the time, place and manner of

entry into the premises, the defendant's activity within the

premises, and any alternative explanations offered for his pres-

ence."  People v. Richardson, 104 Ill. 2d 8, 13, 470 N.E.2d 1024,

1027 (1984).

          Defendant argues the State did not prove his guilt

beyond a reasonable doubt because he (1) arrived at the Williams

home at 8:30 a.m., i.e., during daylight hours; and (2) provided

a plausible sounding explanation of his presence (viz, Rita

"owe[d him] money").  The jury was free to disbelieve the

defendant's explanations.  See People v. Hopkins, 229 Ill. App.

3d 665, 672, 593 N.E.2d 1028, 1032 (1992).  Determinations of

intent are best left to the trier of fact, and will not be dis-

turbed on review unless the evidence is so improbable there is a

reasonable doubt of the defendant's guilt.  People v. Ybarra, 272

Ill. App. 3d 1008, 1011, 651 N.E.2d 668, 671 (1995).  Defendant

has not met his burden here.

                     C.  Statutory Mitigating Factors

 

          Defendant last argues the trial court "disregarded"

mitigating factors enumerated in sections 5-5-3.1(a)(1) and

(a)(2) of the Unified Code (730 ILCS 5/5-5-3.1(a)(1), (a)(2)

(West 1992)).  Those sections require the court in sentencing to

accord weight to a finding defendant's criminal conduct "neither

caused nor threatened serious physical harm to another" (730 ILCS

5/5-5-3.1(a)(1) (West 1992)); or defendant "did not contemplate

that his criminal conduct would cause or threaten serious physi-

cal harm to another" (730 ILCS 5/5-5-3.1(a)(2) (West 1992)).

          At sentencing, the trial court found defendant "did not

inflict serious bodily injury on [Robert]."  However, it found

his conduct "did threaten serious physical harm to [Robert] and

to members of his family, and [defendant] contemplated that his

conduct would threaten serious physical harm to them."  (Emphasis

added.)  It is clear the court considered the mitigating factors,

as evidenced by its discussion of them.  It did not arrive at the

factual conclusions the defendant would have preferred.  However,

a trial court's findings in sentencing are within its discretion,

and absent an abuse thereof, we will not disturb the result on

appeal.  See People v. Hudson, 157 Ill. 2d 401, 452, 626 N.E.2d

161, 183 (1993).

          Defendant argues the court abused its discretion by

rejecting his argument there was no threat of serious physical

harm.  However, this court has approved rejection of this miti-

gating factor where a defendant attempts to enter a residence he

knows to be occupied, not only because of the danger to the vic-

tims but also because of the risk of the victims' reactions. 

People v. Cisco, 202 Ill. App. 3d 633, 636, 560 N.E.2d 419, 421

(1990).  A threat of confrontation--and therefore violence and

harm--is always present when an unauthorized entry is made in an

occupied building.  Defendant knew the residence was occupied, as

there was uncontroverted evidence a child let him in.  The trial

court did not abuse its discretion in finding the mitigating

factors inapplicable.

                             III.  CONCLUSION

          For the reasons above stated, we affirm the trial court

in all respects.

          Affirmed.

          STEIGMANN, J., concurs.

          COOK, P.J., dissents.

          PRESIDING JUSTICE COOK, dissenting:

          The majority decision is contrary to the supreme

court's recent decision in Novak.  I respectfully dissent and

would reverse for a new trial so that the jury could be instruct-

ed on theft as a lesser included offense of residential burglary.

          The majority correctly notes that in Dace, the supreme

court found that the trial court should have given a tendered

instruction on theft where (1) the information charged the

specific intent to commit theft, and (2) the offense of theft was

proved by the evidence adduced at trial.  Dace, 104 Ill. 2d at

102-03, 470 N.E.2d at 996.  The majority then suggests that Dace

was wrongly decided because it impermissibly "fused the two

steps" of the charging-instrument approach adopted by Novak. 

Slip op. at 8.  I disagree.  Although Dace did not refer to the

charging-instrument approach by name, it nevertheless applied the

same two-step analysis of the charging-instrument approach.  That

Dace applied the charging-instrument approach is not surprising;

Novak stated that the charging-instrument approach was a rule

whose lineage could be traced back to Earll v. People, 73 Ill.

329, 332-33 (1874).  Novak, 163 Ill. 2d at 112, 643 N.E.2d at

772.

         Subsequent to Dace, but prior to Novak, the supreme

court declared that theft is not a lesser included offense of

burglary.  Schmidt, 126 Ill. 2d at 184, 533 N.E.2d at 900.  The

Schmidt court provided no rationale for its departure from Dace. 

Indeed, the court suggested that there was no inconsistency

between the two decisions.  The Schmidt court wrote:

         "In concluding that where an accused is charged

         with a single offense he cannot be found guilty

         of an offense not charged unless it is a lesser

         included offense, we are not unaware of [Dace].  

         We would observe that in Dace the fundamental 

         question just stated was not presented to or 

         considered by the court."  Schmidt, 126 Ill. 

         2d at 184-85, 533 N.E.2d at 901.

Recognizing, however, that Dace and Schmidt are fundamentally

incompatible, this court held that Schmidt implicitly overruled

Dace.  People v. Johnson, 206 Ill. App. 3d 318, 320-21, 564

N.E.2d 232, 234 (1990).  Likewise, in People v. Buress, 259 Ill.

App. 3d 217, 630 N.E.2d 1143 (1994) (Buress I), the first dis-

trict concluded that Dace was no longer good law after Schmidt. 

Accordingly, the Buress I court concluded that a defendant

charged with burglary is not entitled to a theft instruction. 

Buress I, 259 Ill. App. 3d at 228-29, 630 N.E.2d at 1150.

         As noted above, the Schmidt court provided no analysis

of the relationship between burglary and theft.  The court merely

cited People v. Baker, 57 Ill. App. 3d 401, 372 N.E.2d 438

(1978), for the proposition that theft was not a lesser included

offense.  Schmidt, 126 Ill. 2d at 183-84, 533 N.E.2d at 900. 

Baker reasoned that theft was not an included offense of burglary

because "each offense has elements not included in the other

offense," i.e., burglary requires an entry into a building and

theft requires the taking of property.  Baker, 57 Ill. App. 3d at

405, 372 N.E.2d at 441.  Baker applied the "abstract elements

approach," which "requires only a textual comparison of criminal

statutes" to determine whether one offense is included in anoth-

er.  Novak, 163 Ill. 2d at 110-11, 643 N.E.2d at 771.  Novak ex-

pressly rejected the harsh and mechanical abstract-element ap-

proach for the more flexible charging-element approach.  Novak,

163 Ill. 2d at 111-12, 643 N.E.2d at 772.  Schmidt therefore

belongs to a lineage that was disavowed by Novak.

         The supreme court ordered the first district to recon-

sider Buress I in light of Novak.  People v. Buress, 158 Ill. 2d

573, 643 N.E.2d 839 (1994) (supervisory order).  On remand, the

first district applied the charging-instrument approach to

conclude that theft was a lesser included offense of burglary

where the information alleged that the defendant had the specific

intent to commit theft, and the State's evidence established that

defendant committed theft.  Buress, 274 Ill. App. 3d at 167, 653

N.E.2d at 843 (Buress II).  I would follow Buress II.            

Here, as in Buress, the charging instrument alleges that defen-

dant entered a dwelling "with the intent to commit therein a

theft."  Theft is named in the indictment.  The majority con-

cludes that the indictment does not set forth the "main outline"

or "broad foundation" of theft because a statutory element of

theft is not described, i.e., the indictment does not allege that

defendant knowingly obtained control over the property of anoth-

er.  Slip op. at 5-6.  The majority thus focuses on the abstract

statutory elements.  However, the mere fact that the indictment

fails to allege that defendant obtained control over another's

property (a necessary element of theft) is not determinative. 

"The charging instrument approach does not require the lesser

crime to be a theoretically or practically 'necessary' part of

the greater crime."  Novak, 163 Ill. 2d at 107, 643 N.E.2d at

769-70.  By alleging that defendant had the intent to commit a

theft, the indictment necessarily alleges that defendant intended

to deprive another of property, and this intent may ordinarily be

inferred only through an actual taking of property.  Thus, the

charging instrument contains the "broad outline" of theft.

         In the garden-variety burglary case, e.g., where defen-

dant forms the intent to enter a house and steal a television

set, and does so, theft is not a lesser-included offense of

burglary.  That is because, in that situation, a jury could not

rationally find the defendant guilty of the lesser included

offense and acquit him of the greater offense.  If he is guilty

of one, he is guilty of both.  Novak, 163 Ill. 2d at 107, 643

N.E.2d at 770; Buress II, 274 Ill. App. 3d at 166, 653 N.E.2d at

842.  The present case is different.         

         The evidence adduced at trial supports the giving of a

theft instruction.  A jury could conclude that defendant came to

the Williams' dwelling to collect a debt, knocked on the door,

was allowed inside by a six-year-old child, and while he was

waiting for an adult, saw a purse and decided to take it.  As is

often the case in burglary trials, the State presented no direct

evidence that defendant possessed the intent to commit a theft at

the moment of entry.  Instead, the State presented circumstantial

evidence of the requisite intent by establishing that defendant

committed a theft once inside.  Where there is overwhelming

evidence that a defendant committed a theft, but there exists a

real question whether the defendant committed burglary (whether

the defendant entered with the requisite intent), the failure to

give a tendered theft instruction may seriously prejudice the

defendant.  The jury, faced with the dilemma of letting a thief

go free, or convicting him of a questionable burglary, may choose

to convict.

         I also disagree with the majority's finding of waiver. 

The State never raised the issue of waiver, at trial or on

appeal.  The issue of waiver itself can be waived.  See, e.g.,

People v. Banks, 243 Ill. App. 3d 525, 530, 611 N.E.2d 1270, 1274

(1993).  Defendant raised the issue whether theft was a lesser

included offense, both during the instruction conference and in a

post-trial motion, albeit with little argument.  Defendant can

hardly be faulted for failing to cite authority in opposition to

Schmidt.  The most pertinent cases supporting defendant's posi-

tion (Novak, Buress II, and Landwer) were all decided after

defendant's trial.  





