                            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

                                 7
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,

                                 8
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

                                  9
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

                                 10
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.

                                  11
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

                                 12
          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

                                13
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,

                                 14
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

                                15
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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