People v. Rivers

550 N.E.2d 1179, 194 Ill. App. 3d 193, 141 Ill. Dec. 133, 1990 Ill. App. LEXIS 101
CourtAppellate Court of Illinois
DecidedJanuary 26, 1990
Docket1-88-1073
StatusPublished
Cited by9 cases

This text of 550 N.E.2d 1179 (People v. Rivers) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Rivers, 550 N.E.2d 1179, 194 Ill. App. 3d 193, 141 Ill. Dec. 133, 1990 Ill. App. LEXIS 101 (Ill. Ct. App. 1990).

Opinion

JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, James Rivers, was charged with robbery and aggravated battery. Following a trial without a jury, he was found guilty of theft and sentenced to a term of two years’ imprisonment. On appeal, defendant contends that the conviction for theft is void because he was not charged with that offense, and theft is not a lesser included offense of robbery. In view of the issue presented, it is only necessary to set forth the evidence adduced by the State.

At trial, Eric Clark, age 17, testified that on June 20, 1987, at about 2 a.m., defendant approached him on the street. Defendant put his arm around Clark’s shoulder, and they struggled as Clark pushed the arm away. Defendant asked for “a favor,” and took Clark’s wrist, demanding a couple of dollars. Clark was annoyed, and without speaking, he took out his wallet to remove the money to give defendant a few dollars. Clark and defendant struggled over the wallet, and it tore. Clark asked for the wallet back, but defendant refused and departed. The wallet contained $8. The police later located defendant, and Clark identified him as the man who stole his wallet.

The information specifically charged defendant with robbery: “He, by use of force and by threatening the imminent use of force took a wallet and its contents from the person and presence of Eric Clark * * * ff

The trial court found defendant not guilty of robbery, but guilty of theft from the person.

Defendant filed a motion in arrest of judgment, contending that the trial court lacked jurisdiction to enter judgment on the charge of theft. The court denied the motion.

Defendant contends the theft conviction is void as it was neither charged, nor was it a lesser included offense of robbery. That is the only issue before us.

An accused cannot be convicted of an offense for which he is not charged unless the offense of which he is found guilty is a lesser included offense of the one charged. (People v. Dace (1984), 104 Ill. 2d 96, 470 N.E.2d 993; People v. Lewis (1980), 83 Ill. 2d 296, 415 N.E.2d 319; People v. Harris (1986), 146 Ill. App. 3d 632, 497 N.E.2d 177.) A conviction for robbery requires proof that defendant took property from the person or presence of another by the use of force or by threatening the imminent use of force. (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1.) A conviction for theft requires proof that defendant knowingly obtained or exerted unauthorized control over property of the owner with the intention to deprive the owner permanently of the use or benefit of the property. (Ill. Rev. Stat. 1987, ch. 38, par. 16— 1(a)(1).) Theft, therefore, requires proof of a specific intent to permanently deprive another person of the property, while robbery requires only a general intent, plus proof of force.

There is a split of authority in Illinois on the question of whether theft is a lesser included offense of robbery.

In People v. Romo (1980), 85 Ill. App. 3d 886, 407 N.E.2d 661, the court offered cogent reasoning for its holding reducing a charge of robbery, for which the conviction could not be upheld due to insufficient evidence of force, to theft, which had not been charged. The court found the evidence proved theft, where defendant had grabbed a wallet from the victim’s hands, removed all the money from it, and left with the money. The court explained that with sufficient proof, a robbery conviction could be reduced to theft, even absent a charge of the specific intent to permanently deprive a victim of property taken. (People v. Romo, 85 Ill. App. 3d at 894, 407 N.E.2d at 668, citing People v. King (1979), 67 Ill. App. 3d 754, 384 N.E.2d 1013; People v. Williams (1976), 42 Ill. App. 3d 134, 355 N.E.2d 597; People v. Tolentino (1966), 68 Ill. App. 2d 480, 216 N.E.2d 191.) The court found the information sufficiently informed defendant of the crime charged so that he could prepare a defense and so that he would be protected against double jeopardy. We agree with the court’s reasoning and its statement:

“ ‘It would be contrary to experience and reason to conclude a stranger would forcefully take money from another stranger without fully intending to permanently deprive the wronged party of the money.’ Since the intent element is logically presumed in the charge of robbery, defendant had sufficient information with which to present his defense.” People v. Romo, 85 Ill. App. 3d at 894, 407 N.E.2d at 668, quoting People v. Beck (1976), 42 Ill. App. 3d 923, 924, 356 N.E.2d 848, 850.

Accord Minano v. State (Alaska App. 1984), 690 P.2d 28, rev’d in part on other grounds (Alaska 1985), 710 P.2d 1013. See generally 67 Am. Jur. 2d Robbery §9, at 61 (1985) (reporting that in most jurisdictions, larceny is an included offense of robbery, and a conviction for larceny may be had under a charge of robbery).

Similarly, in the present case, the evidence clearly showed that defendant intended to permanently deprive Clark of his money. Defendant stopped Clark on the street, struggled over his wallet, grabbed the wallet, ran, took out the money, and abandoned the empty wallet in the street. See also People v. Beck, 42 Ill. App. 3d 923, 356 N.E.2d 848.

Our supreme court’s reasoning in People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, while addressing different offenses, supports Romo and Beck. In discussing whether or not criminal damage to property was a lesser included offense of attempted burglary, the court listed three methods of determining “ if a particular offense is an included offense of another: the abstract statutory definition of the greater crime; the greater crime as it is alleged in the indictment or other charging document; or the greater crime as its necessary elements are proved at trial.’ ” (People v. Bryant, 113 Ill. 2d at 503, 499 N.E.2d at 415, quoting People v. Mays (1982), 91 Ill. 2d 251, 255, 437 N.E.2d 633.) The court particularly emphasized that the evidence adduced in each case might support a particular conviction. (People v. Bryant, 113 Ill. 2d at 503-04, 499 N.E.2d at 415, citing People v. Dace, 104 Ill. 2d 96, 470 N.E.2d 993; People v. Toolate (1984), 101 Ill. 2d 301, 461 N.E.2d 987; People v. Housby (1981), 84 Ill. 2d 415, 420 N.E.2d 151.) The court noted that a defendant’s instruction on a lesser offense should be given “ ‘if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater ***.’ ” People v. Bryant, 113 Ill.

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Bluebook (online)
550 N.E.2d 1179, 194 Ill. App. 3d 193, 141 Ill. Dec. 133, 1990 Ill. App. LEXIS 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-rivers-illappct-1990.