Opinion
3-11-0205
01-11-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD EDWARDS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of the 14th Judicial Circuit,
Henry County, Illinois,
Appeal No. 3-11-0205
Circuit No. 10-CF-53
Honorable Ted J. Hamer,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justice O'Brien concurred in the judgment.
Presiding Justice Wright specially concurred.
ORDER
¶ 1 Held: The State proved defendant's guilt on two counts of attempt first degree murder beyond a reasonable doubt. The trial court did not err in refusing to instruct the jury as to the lesser-included offenses requested by defendant, and did not abuse its discretion in imposing concurrent 50-year sentences on the defendant. ¶ 2 A Henry County jury found defendant guilty on two counts of attempt first degree murder, five counts of aggravated discharge of a firearm, and one count each of home invasion, aggravated unlawful restraint and possession of a firearm without a Firearm Owner's Identification Card (FOID). The trial court sentenced the defendant to 50 years on each attempt murder charge, 20 years on each aggravated discharge of a firearm charge, 26 years on the home invasion charge, 3 years on the aggravated unlawful restraint charge and 364 days on the possession of a firearm without a FOID card. The defendant is serving the sentences concurrently. ¶ 3 The defendant appeals, claiming that: (1) the State failed to prove beyond a reasonable doubt that defendant had the specific intent necessary to support the two attempt first degree murder convictions; (2) the trial court erred in failing to submit jury instructions as to lesser included offenses; and (3) the trial court imposed excessive sentences. We affirm.
¶ 4 BACKGROUND
¶ 5 In the early morning hours of December 11, 2009, the defendant, Gerald Edwards, broke into the home of Julie Stradt, his ex-girlfriend and the mother of one of his children. For the next eight hours, defendant held Stradt hostage as law enforcement officials attempted to negotiate with him. ¶ 6 During that time, defendant, armed with a handgun, fired numerous shots through the front door of Julie's apartment, through the living room windows, through the floor, and through a skylight. The bullets did not kill or injure anyone on the scene. Around 1:30 p.m., Julie threw the defendant's gun out the window and escaped. The police then launched tear gas into the home; the defendant surrendered shortly thereafter. ¶ 7 The State charged defendant with eight counts of attempt first degree murder and one count each of home invasion, aggravated unlawful restraint and possession of a firearm without a FOID card. Interestingly, some of the counts charging attempt first degree murder in the bill of indictment name more than one individual as the defendant's intended target. For example, count II states that "Edwards, with the intent to commit first degree murder *** performed a substantial step toward the commission of that offense, in that he shot at Ben Sleaford, Kelan Wells, Bill Rivord and Landon Horrie with a .22 caliber handgun ***." ¶ 8 The jury trial commenced on January 24, 2010. Julie Stradt testified that she and defendant once dated and had a child in common. Julie stated that there were some serious problems throughout the relationship, including defendant's drinking. She ended their relationship around Thanksgiving of 2009. In regard to the incident on December 11, 2009, Julie testified that defendant told her he "wanted to put a bullet in his heart," and that he wanted her to see him do it. According to Julie, this was not defendant's first instance of suicidal thoughts or tendencies. Julie further testified that defendant fired the gun at and through the front door, out the two front windows, out the back bedroom window, and up toward the skylight. At all relevant times, defendant was aware of the police presence outside of the apartment. On cross, Julie stated that defendant saw officers on the rooftop and coming out of the movie theater across the street, but did not take any shots at either of them. She also stated that when defendant shot through the skylight, he knew that there were officers on the roof. She testified that she could not determine the officer's exact location nor could she see them through the skylight. ¶ 9 The State then called Officer Dan Schmitt, a patrolman for the Geneseo police department. Officer Schmitt testified that he was on the roof of Julie's apartment with Deputy Joseph Bedford when defendant fired shots through the skylight. According to Schmitt, the skylight was tinted and dirty, and "it wasn't clear to view into it." Schmitt went on to state that Deputy Bedford borrowed his cell phone in order to take some pictures through the skylight. It was when Bedford got closer to the skylight and put his hand over it in an attempt to take a photo that defendant fired shots through the skylight. ¶ 10 Deputy Joseph Bedford of the Henry County sheriff's department testified next for the State. Bedford's testimony corroborated that of Schmitt's, insofar as the skylight was fogged up and difficult to see anything through. According to Bedford, he straddled a brick wall or barrier that was between him and the skylight of Julie's apartment. He did so in an effort to avoid alerting defendant to the fact that he and other officers were on the roof. Bedford testified that from his spot on the brick barrier, he could reach his hands over the skylight with the camera. It was at this point, when he had reached three-quarters of the way across the glass, that he heard the defendant yell, "I see you, mother fucker," and then fired three shots through the skylight glass. Bedford testified that the shots fired were so close to him that he could feel the rounds of air push past his hands as the shots came through the window. Defense counsel had Deputy Bedford mark defendant's exhibit No. 2 to show the relative positions of the brick barrier, the skylight, and the deputy at the time the shootings occurred. Defendant contends that based upon where Deputy Bedford said he was straddling the brick barrier, it was simply impossible for him to be reaching almost three-quarters of the way over the skylight with both hands. ¶ 11 Michael Chavez, a patrolman for the Geneseo police department, testified next. Chavez, a member of the special operations squad (SOS), took a position as a sniper above the Central Movie Theater, directly across the street from Julie Stradt's apartment. After approximately an hour, Officer Kevin Bloom from the city of Kewanee police department joined Chavez at that position. Chavez testified that he heard bullets impacting the windowsill below where he was positioned, and that he could see what is referred to as a mirage through the scope of his rifle. A mirage, he stated, is not visible to the naked eye but can be seen through a scope as a projectile (i.e., bullet) coming toward or going away from you. At that point, Chavez and Bloom both hit the deck to protect themselves from the rounds fired by defendant through the living room windows of Julie's apartment. On cross, Chavez conceded that he did not include seeing the mirage in his report and, after looking around the area where he and Bloom were located, they did not find any evidence that a bullet had entered that space. Chavez further testified that he did not know where any of the rounds hit, or where defendant was located when he fired those shots. ¶ 12 The State then called Kevin Bloom, a police officer with the city of Kewanee. Bloom, also a member of the SOS, was positioned at the theater with Officer Chavez. Bloom's testimony mirrored Chavez's, in that he, too, saw the mirage of the bullets through his rifle's scope and heard the impact of the bullets as they hit the theater's facade. Also like Chavez, Bloom testified on cross that he did not know where any of the bullets actually hit, and that he had failed to put the information regarding the mirage created by the bullet in his initial report. ¶ 13 A number of other witnesses testified, and for the most part, their testimony appears to be cumulative in nature. The record indicates that there were a number of other officers and bystanders who heard defendant yell at the officers on the roof. ¶ 14 At the close of the State's evidence, defendant moved for a directed verdict as to the attempted murder and aggravated kidnaping charges. The trial court denied that motion. Following a brief recess and the presentation of additional case law on the subject, the trial court, again, denied defendant's motion for a directed verdict. ¶ 15 The defense relied heavily on the testimony of its expert witness, Dr. Orest Wasyliw, a psychologist who evaluated defendant. In Dr. Wasyliw's professional opinion, defendant suffered from bipolar disorder, anxiety disorder, borderline personality disorder, a cognitive disorder, depression and alcohol dependence. Given that diagnosis and defendant's condition on December 11, 2009, Dr. Wasyliw stated that within a reasonable degree of psychological certainty, defendant was unable to form the specific intent to kill anyone that day. ¶ 16 Following Dr. Wasyliw's testimony, the defense rested and a formal conference on jury instructions was conducted. The defendant requested that the jury be instructed as to the lesser-included offenses of aggravated discharge of a firearm, reckless discharge of a firearm and aggravated assault as to the attempted murder charges, and that an instruction on residential burglary be given as a lesser-included offense of the home invasion charge. Defense counsel argued that the evidence adduced at trial was that every victim was in apprehension of receiving a battery when defendant discharged the firearm, and that the actual discharge of the firearm was considered the "substantial step" in each attempt murder charge as outlined in the charging instrument. Furthermore, the defense argued that the jury should have the right to decide if the defendant's actions were done recklessly, knowingly or intentionally. ¶ 17 The trial court initially decided that it would give all four lesser-included instructions. However, after a brief recess, the court went back on the record and explained that it would decline to give the lesser-included instructions of aggravated assault, reckless discharge of a firearm, and residential burglary. ¶ 18 Following closing arguments and a full day of deliberations, the jury found defendant guilty on two counts of attempt first degree murder, five counts of aggravated discharge of a firearm, and one count each of home invasion, aggravated unlawful restraint and possession of a firearm without a FOID card. Specifically, the jury returned a guilty verdict for attempt first degree murder on counts VI and VII. Count VI named Officers Michael Chavez and Kevin Bloom, and count VII named Officer Joseph Bedford. ¶ 19 At sentencing, the trial court initially noted that there we no statutory mitigating factors present, but there were nonstatutory factors that it would consider, including work history, family support and showing remorse. After a review of those factors, the trial court sentenced defendant to 50 years on each attempt murder charge, 26 years on the home invasion, 20 years on each aggravated discharge of a firearm, 3 years on the aggravated unlawful restraint charge, and 364 days on the possession of a firearm without a FOID card. Defendant is serving the sentences concurrently with credit for 467 days served. ¶ 20 The trial court denied defendant's posttrial motions. This timely appeal followed.
¶ 21 ANALYSIS
¶ 22 I. Reasonable Doubt
¶ 23 The defendant first contends that the State failed to prove the elements of attempt first degree murder beyond a reasonable doubt. He argues that his conviction must be reversed, where there were such inconsistencies in witness testimony that no rational trier of fact could have found that the essential elements of the crime had been proven beyond a reasonable doubt. Specifically, defendant contends that the State failed to prove he had the requisite specific intent to kill Officers Chavez, Bloom, or Bedford. ¶ 24 A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Vriner, 74 Ill. 2d 329, 342 (1978). We review a challenge to the sufficiency of the evidence to determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." (Internal quotation marks omitted.) People v. Collins, 214 Ill. 2d 206, 217 (2005) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). This standard of review applies whether the evidence is direct or circumstantial. People v. Pintos, 133 Ill. 2d 286, 291 (1989). ¶ 25 Where the defendant questions the sufficiency of the evidence supporting his conviction, our supreme court has enunciated both the standard and the role of this court:
"[I]t is not the function of the reviewing court to retry a defendant when considering a challenge to the sufficiency of the evidence of his guilt. [Citations.] Rather, determinations of the credibility of witnesses, the weight to be given to their testimony, and the reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. [Citations.]" People v. Oaks, 169 Ill. 2d 409, 457 (1996).¶ 26 Therefore, a reviewing court "will not substitute its judgment for that of the fact finder on questions involving the weight of the evidence or the credibility of the witnesses." People v. Campbell, 146 Ill. 2d 363, 375 (1992). ¶ 27 In the instant case, the defendant points to "serious credibility issues" surrounding the testimony of Officers Chavez, Bloom and Bedford in questioning the sufficiency of the evidence against him. Specifically, each law enforcement officer testified to some details and recollections of the incident that were absent from their written reports. ¶ 28 The cases cited by defendant in support of his contention are easily distinguishable from the case at bar. In People v. Smith, 185 Ill. 2d 532, 542-43 (1999), our supreme court found that where the State's case hinged on the testimony of one witness who identified the defendant as the shooter, her testimony was so improbable and unsatisfactory as to justify a reasonable doubt of the defendant's guilt. In reversing the defendant's murder conviction, the court pointed out numerous inconsistencies of the State's witness—the witness stated the victim was standing alone when shot, contrary to the testimony of the victim's companions and the bartender working that night; the witness's credibility was impeached a number of times with a written statement she provided investigators five months prior to trial; and that the witness had a motive to falsely implicate the defendant, insofar as a possible alternative defendant, Herbert Stevens, was the witness's sister's boyfriend at the time. Id. at 543-44. ¶ 29 The inconsistencies of the State's witness in Smith bear no resemblance to those "inconsistencies" in the testimony of the officers on the scene. Unlike in Smith, defendant did not offer any other impeachment evidence, nor was there any evidence presented that would indicate the officers had motive to lie. Chavez and Bloom failed to mention the bullet mirage in their written reports. The defense cross-examined the officers on these inconsistencies, and the jury had the opportunity to hear their explanations, determine their credibility, and draw inferences from their testimony. ¶ 30 Even had the information regarding the bullet mirage been left out of the report and the officers had not testified to it, its absence would not render the conviction reversible. Both Chavez and Bloom heard shots fired and heard the impact of the bullets near them. The fact remains that defendant did shoot his firearm out the front windows of Julie's apartment in the direction of the officers. Based upon all the testimony, a reasonable trier of fact could conclude that defendant shot in the officers' direction with the intent to kill. ¶ 31 The same analysis applies to Deputy Bedford's testimony regarding his position and stance on the roof above the skylight, which defendant contends is so unreasonable and improbable that no reasonable person could possibly believe it. The defense cross-examined Bedford, and presented the jury with exhibits in an attempt to highlight discrepancies in his testimony. Bedford was asked to mark the exhibit to show where the skylight was, and where the brick barrier that he was straddling was located in relation to the skylight. Again, the jury had the opportunity to hear his testimony, determine his credibility, and draw inferences based on the evidence presented to it. ¶ 32 Additionally, members of the Henry County sheriff's department, the city of Kewanee police department, the Illinois State Police, and the Geneseo police and fire departments were all on the scene. The State's numerous witnesses all testified to both hearing the shots and seeing where they hit. Some of the witnesses were also able to hear defendant yell at the officers on the roof. Again, the onus is not on this court to determine the veracity of the witnesses. The jury made a determination as to their credibility. The record contains sufficient evidence to allow a rational trier of fact to conclude that defendant fired shots through the skylight with the intent to kill Bedford. ¶ 33 "To sustain a conviction for attempted murder, it must be shown that the accused acted with the specific intent to kill [citation], but intent is a state of mind which, if not admitted, can be shown by surrounding circumstances, and the intent to take a life may be inferred from the character of the assault, the use of a deadly weapon, and other circumstances. [Citation.]" People v. Anderson, 108 Ill. App. 3d 563, 566 (1982). Furthermore, "[s]pecific intent to take a human life is a material element of the offense of attempt murder, but the very fact of firing a gun at a person supports the conclusion that the person doing so acted with the intent to kill." People v. Seats, 68 Ill. App. 3d 889, 895 (1979). ¶ 34 The evidence belies the argument that defendant shot off all rounds indiscriminately. After yelling, "I see you mother fuckers up there," defendant fired three shots through the skylight. This could lead any reasonable person to the conclusion that defendant was aware of Deputy Bedford's presence, and defendant was shooting at him. The same is true of the rounds fired towards Chavez and Bloom in their position above the theater marquee. Shoddy marksmanship does not preclude a finding of specific intent. ¶ 35 Defendant further argues that, "if [he] intended to kill Bedford, one would expect that he would have shot at him repeatedly—not just three times—in order to ensure that result." The contradiction of this statement is patent. Whether it was 1 shot, or 3, or 15, the fact remains that defendant, aware of the police presence on the roof, intentionally pointed his firearm upwards and fired three rounds through the skylight window. One shot could have been enough to find that specific intent existed. ¶ 36 The facts, when viewed in the light most favorable to the prosecution, are adequate to sustain convictions for attempt murder, and we decline to reverse defendant's convictions on the basis that the State failed to prove his guilt beyond a reasonable doubt.
¶ 37 II. Jury Instructions and Lesser-Included Offenses
¶ 38 The defendant contends that the trial court erred in denying his request to instruct the jury on the lesser-included offenses of reckless discharge of a firearm and aggravated assault in connection with his attempt murder charges. The defendant also contends that the trial court erred in failing to instruct the jury on residential burglary as a lesser-included offense of home invasion. We disagree. ¶ 39 A trial court's refusal to issue a specific jury instruction is reviewed under an abuse of discretion standard. People v. Douglas, 362 Ill. App. 3d 65, 76 (2005). Where some credible evidence exists to support an instruction for a lesser offense, it is an abuse of discretion to fail to give that instruction. People v. DiVencenzo, 183 Ill. 2d 239, 249 (1998). Whether a defendant has met the evidentiary minimum for a certain jury instruction is a matter of law and, thus, our review is de novo. People v. Tijerina, 381 Ill. App. 3d 1024, 1030 (2008). ¶ 40 Our analysis for properly given jury instructions on lesser-included offenses hinges on a determination of whether or not the uncharged offense was a lesser-included offense charged in the indictment, and if there was enough evidence adduced at trial to rationally support a conviction on the lesser-included offense and an acquittal on the greater offense. People v. Kolton, 219 Ill. 2d 353 (2006). It is well settled that, under the charging instrument approach, an offense may be deemed a lesser-included offense if the factual description of the charged offense describes, in a broad way, the conduct necessary for the commission of a lesser offense and any elements not explicitly set forth in the indictment can be reasonably inferred. Id. at 367. If it is determined that a particular offense is a lesser-included offense of a charged crime under the charging instrument approach, the court must then examine the evidence adduced at trial to decide whether the evidence rationally supports a conviction on the lesser offense. People v. Baldwin, 199 Ill. 2d 1, 11-15 (2002). Finally, a lesser-included offense instruction should be given if there is evidence adduced at trial that would support the defendant's theory of the case, even if that evidence is slight. People v. Scott, 256 Ill. App. 3d 844, 850 (1993). ¶ 41 If the trial court fails to tender a lesser-included instruction, the rule has been restated as providing that a "refusal to give an instruction is harmless error and does not warrant a reversal where the evidence is so clear and convincing that the jury could not have reasonably found that the defendant was not guilty." (Internal quotation marks omitted.) People v. Blan, 392 Ill. App. 3d 453, 459 (2009) (quoting People v. Taylor, 233 Ill. App. 3d 461, 465 (1992)). ¶ 42 Defendant argued for, and received, an instruction as to aggravated discharge of a firearm as a lesser-included offense of attempt murder. He contends, however, that the trial court erred in refusing to give instructions on the lesser-included offenses of reckless discharge of a firearm and aggravated assault when there was some evidence that he lacked the specific intent necessary to establish attempt murder. We note that the defendant's argument is directed only toward his two attempt murder convictions—he fails to make any specific argument regarding his lesser convictions for aggravated discharge or that they should be overturned on appeal.
¶ 43 a. Reckless Discharge of a Firearm
¶ 44 A person commits reckless discharge of a firearm by discharging a firearm in a reckless manner which endangers the bodily safety of an individual. 720 ILCS 5/24-1.5 (West 2012). On the other hand, a person commits aggravated discharge of a firearm as defined pursuant to section 24-1.2 of the Illinois Criminal Code of Procedure (the Code) when he or she knowingly or intentionally "(3) Discharges a firearm in the direction of a person he or she knows to be a peace officer *** while the officer *** is engaged in the execution of any of his or her official duties ***." 720 ILCS 5/24-1.2(a)(3) (West 2012). ¶ 45 The argument that defendant should have received the instruction on reckless discharge is unpersuasive. On five of the eight counts of attempt murder, the jury instead convicted defendant of aggravated discharge of a firearm. Of those eight attempt murder counts, he was only found guilty on two—count VI against Michael Chavez and Kevin Bloom, and count VII against Joseph Bedford. At the close of evidence, despite being instructed on aggravated discharge, the jury eschewed that lesser offense in favor of attempt murder. Perhaps even more compelling is the fact that the jury acquitted defendant on one count of attempt murder, demonstrating that it carefully considered the evidence and determined that the State had not met its burden on that count. On the record before us, we find that it is extremely unlikely that had the jury been presented with the option to choose the even less culpable reckless discharge instruction, it would have chosen it. ¶ 46 Furthermore, Illinois courts have clearly and consistently held that when a defendant points a firearm in the direction of an intended victim and fires the weapon, he has not acted recklessly. People v. Sipp, 378 Ill. App. 3d 157, 166 (2007). Following the directives of Kolton and Baldwin, we find that no jury could rationally find the defendant guilty of the lesser charge (reckless discharge) and acquit him on the greater offense (attempt murder). The evidence elicited in this case shows that defendant knew the officers were present on the roof and above the theater and fired his weapon in the direction of their relative positions. This knowledge does not comport with recklessness, nor does it support this theory of the defendant's case. Accordingly, the trial court did not err in refusing to instruct the jury as to reckless discharge of a firearm.
¶ 47 b. Aggravated Assault
¶ 48 We similarly find that the trial court did not err in refusing to instruct the jury on the lesser-included offense of aggravated assault as requested by defendant. Pursuant to section 12-1 of the Code, a person commits an assault when, without lawful authority, he or she knowingly engages in conduct which places another in reasonable apprehension of receiving a battery. 720 ILCS 5/12-1 (West 2012). A person commits aggravated assault when, in committing an assault, he or she knows the individual assaulted to be *** a peace officer, community policing volunteer, fireman, private security officer *** performing his or her official duties. Or when committing an assault, he or she discharges a firearm, other than from a motor vehicle. 720 ILCS 5/12-2(b)(4)(i), (c)(2) (West 2012). ¶ 49 A review of relevant case law leads us to the conclusion that aggravated assault is not a lesser-included offense of attempt murder under the charging instrument approach adopted in Kolton and Bryant. All eight attempt murder counts in the defendant's indictment charged that "Gerald J. Edwards, with the intent to commit the offense of first degree murder, in violation of Section 9-1(a)(1) of Act 5 of Chapter 720 of the Illinois Compiled Statutes, performed a substantial step toward the commission of that offense, in that he shot at [the officers' names] with a .22 caliber handgun***." The indictment does not contain a main outline of aggravated assault, such that an instruction would be warranted, since attempt murder may be committed without regard to the victim's state of mind. See People v. Jefferson, 260 Ill. App. 3d 895, 909 (1994); People v. Kimball, 243 Ill. App. 3d 1096, 1099 (1993) (where indictment specifically charged the defendant with shooting victim with a gun and evidence showed the defendant fired at victim's face rather than merely in his general direction, lesser-included offense instruction of aggravated assault was inapplicable); People v. Walker, 259 Ill. App. 3d 98, 103-04 (no error in refusing to give aggravated assault instruction as lesser-included offense where indictment charged the defendant with shooting the gun at the victim, and evidence showed he did shoot at victim and did not merely aim gun at him; the defendant could only have been found guilty or not guilty of attempted murder). Accordingly, we find that the trial court did not err in refusing to instruct the jury as to aggravated assault. ¶ 50 Assuming, arguendo, that aggravated assault was a lesser-included offense of attempt murder under the charging instrument approach, the trial court's refusal to instruct the jury was harmless error. Again, despite being instructed on the lesser offense of aggravated discharge, the jury found the defendant guilty on two of eight attempt murder counts, clearly choosing the greater offense, even when they had the option of choosing the lesser.
¶ 51 c. Residential Burglary
¶ 52 Finally, the defendant requested an instruction on residential burglary as a lesser-included offense on the home invasion charge based on the premise that the jury could have reasonably found that defendant entered the dwelling with the intent to commit the felony of unlawful restraint. Our analysis of the trial court's refusal to tender this instruction hinges on the fact that defendant's state of mind for home invasion is simply irrelevant. ¶ 53 Section 12-11 of the Code provides, in pertinent part, as follows:
"A person who is not peace officer acting in the line of duty commits home invasion when without authority he or she knowingly enters the dwelling place of another when he or she knows or has reason to know that one or more persons is present or he or she knowingly enters the dwelling place of another and remains in such dwelling place until he or she knows or has reason to know that one or more persons is present * * * and¶ 54 The elements of residential burglary, on the other hand, are as follows:
(4) Uses force or threatens the imminent use of force upon any person or persons within such dwelling place whether or not injury occurs and during the commission of the offense personally discharges a firearm ***." 720 ILCS 5/12-11 (West 2012).
"A person commits residential burglary who knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft." 720 ILCS 5/19-3(a) (West¶ 55 In this case, we agree with the State and find that residential burglary is an uncharged offense, not a lesser-included offense of home invasion. A conviction on home invasion in this case required proof that defendant, knew or should have known that Julie was present at the residence when he entered (or that upon finding her home, he remained), and that he threatened imminent force and personally discharged a firearm. Defendant knew Julie was home at the time, as Julie testified the defendant stated he wanted to kill himself in front of her to hurt her. The defendant knew she was present in the apartment, threatened force to get inside, and personally discharged a firearm. At that point, defendant had completed the crime of home invasion. ¶ 56 Whether he formed the intent to unlawfully restrain Julie prior to or after entering the apartment has no bearing on the home invasion charge; the defendant could have been charged and convicted of both offenses. See People v. Poe, 385 Ill. App. 3d 763 (2008) (holding that theft is not an included offense of burglary, and each has elements not included in the other so that multiple convictions of theft and burglary are not contrary to the one-act, one-crime doctrine). To be clear, if defendant had not formed the intent to commit unlawful restraint until after he was inside the apartment, he would still be guilty of home invasion, but perhaps not residential burglary. Thus, we agree that any evidence showing that he formed the intent for unlawful restraint prior to entering her home could have sustained a guilty finding for residential burglary, but would not have precluded a guilty finding on home invasion as the greater offense. Instructing the jury on a lesser-included offense is proper only where the evidence permits the jury to rationally find the defendant guilty of the lesser offense, but not guilty on the greater offense. Bryant, 113 Ill. 2d at 507. Accordingly, the trial court did not err in failing to instruct the jury as to residential burglary as a lesser-included offense of home invasion.
2011).
¶ 57 III. Sentencing
¶ 58 Finally, defendant contends that the concurrent 50-year sentences imposed by the trial court on the attempt murder charges was excessive and constituted an abuse of discretion. ¶ 59 It is well settled that the trial court has broad discretionary powers in imposing a sentence, and the trial court's sentencing decision is entitled to great deference. People v. Alexander, 239 Ill. 2d 205, 212 (2010) (citing People v. Stacey, 193 Ill. 2d 203, 209 (2000)). The trial court is generally in a better position than the reviewing court to determine the appropriate sentence, as the trial court has the opportunity to weigh such factors as the defendant's credibility, demeanor, general moral character, mentality, social environment, habits and age. People v. Streit, 142 Ill. 2d 13, 19 (1991). Consequently, the reviewing court must not substitute its judgment for that of the trial court merely because it would have weighed these factors differently. Id. Absent an abuse of discretion by the trial court, the sentence may not be altered on review. Id. However, while the trial court is vested with wide discretion in sentencing, such discretion is not without limitation. Stacey, 193 Ill. 2d at 209. Even a sentence within statutory limits will be deemed excessive and a result of an abuse of discretion where the sentence is greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense. People v. Fern, 189 Ill. 2d 48, 54 (1999). ¶ 60 Applying these principles to the instant case, we find that the trial court did not abuse its discretion in imposing a 50-year sentence on each the two attempt murder convictions. Defendant's argument is two-fold: (1) the trial court erroneously found that no statutory mitigating factors were present; and (2) the trial court failed to give appropriate consideration to nonstatutory mitigating evidence. The evidence in the record before us simply does not support that conclusion. At the sentencing hearing, the trial court outlined both mitigating and aggravating factors in a thorough, step-by-step review. Even assuming, arguendo, that the mitigating factors were present, their existence does not automatically oblige a trial court to reduce a sentence from the maximum sentence allowed. See People v. Smith, 214 Ill. App. 3d 327, 339 (1991). ¶ 61 It is also readily apparent that the trial court properly reviewed and weighed the nonstatutory mitigating factors. The court believed that defendant was a hard worker, had the love and support of his family, and showed remorse. However, these factors were counter-balanced by the fact that defendant refused to get the help he needed from his family. While he had taken and completed anger management programs in the past, he was still prone to explosive outbursts and violence. He also refused to take medicine prescribed to him that would help treat his depression and borderline personality disorder; his drug and alcohol abuse went unchecked. The trial court was also swayed by the defendant's criminal record. While defendant did not have any felony convictions, he did have a number of misdemeanor convictions dating back to the time when he was a juvenile. Moreover, some of those convictions were for violent acts, such as domestic battery and assault. Attempt murder is a Class X felony for sentencing purposes, and carries with it a sentencing range of not less than 6 years and not more than 30 years. 720 ILCS 5/8-4(c)(1) (West 2012). However, that sentence is required to be not less than 20 years or more than 80 years where one of the aggravating factors of section 9-1(b)(1), (2), or (12) is present. 720 ILCS 5/9-1(b) (West 2012). When reviewing the factors in total and accounting for the aggravating factors of section 9-1(b), we cannot say that the trial court abused its discretion in imposing sentences of 50 years on defendant's attempt first degree murder convictions.
¶ 62 CONCLUSION
¶ 63 For the foregoing reasons, the judgment of the circuit court of Henry County is affirmed. ¶ 64 Affirmed. ¶ 65 PRESIDING JUSTICE WRIGHT, specially concurring. ¶ 66 Defendant initially faced a twelve count indictment. After weighing the evidence, the jury agreed with the State's theory of prosecution on only five of the twelve offenses by finding defendant guilty, as charged, of the following crimes: (1) attempt first degree murder of peace officers Kevin Bloom and Michael Chavez as alleged in count VI, (2) attempt first degree murder of Officer Joseph Bedford as alleged in count VII, (3) home invasion as alleged in count IX, (4) aggravated unlawful restraint of Julie Stadt as alleged in count XI, and (5) possession of a firearm without the requisite FOID card as alleged in count XII. ¶ 67 After receiving the lesser offense instructions requested by the defense, for all of the attempt first degree murder charges, the jury also found defendant guilty of five counts of aggravated discharge of a firearm, corresponding to counts I through V of the indictment. On appeal, as the majority notes, this defendant challenges only his convictions for the three charged offenses set out in counts VI, VII, and IX. ¶ 68 With respect to the two convictions resulting from the attempt first degree murder charges as set out in counts VI and VII, the court allowed defendant's request for jury instructions on the lesser, but uncharged, offense of aggravated discharge of a firearm. Nonetheless, the jury convicted defendant of the greater offense on each count. Defendant now contends on appeal that a different result may have occurred if the court instructed the jury to also consider whether defendant may have committed the even-lesser- offenses of reckless discharge of a weapon (720 ILCS 5/24-1.5 (West 2008)) and aggravated assault (720 ILCS 5/12-2(a)(1) (West 2008)) with respect to counts VI and VII. In addition, defendant appeals his conviction resulting from count X, home invasion, on similar grounds, arguing that the trial court should have instructed the jury on the uncharged offense of residential burglary. ¶ 69 I agree with the majority that the evidence in this case supports each one of defendant's three convictions, subject to this appeal, beyond a reasonable doubt. I also agree there is no reversible error in this record based on the jury instructions or the sentences imposed. ¶ 70 I write separately for two reasons. First, I wish to observe that the trial judge's decision to conscientiously reconsider, sua sponte, his own initial ruling pertaining to the additional uncharged offense jury instructions, resulted in a fair trial for both the defense as well as the prosecution. Second, and perhaps more importantly, our supreme court has not had an opportunity to recently articulate whether the abstract elements test or the charging instrument approach is the preferred method for a reviewing court to employ when deciding whether a defendant is entitled to have the jury instructed on certain uncharged offenses. Therefore, I prefer to consider both the abstract elements test and the charging instrument test when reviewing the trial court's decision in this case. ¶ 71 After tediously applying both the charging instrument approach and the abstract elements test, I am also convinced, like the majority, that no instructional error occurred in the case at bar. Since no instructional error exists, harmless error has no application as a basis to affirm these three convictions. ¶ 72 Based on the majority's discussion, it appears the majority's conclusion on the jury instructions issue is actually based on an abstract elements approach since the language of the charging instrument is not recited, and then compared, with respect to all three purported lesser-included offenses. With this said, I submit that the abstract elements approach is the proper test that should be applied by this court when deciding, de novo, whether this defendant was entitled to instruct a jury on uncharged offenses that the State elected not to prosecute. Regardless, my respected colleagues and I have reached the same conclusion concerning the jury instructions in this case by approaching the issue from different directions. I agree that the three convictions at issue should be affirmed. ¶ 73 Turning to the case law issued by our supreme court, in People v. Kolton, 219 Ill. 2d 353 (2006), a case involving a bench trial, the court applied the charging instrument approach when reviewing whether convictions for lesser-included, but uncharged, offenses could stand. In People v. Baldwin, 199 Ill. 2d 1 (2002), also involving a bench trial, our supreme court stated in dicta that the charging instrument approach applied by the court in that case would also apply, under other circumstances, to determine whether a jury should be instructed on certain uncharged offenses. Id. at 6. Later, the court held that for purposes of precluding multiple convictions arising out of the same course of criminal conduct, the abstract elements approach, rather than the charging instrument test, should be applied by the courts of this state. People v. Miller, 238 Ill. 2d 161 (2010). ¶ 74 Based on my own confusion regarding the status of recent case law, I do not believe the instructions issue in this appeal should be decided without first considering both the abstract elements test and the charging instrument approach. With an apology to the reader in advance, I recognize the duplicative comparisons of the charged and uncharged offenses using these two separate approaches involves unavoidable redundancy.
It seems clear to me that our supreme court has rejected the evidence presented test, also referred to as the inherent relationship test, as a balanced approach to a lesser-included issue. Baldwin, 199 Ill. 2d at 12. In Baldwin, and relying on language from People v. Novak, 163 Ill. 2d 93 (1994), our supreme court reiterated that this test was too broad because it would require parties to litigate all possible lesser offenses, or risk preparing less than all possible lesser offenses, or only the charged offense. Id.
¶ 75 I. Abstract Elements Approach
¶ 76 When every one of the statutory elements of the uncharged lesser offense is mirrored in the statutory elements of the charged but greater offense, the uncharged offense will be considered a lesser-included offense of the other. Miller, 238 Ill. 2d at 166. For example, every abstract element of the offense of battery (720 ILCS 5/12-3 (West 2008)) is contained in the abstract elements of the offense of aggravated battery (720 ILCS 5/12-4 (West 2008)). This test focuses on the elements, in the abstract, by statute, not the specific, and perhaps more detailed, language used by the State in the indictment.
¶ 77 A. Reckless Discharge of a Firearm
¶ 78 The abstract elements of the offense of attempt first degree murder defined by statute requires a person to perform a substantial step towards the commission of first degree murder with the specific intent to kill another. 720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 2008). In comparison, the statutory elements of the offense of reckless discharge of a firearm requires a person to recklessly discharge a firearm in a manner which endangers the bodily safety of an individual. 720 ILCS 5/24-1.5(a) (West 2008). Moreover, one offense is based on an act with the specific intent to kill, and does not require the use of a firearm. The other requires an act that is not intentional, but does require the use of a firearm. ¶ 79 In Miller, the court held that burglary and theft do not share a lesser-included relationship because "the requisite intents are different." Miller, 238 Ill. 2d at 176. Based on the language of Miller, I conclude that a substantial step committed with the specific intent to kill cannot also include reckless actions. For this reason, based on the abstract elements approach, I respectfully conclude that reckless discharge of a firearm is not a lesser-included offense of attempt first degree murder for purposes of instructing a jury.
¶ 80 B. Aggravated Assault
¶ 81 Next, I consider the statutory elements of attempt first degree murder and aggravated assault pursuant to the abstract elements approach. The elements of the greater offense require a substantial act, not necessarily involving a firearm, combined with the specific intent to kill the intended victim of that act, who does not have to be a peace officer. 720 ILCS 5/8-4(a), 5/9-1(a)(1) (West 2008). In this case, the elements of the lesser offense requires the victim must be a peace officer, coupled with an offender's knowing decision to place the peace officer in reasonable apprehension of receiving a battery. 720 ILCS 5/12-2(a)(1) (West 2008). Other than sharing the same intent, aggravated assault shares no other common abstract statutory elements with the offense of attempt first degree murder. Based on this observation, I respectfully conclude that aggravated assault is not a lesser-included offense of attempt first degree murder using the abstract element approach for the purpose of instructing a jury.
¶ 82 C. Residential Burglary
¶ 83 Finally, using an abstract elements test, I consider the statutory elements of home invasion, a Class X felony, and the statutory elements of residential burglary, a Class 1 felony. The abstract statutory elements of home invasion require a knowing, unauthorized entry into the dwelling of another while a person is present, and the use or threatened use of force against that person after entry. 720 ILCS 5/12-11(a)(4) (West 2008). Residential burglary similarly requires knowing, unauthorized entry into the dwelling place of another with the simultaneous intent to commit a felony or theft. 720 ILCS 5/19-3(a) (West 2008). Obviously, both offenses require an unauthorized entry into a dwelling place of another but the purported lesser uncharged offense of residential burglary requires felonious intent before entry and home invasion does not. ¶ 84 The only statutory element common to both offenses is the unauthorized entry into a dwelling place of another, but residential burglary does not share all elements in common with home invasion. See People v. Rathgeb, 113 Ill. App. 3d 943, 949 (1983) (neither burglary nor home invasion are included offenses of the other by definition or as charged); People v. Robinson, 125 Ill. App. 3d 1077, 1079-80 (1984) (because residential burglary requires proof of an element not necessary for proof of home invasion, a different mental state, it cannot be an included offense); People v. Hawkins, 125 Ill. App. 3d 520, 522-23 (1984) (every element of residential burglary is not included in home invasion). Therefore, a comparison of the abstract statutory elements of home invasion to the abstract statutory elements of residential burglary does not reveal that residential burglary is a lesser-included offense of home invasion.
¶ 85 II. Charging Instruments Approach
¶ 86 As recognized in Miller, the charging instruments approach requires the court to first consider the actual language of the charging instrument, in this case, an indictment, to determine whether the State's language, rather than the elements set forth in the statute, outlines all conduct necessary to prove the statutory elements of the lesser uncharged offense. Miller, 238 Ill. 2d at 166-67. Conduct can also be inferred from the words used in the language of the charging instrument itself. Id. Therefore, it is necessary to recite the language contained in the indictment in this case to the statutory elements of the purported lesser-included offenses at issue. ¶ 87 Count VI of the indictment charging attempt first degree murder alleged that defendant
"with the intent to commit the offense of First Degree Murder *** performed a substantial step toward the commission of that offense, in that he shot at Kevin Bloom and Michael Chavez with a .22 caliber handgun, knowing Kevin Bloom and Michael Chavez to be peace officers engaged in the course of performing their official duties."Count VII of the indictment charging attempt first degree murder alleged that defendant
"with the intent to commit the offense of First Degree Murder *** performed a substantial step toward the commission of that offense, in that he shot at Joseph Bedford with a .22 caliber handgun, knowing Joseph Bedford to be a peace officer engaged in the course of performing his official duties."Count X of the indictment charging home invasion alleged that defendant
"not a peace officer acting in the line of duty, knowingly, and without authority entered the dwelling place of Julie Stadt *** and remained in such dwelling place after he knew or had reason to know that one or more persons were present, and while armed with a firearm, threatened the imminent use of force against
Julie Stadt, in that said defendant held a gun to Julie Stadt's head, and said defendant personally discharged a firearm."
¶ 88 A. Reckless Discharge of a Firearm
¶ 89 The statutory offense of reckless discharge of a firearm requires a person to discharge a firearm in a "reckless manner which endangers the bodily safety of an individual." 720 ILCS 5/24-1.5(a) (West 2008). Since reckless discharge of a firearm requires a different state of mind, recklessness, this lesser offense is not included in the language of the indictment concerning either count VI or count VII for attempt first degree murder, which alleges defendant committed an intentional act. Therefore, the evidence admitted during trial becomes irrelevant since the first step of the charging instrument approach decides this issue. Baldwin, 199 Ill. 2d at 15. ¶ 90 As stated above, a person cannot commit a single act both intentionally and recklessly. See Miller, 238 Ill. 2d at 176. For this reason, I conclude that the trial court properly refused to tender the defense's requested jury instructions for reckless discharge of a firearm since it is not a lesser-included offense of attempt first degree murder as presented in the language of the charging instrument in this case.
¶ 91 B. Aggravated Assault
¶ 92 The statute provides that an aggravated assault occurs when a person causes a peace officer engaged in his or her official duties to reasonably apprehend or believe he or she will be battered. 720 ILCS 5/12-2(a)(1) (West 2008). The actual language of the indictment regarding counts VI and VI required the State to prove, perhaps for purposes of sentencing alone, that defendant discharged a firearm and knew the intended murder victims were peace officers engaged in their official duties. ¶ 93 Using the charging instrument approach, the language of the indictment alleges the victims were peace officers, but does not contain language alleging the officers reasonably believed they would be battered, a required element of the lesser offense of aggravated assault. Thus, every element of aggravated assault is not included in the language of the indictment charging attempt first degree murder in this case. Since the language of the charging instrument is insufficient to meet the first step of the charging instrument approach, the evidence admitted during trial becomes irrelevant because the first step of the charging instrument approach decides this issue. Baldwin, 199 Ill. 2d at 15. ¶ 94 Therefore, in spite of defense counsel's assertion that the evidence allowed the jury to decide the officer's may have reasonably apprehended they would be injured, this evidence plays no role in the charging instrument analysis under these circumstances. For this reason, I conclude that the trial court properly refused to tender the defense's requested jury instructions for aggravated assault because it was not a lesser-included offense of attempt first degree murder based on the charging instrument approach.
¶ 95 C. Residential Burglary
¶ 96 The statute defining the crime of residential burglary requires that a defendant knowingly and without authority enter the dwelling place of the victim with the intent to commit a felony or theft. 720 ILCS 5/12-11(a)(4) (West 2008). Comparing the language of count X to the statutory elements of residential burglary, the language of the indictment does not include every element of residential burglary because there is no allegation in the indictment that this defendant entered with the simultaneous intent to commit a felony or theft. See Rathgeb, 113 Ill. App. 3d at 949. Thus, the language of the charging instrument, in this case, does not outline the statutory requirements for residential burglary. Therefore, the trial court's refusal to tender the defendant's jury instructions was proper if reviewed using the charging instrument approach.
¶ 97 III. Court's Sua Sponte Decision to Reconsider
¶ 98 I also write separately to express my view that the trial court did a commendable job of ensuring both the defense and the prosecution received a fair trial. As the trial court noted, the easiest way to be reversed on appeal is to refuse to instruct a jury on a purported lesser-included offense. In this case, the judge's comments reveal that the court was mindful that an instructional error requiring reversal, would not arise if the court ruled in favor of the defense. To err in favor of the defense is human, but such instructional errors may not entirely protect the prosecutor's expectation of fair jury deliberations. ¶ 99 I respectfully observe that it is solely the prosecution's decision whether to charge defendant with, and attempt to prove, the most serious offense supported by defendant's alleged misconduct. Normally, the defense is not allowed to participate in the decision regarding which crime the defendant should be placed on trial for committing. The only exception to this rule arises when a defendant wishes for the trier of fact to have an opportunity to consider a compromise verdict on another uncharged crime as a defense strategy. This exception is not without strict limitations as discussed above, and should, in my view, be decided by using the abstract elements approach. ¶ 100 The judge's decision to revisit his initial ruling, sua sponte, was not only correct, it was judicious to both sides. At the end of the day, the jury ultimately found that defendant intended to kill only three of the 15 peace officers he fired shots at during the December 11, 2009 incident. In addition, the jury found defendant guilty, as charged, of home invasion, aggravated unlawful restraint, possession of a firearm without a valid FOID card, and five counts of the uncharged lesser offenses of aggravated discharge of a firearm. ¶ 101 The outcome in this case certainly was not what the State anticipated, or the defense desired; thereby causing me to conclude that the court conducted the trial and the sentencing in an even-handed fashion. As previously stated, I agree with the majority that the evidence at trial was sufficient, the instructions the jury received do not require a new trial, and that defendant's sentence was not an abuse of discretion considering the serious circumstances disclosed during trial. ¶ 102 For the reasons stated above, I specially concur.