# People v. Stewart

> Appellate Court of Illinois · December 10, 2010 · 406 Ill. App. 3d 518

URL: https://www.frixlaw.com/law-library/cases/9863348

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FREDERICK STEWART, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** December 10, 2010
- **Citations:** 406 Ill. App. 3d 518; 346 Ill. Dec. 273; 940 N.E.2d 273; 2010 Ill. App. LEXIS 1309
- **Precedential status:** Published
- **Opinion:** Concurrence by Garcia
- **Judges:** McBride, Garcia
- **Cited by:** 11 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9863348

## How later opinions describe it (automated extraction)

- finding the defendant was not prejudiced by the failure to instruct the jury on the lesser-included offense because the evidence supporting the defendant’s greater offense was so strong

## Opinion text

PRESIDING JUSTICE GARCIA, specially concurring:
I agree with the majority that there is “no basis upon which the jury could have rationally acquitted [the defendant] of aggravated arson but found him guilty of criminal damage to property.” 406 Ill. App. 3d at 539. I do not agree, however, that to arrive at that conclusion we need to engage in a lesser-included offense analysis. Specifically, I disagree with the majority’s statement, aided by the State’s concession, that criminal damage to property is a lesser included offense of aggravated arson under the facts of this case. 406 Ill. App. 3d at 537.
The two offenses, criminal damage to property and aggravated arson, are separated by the intermediate (so to speak) offense of arson, with which the defendant was also charged. The defendant nonetheless insists that his lesser-included contention does not apply to the charged offense of arson. Little wonder, as demonstrated by the majority, the evidence is overwhelming that the defendant purposely set fire to an abandoned building. The defendant’s contention before us appears to be that the trier of fact could have found his purposeful acts as to one building to be merely reckless as to the occupied building to which the fire spread.
There is no authority that supports the defendant’s claim that his purposeful state of mind in starting a fire by pouring gasoline on the back porch of an abandoned building can change to a reckless state of mind based on strong winds blowing at the time. Only one fire was set; that fire was set purposely. I am not persuaded that under the facts of this case criminal damage to property is a lesser-included offense of aggravated arson. See People v. Miller, 238 Ill. 2d 161, 165-66 (2010) (“lesser-included offense [is] an offense established by proof of lesser facts *** than the charged offense”), citing 720 ILCS 5/2 — 9 (West 2004). The claimed lesser “facts” in this case, that the defendant acted only recklessly in setting a fire that spread to an occupied building or that he should not be saddled with knowing the building was occupied, could not be found to be “facts” by the jury.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9863348. Public record. Not legal advice.