PEOPLE v. STEWART

nitially, defendant cites no authority in support of his claim that "adjacent" is a necessary element of the offense of aggravated arson. A point raised on appeal that is not supported by citation to relevant authority is waived under Supreme Court Rule 341(h)(7) (210 Ill. 2d R. 341(h)(7)). People v. Ward, 215 Ill. 2d 317, 332 (2005). Moreover, the State did not charge defendant with damaging an "adjacent" building but, rather, with knowingly damaging the building located at 5354 South Princeton. Therefore, the State was not required to prove that 5354 South Princeton was adjacent to 5405 South Shields. As discussed above, the State proved beyond a reasonable doubt that defendant knowingly damaged the building located at 5354 South Princeton. Therefore, we conclude that the State proved defendant guilty of aggravated arson beyond a reasonable doubt.

"Adjacent" is commonly defined as "lying near, close, or contiguous, neighboring." Webster's Unabridged Dictionary 28 (2d ed. 1998). Although the State was not required to prove that 5354 South Princeton was adjacent to 5405 South Shields, the evidence presented at trial clearly established that the two buildings were adjacent.

• 3 Defendant next contends that the State failed to prove him guilty of arson beyond a reasonable doubt. The relevant statute provides that "[a] person commits arson when, by means of fire or explosive, he knowingly: (a) [d]amages any real property, or any personal property having a value of $150 or more, of another without his consent." 720 ILCS 5/20-1 (West 2006). In this case, the State charged defendant with arson "in that he, by means of fire or explosion, knowingly damaged any real property, to wit, 5405 South Shields, Chicago, Cook County, Illinois, the property of Willie Jones without the consent of Willie Jones."

Defendant asserts that the State failed to prove the "of another" element of arson because the evidence presented at trial did not establish that Willie Jones or anyone else had an interest in the property located at 5405 South Shields. Defendant again claims that our review should be de novo because his claim involves only the determination of whether the uncontested facts met the State's burden of proof. However, we will review defendant's argument as a challenge to the sufficiency of the evidence because defendant is contesting the inferences that can be drawn from the evidence presented at trial. See Hinton, 402 Ill. App. 3d at 183.

The arson statute provides that "[p]roperty `of another' means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property." 720 ILCS 5/20-1 (West 2006). The "of another" requirement of the arson statute is interpreted broadly. See People v. Smith, 258 Ill. App. 3d 633, 638-39 (1994) ("Illinois case law has recognized a broad, liberal definition of ownership of property"). While it is not necessary to prove the identity of the owner or possessor of the premises, the proof must establish that the property is one in which someone other than the defendant has an interest which the defendant has no authority to impair. People v. Rawls, 57 Ill. App. 3d 702, 705 (1978).

We conclude that the State failed to prove this element of the offense beyond a reasonable doubt. The State alleged in the indictment that Willie Jones was the person who had an interest in the building at 5405 South Shields. However, the primary evidence offered by the State to establish this element was Jones' death certificate, which lists his address as 5405 South Shields on the date of his death, September 22, 2006. At most, this established that Jones had an interest in the property eight months before the fire and it did not establish that Jones had an interest in the property at the time of the arson. Moreover, the eight-month period is simply too long, without more, to permit a reasonable inference that any interest Jones had in the building continued after his death until the time of the fire. The only evidence relating to that eight-month period was testimony that the building was vacant and that squatters had been seen inside of it. However, this evidence does not establish that Jones or anyone else had an interest in the property during that time or at the time of the fire. The only other evidence in the record is Sloan's testimony that "an older guy" used to live in the house at 5405 South Shield but that nobody lived in the house at the time of the fire. Even assuming that this was a reference to Jones, Sloan's testimony is only consistent with the death certificate and it does not add any greater proof that Jones had an interest in the property at the time of the arson.

The State claims that although Jones was deceased prior to the date of the arson, the death certificate supports the inference that Jones' estate owned the property at the time defendant set fire to it or that it was the property of the State. See 755 ILCS 20/1 (West 2008) ("If any person dies owning any real or personal estate without any legacy, and leaving no known heirs or representatives capable of inheriting the same ***, such real and personal estate shall escheat as provided in the Probate Act of 1975 ***"). However, the State's theory of the case, as reflected in the indictment, was that Jones was the person who had an interest in the property at the time of the fire. Consistent with this theory, the State argued in closing that the death certificate established that Jones lived at 5405 South Shields "at one point in his life" and that because no one was living in the building at the time of the fire, defendant "damaged the real property of Willie Jones." The jury was also instructed that the State had to prove that defendant knowingly damaged the real property of Willie Jones. The State did not offer any evidence at trial to support the theory that Jones' estate owned the property at the time defendant set fire to it or that it was the property of the State. For example, no evidence was presented establishing what type of interest Jones had in the property and therefore there is no basis in the record to conclude that Jones had an ownership or other type of interest that could have gone to his estate or escheated to the State. In addition, it appears that the State had information as to who owned the building, as evidenced by Detective Bell's testimony that he used the county assessor's taxpayer database to determine the owner of the property. However, after the trial court sustained an objection on hearsay grounds when the State attempted to elicit the name of the property owner from Detective Bell, the State thereafter chose not to elicit any evidence as to who lived in or who owned the building at the time of the fire. In the absence of such evidence, the record is insufficient to permit the inference that the State suggests.

The State also claims that the testimony establishing that the building was vacant was sufficient by itself to prove that someone other than defendant had an interest in the property because "logically a vacant building belongs to either the State or some other individual or entity that has not claimed the interest." The State further claims that the death certificate establishes that defendant was not the previous owner of the property and that, when these pieces of evidence are considered together, they establish that someone other than defendant had an interest in the property at the time of the fire.

We cannot conclude that evidence indicating that defendant did not have an interest in the property is sufficient to meet the State's burden of proving beyond a reasonable doubt that someone other than defendant had an interest in the property. The State does not cite to any authority holding that its burden of proof on this element was satisfied by evidence indicating that the defendant did not have an interest in the property. Moreover, although it is not necessary to prove the identity of the owner or possessor of the property, in each case cited by the parties there was some evidence indicating that a person or entity had an interest in the property at the time of the arson that the defendant had no right to impair. See, e.g., People v. Gaither, 103 Ill. App. 2d 47, 55 (1968) (named person testified that she leased an apartment in the building); People v. Tisley, 20 Ill. App. 3d 145, 148 (1974) (evidence showed that a contract purchaser had an interest in the building); People v. Ross, 41 Ill. 2d 445, 450 (1968) (record showed that bank had received a court order of possession of the premises through foreclosure); Smith, 258 Ill. App. 3d at 637-39 (witnesses testified to the names of the co-owners of the premises and other witnesses testified that they were lessees of apartments in the building at the time of the fire); Rawls, 57 Ill. App. 3d at 703-04 (witness testified that she lived in an apartment in the building and that the apartment was damaged by the fire). The type of evidence that satisfied the State's burden of proof in these cases is lacking in this case and we conclude that the evidence contained in the record is insufficient to prove that someone other than defendant had an interest in the property at the time of the fire.

While the trier of fact, in this case the jury, was responsible for weighing the evidence and drawing reasonable inferences from that evidence, its determination is not conclusive. People v. Smith, 185 Ill. 2d 532, 542 (1999). Rather, we will reverse a conviction where the evidence is so unreasonable, improbable, or unsatisfactory as to create a reasonable doubt of defendant's guilt. Smith, 185 Ill. 2d at 542. In this case, for the reasons discussed above, we conclude that the evidence was insufficient to prove defendant guilty of arson beyond a reasonable doubt and we therefore reverse that conviction.

In a related argument, defendant claims that the trial court erred by admitting the death certificate of Willie Jones into evidence. However, this claim relates only to defendant's conviction for arson and we need not consider it given that we have reversed that conviction.

Defendant next contends that he was denied a fair trial because the trial court failed to question the prospective jurors on their understanding and acceptance of the legal principles outlined in People v. Zehr, 103 Ill. 2d 472 (1984), and set forth in Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). We review defendant's contention de novo. See People v. Tlatenchi, 391 Ill. App. 3d 705, 721 (2009) (a trial court's compliance with supreme court rules is reviewed de novo).

In Zehr, 103 Ill. 2d at 476-78, our supreme court held a trial court abused its discretion during voir dire by refusing the defense counsel's request to ask questions about the State's burden of proof, defendant's right not to testify, and the presumption of innocence. The court reasoned that "essential to the qualification of jurors in a criminal case is that they know that a defendant is presumed innocent, that he is not required to offer any evidence in his own behalf, that he must be proved guilty beyond a reasonable doubt, and that his failure to testify in his own behalf cannot be held against him." Zehr, 103 Ill. 2d at 477.

In 1997, the supreme court amended Rule 431 to ensure compliance with the requirements of Zehr. 177 Ill. 2d R. 431, Committee Comments, at lxxix. Following that amendment, Rule 431(b) provided:

" If requested by the defendant, the court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects.

The court's method of inquiry shall provide each juror an opportunity to respond to specific questions concerning the principles set out in this section." (Emphasis added.) 177 Ill. 2d R. 431(b).

On March 21, 2007, the supreme court amended Rule 431(b) by removing the phrase, "If requested by the defendant." The amended version now reads:

"The court shall ask each potential juror, individually or in a group, whether that juror understands and accepts the following principles: (1) that the defendant is presumed innocent of the charge(s) against him or her; (2) that before a defendant can be convicted the State must prove the defendant guilty beyond a reasonable doubt; (3) that the defendant is not required to offer any evidence on his or her own behalf; and (4) that the defendant's failure to testify cannot be held against him or her; however, no inquiry of a prospective juror shall be made into the defendant's failure to testify when the defendant objects." Ill. S. Ct. R. 431(b) (eff. May 1, 2007).

The amended version of Rule 431(b) now imposes a sua sponte duty on the trial court to question the potential jurors as to whether they understand and accept the Zehr principles. Such questioning is no longer dependent upon a request by defense counsel. People v. Yarbor, 383 Ill. App. 3d 676, 682 (2008).

Defendant claims that the trial court failed to comply with the amended version of Rule 431(b) because it did not question the prospective jurors as to their understanding and acceptance of the principle that defendant's decision not to testify cannot be held against him. Defendant asserts that prejudice may be presumed from the trial court's failure to comply with Rule 431(b) and that, as such, the error requires automatic reversal. The State does not dispute that the trial court failed to question the prospective jurors about this principle, and we agree that the court's failure to do so was error. The State argues, however, that defendant's claim is subject to forfeiture because he did not raise an objection at trial or include the issue in his posttrial motion. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (failure to raise objection at trial and include the objection in a posttrial motion results in waiver of that issue on appeal). Defendant responds that the rule of forfeiture should be relaxed because "it is the [trial] judge's conduct that is at issue" and that requiring defense counsel to object to the trial court's noncompliance with Rule 431(b) would be inconsistent with the purpose of the amendment to Rule 431(b). Alternatively, defendant argues that his claim should be reviewed for plain error because the trial court's failure to comply with Rule 431(b) deprived him of his "right to a fair trial before a properly selected jury."

Our supreme court recently decided this issue in People v. Thompson, 238 Ill. 2d 598 (2010). In that case, the trial court violated the current version of Rule 431(b) because it did not question the prospective jurors as to whether they understood and accepted that defendant was not required to produce any evidence on his own behalf. Additionally, while the court asked the prospective jurors if they understood the presumption of innocence, the court did not ask whether they accepted that principle.

The court then considered whether a violation of Rule 431(b) was a structural error requiring automatic reversal. It noted that automatic reversal is required only when an error is deemed "structural" and that the Supreme Court has recognized an error as structural only in a limited class of cases. Thompson, 238 Ill. 2d at 609, citing People v. Glasper, 234 Ill. 2d 173, 197-98 (2009). The court also noted its previous observations in Glasper that a trial court's failure to comply with the prior version of Rule 431(b) did not involve a fundamental right or a constitutional protection but, rather, involved a violation of the supreme court's rules that was subject to harmless error review Thompson, 238 Ill. 2d at 609, citing Glasper, 234 Ill. 2d at 193. The court held that while trial before a biased jury is structural error subject to automatic reversal, the "failure to comply with Rule 431(b) does not necessarily result in a biased jury" or "render a trial fundamentally unfair or unreliable in determining guilt or innocence." Thompson, 238 Ill. 2d at 610, 611. It pointed out that there was no evidence that the defendant in that case was tried before a biased jury, that the trial court did address some of the Rule 431(b) requirements in voir dire, and that the jury was admonished and instructed on Rule 431(b) principles. Thompson, 238 Ill. 2d at 611. Accordingly, the court held that the trial court's violation of Rule 431(b) did not fall within the category of structural errors and thus did not require automatic reversal. Thompson, 238 Ill. 2d at 611.

The defendant in Thompson acknowledged that his claim was forfeited because he did not object to the trial court's failure to comply with Rule 431(b) or include the issue in his posttrial motion. He asked the court to relax the rule of forfeiture because the trial judge's conduct was at issue and because of the impracticality of a party objecting to a trial judge's questions. Thompson, 238 Ill. 2d at 611. Referring to this principle as the " Sprinkle doctrine," the court noted that it allowed the failure to preserve an error to be excused "only in extraordinary circumstances," such as "when a judge makes inappropriate remarks to a jury or relies upon social commentary instead of evidence in imposing a death sentence." Thompson, 238 Ill. 2d at 612. There was no compelling reason to relax the forfeiture rule in Thompson, however, because a "simple objection would have allowed the trial court to correct the error during voir dire" and there was "no indication that the trial court would have ignored an objection to the Rule 431(b) questioning." Thompson, 238 Ill. 2d at 612.

The defendant also claimed that the trial court's violation of Rule 431(b) was reviewable under the second prong of plain-error review because it infringed on his right to an impartial jury and thus affected the fairness of his trial and challenged the integrity of the judicial process. The court equated the second prong of plain-error review with structural error and recognized that "[a] finding that the defendant was tried by a biased jury would *** satisfy the second prong of plain-error review." Thompson, 238 Ill. 2d at 614. The court found, however, that the defendant had failed to meet his burden of establishing that the jury in his case was biased and stated that it could not "presume the jury was biased simply because the trial court erred in conducting the Rule 431(b) questioning." Thompson, 238 Ill. 2d at 614. The court then reiterated that the failure to conduct Rule 431(b) questioning does not necessarily result in a biased jury and noted that the prospective jurors received some of the Rule 431(b) questioning and that the venire had been admonished and instructed on Rule 431(b) principles. For these reasons, the court concluded that the second prong of plain-error review did not provide a basis for excusing the defendant's procedural default. Thompson, 238 Ill. 2d at 615.

• 4 Applying the holding in Thompson to the present case, we conclude that the trial court's failure to comply with Rule 431(b) does not require automatic reversal and that defendant's procedural default may not be excused under the plain-error doctrine. There is no dispute in this case that the trial court failed to comply with Rule 431(b) when it did not question the jurors about their understanding and acceptance of the principle that defendant's failure to testify could not be held against him. However, it cannot be assumed that defendant was prejudiced by the error and there is no evidence in the record indicating that defendant's jury was biased against him. See Thompson, 238 Ill. 2d at 611. Instead, while the trial court did not question the jurors about defendant's decision not to testify, the record shows that defense counsel questioned all the jurors about their understanding and acceptance of this principle. The trial court also stated the principle in the presence of the venire and instructed the jury on it prior to deliberations. Under these circumstances, we conclude that the trial court's failure to comply with Rule 431(b) was not a structural error requiring automatic reversal.

We also conclude that defendant's procedural default cannot be relaxed in this case. Although defendant claims that forfeiture should be relaxed because it is the "judge's conduct that is at issue," defendant could have raised an objection to the trial court's noncompliance with Rule 431(b) in the trial court, thereby allowing the court to cure the error. There is nothing in the record to suggest that the court would have ignored defendant's request and, to the contrary, we presume the trial court would have corrected its error given the mandatory nature of Rule 431(b). See Thompson, 238 Ill. 2d at 611-12.

Finally, we conclude that defendant's procedural default cannot be excused under the second prong of the plain-error doctrine. The plain-error doctrine bypasses normal forfeiture principles and "allows a reviewing court to consider unpreserved error when (1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatens to tip the scales of justice against the defendant, regardless of the seriousness of the error, or (2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. Piatkowski, 225 Ill. 2d 551, 565 (2007), citing People v. Herron, 215 Ill. 2d 167, 186-87 (2005). In both instances, the burden of persuasion remains on the defendant. Herron, 215 Ill. 2d at 187.

Defendant claims that this issue should be reviewed under the second prong of the plain-error doctrine and that the trial court's error requires reversal because it was of such magnitude that it denied him a trial before a fair and impartial jury. We disagree. We cannot presume that defendant's jury was biased against him solely because of the trial court's error and it is defendant's burden to establish that the error affected the fairness of the defendant's trial and challenged the integrity of the judicial process. See Thompson, 238 Ill. 2d at 613. Defendant has failed to meet this burden because he has offered no explanation as to how his jury was biased against him given that defense counsel questioned the prospective jurors about the principle that the trial court omitted, that the trial court stated the principle in the presence of all prospective jurors, and that the court admonished and advised the jury on Rule 431(b) principles prior to its deliberations. Under these circumstances, we cannot say that the trial court's error was so serious that it affected the fairness of defendant's trial and challenged the integrity of the judicial process. See Thompson, 238 Ill. 2d at 613. Accordingly, the trial court's error does not rise to the level of plain error and we find that defendant has forfeited his claim on appeal.

Defendant's final contention is that the trial court erred by not instructing the jury on the offense of criminal damage to property. The record shows that defense counsel asked the trial court to instruct the jury on the offense of criminal damage to property, which it claimed was a lesser-included offense of arson and aggravated arson. The trial court denied defendant's request, stating that based upon the evidence presented at trial, the jury could not rationally acquit defendant of aggravated arson and find him guilty of criminal damage to property.

Although a defendant generally may not be convicted of an offense for which he has not been charged, in some instances a defendant may be entitled to an instruction on an uncharged lesser-included offense. People v. Phillips, 383 Ill. App. 3d 521, 540 (2008). A lesser-included offense is one which "[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 charged." 720 ILCS 5/2-9(a) (West 2006). Courts use a two-step "charging instrument" approach to determine whether the offense is a lesser-included offense and whether the defendant is entitled to an instruction on that offense. People v. Kolton, 219 Ill. 2d 353, 360 (2006). First, courts look at the allegations in the charging instrument to determine whether the description of the greater offense contains a "broad foundation" or "main outline" of the lesser offense. Kolton, 219 Ill. 2d at 361. However, the identification of a lesser-included offense does not automatically entitle the defendant to have the jury instructed on that offense. Phillips, 383 Ill. App. 3d at 540. Once a lesser-included offense is identified, a court must examine the evidence presented at trial to determine whether the evidence rationally supports a conviction for the lesser-included offense. Kolton, 219 Ill. 2d at 361; People v. Medina, 221 Ill. 2d 394, 405 (2006) (explaining that "[a] defendant is entitled to a lesser-included offense instruction only if the evidence at trial is such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater").

We initially note that defendant's argument on this issue is confined solely to his conviction for aggravated arson, and therefore any claim with respect to his conviction for arson is waived. See People v. Bui, 381 Ill. App. 3d 397, 421-22 (2008). Moreover, the State concedes, and we agree, that under the charging instrument approach, criminal damage to property is a lesser-included offense of aggravated arson. See People v. Parsons, 284 Ill. App. 3d 1049, 1058-59 (1996). As noted, defendant was charged with committing the offense of aggravated arson "in that he, in the course of committing arson, knowingly damaged partially or totally any building or structure of Gregory Sloan, located at 5354 S. Princeton, in Chicago, Illinois, and [defendant] knew or reasonably should have known that one or more persons were present therein." The criminal damage to property statute provides in relevant part:

"(1) A person commits an illegal act when he:

(a) knowingly damages any property of another without his consent; or

(b) recklessly by means of fire or explosive damages property of another; or

(c) knowingly starts a fire on the land of another without his consent." 720 ILCS 5/21-1(1) (West 2006).

A person acts recklessly when he "consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow *** and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation." 720 ILCS 5/4-6 (West 2006).

• 5 Having concluded that criminal damage to property is a lesser-included offense of aggravated arson, our next step is to determine whether the evidence presented at trial would rationally permit the jury to acquit the defendant of aggravated arson and to find him guilty of criminal damage to property. Defendant claims that the jury could have rationally concluded that he did not knowingly set fire to the building located at 5354 South Princeton and therefore acquitted him of aggravated arson and instead found that his actions were reckless and therefore convicted him of criminal damage to property. Defendant relies upon People v. Bradley, 256 Ill. App. 3d 514 (1993), to support his contention.

In Bradley, the defendant was charged with aggravated arson based on evidence that she set fire to her boyfriend's mattress. The defendant initially indicated that she had been smoking and may have dropped a cigarette and ignited the mattress. Under further questioning, however, the defendant admitted that she deliberately set her boyfriend's mattress on fire with her cigarette lighter because she was angry with him. On appeal, the defendant challenged her aggravated arson conviction and claimed that the trial court erred by not instructing the jury on the lesser-included offense of criminal damage to property. Bradley, 256 Ill. App. 3d at 515-16. The appellate court agreed and held:

"In the present case, defendant initially offered *** an explanation of how the fire might have been caused. She stated that she may have dropped and not retrieved a lighted cigarette during a struggle with [her boyfriend]. This statement, although subsequently recanted by defendant, could have supported a determination by the jury that defendant acted recklessly rather than knowingly and deliberately. Defendant's initial statement as to the cause of the fire entitled her to an instruction on criminal damage to property. We hold that the trial court erred in finding that there was no evidence of recklessness and in refusing to give the instruction on criminal damage to property." Bradley, 256 Ill. App. 3d at 516.

The State, on the other hand, claims that the present case is similar to Phillips, 383 Ill. App. 3d at 531-32, in which the defendant was convicted of aggravated arson on evidence showing that he ignited a piece of cardboard in a garbage can that he placed near the residence. In a videotaped statement, the defendant told the police that he placed the garbage can three feet away from the residence because it was less windy in that location and because he believed "`it wouldn't catch anything `"on fire. Phillips, 383 Ill. App. 3d at 532. He also claimed in the statement that he did not intend to set the residence on fire and that the resulting fire to the residence was an accident. Phillips, 383 Ill. App. 3d at 532. On appeal, the defendant argued that his counsel was ineffective for failing to request an instruction on the offense of criminal damage to property, arguing that there was evidence indicating that his actions were reckless and that he was therefore entitled to the instruction. Phillips, 383 Ill. App. 3d at 543. The appellate court disagreed, noting that unlike the defendant in Bradley, whose statement that she accidentally dropped a lit cigarette evidenced a lack of intentional and deliberate conduct, the defendant's actions in that case indicated that he started the fire knowingly and deliberately, thus "negating any contention that the fire was caused by mere recklessness." Phillips, 383 Ill. App. 3d at 543. The court further noted that in all of the accounts of the fire defendant provided, he consistently admitted to deliberately starting the fire in the garbage can, which he positioned close to the residence. Phillips, 383 Ill. App. 3d at 543. The court also noted that the State presented evidence that defendant actually started the fire by igniting gasoline on the rear wall of the residence, which was clearly a deliberate and knowing act. The court concluded that even if the jury believed the defendant's confession about igniting the fire in the trash can, there was no basis upon which it could have rationally acquitted him of aggravated arson and convicted him of criminal damage to property because there was no evidence that defendant acted recklessly when he admitted to deliberately starting the fire. Phillips, 383 Ill. App. 3d at 543-44.

We agree with the State and find that, similar to the defendant's actions in Phillips, all of defendant's actions in this case evidence deliberate and knowing conduct. There is no dispute that defendant deliberately set fire to the building located at 5405 South Shields by igniting gasoline on that building's second-floor landing on a night that was described as "very windy." As discussed above, by doing so defendant knowingly set fire to the building located at 5354 South Princeton. There was no evidence presented indicating that the fire accidentally spread to that building, and the fire marshal testified that given the wind conditions on the night of the fire, it was "absolutely" "a possibility" that the initial fire spread to the secondary structure. Unlike the facts in Bradley, there is no evidence in the present case that defendant accidentally caused the fire or that his actions were anything but deliberate and knowing. Accordingly, we find that there was no basis upon which the jury could have rationally acquitted him of aggravated arson but found him guilty of criminal damage to property. Therefore, defendant was not entitled to an instruction on the lesser-included offense.

Moreover, even if defendant was entitled to an instruction on the lesser-included offense of criminal damage to property, the failure to give such an instruction did not prejudice defendant in light of the overwhelming evidence regarding the greater offense of aggravated arson. See Parsons, 284 Ill. App. 3d at 1060-61 (finding that the evidence supporting the defendant's conviction for the greater offense of aggravated arson was so strong that the defendant was not prejudiced by any failure to instruct the jury on the lesser-included offense of criminal damage to property); People v. McClellan, 232 Ill. App. 3d 990 (1992) (failure to instruct jury on lesser offense requires reversal only if the defendant was so prejudiced by such failure so as to affect the outcome of the verdict).

In this case, defendant was observed standing on the rear porch of 5405 South Shields wearing latex gloves and holding a red gasoline can. Defendant fled from the police when he saw them and discarded the gasoline can and the shirt he was wearing while being pursued. After defendant fled, the police observed that there was a "huge" fire at 5405 South Shields and that the back porch where defendant had been standing was "up in flames." The police testified that defendant smelled of gasoline when he was taken into custody and that the shirt defendant discarded as well as the contents of the red gasoline can also smelled of gasoline. The house where defendant started the fire, 5405 South Shields, was located in a residential area made up of vacant lots, abandoned structures, and buildings in which people lived. Officer Murphy described the weather at the time defendant ignited the fire as "very windy" and she testified that the wind was blowing strongly to the north. The record reveals that the building located at 5354 South Princeton, a multifamily dwelling, is almost directly to the north of 5405 South Shields. The two buildings are less than one city block apart and the area between the two is comprised primarily of vacant lots. Embers from the fire at 5405 South Shields were blown across the alley and ultimately set fire to the roof of 5354 South Princeton. The arson investigator concluded that the fire at 5405 South Shields was caused by the "open ignition of the flammable liquid vapors of an ignitable liquid" on the building's second floor and he testified that the fire "flew across" the alley and ignited a hole in the roof of the building at 5354 South Princeton. In light of this overwhelming evidence of defendant's guilt, we conclude that defendant suffered no prejudice from the trial court's decision not to instruct the jury on the lesser-included offense of criminal damage to property.

For the foregoing reasons, we vacate defendant's conviction and sentence for arson. The judgment of the circuit court of Cook County is affirmed in all other respects.

Affirmed in part and vacated in part.

CAHILL, J., concurs.