                                        2015 IL App (1st) 141216
                                              No. 1-14-1216
                                                                                       Fifth Division
                                                                                   December 23, 2015


     ______________________________________________________________________________

                                         IN THE
                             APPELLATE COURT OF ILLINOIS
                                     FIRST DISTRICT
     ______________________________________________________________________________

                                                    )
     THE PEOPLE OF THE STATE OF ILLINOIS,           )   Appeal from the Circuit Court
                                                    )   of Cook County.
           Plaintiff-Appellee,                      )
                                                    )   No. 13 CR 7425
     v.                                             )
                                                    )   The Honorable
     ANGELO JOHNSON,                                )   Clayton J. Crane,
                                                    )   Judge Presiding.
           Defendant-Appellant.                     )
                                                    )
     ______________________________________________________________________________

                JUSTICE GORDON delivered the judgment of the court, with opinion.
                Presiding Justice Reyes and Justice Palmer concurred in the judgment and opinion.


                                                OPINION

¶1         Following a bench trial, defendant Angelo Johnson was found guilty of: (1) kidnapping,

        as a lesser-included offense of aggravated kidnapping; (2) aggravated robbery, as a lesser-

        included offense of armed robbery; (3) unlawful vehicular invasion; and (4) unlawful

        restraint, as a lesser-included offense of aggravated unlawful restraint of Lavert Jones. After

        hearing factors in aggravation and mitigation, the trial court sentenced defendant to the

        Illinois Department of Corrections (IDOC) to one 11-year term each for aggravated robbery

        and unlawful vehicular invasion and to a 6-year term for kidnapping, with all sentences to
     No. 1-14-1216

        run concurrently. On this appeal, defendant challenges only the conviction for aggravated

        robbery. He claims that the trial court violated his right to due process when it convicted him

        of aggravated robbery because it was not a lesser-included offense of the charged offense,

        which was armed robbery. Specifically, defendant argues that, because he was never charged

        with aggravated robbery, and it is not a lesser-included offense of armed robbery, his

        conviction was improper.

¶2         In this case, we find that aggravated robbery was not a lesser-included offense of armed

        robbery and thus reduce defendant’s conviction to simple robbery and remand for

        resentencing.

¶3                                         BACKGROUND

¶4         Since we consider on this appeal only the legal question of whether one offense is a

        lesser-included offense of another, we provide here only a short procedural history of the

        case.

¶5         On April 12, 2013, defendant Angelo Johnson was charged by information with: (1)

        aggravated kidnapping with a firearm, (2) armed robbery with a firearm, (3) unlawful

        vehicular invasion, and (4) aggravated unlawful restraint.

¶6         The information alleged that defendant “knowingly took property, to wit: United States

        currency, from the person or presence of [the victim] Lavert Jones, by the use of force or by

        threatening the imminent use of force and [defendant] carried on or about his person or was

        otherwise armed with a firearm.”

¶7         At the subsequent bench trial, on March 14, 2014, the victim testified on direct

        examination that defendant showed and pointed a firearm at him. However, the firearm was

        not recovered, and the State did not produce a firearm in evidence at trial. The State asked


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          the court: “In the alternative if this Court is inclined to agree with [defense] Counsel that the

          State has not met its burden that a firearm was used at this point even in the light most

          favorable to the State we would ask that you keep the lesser included [offenses] of

          kidnapping and robbery.”

¶8           After hearing the evidence and argument, the trial court found that the State had not

          proven beyond a reasonable doubt that defendant was armed with a firearm. Specifically, the

          trial court stated that it “[could] not conclude beyond a reasonable doubt that the implement

          that was used to frighten the victim in this matter was in fact a firearm.” However, the trial

          court did not find defendant guilty of the “lesser included [offenses of] kidnapping and

          robbery” as the State requested; instead, the court found defendant guilty of aggravated

          robbery.

¶9           Following the bench trial, the trial court found defendant guilty of: (1) kidnapping, as a

          lesser-included offense of aggravated kidnapping; (2) aggravated robbery, as a lesser-

          included offense of armed robbery; (3) unlawful vehicular invasion; and (4) unlawful

          restraint, as a lesser-included offense of aggravated unlawful restraint. After the trial court

          announced its judgment, defendant did not object to his conviction for aggravated robbery as

          a lesser-included offense of armed robbery.

¶ 10         On April 11, 2014, the trial court denied defendant’s posttrial motions to reconsider, to

          vacate judgment and for a new trial. In his posttrial motions, defendant did not object to his

          conviction of aggravated robbery as a lesser-included offense of armed robbery. After

          hearing factors in aggravation and mitigation, the trial court sentenced defendant to one 11-

          year term each for aggravated robbery and unlawful vehicular invasion and to a 6-year term

          for kidnapping, with all sentences to run concurrently. The trial court merged the unlawful


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          restraint conviction with the other three counts. Defense counsel stated "I would seek leave to

          file a motion to reconsider sentence at this time," to which the trial court responded "denied."

¶ 11                                                 ANALYSIS

¶ 12          On appeal, defendant argues that the trial court violated his right to due process when it

          convicted him of aggravated robbery because it was not a lesser-included offense of the

          charged offense of armed robbery. Defendant asks this court to enter a conviction for simple

          robbery as a lesser-included offense of armed robbery, as the State requested at trial.

¶ 13                                                 I. Forfeiture

¶ 14          First, the State argues that defendant’s claim is forfeited because defendant did not

          preserve the issue for review. To preserve a claim for review, a defendant must both object at

          trial and include the alleged error in a written posttrial motion. People v. Thompson, 238 Ill.

          2d 598, 612 (2010). In the case at bar, defendant did not object to the trial court’s judgment

          when it was announced and did not include that issue in his written posttrial motion. Thus,

          his claim is technically forfeited.

¶ 15                                                II. Plain Error

¶ 16          However, we may still review the issue on appeal for plain error. People v. Hillier, 237

          Ill. 2d 539, 545 (2010). The plain-error rule bypasses normal forfeiture principles and allows

          a reviewing court to consider unpreserved claims of error in specific circumstances.

          Thompson, 238 Ill. 2d at 613. Supreme Court Rule 615(a) states that “[p]lain errors or defects

          affecting substantial rights may be noticed although they were not brought to the attention of

          the trial court.” Ill S. Ct. R. 615(a) (eff. .

¶ 17          The plain-error doctrine 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

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          threatened 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). Under both prongs of the plain-error doctrine, the defendant has the burden of

          persuasion. Hillier, 237 Ill. 2d at 545. Here, defendant argues that the second prong of the

          plain-error doctrine applies because convicting a defendant of an uncharged offense, which is

          not a lesser-included offense, offends due process and the integrity of the judicial process.

          See People v. Kolton, 219 Ill. 2d 353, 359-60 (2006).

¶ 18         “The first step of plain-error review is determining whether any error occurred.”

          Thompson, 238 Ill. 2d at 613.

¶ 19                                        III. Standard of Review

¶ 20         “Whether a charged offense encompasses another as a lesser-included offense is a

          question of law, which this court reviews de novo.” Kolton, 219 Ill. 2d at 361 (citing People

          v. Landwer, 166 Ill. 2d 475, 486 (1995)). De novo review means that we perform the same

          analysis that a trial judge would perform. Thomas v. Weatherguard Construction Co., 2015

          IL App (1st) 142785, ¶ 63.

¶ 21                                      IV. Lesser-Included Offense

¶ 22         To determine whether a crime is a lesser-included offense of another, Illinois employs a

          “charging instrument” analysis. People v. McDonald, 321 Ill. App. 3d 470, 472 (2001).

          Under the “charging instrument” analysis, a defendant can be convicted of an uncharged

          offense if two conditions are met: (1) “the description of the greater offense contains a ‘broad

          foundation’ or ‘main outline’ of the lesser offense”; and (2) the evidence adduced at trial


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          “rationally supports a conviction on the lesser offense.” Kolton, 219 Ill. 2d at 361. “However,

          the second step–examining the evidence adduced at trial–should not be undertaken unless

          and until it is first decided that the uncharged offense is a lesser-included offense of a

          charged crime.” Kolton, 219 Ill. 2d at 361. Thus, we must first determine whether the

          description of the greater offense contains a broad foundation or main outline of the lesser

          offense.

¶ 23                           V. The First Step: Main Outline of the Offense

¶ 24         Prior to Kolton, the “charging instrument” analysis required a reviewing court to compare

          the charging instrument to the lesser-included offense to see whether the charging instrument

          sufficiently described the “broad foundation” or “main outline” of the offense, but it did not

          allow for a missing element to be inferred from the allegations of the indictment. See People

          v. Novak, 163 Ill. 2d 93, 114 (1994). In Novak, the defendant argued on appeal that the trial

          court erred in refusing his jury instruction on–what he claimed–was a lesser-included

          offense. Novak, 163 Ill. 2d at 105. The defendant argued that the indictment “need not

          specifically allege” each element but that an element could be inferred. Novak, 163 Ill. 2d at

          114. The Novak court rejected his argument, stating unequivocally: “This contention is

          erroneous.” Novak, 163 Ill. 2d at 114 (defendant had argued that the court could infer from a

          charge of sexual assault “that the sexual conduct was for the purpose of sexual gratification

          or arousal”).

¶ 25         Three justices dissented in Novak, and our supreme court later described their approach

          as follows: “the indictment need not explicitly state all of the elements of the lesser offense,

          as long as any missing element may reasonably be inferred from the allegations contained in

          the indictment.” Kolton, 219 Ill. 2d at 363.


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¶ 26         Twelve years after Novak, the supreme court in Kolton adopted the approach of the

          dissenting justices. Kolton, 219 Ill. 2d at 367. The Kolton court held that “[i]t is now well

          settled that, under the charging instrument approach, an offense may be deemed a lesser-

          included offense even though every element of the lesser offense is not explicitly contained

          in the indictment, as long as the missing element can be reasonably inferred.” Kolton, 219 Ill.

          2d at 364. “[U]nder the charging instrument approach, whether a particular offense is ‘lesser

          included’ is a decision which must be made on a case-by-case basis using the factual

          description of the charged offense in the indictment.” Kolton, 219 Ill. 2d at 367. “A lesser

          offense will be ‘included’ in the charged offense if the factual description of the charged

          offense describes, in a broad way, the conduct necessary for the commission of the lesser

          offense and any elements not explicitly set forth in the indictment can reasonably be

          inferred.” (Emphasis added.) Kolton, 219 Ill. 2d at 367.

¶ 27         In the case at bar, we must decide whether defendant was properly convicted of

          aggravated robbery as a lesser-included offense of armed robbery, as charged in defendant’s

          information. We first look to the statutory definitions of armed and aggravated robbery.

¶ 28         In Illinois, “[a] person commits robbery when he or she knowingly takes property ***

          from the person or presence of another by the use of force or by threatening the imminent use

          of force.” 720 ILCS 5/18-1(a) (West 2012). “[T]he gist of the offense of robbery is the force

          or fear of violence directed at the victim in order to deprive him of his property.” People v.

          Dennis, 181 Ill. 2d 87, 104 (1998).

¶ 29         “A person commits armed robbery when he or she violates Section 18-1; and *** he or

          she carries on or about his or her person or is otherwise armed with a dangerous weapon

          other than a firearm.” 720 ILCS 5/18-2(a) (West 2012). “Although the required force or


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       No. 1-14-1216

          threat of force must either precede or be contemporaneous with the taking of the victim's

          property [citations], use of a dangerous weapon at any point in a robbery will constitute

          armed robbery as long as it reasonably can be said to be a part of a single occurrence

          [citation].” Dennis, 181 Ill. 2d at 101-02.

¶ 30         “A person commits aggravated robbery when he or she violates [section 18-1(a)] while

          indicating verbally or by his or her actions to the victim that he or she is presently armed with

          a firearm ***. This offense shall be applicable even though it is later determined that he or

          she had no firearm *** in his or her possession when he or she committed the robbery.” 720

          ILCS 5/18-1(b) (West 2012). “ ‘[A]ggravated robbery requires that a defendant ‘indicat[e]

          verbally or by his or her actions to the victim that he or she is presently armed with a

          firearm.’ ’ ” People v. Gray, 346 Ill. App. 3d 989, 994 (2004) (quoting People v. McDonald,

          321 Ill. App. 3d 470, 472-73 (2001), quoting 720 ILCS 5/18–5(a) (West 1998)).

¶ 31         In the case at bar, the State charged defendant with one count of armed robbery pursuant

          to section 18-2(a). 720 ILCS 5/18-2(a) (West 2012). That count alleged that defendant:

                       “knowingly took property, to wit: United States currency, from the

                       person or presence of [the victim] Lavert Jones, by the use of force

                       or by threatening the imminent use of force and [defendant] carried

                       on or about his person or was otherwise armed with a firearm.”

          The State did not charge defendant with aggravated robbery. Defendant, however, was

          convicted of aggravated robbery, which requires proof that a robbery was committed while

          he indicated verbally or through his action toward the victim that he was armed with a

          firearm, or other dangerous weapon, even if it was later determined he was not armed with a

          firearm or other dangerous weapon. See 720 ILCS 5/18-1(b) (West 2012).


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¶ 32         Defendant argues that aggravated robbery is not a lesser-included offense of armed

          robbery because the allegation that defendant indicated verbally or by his actions to the

          victim that he was presently armed with a firearm could not be inferred from the charges.

          Defendant cites to People v. Kelley, 328 Ill. App. 3d 227, 232 (2002) in support of this

          proposition.

¶ 33         In Kelley, the indictment alleged use of a firearm; however, it did not allege that the gun

          was displayed to the victim or that the defendant implied that he possessed a gun. Kelley, 328

          Ill. App. 3d at 232. Therefore, this court held that the indictment did not sufficiently allege

          the foundation of the offense of aggravated robbery, because it did not state that the

          defendant “ ‘indicat[ed] verbally or by his [or her] actions to the victims that he [or she was]

          presently armed with a firearm or other dangerous weapon.’ ” Kelley, 328 Ill. App. 3d at 232

          (quoting 720 ILCS 5/18-5 (West 2000)). Thus, we held that the uncharged offense,

          aggravated robbery, was not a lesser-included offense of the charged offense, armed robbery.

          Kelley, 328 Ill. App. 3d at 232. Defendant argues that, as in Kelley, his charging instrument

          did not state that defendant displayed the weapon or that he implied that he was armed.

          Therefore, he argues that the charging instrument did not include an essential element of

          aggravated robbery.

¶ 34         The State argues that Kelley does not apply because the court used the Novak approach

          which did not allow for a missing element to be inferred from the facts of the case. Novak,

          163 Ill. 2d at 114. The State argues that, under Kolton, an offense is a lesser-included offense

          if “the conduct necessary for the commission of the lesser offense and any elements not

          explicitly set forth in the indictment can reasonably be inferred.” (Emphasis added.) See

          Kolton, 219 Ill. 2d at 367. The charge alleged: (1) that defendant “took property” from the


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          victim; (2) that he was armed with a firearm; and (3) he used “force or threaten[ed] the

          imminent use of force” when he took the property. The State argues that from the allegations

          that defendant was armed with a gun and used force, it can be reasonably inferred that

          defendant, verbally or by his actions, informed the victim that he was armed with a firearm.

          Therefore, the State argues that the charging instrument included aggravated robbery as a

          lesser-included offense of armed robbery because the essential element of aggravated

          robbery could be reasonably inferred from the charging instrument.

¶ 35         Furthermore, the State argues that the defendant in Kelley was charged and convicted

          under an earlier version of the armed robbery statute. Kelley, 328 Ill. App. 3d at 228-30. This

          earlier version provided that a defendant is guilty of armed robbery if he commits robbery

          while “[he] carries on or about [his] person or is otherwise armed with a dangerous weapon.”

          720 ILCS 5/18-2(a) (West 2000). Under the current version of the statute, a defendant is

          guilty of armed robbery if he commits robbery and “carries on or about [his] person, or is

          otherwise armed with a firearm.” 720 ILCS 5/18-2(a)(2) (West 2012). Thus, a “dangerous

          weapon” was changed to a “firearm.” The State contends that the court in Kelley erroneously

          analyzed the issue as if the amended version of the statute applied.

¶ 36         In Kolton, the court found that “[a] lesser offense will be ‘included’ in the charged

          offense if the factual description of the charged offense describes, in a broad way, the

          conduct necessary for the commission of the lesser offense and any elements not explicitly

          set forth in the indictment can reasonably be inferred.” (Emphasis added.) Kolton, 219 Ill. 2d

          at 367. Applying the approach here, we find that the facts alleged in the information for

          armed robbery describe in a broad manner the conduct necessary for the commission of the

          lesser offense of aggravated robbery. Kolton, 219 Ill. 2d at 367. Defendant was charged with


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          taking property from the victim “by the use of force or by threatening the imminent use of

          force and carried on or about his person or was otherwise armed with a firearm.” From the

          allegations in the information, it was reasonably inferable that defendant was presently armed

          with a firearm, and indicated to the victim either verbally or by his actions that he was

          presently armed with a firearm. Kolton, 219 Ill. 2d at 364. Thus, we find that the

          information’s description of the greater offense of armed robbery contains a “broad

          foundation” or “main outline” of the lesser offense of aggravated robbery. (Internal quotation

          marks omitted.) Kolton, 219 Ill. 2d at 371.

¶ 37         VI. The Second Step: Evidence Rationally Supports a Conviction on the Lesser Offense

¶ 38         Under the second step, “the evidence adduced at trial” must “rationally support[] a

          conviction on the lesser offense.” Kolton, 219 Ill. 2d at 361. In the case at bar, defendant

          argues that the trial court held that the evidence adduced at trial did not rationally support

          possession of a firearm and thus the evidence did not rationally support a conviction on the

          lesser offense. Defendant argues that “Lavert Jones testified that when Johnson entered his

          car he was armed with what looked to be a gun. However, no gun was ever recovered and the

          State did not produce a firearm as evidence at trial. The trial court, therefore, determined that

          the State had not proven beyond a reasonable doubt that Johnson possessed a firearm, and did

          not convict him of armed robbery with a firearm.”

¶ 39         For the reasons discussed in the next section, we agree that the evidence adduced at trial

          does not support defendant’s conviction for aggravated robbery beyond a reasonable doubt.

          Kolton, 219 Ill. 2d at 371; People v. Jordan, 218 Ill. 2d 255, 269 (2006) (stating that the

          standard that applies in all criminal cases is, whether “after viewing the evidence in the light




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          most favorable to the prosecution, any rational trier of fact could have found the essential

          elements of the crime beyond a reasonable doubt” (emphasis in original)).

¶ 40                              VII. Elements of Aggravated Robbery

¶ 41         Aggravated robbery requires proof that a robbery was committed, while the robber “[(1)]

          indicat[ed] verbally or [(2)] by his *** actions to the victim that he *** is presently armed

          with a firearm.” 720 ILCS 5/18-1(b) (West 2012).

¶ 42         The first element, “that a robbery was committed,” is not in dispute. With respect to the

          second element, however, the State did not prove beyond a reasonable doubt that defendant

          “indicat[ed] verbally or by his *** actions to the victim that he *** [was] presently armed

          with a firearm.” 720 ILCS 5/18-1(b) (West 2012).

¶ 43         In People v. Hall, 352 Ill. App. 3d 537, 544 (2004), the defendant approached the victim

          and asked if the victim “was wearing a bulletproof vest, questioned [the victim] with respect

          to whether [he] ever had been or presently wanted to be shot, and moved his hand to his

          waist in a grabbing motion.” Hall, 352 Ill. App. 3d at 544. The court held that the defendant’s

          conduct “[was] undisputably prohibited by the aggravated robbery statute.” Hall, 352 Ill.

          App. 3d at 544. The aggravated robbery statute specifically provides that “[t]his offense shall

          be applicable even though it is later determined that he or she had no firearm *** in his or

          her possession when he or she committed the robbery.” 720 ILCS 5/18-1(b) (West 2012).

¶ 44         However, in the case at bar, Jones did not testify that defendant “indicat[ed] verbally”

          that he was presently armed with a firearm. 720 ILCS 5/18-1(b) (West 2012). Jones testified

          at trial that he saw the gun. Therefore, to find defendant guilty of aggravated robbery, the

          State had to prove that defendant’s “actions to the victim” indicated that he was presently

          armed with a firearm. 720 ILCS 5/18-1(b) (West 2012). The victim testified that defendant


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          showed and pointed a firearm at him. However, the trial found that it “[could] not conclude

          beyond a reasonable doubt that the implement that was used to frighten the victim in this

          matter was in fact a firearm.” As a result, the State requested a lesser-included offense

          conviction of “robbery” only, never mentioning aggravated robbery. The trial court did not

          find the victim’s testimony about a firearm credible enough to conclude that defendant

          frightened him with a firearm, and thus the evidence was also insufficient for aggravated

          robbery. Since there was an error in convicting defendant of aggravated robbery, we now

          consider whether this error constituted plain error.

¶ 45                                        VIII. Structural Error

¶ 46         The Illinois Supreme Court compares the second prong of plain error with “structural”

          errors, noting that, “automatic reversal is only required where an error is deemed

          ‘structural.’ ” People v. Glasper, 234 Ill. 2d 173, 197 (2009). A structural error is a

          “systematic error which serves to ‘erode the integrity of the judicial process and undermine

          the fairness of the defendant’s trial.’ ” Glasper, 234 Ill. 2d at 197-98 (quoting People v.

          Herron, 215 Ill. 2d 167, 186 (2005)). The United States Supreme Court identified a limited

          class of errors identified as “structural errors” that apply to the second prong of plain error:

          (1) “complete denial of counsel”; (2) “biased trial judge”; (3) “racial discrimination in

          selection of grand jury”; (4) “denial of self-representation at trial”; (5) “denial of public

          trial”; and (6) “defective reasonable-doubt instruction.” Washington v. Recuenco, 548 U.S.

          212, 218 n.2 (2006).

¶ 47         However, the court in Glasper did not limit the second prong of plain error to the six

          categories of error listed by the Court in Recuenco. In Glasper, the defendant argued that the

          trial court committed a reversible error; and therefore was “not subject to harmless-error


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          analysis.” Glasper, 234 Ill. 2d at 185. However, the error alleged by the defendant was not

          included in the class of “structural” errors recognized by the United States Supreme Court.

          Glapser, 234 Ill. 2d at 198. The court proceeded to analyze the error and concluded that the

          State committed an error where the prosecutor’s remark was improper: the comment was

          “irrelevant and had no purpose other than to distract the jurors from their duty.” Glasper, 234

          Ill. 2d at 215. The court decided that the error was not “so serious that the second prong of

          the plain-error test is satisfied.” Glapser, 234 Ill. 2d at 215. In conducting its analysis,

          however, our supreme court did not indicate that the prosecutor’s remark could not be plain

          error because it was not within the class of “structural” errors recognized by the Supreme

          Court. Glapser, 234 Ill. 2d at 213-15. Rather, the court recognized that an error could be

          reversible “regardless of whether the error would be deemed structural under federal law”;

          however, the “trial court’s error in this case does not rise to the level of structural error.”

          Glapser, 234 Ill. 2d at 199-200.

¶ 48         Similarly, in Thompson, our supreme court did not conclude that an error could not be

          second-prong plain error because it was not included within the class of “structural” errors

          recognized by the United States Supreme Court. Thompson, 238 Ill. 2d at 613-15. Rather, the

          court concluded that the alleged violation at issue, a biased jury, was not subject to plain-

          error review because the defendant had not presented any evidence that the jury was, in fact,

          biased. Thompson, 238 Ill. 2d at 614-15. However, our supreme court stated that a finding

          that the “defendant was tried by a biased jury would certainly satisfy the second prong of

          plain-error review because it would affect his right to a fair trial and challenge the integrity

          of the judicial process,” even though it is not included in the class of structural errors




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          recognized by the United States Supreme Court. (Emphasis added.) Thompson, 238 Ill. 2d at

          614.

¶ 49          We now turn to the question of whether the error in this case was “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.” Piatkowski, 225 Ill. 2d at 565.

¶ 50          Convicting a defendant of an uncharged offense that is not a lesser-included offense of a

          charged offense violates the defendant’s “fundamental due process right to notice of the

          charges brought against him.” Kolton, 219 Ill. 2d at 359 (citing People v. DiLorenzo, 169 Ill.

          2d 318, 321 (1996)). At the bench trial, the State asked the court that, “in the alternative if

          this Court is inclined to agree with Counsel that the State has not met its burden that a

          firearm was used at this point even in the light most favorable to the State we would ask that

          you keep the lesser included [offense] of *** robbery.” The trial court found that the State

          had not proven beyond a reasonable doubt that the defendant was armed with a firearm.

          However, the trial court did not find defendant guilty of the “lesser included [offense of] ***

          robbery” as the state requested; instead, the court found defendant guilty of aggravated

          robbery. As the Illinois Supreme Court recognized in Kolton, convicting defendant of the

          uncharged offense of aggravated robbery that is not a lesser-included offense of the charged

          offense of armed robbery violates defendant’s “fundamental due process right” and affects

          the fairness of defendant’s trial and challenges the integrity of the judicial process. Kolton,

          219 Ill. 2d at 359. Thus, defendant’s conviction for aggravated robbery constitutes plain

          error.




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¶ 51                                         CONCLUSION

¶ 52         For the reasons stated, we reduce defendant’s conviction for aggravated robbery to

          simple robbery and remand for resentencing on the simple robbery conviction. People v.

          Ross, 229 Ill. 2d 255, 277 (2008) (where the evidence was insufficient to establish a

          dangerous weapon and thus insufficient to prove armed robbery, the conviction was reduced

          to the lesser-included offense of simple robbery and the case was remanded so that the trial

          court could sentence defendant accordingly).

¶ 53         Judgment modified and cause remanded for resentencing.




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