                                                                                FILED
                                                                               March 6, 2019
                                  2019 IL App (4th) 170305                     Carla Bender
                                                                           4th District Appellate
                                        NO. 4-17-0305                            Court, IL

                               IN THE APPELLATE COURT

                                        OF ILLINOIS

                                    FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS,           )     Appeal from the
           Plaintiff-Appellee,                 )     Circuit Court of
           v.                                  )     Champaign County
ELTON HENDERSON,                               )     No. 15CF616
           Defendant-Appellant.                )
                                               )     Honorable
                                               )     Thomas J. Difanis,
                                               )     Judge Presiding.
______________________________________________________________________________

              JUSTICE HARRIS delivered the judgment of the court, with opinion.
              Justices Steigmann and DeArmond concurred in the judgment and opinion.

                                          OPINION

¶1            Following a jury trial, defendant, Elton Henderson, was convicted of unlawful

possession of cocaine, unlawful possession of methamphetamine, unlawful possession of firearm

ammunition by a felon, and unlawful communication with a witness. The trial court sentenced

him to concurrent three-year prison terms for both drug-related offenses and the possession-of-

firearm-ammunition offense. The court imposed a consecutive three-year prison term for the

communication-with-a-witness offense. Defendant appeals, challenging only his conviction for

unlawfully communicating with a witness. We affirm.

¶2                                   I. BACKGROUND

¶3            In April 2015, the State charged defendant with unlawful possession of firearm

ammunition by a felon (720 ILCS 5/24-1.1(a) (West 2014)) (count I), unlawful possession with
intent to deliver 1 to 15 grams of a substance containing cocaine (720 ILCS 570/401(c)(2) (West

2014)) (count II), and unlawful possession with intent to deliver 5 to 15 grams of a substance

containing methamphetamine (720 ILCS 646/55(a)(2)(B) (West 2014)) (count III). The charges

stemmed from the execution of a search warrant at defendant’s residence in April 2015. The rec-

ord reflects law enforcement officers obtained the search warrant after receiving information

about defendant from a confidential source.

¶4             In May 2016, an attorney representing defendant filed with the trial court an affi-

davit signed by Jasmine Hines. In the affidavit, Hines asserted that in March 2015, she contacted

the police with information that defendant possessed cocaine, marijuana, methamphetamine, a

large amount of cash, and a 9-millimeter handgun at his residence. She also informed the police

that she observed defendant conducting drug transactions and carrying a handgun. According to

Hines, she “then placed in [defendant’s] home” methamphetamine, rock cocaine, and ammuni-

tion for a handgun. Hines averred that she used to live at defendant’s residence and had retained

a key for the residence. She asserted defendant had no knowledge of the items she placed in his

home and that she “told the police these events occurred” because she was upset with defendant.

At the time the affidavit was filed, defendant’s attorney represented that Hines would be called

as a witness for the defense.

¶5             In July 2016, the State additionally charged defendant with the offense of unlaw-

ful communication with a witness (720 ILCS 5/32-4(b) (West 2014)) (count IV). It alleged that

defendant offered Hines money “with the intent to deter *** Hines from testifying fully and

truthfully to a matter pending in the Champaign County Circuit Court.” In October 2016, the

State added a fifth count against defendant, charging him with unlawful possession with intent to


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deliver less than five grams of a substance containing methamphetamine (720 ILCS

646/55(a)(2)(A) (West 2014)) (count V). The record reflects the State then moved to dismiss

count III, alleging similar conduct but a different amount of methamphetamine possessed by de-

fendant. The trial court granted the State’s motion.

¶6             In February 2017, the case proceeded to a jury trial. The State presented evidence

showing that an individual name Deondre Newbill provided information to law enforcement of-

ficers that resulted in a search warrant being executed at defendant’s residence. During the

search, the police located packages containing white substances, which were later identified as

methamphetamine and cocaine, as well as firearm ammunition. The parties stipulated that de-

fendant was a convicted felon at the time the search warrant was executed.

¶7             The State’s evidence further showed that after it filed the drug-related and fire-

arm-ammunition charges against defendant and before Newbill was disclosed as law enforce-

ment’s confidential source, defendant’s counsel filed Hines’s affidavit. Two law enforcement

officers involved with the investigation of defendant and the execution of the search warrant—

Officers Nick Krippel and Jack Turner—both testified that Hines was not the confidential in-

formant who provided the information used to obtain the search warrant. Additionally, both as-

serted that at the time the search warrant was prepared and executed, neither officer was familiar

with Hines.

¶8             Hines testified that defendant was her ex-boyfriend. The two dated and lived to-

gether from September 2014 until approximately February 2015. Around December 2015, Hines

spoke on the phone with defendant, who asked her to go to his attorney’s office because “he be-

lieved that [Hines] was a confidential informant in [his] case.” According to Hines, defendant


                                               -3-
wanted her “to admit to [his attorney] that [she] placed [the drugs and ammunition] in his home.”

Hines testified that she told defendant she was not the confidential source but acknowledged that

she went to his attorney’s office as requested. She stated she was shown an affidavit that had

been prepared prior to her arrival. Hines signed the affidavit because she did not want defendant

to get in trouble. She was also worried “[a] little bit” about what defendant might do if she did

not sign the affidavit because “he had it made up in his mind that [Hines had] set him up.” Hines

further testified that defendant offered her money to sign the affidavit. Specifically, defendant

offered her $500 about “a day or so” before she went to his attorney’s office. Hines stated de-

fendant then paid her the $500 after they left the attorney’s office.

¶9             Hines admitted that information contained in the affidavit was false. In particular,

she testified she was not familiar with defendant having firearms or drugs in his possession and

she did not provide any information about defendant to the police. Hines testified that she was

not the confidential source for the police and she did not place drugs or ammunition in defend-

ant’s residence.

¶ 10           Relative to the offense of unlawful communication with a witness, the State pre-

sented the following closing argument to the jury:

               “To sustain the charge of communicating with a witness, the State must prove the

               following propositions: That the defendant first offered money to any individual,

               and that when he did so, *** Hines was a party or a witness in the matter pending

               before a court. And third, that when he did so, the defendant intended to deter ***

               Hines from testifying freely, fully and truthfully in a matter pending before a

               court.


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                                                       ***

               And [Hines] comes in and she signs that affidavit, and at the moment she signs

               that affidavit, at the moment she signs it, the moment she says anything to [de-

               fendant’s attorney] about it or to the defendant about it, she is a witness in this

               pending case, because that’s exactly what he’s creating here. He’s trying to create

               a witness for himself to take the fall, and the moment she comes in and she says

               stuff like that, she becomes a witness in the case. *** And then having been

               incontrovertedly [sic] made a witness in this matter, *** defendant gives her five

               hundred dollars. He not only has offered it to her before but again after actually

               tenders it to her and she receives it. That’s the offense of communication with a

               witness.”

Ultimately, the jury found defendant guilty of the offense of unlawfully communicating with a

witness. It also found him guilty of unlawfully possessing firearm ammunition. Finally, as to the

two drug-related offenses, the jury found defendant guilty of only the lesser included offense of

possession.

¶ 11           In March 2017, defendant filed a motion for a judgment notwithstanding the ver-

dict. Relevant to this appeal, he argued that the State failed to prove him guilty of the offense of

unlawful communication with a witness because it failed to prove that Hines was a “ ‘witness’ or

party to his case” at the time she agreed to sign the affidavit. The same month, the trial court

conducted a hearing in the matter and denied defendant’s posttrial motion. It then proceeded with

defendant’s sentencing hearing. The court imposed concurrent sentences of three years’ impris-

onment for the offenses of unlawful possession of firearm ammunition by a felon, unlawful pos-


                                               -5-
session of cocaine, and unlawful possession of methamphetamine. It also imposed a sentence of

three years’ imprisonment for the offense of unlawful communication with a witness, which it

ordered to run consecutively to defendant’s other sentences.

¶ 12           This appeal followed.

¶ 13                                     II. ANALYSIS

¶ 14           On appeal, defendant argues the State failed to prove him guilty of the offense of

unlawful communication with a witness. Specifically, he contends the evidence presented failed

to show that Hines was a “witness” when he “offered and paid her money.” Defendant also con-

tends that because Hines was not a witness or a party to the case when he offered her money, he

could not have been shown to have had the intent to deter her from testifying truthfully.

¶ 15           “The State has the burden of proving beyond a reasonable doubt each element of

an offense.” People v. Gray, 2017 IL 120958, ¶ 35, 91 N.E.3d 876. When presented with a chal-

lenge to the sufficiency of the evidence, a reviewing court must view the evidence presented in

the light most favorable to the State and determine whether “any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” (Internal quotation marks

omitted.) Id. “A criminal conviction will not be reversed for insufficient evidence unless the evi-

dence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the

defendant’s guilt.” Id.

¶ 16           Additionally, when construing a statute, the primary objective is to give effect to

the legislature’s intent. People v. Casas, 2017 IL 120797, ¶ 18, 104 N.E.3d 425. “The most reli-

able indicator of legislative intent is the language of the statute, given its plain and ordinary

meaning.” Id. When terms in a statute are undefined, “[i]t is appropriate to employ the dictionary


                                               -6-
as a resource to ascertain [their] meaning.” People v. Cardamone, 232 Ill. 2d 504, 513, 905

N.E.2d 806, 811-12 (2009). To the extent this appeal involves matters of statutory construction,

our review is de novo. People v. Hunter, 2017 IL 121306, ¶ 15, 104 N.E.3d 358.

¶ 17           Section 32-4(b) of the Criminal Code of 2012 (720 ILCS 5/32-4(b) (West 2014)),

sets forth the elements of the offense of unlawful communication with a witness, providing as

follows:

               “A person who, with intent to deter any party or witness from testifying freely,

               fully and truthfully to any matter pending in any court *** forcibly detains such

               party or witness, or communicates, directly or indirectly, to such party or witness

               any knowingly false information or a threat of injury or damage to the property or

               person of any individual or offers or delivers or threatens to withhold money or

               another thing of value to any individual commits a Class 3 felony.”

Thus, as charged in this case, a person unlawfully communicates with a witness when, with the

intent to deter the witness from testifying freely, fully, and truthfully to any matter pending in

court, he or she “offers or delivers” money to any individual.

¶ 18           Here, the State presented evidence showing defendant offered Hines $500 to sign

an affidavit that indicated she was law enforcement’s confidential source and that she planted

drugs and ammunition in defendant’s residence. Evidence further showed that after Hines signed

the affidavit, defendant delivered the promised $500 to her. As stated, defendant contends the

evidence failed to establish all the necessary elements of the unlawful-communication-with-a-

witness offense because Hines was not a witness as contemplated by section 32-4(b). We disa-

gree.


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¶ 19           A witness is defined as “[s]omeone who sees, knows, or vouches for something”

or “[s]omeone who gives testimony under oath or affirmation (1) in person, (2) by oral or written

deposition, or (3) by affidavit.” Black’s Law Dictionary (10th ed. 2014). While Hines may not

have been a “witness” to any pending legal matter when first approached by defendant regarding

the affidavit, she certainly became a witness when she signed that affidavit and swore that she

had information relevant to defendant’s pending criminal charges. Once Hines signed the affida-

vit, defendant paid, or delivered to her, the promised $500. The delivery of money to any indi-

vidual satisfies an element of the charged offense. 720 ILCS 5/32-4(b) (West 2014).

¶ 20           Finally, defendant’s intent to deter Hines from testifying freely, fully, and truth-

fully can be inferred from the circumstances presented. People v. Woodrum, 223 Ill. 2d 286, 316,

860 N.E.2d 259, 279 (2006) (“Criminal intent is a state of mind that is usually inferred from the

surrounding circumstances.”). Specifically, a rational jury could have concluded from the evi-

dence presented that by paying Hines $500, defendant intended that she would not later testify

truthfully. In other words, she would continue to take responsibility for planting the items found

in his residence as she stated in her affidavit and not divulge that she was induced to take respon-

sibility for the offenses at issue with the promise of money. Accordingly, we find the record con-

tains sufficient evidence to support each element of the unlawful-communication-with-a-witness

offense.

¶ 21           Defendant argues that he could not “logically” have deterred Hines from testify-

ing truthfully because she had no connection with his case when he approached her. However, as

discussed, once Hines signed the affidavit, she became a witness with information relevant to

defendant’s criminal case and could be deterred from testifying freely, fully, and truthfully.


                                                -8-
¶ 22           On appeal, defendant cites appellate court decisions that address either the unlaw-

ful-communication-with-a-witness offense or the greater offense of witness harassment. See

People v. Stuckey, 2011 IL App (1st) 092535, 959 N.E.2d 740; People v. Gemeny, 313 Ill. App.

3d 902, 731 N.E.2d 844 (2000); People v. Butler, 375 Ill. App. 3d 269, 873 N.E.2d 480 (2007).

He maintains that because these cases involve a defendant’s communication with, or harassment

of, a known witness, i.e., an occurrence witness to charged criminal conduct (Stuckey), a witness

subpoenaed to testify (Gemeny), or a complaining witness (Butler), they demonstrate the inap-

plicability of the unlawful-communication-with-a-witness offense to the factual circumstances of

his case. Again, we disagree.

¶ 23           The cases cited by defendant do arise under different factual circumstances than

presented here. However, they do not represent the only factual circumstances under which sec-

tion 32-4(b) may be applied and do not preclude application of the statute to the facts presented

by this case. The cases defendant cites are simply not dispositive of the issue presented and do

not warrant reversal of defendant’s conviction.

¶ 24           Finally, defendant argues that the State charged him with “the wrong offense” and

that it should have charged him, instead, with subornation of perjury, bribery, or obstruction of

justice. As the State points out, however, a prosecutor has wide discretion in determining wheth-

er and how to charge a defendant. People v. Perry, 224 Ill. 2d 312, 339, 864 N.E.2d 196, 213

(2007) (“[T]he prosecutor has broad discretion in determining whether to charge an individual

with a criminal offense and the nature of the offense to be charged.”). Here, aside from the ar-

guments already addressed and rejected, defendant has failed to make any reasoned argument

suggesting the State was required to charge defendant with a different offense than the one at is-


                                              -9-
sue.

¶ 25                                 III. CONCLUSION

¶ 26          For the reasons stated, we affirm the trial court’s judgment. As part of our judg-

ment, we award the State its $50 statutory assessment against defendant as costs of this appeal

(55 ILCS 5/4-2002(a) (West 2016)).

¶ 27          Affirmed.




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