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                                Appellate Court                           Date: 2019.05.28
                                                                          08:57:02 -05'00'



                  People v. Henderson, 2019 IL App (4th) 170305



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             ELTON HENDERSON, Defendant-Appellant.



District & No.      Fourth District
                    Docket No. 4-17-0305



Filed               March 6, 2019



Decision Under      Appeal from the Circuit Court of Champaign County, No. 15-CF-616;
Review              the Hon. Thomas J. Difanis, Judge, presiding.



Judgment            Affirmed.


Counsel on          Brian Hiatt, of Bourbonnais, for appellant.
Appeal
                    Julia Rietz, State’s Attorney, of Urbana (Patrick Delfino, David J.
                    Robinson, and Timothy J. Londrigan, of State’s Attorneys Appellate
                    Prosecutor’s Office, of counsel), for the People.



Panel               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 (count I) (720 ILCS 5/24-1.1(a) (West 2014)), unlawful possession
     with intent to deliver 1 to 15 grams of a substance containing cocaine (count II) (720 ILCS
     570/401(c)(2) (West 2014)), and unlawful possession with intent to deliver 5 to 15 grams of a
     substance containing methamphetamine (count III) (720 ILCS 646/55(a)(2)(B) (West 2014)).
     The charges stemmed from the execution of a search warrant at defendant’s residence in April
     2015. The record 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 affidavit
     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 ammunition 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 unlawful
     communication with a witness (count IV) (720 ILCS 5/32-4(b) (West 2014)). 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 deliver less than five grams of a substance containing methamphetamine (count V) (720
     ILCS 646/55(a)(2)(A) (West 2014)). The record reflects the State then moved to dismiss count
     III, alleging similar conduct but a different amount of methamphetamine possessed by
     defendant. 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 named Deondre Newbill provided information to law enforcement officers
     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
     defendant was a convicted felon at the time the search warrant was executed.

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¶7          The State’s evidence further showed that after it filed the drug-related and firearm-
       ammunition charges against defendant and before Newbill was disclosed as law enforcement’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 informant
       who provided the information used to obtain the search warrant. Additionally, both asserted
       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 together 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 believed
       that [Hines] was a confidential informant in [his] case.” According to Hines, defendant 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 defendant 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 defendant’s
       residence.
¶ 10        Relative to the offense of unlawful communication with a witness, the State presented 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.
                                                      ***
                     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 [defendant’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

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       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 verdict.
       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’
       imprisonment for the offenses of unlawful possession of firearm ammunition by a felon,
       unlawful possession 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 contends
       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
       challenge 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 evidence 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
       reliable 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 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.”



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       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 disagree.
¶ 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 affidavit, defendant paid, or delivered to her, the promised $500. The delivery of
       money to any individual 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 truthfully 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
       evidence 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 responsibility for the offenses at issue with the promise of money. Accordingly, we find
       the record contains 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 testifying
       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.
¶ 22        On appeal, defendant cites appellate court decisions that address either the unlawful-
       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 inapplicability 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 section
       32-4(b) may be applied and do not preclude application of the statute to the facts presented by

                                                    -5-
       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
       whether 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 arguments 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 issue.

¶ 25                                        III. CONCLUSION
¶ 26       For the reasons stated, we affirm the trial court’s judgment. As part of our judgment, 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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