
                                                   THIRD DIVISION
                                                   February 27, 2002



No. 1-00-2267

THE PEOPLE OF THE STATE OF ILLINOIS,    )
                                        )    Appeal from the
                                        )    Circuit Court of
                 Plaintiff-Appellee,         )     Cook County.
                                        )
            v.                          )
                                        )    Honorable
ANTOINE KELLEY,                   )     Dennis Dernbach,
                                        )    Judge Presiding.
                 Defendant-Appellant.        )


      JUSTICE SOUTH delivered the opinion of the court:

      Defendant, Antoine Kelley, was charged with two counts of armed robbery.  Subsequent to a
bench trial he was convicted of aggravated robbery and sentenced to seven years in the Illinois
Department of Corrections.
      The evidence adduced at trial is as follows:  Jimmy Anderson testified that during the evening
hours of January 25, 1998, he and his girlfriend, Mimi Johnson, were standing on a street corner
when they were approached from behind by two men.  One of the men pushed a hard object into his back
and told him to walk and not say anything.  Anderson identified defendant as one of those men.   The
other man held what "looked" and "clicked" like a gun and told Anderson to empty his pockets and
remove his shoes and coat.    At the same time defendant was going through Mimi's pockets.   The
other man then told Anderson to run or he would be shot.  Anderson ran, leaving Mimi behind with
their assailants.
      Anderson ran to a nearby bar and told everyone that he had just been robbed.  Shortly
thereafter Mimi returned unharmed, and they drove back to the alley where they had been robbed and
found Anderson's shoes and coat.    Shortly thereafter, they were picked up by the police and driven
to a nearby gas station where the two men who had just robbed them were being detained by other
policemen.  Anderson identified them as such to the police officers.   One of the officers showed
him a packet of Newport cigarettes which she had just removed from one of the men.  Anderson
identified that packet as belonging to Mimi.
      Officer Kelly Richards of the Chicago police department testified that shortly after midnight
on January 26, 1998, she and her partner were on routine patrol when she observed a male black
without a coat or shoes running down the street.  Officer Richards looked in the direction from
which this man was running and saw two male blacks running out of an alley, one of whom was carrying
a blue winter coat.  She followed these men in her squad car and observed them drop the coat next to
a parked car.  The men then entered that car and ducked down.   Officer Richards and her partner got
out of their squad car and approached the other car when it sped off.  The officers immediately got
back into their squadrol and gave chase.  Eventually, they pulled the car over at a gas station and
had the two men exit.  As they were standing there, another squad car pulled up with the two victims
inside.  One of the victims, Jimmy Anderson, identified these men as the people who had just robbed
him.  Officer Richards recovered three dollars and a pack of Newport cigarettes from defendant,
which Jimmy Anderson identified as belonging to Mimi Johnson.
      Defendant testified that on the evening of January 25, 1998, he was asleep in the passenger
seat of his car when he was awakened by the movement of the car which was making fast turns.  He
also saw police lights.  He asked the driver, Willie Hopkins, why he was driving that way, and
Willie told him "to be cool, be cool, don't worry about it."   Willie began stuffing marijuana into
his mouth.  Defendant told Willie to stop the car, at which time they pulled into a gas station and
stopped.  Immediately thereafter a police car pulled up behind them and ordered them to get out.
While they were there, another police car pulled up with two people inside.   Defendant did not know
these people and had never seen them before that moment.   He denied being involved in a robbery and
denied carrying a coat and dropping it alongside his car.  When the police searched him, they
recovered a pack of Newport cigarettes.  However, he has been smoking Newports since 1991.
      At the close of the evidence, the trial court did not find defendant guilty of armed robbery
but convicted him of aggravated robbery.  Specifically, the court stated:
           "[H]aving heard the evidence in this case, the witnesses, I find that as to the weapon
           used, the State has not proven that beyond a reasonable doubt, but as to the fact that
           property was taken from the victim in this case, by force, I do and by threat of the use
           of a weapon, I find the defendant guilty of aggravated robbery." (Emphasis added.)

      Defendant has raised two issues for our review: (1) whether  aggravated robbery is a lesser
included offense of armed robbery; and (2) whether the evidence proved him guilty beyond a
reasonable doubt.
      Initially, defendant argues that while the court was correct in finding that the State had not
proven him guilty of armed robbery, it erred in convicting him of aggravated robbery because it is
not a lesser included offense of armed robbery.  Specifically, defendant argues that since he was
never charged with aggravated robbery, and since aggravated robbery is not a lesser included offense
of armed robbery, his conviction was improper.
      It is axiomatic that no one may be convicted of an offense not expressly charged unless that
offense is a lesser included offense of that which is expressly charged.  People v. McDonald, 321
Ill. App. 3d 470 (2001).  However, a defendant may be convicted of an offense not expressly included
in the charging instrument if that offense is a lesser included offense of the crime expressly
charged.  People v. Novak, 163 Ill. 2d 93 (1994).  A lesser included offense is "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
2000).    In considering whether a crime is a lesser included offense of another, Illinois follows a
"charging instrument" analysis.  Novak, 163 Ill. 2d at 106-07;  People v. Jones, 293 Ill. App. 3d
119, 127 (1997).   This approach looks to the facts alleged in the charging instrument in
identifying a lesser included offense, and an offense is deemed to be lesser included if it is
described by the charging instrument.  Novak, 163 Ill. 2d at 107.   In other words, an offense is
determined to be a lesser included offense not by analyzing the statutory elements of the crimes
involved and the possible theoretical ways in which the charged offense and alleged lesser included
offense could be committed, but rather by comparing the charging instrument to the alleged lesser
included offense to see whether the charging instrument sufficiently describes the "foundation" or
"main outline" of that offense.  Jones, 293 Ill. App. 3d at 128.   Therefore, aggravated robbery may
be found to be a lesser included offense of armed robbery in any given prosecution, but the precise
language of the charging instrument will determine that.   McDonald, 321 Ill. App. 3d at 472.
      Under the indictments in the instant case, defendant was charged with armed robbery in that he
"by the use of force or by threatening the imminent use of force while armed with a dangerous
weapon, to wit: a gun took a coat and shoes from the person or presence of Jimmy Anderson (and Mimi
Johnson) in violation of Chapter 720, Act 5, Section 18-2 of the Illinois Compiled Statutes 1992 as
Amended."
      In Illinois, a person commits robbery when he "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
2000).   A person commits armed robbery when  he "violates section 18-1 while (carrying) on or about
his or her person, or is otherwise armed with a dangerous weapon."  720 ILCS 5/18-2(a) (West 2000).
      Aggravated robbery is defined as follows:
                 "A person commits aggravated robbery when he or she takes property from the person
           or presence of another by the use of force or by threatening the imminent use of force
           while indicating verbally or by his or her actions to the victim that he or she is
           presently armed with a firearm or other dangerous weapon, including a knife, club, ax or
           bludgeon.  This offense shall be applicable even though it is later determined that he or
           she had no firearm or other dangerous weapon, including a knife, club, ax, or bludgeon,
           in his or her possession when he or she committed the robbery."  720 ILCS 5/18-5 (2001).

      Armed robbery and aggravated robbery require different elements of proof in that the elements
of armed robbery require that a defendant "carry on or about his person or (be) otherwise armed with
a firearm," while aggravated robbery requires that a defendant "indicate verbally or by his actions
to the victim that he or she is presently armed with a firearm or other dangerous weapon."
      In Jones, the Sixth Division of this court addressed the question of whether aggravated
robbery is a lesser included offense of armed robbery in the context of whether the defendant was
entitled to a lesser included offense jury instruction.   The indictment in Jones alleged armed
robbery as follows:
            " 'Robert Jones committed the offense of armed robbery in that
            he, by the use of force or by threatening the imminent use of
            force while armed with a dangerous weapon, to wit: a handgun,
            took United States currency from the person or presence of
            ( the victim) ***.' "  Jones, 293 Ill. App. 3d at 129.

      The Sixth Division held in Jones that "although this indictment does allege the use of a
firearm, an allegation sufficient to meet part of the third element of the aggravated robbery
statute, it clearly does not allege that the gun was ever displayed to (the victim) or that the
defendant implied to (the victim) that he possessed a gun."  Jones, 293 Ill. App. 3d at 129.   The
court found such an allegation was a "necessary 'foundation' or 'main element' " of the aggravated
robbery charge, and following the reasoning of Novak, held that such an allegation could not be
inferred from the remaining allegations of the indictment in affirming the trial court's refusal to
tender the defendant's requested jury instruction on aggravated robbery.   Jones, 293 Ill. App. 3d
at 129.
      Similarly, the indictments in the instant case allege the use of a firearm, an allegation
sufficient to meet part of the third element of the aggravated robbery statute.  However, it does
not allege that the gun was ever displayed to the victims or that defendant implied to the victims
that he possessed a gun.    Due to that omission, we choose to follow the reasoning in Jones and
find that the indictment does not sufficiently allege the "foundation" or "main outline" of the
offense of aggravated robbery, i.e., that Antoine Kelley "indicated verbally or by his *** actions
to the victim(s) that he (was) presently armed with a firearm or other dangerous weapon."
Therefore, under the language of the indictments before us, aggravated robbery, the uncharged
offense, is not a lesser included offense of the charged offense, armed robbery, and cannot support
the convictions for aggravated robbery.
      Having found that defendant was improperly convicted of the uncharged offense of aggravated
robbery, we must now determine what the appropriate remedy should be.  Defendant argues that further
prosecution for armed robbery or aggravated robbery would violate the double jeopardy clauses of the
fifth and fourteenth amendments to the Constitution of the United States and article I, section 10
of the Illinois Constitution of 1970.   The double jeopardy clause provides that no person shall "be
subject for the same offense to be twice put in jeopardy of life or limb."  U.S. Const., amend. V.
Our Illinois Constitution has a similar provision which provides: "No person shall be *** twice put
in jeopardy for the same offense."  Ill. Const. 1970, art. I, §10.  These provisions apply both to
successive punishments and to successive prosecutions for the same criminal offense.
      Ordinarily, when a conviction is overturned because of trial error, the State is free to retry
the defendant until he is convicted in an error-free trial; of course, once he is acquitted, whether
or not in an error-free proceeding, that is the end of the proceedings and the bar of double
jeopardy descends.  Therefore, to invoke double jeopardy the defendant must somehow find an
acquittal in these convictions.  People v. Hill, 154 Ill. App. 3d 214, 216 (1987).
      It is clear from the record before us that the trial judge acquitted defendant of the armed
robbery charge.   At the close of the evidence he stated that as to the weapon used, "the State
ha(d) not proven that beyond a reasonable doubt *** ."    In other words, the trial court determined
that the State had not met its burden of proving that defendant or his accomplice possessed a
firearm, thereby committing the offense of armed robbery.  Given the fact that defendant was
acquitted of armed robbery by the trial court, it would be inappropriate for us to remand this case
back to the circuit court for a re-trial on the armed robbery charge due to double jeopardy
constraints.   Furthermore, remand for a retrial on the aggravated robbery charge would be equally
inappropriate since defendant has never been charged with that offense.  Therefore, the only
appropriate relief is to reverse defendant's conviction of aggravated robbery.
      Based upon the foregoing, the judgment of the circuit court is reversed.
      Reversed.
      HALL, P.J., and WOLFSON, J., concur.
