                         Docket No. 101612.


                              IN THE
                      SUPREME COURT
                                 OF
                 THE STATE OF ILLINOIS




THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
           MICHAEL L. PERRY, Appellee.

                  Opinion filed February 16, 2007.



    JUSTICE GARMAN delivered the judgment of the court, with
opinion.
    Chief Justice Thomas and Justices Freeman, Karmeier and Burke
concurred in the judgment and opinion.
    Justice Fitzgerald dissented, with opinion, joined by Justice
Kilbride.



                              OPINION

    After a jury trial in the circuit court of Du Page County, defendant
Michael L. Perry was convicted of theft by deception (720 ILCS
5/16–1(a)(2) (West 2000)). Based on the value of the stolen property,
his crime was classified as a Class 2 felony and he was sentenced to a
term of six years’ imprisonment and ordered to pay restitution. 720
ILCS 5/16–1(b)(5) (West 2000). On appeal, the court held that he
could be convicted only of the lesser offense of theft of property
valued in excess of $300, but less than $10,000 (720 ILCS
5/16–1(b)(4) (West 2000)), a Class 3 felony, and remanded for a new
sentencing hearing. 361 Ill. App. 3d 703. We granted the State’s
petition for leave to appeal, under Rules 315 and 604(a)(2) (210 Ill.
2d Rs. 315, 604(a)(2)), to determine whether defendant was properly
convicted of theft of property valued in excess of $10,000 when the
property at issue was the occupancy of a hotel room for a period of
more than three months. In addition, we consider defendant’s request
for cross-relief on his claim of ineffective assistance of trial counsel.

                             BACKGROUND
    Defendant, along with his wife and children, occupied a suite at
the Embassy Suites hotel in Lombard, Illinois, from January through
April 2000. The testimony at trial revealed that after staying at the
hotel for several weeks, defendant sought to negotiate a reduced rate
for the room. He also requested that the cost of his stay be billed to a
company of which he was the president, Prolific Development
Corporation (Prolific). He provided several trade references and a
credit card in the name of Bryan Green.
    The hotel manager drafted a document headed “RATE
AGREEMENT February 2000–December 30, 2000.” The agreement
provided for a rate of $130 per night for a two-room suite, with a
minimum stay of 100 nights “on an annual basis.” Both parties signed
the agreement. Several days thereafter, the hotel controller sent a
letter to defendant at the address he had provided for Prolific,
confirming that billing statements would be sent to the corporate
address and that the hotel’s “net terms are 30 days from each
statement date.”
    After four bills sent to the business address went unpaid, the
hotel’s controller slid a letter under defendant’s hotel room door. The
letter noted that payment was more than 60 days past due and that the
balance on the account was over $12,000. Defendant did not respond
to the letter.
    Eventually, it was revealed that the person defendant identified as
the contact person for Prolific was not actually connected with the
company. The hotel was also unable to contact the company using the
e-mail address provided by defendant. Bills and letters that had been
sent to the business address were returned to the hotel by the post
office in a single envelope marked “Address Unknown.” When the

                                  -2-
trade references were eventually contacted, one reported that
defendant did not have a valid account. Another reported that
defendant was not in good standing and owed it money.
    At various times, defendant explained to members of the hotel
staff that he was having problems with the post office, that he had
submitted the bill to his accountant for payment, that payment would
be made by May 9, 2000, that payment would arrive “any day,” and
that the check was being “cut from another company” about which he
was unable to provide any information.
    On the afternoon of May 12, 2000, the hotel contacted the
Lombard police department. An officer responded and, along with
several members of the hotel staff, went to defendant’s room to speak
to him. He was not present, so they left a message with his wife.
Defendant did not respond to the message.
    During the night shift on May 13, 2000, defendant and his family
vacated the hotel room without checking out or settling the bill.
Although defendant paid a small portion of his bill by credit card
during the early part of his stay, the unpaid balance for the room,
restaurant, laundry services, telephone, and other charges exceeded
$15,000. An attempt by the hotel to charge some of these expenses to
the credit card in the name of Bryan Green, which defendant had
provided earlier, was unsuccessful because the individual named on
the credit card disputed the charges.
    A Du Page County grand jury returned an indictment charging
defendant with theft by deception “of property exceeding $10,000 and
not exceeding $100,000 in value.” 720 ILCS 5/16–1(a)(2), (b)(5)
(West 2000). He remained free on bond but failed to appear on
January 9, 2001. The following month, he was taken into custody in
Georgia. He was returned to Illinois in April 2001.
    After a jury trial, defendant was convicted of the theft and
sentenced accordingly. 720 ILCS 5/16–1(b)(5) (West 2000). The
additional charge of violating his bail bond and failing to appear was
nol-prossed by the State.




                            ANALYSIS

                                 -3-
    Part C of the Criminal Code of 1961 codifies the law of offenses
against property. Article 15 therein defines various statutory terms
used elsewhere in part C, including the term “property.” Article 16
defines theft and related offenses. Defendant was charged with theft
under section 16–1:
            “(a) A person commits theft when he knowingly:
            ***
                (2) Obtains by deception control over property of the
            owner; ***
                                 ***
                *** and
                    (A) Intends to deprive the owner permanently of
                the use or benefit of the property[.]” 720 ILCS
                5/16–1(a)(2)(A) (West 2000).
    Depending on the value of the stolen property and other facts, the
crime of theft may be punished as a Class A misdemeanor, a Class 4,
3, 2, or 1 felony, or a Class X felony. 720 ILCS 5/16–1(b) (West
2000). “Theft of property exceeding $10,000 and not exceeding
$100,000 in value is a Class 2 felony.” 720 ILCS 5/16–1(b)(5) (West
2000). “When a charge of theft of property exceeding a specified
value is brought, the value of the property involved is an element of
the offense to be resolved by the trier of fact as either exceeding or
not exceeding the specified value.” 720 ILCS 5/16–1(c) (West 2000).
    “Property” is defined in section 15–1 as follows:
            “ ‘[P]roperty’ means anything of value. Property includes
        real estate, money, commercial instruments, admission or
        transportation tickets, written instruments representing or
        embodying rights concerning anything of value, labor, or
        services, or otherwise of value to the owner; things growing
        on, affixed to, or found or land, or part of or affixed to any
        building; electricity, gas and water; telecommunications
        services; birds, animals and fish, which ordinarily are kept in
        a state of confinement; food and drink; samples, cultures,
        microorganisms, specimens, records, recordings, documents,
        blueprints, drawings, maps, and whole or partial copies,
        descriptions, photographs, computer programs or data,
        prototypes or models thereof, or any other articles, materials,

                                 -4-
         devices, substances and whole or partial copies, descriptions,
         photographs, prototypes, or models thereof which constitute,
         represent, evidence, reflect or record a secret scientific,
         technical, merchandising, production or management
         information, design, process, procedure, formula, invention,
         or improvement.” 720 ILCS 5/15–1 (West 2000).
    Relying on People v. Davis, 203 Ill. App. 3d 838 (1990), the
appellate court concluded that the occupancy of a hotel room is not
“property” as that term is defined in section 15–1. As a result, the
stolen property consisted only of food and other incidentals obtained
by defendant, valued at over $300, but less than $10,000, and
punishable as a Class 3 felony. 720 ILCS 16–1(b)(4) (West 2000).
    The Davis defendants were indicted for theft of property after it
was alleged that they instructed city employees to engage in political
activities such as the collection of absentee ballots during time that
they were being paid by the City of East St. Louis to work on a public
works project. Davis, 203 Ill. App. 3d at 841. The trial court
dismissed the indictments on the basis that the labor of an employee
is not the property of the employer and, thus, diversion of the
employee’s labor is not a theft. Davis, 203 Ill. App. 3d at 841-42.
    The appellate court affirmed the dismissal of the indictments for
several reasons. The court noted that “[a]t common law, only tangible
personal property could be the subject of larceny” (Davis, 203 Ill.
App. 3d at 844), and that section 15–1 was intended to add to this
definition “things not embraced by larceny under common law.” The
court concluded that the statutory definition of property in section
15–1 includes only tangible personal property that was subject to
larceny at common law, indicated by the phrase “anything of value,”
and those other items specifically enumerated in the following
sentence. Further, the court stated that section 15–1 “only lists items
which may be physically possessed and carried away.” Davis, 203 Ill.
App. 3d at 845.
    In addition, the Davis court relied on the canon of construction
that “[l]egislation in derogation of the common law is usually strictly
construed.” Thus, the court stated, the word “includes” in section
15–1 “should be considered an enumeration excluding all other things
not in the specific category.” Davis, 203 Ill. App. 3d at 846. Finally,


                                 -5-
the court noted that “[c]riminal or penal statutes are to be strictly
construed in favor of the accused.” Davis, 203 Ill. App. 3d at 846.
     In the present case, the appellate court noted that except for the
subsequent addition of the term “telecommunications services,”
section 15–1 is identical to the statute at issue in Davis. 361 Ill. App.
3d at 712. The appellate court concluded that the Davis court
“implicitly recognized that the word ‘includes’ as used in section 15–1
was ambiguous” because the Davis court noted that this word “has
more than one reasonable meaning” and thereafter resolved the
ambiguity by employing the rule that a statute in derogation of the
common law must be strictly construed. 361 Ill. App. 3d at 712. The
appellate court then found that “this resolution of the ambiguity was
the proper one because it limits the expansion of the common-law
definition.” 361 Ill. App. 3d at 713.
     Further, the appellate court reasoned that the “structure of section
15–1 also supports this conclusion.” The legislature could have used
two sentences instead of one, but instead of saying that property is
“anything of value including” a list of examples, the legislature chose
to use a separate sentence beginning with the phrase “[p]roperty
includes.” This structure, the appellate court concluded, “was intended
to convey that the items specifically enumerated were in addition to,
not part of, the general class.” 361 Ill. App. 3d at 713. The appellate
court also observed that the legislature has not amended the statute
subsequent to Davis, so it may be presumed that it has “acquiesced in
the court’s interpretation of legislative intent.” 361 Ill. App. 3d at 714.
Because the use of a hotel room is neither tangible personal property
nor one of the items specifically enumerated in section 15–1, the
appellate court held that the right to use a hotel room is not property
that can be stolen by deception under section 16–1.
     Before this court, the State argues that the right to occupy a hotel
room is property as that term is defined in section 15–1 of the
Criminal Code because the leasehold interest created by renting a
hotel room is a chattel, which falls under the common law definition
of property that has been incorporated into section 15–1. The State
also argues that the term “includes” in section 15–1 was not intended
to limit the scope of the statutory definition to the enumerated items
but, rather, to illustrate the types of property that the legislature
intended to include in an expanded definition of property.

                                   -6-
     The principles guiding our analysis are well established. Our
primary objective is to ascertain and give effect to legislative intent,
the surest and most reliable indicator of which is the statutory
language itself, given its plain and ordinary meaning. Illinois Graphics
Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). In determining the plain
meaning of statutory terms, we consider the statute in its entirety,
keeping in mind the subject it addresses and the apparent intent of the
legislature in enacting it. People v. Davis, 199 Ill. 2d 130, 135 (2002).
Where the language of the statute is clear and unambiguous, we must
apply it as written, without resort to extrinsic aids to statutory
construction. People v. Collins, 214 Ill. 2d 206, 214 (2005).
     If the language is ambiguous, making construction of the language
necessary, we construe the statute so that no part of it is rendered
meaningless or superfluous. People v. Jones, 214 Ill. 2d 187, 193
(2005). We do not depart from the plain language of the statute by
reading into it exceptions, limitations, or conditions that conflict with
the expressed intent. People v. Martinez, 184 Ill. 2d 547, 550 (1998).
The traditional canons or maxims of statutory construction are not
rules of law, but rather are “merely aids in determining legislative
intent and must yield to such intent.” In re Application of the County
Treasurer, 214 Ill. 2d 253, 259 (2005).
     In the present case, we are called upon to review the appellate
court’s construction of sections 15–1 and 16–1 of the Criminal Code
(720 ILCS 5/15–1, 16–1 (West 2000)). The construction of a statute
is a question of law, which we review de novo. People v. Donoho, 204
Ill. 2d 159, 172 (2003).

       Whether the Occupancy of a Hotel Room Is “Property”
    At common law, the crime of larceny was “the felonious stealing,
taking and carrying, leading, riding or driving away the personal
goods of another *** with the felonious intent to deprive the owner
of his property.” People v. Pastel, 306 Ill. 565, 568 (1923). Under this
traditional definition of larceny, the occupancy of a hotel room clearly
could not have been the subject of the crime.
    Eventually, the common law crimes were codified by statute. As
the State correctly notes, for at least 50 years prior to the adoption of
the Criminal Code of 1961, some items that would not have been

                                  -7-
subject to the crime of larceny at common law were nevertheless
property subject to statutory theft. For example, in Moline Water
Power Co. v. Cox, 252 Ill. 348 (1911), this court held that water
power created by a waterfall was property under the theft statute at
the time. This court explained:
        “[Water] [p]ower is not a chattel. It is not a tangible entity. It
        manifests itself only by its results. But it is property, and is
        bought and sold in the market as freely as the products of the
        farm. At common law it could not be the subject of larceny,
        which must be of goods and chattels, but it is now protected
        by statute to the same extent as other forms of property, and
        the unauthorized connection of any gas, water or electric
        current with a motor or other appliance is a misdemeanor,
        punishable by law. (Crim. Code, par. 117.) The use of a fall of
        water artificially impounded is that taking of that which has
        been produced by the combination of artificial means and
        natural forces, and partakes of the nature of a profit à
        prendre. It is, in fact, an interest in the aggregate of rights
        constituting the water power, which is real estate.” Moline
        Water Power, 252 Ill. at 357.
    Similarly, in People v. Menagas, 367 Ill. 330, 336 (1937), this
court held that the defendant was properly charged with larceny of
electrical energy because larceny under the Criminal Code (Ill. Rev.
Stat. 1935, ch. 38, par. 380) had wider application than at common
law. The larceny statute then said, “ ‘Larceny shall embrace every
theft which deprives another of his money or other personal property,
or those means or muniments by which the right and title to property,
real or personal, may be ascertained.’ ” Menagas, 367 Ill. at 336,
quoting Ill. Rev. Stat. 1935, ch. 38, par. 380.
    Our Criminal Code underwent revision in 1961 and the section
dealing with crimes against property was entirely reorganized.
        “ ‘Formerly, in Illinois, there were some seventy-four separate
        sections which dealt in one form or another with the obtaining
        of property of another with the intent to permanently deprive
        such other or the true owner of the property or its beneficial
        use. All lawyers and judges are too familiar with the highly
        technical differences between larceny, larceny by trick,
        embezzlement, false pretenses, confidence game, and the many

                                   -8-
          variations to require detailed comment. Suffice to say that,
          with the exception of robbery, burglary, arson, and criminal
          damage and trespass to property, which are covered
          respectively in Articles 18, 19, 20 and 21, the Committee
          intended to codify the entire range of offenses against property
          into Articles 16 and 17, and to abolish completely the labels
          and highly technical distinctions which had developed through
          centuries of case law and statutory amendments.’ ” People v.
          McCarty, 94 Ill. 2d 28, 34 (1983), quoting Ill. Ann. Stat., ch.
          38, art. 16, Committee Comments–1961, at 18 (Smith-Hurd
          1977).
     With this background in mind, we turn to the question of whether
the use of a hotel room is property that can be the subject of theft by
deception under section 16–1. We note that this inquiry requires the
interpretation of two separate statutes. First, we must determine
whether the use of a hotel room is property under section 15–1.
Second, if the answer to the first question is yes, we must determine
whether one who obtains such property by deception can be charged
under section 16–1.
     The Davis court and the appellate court in the present case seem
to have conflated these two inquiries. Section 15–1 does not define
the term “property” only as that term is used in section 16–1. It
defines the term “property” as it is “used in this Part C.” 720 ILCS
5/15–1 (West 2000). Part C is titled “Crimes Against Property.” In
addition to the crimes of theft, robbery, burglary, and arson (720
ILCS 5/16–1, 18–1, 19–1, 20–1 (West 2000)), which were known at
common law, part C defines offenses such as computer crime, wireless
service theft, and financial identity theft (720 ILCS 5/16D–1, 16F–13,
16G–15 (West 2000)). Part C is clearly intended to be broad in scope.
     The first sentence of section 15–1 states that the word “property”
as it is used in part C “means anything of value.” The appellate court,
relying on Davis, limited the meaning of “anything” to items of
tangible personal property. Because part C encompasses much more
than the crime of theft, we must examine the definition of property in
section 15–1 without regard to what types of property might or might
not have been subject to larceny at common law. See Concrete
Materials Corp. v. Gordon, 395 Ill. 203, 207-08 (1946) (common law
definitions must yield to definitions of employee, employer, and

                                   -9-
employment contained in the Unemployment Compensation Act); see
also 34 Ill. L. & Prac. Statutes §51 (2001) (“The General Assembly
has the power to make a reasonable definition of the terms used in an
act, even though such definitions do not correspond with those
contained in other acts. Statutory definitions control in the
construction of the terms of an act, and the common-law definitions
of those terms must yield to the statutory definitions”).
    The plain meaning of the first sentence of section 15–1 is that
“property,” when that term is used in any provision of part C of the
Criminal Code, does indeed include any thing of value.
    We note that the Davis court inaccurately stated that section 15–1
“only lists items which may be physically possessed and carried away.”
Davis, 203 Ill. App. 3d at 845, citing People v. Zakarian, 121 Ill.
App. 3d 968, 972-73 (1984). Zakarian, in turn, relied on cases that
predated the adoption of the Criminal Code of 1961. According to the
Zakarian court, the test of whether property is embraced by the theft
statute “is not whether the property is corporeal or incorporeal or
tangible or intangible. Rather, it is whether the property is capable of
being taken and carried away by someone other than the owner.”
Zakarian, 121 Ill. App. 3d at 972-73 (citing Menagas, 367 Ill. 330,
and Woods v. People, 222 Ill. 293 (1906)).
    The legislature’s inclusion, in 1961, of real estate and electricity
and, in 1994, of telecommunications services in the statutory
definition of property encompassed by the theft statute did away with
this ancient rule. Real estate cannot be taken and carried away, yet it
is “property” under section 15–1. Similarly, electricity and
telecommunications services can be stolen but cannot be taken and
carried away. See Menagas, 367 Ill. at 336-38 (describing the test for
whether an item is personal property as whether it may “be taken and
carried away,” “transported from place to place,” and “bought and
sold like other personal property,” but noting that real property may
also be the subject of larceny).
    The phrase “anything of value” is unambiguous. Clearly, the
legislature intended to expand the definition of property to include not
only items of tangible personal property but also other things of value
such as real estate, electricity, and telecommunications services. The
hospitality industry provides lodging to the public for profit. The
market for hotel and motel rooms is vast. The use of a hotel room

                                 -10-
does have value. See Moline Water Power, 252 Ill. at 357 (stating that
water power is property because it “is bought and sold in the market
as freely as the products of the farm”). We conclude that the use of a
hotel room is a thing of value as that phrase is used in the first
sentence of section 15–1.
    The appellate court, however, construed the word “includes” in
the second sentence of section 15–1 to limit the types of “things” that
come within the definition of property. The State argues that the
weight of authority favors interpreting “includes” as a term of
enlargement or illustration. Defendant argues that the appellate court
properly construed the term as one of limitation.
    Article 2 of the Criminal Code of 1961 contains “General
Definitions.” Section 2–10, which was not cited to this court by either
party, states:
             “ ‘Includes’ or ‘including’ means comprehending among
         other particulars, without limiting the generality of the
         foregoing word or phrase.” 720 ILCS 5/2–10 (West 2000).
    Although there have been no cases interpreting or applying this
definition, its meaning is unmistakable. Either of these words, when
followed by a listing of items, means that the preceding general term
encompasses the listed items, but the list is not exhaustive. The
preceding general term is to be construed as a general description of
the listed items and other similar items.
    Based on this statutory definition, we conclude that in enacting
section 15–1 the legislature intended the definition of property to
include not only items of tangible personal property, but also other
things of value. The enumerated items are illustrative of types of
property that would not have been within the scope of the traditional
common law definition of property that could be the subject of
larceny, but are within the scope of part C of the Criminal Code.
    In light of this statutory definition, we reject the appellate court’s
suggestion that the term “includes” in section 15–1 is ambiguous
because the words “but is not limited to” are not present. 361 Ill. App.
3d at 712, citing Davis, 203 Ill. App. 3d at 846 (“Although the word
‘include’ does not by itself necessarily limit general language, cases
which support a broad or enlarging interpretation for the term
‘include’ do so in order to give effect to a legislative intent to provide

                                  -11-
as large an access as possible to the general term. [Citation.] The
word ‘include’ is sometimes used to add to the general class a species
which does not naturally belong to it. [Citation.] In this case, the items
listed after ‘includes’ should be considered an enumeration excluding
all other things not in the specific category”). The appellate court
concluded that because the word “includes” is sometimes used to
expand a general term and is sometimes used to enumerate specific
items to be added to the general term, it is ambiguous. The court
noted that if the legislature had intended for the items following the
word “includes” to be merely illustrative of items of property, “it
could have written ‘property is anything of value including.’ ” Based
on the lack of such language and the fact that the “includes” language
is in a separate sentence from the “anything of value” language, the
court concluded that the second sentence “was intended to convey
that the items specifically enumerated were in addition to, not part of,
the general class.” 361 Ill. App. 3d at 713.
     The legislature has on many occasions used the phrases “including
but not limited to” or “includes but is not limited to” to indicate that
the list that follows is intended to be illustrative rather than exhaustive.
An electronic search of the Illinois Compiled Statutes reveals 1749
statutes using the phrase “including but not limited to” and 249
containing the phrase “includes but is not limited to.” Over a dozen of
these provisions are contained in part C of the Criminal Code of 1961,
“Offenses Against Property.” See, e.g., 720 ILCS 5/16–1.3, 16–18,
16–21, 16A–2.8, 16D–2, 16F–2 (West 2004).
     We conclude, however, that even in the absence of the phrase “but
is not limited to,” the plain, ordinary, and popularly understood
meaning of the term “includes” does not support the appellate court’s
conclusion. In determining the plain meaning of a statutory term, it is
entirely appropriate to look to the dictionary for a definition. See, e.g.,
People v. Brooks, 221 Ill. 2d 381, 390-91 (2006) (using dictionaries
to provide the definition of the word “docket”); People v. Hari, 218
Ill. 2d 275, 292-93 (2006) (using dictionaries to provide the definition
of the word “involuntary”); U.S. Bank National Ass’n v. Clark, 216
Ill. 2d 334, 347 (2005) (using dictionaries to provide the definition of
the word “compensation”).
     According to Black’s Law Dictionary, “include” means:


                                   -12-
              “To contain as a part of something. The participle
         including typically indicates a partial list <the plaintiff asserted
         five tort claims, including slander and libel>. But some drafters
         use phrases such as including without limitation and including
         but not limited to–which mean the same thing.” (Emphases in
         original.) Black’s Law Dictionary 777-78 (8th ed. 2004).
     The law dictionary refers the reader to the term “namely,” which
means:
              “By name or particular mention; that is to say <the plaintiff
         asserted two claims, namely wrongful termination and
         slander>. The term indicates what is to be included by name.
         By contrast, including implies a partial list and indicates that
         something is not listed.” (Emphasis in original.) Black’s Law
         Dictionary 1049 (8th ed. 2004).
     Similarly, the editor of Black’s Law Dictionary observes in
another work that:
              “[I]ncluding is sometimes misused for namely. But it
         should not be used to introduce an exhaustive list, for it
         implies that the list is only partial. In the words of one federal
         court, ‘It is hornbook law that the use of the word including
         indicates that the specified list ... is illustrative, not exclusive.’
         Puerto Rico Maritime Shipping Auth. v. I.C.C., 645 F.2d
         1102, 1112 n.26 (D.C. Cir. 1981).” (Emphases in original.) B.
         Garner, A Dictionary of Modern Legal Usage 431 (1995).
     Given the statutory definition of “includes” in section 2–10 and the
plain and ordinary meaning of the word, the absence of additional
verbiage such as “but not limited to” does not render section 15–1
ambiguous. In this section, the word “includes” is used to introduce
a list of things of value that illustrate the meaning of the general term
“property.”
     Defendant notes that the legislature has not changed the definition
of property in the wake of Zakarian and Davis and argues that, if
these cases had improperly construed section 15–1, the legislature
would have acted to correct the error. He cites no authority for this
proposition. This court has stated that “ ‘[w]here the legislature
chooses not to amend a statute after a judicial construction, it will be
presumed that it has acquiesced in the court’s statement of the

                                    -13-
legislative intent.’ ” Zimmerman v. Village of Skokie, 183 Ill. 2d 30,
50 (1998), quoting Miller v. Lockett, 98 Ill. 2d 478, 483 (1983). This
presumption, however, is merely a jurisprudential principle; it is not
a rule of law. The fact the legislature has not amended the definition
of property in the years since Zakarian (1984) and Davis (1990) were
decided is of little weight when the meaning of the statute is
unambiguous.
     We note, further, that Zakarian and Davis have not been
extensively relied upon by Illinois courts. The appellate court’s
decision in the present case is the only published Illinois decision to
cite Davis for its discussion of the meaning of “property” in the theft
statute. Davis, in turn, is the only published Illinois decision to cite
Zakarian for this purpose. Our decision in the present case necessarily
overrules Zakarian, 121 Ill. App. 3d 968, and Davis, 203 Ill. App. 3d
838, with respect to the definition of the term “property” in the theft
statute. The Davis court’s conclusion that the labor of an employee
does not belong to the employer is unaffected. Davis, 203 Ill. App. 3d
at 841-42.
     Because we hold that the use of a hotel room is a thing of value
and is, thus, within the statutory definition of property in section 15–1,
we need not consider whether registration as a guest in a hotel creates
a leasehold interest that would be considered a chattel real at common
law, as argued by the State, or an interest in real estate.
     We respond briefly to the appellate court’s application of the
canon of construction that a statute in derogation of the common law
must be strictly construed. Davis, 203 Ill. App. 3d at 846. “The rule
in Illinois is that statutes in derogation of the common law are to be
strictly construed in favor of persons sought to be subjected to their
operation.” Barthel v. Illinois Central Gulf R.R. Co., 74 Ill. 2d 213,
220 (1978). Thus, in Barthel, this court declined to construe the
Public Utility Act to abrogate the common law defense of
contributory negligence because it did not plainly appear to be the
intent of the legislature to do so. Barthel, 74 Ill. 2d at 221.
     In the present case, the statutory terms “property” and “includes”
are unambiguously defined. As noted above, a court will not engage
in statutory construction if the statutory language is unambiguous.
Collins, 214 Ill. 2d at 214 (where the language of the statute is clear
and unambiguous it will be applied as written, without resort to

                                  -14-
extrinsic aids to statutory construction). See also 34 Ill. L. & Prac.
Statutes §50 (2001) (“The purpose of all rules or maxims adopted by
the courts for the construction or interpretation of statutes is to
discover the true intent and meaning of the law. These rules or
maxims are not rules of law, but are merely aids used by the courts in
arriving at the real intention of the legislature when that intention is
not clearly manifest from the language used. These rules are useful
only in cases of doubt, and are never to be used to create a doubt, but
only to remove it”). Thus, the maxim of strict construction has no
application.
    Similarly, the rule of lenity need not be employed. Under this
canon of statutory construction, “penal statutes, where ambiguous,
should be construed to afford lenity to the accused.” People v. Hicks,
164 Ill. 2d 218, 222 (1995). In such a circumstance, the penal statute
must be strictly construed in favor of the accused, with nothing taken
by intendment or implication beyond the obvious or literal meaning of
the statute. People v. Laubscher, 183 Ill. 2d 330, 337 (1998). Because
section 15–1 is not ambiguous, there is no need for construction and
the rule of lenity is not implicated.

       The Requirement of Permanent Deprivation of Property
    Having concluded that section 15–1 was intended to broaden the
definition of property and that the use of a hotel room is property
within the meaning of this statute, we turn to the separate question of
whether such property may be the subject of theft by deception under
section 16–1 of the Criminal Code.
    Section 16–1(a)(2) provides that a person commits theft when he
knowingly obtains control of the property of another by deception.
720 ILCS 5/16–1(a)(2) (West 2000). So long as one of the three
required mental states is present, the crime of theft is complete.
Defendant was charged under section 16–1(a)(2)(A), the intent “to
deprive the owner permanently of the use or benefit of the property.”
720 ILCS 5/16–1(a)(2)(A) (West 2000).
    In addition to defining “property,” section 15 defines other terms
used in section 16–1(a)(2)(A). See 720 ILCS 5/15–2 (defining
“Owner”); 15–3 (defining “Permanent Deprivation”); 15–4 (defining
“Deception”); 15–8 (defining “Obtains Control”) (West 2000).

                                 -15-
     The parties do not dispute that the hotel is the owner of the
property, the meaning of the term “deception,” or that defendant
obtained control over the hotel room during the period of his
occupancy. The question is whether, when the property at issue is the
use of a hotel room, it is possible to permanently deprive the owner of
its use or benefit. If not, defendant cannot be convicted under section
16–1(a)(2)(A) for its theft.
     “Permanent Deprivation,” as used in part C of the Criminal Code,
means to:
             “(a) Defeat all recovery of the property by the owner; or
             (b) Deprive the owner permanently of the beneficial use of
         the property; or
             (c) Retain the property with intent to restore it to the
         owner only if the owner purchases or leases it back, or pays a
         reward or other compensation for its return; or
             (d) Sell, give, pledge, or otherwise transfer any interest in
         the property or subject it to the claim of a person other than
         the owner.” 720 ILCS 5/15–3 (West 2000).
In the present case, only (a) or (b) are potentially applicable.
     The State cites People v. Collins, 106 Ill. 2d 237, 261 (1985), in
support of its argument that a rational trier of fact could have found
that defendant intended to permanently deprive the hotel of the use or
benefit of a leasehold interest. Because the trier of fact may deduce
the intent to permanently deprive the owner of property “ ‘from the
facts and circumstances surrounding the alleged criminal act’ ”
(quoting People v. Veasey, 251 Ill. App. 3d 589, 591-92 (1993)), the
State argues that the jury properly inferred that defendant intended
permanent deprivation when he provided a false billing address and
false trade references and made false promises to pay his bill. Thus,
the State would treat the issue of permanent deprivation as a question
of fact.
     Defendant’s position is that under section 16–1(a)(2), the thing
that is taken by deception from the owner must not only be property
within the meaning of 15–1, but must also be property of which the
owner can be permanently deprived. Defendant states that he and his
family:


                                  -16-
          “took over temporary use of a suite for a three-month period.
          ... They did not obtain permanent control over what the hotel
          owned, ... but rather they made use of hotel property, which
          was available for hire for about $130 per night. The hotel was
          thereby precluded from making the room available to any
          other lodger for each night in that period. But the hotel did
          not permanently lose possession of the suite or its rights
          thereto.” (Emphases added.)
     We agree with defendant that the question presented–whether the
one who uses deception to obtain control of a hotel room for three
months has permanently deprived the owner of the beneficial use of
the property–is one of law. However, defendant is mistaken when he
suggests that the statute requires permanent control by the defendant
or permanent loss of possession by the owner.
     The property at issue here is the use of a hotel room. The hotel’s
complement of rooms can be analogized to a store’s inventory of
goods. The hotel has a finite number of rooms, which it can rent to
members of the public 365 nights each year. One night in one room is
a thing of value. When this thing of value is taken by deception, the
owner has permanently lost the benefit of one night’s income. We,
therefore, hold that each night of occupancy that is obtained by
deception permanently deprives the owner of the beneficial use of the
hotel room within the meaning of section 15–3(b) (720 ILCS
5/15–3(b) (West 2000)).
     Defendant acknowledges that even though the hotel “was deprived
of the rental value it should have received for the room on each of the
nights” that he and his family occupied the suite, the record does not
provide a basis to conclude that the suite would have been rented to
another guest who would have paid at least $130 per night. He cites
no authority for the proposition that in addition to proving that the
value of the property involved exceeded $10,000 (720 ILCS
5/16–1(c) (West 2000)), the State has the burden of proving that the
suite would have been occupied by a paying customer if defendant and
his family had not been there.
     It is well-settled law that the value of stolen property is the fair
cash market value at the time and place of the theft. See, e.g., People
v. Josephine, 165 Ill. App. 3d 762, 764 (1987); People v. Moore, 109
Ill. App. 3d 874, 877 (1982); People v. Brown, 36 Ill. App. 3d 416

                                  -17-
(1976). The rate of $130 per night negotiated by defendant was a
discounted rate. The record supports a finding that the value of the
stolen property exceeded $10,000.

                     Theft Versus Use of Property
    Defendant also argues that he cannot be prosecuted under section
16–1 for the theft by deception of the use of a hotel room because that
offense is codified at section 16–3(a) (720 ILCS 5/16–3 (West 2000))
and must be charged as such.
    Section 16–3(a) provides:
             “A person commits theft when he obtains the temporary
        use of property, labor or services of another which are
        available only for hire, by means of threat or deception or
        knowing that such use is without the consent of the person
        providing the property, labor or services.” 720 ILCS 5/16–3
        (West 2000).
Violation of this section is punishable as a Class A misdemeanor. 720
ILCS 5/16–3(c) (West 2000).
    The question of law which we must answer is whether the two
offenses are mutually exclusive, or whether under the facts of this
case, the State properly charged defendant under section 16–1. We
begin with a comparison of the elements of the two crimes.
    Section 16–1(a)(2)(A) requires that the defendant: (1) knowingly
obtain control, (2) over the property of the owner, (3) by deception,
(4) with the intent to permanently deprive the owner of the use or
benefit of the property. The State must also prove (5) the value of the
stolen property in order to establish the grade of the offense. 720
ILCS 5/16–1(b) (West 2000). Section 16–3(a) requires that he (1)
obtain the temporary use of property, (2) that is available only for
hire, (3) by threat or deception or knowing that the owner has not
consented. 720 ILCS 5/16–3(a) (West 2000).
    Each offense requires proof of one or more elements not required
of the other. To convict a defendant of section 16–1 theft, the State
need not prove that the property is available only for hire. To convict
a defendant of section 16–3 theft, the State need not prove either the
intent to permanently deprive the owner of the use or benefit of the
property or the value of the property.

                                 -18-
    Nevertheless, defendant argues that the use of deception to obtain
the temporary use of property that is available only for hire, such as
a hotel suite, may be prosecuted only under section 16–3. He asserts
that section 16–3 is “directed at precisely the sort of conduct” in
which he allegedly engaged and that the legislature intended such
conduct to be punished as a Class A misdemeanor. See Davis, 203 Ill.
App. 3d at 844 (holding that section 16–3 did not apply to the
defendants’ conduct of diverting the labor of city employees to their
own purposes because section 16–3 is “intended to protect businesses
from the unscrupulous practices of prospective customers”).
Defendant also calls our attention to the comment of the drafters of
section 16–3:
             “This section codifies the ‘temporary use’ aspect of
        sections 300 (now ch. 71, §31) (hotels), 404b (customers list),
        438 (commercial vehicle) and 439 (motor vehicle) of Ill. Rev.
        Stat. 1959, ch. 38.” Ill. Ann. Stat., ch. 38, par. 16–3,
        Committee Comments–1961, at 218 (Smith-Hurd 1977)
        (Revised in 1970 by Charles H. Bowman).
    The “section[ ] 300” referenced above was the first section of “An
Act to define and punish frauds upon hotel, inn, boarding and eating-
house keepers.” The act was approved in 1889. That section
provided:
             “[A]ny person who shall obtain food, lodging or other
        accommodation at any hotel, inn, boarding or eating house,
        with intent to defraud the owner or keeper thereof, shall be
        deemed guilty of a misdemeanor, and upon conviction, shall
        be punished by a fine not exceeding one hundred dollars or
        imprisoned in the county jail not exceeding thirty days.” See
        Ill. Rev. Stat 1933, ch. 38, par. 300.
    Defendant also points to the provisions of the Innkeeper
Protection Act, which, although contained in the Code of Civil
Procedure, parallels the language of section 16–3 of the Criminal
Code:
             “Any person who, with intent to defraud, shall obtain
        lodging, food, money, property or other accommodations at
        a hotel, inn, boarding house or lodging house without paying
        therefor shall be guilty of a Class A misdemeanor. In case of


                                 -19-
         a second conviction of the offense described, the punishment
         shall be that provided for a Class 4 felony.” 740 ILCS 90/5
         (West 2000).
The Innkeeper Protection Act was in effect in Illinois as early as 1889
(1889 Ill. Laws 167). It was amended as recently as 1972 (Pub. Act
77–2529, §1, eff. January 1, 1973).
    The State responds that sections 16–1 and 16–3 are not mutually
exclusive, pointing to the drafters’ comment that:
             “ ‘Because of the special characteristics of the stolen
         commodity, and the practical problems of knowledge and
         intent involved, the theft of lost or mislaid property, and of
         labor, services or the use of property, are dealt with separately
         in sections 16–2 and 16–3. However it should be noted that
         these offenses are also Theft.
             All other forms of theft are included in section 16–1
         except the special deceptive practices proscribed by Article
         17.’ ” McCarty, 94 Ill. 2d at 34, quoting Ill. Ann. Stat., ch. 38,
         art. 16, Committee Comments–1961, at 18 (Smith-Hurd
         1977).
Thus, the State argues, if it can prove the elements of a section 16–1
theft, it may prosecute under that section, even if the property is
available for hire and the defendant’s conduct might otherwise meet
the elements of section 16–3.
    We conclude, for several reasons, that the State has the better
argument. First, although the Innkeeper Protection Act and the
forerunners of section 16–3 have been the law in Illinois for many
decades, the legislature has not expressed any intent that these statutes
are intended to be the exclusive basis for the prosecution of theft by
deception of the use of a hotel room.
    Second, the prosecutor has broad discretion in determining
whether to charge an individual with a criminal offense and the nature
of the offense to be charged. Lyons v. Ryan, 201 Ill. 2d 529, 539
(2002). Both this court and the United States Supreme Court have
held that the prosecutor has the discretion to decide which of two
offenses to charge where two different statutes prohibit the same
criminal conduct but prescribe different punishments. People v.
McCollough, 57 Ill. 2d 440, 443-44 (1974) (same set of facts may

                                   -20-
constitute separate offenses under different statutes); United States v.
Batchelder, 442 U.S. 114, 123-24, 60 L. Ed. 2d 755, 764, 99 S. Ct.
2198, 2204 (1979) (“when an act violates more than one criminal
statute, the Government my prosecute under either so long as it does
not discriminate against any class of defendants”).
    Where, as here, proof of theft under section 16–1 requires proof
of elements not required under section 16–3, it is clear that the
prosecutor has the exclusive discretion to decide which charge to
bring. People v. Jamison, 197 Ill. 2d 135, 161-62 (2001); see also
People v. Barlow, 58 Ill. 2d 41, 44 (1974) (when conduct violates
more than one statute and the statutes require different proof or
provide different defenses, a defendant is not denied equal protection
of the law if he is prosecuted under the statute that provides the
greater penalty).
    Third, the structure of section 16–1 evinces a clear legislative
intent that the theft of property of greater value is deserving of greater
punishment than the theft of less valuable property. Thus, the person
who, through deception, steals one night’s occupancy at a discount
motel is less culpable than the person who steals one night’s
occupancy in a penthouse suite at a four-star hotel. The person who,
through deception, steals one night’s stay at a hotel is less culpable
than the person who stays for three months.
    We note that under section 16–1(b)(1), “[t]heft of property not
from the person and not exceeding $300 in value is a Class A
misdemeanor.” 720 ILCS 5/16–1(b)(1) (West 2000). Similarly, any
section 16–3 theft is a Class A misdemeanor. If the value of the hotel
stay is under $300, both statutes yield the same result and the State
may choose, as a matter of prosecutorial discretion, to proceed under
16–3 because this charge is more easily proven. On the other hand, if
the value of the hotel stay is greater than $300, and if the State can
prove the additional elements, it may choose to proceed under section
16–1.

              Defendant’s Request for Cross-relief
   In a portion of the appellate court opinion unpublished under
Supreme Court Rule 23 (No. 2–04–0398 (unpublished under Supreme
Court Rule 23)), the appellate court considered and rejected

                                  -21-
defendant’s claim of ineffective assistance of counsel at trial. He
renews his arguments before this court.
     We note that defendant filed pro se posttrial motions raising
claims of ineffective assistance of counsel and, after dismissing both
the privately retained attorney who represented him at trial and the
public defender appointed to represent him in posttrial proceedings,
represented himself at the hearing on the matter. On more than one
occasion, the trial court warned defendant of the risk of procedural
default. Thus, any failure to preserve a specific claim of ineffective
assistance in a posttrial motion must be attributed to defendant
himself, not to counsel. See People v. Enoch, 122 Ill. 2d 176, 186
(1988) (to preserve an issue for appellate review, a defendant must
both make a contemporaneous objection and raise the matter in a
posttrial motion). His failure to preserve an issue in one of his posttrial
motions is not corrected by the efforts of the appellate defender to
raise the issue before the appellate court or in a brief to this court. As
we observe below, some of the issues raised in defendant’s brief are
arguably procedurally defaulted. We, nevertheless, choose to address
those issues because the State has not argued default.
     With this background in mind, we turn to defendant’s allegations
of ineffective assistance of counsel. To prevail on a claim of
ineffective assistance of counsel, a defendant must show both that: (1)
counsel’s representation was so deficient as to fall below an objective
standard of reasonableness under prevailing professional norms, and
(2) the deficient performance so prejudiced defendant as to deny him
a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed.
2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To establish deficient
performance, the defendant must overcome the strong presumption
that counsel’s action or inaction was the result of sound trial strategy.
People v. Evans, 186 Ill. 2d 83, 93 (1999). This means the defendant
must show that counsel’s errors were so serious, and his performance
so deficient, that he did not function as the “counsel” guaranteed by
the sixth amendment. In addition, defendant must prove there is a
reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different. People v. Johnson, 218 Ill. 2d
125, 143-44 (2005). If either prong of the Strickland test is not met,
defendant’s claim must fail. Thus, a reviewing court need not consider
whether counsel’s performance was deficient before determining

                                   -22-
whether the defendant was so prejudiced by the alleged deficiencies
that he is entitled to a new trial. People v. Alvine, 173 Ill. 2d 273, 293
(1996).

                           Hearsay Statements
     In one of his posttrial motions, defendant stated: “The Court erred
in allowing hearsay testimony in.” The motion asserted that the State’s
Attorney made a hearsay statement regarding statements of the
Lombard police officer who investigated the hotel’s complaint, but it
does not quote the alleged hearsay statement or describe when or
under what circumstances the statement was made by the officer or
referred to by the prosecutor. No other specific instances of hearsay
testimony were identified. During his cross-examination of attorney
Wolfe, defendant did not question him about his decisions regarding
objections to any alleged hearsay statements. Defendant did not make
any argument on this issue to the trial court during the posttrial
proceedings.
     With the assistance of the appellate defender, defendant now
argues that defense counsel failed to object to certain hearsay
statements in the testimony of the hotel’s general manager and
assistant general manger and that he compounded the error by eliciting
further details of the hearsay on cross-examination. The two managers
testified regarding telephone conversations with the vendors listed by
defendant as trade references and with the individual defendant had
identified as the contact person for Prolific. They testified that the
vendors gave negative reports about defendant and that the purported
contact at Prolific denied any connection to defendant or his company.
Defendant asserts that these statements were hearsay because they
were out-of-court statements offered for the truth of the matters
asserted and that these statements would have been excluded had
counsel objected. In addition, defendant argues that testimony that the
words “Address Unknown” appeared on the envelope returned by the
post office also constituted inadmissible hearsay.
     These claims could be deemed procedurally defaulted by defendant
because he failed to raise them in his posttrial motion and in his
argument to the trial court during the hearing that was held for the
purpose of considering his claim of ineffective assistance of counsel.


                                  -23-
    The State overlooks default and argues that these statements were
not hearsay because they were not offered for the truth of the matters
asserted. The State was not attempting to prove that defendant owed
money to one of this trade references, or that he did not have a valid
account with the other. The State was not trying to prove that the
purported contact person was not affiliated with Prolific, or that the
address provided by the defendant was inaccurate. Rather, each of
these statements was offered as evidence of defendant’s intent to
deceive. The State further asserts and that even if these statements
were hearsay, defense counsel’s decision not to object was a matter
of trial strategy.
    The appellate court reasoned that the out-of-court statements
would not serve as evidence of intent to deceive unless they were true.
The appellate court thus concluded that the challenged statements
were, indeed, hearsay, but that counsel’s choice not to object was a
matter of trial strategy because an objection might have prompted the
State to call the individuals who made the statements and their
testimony might have proven even more damaging to defendant than
the hearsay statements themselves.
    Defendant responds that “the record provides no indication that
the State was prepared” to offer the testimony of a postal official,
representatives of the purported trade references, or the individual
who denied being defendant’s business associate. Thus, he claims, it
cannot have been a matter of trial strategy to forgo objecting to the
hearsay testimony.
    This court has noted on several occasions that decisions regarding
“what matters to object to and when to object” are matters of trial
strategy. People v. Pecoraro, 175 Ill. 2d 294, 327 (1997); People v.
Graham, 206 Ill. 2d 465, 478-79 (2003). We have also made it clear
that a reviewing court will be highly deferential to trial counsel on
matters of trial strategy, making every effort to evaluate counsel’s
performance from his perspective at the time, rather than through the
lens of hindsight. People v. Madej, 177 Ill. 2d 116, 157 (1997).
    Thus, in Graham, this court rejected a claim of ineffective
assistance of counsel based on counsel’s failure to object to the
admission of a witness’ prior consistent statement to bolster his trial
testimony. We noted that counsel’s decision not to object was a


                                 -24-
“strategic choice” that did not fall below an objective standard of
reasonableness. Graham, 206 Ill. 2d at 478-79.
     In People v. Evans, 209 Ill. 2d 194, 220-21 (2004), the assistant
State’s Attorney read portions of the defendant’s court-reported
statement to the jury. In his statement, the defendant mentioned
having been involved in “other incidents.” He argued on appeal that
the mention of “other incidents” was inadmissible evidence of other
crimes and that defense counsel was ineffective for failing to object.
We observed that it was “highly possible that defense counsel allowed
the statement to pass without objecting to diffuse its importance,
rather than object and draw further attention to the statement.” Evans,
209 Ill. 2d at 221. We further noted that defense counsel’s failure to
object to testimony “may be a matter of sound trial strategy, and does
not necessarily establish deficient performance.” Evans, 209 Ill. 2d at
221.
     We agree with the appellate court that it is entirely likely counsel
chose to let these statements pass rather than object and run the risk
of the declarants themselves being called to testify. If these individuals
had been put on the stand, they may have offered even more damaging
evidence. In fact, the transcript of the posttrial hearing testimony of
defense counsel clearly demonstrates that he declined to call several
of the witnesses defendant wished to call because they would have
given testimony damaging to the defense. People v. Patterson, 217 Ill.
2d 407, 442 (2005) (whether to call a particular witness is a matter of
trial strategy and such decisions generally will not support a claim of
ineffective assistance of counsel). In addition, we reject defendant’s
argument that the record must reflect that the State was “prepared to
present” these other potential witnesses because he offers no authority
for this proposition.
     We conclude, therefore, that defendant has not demonstrated that
defense counsel’s decision not to object to these statements
constitutes deficient performance under the objective test of
Strickland.

                   Prosecutor’s Closing Argument
    Defendant’s pro se posttrial motions cited several cases addressing
the issue of improper comment by prosecutors, but did not apply these

                                  -25-
cases to the facts of his own case. The motions contained conclusory
statements such as: “The State’s closing arguments were false,
misleading, and deliberately prejudicial.” He also alleged that defense
counsel “failed to object to several improper comments by the
prosecutor in closing argument.” A thorough review of defendant’s
pro se filings and his argument at the motion hearing reveals that he
did identify several specific statements that, in his opinion, defense
counsel should have objected to during closing argument. These
statements are the prosecutor’s assertions that: (1) he is not a
“businessman”; (2) he had no income or prospect for income when he
registered at the hotel; (3) he is a “conman,” a “fraud,” and a “fake”;
(4) he provided credit card information to the hotel that was not valid;
and (5) all charges made to the credit card were reversed when, in
fact, approximately $500 in charges were accepted.
     Before this court, defendant argues that he was “unfairly
disparaged” by the prosecutor, who also “portrayed the State’s
evidence as being stronger than was actually the case,” and that
defense counsel’s failure to object constituted deficient performance.
He identifies four such statements. First, the prosecutor stated that
defendant had no income or real prospect for income at the time he
registered as a guest at the hotel. Second, the prosecutor stated that
defendant left the hotel in the middle of the night without settling his
bill and was never seen again. Third, at the beginning of his rebuttal,
the prosecutor called defendant a “conman,” a “fraud,” and a “fake.”
Finally, the prosecutor concluded her rebuttal with the statement:
“Don’t let Michael Perry deceive you.”
     Defendant objects to the statements regarding his financial status
and his nighttime departure from the hotel on the basis that they lack
evidentiary support. Defendant asserts that defense counsel should
have objected to the first statement because there had been no
testimony about his “overall financial status” and that he had, in fact,
been able to pay for the initial part of his stay using credit cards. As
for the second statement, he argues that defense counsel should have
objected because the “record simply does not support any inference
of a surreptitious mass departure by dark of night.” The third
statement is, he claims, improper disparagement. The fourth statement
is described as an improper accusation that defendant was attempting


                                 -26-
to deceive the jury to obtain an acquittal to which counsel should have
“vehemently objected.”
     Although the specific statements to which defendant is now
objecting are not precisely the same statements that he mentioned in
his posttrial motions, we conclude that he has adequately preserved
this issue and, as a result, our analysis will be guided by the Strickland
factors.
     The appellate court concluded that the statements were not
improper, so the lack of an objection by defense counsel was not
deficient performance.
     In general, prosecutors have wide latitude in the content of their
closing arguments. Evans, 209 Ill. 2d at 225. The prosecutor may
comment during closing argument on the evidence and on any fair and
reasonable inference the evidence may yield, even if the suggested
inference reflects negatively on the defendant. People v. Nicholas, 218
Ill. 2d 104, 121 (2005). Reviewing courts will consider the closing
argument as a whole, rather than focusing on selected phrases or
remarks. Evans, 209 Ill. 2d at 225. A reviewing court will find
reversible error only if the defendant demonstrates that the improper
remarks were so prejudicial that real justice was denied or that the
verdict resulted from the error. Johnson, 218 Ill. 2d at 141. Thus, in
order to meet the prejudice prong of the Strickland test, defendant
must make the same showing–that real justice was denied or that the
verdict resulted from counsel’s failure to object.
     We note that prior to closing arguments, the trial court instructed
the jury that “[l]ike opening statements, closing arguments are not
evidence and any statement or argument that is made by the attorneys
which is not based on the evidence or reasonable inferences to be
drawn from the evidence should be disregarded.” See Nicholas, 218
Ill. 2d at 122-23 (brief reference to defendant as “pure evil” did not
require new trial where the comment was not repeated and where the
trial court preemptively cautioned the jury to disregard argument not
based on the evidence); People v. Ceja, 204 Ill. 2d 332, 357-58
(2003) (comments overstating the evidence did not deny defendant a
fair trial where thee comments were brief and where the trial court
instructed the jury to ignore statements made in closing argument that
were not based on the evidence).


                                  -27-
     During his closing argument, defense counsel repeatedly referred
to defendant as a “businessman” who, during his stay at the hotel, was
working on a real estate deal. Counsel summarized the testimony
describing the details of the deal and why the deal collapsed, leaving
defendant unable to pay his hotel bill. Counsel called the jury’s
attention to evidence of defendant’s having notified the hotel as early
as May 7 that he intended to check out on May 13, which, he argued,
countered the suggestion that defendant left the hotel surreptitiously
during the night.
     Our review of the record reveals that there was sufficient
evidentiary support for the prosecutor’s characterization of
defendant’s business prospects and the circumstances under which he
left the hotel. Defense counsel’s decision to address these comments
by counterarguement rather than by objection was, thus, a matter of
sound trial strategy. Given the trial court’s admonition to the jury and
defense counsel’s counterargument, we conclude that the lack of
objection to these statements was not deficient performance by
defense counsel.
     Defendant also argues that in her rebuttal argument, the
prosecutor engaged in name-calling in an effort to prejudice the jury
and that defense counsel’s failure to object was another example of
deficient performance. Specifically, the prosecutor opened her rebuttal
argument with the statement: “Conman. Fraud. Fake. It’s Michael
Perry.” Defendant cites People v. Johnson, 119 Ill. 2d 119, 139
(1987), for the proposition that a prosecutor should not engage in
inflammatory name-calling to arouse the passions of a jury against a
defendant.
     In Johnson, the prosecutor described the defendant, who was
accused of a brutal murder, as an “animal” who “butchered” four
persons. This court observed that calling a defendant an “animal” is
improper “even where that characterization is based on the evidence”
(Johnson, 119 Ill. 2d at 139), because the term is inflammatory and
prejudicial. Nevertheless, this court did not find reversible error. The
trial court had specifically instructed the jury to disregard any
statements made during closing arguments that were not based on the
evidence. In addition, the remark was “isolated” and “not dwelled
upon further by the prosecutor.” Johnson, 119 Ill. 2d at 140.


                                 -28-
    Defendant also attacks the prosecutor’s “name-calling” on the
grounds that it suggested to the jury that he had engaged in deceptive
behavior in the past. He argues that it is improper for the State to
suggest that a defendant has engaged in similar conduct on other
occasions, relying on this court’s decision in People v. Whitlow, 89 Ill.
2d 322 (1982). In Whitlow, the prosecutor made references to
background of one of the defendants in violation of an order in limine,
including a comment that “ ‘[m]aybe this time he will get caught.’ ”
Whitlow, 89 Ill. 2d at 340. The prosecutor also asked the jury the
rhetorical question, “ ‘How many other corporations was he using?
How many other shareholders? How much more money was he
taking ***?’ ” Whitlow, 89 Ill. 2d at 340. Based on the cumulative
effect of these and other comments, this court found reversible error.
Whitlow, 89 Ill. 2d at 343.
    In the present case, the prosecutor described defendant as a
“conman,” “fraud,” and “fake” only in the opening sentence of her
rebuttal. This was an isolated remark that introduced the argument
that the evidence showed defendant had deliberately deceived the
hotel. See Nicholas, 218 Ill. 2d at 122 (prosecutor’s calling defendant
“pure evil” merely prefaced his argument that the facts proved
defendant guilty; these facts included defendant’s getting a gun,
hunting his mother in the street, shooting her four times, hiding the
gun, going back to bed, and displaying little concern about her death).
    In addition, as in Johnson, the jury was properly instructed to
disregard any statement made during closing argument that was not
supported by the evidence. The prosecutor did not suggest to the jury
that defendant had a history of engaging in theft or fraud. Describing
a defendant who is charged with theft by deception as a conman,
fraud, or fake is similar to describing a defendant who is charged with
murder as a killer or a murderer. The label does not necessarily imply
a pattern of similar behavior. We, therefore, conclude that defendant
would not have been be entitled to a new trial based on the
prosecutor’s comment and that, therefore, counsel’s failure to object
cannot have caused the type of prejudice necessary under Strickland.
    The last comment that defendant challenges was made by the
prosecutor at the close of her rebuttal argument. She said: “Don’t let
Michael Perry deceive you. Find him guilty of theft by deception.”
Defendant characterizes this comment as a suggestion to the jury that

                                  -29-
he or his counsel was attempting to deceive, trick, or confuse the jury
to obtain an acquittal. He cites People v. Emerson, 97 Ill. 2d 487
(1983), in which a new trial was granted in a capital murder case on
the basis of multiple instances of prosecutorial misconduct. In
Emerson, this court found reversible error where, among other things,
the prosecutor suggested that defense counsel laid down a
smokescreen “ ‘composed of lies and misrepresentations and
innuendoes,’ ” and that he, like all defense attorneys, tried to “dirty up
the victim.” Emerson, 97 Ill. 2d at 497.
    The statement in the present case, even if improper, is readily
distinguishable from the pattern of inflammatory and prejudicial
statements that resulted in a new trial for the defendants in Emerson.
    In any event, defendant confines his argument on the issue of
prosecutorial comments to the first prong of the Strickland test. He
argues that “by failing to object when the prosecutor disparaged Mr.
Perry before the jury, trial counsel failed to provide proper
representation,” but he makes no colorable argument that there is a
reasonable probability that, but for counsel’s alleged error, the result
of the proceeding would have been different. We conclude that, with
respect to each of the asserted instances of improper comment by the
prosecutor, counsel’s performance was either not deficient or, even if
deficient, did not result in prejudice to defendant that would require
a new trial.

               Trial Court’s Answer to Jury Question
    The jury was initially instructed on the meaning of the phrase
“permanent deprivation” according to Illinois Pattern Jury Instruction,
Criminal, No. 13.33B (4th ed. 2000), which is virtually identical to the
statutory definition of the term (720 ILCS 5/15–3 (West 2000)).
During deliberations, the jury sent out a note asking, “In this case,
what exactly does ‘deprive the owner permanently’ mean?” Defense
counsel did not object when the trial court indicated its intent to utilize
the dictionary definition of “permanently” to fashion its response:
“The intent to deprive the owner permanently means the intent to not
pay back or the intent not to return.” However, the trial court’s
written response that was actually given to the jury did not contain the
definition to which defense counsel had agreed. Instead, the trial


                                   -30-
court’s written response said only: “The intent to ‘deprive the owner
permanently’ means the intent to deprive.”
     Defendant’s pro se motion alleged that the trial court “erred in
rendering a definition of the meaning of ‘permanently deprive’ in
response to a jury question.” Defendant did not claim that defense
counsel was ineffective with regard to the court’s response to the jury
question. This issue could be deemed procedurally defaulted for
failure to preserve it in a posttrial motion.
     Defendant now argues that defense counsel was “responsible for
and complicit in” the trial court’s giving a “meaningless incomplete
response” to the jury’s question.
     We conclude that defendant cannot prevail on this claim because,
even if trial court’s written response to this jury question introduced
error, the error is attributable to the trial court, not to ineffective
assistance by defense counsel. Similarly, even if the response that
defense counsel agreed to would have been improper, his agreement
to the court’s proposed answer cannot have prejudiced defendant
because that answer was never given to the jury.

                       Defense Theory of the Case
     In his pro se posttrial motions, defendant claimed that defense
counsel “failed to develop a coherent theory of defense.” In support
of this claim, defendant listed numerous questions that he thought
should have been put to various witnesses. He named several
individuals who, in his opinion, should have been subpoenaed to
testify for the defense and asserted that he had given these names to
counsel prior to trial. These included members of the hotel staff who
would testify that he was a generous tipper and that he and his wife
treated them with “generous benevolence.” He accused counsel of
failing to subpoena the personnel files of hotel employees to discover
any instances of disciplinary action and of failing to subpoena records
from other hotels that he and his family had stayed at in the past. He
also claimed that counsel was ineffective for failing to investigate the
Lombard police department. Finally, defendant stated that counsel was
ineffective for failing to file various motions that defendant requested
“and gave the case numbers for reference.” The requested motions



                                 -31-
included a motion to dismiss a frivolous complaint, a motion to
dismiss indictment, and a motion to dismiss for malicious prosecution.
     The appellate court resolved this issue by noting that defendant
“failed to show that any mitigating evidence was indeed available”
and, thus, he had “no evidence to support his claim” that counsel
failed to investigate or prevent favorable evidence.” Although the trial
court and the appellate court both found these claims to lack merit, he
has properly preserved these issues for review under Strickland.
     Before this court, defendant claims that the dispute between
himself and the hotel was entirely a civil matter involving breach of
contract and an unpaid debt. Defendant argues further that defense
counsel was ineffective for failing to present available evidence that
would have bolstered his theory of the case and countered the State’s
evidence against him. The “available evidence” that defendant refers
to is a brochure from HG Global Workplaces, which describes
“flexible turn-key officing solutions” available at the address defendant
provided to the hotel for his company, Prolific Development
Corporation. The brochure states that HG Global provides a mailing
address and other facilities to small or virtual businesses. According
to defendant, “defense counsel could have subpoenaed records and a
representative of HQ Global to authenticate the existence of a
business address for Prolific Development Corporation and explain its
office status.” He asserts that the address he provided to the hotel was
not fraudulent, but was “a legitimate business mailing address, at least
at some point.” Further, counsel “could have shown the defendant’s
claim to hotel personnel that he was having trouble with mail delivery
to be more plausible, rather than leaving it for the jury to believe that
the address did not exist.” This is the only specific example offered in
defendant’s brief of defense counsel’s alleged failure to make
reasonable efforts to counter the State’s case.
     The State responds that defense counsel’s decisions regarding
what documentary evidence to subpoena and which witnesses to
present are matters of trial strategy and that these decisions ultimately
rest with defense counsel, citing People v. West, 187 Ill. 2d 418, 432
(1999) (decisions concerning which witnesses to call and what
evidence to present are matters of trial strategy and are generally
immune from claims of ineffective assistance of counsel).
     The trial court heard the lengthy testimony of defense counsel at
the posttrial hearing and clearly found his testimony to be credible.

                                  -32-
Defense counsel testified that he based his decision on what witnesses
to call on whether the defense “would get nothing but positive
response from those witnesses, relative to the theory of our defense.”
He stated that his conversations with several of the witnesses
suggested by defendant revealed that “it would not have been
beneficial to [defendant] to subpoena certain witnesses on that list.”
He concluded that the risk of having those witnesses testify about
their dealings with defendant “outweighed the probative value.”
     Defense counsel also testified that he called the only two witnesses
whose testimony he expected to be useful in establishing the defense
theory. These two individuals testified that they were in business with
defendant and that he reasonably anticipated that the deal he was
working on during the time he was staying at the hotel would be
profitable and would enable him to pay the hotel what he owed.
Counsel also stated that he declined to call other suggested witnesses,
such as the hotel’s van driver, because their testimony would be
“peripheral to the theory of the defense.” He decided not to subpoena
information from other hotels at which defendant had stayed because
he had learned from defendant’s prior attorney that “there had been a
bill left outstanding when Mr. Perry vacated” one of those hotels, and
that he would be opening a “Pandora’s box,” if he made an issue of
defendant’s previous lengthy hotel stays. He did not subpoena
documents regarding the mailing address for Prolific because he did
not think that the defense needed to establish the status of the
company in order to raise the defense that defendant did not engage
in deceit because he intended to pay the hotel, but was simply unable
to do so because of a business deal that fell through.
     Based on our review of the trial transcript and of the transcript of
the hearing on defendant’s posttrial motions, we conclude that he has
failed to meet his burden of demonstrating that defense counsel’s
decisions regarding witnesses and documentary evidence were not
within the realm of trial strategy. People v. Enis, 194 Ill. 2d 361, 378
(2000).
     Further, even if defense counsel makes a mistake in trial strategy
or tactics or an error in judgment, this will not render representation
constitutionally defective. West, 187 Ill. 2d at 432-33. Only if
counsel’s trial strategy so unsound that he entirely fails to conduct
meaningful adversarial testing of the State’s case will ineffective


                                  -33-
assistance of counsel be found. West, 187 Ill. 2d at 432-33. This is not
such a case.

                            Cumulative Error
    Defendant briefly alludes to People v. Vera, 277 Ill. App. 3d 130,
141 (1995), for the proposition that the errors made by defense
counsel should be “viewed cumulatively” to determine whether a
defendant is entitled to a new trial as a result.
    We have rejected defendant’s claims of ineffective assistance of
counsel, concluding that counsel’s performance was not deficient or,
even if deficient, did not result in prejudice under Strickland. Because
we have rejected every claim of error, cumulative-error analysis is not
necessary.

                             CONCLUSION
    In sum, we hold that the occupancy of a hotel room is “property”
within the meaning of section 15–1 of the Criminal Code and that the
taking of such property by deception can result in the owner’s being
permanently deprived of its use or benefit. We further hold that the
offenses defined in sections 16–1 and 16–3 are not mutually exclusive
and that, in the present case, the State properly charged the defendant
with theft under section 16–1. Because these questions of law are
resolved against the defendant and because a rational trier of fact
could have found that defendant intended to permanently deprive the
hotel of the use or benefit a suite of rooms (Collins, 106 Ill. 2d at
261), we reverse the judgment of the appellate court as to defendant’s
conviction of theft.
    We further hold that defendant is not entitled to a new trial on the
basis of ineffective assistance of counsel.
    The judgment of the appellate court is reversed and the judgment
of the circuit court is affirmed.

                                  Appellate court judgment reversed;
                                    circuit court judgment affirmed.




                                 -34-
     JUSTICE FITZGERALD, dissenting:
     I respectfully dissent because I believe the legislature was careful
to exclude the mere “use” of property from the definition of
“property” in section 15–1. 720 ILCS 5/15–1 (West 2000). That
section defines “property” to mean “anything of value.” It includes:
money, food and drink, real estate, fixtures, telecommunications
services, electricity, gas, water, tickets, documents, photographs,
computer programs, drawings, models, commercial instruments, and
“written instruments representing or embodying rights concerning
anything of value, labor, or services, or otherwise of value to the
owner.” 720 ILCS 5/15–1 (West 2000). Notably, the statutory
definition of property does not cover labor or services themselves,
only written instruments embodying the rights to such services. This
definition also does not include the right to temporarily use property.
Therefore, the defendant cannot be found guilty of theft by deception
of the use of a hotel room under section 16–1 (720 ILCS 5/16–1
(West 2000)).
     I further disagree with several points in the majority’s reasoning.
In support of its holding, the majority states,
             “The phrase ‘anything of value’ is unambiguous. Clearly,
         the legislature intended to expand the definition of property to
         include not only items of tangible personal property but also
         other things of value such as real estate, electricity, and
         telecommunications services. The hospitality industry provides
         lodging to the public for profit. The market for hotel and
         motel rooms is vast. The use of a hotel room does have value.
         See Moline Water Power, 252 Ill. at 357 [1911] (stating that
         water power is property because it ‘is bought and sold in the
         market as freely as the products of the farm’). We conclude
         that the use of a hotel room is a thing of value as that phrase
         is used in the first sentence of section 15–1.” Slip op. at 10-
         11.
I first disagree that the phrase “anything of value” unambiguously
supports the majority’s holding. I believe my interpretation above at
least renders the phrase “anything of value” ambiguous. The majority
opinion ignores the underlying premise of the sole citation for this
proposition. The premise of this statement in Moline Water Power
was that one buys and sells the ownership of the electricity in the
market, not the right to temporarily use that electricity. In other

                                  -35-
words, it is not the rental of these things which is “bought and sold on
the market”; it is the thing itself.
    The majority further emphasizes that it is a night of occupancy that
was the “use” of the room which was permanently lost, explaining,
             “The property at issue here is the use of a hotel room. The
         hotel’s complement of rooms can be analogized to a store’s
         inventory of goods. The hotel has a finite number of rooms,
         which it can rent to members of the public 365 nights a year.
         One night in one room is a thing of value. When this thing of
         value is taken by deception, the owner has permanently lost
         the benefit of one night’s income. We, therefore, hold that
         each night of occupancy that is obtained by deception
         permanently deprives the owner of the beneficial use of the
         hotel room within the meaning of section 15–3(b) (720 ILCS
         5/15–3(b) (West 2000)).” Slip op. at 17.
By continuing to equate the mere “use” of a hotel room with a
“store’s inventory of goods” the majority continues to ignore the
distinction between rental, in which the owner allows another
temporarily to possess a thing, and the sale of a thing, where
ownership of the thing itself changes hands. The leap of logic in the
majority’s analogy is that a store is not in the habit of renting its
inventory of goods for temporary use. Because the failure to
recognize this distinction, I believe the majority has made an
unwarranted expansion of section 15–1 of the statute beyond the
legislature’s intention.
    Moreover, it is unclear that the Embassy Suites would have
otherwise obtained the money for the night’s lodging used by
defendant. The majority cites no specific evidence that defendant
denied the hotel the opportunity to rent the room to another customer.
Further, there is no basis to conclude that there were any nights when
the hotel was full and another party would have taken the suite. In this
context, the mere opportunity that the hotel might have had to take in
other money for the suite cannot be found to constitute “property” for
purposes of the general theft statute.
    The majority’s expansive interpretation is problematic for several
other reasons. First, tenants and landlords could potentially apply the
court’s reasoning concerning “use” to criminalize breaches of leases.
Commentators have criticized similar approaches because of “the


                                 -36-
possibility of theft prosecutions in cases of holdover or eviction in a
landlord-tenant relationship” and the “problem *** of distinguishing
between theft and criminal trespass.” Model Penal Code §223.2,
Comment, at 173-74 (1980). Commentators also state that obstacles
to theft prosecution in these situations makes sense, for “the
immobility and virtual indestructibility of real estate makes unlawful
occupancy of land a relatively minor harm for which civil remedies
supplemented by mild criminal sanctions for trespass should be
adequate.” Model Penal Code §223.2, Comment, at 172 (1980).
Furthermore, “Relations between a landlord and a tenant are so
minutely regulated and constitute such a delicate socio-political
problem that it would be wrong to introduce the possibility of a theft
prosecution for unauthorized occupancy by a tenant or improper
eviction by a landlord.” Model Penal Code §223.2, Comment, at 172
(1980).
    These criticisms may explain the lack of even one prior appellate
court decision which has found that the mere “use” of property for a
period of time constitutes “property” under section 15–1. Previous
cases have only implicitly found that leaseholds constituted property
under section 15–1 and have not provided an iota of analysis on the
issue. See People v. Hagan, 199 Ill. App. 3d 267 (1990) (where the
appellate court overturned a conviction of attempted theft by
deception of a commercial lease, but did not address whether a lease
was property under section 15–1); People v. Veasey, 251 Ill. App. 3d
589 (1993) (where the appellate court upheld a conviction of theft by
deception of a car lease, but similarly did not specifically address
whether the right to temporarily use the car constituted “property”
under the statute). Therefore, this court will be the first to hold that
this type of “use” is “property” under section 15–1, and thus the first
to apply the theft-by-deception concepts to landlord-tenant law.
    My research has revealed only one case that has, albeit implicitly,
supported my interpretation over the majority holding. In People v.
Mattingly, 106 Ill. App. 2d 74 (1969), a tenant signed a lease and paid
a security deposit to the landlord. Upon arriving on the first day of his
tenancy, the tenant found that other persons were already occupying
the premises. The landlord was subsequently convicted of theft by
deception of the security deposit. In reversing the conviction, the
court found that the failure of the landlord to deliver possession would
not terminate the lease and the tenant would have the right to gain

                                  -37-
possession from the occupants by suit in forcible detainer.
Accordingly, the landlord had a right to control the security deposit
until the termination of the lease. The fact that others occupied the
premises when the tenant was to take possession did not entitle the
tenant to demand a portion of the security deposit which he had paid.
Thus, the landlord’s refusal to return that portion of the security
deposit did not constitute theft by deception. Therefore, the court
reversed the landlord’s conviction.
    Significantly, the Mattingly court focused only on the money that
remained in the hands of the landlord as being the “property” subject
to theft, rather than focusing on the use of the premises which the
landlord denied the tenant. This is because the court found that the
lease was still in effect until the tenant had gained the right to
possession by a suit in forcible detainer. Yet, the majority is
overturning Mattingly, sub silentio, making the deceptive taking of
the tenant’s contractual right to the “use” of the premises illegal, and
subjecting the landlord to a theft conviction. The implications of the
majority’s reasoning are therefore squarely applicable to typical
landlord-tenant situations. Consider three common, hypothetical
cases.
    The first situation is the typical failure of a landlord to provide
habitable rental property, even for a short period of time. For instance,
a landlord may lack the money or desire to sufficiently winterize the
building. Nevertheless, the landlord accepts rent from various tenants
in the building, knowing full well that the facilities to provide the
building’s heat and hot water are inadequate. But he decides to wait
until the facilities actually break down in the dead of winter before he
fixes the problem. Consequently, the landlord has denied the tenants
the benefit of their bargain. The tenants have lost their contractual
right to “use” of the apartment, and also the opportunity to rent
another apartment before the onset of winter. Some tenants may even
have lost sub-rental income. Under normal circumstances, the landlord
would be subject to civil remedies such as a suit by the municipality
seeking an injunction to repair the property, and for fines for
ordinance violations, or a tenant’s suit directly against the landlord for
whatever value that the property has been diminished. Following the
majority’s reasoning, however, the landlord has committed a theft
because he consciously deprived the tenants of their rightful “use” of
the property to which the tenant’s were entitled under the lease.

                                  -38-
Depending on the number of apartments in the building, the number
of days deprived, and the degree to which the building was without
heat, the landlord could also be liable for theft by deception and a
Class 2 felony (720 ILCS 5/16–1(a)(2) (West 2000)). The tenant’s
right to “use” of the property is clearly a “thing of value” to them,
making the landlord guilty of theft by deception.
    Perhaps clearer is a typical “self-help” eviction. A tenant has not
paid rent for three months. Instead of initiating a proceeding for
forcible entry and detainer, the landlord deliberately changes the locks
on the tenant’s apartment, permanently barring the tenant from the
property. Because the tenant still retains the right to the “use” of the
property for the remainder of the lease, a landlord would be guilty of
theft of the tenant’s right to “use” the property under the lease.
    The third case is one of a holdover tenant. The family’s
breadwinner has lost his job and is unable to pay rent. The family
knows that it is unlikely or unwilling to pay the arrears on the rent and
holds out in the apartment until the landlord institutes civil
proceedings for forcible entry and detainer. The family avoids the
landlord and deprives the landlord of his ability to rent the property to
another tenant. Under all normal circumstances, the legislature has
given the tenant the benefit of civil legal processes of forcible entry
and detainer, which begins with a five-day notice, service of process,
and, eventually, a day in court. Thus, the tenant has the legal right to
“use” the premises until a court finds that the landlord has the right of
possession. This opinion theoretically entitles the landlord to submit
a complaint for prosecution upon the tenants for a felony offense
punishable by six years in prison in lieu of or in addition to the normal
course of civil proceedings. I do not know what the deleterious effects
of this additional remedy may be, but I believe that it is best
considered by the legislature.
    Next, this decision implicates the legislative judgment not to
criminalize ordinary cases sounding in contract. I believe the
legislature should act with caution in imposing criminal penalties on
a hotel guest, landlord, tenant, or any party which has the right to
“use” property where contractual remedies remain available. As Judge
Posner has stated,
        “[U]nder the common law (including the common law of
        Illinois ***), a breach of contract is not considered wrongful
        activity in the sense that a tort or a crime is wrongful. When

                                  -39-
         we delve for reasons, we encounter Holmes’s argument that
         practically speaking the duty created by a contract is just to
         perform or pay damages, for only if damages are inadequate
         relief in the particular circumstances of the case will specific
         performance be ordered. In other words, and subject to the
         qualification just mentioned, the entire practical effect of
         signing a contract is that by doing so one obtains an option to
         break it. The damages one must pay for breaking the contract
         are simply the price if the option is exercised. See Oliver
         Wendell Holmes, Jr., The Common Law 300-02 (1881);
         Holmes, ‘The Path of the Law,’ 10 Harv. L. Rev. 457, 462
         (1897).
              Why such lenity? Perhaps because breach of contract is a
         form of strict liability. Many breaches are involuntary and so
         inapt occasions for punishment. Even deliberate breaches are
         not necessarily culpable, as they may enable an improvement
         in efficiency ***. *** The option of which Holmes spoke was
         the option not to perform because performance was
         impossible or because some more valuable use of the
         resources required for performance arose after the contract
         was signed.” Zapata Hermanos Sucesores, S.A. v. Hearthside
         Baking Co., 313 F.3d 385, 389-90 (7th Cir. 2002).
Here, the hotel seeks criminal punishment because of the inability, at
least initially, to screen out defendant as a customer and thereafter to
be made whole through adequate contractual remedies. Further,
defendant’s theft of the “use” of the hotel property could also simply
be characterized as a breach of his duty to pay under the contract. The
holding today calls into question whether a person who deliberately
breaches a contract may also be subject to significant criminal
penalties.
    Lastly, the legislature has already addressed the concerns in other
statutes. In these provisions, the legislature has specifically outlawed
the act of unlawfully using a hotel by employing words such as “use,”
“lodging,” or “accommodations.” The legislature has prohibited
defendant’s behavior in section 16–3(a) (720 ILCS 5/16–3(a) (West
2000)), which is a Class A misdemeanor. This provision states, “(a) A
person commits theft when he obtains the temporary use of property,
labor or services of another which are available only for hire, by means
of threat or deception or knowing that such use is without the consent

                                  -40-
of the person providing the property, labor or services.” 720 ILCS
5/16–3(a) (West 2000). Second, the Innkeeper Protection Act (740
ILCS 90/5 (West 2000)) also specifically prohibits this action, and
also is a Class A misdemeanor for the first offense. This provision
states, “Any person who, with intent to defraud, shall obtain lodging,
food, money, property or other accommodation at a hotel, inn,
boarding house or lodging house without paying therefor shall be
guilty of a Class A misdemeanor. In case of a second conviction of the
offense described, the punishment shall be that provided for a Class 4
felony.” 740 ILCS 90/5 (West 2000). I deduce from these examples
that the legislature could have explicitly employed words such as
“accommodation,” “lodging,” or “use” of property in its definition of
“property” in section 15–1. This demonstrates that the legislature has
explicitly intended that defendant’s behavior receive punishment as a
Class A misdemeanor. Therefore, defendant’s behavior will not go
unpunished had the court ruled that the “use” of a hotel room is not
“property” within section 15–1 (720 ILCS 5/15–1 (West 2000).
    Because of the foregoing reasons, I respectfully dissent.

   JUSTICE KILBRIDE joins in this dissent.




                                -41-
