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                                Appellate Court                           Date: 2016.11.21
                                                                          09:11:53 -06'00'




                  People v. Stephenson, 2016 IL App (1st) 142031



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



District & No.     First District, First Division
                   Docket No. 1-14-2031



Filed              September 12, 2016



Decision Under     Appeal from the Circuit Court of Cook County, No. 13-CR-21817; the
Review             Hon. William G. Lacey, Judge, presiding.



Judgment           Affirmed.



Counsel on         Michael J. Pelletier, Patricia Mysza, and Manuel S. Serritos, all of
Appeal             State Appellate Defender’s Office, of Chicago, for appellant.

                   Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Matthew Connors, and Iris G. Ferosie, Assistant State’s Attorneys, of
                   counsel), for the People.



Panel              JUSTICE MIKVA delivered the judgment of the court, with opinion.
                   Justices Cunningham and Harris concurred in the judgment and
                   opinion.
                                              OPINION

¶1       After a bench trial, defendant Anthony Stephenson was convicted of burglary and
     possession of burglary tools and was sentenced to concurrent prison terms of nine and three
     years, respectively. On appeal, Mr. Stephenson contends that the charging instrument was
     fatally deficient based on its misidentification of the owner of the burglarized property. For the
     following reasons, we affirm the judgment of the trial court.

¶2                                        BACKGROUND
¶3       Mr. Stephenson was charged by indictment with two counts of burglary and one count of
     possession of burglary tools. The indictment for count I stated that Mr. Stephenson committed
     the offense of burglary on or about October 24, 2013:
                 “[I]n that HE, KNOWINGLY AND WITHOUT AUTHORITY, ENTERED A
             BUILDING, TO WIT: A WAREHOUSE BUILDING, THE PROPERTY OF
             ANOTHER, TO WIT: ARONSON FURNITURE CORPORATION, LOCATED AT
             2020 NORTH AUSTIN AVENUE, IN CHICAGO, COOK COUNTY, ILLINOIS,
             WITH THE INTENT TO COMMIT THEREIN A THEFT,
                 IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 19-1(a) OF THE
             ILLINOIS COMPILED STATUTES[.]”
¶4       Because Mr. Stephenson has focused his appeal on the adequacy of the charging
     instrument, we will address the evidence presented at trial only to the extent necessary for an
     understanding of the appeal.
¶5       The State presented two witnesses at trial: Keith Henderson, Jr., and Carlos Salvador, both
     employees of Peter Aaronson. Each testified that Peter Aaronson owned the warehouse at 2020
     North Austin Avenue (the warehouse). When asked whether Peter Aaronson was “of the Peter
     Aronson Furniture Company,” Mr. Henderson responded “[n]o, it’s not.”
¶6       Mr. Henderson and Mr. Salvador testified that, at approximately 7:30 a.m. on October 24,
     2013, they were driving together in a pickup truck when they saw three men coming out of the
     main door of the warehouse, where only employees were permitted to be. Both Mr. Henderson
     and Mr. Salvador testified that the three men did not have permission to be in the warehouse
     and that they were carrying bags. Mr. Henderson and Mr. Salvador also both testified that one
     of the three men was Mr. Stephenson and they saw him carrying a fish tank with a hammer
     inside of it. Mr. Henderson identified the fish tank, like nearly everything inside the
     warehouse, as property of Peter Aaronson that was being stored there.
¶7       Mr. Henderson testified that, after noticing the men, he exited the pickup truck and asked
     them where they were going. Two of them dropped what they had been carrying, walked to a
     nearby van, and drove away. Mr. Henderson and Mr. Salvador followed the third man, Mr.
     Stephenson, and witnessed him hide the fish tank by some bushes near the warehouse. They
     stated that Mr. Stephenson ran when he heard police sirens approaching. When the police
     arrived, Mr. Salvador informed them that Mr. Stephenson ran into the alley. The police officers
     apprehended Mr. Stephenson. In the meantime, Mr. Henderson retrieved the items that were
     dropped by the other two men, which included bags of “pieces of copper, wire pipes, all that
     stuff” and power tools. Mr. Salvador testified that a wrench, a hammer, and bolt cutters, none
     of which he recognized as coming from the warehouse, were also recovered.

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¶8          The parties stipulated that, if called by the defense, Mr. Stephenson’s aunt, Brenda
       Stephenson, would have testified that Mr. Stephenson was scheduled to do some work on her
       home the day of the burglary and she had spoken to him that morning.
¶9          Mr. Stephenson testified on his own behalf. According to him, at approximately 7 a.m. on
       October 24, 2013, he spoke with his aunt and then went to Home Depot to price merchandise
       for finishing work at his aunt’s house. At some point later that morning he was about two
       blocks away from 2020 North Austin Avenue when he was approached by an older man and a
       couple of other men that he did not know. The individuals jumped out of a van and approached
       to question him. According to Mr. Stephenson, when he began backing away from the men,
       they came closer and surrounded him. He saw that they had a hammer and ran. Mr. Stephenson
       testified that he was familiar with the warehouse but that he did not enter or take anything from
       the warehouse that morning and was not with anyone who did.
¶ 10        The parties additionally stipulated to three of Mr. Stephenson’s prior convictions: a 2011
       conviction for possession of a controlled substance, a 2007 conviction for unlawful use of a
       weapon by a felon, and a 2006 conviction for possession of a controlled substance.
¶ 11        The trial court found Mr. Stephenson guilty on all counts and denied his motion for a new
       trial. Mr. Stephenson was sentenced as a Class X offender to nine years in prison on the
       burglary counts, with count II merging into count I, and three years for possession of burglary
       tools to run concurrently with the burglary sentence, plus three years of mandatory supervised
       release.

¶ 12                                          JURISDICTION
¶ 13       Mr. Stephenson timely filed his notice of appeal in this matter on June 13, 2014, the same
       day he was sentenced. Accordingly, this court has jurisdiction pursuant to article VI, section 6,
       of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules
       603 and 606, governing appeals from a final judgment of conviction in a criminal case (Ill. S.
       Ct. Rs. 603, 606 (eff. Feb. 6, 2013)).

¶ 14                                             ANALYSIS
¶ 15       Mr. Stephenson’s sole contention on appeal is that the charging instrument was facially
       defective because it included a fatal variance from the evidence presented at trial: namely, that
       while the indictment charged Mr. Stephenson with the burglary of the warehouse owned by
       “Aronson Furniture Corporation” at 2020 North Austin Avenue, the evidence at trial
       demonstrated that an unrelated individual named Peter Aaronson owned the warehouse at that
       address.
¶ 16       “[A] defendant has a fundamental right to be informed of the nature and cause of criminal
       accusations made against him.” People v. Espinoza, 2015 IL 118218, ¶ 15. Section 111-3(a) of
       the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(a) (West 2012)) requires
       that a charge be in writing and that it “allege the commission of an offense” by stating the name
       and statutory provision of the offense, the nature and elements of the offense, the date and
       county when and where the offense occurred, and the name of the accused.
¶ 17       Whether a charging instrument was sufficient is a question of law we review de novo.
       Espinoza, 2015 IL 118218, ¶ 15. Because a failure to properly charge an offense implicates



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       due process concerns, such a defect may be attacked at any time. People v. DiLorenzo, 169 Ill.
       2d 318, 321 (1996).
¶ 18       The timing of the challenge to the indictment “determines whether a defendant must show
       that he was prejudiced by the defect in the charging instrument.” Espinoza, 2015 IL 118218,
       ¶ 23. If an indictment or information is challenged in a pretrial motion, it “must strictly comply
       with the pleading requirements of section 111-3.” People v. Rowell, 229 Ill. 2d 82, 93 (2008).
       However, if the defendant challenges the sufficiency of the charging instrument for the first
       time on appeal, as Mr. Stephenson did here, it will be considered sufficient so long as “it
       apprised the accused of the precise offense charged with sufficient specificity to prepare his
       defense and allow pleading a resulting conviction as a bar to future prosecutions arising out of
       the same conduct.” (Internal quotation marks omitted.) People v. Benitez, 169 Ill. 2d 245, 257
       (1996).
¶ 19       When challenged for the first time on appeal, a variance between the charging document
       and the proof at trial is only fatal if it is material and could “ ‘mislead the accused in making his
       defense or expose him to double jeopardy.’ ” People v. Davis, 82 Ill. 2d 534, 539 (1980)
       (quoting People v. Figgers, 23 Ill. 2d 516, 518-19 (1962)). This is what Mr. Stephenson refers
       to as the “Pujoue” test, based on People v. Pujoue, 61 Ill. 2d 335, 339 (1975). Here, Mr.
       Stephenson has failed to satisfy any part of this test.
¶ 20       First, the ownership of the premises burglarized was not material to the indictment. The
       supreme court has held that ownership is not an element of the offense of burglary. People v.
       Rothermel, 88 Ill. 2d 541, 545 (1982); see also People v. Dotson, 263 Ill. App. 3d 571, 576-77
       (1994) (following Rothermel); People v. Escalante, 256 Ill. App. 3d 239, 243 (1994) (holding
       that “the lack of an allegation of ownership or possessory interest is not fatal to a charging
       instrument” for burglary); People v. Austin, 123 Ill. App. 3d 788, 795 (1984) (“failure to allege
       ownership or to prove ownership as alleged in a burglary charge does not defeat the charge
       unless the defendant was harmed in preparing a defense”); People v. Tucker, 186 Ill. App. 3d
       683, 691 (1989) (noting that “ownership is no longer a required element of the crime of
       burglary”).
¶ 21       Second, Mr. Stephenson has failed to demonstrate that the challenged variance prejudiced
       the preparation of his defense in any way. Mr. Stephenson argues that there was “no way” for
       him “to prepare his defense *** where the evidence at trial established that the property was
       owned by Peter Aaronson.” This conclusory statement will be disregarded since it is
       unsupported by legal analysis, citation to legal authority, or citation to the record. See Ill. S. Ct.
       R. 341(h)(7) (eff. Feb. 6, 2013) (the argument section of an appellant’s brief “shall contain the
       contentions of the appellant and the reasons therefor, with citation of the authorities and the
       pages of the record relied on”); see also People v. Haissig, 2012 IL App (2d) 110726, ¶ 17
       (conclusory statements do not constitute arguments pursuant to Rule 341(h)(7)).
¶ 22       Moreover, any suggestion of prejudice is belied by the record. Mr. Stephenson’s defense
       was that he did not enter the warehouse, which had nothing to do with the identity of the
       warehouse owner. A mistake in an indictment as to identity of a crime victim is not prejudicial
       where, as here, the defense is a denial of the alleged criminal activity. See People v.
       Montgomery, 96 Ill. App. 3d 994, 997-98 (1981) (defendant charged with assaulting a police
       officer was not prejudiced by fact that indictment named the wrong police officer where
       defendant denied assaulting any officer with a gun); People v. Santiago, 279 Ill. App. 3d 749,
       752-54 (1996) (no prejudice where the information named wrong victim and defendant denied

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       any involvement in the armed robbery); see also Rothermel, 88 Ill. 2d at 547-48
       (misidentification of owner of burglarized premises did not prejudice the preparation of
       defense of entrapment).
¶ 23        Finally, Mr. Stephenson fails to demonstrate any risk of double jeopardy. Even if Mr.
       Stephenson could look only to the indictment, the charging instrument contains a unique street
       address, which alone would be sufficient to protect him from a second prosecution for this
       crime. Moreover, as the supreme court recognized in Rothermel, testimony from the first trial
       can be admitted in any subsequent prosecution, should it be necessary to support a defense of
       prior jeopardy. Rothermel, 88 Ill. 2d at 548; see also Santiago, 279 Ill. App. 3d at 753-54 (the
       time that a charging document defined the “limits of jeopardy” has long since passed and a
       prior prosecution can also be proved by the trial transcript and other evidence introduced at
       trial). Thus, Mr. Stephenson is well protected against a subsequent prosecution for this offense.
¶ 24        Mr. Stephenson recognizes that he must overcome Rothermel, but argues that in both
       Rothermel and Dotson, which followed Rothermel, there was a connection between the alleged
       owner and the actual owner. This is correct, but irrelevant. As the court made clear in
       Rothermel, an “inaccurate allegation of ownership” of the burglarized premises, when
       challenged for the first time on appeal, does not defeat the charging instrument. Rothermel, 88
       Ill. 2d at 545, 548. This court agrees with Mr. Stephenson that the record does not demonstrate
       any connection between Peter Aaronson and Aronson Furniture Corporation and
       acknowledges that they are not even spelled the same way. However, it does not matter how
       “inaccurate” the description is or whether there was a connection between the named owner
       and the real owner, as in Rothermel, or no connection at all, as in this case. Rather, at this point,
       Mr. Stephenson must show that ownership was an element of the charged crime and that he
       was prejudiced in his defense or at risk of double jeopardy. He has shown none of these and
       that is fatal to his appeal.
¶ 25        Mr. Stephenson relies heavily on Espinoza, 2015 IL 118218, which was decided while his
       appeal was pending. In that case, the supreme court affirmed the appellate court’s dismissal of
       the criminal complaints in two cases, based upon the insufficiency of charging instruments that
       failed to identify the victims by name. Id. ¶ 1. The defendants had challenged the charging
       documents prior to trial. Id. ¶¶ 4-5, 9. Because of the timing of their challenge, this meant that
       they were not required to show prejudice and that the documents used to charge them had to
       strictly comply with the pleading requirements of section 111-3 of the Code. Id. ¶ 23. That
       alone makes this case quite different from Espinoza.
¶ 26        Additionally, in the cases consolidated under Espinoza, one defendant was charged with
       domestic battery and the other was charged with endangering the life and health of a child, both
       “crimes on which the impact is focused upon an individual,” and therefore “the identity of the
       victims was an essential allegation of the charging instruments.” Id. ¶ 20. Conversely, Mr.
       Stephenson was charged with burglary, a crime against property, and our supreme court in
       Rothermel held that the identity of the property owner is not an element of this crime.
       Rothermel, 88 Ill. 2d at 545.
¶ 27        Mr. Stephenson cites Espinoza for the proposition that a charging instrument for the
       offense of burglary is necessarily deficient if it fails to correctly identify the complainant, but
       we disagree with his reading of that case. The opinion in Espinoza includes the sweeping
       statement that “ ‘[w]here an indictment charges an offense either against persons or property,
       the name of the person or property injured, if known, must be stated, and the allegation must be

                                                     -5-
       proved as alleged.’ ” Espinoza, 2015 IL 118218, ¶ 17 (quoting People v. Walker, 7 Ill. 2d 158,
       161 (1955)). That broad statement is dicta to the extent that it references property crimes since
       those were not at issue in Espinoza. The court in Rothermel noted that the Walker case, which
       was quoted and relied on by the court in Espinoza, was a throwback to a time when an
       “allegation of ownership was *** indispensable in charging burglary.” Rothermel, 88 Ill. 2d at
       545. In reading these cases together, this court concludes that the Espinoza court did not intend
       to question the holding in Rothermel that the identity of the complainant in a burglary case is
       not a material element of a charging instrument. Thus, the fact that burglary is a crime against
       property, where the identity of the property owner is not a necessary element, is a second
       reason that Espinoza cannot help Mr. Stephenson in this case.

¶ 28                                       CONCLUSION
¶ 29      For the foregoing reasons, we affirm the judgment of the trial court.

¶ 30      Affirmed.




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