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                              Appellate Court                            Date: 2018.02.22
                                                                         10:43:36 -06'00'




                  People v. Henson, 2017 IL App (2d) 150594



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           JAMES R. HENSON, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-15-0594



Filed             October 31, 2017



Decision Under    Appeal from the Circuit Court of McHenry County, No. 14-CF-503;
Review            the Hon. Gordon E. Graham, Judge, presiding.



Judgment          Reversed and remanded.


Counsel on        Michael J. Pelletier, Thomas A. Lilien, and Ann M. Fick, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
                  Delfino, Lawrence M. Bauer, and Victoria E. Jozef, of State’s
                  Attorneys Appellate Prosecutor’s Office, of counsel), for the People.



Panel             PRESIDING JUSTICE HUDSON delivered the judgment of the
                  court, with opinion.
                  Justices Hutchinson and Spence concurred in the judgment and
                  opinion.
                                             OPINION

¶1       Defendant, James R. Henson, appeals from his conviction of two counts of burglary (720
     ILCS 5/19-1(a) (West 2014)) and one count of possession of burglary tools (720 ILCS 5/19-2
     (West 2014)). Defendant raises three issues on appeal: (1) whether the trial court properly
     refused defendant’s proposed jury instruction on theft as a lesser included offense of
     burglary, (2) whether the trial court conducted an adequate inquiry into defendant’s pro se
     posttrial claims of ineffective assistance of counsel, and (3) whether defendant is entitled to a
     $5-per-day credit against certain fines for time spent in presentencing custody. For the
     reasons that follow, we find that the trial court’s refusal to instruct the jury on the lesser
     included offense of theft is reversible error. As that issue is dispositive, we need not address
     the remaining issues. We reverse and remand for a new trial.

¶2                                       I. BACKGROUND
¶3       On June 18, 2014, defendant was indicted on two counts of burglary (720 ILCS 5/19-1(a)
     (West 2014)) and one count each of unlawful possession of burglary tools (720 ILCS 5/19-2
     (West 2014)), theft (720 ILCS 5/16-1(a)(1)(A) (West 2014)), criminal damage to property
     (720 ILCS 5/21-1(a)(1) (West 2014)), and criminal trespass to real property (720 ILCS
     5/21-3(a)(2) (West 2014)) arising out of the unlawful entry of two trucks owned by MJ
     Electric, LLC, located on property owned by Curran Group, on May 31, 2014. Prior to trial,
     the State nol-prossed the counts of theft, criminal damage to property, and criminal trespass
     to property.
¶4       The indictment alleged, inter alia, that defendant committed the offense of burglary in
     that he “knowingly entered a motor vehicle, belonging to MJ Electric, LLC, *** with the
     intent to commit therein a theft.” There was one count of burglary for each vehicle entered.
¶5       The following evidence was adduced at defendant’s jury trial. Crystal Lake police officer
     Jason Duncan testified that, at about 5:30 a.m. on May 31, 2014, he responded to a dispatch
     concerning a suspicious incident. When he arrived at Main Street and Virginia Road, he
     encountered an excited woman on the bike path, who told him that it sounded like there was
     something chained up in the bushes. As Duncan approached the bushes, he heard metallic
     clanking. Duncan walked through vegetation toward the sound and found defendant sitting in
     knee-high vegetation. Duncan also saw defendant’s bicycle. The bicycle had a black bucket
     in a basket attached to the handlebars and a milk crate attached to the back. Duncan did not
     see anyone else in the area. Duncan asked defendant to walk toward him, and defendant
     complied, joining Duncan on the bike path. Duncan did not smell any smoke on defendant.
¶6       Crystal Lake patrol sergeant Todd Richardson arrived on the scene as Duncan called
     defendant out of the bushes. Defendant appeared awake, dirty, and slightly wet. His hands
     were very dirty. He had black smudges on his face and on the backs of his hands. The
     bottoms of defendant’s shoes were very muddy. Richardson went into the bushes and saw a
     bicycle jammed into a bush. There were buckets and a basket affixed to the bicycle. On the
     ground near the bicycle were two white buckets with “MJ Electric” stickers on the sides. One
     bucket contained a mix of brass and copper fittings. The other bucket was empty and
     partially melted. Located next to the buckets was a pile of brass and copper fittings that
     looked new. Defendant had the following other items in his possession: two pairs of cloth
     gloves, various hand tools, two flashlights, binoculars, a large serrated knife, a pocket knife,

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       a screwdriver, two adjustable wrenches, two wire cutters, a long extended lighter, and a
       package containing multiple rolls of electrical tape.
¶7          Richardson testified that he examined the area around defendant. He discovered a muddy
       area and found a bucket, a gas can, wire, and bolt cutters. The bolt cutters were never tested
       for fingerprints. He also found a path of trampled vegetation that led from the muddy area to
       an area where there was some cable that had been burned to strip it of its insulation. About
       1000 feet away from where defendant was found, Richardson found a chain-link fence that
       had a hole cut in it. While standing in the muddy area, he saw MJ Electric trucks parked in
       the Curran Group parking lot (the lot), about 50 feet away from the hole in the fence.
¶8          Richardson testified that, at about 6 a.m., MJ Electric field supervisor Orlando Nieves
       arrived at work. Richardson and Nieves entered the lot together and examined the scene.
       Richardson saw scraps of copper wire and insulation on the ground. Nieves told Richardson
       that the wire had not been left on the ground the night before; he stated that it would have
       been in the trucks, held in place by bungee cords. Upon examining certain trucks, Nieves
       noted that some five-gallon buckets that had contained spill kits had been removed from the
       trucks. The lids had been removed from the buckets, and the spill kits had been dumped into
       the beds of the trucks. Nieves saw that some locks had been cut on the side compartments of
       two trucks. Inside the compartments, there were empty trays that had previously contained
       brass and copper fittings and ground rod connectors. Richardson examined a truck that had
       not been entered and saw brass and copper items that were identical to those found near
       defendant. Richardson determined that two trucks had been broken into. Richardson checked
       for the presence of gravel on the bottoms of defendant’s shoes, because “[if] someone had
       walked into that parking lot, they would have had gravel—dry gravel on their feet.”
       Defendant’s shoes were muddy, but Richardson did not see any gravel.
¶9          Crystal Lake police officers Krzysztof Krol and Edward Lepkowicz arrived on the scene
       soon after Richardson. Krol heard defendant say that he was en route to his house in
       McHenry and that he stayed in the bushes because he did not want to be caught on the bike
       path after dark for fear he would be cited for trespassing. Lepkowicz was directed by
       Richardson to gather the brass and copper fittings found near defendant and to bring them to
       the lot, which was about a quarter-mile away. Nieves identified the items as belonging to MJ
       Electric. Nieves stated that he needed the items for work, and they were returned to him.
       Lepkowicz did not attempt to obtain fingerprints from the trucks.
¶ 10        Richardson and Lepkowicz asked defendant where he got the buckets filled with the
       fittings. Defendant told them that he was working in residential construction with a man
       named Phil Cotton and that Cotton let him have the fittings while at a job site in Algonquin.
       Richardson questioned defendant further, because he did not believe that anyone would give
       away new fittings. Defendant then told him that he obtained the fittings in Elgin but that he
       could not provide any way to contact his boss. Richardson testified that he attempted to
       locate Cotton through his computer system but was unable to do so.
¶ 11        Rollin Henson, defendant’s father, testified for the defense. Rollin, a roofing contractor,
       testified that defendant lived with him and his wife and occasionally worked with him.
       Defendant did not own a car, so Rollin drove him to worksites. Rollin testified that defendant
       pieced together a bicycle, which defendant used for personal transportation. Because the
       bicycle often broke down, defendant usually carried tools around with him in a bucket. These
       included tools for fixing his bicycle, as well as tools for taking apart and adhering roofing,

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       such as knives, a flashlight, a lighter, a pry bar, and a hammer. Rollin identified a picture of
       defendant’s shoes and stated that they had roofing material and plastic roofing cement stuck
       on them. Rollin could not recall if defendant worked on a roofing job on May 30, 2014, but
       he stated that he would not have sent defendant on a job in the middle of the night. He denied
       that there was a roofing job for MJ Electric on May 30, 2014. Rollin did not use bolt cutters
       or binoculars for his job, but he did use his camera’s zoom lens at times to see things on the
       ground from the roof.
¶ 12       An informal jury-instruction conference took place off the record. The next day, the
       conference continued on the record. Defense counsel addressed the trial court’s refusal to
       instruct the jury on theft. Defense counsel argued that an instruction on a lesser offense must
       be given upon the defendant’s request if the charging instrument described the lesser offense
       and if the evidence at trial would permit a rational jury to convict the defendant of the lesser
       offense and acquit him of the greater offense. The State countered that the instruction on theft
       was not warranted because it had not charged defendant with possession of property, an
       element of theft. The trial court found that, using the “abstract elements approach to analyze
       the language contained in the Bill of Indictment[,] *** theft is not a lesser-included offense
       under the circumstances,” and it denied the instruction.
¶ 13       The jury found defendant guilty of two counts of burglary (720 ILCS 5/19-1(a) (West
       2014)) and one count of possession of burglary tools (720 ILCS 5/19-2 (West 2014)).
¶ 14       On April 21, 2015, defendant filed a motion for a new trial, which he amended on May
       28, 2015. Defendant argued, inter alia, that the trial court erred in failing to instruct the jury
       on theft. On April 29 and 30, defendant filed several pro se motions. A hearing on the
       motions took place on May 28, 2015. After denying defendant’s pro se motions, the trial
       court denied defendant’s amended motion for a new trial. Following a sentencing hearing,
       the trial court sentenced defendant to concurrent prison terms of 16 years for each count of
       burglary and 3 years for possession of burglary tools.
¶ 15       Following the denial of his motion for reconsideration of his sentence, defendant timely
       appealed.

¶ 16                                          II. ANALYSIS
¶ 17       Defendant contends that the trial court committed reversible error when it refused to
       instruct the jury on theft. According to defendant, the trial court relied on the wrong standard
       in determining whether theft was a lesser included offense of burglary.
¶ 18       Section 2-9(a) of the Criminal Code of 2012 defines a lesser included offense as one that
       “[i]s established by proof of the same or less than all of the facts or a less culpable mental
       state (or both), than that which is required to establish the commission of the offense
       charged.” 720 ILCS 5/2-9(a) (West 2014). “There are three methods for determining whether
       an offense is a lesser-included offense of another: (1) the ‘abstract elements’ approach;
       (2) the ‘charging instrument’ approach; and (3) the ‘factual’ or ‘evidence’ adduced at trial
       approach. [Citations.]” People v. Kennebrew, 2013 IL 113998, ¶ 28. The abstract-elements
       approach applies when the issue is whether one charged offense is a lesser included offense
       of another charged offense. See People v. Miller, 238 Ill. 2d 161, 172-73 (2010). The
       charging-instrument approach applies when the issue is whether an uncharged offense is a
       lesser included offense of a charged offense. People v. Kolton, 219 Ill. 2d 353, 362-63
       (2006). Here, because the State nol-prossed the theft charge prior to trial, the

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       charging-instrument approach governed. Thus, the trial court erred in using the
       abstract-elements approach in determining that theft was not a lesser included offense of
       burglary.
¶ 19       Under the charging-instrument approach, “the lesser offense need not be a ‘necessary’
       part of the greater offense, but the facts alleged in the charging instrument must contain a
       ‘broad foundation’ or ‘main outline’ of the lesser offense. [Citations.] ‘The indictment need
       not explicitly state all of the elements of the lesser offense as long as any missing element
       can be reasonably inferred from the indictment allegations.’ [Citation.]” Kennebrew, 2013 IL
       113998, ¶ 30. Here, the indictment alleged that defendant committed the offense of burglary
       in that he “knowingly entered a motor vehicle, belonging to MJ Electric, LLC, *** with the
       intent to commit therein a theft.” The offense of theft is committed when a person knowingly
       obtains or exerts unauthorized control over property of the owner and intends to deprive the
       owner permanently of the use or benefit of the property. 720 ILCS 5/16-1(a)(1)(A) (West
       2014). The State agrees that, by alleging that defendant entered MJ Electric’s trucks with the
       intent to commit a theft, the charging instrument necessarily implied that defendant intended
       to obtain unauthorized control over MJ Electric’s property. See People v. Hamilton, 179 Ill.
       2d 319, 325 (1997). As such, the State concedes that the charging instrument sufficiently
       identified theft as a lesser included offense of the charged offense of burglary.
¶ 20       Nevertheless, as the State notes, the identification of theft as a lesser included offense of
       burglary does not automatically create a correlative right to have the jury instructed on it. “A
       defendant is entitled to a lesser included offense instruction only if an examination of the
       evidence reveals that it would permit a jury to rationally find the defendant guilty of the
       lesser offense yet acquit the defendant of the greater offense.” Id. at 324. Here, the State
       argues that the evidence did not permit a rational finding by the jury that defendant was
       guilty of theft, but not of burglary. We disagree.
¶ 21       People v. Buress, 274 Ill. App. 3d 164 (1995), is instructive. In Buress, the defendant was
       convicted of burglary. See People v. Buress, 259 Ill. App. 3d 217, 221 (1994). On appeal, he
       argued, inter alia, that the trial court erred in refusing to instruct the jury on theft. Id. at 226.
       The evidence established that the police, who were responding to a call concerning a
       burglary in progress, came upon the defendant in an alley behind the location of the
       suspected burglary. Id. at 219. The defendant was observed bent over near a garbage
       dumpster, rapidly gathering coins that were strewn about the alley and putting the coins in his
       pockets. Id. A cash register was perched on the dumpster. Id. The defendant told the officers
       that he was just collecting coins from the ground. Id. The officers discovered a nearby store
       with a broken glass window. Id. The store’s cash register was missing. Id. A trail of coins led
       from the store’s broken window to the dumpster. Id. The defendant testified that he saw the
       coins on the ground and followed the trail to the alley, where he found the cash register and
       picked up the remaining coins. Id. at 220. There were no shards of glass found on the
       defendant’s clothing, no vehicle was observed leaving the scene, and no one other than the
       defendant was seen in the area. Id. at 219.
¶ 22       On appeal, the defendant argued that the trial court erred in refusing to instruct the jury
       on theft, as it was a lesser included offense of burglary. Id. at 226. The appellate court,
       applying the abstract-elements approach, disagreed and affirmed. Id. at 229. Subsequently,
       however, the supreme court issued a supervisory order, directing the appellate court to
       reconsider its decision in light of People v. Novak, 163 Ill. 2d 93 (1994). Buress, 274 Ill.

                                                     -5-
       App. 3d at 165. Upon reconsideration, the appellate court found that, under the
       charging-instrument approach, the defendant was entitled to the theft instruction. The court
       stated:
                “ ‘[T]he information alleged that defendant knowingly entered the premises of
                another without authorization and with the specific intent to commit a theft inside’
                and ‘the State’s evidence established the crime of theft in that it proved what it
                alleged in its information: that defendant “exert[ed] unauthorized control over the
                property of its owner,” [citation] namely, the coins and currency owned by
                DollarBuster, Inc.; and, by his admission that he put the money in his pockets, the
                evidence showed that he concealed it with knowledge that he would probably
                permanently deprive its rightful owner of the money.’ ” Id. at 167 (quoting Buress,
                259 Ill. App. 3d at 227).
¶ 23        There is no question that here, as in Buress, the evidence would permit the jury to
       rationally conclude that defendant was guilty of theft but not of burglary. As in Buress,
       defendant was found with property identified as belonging to a nearby business that had
       recently been burglarized. Like the cash register in Buress, several other items from the
       burglarized business were found nearby. Also, as in Buress, there was no direct evidence
       establishing defendant’s entry into the business’s property. Although Richardson looked
       specifically for gravel on defendant’s shoes as evidence of defendant’s presence in the lot, he
       did not see any. The officers did not obtain security video from the lot or fingerprints from
       the bolt cutters or trucks. Although the evidence was such that the jury could infer
       defendant’s entry, this was not the only rational inference. As the jury could rationally find
       defendant guilty of theft, he was entitled to have the jury consider that option as an
       alternative to a verdict of guilty or not guilty of burglary.
¶ 24        Nevertheless, according to the State, defendant cannot contend that he committed a lesser
       included offense because defendant’s statements to the police and defendant’s argument to
       the jury indicated that his involvement originated when he found the fittings near the path,
       after the burglary offense was completed. (Defendant told the police that he was given the
       brass and copper fittings by a friend, and he argued at trial that he came upon the proceeds of
       the burglary by happenstance and decided to keep them.) The State maintains that, if the jury
       accepted defendant’s version of events, a theft instruction “would be directed at a separate
       offense committed at a separate time” and thus would not be appropriate.
¶ 25        In support of its “separate offense” argument, the State relies on People v. Chandler, 278
       Ill. App. 3d 212 (1996). In Chandler, the defendant was charged with and convicted of
       burglary, based on an accountability theory. Id. at 213. On appeal, the defendant argued that
       the trial court erred in refusing to instruct the jury on the lesser included offense of theft. Id.
       The burglary in that case involved boxes of oranges that had been taken from a church
       storage room and sold to a supermarket located across the street. Id. A police officer testified
       that the defendant told him that he and the codefendant (who pleaded guilty to the burglary)
       went to the church to break into the storage room. Id. at 214. The defendant told the officer
       that the codefendant entered the church through a window and retrieved the boxes of
       oranges. Id. The codefendant then opened the front door to the church and handed the boxes
       to the defendant. Id. The men then took the boxes down an alley to a field, to hide them while
       they went to the supermarket to negotiate the subsequent sale. Id. However, the codefendant
       testified that he removed the boxes from the church and placed them in the alley by himself

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       and that the defendant later accompanied him back to the alley to retrieve the boxes and sell
       the oranges to the supermarket. Id. On appeal, the defendant argued that he was entitled to a
       theft instruction because his involvement was limited to taking the boxes from the alley, after
       the codefendant removed them from the church, and selling them to the supermarket. Id. at
       216. The reviewing court disagreed, stating: “[The] defendant in the present case cannot
       contend he committed a lesser included offense because codefendant’s testimony is that
       defendant’s involvement originated and occurred entirely after the burglary offense was
       completed. This is a separate offense, not a lesser included offense.” Id.
¶ 26        We disagree with the holding in Chandler. There, as here, there was evidence supporting
       a conviction of either burglary (the defendant’s statement to the police) or theft (the
       codefendant’s testimony). Yet the court held that the evidence of theft did not warrant a theft
       instruction because the alleged theft was “actually a separate crime committed after the
       greater offense was completed.” Id. at 217. But this was just as true in Buress; the
       defendant’s theory was that, after someone else had committed the burglary, the defendant
       had merely stolen the proceeds.
¶ 27        In describing the theft as “separate,” the Chandler court relied on People v. Landwer, 166
       Ill. 2d 475 (1995). But Landwer is clearly distinguishable. There, the indictment alleged that
       the defendant committed solicitation of murder for hire by procuring Robert Holguin to
       murder two of the defendant’s employees. Id. at 487. The supreme court agreed that
       solicitation to commit aggravated battery was a lesser included offense because it could be
       proved by the same facts and a less culpable mental state under the indictment. Id. But
       because the defendant raised an entrapment defense to the greater offense (solicitation of
       murder), and thus admitted the elements of that offense, the court held that he could not
       simultaneously present the jury with the option of finding him guilty only of a lesser offense
       (solicitation of aggravated battery). Id. at 489. By raising the entrapment defense, the
       defendant admitted to the elements of solicitation of murder, and the sole disputed element
       was whether the defendant was entrapped. Id. at 488. Thus, “the same facts that are relevant
       to prove defendant was entrapped into solicitation of murder do not establish that he solicited
       an aggravated battery.” Id. at 489.
¶ 28        The supreme court did go on to observe that, in any event, a defendant may not “raise as
       a defense to one charged transaction that he or she committed some separate uncharged
       transaction, occurring on different days and involving different participants.” Id. at 490.
       “Such does not meet the definition of an included offense because the indictment does not
       present any outline or foundation for that crime.” Id. at 491-92. The court made this
       statement in response to the defendant’s argument that, in addition to raising the entrapment
       defense to the charged crime of soliciting Holguin to murder his employees, he should have
       been allowed to present the jury with a third option, i.e., “that he solicited Robert Holguin or
       Barbecue Jerry to commit an aggravated battery at some other time.” Id. at 490. The court
       thus noted that a defendant is not entitled to an instruction on a lesser offense unless that
       offense is a lesser included offense. Because the facts alleged in the indictment did not
       present any outline or foundation for the crime that the defendant “solicited Robert Holguin
       or Barbecue Jerry to commit an aggravated battery at some other time,” that crime was not a
       lesser included offense. Id.
¶ 29        Thus, contrary to the analysis in Chandler, the issue here is not whether the lesser offense
       is “separate”; the issue is whether the indictment set out the outline of the lesser offense such

                                                   -7-
       that the lesser offense is “included.” Because theft was “included” here, and because there
       was evidence that would have supported a conviction of theft and an acquittal of burglary,
       the trial court erred in refusing a theft instruction.
¶ 30       We note that the State asserts that the trial court’s refusal to issue the
       lesser-included-offense instruction, even if error, was harmless. However, this court has
       previously held that the failure to give a lesser-included-offense instruction is not subject to a
       harmless-error analysis. See People v. Blan, 392 Ill. App. 3d 453, 459 (2009).
¶ 31       Based on the foregoing, we find that the trial court’s refusal to instruct the jury on theft as
       a lesser included offense was reversible error. Although we reverse defendant’s convictions
       on the instructional issue, we also note that the evidence was sufficient to prove his guilt
       beyond a reasonable doubt. Thus, a retrial will not violate defendant’s right to be free from
       double jeopardy. See People v. Jiles, 364 Ill. App. 3d 320, 330-31 (2006).

¶ 32                                      III. CONCLUSION
¶ 33        For the reasons stated, we reverse defendant’s convictions, and we remand for a new
       trial.

¶ 34      Reversed and remanded.




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