                             ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                             People v. Barnett, 2011 IL App (3d) 090721




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



District & No.               Third District
                             Docket No. 3–09–0721


Filed                        June 27, 2011
Rehearing Denied             August 3, 2011
Held                         On appeal from defendant’s conviction and sentence for armed robbery
(Note: This syllabus         arising from his prosecution on a one-count indictment charging that he
constitutes no part of the   committed armed robbery by taking property “while armed with a
opinion of the court but     dangerous weapon, a handgun,” his conviction and sentence were
has been prepared by the     reversed and the cause was remanded to the trial court with directions
Reporter of Decisions for    to enter a judgment of acquittal for the charged violation of section
the convenience of the       18–2(a)(2) of the Criminal Code and the vacation of his sentence,
reader.)                     notwithstanding the State’s contention that a conviction should be
                             entered on the lesser offense of simple robbery, since the State elected
                             to proceed with an all-or-nothing approach, the indictment charged only
                             a violation of section 18–2(a)(2) based on the use of a firearm, and the
                             jury’s finding that defendant was guilty of a violation of section
                             18–2(a)(1) based on the use of a dangerous weapon other than a firearm
                             was not a lesser included offense of a violation of section 18–2(a)(2),
                             and the jury’s specific and special finding that the State did not prove
                             a necessary element of the only indicted offense, the use of a firearm in
                             the commission of a robbery should be enforced.
Decision Under              Appeal from the Circuit Court of Peoria County, No. 09–CF–412; the
Review                      Hon. Michael E. Brandt, Judge, presiding.



Judgment                    Reversed and remanded with directions.


Counsel on                  John M. McCarthy (argued), of State Appellate Defender’s Office, of
Appeal                      Springfield, for appellant.

                            Kevin W. Lyons, State’s Attorney, of Peoria (Terry A. Mertel and Justin
                            A. Nicolosi (argued), both of State’s Attorneys Appellate Prosecutor’s
                            Office, of counsel), for the People.


Panel                       JUSTICE WRIGHT delivered the judgment of the court, with opinion.
                            Justices McDade and O’Brien concurred in the judgment and opinion.



                                              OPINION

¶1          At the close of evidence in this case, both the State and defense objected to the court
        providing the jury with instructions pertaining to any lesser included offense related to the
        single-count indictment. Consequently, the jury received instructions from the court directing
        the jury to deliberate on a single criminal violation of section 18–2(a)(2) of the Criminal
        Code of 1961 (720 ILCS 5/18–2(a)(2) (West 2008)) and sign one verdict form. Following
        deliberations, the jury signed one verdict form finding defendant “guilty of armed robbery,”
        but as instructed, also signed an additional form specially finding the State failed to prove
        beyond a reasonable doubt that defendant was armed with a firearm during the commission
        of this armed robbery.
¶2          On appeal and pursuant to supplemental briefs allowed by this court, defendant argues
        the jury’s special finding, indicating the State did not prove the element related to a firearm,
        constituted an acquittal of the only charged violation of the armed robbery statute. We agree.
        Accordingly, defendant’s conviction for armed robbery cannot be upheld or reduced to a
        lesser included offense under the circumstances of this case. We reverse defendant’s
        conviction and sentence, and the cause is remanded to the trial court with directions.

¶3                                           FACTS
¶4          On May 5, 2009, a Peoria County grand jury issued a one-count bill of indictment which
        alleged that on April 7, 2009, defendant committed the offense of armed robbery in that

                                                  -2-
       “while armed with a dangerous weapon, a handgun, did take property being a wallet and it’s
       [sic] contents from the person or presence of Phillip Jones by threatening the imminent use
       of force in violation of 720 ILCS 5/18–2(a)(2).” Defendant’s jury trial began on July 14,
       2009.
¶5         The State presented the testimony of Phillip Jones, Harold Allen, Officer Jason
       Spanhook, Kimberly Whittles, and Anthony Rickard, and the videotaped interviews of
       Kimberly Whittles and Anthony Rickard conducted by Detectives Aaron Watkins and
       Shannon Walden. Jones testified that in the late afternoon of April 7, 2009, defendant and
       another man approached him as he was walking down the street. According to Jones,
       defendant pointed a gun at him, and one of the men reached into his pocket and removed his
       wallet. During cross-examination, Jones acknowledged that he did not know much about
       guns and stated that defendant could have had either a gun or a BB gun. He did not know.
¶6         Allen testified that on April 7, 2009, he observed two men jump out of the backseat of
       a car that stopped in the parking lot of his apartment building. He thought this was odd, so
       he wrote down the license plate number. A few minutes later, he saw the police in the area
       and provided the police with the license plate information.
¶7         Officer Jason Spanhook testified that he received the license plate information from
       Allen and that on the next day, another officer stopped the vehicle in Peoria and it contained
       four occupants, including defendant. Spanhook searched the vehicle but did not find a
       firearm or other gun, but did find a spent shell casing. Spanhook was not aware of the police
       ever recovering a handgun in this case.
¶8         The State played the videotaped interviews of Whittles and Rickard. In the videotape,
       Whittles told the police that she, defendant, Jeremy Barnett and Anthony Rickard were
       looking for money on April 7, 2009, and that Jeremy (Barnett) decided to rob someone.
       According to Whittles, Jeremy and defendant exited the car she was driving after she stopped
       in a parking lot. Later, the two men came running back to the car carrying a wallet that
       contained $60. Whittles stated defendant had a gun at the time. Rickard’s interview provided
       a similar account, although Rickard did not see a gun but believed Jeremy had a gun.
¶9         Defendant testified on his own behalf. He denied being with Whittles and Rickard on the
       day in question and denied participating in the robbery. In rebuttal, the State offered into
       evidence certified convictions showing defendant previously committed the offenses of
       unlawful delivery of a controlled substance and unlawful possession of a controlled
       substance.
¶ 10       At the conclusion of the evidence, the trial court conducted a jury instruction conference
       with the attorneys. Before closing arguments, defense counsel indicated to the trial judge that
       he wanted to speak with defendant regarding the possibility of requesting an instruction on
       the lesser included offense of robbery. The prosecutor indicated that she objected to any
       instruction on a lesser included offense and stated the only offense that would qualify as a
       lesser included offense would be aggravated robbery (720 ILCS 5/18–5 (West 2008)).
¶ 11       After a brief recess, defense counsel advised the court that defendant did not wish to
       request a lesser included instruction. The court stated that it agreed with the State that the
       lesser included offense would be aggravated robbery (720 ILCS 5/18–5 (West 2008)) and

                                                -3-
       that an instruction for aggravated robbery would be proper in the case in light of the evidence
       presented. However, the court would not give that instruction since defendant did not want
       an instruction on a lesser offense provided to the jury.
¶ 12       Following the conference on instructions, the court allowed the State’s instruction No.
       6 over defendant’s objection which provided:
                “The State has also alleged that during the commission of the offense of Armed
           Robbery the defendant or one for whose conduct he is legally responsible was armed
           with a firearm.
                The defendant has denied the allegation.” (Emphasis added.)
       The court also gave the State’s instruction No. 17, without objection, which defined the
       armed robbery violation as follows:
                “A person commits the offense of Armed Robbery when he, while carrying on or
           about his person, or while otherwise armed with a dangerous weapon, knowingly takes
           property from the person or presence of another by the use of force or by threatening the
           imminent use of force.” (Emphasis added.)
       The court also allowed the State’s instruction No. 18, over defendant’s objection. This issues
       instruction advised the jury regarding the three propositions which the State had to prove
       beyond a reasonable doubt in order for the jury to find defendant guilty of the alleged
       violation of the armed robbery statute. This instruction included the proposition of whether:
           “defendant or one for whose conduct he is legally responsible carried on or about his
           person a dangerous weapon or was otherwise armed with a dangerous weapon at the
           time of the taking.” (Emphasis added.)
       Following its deliberations, the jury signed a written guilty verdict as directed by this
       instruction.
¶ 13       The court also allowed the State’s instruction No. 19, over defendant’s objection. State’s
       instruction No. 19 requested the jury to make a special finding, regarding whether “during
       the commission of the offense of Armed Robbery the defendant or one for whose conduct
       he is legally responsible was armed with a firearm.” (Emphasis added.)
¶ 14       The court allowed the State’s instruction No. 21, over defendant’s objection, which
       provided, in part, that if the jury found defendant guilty of armed robbery, the jury:
           “should then go on with your deliberation to decide whether the State has proved beyond
           a reasonable doubt the allegation that during the commission of the offense of Armed
           Robbery the defendant or one for whose conduct he is legally responsible was armed
           with a firearm.” (Emphasis added.)
       Following its deliberations, the jury signed the form indicating the State’s evidence did not
       prove the object was a firearm beyond a reasonable doubt.
¶ 15       During deliberations, the jurors sent a note to the court which indicated that the jurors
       were “divided on the issue of a gun” and wondered if they could view the Anthony Rickard’s
       entire video to gain some clarity. The trial court answered the jurors’ question by telling them
       to consider the testimony and exhibits received in court after reviewing the written
       instructions of law.

                                                 -4-
¶ 16       Following deliberations, the jury foreperson announced the jury found defendant guilty
       of armed robbery. The foreperson then said that “[t]here’s a second charge” and stated that
       the jury found “the allegation that during the commission of the offense of armed robbery the
       Defendant or one for whose conduct he is legally responsible was armed with a firearm was
       not proven.”
¶ 17       On August 13, 2009, defendant filed a written motion for judgment notwithstanding the
       verdict or alternatively for a new trial. Defendant claimed that the State did not prove him
       guilty beyond a reasonable doubt and that the jury findings were legally inconsistent.
¶ 18       On September 3, 2009, the trial court conducted a hearing on defendant’s posttrial
       motion. Defense counsel argued that the evidence suggested a “handgun,” but the jury found
       that the State failed to prove that defendant was armed with a “firearm.” Defense counsel
       argued that this finding was inconsistent with the jury’s guilty verdict, which indicated the
       State proved beyond a reasonable doubt that defendant carried “a dangerous weapon,”
       especially since the only evidence at trial of a “dangerous weapon” was that the victim
       believed defendant had a “firearm.” Defense counsel argued that once the jury found the
       State failed to prove the object was “a firearm beyond a reasonable doubt,” there was “simply
       a scarcity of evidence upon which this verdict [could] be sustained.” In response, the
       prosecutor argued that the jury’s verdicts were not inconsistent.
¶ 19       The trial court found that the jury’s special finding did not negate the jury’s separate
       verdict finding that defendant was guilty of armed robbery. The trial court denied defendant’s
       motion for judgment notwithstanding the verdict and defendant’s alternative request for a
       new trial.
¶ 20       After considering the relevant factors in mitigation and aggravation, the court stated that
       defendant was found guilty of the offense of armed robbery, “a Class X felony,” and
       sentenced defendant to 17 years in prison. The trial court also entered a document entitled
       “Judgment–Sentence to Illinois Department of Corrections,” which indicated that the court
       sentenced defendant for the offense of armed robbery in violation of “720 ILCS
       5/18–2(a)(2).” The trial court denied defendant’s motion to reconsider sentence on
       September 9, 2009. The court directed the clerk of the court to file a notice of appeal on
       defendant’s behalf.

¶ 21                                        ANALYSIS
¶ 22       On appeal, defendant initially argued that the State failed to prove beyond a reasonable
       doubt that defendant committed the offense of “Armed Robbery” once the jury rejected the
       State’s allegation that defendant committed this offense while “armed with a firearm.”
       Consequently in his initial brief, defendant requested this court to reduce his conviction to
       robbery and remand to the trial court for resentencing.
¶ 23       In its initial brief, the State responded that the jury’s special finding was of no
       consequence since the jury heard sufficient evidence to support a conclusion that the
       handgun was a “real gun.” Thus, initially the State requested this court to affirm defendant’s
       armed robbery conviction based on the use of a firearm. Alternatively, in its initial brief, the
       State requested this court to reduce the offense to robbery “as it is the only applicable lesser-

                                                 -5-
       included offense of armed robbery.”
¶ 24        During oral arguments on appeal, this court encouraged the parties to submit additional
       authority regarding whether the jury’s special finding constituted an acquittal of the only
       charged statutory violation, thereby prohibiting any subsequent conviction and sentence for
       armed robbery. Both parties submitted supplemental authority and written argument to
       address this court’s concerns following oral arguments.
¶ 25        Defendant’s supplemental brief argued that defendant was acquitted by the jury’s explicit
       finding that the State did not prove defendant was “Armed with a Firearm” during the
       commission of the charged crime. Defendant’s supplemental brief also asserted that the jury
       was improperly instructed on the elements of a violation pertaining to section 18–2(a)(2).
¶ 26        The State submitted additional authority asserting defendant failed to raise the acquittal
       issue in his original brief and thereby forfeited review of this contention. Alternatively, the
       State argued that the jury’s guilty verdict should be viewed by this court as an armed robbery
       conviction based on a lesser offense set out in section 18–2(a)(1) of the Criminal Code of
       1961 (720 ILCS 5/18–2(a)(1) (West 2008)). In addition, the State’s supplemental argument
       renews the State’s initial request for this court to exercise our discretionary authority by
       reducing defendant’s conviction to simple robbery.
¶ 27        First, we address the State’s waiver claim resulting from defendant’s failure to raise “any
       issue concerning the discrepancies between the charging instrument and the jury instructions”
       in defendant’s original brief on appeal. The State claims that since these issues were not
       raised in the original brief, defendant cannot raise those issues in a reply brief, oral argument
       or a petition for rehearing. See Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006).
¶ 28        We agree with the State’s contention that the defense forfeited the issues regarding
       acquittal, the discrepancies in the charging instrument, and the improper jury instructions.
       However, it is well established that “[t]he waiver rule is one of administrative convenience
       rather than jurisdiction.” People v. Smith, 106 Ill. 2d 327, 333 (1985). Waiver does not serve
       as an impediment that prevents a reviewing court from considering certain errors made at
       trial. People v. Lann, 261 Ill. App. 3d 456, 470 (1994). Due to the significance of the issue
       regarding acquittal and in the interest of judicial economy, we elect to consider whether the
       jury’s special finding created a conviction for a lesser included offense or resulted in an
       acquittal of the alleged violation of the armed robbery statute based on section 18–2(a)(2).
¶ 29        In this case, the jury signed both a guilty verdict for armed robbery and a special finding
       that the State’s evidence did not prove a firearm was used during that armed robbery. Thus,
       it is helpful to review the instructions provided to the jury by the court. We quickly review
       the language of these instructions only for the purpose of considering the significance of the
       jury’s written, factual determinations due to those instructions and not as a reason to allow
       a new trial based on potentially erroneous jury instructions.
¶ 30        The State’s instruction No. 18 directed the jury to first decide if a “dangerous weapon”
       was used during the “taking” resulting in an armed robbery. After deciding that an armed
       robbery occurred premised upon the use of a dangerous weapon, the jury signed a guilty
       verdict as directed by the issues instruction. Then, the State’s instructions Nos. 19 and 21
       directed the jury to next determine whether the State proved the use of a “firearm” beyond

                                                 -6-
       a reasonable doubt. Following the directive in the State’s instructions Nos. 19 and 21, the
       jury also signed a special finding form that stated: “We, the jury, find the allegation that
       during the commission of the offense of Armed Robbery the defendant or one for whose
       conduct he is legally responsible was armed with a firearm was not proven.”
¶ 31       On appeal, the State asserts that even though defendant was not charged with violating
       section 18–2(a)(1) in the indictment, the armed robbery conviction and sentence imposed by
       the trial court should stand, in spite of the special finding by the jury, because the jury signed
       a guilty verdict and a violation of section 18–2(a)(1) is a lesser included violation of section
       18–2(a)(2). The State submits that either violation gives rise to a conviction for the same
       offense, armed robbery.
¶ 32       The State’s request to affirm the armed robbery conviction in this case requires a careful
       review of the armed robbery statute that became effective on January 1, 2000, with the
       passage of Public Act 91–404. See Pub. Act 91–404, § 5 (eff. January 1, 2000) (amending
       720 ILCS 5/18–2) (Armed Robbery) (the Act). For the convenience of the reader, the
       relevant portions of the armed robbery statute, applicable at the time of this alleged armed
       robbery, are set forth below:
           “§ 18–2. Armed robbery.
           (a) A person commits armed robbery when he or she violates Section 18–1; and
                    (1) he or she carries on or about his or her person or is otherwise armed with a
                dangerous weapon other than a firearm; or
                    (2) he or she carries on or about his or her person or is otherwise armed with a
                firearm[.]***
                                                   ***
           (b) Sentence.
                    Armed robbery in violation of subsection (a)(1) is a Class X felony. A violation
                of subsection (a)(2) is a Class X felony for which 15 years shall be added to the term
                of imprisonment imposed by the court.” (Emphasis added.) 720 ILCS 5/18–2(a), (b)
                (West 2008).
       The armed robbery statute requires the State to prove all the elements codified in the
       numerical subsection of the statute alleged to have been violated in order to support an armed
       robbery conviction.
¶ 33       However, enhanced sentences are not set out in the armed robbery statute. Based on this
       statute, the minimum sentence for armed robbery is never enhanced by special findings
       determined by the trier of fact, other than those findings of fact directly related to the specific
       elements of the underlying criminal charge. See 720 ILCS 5/18–2(b) (West 2008). Rather,
       the minimum sentence for armed robbery is dictated by the statutory elements set out in the
       numerical subsection or subsections of the armed robbery statute that the State elects to
       prove at trial.
¶ 34       Had the State elected to obtain a two-count indictment in this case, separately alleging
       a violation of section 18–2(a)(1) (dangerous weapon other than a firearm) and a separate
       violation of section 18–2(a)(2) (firearm), the issues at hand would all but disappear. Instead

                                                  -7-
       of setting out a two-count indictment, the State elected to obtain a single-count indictment
       that simultaneously described the object as both a dangerous weapon and a handgun,
       arguably merging certain elements of a violation of section 18–2(a)(1) with other elements
       unique to a violation of section 18–2(a)(2) into one alleged, hybrid armed robbery violation.
¶ 35       Following the submission of supplemental authority, the State does not take issue with
       the fact that this hybrid language charged defendant with only a violation of section
       18–2(a)(2).1 Nonetheless, the State now contends that the existing conviction and sentence
       should be upheld by this court as a violation of section 18–2(a)(1), a lesser included offense
       of the charged violation.
¶ 36       Consequently, we will first consider whether a violation of section 18–2(a)(1) (dangerous
       weapon other than a firearm) constitutes a lesser included offense of the charged violation
       based on section 18–2(a)(2) (firearm). Then we will determine whether a conviction for any
       lesser offense should be imposed following the jury’s determination that the State did not
       prove an element of the only criminal violation presented to the jury for deliberations.
¶ 37       The case law provides that a lesser included offense is defined as an offense which
       contains some, but not all, of the elements of the greater offense and which contains no
       element not included in the greater. People v. Cramer, 85 Ill. 2d 92, 97 (1981). When
       comparing the elements of an armed robbery violation pursuant to section 18–2(a)(1) to the
       elements of an armed robbery violation pursuant to section 18–2(a)(2), it becomes obvious
       that section 18–2(a)(1) contains the additional element of dangerousness, not required by
       section 18–2(a)(2). People v. Toy, 407 Ill. App. 3d 272, 291-92 (2011).
¶ 38       Moreover, the language of the current statute clearly demonstrates that a violation under
       section 18–2(a)(1) and one under section 18–2(a)(2) are mutually exclusive of each other.
       If an offender is charged with a violation of the armed robbery statute based on using a
       “dangerous weapon” of any kind, that weapon cannot be “a firearm.” 720 ILCS 5/18–2(a)(1)
       (West 2008). Similarly, if an offender is charged with a violation of the armed robbery statute
       predicated on a “firearm,” proof that the condition of the firearm made it a “dangerous
       weapon” is not required as an element of that violation. Proof that the weapon is a firearm
       alone suffices. 720 ILCS 5/18–2(a)(2) (West 2008). Thus, we conclude that a statutory
       violation of section 18–2(a)(1) does not qualify as a lesser included offense when compared
       to a violation of section 18–2(a)(2), and therefore, we cannot direct the lower court to enter
       a conviction for a violation of section 18–2(a)(1) as a lesser included offense to the charged
       violation based on section 18–2(a)(2).
¶ 39       Alternatively, in both the original and supplemental briefs, the State has requested this
       court to exercise its discretionary authority to direct the trial court to enter a conviction for
       the lesser offense of simple robbery. We agree that robbery is a lesser included offense to
       armed robbery. People v. Burg, 207 Ill. App. 3d 67, 70 (1990); See People v. Bryant, 113 Ill.
       2d 497, 502 (1986).


               1
                We agree that by describing the object as “a dangerous weapon, a handgun,” in this
       case, the State intended to prosecute defendant for a violation of section 18–2(a)(2). People v.
       Toy, 407 Ill. App. 3d 272, 292 (2011) (citing People v. Hill, 346 Ill. App. 3d 545, 548-49 (2004)).

                                                  -8-
¶ 40       We also acknowledge that pursuant to Illinois Supreme Court Rule 615(b)(3) (Ill. S. Ct.
       R. 615(b)(3)), this court has the authority to reduce the degree of an appellant’s conviction.
       However, as this court has previously stated, this discretionary authority should be exercised
       with “caution and circumspection.” People v. Jackson, 181 Ill. App. 3d 1048, 1050-51
       (1989).
¶ 41       In this case, the record clearly shows that at trial, both parties specifically advised the
       court that they were opposed to offering a lesser included offense instruction to this jury. The
       State strongly opposed any instruction on a lesser offense and elected to proceed with an all-
       or-nothing approach, similar to the defense in this case.
¶ 42       Based on these circumstances, we elect not to exercise our discretion pursuant to Rule
       615(b)(3) and will not reduce the conviction to robbery because neither side desired to allow
       the jury to consider a lesser alternative to the charged violation set out in the indictment.
       Further, once the jury found the State did not prove a required element of a violation of
       section 18–2(a)(2) related to the use of a firearm, this court cannot create a conviction for
       that specific statutory violation in order to subsequently reduce that armed robbery
       conviction to simple robbery.
¶ 43       For the reasons set forth above, this court feels constrained to enforce the jury’s specific
       and special finding that the State did not prove a necessary element of the only indicted
       violation, the use of a firearm, beyond a reasonable doubt. The cause is remanded to the trial
       court for entry of a judgment of acquittal for the charged violation of section 18–2(a)(2) and
       to vacate the sentence previously imposed.

¶ 44                                   CONCLUSION
¶ 45      The judgment of the circuit court of Peoria County is reversed.
¶ 46      Reversed and remanded with directions.




                                                 -9-
