                             2017 IL App (2d) 150594
                                  No. 2-15-0594
                          Opinion filed October 31, 2017
______________________________________________________________________________

                                                IN THE

                               APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE                      ) Appeal from the Circuit Court
STATE OF ILLINOIS,                     ) of McHenry County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 14-CF-503
                                       )
JAMES R. HENSON,                       ) Honorable
                                       ) Gordon E. Graham,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

        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
2017 IL App (2d) 150594


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.



                                               -2-
2017 IL App (2d) 150594


¶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; 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 1,000 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



                                                -3-
2017 IL App (2d) 150594


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 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



                                              -4-
2017 IL App (2d) 150594


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, 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



                                               -5-
2017 IL App (2d) 150594


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.]”



                                                 -6-
2017 IL App (2d) 150594


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 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.



                                               -7-
2017 IL App (2d) 150594


¶ 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



                                                 -8-
2017 IL App (2d) 150594


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. 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



                                                -9-
2017 IL App (2d) 150594


entitled to have the jury consider that option as an alternative to a verdict of guilty of burglary or

not guilty.

¶ 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 and that the



                                                - 10 -
2017 IL App (2d) 150594


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



                                               - 11 -
2017 IL App (2d) 150594


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 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.



                                                - 12 -
2017 IL App (2d) 150594


¶ 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.




                                               - 13 -
