People v. Eggerman

Annotate this Case
Type Case Number and then instead of THIRD DIVISION
September 10, 1997

No. 1-96-3846

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

MICHAEL EGGERMAN,

Defendant-Appellant. )
)
)
)
)
)
)
)
) Appeal from the
Circuit Court of
Cook County.

No. 96 CR 11515

Honorable
Michael Bolan,
Judge Presiding.

JUSTICE GORDON delivered the opinion of the court:
Michael Eggerman, the defendant, was charged by indictment
with aggravated vehicular hijacking, vehicular hijacking, armed
violence based on vehicular hijacking, armed robbery, robbery,
armed violence based on robbery and unlawful use of weapons by a
felon. In reliance on the double jeopardy clauses of the state
and federal constitutions, the defendant moved to dismiss all of
the charges with the exception of the unlawful use of weapons by
a felon charge based upon his earlier plea of guilty to the
charge of possession of a stolen motor vehicle which was based
upon the same February 1, 1996 occurrence. The trial court
denied the motion and the defendant filed this interlocutory
appeal pursuant to Supreme Court Rule 604(f) (145 Ill. 2d R.
604(f)).
The sole issue on appeal is whether the charge of possession
of a stolen motor vehicle is a lesser included offense of the
offenses of robbery, armed robbery, vehicular hijacking, and
aggravated vehicular hijacking.[fn1] We hold that it is and we
reverse.
The relevant facts in the instant case show that the
defendant, who was a resident of Lake County, was charged in Lake
County by information with the offense of possession of a stolen
motor vehicle. That offense, alleged to have occurred on
February 1, 1996, involved a 1991 Ford Escort having a specified
Illinois registration number. On March 28, 1996, the defendant
pled guilty to that charge and was sentenced to three years'
imprisonment in the Illinois Department of Corrections. On April
19, 1996, the defendant was transferred to a Chicago Police
Department station where an arrest report was prepared charging
the defendant with aggravated vehicular hijacking based upon
defendant's taking by use of a knife of the 1991 Ford Escort from
its owner in Chicago on February 1, 1996. Thereafter, on May 7,
1996, the aforementioned indictments were returned by the Cook
County grand jury.
The double jeopardy question raised by this appeal is
governed by the test set forth in Blockburger v. United States,
284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 2d 306 (1932)
which states:
"[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the
test to be applied to determine whether there are two
offenses or only one, is whether each provision
requires proof of an additional fact which the other
does not ***."
Accord Rutledge v. United States, U.S. , 116 S. Ct. 1241,
134 L. Ed. 2d 419 (1996). See Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) (applying Blockburger test to
successive prosecutions). The Blockburger test focuses on the
proof necessary to prove the statutory elements of each offense,
rather than on overlapping conduct. United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). If each
offense contains an element or fact different from the other
offense, the offenses are not the same offense for double
jeopardy purposes. Rutledge, U.S. , 116 S. Ct. 1241, 134 L. Ed. 419 (1996). Pursuant to the Blockburger test, prosecution
of a lesser included offense, which by its definition requires no
proof beyond that which is required in the greater offense, would
prevent the subsequent prosecution of the greater offense.
Brown, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187. See 720
ILCS 5/2-9(a) (West 1994) (a lesser included offense means an
offense which "[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"). Whatever the sequence may be, the Fifth Amendment
double jeopardy clause forbids successive prosecution and
cumulative punishment for a greater and lesser included offense.
Brown, 432 U.S. at 169, 97 S. Ct. at 2227, 53 L. Ed. 2d 187.
In the instant case, the defendant argues that the offense
of possession of a stolen motor vehicle is a lesser included
offense of robbery, armed robbery, vehicular hijacking and
aggravated vehicular hijacking.[fn2] We agree.
The elements to the offense of possession of a stolen motor
vehicle are that the defendant possessed a vehicle; that the
defendant was not entitled to possession of the vehicle; and that
the defendant knew that the vehicle was stolen. 625 ILCS 5/4-
103(a)(1) (West 1994). See People v. Cozart, 235 Ill. App. 3d
1076, 601 N.E.2d 1325 (1992). The elements to the offense of
vehicular hijacking are the taking of a motor vehicle from a
person by the use of force or threatening the imminent use of
force (720 ILCS 5/18-3 (West 1994)); and the offense of
aggravated vehicular hijacking includes additional elements, the
one here relevant being that the offender carry a dangerous
weapon (720 ILCS 5/18-4 (West 1994)). The elements to the
offenses of robbery and armed robbery are nearly identical to
offenses of vehicular hijacking and aggravated vehicular
hijacking, respectively, except motor vehicles are excluded from
the former. Compare 720 ILCS 5/18-3 and 5/18-4 with 5/18-1 and
5/18-2 (West 1994). See People v. Aguilar, 286 Ill. App. 3d 493,
676 N.E.2d 324 (1997).
Based upon these statutory provisions, we agree that the
offense of possession of a stolen motor vehicle is a lesser
included offense of vehicular hijacking and aggravated vehicular
hijacking. The taking of a motor vehicle, as required in the
vehicular hijacking offenses, includes unauthorized possession
and knowledge that the vehicle is stolen since the person charged
with the hijacking is the one who has taken the vehicle by force
or threat of force. See People v. Cramer, 85 Ill. 2d 92, 421 N.E.2d 189 (1981) (stating that word "stolen" in the possession
of stolen motor vehicle offense refers to theft; court found that
the same facts necessary to prove possession of motor vehicle
offense would prove theft). See also People v. Bryant, 128 Ill. 2d 448, 539 N.E.2d 1221 (1989) (stating that possession of a
stolen motor vehicle is no longer lesser included offense of
theft; due to increased penalty it is now treated as a more
serious offense than theft). The offenses of vehicular hijacking
and aggravated hijacking are the greater offenses because in
addition to including unauthorized possession and knowledge that
the motor vehicle was stolen, they require facts such as the
taking of the vehicle from a person by force or threat of force
(720 ILCS 5/18-3 (vehicular hijacking)) and being armed with a
dangerous weapon (720 ILCS 5/18-4 (aggravated vehicular
hijacking)).
The State, in reliance on People v. Bivens, 156 Ill. App. 3d
222, 509 N.E.2d 640 (1987); People v. Cozart, 235 Ill. App. 3d
1076, 601 N.E.2d 1325 (1992); and People v. Cramer, 85 Ill. 2d 92, 421 N.E.2d 189 argues that possession of a stolen motor
vehicle is not a lesser included offense of robbery or vehicular
hijacking. According to the State, those cases hold that
whenever a defendant's unauthorized possession is premised on
defendant's theft of the vehicle, proof of the offense of
possession of a stolen motor vehicle requires proof of theft.
The State further argues that since theft is a specific intent
offense, the inclusion of that element transforms the offense of
possession of a stolen motor into a specific intent crime that
would require proof of an element different from the general
intent offenses of robbery and vehicular hijacking. See People
v. Baker, 72 Ill. App. 3d 682, 391 N.E.2d 91 (1979). That
argument and People v. Baker were rejected in People v. Jones,
149 Ill. 2d 288, 595 N.E.2d 1071 (1992). The Jones court held
that the specific intent offense of theft is a lesser included
offense of a general intent offense of armed robbery despite the
differing mental states. Jones, 149 Ill. 2d at 297-98, 595 N.E.2d at 1075 (stating that the armed robbery statute implicitly
includes the mental state of intent to permanently deprive the
victim of the property).
In the instant case, the defendant was charged with
possession of a stolen motor vehicle. The same facts that would
prove the vehicular hijacking offense, the taking of a motor
vehicle by force or threat of force, would establish unauthorized
possession and knowledge that the vehicle was stolen. No
additional facts are needed to establish the possession offense;
thereby making it a lesser included offense of the vehicular
hijacking offense and the related aggravated hijacking offense.
As a result, these three offenses are the same under the
Blockburger test and defendant's plea of guilty to the Lake
County charge of possession of a stolen motor vehicle prevents
the State from pursuing successive prosecutions for the greater
offenses of vehicular hijacking and aggravated vehicular
hijacking. See Rutledge, U.S. , 116 S. Ct. 1241, 134 L. Ed. 2d 419; Brown, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187; Blockburger, 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 2d 306.
In reaching this conclusion, we reject two additional
contentions raised by the State in support of the denial of
defendant's motion to dismiss. One contention is that the
Blockburger test does not apply to the robbery related charges
because those charges cited the defendant's taking of the keys to
the 1991 Ford Escort and not the defendant's taking of the 1991
Ford Escort, the act alleged in the earlier information charging
possession of a stolen motor vehicle. We agree with the
defendant that the State's argument in this regard is specious.
Defendant's possession of the automobile included the taking of
keys to the automobile. The Blockburger double jeopardy test
focuses on the elements of the crime and not on details of
conduct. United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849,
125 L. Ed. 2d 556 (1993). The taking of the keys occurred when
the automobile was stolen and is part of that same offense. It
is a detail of conduct and not an element of the crime.
Moreover, as held in Ashe v. Swenson, 397 U.S. 436, 90 S. Ct. 1189, 25 L. Ed. 2d 469 (1970), principles of collateral estoppel
embodied in the double jeopardy clause bar multiple prosecutions
for the same offense committed upon several individuals. For
similar reasons, multiple prosecutions based upon the taking of
various items connected with the stolen vehicle would be barred
as well. See also Brown v. Ohio, 432 U.S. at 169, 97 S. Ct. at
2227, 53 L. Ed. 2d 187 (1977) (stating that double jeopardy
clause cannot be avoided by dividing single crime into "series of
temporal or spatial units").
The State finally contends that the double jeopardy bar
should not apply in the instant case because prosecution of the
robbery, armed robbery, vehicular hijacking and aggravated
hijacking offenses could not occur in Lake County, the site of
defendant's initial arrest and first prosecution, since those
offenses occurred in Cook County. According to the State, the
fact that the Cook County offenses could not be prosecuted in
Lake County demonstrates that those offenses are not the same as
the possession of a motor vehicle offense which could be
prosecuted in Lake County.
Section 1-6 of the Criminal Code of 1961 provides that
generally, "criminal actions shall be tried in the county where
the offense was committed, except as otherwise provided by law."
720 ILCS 5/1-6(a) (West 1994). Subdivision (g) of the that
statute states that "[a] person who commits theft may be tried in
any county in which he exerted control over such property." 720
ILCS 5/1-6(g) (West 1994). Venue is proper in any county where
any element of the offense was committed. People v. Glass, 239
Ill. App. 3d 916, 606 N.E.2d 655 (1992); People v. Lambert, 195
Ill. App. 3d 314, 552 N.E.2d 300 (1990).
Here, the defendant took the 1991 Ford Escort from its owner
in Cook County. The defendant was arrested in Lake County while
in possession of the 1991 Ford Escort. Under section 1-6(g) of
the Criminal Code of 1961, had the defendant been charged with
theft, that offense could have been prosecuted in Lake County
because the defendant exerted control over the stolen vehicle in
that county. Since theft is an element or lesser included
offense of robbery (Jones, 149 Ill. 2d 288, 595 N.E.2d 1071;
People v. Thomas, 164 Ill. App. 3d 670, 516 N.E.2d 901 (1987))
and since robbery and vehicular hijacking are virtually identical
offenses such that theft would be an element of vehicular
hijacking (People v. Aguilar, 286 Ill. App. 3d 493, 676 N.E.2d
324), the latter offense as well as the aggravated vehicular
hijacking offenses could have been prosecuted in Lake County, the
county where the defendant exerted control over the stolen
vehicle. Thus, the State's argument in this regard is without
merit.
For the foregoing reasons, the judgment of the Circuit Court
of Cook County is reversed and remanded for further proceedings
consistent with this order.
Reversed and remanded.
GORDON, J., with COUSINS, P.J. and LEAVITT.

[fn1]We will not consider the offenses of unlawful use of weapons
by a felon, armed violence based on vehicular hijacking and armed
violence based on robbery. The defendant's motion to dismiss did
not include the charge of unlawful use of weapons by a felon; and
the State concedes that the two armed violence counts must be
dismissed on the basis of unconstitutional disproportionality of
sentences as held in People v. Lewis, 175 Ill. 2d 412, 677 N.E.2d 830 (1996) and People v. Beard, Ill. App. 3d , 679 N.E.2d 456 (1997).
[fn2]The subsequent indictments on the robbery and related
robbery offenses charged the defendant with taking the keys to
the motor vehicle and not the taking of the motor vehicle itself.
The robbery and armed robbery statutes exclude the taking of a
motor vehicle. That conduct is regulated under the vehicular
hijacking statutes. Compare 720 ILCS 5/18-1 and 5/18-2 with
5/18-3 and 5/18-4 (West 1994). As will be discussed later in
this order, the double jeopardy clause would apply to bar
prosecution of the robbery charges even though the alleged
wrongful conduct was the taking of the keys to the car rather
than the taking of the car which was the conduct alleged in the
first prosecution.

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