No. 3–09–0721
Opinion filed June 27, 2011
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD JUDICIAL DISTRICT
A.D., 2011
THE PEOPLE OF THE STATE OF
ILLINOIS,
)
Appeal from the Circuit Court
)
of the 10th Judicial Circuit
)
Peoria County, Illinois
Plaintiff-Appellee,
)
)
v.
)
No. 09–CF–412
)
DENARIUS BARNETT,
)
Honorable
)
Michael E. Brandt
Defendant-Appellant.
)
Judge, Presiding.
______________________________________________________________________________
JUSTICE WRIGHT delivered the judgment of the court, with opinion
Justices McDade and O’Brien concurred in the judgment and opinion.
______________________________________________________________________________
OPINION
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 singlecount 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.
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.
FACTS
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 “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.
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.
Allen testified that on April 7, 2009, he observed two men jump out of the backseat of a
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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.
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.
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.
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.
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
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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)).
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 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.
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
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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.
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.)
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.
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
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consider the testimony and exhibits received in court after reviewing the written instructions of
law.
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.”
On August 13, 2009, defendant filed a written motion for judgment notwithstanding
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.
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.
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 verdict and defendant’s alternative request for a new trial.
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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.
ANALYSIS
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.
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-included
offense of armed robbery.”
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
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robbery. Both parties submitted supplemental authority and written argument to address this
court’s concerns following oral arguments.
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).
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.
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).
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
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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).
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.
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 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.”
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
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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.
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 5/182)(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:
Ҥ 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
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subsection of the statute alleged to have been violated in order to support an armed robbery
conviction.
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.
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 of setting out
a two-count indictment, the State elected to obtain a single-count indictment that simultaneously
described the object as a both 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.
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
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)).
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by this court as a violation of section 18-2(a)(1), a lesser included offense of the charged
violation.
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.
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 182(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).
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 5/182(a)(2) (West 2008). Thus, we conclude that a statutory violation of section 18-2(a)(1) does not
12
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 182(a)(1) as a lesser included offense to the charged violation based on section 18-2(a)(2).
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).
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).
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-ornothing approach, similar to the defense in this case.
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.
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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.
CONCLUSION
The judgment of the circuit court of Peoria County is reversed.
Reversed and remanded with directions.
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