author: PRESIDING JUSTICE UNVERZAGT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT COVELLI, Defendant-Appellant.-THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. ROBERT COVELLI, Defendant-Appellee.
    Second District
    Nos. 2—87—0459, 2—87—0545 cons.
    Opinion filed June 15, 1989.
    — Rehearing denied July 11, 1989.

      G. Joseph Weller and Steven E. Wiltgen, both of State Appellate Defender’s Office, of Elgin, and Bravos & Trapp, Ltd., of Wheaton (Zachary M. Bravos, of counsel), for appellant.
    James E. Ryan, State’s Attorney, of Wheaton (William L. Browers and Cynthia N. Schneider, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

The defendant, Robert Covelli, was charged by indictment in the circuit court of Du Page County on June 28, 1985, with six counts of murder and one count of armed robbery (Ill. Rev. Stat. 1987, ch. 38, pars. 9 — 1(a)(1), (a)(2), (a)(3), 18 — 2(a)) arising from the killing and armed robbery of Cynthia Princeton on January 2, 1982, at a pawnshop in Elmhurst, Illinois. The armed robbery indictment alleged that the time in which the instant prosecution was to be commenced did not include the period July 2, 1982, to July 29, 1984, inasmuch as the former date was the date the defendant was indicted in Federal court on charges arising out of this same incident and the latter was the date his conviction was affirmed in United States v. Covelli (7th Cir. 1984), 738 F.2d 847.

On December 18, 1986, the defendant filed a motion to dismiss all charges against him on the ground of violations of his State and Federal constitutional right to a speedy trial. In a second motion filed that same date, he sought dismissal of counts V, VI and VII inasmuch as the prosecution for armed robbery did not commence within the applicable three-year statutory limitations period (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 5(b)). Defendant also sought dismissal at that time of all charges on the ground of former jeopardy as a result of the Federal court prosecution (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(c)(1)). On January 8, 1987, the State moved to strike all motions as being untimely, and to strike the defendant’s speedy trial claim on the basis he failed to allege prejudice.

The day after a hearing held on May 11, 1987, the court rejected the State’s timeliness argument, granted the defendant’s motion to dismiss count VI (armed robbery) for failure to comport with the requirements of the statute of limitations, and denied all other motions to strike and dismiss. Pursuant to Supreme Court Rule 604, the State appeals the dismissal of count VI, and the defendant appeals the denial of his motions to dismiss on the ground of former jeopardy. (107 Ill. 2d Rules 604(a)(1), (f).) The cases were consolidated for appeal on the State’s motion.

We first address the defendant’s motion to strike page 4 of the State’s answer brief titled “Corrected Statement of Facts” which was ordered to be taken with the case. In its corrected statement, the State asserts the “Statement of Facts” in the defendant’s brief filed April 28, 1988, “is inaccurate and incomplete, in that it does not summarize the whole procedural history of the defendant’s attempts to attain dismissal of the charges against him.” Defendant argues the State’s corrected statement does not recite in what regard he has misstated or omitted facts and contends its motions should thus be regarded as a type of harassment which is violative of the Code of Professional Responsibility. (107 Ill. 2d Canon 7.) Inter alia, Canon 7 prohibits a lawyer during the course of his representation of a client from asserting a position “when he knows or when it is obvious that such action would serve merely to harass *** another.” (107 Ill. 2d R. 7 — 102(a)(1).) Defendant asserts the State’s failure to specifically identify his purported inaccuracies or omissions renders its corrected statement nothing more than “a suggestion that he is trying to hoodwink the court and may be considered a type of harassment.”

In its objection to the defendant’s motion, the State points out it provided a complete statement of facts in its appellant’s brief in the consolidated appeal (No. 2 — 87—0545) which was filed on February 29, 1988 (prior to the defendant’s appeal), and it did not seem necessary to again summarize the facts in order to illustrate the defendant’s error.

We agree with the State that the defendant’s statement of facts is inaccurate in that it is incomplete. Defendant filed not one motion to dismiss, as implied by his statement of facts, but motions “A” through “D” which were grounded on three different theories. The court did not simply “den[y] the motion” as stated by the defendant; rather, the defendant’s motions to dismiss were denied in part and granted in part inasmuch as the court granted his motion to dismiss count VI for failure to comply with the statute of limitations. The fact the court granted the defendant’s motion to dismiss count VI is the basis for the State’s argument that the first issue raised by the defendant in his appeal — that count VI is barred under former jeopardy principles — is moot. We find no error in the manner in which the State has presented its corrected statement. The causes were consolidated for appeal on the State’s motion on August 3, 1987, and the State’s brief in No. 2 — 87—0545, which included its complete “Statement of Facts,” was filed before the defendant’s brief in No. 2 — 87— 0459. Accordingly, the basis for the State’s criticism of the defendant’s statement of facts as “inaccurate and incomplete” is as obvious to this court as it must have been or should have been to the defendant.

We conclude the basis for the defendant’s motion to strike page 4 of the State’s answer brief is unfounded, and the motion is denied.

STATE’S APPEAL

NO. 2-87-0545

On the defendant’s motion, the trial court dismissed the armed robbery indictment against him for failure to comply with the applicable three-year statute of limitations. (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 5(b).) Rejecting the State’s argument the limitations period was tolled during the time the defendant was being prosecuted in Federal court, the court ruled the exclusion from the limitations period provided in section 3 — 7 of the Criminal Code of 1961 (the Code) (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 7(c)) applies only to prosecutions pending in the State of Illinois.

Preliminarily, the State argues the defendant’s motion to dismiss was untimely and should not have been entertained by the trial court. It points to subsection 114 — 1(b) of the Code, which provides:

“The court shall require any motion to dismiss to be filed within a reasonable time after the defendant has been arraigned. Any motion not filed within such time or an extension thereof shall not be considered by the court and the grounds therefor, except as to subsections (a)(6) and (a)(8) of this Section, are waived.” Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1(b).

The State notes the defendant was arraigned on December 3, 1985, and his motion to dismiss was not filed until more than one year later on December 18, 1986. Thus, it contends, the court should have found the defendant had waived the issue.

The defendant answers that the State acquiesced in the late filing by failing to object to the court’s determination that pretrial motions need not be filed until after the completion of discovery. Defendant further argues it was within the court’s discretion to extend the time for filing pretrial motions.

The State’s first objection to the pretrial motion procedure was not made until a September 26, 1986, hearing. Substantial discovery had been completed by then, and the court required pretrial motions to be filed. The defendant subsequently filed a motion to suppress on October 10, and his several motions to dismiss were filed on September 18. On January 8, 1987, the State moved to strike the motions to dismiss for untimeliness, and the hearing on the motions was held on May 11. In denying the State’s motion to strike for untimeliness, the court acknowledged that it had to “share some of the problem [of untimeliness] and delays in [the] matter.” We find the defendant did not waive the limitations issue by his ostensibly untimely filed motions to dismiss.

It is generally true, as the State argues, that the filing of the instant motion was not dependent upon the completion of discovery inasmuch as the dates of the crime and the indictment were known from the beginning. However, subsection 114 — 1(b) of the Code clearly affords the trial court discretion to extend the time for filing, and it did so here. As the defendant notes, the State has not argued the court did not have this discretion or that it was abused in this cause. The court may have felt the procedure it prescribed was warranted in light of the fact that defendant had three different appointed attorneys and was in the process of obtaining transcripts of his previous prosecution in Federal court which could possibly have been admitted to establish a double jeopardy claim under subsection 114 — 1(a)(2) of the Code. (Ill. Rev. Stat. 1987, ch. 38, par. 114 — 1(a)(2); see People v. Rothermel (1982), 88 Ill. 2d 541, 548.) That aside, it is evident from the record the defendant believed discovery was to be completed before pretrial motions were to be filed. When the court required on September 26 that such motions be filed, the defendant filed his motion to suppress on October 10 and the instant motion on December 18.

No similar pretrial motion deferral procedure is evident in People v. Dimond (1977), 54 Ill. App. 3d 439, which is relied on by the State in support of its argument. In that case, the defendant was arraigned on June 1, 1976, and on September 22 he filed a motion to dismiss on the ground he was denied his right to communicate with counsel. After concluding the trial court did not err in denying the defendant’s motion inasmuch as the ground specified is not one specifically enumerated in section 114 — 1 nor did it amount to a clear denial of due process, the court in dictum determined the trial court also properly denied the motion to dismiss as being untimely. We find Dimond distinguishable and not controlling under the circumstances presented here. What constitutes a “reasonable time” necessarily falls within the discretion of the trial court. It is axiomatic in such instances that the trial court’s decision will not be reversed on review unless it constitutes an abuse of discretion. The court’s willingness here to accept a share of the blame for the defendant’s failure to file his motions to dismiss at an earlier date suggests the defendant, was indeed complying in good faith with what he perceived to be the scope and extent of the procedure prescribed by the court. We note the State does not reply to the defendant’s argument that it acquiesced in the procedure prescribed by the court. It is well established that a party may not complain on appeal of a procedure at trial in which he acquiesced. See People v. Love (1986), 140 Ill. App. 3d 651; People v. Benka (1983), 117 Ill. App. 3d 221.

We conclude the defendant’s motion to dismiss was not untimely.

On the merits of the issue, the State next argues it was error for the court to dismiss count VI for armed robbery in light of the exclusion from the limitations period which is provided in section 3 — 7 of the Code. In pertinent part, that section provides:

“The period within which a prosecution must be commenced
does not include any period in which:
* * *
(c) A prosecution is pending against the defendant for the same conduct, even if the indictment or information which commenees the prosecution is quashed or the proceedings thereon are set aside, or are reversed on appeal.” Ill. Rev. Stat. 1987, ch. 38, par. 3 — 7(c). .

The State contends the term “prosecution” used in this subsection should be broadly construed to include Federal as well as Illinois prosecutions, and, thus, the period of the defendant’s prosecution and appeal in Federal district court was excludable from the three-year limitations period. The defendant argues, as he did below, that the definitions of the terms “prosecution” and “offense” in the Code support the finding that only the period during which a prosecution in Illinois is pending is excluded from the limitations period. The State argues this strict adherence to statutory definitions is not required “when a particular context clearly requires a different meaning.” (Ill. Rev. Stat. 1987, ch. 38, par, 2 — 5.) It posits that such a “different meaning” is required here to encompass prosecutions in foreign jurisdictions. It points to situations in which additional charges might be added to a pending prosecution even if such additional charges would otherwise be outside the scope of the statute of limitations and regardless of the jurisdiction in which the original charges were brought. It further argues that delay in bringing a prosecution may be justified where the prosecutor was unaware of the Illinois involvement in the offense. It asserts the prosecutor may choose to await the outcome of the trial in the other jurisdiction before bringing charges in Illinois or may find it impossible to present the trial in Illinois when the necessary evidence is situated in another jurisdiction.

The State represents that it has researched the question and found no authority adopting or rejecting its argument. The scope of the State’s search is not known. The defendant represents he has been unable to find any Illinois authority on this question. When no Illinois authority is in point, parties to an appeal have an obligation to cite existing appropriate authority from other jurisdictions when available. (Kelley v. Kelley (1925), 317 Ill. 104; In re Estate of Melvin (1972), 5 Ill. App. 3d 463.) Our research has failed to uncover any Illinois or foreign jurisdiction authority on this question. Accordingly, unencumbered by case law, we are guided by principles of statutory construction.

“ ‘The language of a statute must be given its plain and ordinary meaning. “*** the intention of the legislature should be ascertained ***. This is to be done primarily from a consideration of the legislative language itself, which affords the best means of its exposition, and if the legislative intent can be ascertained therefrom it must prevail and will be given effect without resorting to other aids for construction.” ’ ” (People v. Moore (1978), 69 Ill. 2d 520, 523, quoting Franzese v. Trinko (1977), 66 Ill. 3d 136, 139-40.)

Words employed in a statute should be given their plain, ordinary or commonly accepted meaning unless to do so would defeat legislative intent. (People v. Hicks (1984), 101 Ill. 2d 366; People v. Crete (1985), 133 Ill. App. 3d 24, aff’d (1986), 113 Ill. 2d 156.) If there are specific definitions of any terms within an enactment, those definitions, when reasonable, will be sustained for purposes of the act to the exclusion of hypothetical indulgences. (Davis v. Chicago Housing Authority (1988), 176 Ill. App. 3d 976, 979; County of Lake v. Zenko (1988), 174 Ill. App. 3d 54, 60.) In addition to the language used, the court may also consider the evil to be remedied or the object to be attained by the statute. People v. Dednam (1973), 55 Ill. 2d 565.

The statute of limitations applicable to criminal cases is enacted for the purpose of allowing the accused to defend himself while the charges are new and the evidence can more readily be obtained and is not grounded upon mere delay in the prosecution but, rather, upon delay in commencing the same. (People v. Buckner (1917), 281 Ill. 340.) Statutes of limitations are to be liberally construed in favor of a defendant:

“A statute of limitation in criminal cases is an act of grace; a surrendering by the sovereign of its right to prosecute. The statute is not a process to be strictly and grudgingly applied, but an amnesty declaring that after a certain time oblivion shall be cast over the offense and that the offender may from thenceforth cease to preserve the proofs of his innocence, for the proofs of his guilt are blotted out. Such statutes must be liberally construed, not only because such liberality of construction belongs to all acts of amnesty and grace, but because the very existence of the statute is a recognition by the legislature of the fact that time gradually wears out proofs of innocence and a notification that a fixed and positive period established by it destroys all proofs of guilt.” People v. Ross (1927), 325 Ill. 417, 421.

With these principles in mind, we agree with the defendant that only the period during which a prosecution is pending in Illinois may be excluded from the limitations period. Defendant’s argument is grounded on the specific definition of the terms “prosecution” as used in section 3 — 7 and “offense,” which is used in the definition of “prosecution.” “Prosecution” is defined as “all legal proceedings by which a person’s liability for an offense is determined, commencing with the return of the indictment or the issuance of the information, and including the final disposition of the case upon appeal.” (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 38, par. 2 — 16.) “ ‘Offense’ means a violation of any penal statute of this State.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 38, par. 2 — 12.

We reject the State’s argument that the period of the pendency of the prosecution against the defendant in the United States District Court tolled the running of the limitations period in Illinois. Such a construction of the statute applied to the instant facts would amount to an extension of the time period within which a prosecution must be commenced, a matter which is already specifically regulated by the Code (Ill. Rev. Stat. 1987, ch. 38, par. 3-6).

We conclude the armed robbery indictment against the defendant properly was dismissed.

DEFENDANT’S APPEAL

NO. 2-87-0459

The defendant’s first contention is that count VI charging him with armed robbery is barred on statutory double jeopardy grounds (Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(c)(1)) inasmuch as he was convicted in Federal court of a violation of the Hobbs Act (18 U.S.C. §1951 (1982)), which included robbery, a lesser-included offense of armed robbery (People v. Willis (1977), 50 Ill. App. 3d 487). (See United States v. Covelli (7th Cir. 1984), 738 F.2d 847.) The State argues this issue is moot, inasmuch as the court dismissed count VI, albeit on the grounds it was time barred. An issue is moot when it no longer presents an actual controversy over the rights of any party. (People v. Meece (1987), 162 Ill. App. 3d 658, 660.) Inasmuch as we have decided above that count VI was properly dismissed as being time barred, we ordinarily would consider the instant issue moot. However, defendant’s second contention on appeal relies in part upon the argument he presents in connection with this first issue, and we proceed to consider it on the merits.

The defendant’s contention is that because his conviction in Federal court under the Hobbs Act included proof that he committed robbery, he could not thereafter be prosecuted in the circuit court of Du Page County for armed robbery as a result of the same incident.

The fifth amendment guarantee against double jeopardy (U.S. Const., amend. V), which is enforceable against the States under the fourteenth amendment (U.S. Const., amend. XIV; Benton v. Maryland (1969), 395 U.S. 784, 23 L. Ed. 2d 707, 89 S. Ct. 2056), provides three types of protection. It protects against a second prosecution for the same offense after (1) acquittal or (2) conviction and (3) multiple punishments for the same offense. (North Carolina v. Pearce (1969), 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072.) To give rise to a valid claim of double jeopardy, be it based on constitutional or statutory grounds, it must be shown that the two offenses charged are the same offense. People v. Johnson (1978), 63 Ill. App. 3d 248, 250.

The test to determine whether two offenses are really the same offense for purposes of double jeopardy was enunciated in Blockburger v. United States (1932), 284 U.S. 299, 76 L. Ed. 306, 52 S. Ct. 180, to wit, if the statutory elements of each of the offenses require an element of proof which the other offense does not include, then, for purposes of double jeopardy analysis, the offenses are not the same. (Blockburger, 284 U.S. at 304, 76 L. Ed. at 309, 52 S. Ct. at 182; see also Brown v. Ohio (1977), 432 U.S. 161, 166, 53 L. Ed. 2d 187, 194-95, 97 S. Ct. 2221, 2225-26; People v. Kaye (1987), 154 Ill. App. 3d 562, 568.) Although successive prosecutions of a defendant for the same offense by separate sovereigns, such as the Federal government and the State, are permitted (Bartkus v. Illinois (1959), 359 U.S. 121, 3 L. Ed. 2d 684, 79 S. Ct. 676), section 3 — 4 of the Code in pertinent part prohibits such successive prosecutions “unless each prosecution requires proof of a fact not required in the other prosecution.” Ill. Rev. Stat. 1987, ch. 38, par. 3 — 4(c)(l).

A violation of the Hobbs Act is established by proof of (1) interference with commerce by robbery or extortion or attempting or conspiring to do either; or (2) the commission or threat of physical violence in furtherance of a plan to interfere with interstate commerce. (18 U.S.C. § 1951(a) (1982); People v. Kaye (1987), 154 Ill. App. 3d 562, 568-69.) As defined in section 1951 of the Hobbs Act, “ ‘robbery’ means the unlawful taking or obtaining of personal property from a person or in the presence of another, against his will, by means of actual or threatened force.” (18 U.S.C. § 1951(b) (1982).) In Elinois, the offense of armed robbery is established by proof that a person committed robbery “while he or she carries on or about his or her person, or is otherwise armed with a dangerous weapon.” (Ill. Rev. Stat. 1987, ch. 38, par. 18 — 2.) A person commits robbery “when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.” Ill. Rev. Stat. 1987, ch. 38, par. 18 — 1.

In defining the elements of the offenses for double jeopardy purposes:

“[W]e look not only to the statutory elements but also to the elements of the species of lesser-included offenses ***. *** [I]f a person is convicted of the more serious offense, he may not be subsequently prosecuted for an offense consisting solely of one or more of the elements of the crime for which he has already been prosecuted. *** [T]he reverse is also true. If the defendant has been convicted of a lesser-included offense, he may not be thereafter prosecuted for the greater offense.” (People v. Jackson (1987), 118 Ill. 2d 179,187.)

As defendant notes, robbery is a lesser-included offense of armed robbery. People v. Willis (1977), 50 Ill. App. 3d 487.

The question presented, then, is whether the defendant’s impending prosecution in Illinois for armed robbery is barred because it amounts to a prosecution of the same offense of which he was convicted in Federal court. More specifically, the question is whether the Hobbs Act offense and the armed robbery offense each requires an element of proof which the other offense does not include.

In support of his position that the two offenses are the same, defendant argues that the element of proof of interference with commerce required in the Hobbs Act violation is merely a “jurisdictional” requirement and not a “genuine” element which substantively distinguishes a Hobbs Act robbery from' a State armed robbery prosecution. Defendant notes it has been recognized that almost all Federal criminal statutes are drafted so as to require some proof of a connection with Federal interests (United States v. Perez (2d Cir. 1970), 426 F.2d 1073, aff’d (1971), 402 U.S. 146, 28 L. Ed. 2d 686, 91 S. Ct.1357), and relies on United States ex rel. Woollums v. Greer (7th Cir. 1984), 728 F.2d 918, in support of his position that the element of interference with commerce is jurisdictional and not substantive.

We find defendant’s argument unpersuasive. At issue in Perez was whether the extortionate credit transactions statute under which the defendant was convicted was unconstitutional in prohibiting all extortionate credit transactions without requiring a showing in a particular case of an effect on interstate commerce or a connection with the Bankruptcy Act. (Perez, 426 F.2d at 1074.) The court conceded at the outset:

“[A]lmost all Federal criminal statutes are so drafted that the connection with Federal interests — the Federal jurisdictional peg — must be proved in each case because such connection is incorporated into the definition of the offense. See, e.g., The Hobbs Act, 18 U.S.C. §1951 (obstructing or affecting interstate commerce or movements of commodities in commerce by robbery or extortion).” (Emphasis added.) Perez, 426 F.2d at 1075.

Perez continued, however, noting that proof of this Federal jurisdictional peg is not constitutionally required, and “Congress can regulate intrastate transactions if a proper determination has been made that as a class such transactions affect or involve interstate commerce.” (Emphasis in original.) (Perez, 426 F.2d at 1077.) Quite clearly, then, Perez supports the conclusion that proof that commerce was obstructed, delayed or affected is a substantive element of a Hobbs Act offense. 426 F.2d at 1075; accord Stirone v. United States (1960), 361 U.S. 212, 218, 4 L. Ed. 2d 252, 257, 80 S. Ct. 270, 274; People v. Kaye (1987), 154 Ill. App. 3d 562, 568-69.

United States ex rel. Woollums v. Greer, also cited by the defendant, does not support a contrary conclusion. In that case, the defendant was charged under a Quincy, Illinois, ordinance for interfering with a city police officer after the defendant was found tampering with an automobile. The defendant falsely claimed the automobile belonged to his brother and subsequently struck the officer, then fled, and then kicked the officer in the ensuing pursuit and scuffle. The Quincy ordinance provided “ ‘it shall be unlawful to interfere with or hinder any officer or employee of this city while engaged in the duties of his office.’ ” (Woollums, 728 F.2d at 922.) The defendant posted bond, and when he failed to appear, the court entered an ex parte judgment against him in the amount of $100 and ordered his bond to be applied in satisfaction of the judgment.

The defendant was later indicted and convicted by a jury on a charge of aggravated battery arising out of the same incident in that he “intentionally and knowingly, without legal justification, caused bodily harm to an individual he knew to be a peace officer, while the officer was engaged in the execution of his official duties.” (Woollums, 728 F.2d at 922.) His conviction and sentence were affirmed (People v. Woollums (1978), 63 Ill. App. 3d 602), and the Illinois Supreme Court denied leave to appeal. His amended petition for post-conviction relief was dismissed.

He then filed a petition for writ of habeas corpus contending in part that his prosecution for and conviction of aggravated battery after the entry of the ex parte judgment on the ordinance violation for interfering with an officer violated the double jeopardy clause. The petition was denied by a United States magistrate who found there were no “multiple punishments” because the forfeiture of the defendant’s bail did not constitute criminal punishment. The magistrate also rejected the defendant’s argument that interfering with an officer is a lesser-included offense of aggravated battery because the ordinance requires proof that the person interfered with was a city officer or employee whereas the statute did not.

The court of appeals readily rejected the magistrate’s reliance on the “local connection” distinction to find the existence of two offenses. The court found that to accept this distinction would impermissibly undercut the Supreme Court’s decision in Waller v. Florida (1970), 397 U.S. 387, 25 L. Ed. 2d 435, 90 S. Ct. 1184. It was determined in Waller that successive prosecutions in municipal and State courts are not permitted as being prosecutions by separate sovereign entities inasmuch as municipal courts are part of one sovereign judicial system: the State.

“ ‘Political subdivisions of State — counties, cities, or whatever — *** have been traditionally regarded as subordinate governmental instrumentalities created by the State to assist in the carrying out of state governmental functions.’ ” Waller, 397 U.S. at 392, 25 L. Ed. 2d at 439, 90 S. Ct. at 1187, quoting Reynolds v. Sims (1964), 377 U.S. 533, 575, 12 L. Ed. 2d 506, 535, 84 S. Ct. 1362, 1388.

Accordingly, Woollums held that successive prosecutions under local and State laws are not permitted solely because establishment of the local offense requires proof of “ ‘local connection.’ ” Woollums, 728 F.2d at 923.

The instant cause, of course, falls within the dual sovereignty doctrine (Abbate v. United States (1959), 359 U.S. 187, 3 L. Ed. 2d 729, 79 S. Ct. 666; Bartkus v. Illinois (1959), 359 U.S. 121, 3 L. Ed. 2d 684, 79 S. Ct. 676), which permits successive prosecutions by the State and Federal governments since they are separate sovereigns.

We conclude the defendant’s prosecutions under the Hobbs Act and for armed robbery each require proof of an element which the other does not. The Hobbs Act requires proof of interference with commerce, and armed robbery requires proof that the offender carried or was otherwise armed with a dangerous weapon.

Thus, had the court not dismissed the armed robbery count against the defendant as being time barred, that count would not have been barred on double jeopardy grounds.

The defendant’s next contention — premised upon a resolution of the preceding issue favorable to him — is that counts V and VII charging felony murder based on armed robbery must be dismissed. His argument is that armed robbery is a lesser-included offense of felony murder and prosecution of him for armed robbery is barred by his former prosecution for robbery under the Hobbs Act.

As discussed above, however, prosecution of the defendant for armed robbery would not be barred on double jeopardy ground because each prosecution required proof of an element which the other did not. Similarly here, the Hobbs Act element that the offense affected interstate commerce is not one which is required in a felony-murder prosecution, and the felony-murder-based-on-armed-robbery elements that the defendant was armed with a dangerous weapon and a death occurred while he was attempting to or was committing the armed robbery are not required in a Hobbs Act prosecution. Consequently, the two offenses are not the same for double jeopardy purposes, and the court did not err in not dismissing them.

The defendant’s final contention is that counts I through IV charging him with murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9— 1(a)(1), (a)(2)) should have been dismissed because the murder was one of the overt acts alleged in the Federal charge of conspiracy to transport stolen merchandise in interstate commerce. (Covelli, 738 F.2d at 855 18 U.S.C. §§2314, 371 (1982).) We disagree.

The Federal indictment charged defendant with conspiracy:

“To transport in interstate commerce goods, wares, merchandise, and money of the value of $5,000.00 or more, knowing the same to have been stolen, *** and to receive, conceal, store, sell and dispose of goods, wares, merchandise, and money of the value of $5,000.00 or more which were moving as, were part of, or which constituted interstate commerce, knowing the same to have been stolen.

* * *

In furtherance of the conspiracy and to effect the objects thereof, at the times herein mentioned, the [defendant] did commit certain overt acts, including but not limited to the following:

1. On January 2, 1982, defendant Robert Frank Covelli did murder Cynthia Gonzalez Princeton in order to steal jewelry, coins, gems, gold, currency, and other goods located at the P.A.G. Ltd., Elmhurst, Illinois.” (Emphasis added.)

It is clear from the court’s opinion in United States v. Covelli (7th Cir. 1984), 738 F.2d 847, 855, that evidence of Princeton’s murder was presented at the defendant’s trial in Federal court.

Count I for murder charged the defendant shot Cynthia Princeton “without lawful justification and with the intent to kill” her. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1).) Count II charged he shot Cynthia Princeton “without lawful justification and with the intent to do great bodily harm” to her. (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1).) Count III charged he shot Cynthia Princeton “without lawful justification *** knowing said act would cause [her] death.” (Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(1).) Count IV charged he shot Cynthia Princeton “without lawful justification *** knowing said acts [sic] created the strong probability of death or great bodily harm” to her. Ill. Rev. Stat. 1981, ch. 38, par. 9 — 1(a)(2).

Relying on Harris v. Oklahoma (1977), 433 U.S. 682, 53 L. Ed. 2d 1054, 97 S. Ct. 2912, and Illinois v. Vitale (1980), 447 U.S. 410, 65 L. Ed. 2d 228, 100 S. Ct. 2260, the defendant argues it does not matter that the government could have charged an act other than Cynthia Princeton’s murder as an act in furtherance of the conspiracy. (In fact, the Federal indictment did allege other overt acts in furtherance of the conspiracy.) In Harris, the court held that the defendant’s conviction of felony murder based on a killing in the course of a robbery with firearms barred a subsequent prosecution against the same defendant for the underlying robbery with firearms, even though any number of felonies could underlie a felony-murder prosecution. As explained in Vitale, the court treated a killing in the course of such a robbery as itself a separate statutory offense and the underlying robbery as a species of lesser-included offense. Vitale, 447 U.S. at 420, 65 L. Ed. 2d at 238,100 S. Ct. at 2267.

Defendant fails to refute, however, the State’s argument that the overt-act murder charged in the Federal indictment does not allege any specific intent as do each of the four Illinois murder counts. As the State also points out, the defendant’s argument as to this issue does not include counts V and VII of the Illinois indictment, which charged him with felony murder. It has been held that a defendant may be convicted of both murder and felony murder since each offense requires an element of proof which the other does not. (People v. Miller (1980), 89 Ill. App. 3d 973, cert, denied (1981), 454 U.S. 871, 70 L. Ed. 2d 175, 102 S. Ct. 339.) To be convicted of murder under the felony-murder doctrine, the accused need not have intended to kill. People v. Moore (1983), 95 Ill. 2d 404.

Because the overt act underlying the defendant’s Federal conspiracy conviction and the Illinois murder charges each contain an element of proof which the other does not, they are not the same offense, and no dismissal on double jeopardy grounds is warranted.

The judgment of the circuit court of Du Page County is affirmed.

Judgment affirmed.

INGLIS and REINHARD, JJ., concur.


source: Caselaw Access Project

author: JUSTICE NASH

license: Public Domain

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellant, v. JERRY J. MANNINO, Defendant-Appellee.
    Second District
    No. 2—88—0515
    Opinion filed June 6, 1989.

      James E. Ryan, State’s Attorney, of Wheaton (Barbara A. Preiner, Assistant State’s Attorney, and William L. Browers and Marshall M. Stevens, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
    No brief filed for appellee.
   JUSTICE NASH

delivered the opinion of the court:

The State appeals from an order of the circuit court which rescinded the statutory summary suspension of the driver’s license of the defendant, Jerry Mannino. The State’s sole contention in this court is that the trial court erred in rescinding the summary suspension because the court improperly concluded that the “.18 percent” figure contained on the breathalyzer printout form fell below the statutory “0.10” threshold of alcohol concentrate in the defendant’s breath necessary to establish the statutory offense of operating a motor vehicle with an alcohol concentration in excess of .10 (Ill. Rev. Stat. 1987, ch. 95½, par. ll-501(a)(l)).

The defendant has filed a cross-appeal in which he “seeks to have the [trial court’s] findings affirmed.” We note that the longstanding rule in this State is that a party in whose favor a judgment is entered may not file or prosecute a cross-appeal that is designed solely to sustain the judgment of the trial court. (See Bull-man v. Cooper (1936), 362 Ill. 469, 471-72, 200 N.E. 173, 175.) Rather, the necessity of filing a cross-appeal arises only in situations where the appellee requests the reversal or modification of the judgment below. (Mid-West National Bank v. Metcoff (1974), 23 Ill. App. 3d 607, 610, 319 N.E.2d 336, 339-40.) In any event, the defendant in this case has not perfected his unnecessary cross-appeal because he did not file a brief in this court. (Zydzik v. Schiff (1969), 116 Ill. App. 2d 163, 167-68, 253 N.E .2d 475, 477.) Therefore, we review the merits of the State’s appeal pursuant to the standards our supreme court enunciated in First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128,131-33, 345 N.E .2d 493.

The State charged the defendant with two counts of driving under the influence of alcohol (Ill. Rev. Stat. 1987, ch. 95½, pars. 11— 501(a)(1), (a)(2)) as a result of an incident that took place in Westmont, Illinois, on March 23, 1988. After the Secretary of State summarily suspended the defendant’s driver’s license in accordance with section 11 — 501.1 of the Illinois Vehicle Code (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.1(e)), the defendant requested and received a judicial hearing to contest the statutory summary suspension of his license (HI. Rev. Stat. 1987, ch. 95½, par. 2 — 118.1(b)).

The few facts that are relevant to the issue presented for our consideration are undisputed. At approximately 10:25 p.m. on May 23, 1988, Officer Thomas Mulhern of the Westmont police department gave the defendant a breathalyzer test. The officer is a State-certified breath operator; according to Mulhern, the breathalyzer machine he used was certified within 45 days prior to and after the defendant submitted to the test and conformed with the testing standards of the Illinois Department of Public Health.

After the defendant gave a breath sample, the machine yielded both printed and visual displays of the result of the test. Both displays indicated the same result, “.18,” and the officer explained that this figure represented the alcohol level in the defendant’s breath sample. The officer was not sure, however, whether the visual display contained a percentage symbol behind the two numerals. Although both parties introduced into evidence as an exhibit the written printout of the breathalyzer test, the record on appeal does not contain either exhibit. However, the officer’s sworn report (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.1(d)) indicates that the breathalyzer test disclosed an alcohol concentration of “.18%,” and a fair inference from the remarks of the assistant State’s Attorney and the court is that the written printout also contained the same “.18%” notation.

After holding the hearing summarized above, the trial court rescinded the statutory summary suspension of the defendant’s driver’s license. In reaching its decision, the court emphasized that the documents before it contained a reading of .18% and that the statute in question (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501(a)(1)) did not contain any reference to percentages of breath-alcohol concentrate. The court opined that adding a percentage symbol to .18 converted that figure to .0018 and that .0018 was less than the statutory threshold of .10. The State filed a timely notice of appeal.

Section 11 — 501(a)(1) of the Illinois Vehicle Code provides:

“Driving while under the influence of alcohol, other drug or combination thereof, (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
(1) The alcohol concentration in such person’s blood or breath is 0.10 or more based on the definition of blood and breath units in Section 11 — 501.2.” (Emphasis added.) Ill. Rev. Stat. 1987, ch. 95½, par. ll-501(a)(l).

Section 11 — 501.2(a)(5), which contains the definition of the blood and breath units to which section 11 — 501(a)(1) makes reference, states:

“5. Alcohol concentration shall mean either grams of alcohol per 100 millileters of blood or grams of alcohol per 210 liters of breath.” (Ill. Rev. Stat. 1987, ch. 95½, par. 11 — 501.2(a)(5).)

It is clear then that, when sections 11 — 501(a)(1) and 11 — 501.2(aX5) are construed together, the statutory language establishes a formula that calculates the grams of alcohol present in a person’s breath and that breath unit is the number of grams of alcohol per 210 liters of breath. People v. Graven (1984), 124 Ill. App. 3d 990, 993-94, 464 N.E.2d 1132, 1134-35.

Although our research has not disclosed any case which has addressed the present issue, we are satisfied, after an examination of the statutory framework, the relevant case law and the pertinent Illinois Pattern Jury Instructions we discuss below, that the mere placing of a percentage sign behind a numerical figure which itself is above the .10 statutory threshhold does not automatically invalidate an otherwise proper breathalyzer test and result.

The offense described in section 11 — 501(a)(l) occurs when the alcohol concentration in the accused’s blood or breath, or both, is .10 or greater. (People v. Capporelli (1986), 148 Ill. App. 3d 1048, 1053, 502 N.E.2d 11, 14; People v. Atwell (1984), 129 Ill. App. 3d 724, 728, 473 N.E.2d 89, 92.) Our supreme court has declared that the legislature’s obvious intent “in enacting section 11 — 501(a)(1) was to impose a strict liability on drivers found to be impaired by an alcohol concentrate of 0.10% or above.” (Emphasis added.) (People v. Ziltz (1983), 98 Ill. 2d 38, 42, 455 N.E.2d 70, 72.) Although the statute under review in Ziltz, as is the enactment in this cause, prescribed .10 as the requisite level of alcohol concentration needed to establish the offense, the court, nonetheless, stated that the State had to establish that the defendant’s level of alcohol was in excess of .10%. (98 Ill. 2d at 43, 455 N.E.2d at 72; accord People v. Thorson (1986), 145 Ill. App. 3d 764, 767, 496 N.E.2d 304, 306.) We stress, also, that the current Illinois Pattern Jury Instructions, which respectively define the offense in question, state the issues implicated in the charge and set forth the presumptions that may obtain all use the language “0.10 per cent or more.” (Emphasis added.) Illinois Pattern Jury Instructions, Criminal, Nos. 23.04E, 23.04F, 23.06 (2d ed. Supp. 1989).

In this case, as Officer Mulhern related, the result of the breathalyzer test was .18, an amount which exceeded the .10 threshold of alcohol concentrate set forth in the statute. The mere fact that the officer’s sworn report and the breathalyzer printout contained a percentage symbol added to those numbers does not undermine either the unchallenged accuracy of the test or the numerical result the test revealed. In light of the facts of this case, whether the result of the breath-alcohol test is stated as .18 (People v. Kurtz (1988), 171 Ill. App. 3d 1068, 1069, 526 N.E.2d 540, 541) or .18% (People v. Thorson (1986), 145 Ill. App. 3d 764, 766-67, 496 N.E.2d 304, 306) is unimportant in our view. It is apparent that the two numerical formulas used to indicate the results of such a breathalyzer test were and continue to be employed interchangeably and are functional equivalents for the purposes of section 11 — 501(a)(1). We reach this conclusion in spite of the terse statement in People v. Hester (1988), 178 Ill. App. 3d 360, 391, 532 N.E.2d 1344, 1362, that “ ‘.10 percent’ and ‘.10’ are not the same.”

We are not required to serve as an advocate for the appellee, who has declined to file a brief in support of the trial court’s judgment, and as the appellant’s brief demonstrates prima facie reversible error (see, e.g., People v. Thorson (1986), 145 Ill. App. 3d 764, 767, 496 N.E.2d 304, 306), we reverse the judgment of the trial court. First Capitol Mortgage Corp. v. Talandis Construction Corp. (1976), 63 Ill. 2d 128, 131-33, 345 N.E.2d 493, 495.

The judgment of the trial court is reversed.

Reversed.

UNVERZAGT, P.J., and INGLIS, J., concur.


author: JUSTICE REINHARD

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CORINE J. BLOCK, Defendant-Appellant.
    Second District
    No. 2—87—1114
    Opinion filed June 6, 1989.

      Jeffrey B. Fawell, of Fawell & Fawell, of Wheaton, for appellant.
    James E. Ryan, State’s Attorney, of Wheaton, and Mary E. Gentile, of Chicago (William L. Browers, of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE REINHARD

delivered the opinion of the court:

Following a bench trial in the circuit court of Du Page County, defendant, Corine J. Block was found guilty of theft (Ill. Rev. Stat. 1987, ch. 38, par. 16 — l(d)(l)) of property not exceeding $300 and was sentenced to a one-year term of probation and ordered to perform 100 hours of public service employment. Defendant contends on appeal that the State failed to prove beyond a reasonable doubt (1) that the property in question was stolen; (2) that defendant knew or reasonably should have known the property was stolen; and (3) that defendant had the intent to permanently deprive the owner of the benefit of the property at the time she took possession of the property.

The following evidence was adduced at trial. The complaining witness, Sharon Stevens-Springer, testified that between 2 and 2:30 p.m. on January 19, 1987, while working at C.N.A. Insurance Company in Downer’s Grove, she noticed that her purse was missing from where she had placed it on the floor next to her desk. She had stepped away from her desk and saw it was missing upon her return. Stevens-Springer’s desk was located in an open office area on the fifth floor. After checking the entire fifth floor, Stevens-Springer reported to the police that her purse was stolen.

On January 25, 1987, at noon, Stevens-Springer received a telephone call at home. The caller was a woman whose voice Stevens-Springer didn’t recognize. The caller, who refused to identify herself during the entire conversation, said she had Stevens-Springer’s purse. According to Stevens-Springer, the caller agreed to meet her in Bellwood after she offered the caller some money. First, $10 was offered, but the caller said that was not enough. Eventually, $30 was agreed upon, and the caller agreed to meet Stevens-Springer at a Dominick’s parking lot in Downer’s Grove.

On cross-examination, Stevens-Springer stated that during their telephone conversation, she told the caller she could not drive to Bellwood because she had recently had surgery and could not drive that far. The caller said she had no transportation to Downer’s Grove and would need someone to drive her there.

Following the telephone conversation, Stevens-Springer contacted the Downer’s Grove police and proceeded to the Dominick’s store. A car occupied by defendant, her daughter, and eight children drove up. Stevens-Springer had seen defendant’s daughter at her office just prior to discovering her purse missing on January 19. Defendant approached Stevens-Springer and told her that a friend had the purse, that she knew what it was like to have her purse stolen, and that she talked the friend into letting her have the purse. Stevens-Springer recognized defendant’s voice as the voice of the woman who had telephoned her earlier. Stevens-Springer and defendant then proceeded to the car that defendant arrived in, and, when Stevens-Springer was about to give money to defendant, the police interceded.

Officers Groce and Solava, Downer’s Grove police officers, having been advised of the telephone call received by Stevens-Springer, waited in an unmarked car in the Dominick’s parking lot. When they approached defendant, she produced the purse which Stevens-Springer identified as her missing purse. Defendant tried to explain that she had found the purse and was trying to return it to its rightful owner.

Defendant testified that the purse was brought to her house by a person named Joseph and that she did not know it was stolen. On cross-examination she stated that the individual who brought the purse was named Kevin and she did not believe the purse was his. Defendant found Stevens-Springer’s name and telephone number in the purse and telephoned her. Defendant asked Stevens-Springer to pick the purse up at her home and did not ask for any money. Stevens-Springer asked defendant to bring the purse to her. Defendant offered to meet her at Bellwood, but Stevens-Springer apparently declined. Defendant told Stevens-Springer that she did not drive and would have to pay someone to drive her to Downer’s Grove. Stevens-Springer agreed to pay defendant $30. Defendant stated that she identified herself and her address over the telephone and that she never threatened to withhold the purse unless money was paid. Defendant stated that after meeting Stevens-Springer in the parking lot an hour or so after the conversation, she returned the purse immediately.

Defendant was charged with theft in that she on January 25, 1987, “knowingly obtained control over certain stolen property *** under such circumstances as would reasonably induce said defendant to believe the property was stolen and with intent to deprive *** permanently of the benefit of said property.” Theft is defined in section 16 — 1(d)(1) of the Criminal Code of 1961 as follows:

“A person commits theft when he knowingly:
* * *
(d) Obtains control over stolen property knowing the property to have been stolen *** or under such circumstances as would reasonably induce him to believe that the property was stolen, and
(1) Intends to deprive the owner permanently of the use or benefit of the property ***.” Ill. Rev. Stat. 1987, ch. 38, par. 16-l(dXl).

Defendant initially argues that the evidence does not establish beyond a reasonable doubt that Sharon Stevens-Springer’s purse was in fact stolen, and not merely lost or mislaid. Defendant contends that the evidence merely establishes that at some point Stevens-Springer became aware that her purse was missing, but does not preclude the possibility that she lost or mislaid it, or that it was not accidentally moved or taken by some other person or persons, such as, for instance, a janitor.

Defendant maintains that the instant case is governed by People v. Weiss (1976), 34 Ill. App. 3d 840, 341 N.E.2d 79, wherein it was held that evidence that a telephone was once owned by General Telephone and that General Telephone did not sell the particular model of telephone was insufficient proof that the telephone was stolen in light of the defendant’s testimony that he found the telephone abandoned in an apartment. We find Weiss to be factually distinguishable and of little guidance in this case.

While, as defendant notes, there is no direct evidence that someone observed the purse being taken, it is well established that circumstantial evidence may be sufficient to show that property is stolen. (People v. Hansen (1963), 28 Ill. 2d 322, 338, 192 N.E.2d 359.) In the instant case, the complaining witness testified as follows:

“Q. Where was your purse located at the time?
A. I believe it was on the floor by my desk. I didn't have a credenza at that time.
Q. When did you first notice that your purse was missing?
A. I had stepped away from my desk and when I came back, it was about between 2:00 and 2:30 and I noticed it was gone.”

Defendant contends that Stevens-Springer’s statement that she “believed” the purse was by her desk indicates that she herself was unsure where she had left her purse. We, however, do not interpret her answer as expressing any significant degree of uncertainty. Defendant further notes that Stevens-Springer did not establish a time or date when she could last recall seeing her purse. We disagree. Stevens-Springer testified as to the location of her purse at her desk on January 19 at about 2 or 2:30 p.m., as that was the only time period that had theretofore been discussed in her testimony. Defendant’s suggestion that Stevens-Springer might normally leave her purse at the office at night is both speculative and contrary to human experience.

The evidence shows that Stevens-Springer’s purse disappeared from an area under her control, raising a strong inference that the purse was stolen. While this evidence does not exclude every possible explanation for the disappearance of the purse other than theft, triers of fact are not required to search out possible explanations compatible with innocence and elevate them to the status of reasonable doubt. (People v. Dabrowski (1987), 162 Ill. App. 3d 684, 692, 515 N.E.2d 1345; People v. Cross (1981), 100 Ill. App. 3d 83, 86, 426 N.E.2d 623.) We find defendant’s hypothetical explanations for the purse’s initial disappearance improbable and insufficient to create a reasonable doubt.

Defendant next contends that the evidence was insufficient to establish that she knew the purse was stolen at the time she took possession of it. Defendant was charged with obtaining control over stolen property under such circumstances as would reasonably induce her to believe the property was stolen. Guilty knowledge may be established by proof of circumstances which would induce the belief in a reasonable mind that the property was stolen, and it is unnecessary to show actual or positive knowledge of the theft. (Dabrowski, 162 Ill. App. 3d at 691-92, 515 N.E.2d at 1350.) Here, defendant testified that she received possession of a woman’s purse from a person named Joseph, whom she later called Kevin. This name discrepancy was never explained. Defendant herself testified that she did not believe the purse belonged to that individual. That defendant took the purse under these circumstances without inquiry as to its source or the title of the one from whom it was received is indicative of guilty knowledge. (See People v. Grodkiewicz (1959), 16 Ill. 2d 192, 197, 157 N.E.2d 16.) Further, Stevens-Springer testified that in the conversation in the parking lot, defendant told her that her friend had the purse, that she knew what it was like to have her purse stolen, and that she talked her friend into letting her have the purse. We note that defendant states in her appellate brief that she was told the purse was not stolen. We find no support for this assertion in the record. Finally, while, as defendant notes, she testified at trial that she did not believe the purse was stolen and the circumstances gave no indication that it was stolen, the trier of fact was not required to accept this exculpatory statement and could instead rely on the circumstantial evidence of guilt. People v. Locascio (1985), 106 Ill. 2d 529, 537, 478 N.E.2d 1358; Dabrowski, 162 Ill. App. 3d at 693, 515 N.E.2d at 1351.

Defendant next argues that the evidence does not establish beyond a reasonable doubt that she had the intent to permanently deprive the owner of the purse of its use or benefit at the time she received possession of the purse. Defendant cites no relevant authority in support of her argument that the evidence of her intent is insufficient, and we find it to be without merit. The testimony of the complaining witness, Sharon Stevens-Springer, indicates that defendant was unwilling to return the purse until offered a reward and refused to identify herself. While defendant contradicted this testimony, stating that Stevens-Springer was free to come to her house for the purse, and defendant asked for money only to pay her way to Downer’s Grove, the trial judge stated that he disbelieved her testimony. We note that requiring a reward for return of the purse constitutes intent to permanently deprive. Ill. Rev. Stat. 1987, ch. 38, par. 15 — 3(c).

Despite the evidence of criminal intent, defendant argues that there is no evidence showing that she had formed the intent at the time she first received possession of the purse. Defendant has cited no direct authority for the proposition that the intent to permanently deprive must exist at the time possession is obtained, but maintains that the conclusion implicitly follows from People v. Weiss (1976), 34 Ill. App. 3d 840, 341 N.E.2d 79, which states that an essential element of the offense of theft by possession is that “[the person charged] received the property for his own gain or to prevent the owner from again possessing it.” Weiss, however, did not involve the particular issue before this court. We do not believe its general statement of the elements of the offense was directed at the time frame in which criminal intent must arise, and we decline to resolve the issue on the basis of the implications of this language. 34 Ill. App. 3d at 842, 341 N.E.2d at 82.

Defendant further argues that the intent to deprive must exist at the time possession is first acquired by analogy to the holding in People v. Dickerson (1976), 41 Ill. App. 3d 464, 353 N.E.2d 427, that knowledge that the property is stolen must be when the accused receives it. While we agree with the decision in Dickerson that knowledge that the property is stolen when the accused has received it is an element of the offense of theft under section 16 — 1(d) (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1(d)), a separate element of the offense of theft under 16 — 1(d), which is also common to subsections (a) through (c), is that defendant either “(1) [i]ntends to deprive the owner permanently of the use or benefit of the property; or (2) [kjnowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit; or (3) [u]ses, conceals, or abandons the property knowing such use, concealment or abandonment probably will deprive the owner permanently of such use or benefit.” (Ill. Rev. Stat. 1987, ch. 38, pars. 16-l(d)(l), (d)(2), (d)(3); cf. People v. Morrissey (1985), 133 Ill. App. 3d 1069, 1072, 479 N.E.2d 1238.) Here, defendant was charged with violating section 16 — 1(d) by intending to permanently deprive Stevens-Springer of the benefit of her purse and the contents pursuant to subsection (1).

Section 15 — 3 of the Code defines “permanently deprive” as follows:

“(a) Defeat all recovery of the property by the owner; or
(b) Deprive the owner permanently of the beneficial use of the property; or
(c) Retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or
(d) Sell, give, pledge, or otherwise transfer any interest in the property or subject it to the claim of a person other than the owner.” Ill. Rev. Stat. 1987, ch. 38, par. 15 — 3.

There is no requirement in either the statutory language of this element of theft in section 16 — 1(d)(1) or in the statutory definition of “permanently deprive” in section 15 — 3 that the intent to permanently deprive must be proved to be formed simultaneously with the obtaining of control over stolen property. Moreover, subsections 16 — 1(2) and 16 — 1(3) demonstrate that the statutory scheme contemplates that the requisite mental state can be proved by evidence of conduct subsequent to taking possession. We, therefore, reject defendant’s contention.

For the foregoing reasons, the judgment of the circuit court is affirmed.

Affirmed.

INGLIS and NASH, JJ., concur.


author: JUSTICE INGLIS

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RODNEY BILLINGSLEY, Defendant-Appellant.
    Second District
    No. 2—87—0851
    Opinion filed June 6, 1989.

      G. Joseph Weller, of State Appellate Defender’s Office, of Elgin, and Theodore A. Gottfried and Patrick J. Hughes, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Gary V. Johnson, State’s Attorney, of Geneva (William L. Browers and David A. Bernhard, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE INGLIS

delivered the opinion of the court:

Following a jury trial in Kane County, defendant, Rodney Billingsley, was convicted of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3) and theft (Ill. Rev. Stat. 1985, ch. 38, par. 16-l(d)(l)). Defendant was sentenced to two years’ probation under the supervision of Treatment Alternatives to Street Crimes (TASC). Defendant filed a timely notice of appeal. We affirm in part and reverse in part.

On September 4, 1986, Enss Mitchell returned to his home in Aurora around 11:45 a.m. He discovered the downstairs door broken open and the house in “total disarray.” Mitchell testified that he immediately noticed that his two video recorders were missing. He also discovered one video recorder missing from his father’s bedroom. Mitchell stated that he sold electronic equipment for a living and placed a value of $1,450 on the missing video recorders. Mitchell further testified that he called the police department shortly after he arrived home.

Officer David Tinsley of the Aurora police department testified at trial. Officer Tinsley testified that he responded to a call concerning a burglary at the Mitchell residence. Officer Tinsley observed a downstairs window open, with the screen pushed in from the outside. It was Officer Tinsley’s opinion that the window was used as an entry point to the house. He also observed a door leading into the downstairs section of the house kicked open.

Officer Gregory Anderson of the Aurora police department also testified at trial. Officer Anderson stated that he received a telephone call on September 4, 1986, from a confidential informant, telling him that defendant and another person “had stolen several VCRs and a reel-to-reel tape deck the night before” and were storing them in the trunk of a white Buick automobile. The informant also provided the location of the automobile. Officer Anderson stated that he drove his unmarked squad car over to the location and observed the white Buick. He indicated that he was informed of the Mitchell burglary by radio dispatch while he was en route to set up surveillance on the white Buick. Officer Anderson further testified that he observed a car pull up to the Buick and transfer boxes into the trunk of the Buick. Defendant was identified as one of the persons who transferred the boxes. Defendant was arrested a short distance from the Buick. Officer Anderson later determined that the Buick was registered to defendant. Officer Anderson indicated that the Buick was towed to the police station, and a search warrant was obtained to search the trunk.

Officer Marshall Gauer of the Aurora police department testified that he executed the search of the trunk and recovered electronic equipment taken from the Mitchell home and from other burglaries. However, the items found in the trunk were not dusted for fingerprints.

Officer Larry Langston of the Aurora police department also testified at trial. Officer Langston stated that he interviewed defendant at the Aurora police department on September 4, 1986. After he read defendant his Miranda rights, he questioned defendant about the items found in the trunk. Officer Langston testified that defendant stated that he bought the items from a person named Jessie, and that he knew the items were stolen. It was defendant’s intention to buy the items cheaply and resell them at a profit. Defendant denied any involvement in the burglaries.

Jacqueline Fracaro, a forensic scientist for the Illinois Department of State Police, testified that she examined the latent finger and palm prints taken from the Mitchell residence. She also examined defendant’s print card taken shortly after his arrest. It was Fracaro’s opinion that the prints taken from the Mitchell residence matched those on defendant’s print card.

Defendant’s brother, Eric Greene, testified at trial. Greene stated that, on September 3, 1986, he saw a car pull up to the white Buick and transfer some boxes into the trunk of the Buick. One of the passengers saw Greene looking out of the window and asked him if defendant was home. Greene stated that defendant was not home, and the car left. Greene testified that he went to bed and awoke on September 4, 1986, at approximately 10 a.m. Greene stated that defendant was home at this time. Greene further stated that defendant awoke at approximately 11:30 a.m. and went to get something to eat at a local restaurant. Shortly thereafter, Greene looked outside and saw defendant in police custody. Defendant’s girlfriend, Estellita Gonzalez, along with some relatives of defendant, substantiated the testimony of Eric Greene.

Defendant was the last witness to testify at trial. Defendant stated that he bought the white Buick in May 1986, using $500 of his own money and a $700 loan from Jeff Washington to pay for the car. In August 1986, defendant sold the car to Washington because he was unable to pay off the loan. Defendant testified that he transferred the title to Washington and gave him the only set of keys to the car.

Defendant further testified that he was with his girlfriend from approximately 11 a.m. on September 3, 1986, until 2:30 a.m. on September 4, 1986. He stated that he went home to sleep and woke up at approximately 11:30 a.m. Defendant left his house with two friends and went to a local pool hall. Defendant was at the pool hall for 20 minutes and left the pool hall to talk with a person named “Jessie.” Defendant stated that Jessie had two video recorders for sale. Defendant agreed to purchase both recorders for $125 and determined that he should put them in the trunk of the white Buick for storage. Defendant testified that he did not want to know how Jessie obtained the video recorders. Defendant stated that he was arrested shortly after putting the recorders in the trunk of the Buick. Defendant denied stealing the recorders, and further denied any role in the burglaries.

Following closing arguments, the jury returned a verdict finding defendant guilty of the offenses of residential burglary and theft. On August 7, 1987, defendant was sentenced to two years’ probation under the supervision of TASC. This appeal followed.

On appeal, defendant contends that: (1) the trial court erred in admitting hearsay evidence concerning a police officer’s conversation with a confidential informant; and (2) the jury verdicts were legally inconsistent such that defendant is entitled to a new trial.

Defendant first contends that the trial court improperly allowed the State to introduce hearsay testimony concerning the contents of a telephone conversation between a police officer and a confidential informant. Defendant argues that the admission of this testimony severely prejudiced him and requires reversal. The State responds by arguing that the testimony did not implicate defendant in the crime charged in the case at bar. In addition, the State contends that the testimony was not hearsay. The contested testimony is as follows:

“Q. And how did you [Officer Anderson] receive that information?
A. A confidential informant contacted me.
Q. And did you speak with that confidential informant personally?
A. Yes, I did.
Q. And what information did the confidential informant provide you with?
A. The confidential informant told me that Rodney Billingsley and Jeff Washington had stolen several VCRs and a reel-to-reel tape deck the night before and were storing it [sic] in the trunk of a car on Second Avenue.”

In order for testimony to constitute hearsay, there must be testimony of an out-of-court statement offered to prove the truth of the matter asserted, with the value of the statement resting on the credibility of the person who made the out-of-court statement. (People v. Rogers (1980), 81 Ill. 2d 571, 577; People v. Miles (1988), 176 Ill. App. 3d 758, 763.) The purpose of the rule barring hearsay testimony is to “test the value of assertions by exposing the source of the assertion to cross-examination by the party against whom it is offered.” People v. Holman (1984), 103 Ill. 2d 133, 148, cert. denied (1985), 469 U.S. 1220, 84 L. Ed. 2d 347, 105 S. Ct. 1204.

Defendant contends that the decisions in People v. Johnson (1987), 116 Ill. 2d 13, and People v. White (1985), 134 Ill. App. 3d 262, cert. denied (1986), 475 U.S. 1126, 90 L. Ed. 2d 194, 106 S. Ct. 1650, support his position that the admission of the testimony was reversible error. In Johnson, our supreme court held that the defendant’s convictions for murder, conspiracy, and attempted armed robbery must be reversed because the trial court improperly admitted hearsay testimony which directly implicated the defendant in the crimes charged. (Johnson, 116 Ill. 2d at 29.) The testimony involved statements made by two codefendants to a police officer. The police officer testified at trial, but both codefendants asserted the privilege against self-incrimination and did not testify. The court stated that a police officer may testify as to the investigatory procedures used during the course of a criminal investigation without violating a defendant’s right to confront witnesses. (116 Ill. 2d at 24.) However, the testimony cannot directly implicate the defendant in the crime at issue. (116 Ill. 2d at 24.) The supreme court reversed the defendant’s convictions because the hearsay testimony identified him as the “gunman,” thus directly implicating him in the crimes at issue.

In White, this appellate court determined that it was error, although not reversible error, for the court to allow testimony in which an anonymous phone caller named the defendant as a “perpetrator” of the crime he was on trial for committing. (White, 134 Ill. App. 3d at 282.) White also involved an alleged use of hearsay testimony concerning a conversation with a confidential informant. The confidential informant directly named the defendant, although he did not place the defendant at the scene of the crime. We held that this testimony was not hearsay because it did not directly link the defendant to the crime at issue, but instead simply provided an explanation for the police officer’s subsequent investigatory procedures. White, 134 Ill. App. 3d at 282-83.

In the case at bar, defendant was charged with the September 4, 1986, burglary of the Mitchell residence. The confidential informant’s phone conversation with Officer Anderson implicated defendant in a theft which occurred the night before. The informant did not implicate defendant in the Mitchell burglary. It appears that the statement was used to explain why Officer Anderson set up surveillance on the white Buick. Thus, we do not have a situation like that present in Johnson, because the confidential informant in no way implicated defendant in the crime he was charged with. Instead, our situation is similar to that found in White, in that the primary value of the statement was to explain why Officer Anderson set up a surveillance on the white Buick. Therefore, it is our opinion that the testimony was not hearsay, since it was used to explain the officer’s investigatory procedures, and not used to prove the truth of the matter asserted. See White, 134 Ill. App. 3d at 282; People v. Romo (1980), 85 Ill. App. 3d 886, 897; People v. Sanders (1980), 80 Ill. App. 3d 809, 814.

Furthermore, even if we were to agree with defendant’s contention that the statement was hearsay, we believe that its admission was harmless in light of the evidence of defendant’s guilt. The admission of hearsay testimony is harmless error where there is sufficient competent evidence to convict the defendant. (People v. Gaines (1982), 88 Ill. 2d 342, 366, cert, denied, (1982), 456 U.S. 1001, 73 L. Ed. 2d 1295, 102 S. Ct. 2285.) Defendant’s palm prints were found at the Mitchell residence, even though Enss Mitchell testified that he never met nor did he know defendant. In addition, Officer Anderson saw defendant place the proceeds of the burglary, the video recorders, into the trunk of the white Buick. Defendant was arrested shortly thereafter and in close proximity to the Buick. We believe the evidence fully supports defendant’s conviction for residential burglary, even absent the alleged hearsay testimony.

Defendant next contends that the jury verdicts finding him guilty of both residential burglary and theft were logically inconsistent. As such, defendant asserts that his convictions must be reversed and the case remanded for a new trial. The State argues that a retrial on all counts is not necessary. Rather, the State asserts that the proper remedy is to vacate the theft conviction. Both parties agree that the recent supreme court decision in People v. Schmidt (1988), 126 Ill. 2d 179, controls the disposition of this issue. In Schmidt, the defendant was charged with residential burglary. However, the jury was instructed as to residential burglary and theft and found the defendant guilty of both offenses. The supreme court held that the conviction for theft “was improper and must be vacated.” (Schmidt, 126 Ill. 2d at 183.) The court stated that theft was not a lesser included offense of burglary, and thus there should not have been any verdict as to the theft offense absent any charge of theft. 126 Ill. 2d at 183.

In the case at bar, defendant was charged solely with the offense of residential burglary. However, instructions were given to the jury on the offenses of both residential burglary and theft. We believe that under Schmidt, the instruction on theft was improperly given. Thus, the theft conviction must be vacated. However, this does not entitle defendant to a new trial on the residential burglary conviction. See Schmidt, 126 Ill. 2d at 183.

For the above-stated reasons, the judgment of the circuit court of Kane County convicting defendant of residential burglary is affirmed, and the conviction for theft is reversed.

Affirmed in part, reversed in part.

UNVERZAGT, P.J., and LINDBERG, J., concur.


author: JUSTICE KNECHT

text:
    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHARLES A. MANESS, Defendant-Appellant.
    Fourth District
    No. 4—88—0418
    Opinion filed June 15, 1989.

      Daniel D. Yuhas and Jeffrey D. Foust, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard L. Broch, State’s Attorney, of Tuscola (Kenneth R. Boyle, Robert J. Biderman, and Robert W. Mueller, all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
   JUSTICE KNECHT

delivered the opinion of the court:

A jury in the circuit court of Douglas County found the defendant, Charles A. Maness, guilty of criminal sexual assault (Ill. Rev. Stat. 1987, ch. 38, par. 12 — 13(a)(3)) with a minor family member. The circuit court of Douglas County sentenced the defendant to a 12-year term of imprisonment in the Illinois Department of Corrections.

On appeal, the defendant’s sole contention is the circuit court erred in admitting sexual misconduct testimony of a second family member under the design exception to the exclusionary rule on evidence of other crimes. We affirm.

Prior to trial, the defendant filed a motion in limine to suppress any testimony on acts of sexual misconduct extraneous to the instant charge. The defendant argued the extraneous sexual misconduct testimony was irrelevant to prove any issue other than propensity to commit the charged crime. As such, the extraneous sexual misconduct testimony was inadmissible under the exclusionary rule on evidence of other crimes. In response, the State argued the extraneous sexual misconduct testimony was relevant to prove the issues of either (1) the common design, plan, and scheme of the defendant or (2) the modus operandi of the defendant. As a result, the extraneous sexual misconduct testimony was admissible under the exceptions to the exclusionary rule on evidence of other crimes. The circuit court took the motion in limine under advisement pending an offer of proof about the exceptions to the exclusionary rule on evidence of other crimes from the State.

In support of its argument, the State offered the testimony of the two daughters of the defendant: T.M. and K.M. T.M., a minor, is the victim of the instant charge. K.M., an adult, is the victim of the acts of sexual misconduct extraneous to the instant charge.

T.M. testified the defendant first sexually abused her at age six or seven. The sexual abuse continued on a biweekly basis through the time of the instant charge in September of 1986. The sexual abuse progressed from genital fondling to vaginal intercourse. T.M. next testified the defendant met her attempts at resistance with threats of physical violence. T.M. lastly testified the defendant threatened family separation and parental strife to discourage her from reporting the sexual abuse.

K.M. testified the defendant first sexually abused her at age three or four. The sexual abuse continued on a sporadic basis through the time K.M. left the parental home in the late summer of 1984. The sexual abuse progressed from genital fondling to vaginal and anal intercourse. K.M. next testified the defendant met her attempts at resistance with physical violence. K.M. lastly testified she first became aware the defendant had also sexually abused T.M. in 1977. K.M. did not make any attempt to report the sexual abuse of either herself or T.M. until 1982. At that time, K.M. suspected she had previously suffered a miscarriage and reported the sexual abuse of the defendant to school authorities. K.M. subsequently recanted her sexual abuse report under the threats of abandonment, family separation, and parental strife from the defendant.

After the offer of proof from the State, the circuit court denied the motion in limine of the defendant. In its evidentiary ruling on the motion in limine, the circuit court stated:

“The evidence here does show a similarity of other occurrences or other instances, whereby similar conduct is alleged to have occurred between this defendant and the daughters. It cannot be used for any purpose other than to show the common scheme, plan, design and modus operandi identification, intent — and whether the person has a propensity to commit a crime.”

At trial, however, the circuit court prefaced the testimony of K.M. with a brief cautionary instruction to the jury on only the design exception to the exclusionary rule on evidence of other crimes. Given the discrepancy between the evidentiary ruling and the limiting instruction, it is apparent the circuit court used the design and modus operandi exceptions to the exclusionary rule on evidence of other crimes in an interchangeable manner.

Relying on People v. Testa (1984), 125 Ill. App. 3d 1039, 466 N.E.2d 1126, the State initially contends the defendant has waived review of this allegation of error in failing to file a motion for a new trial. As a general rule, an allegation of error is waived for the purpose of review where a litigant fails to file a motion for a new trial. (See Ill. Rev. Stat. 1987, ch. 38, par. 116 — 1; People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124.) At the discretion of the reviewing court, however, this general rule is excepted where a litigant has in some manner brought the alleged error to the attention of the circuit court. (People v. Wilson (1981), 92 Ill. App. 3d 370, 379, 415 N.E.2d 1315, 1322.) In the instant action, the defendant objected to the admission of the extraneous sexual misconduct testimony both before trial and at trial. As this testimony could, if erroneously admitted, substantially prejudice the case of the defendant, we will review the appeal on its merits.

The State alternatively contends the admission of the extraneous sexual misconduct testimony was not prejudicial to the defendant. Such evidence is always prejudicial, but its probative value here outweighs its prejudicial impact.

As a general rule, evidence of other crimes, i.e., wrongful conduct for which the defendant is not on trial, is inadmissible to prove the defendant has a propensity to commit the charged criminal offense. (People v. Lehman (1955), 5 Ill. 2d 337, 342, 125 N.E.2d 506, 509.) The rationale underlying this rule is that such evidence overpersuades the jury that the defendant is a bad person deserving punishment. (People v. Lindgren (1980), 79 Ill. 2d 129, 137, 402 N.E.2d 238, 242.) Thus, evidence of other crimes could substantially prejudice the case of the defendant. See People v. Romero (1977), 66 Ill. 2d 325, 330, 362 N.E.2d 288, 290.

There are, however, exceptions to the general rule. Evidence of other crimes is admissible to prove any relevant purpose other than the propensity of the defendant to commit crime. (People v. Dewey (1969), 42 Ill. 2d 148, 157, 246 N.E.2d 232, 237; People v. McDonald (1975), 62 Ill. 2d 448, 455, 343 N.E.2d 489, 493.) Such relevant purposes include, inter alia, (1) the absence of accident or mistake, (2) the existence of a common design, plan, and scheme, (3) identity, (4) intent, (5) modus operandi, and (6) motive. Lehman, 5 Ill. 2d at 342-43, 125 N.E.2d at 509; see also People v. Kimbrough (1985), 138 Ill. App. 3d 481, 484-86, 485 N.E.2d 1292, 1296-97.

Notwithstanding the interchangeable manner of use in the circuit court, the exceptions to the exclusionary rule on evidence of other crimes are separate legal principles. The design exception “refers to a larger criminal scheme of which the crime charged is only a portion.” (People v. Barbour (1982), 106 Ill. App. 3d 993, 999, 436 N.E.2d 667, 672.) It is relevant to prove the motive for the charged crime. (Barbour, 106 Ill. App. 3d at 1000, 436 N.E.2d at 672.) To admit testimony into evidence under this exception, there must be a high degree of factual similarity between the charged crime and the other crime. People v. McKibbins (1983), 96 Ill. 2d 176, 185-86, 449 N.E.2d 821, 825.

In contrast, the modus operandi exception “refers to a pattern of criminal behavior so distinct that separate crimes or wrongful conduct are recognized as the work of the same person.” (Kimbrough, 138 Ill. App. 3d at 486, 485 N.E.2d at 1297.) It is relevant to prove the identity of the perpetrator and his commission of the charged crime. (Kimbrough, 138 Ill. App. 3d at 487, 485 N.E.2d at 1298.) To admit testimony into evidence under this exception, there must be some distinctive features between the charged crime and the other crime that are not common to the type of offense. People v. Tate (1981), 87 Ill. 2d 134,142-43, 429 N.E.2d 470, 475.

In this case, we find the testimony of T.M. and K.M. share a sufficient degree of factual similarity to be admissible under the modus operandi exception to the exclusionary rule on evidence of other crimes. The defendant first sexually abused his daughters at an extremely young age. The sexual abuse progressed from inappropriate fondling to incestuous intercourse. The defendant met the resistance of his daughters with actual and threatened physical violence. To discourage his daughters from reporting the sexual abuse, the defendant mentally played on their normal fear of family separation and parental strife. It therefore follows, given the degree of factual similarity between the crimes, the jury could reasonably infer the defendant had sexually abused T.M. from the sexual misconduct testimony of K.M. describing the “method of work” of the defendant. See People v. Brewer (1983), 118 Ill. App. 3d 189, 193-94, 454 N.E.2d 1023, 1027-28.

We also find the circuit court allowed the extraneous sexual misconduct testimony only to the extent necessary to prove the factual similarity to the charged crime. The circuit court is to limit evidence of other crimes to that relevant on the issue for which it is admitted. (People v. Bartall (1983), 98 Ill. 2d 294, 315, 456 N.E.2d 59, 69.) The testimony of K.M. on her sexual abuse report and suspected miscarriage is relevant to explain her recantation on the presented issue. Accordingly, the extraneous sexual misconduct testimony was admissible against the defendant.

While the limiting instruction to the jury focused on the design exception, there was no likelihood of confusion that would disadvantage the defendant. The circuit court used the design and modus operandi exceptions interchangeably even though they are separate legal principles. However, the offer of proof on the factual similarity between the crimes was sufficient for the circuit court to conclude the jury was entitled to hear the sexual misconduct evidence about the defendant.

An evidentiary ruling on the admission of testimony into evidence is a matter within the discretion of the circuit court. Absent an abuse of that discretion, an evidentiary ruling of the circuit court ■will not be altered on review. (People v. Ward (1984), 101 Ill. 2d 443, 455-56, 463 N.E.2d 696, 702.) The circuit court properly admitted the extraneous sexual misconduct testimony of a second family member under the modus operandi exception to the exclusionary rule on evidence of other crimes.

Affirmed.

McCULLOUGH, P.J., and SPITZ, J., concur.