People v. Rowell ( 2008 )

Docket No. 104279.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
HOWARD L. ROWELL, Appellant.
Opinion filed May 22, 2008.
CHIEF JUSTICE THOMAS delivered the judgment of the court,
with opinion.
Justices Freeman, Fitzgerald, Kilbride, Garman, Karmeier, and
Burke concurred in the judgment and opinion.
OPINION
Defendant, Howard L. Rowell, was convicted in the circuit court
of McLean County of retail theft of property having a retail value
exceeding $150 (720 ILCS 5/16A–3(a) (West 2004)). Defendant
thereafter filed a motion for judgment of acquittal or, in the
alternative, a motion in arrest of judgment. The circuit court denied
defendant’s motion and sentenced defendant to 120 days in jail, with
90 days stayed pending review, and 30 months’ probation. The circuit
court also ordered defendant to pay restitution, as well as other fines,
fees and costs. The appellate court, with one justice specially
concurring, affirmed in part, vacated in part, and remanded with
directions. 375 Ill. App. 3d 421. This court then allowed defendant’s
petition for leave to appeal. 210 Ill. 2d R. 315(a).
BACKGROUND
Defendant was arrested on August 25, 2003, while he was
working at the Electronics Boutique in Bloomington, Illinois.
Defendant originally was charged with theft by deception (720 ILCS
5/16–1(a)(2) (West 2004)), a misdemeanor. The original information
alleged that defendant knowingly obtained control, by deception, over
the property of Electronics Boutique, United States currency, by
selling product belonging to Electronics Boutique and keeping the
money for himself. The State nol-prossed that charge on September
22, 2003.
On September 25, 2003, defendant was charged by information
with retail theft over $150 (720 ILCS 5/16A–3 (West 2004)), a Class
3 felony. That information alleged that between July 15, 2003, and
August 25, 2003, defendant “knowingly took possession of
merchandise, 15 electronic computer games, valued over $150,
offered for sale at the Electronic[s] Boutique, a retail mercantile
establishment[,] with the intent to permanently deprive the merchant
of the use or benefit of the property without paying the full retail
value, in violation of 720 ILCS 5/16A–3(c).”
On December 3, 2003, the State filed an information labeled
“Count II.” Count II also charged defendant with felony retail theft
over $150 and alleged that on or about July 15, 2003, and August 25,
2003:
“[D]uring a continuing course of conduct, he [defendant]
knowingly took possession of fifteen xbox [sic] brand video
games, which were items of merchandise offered for sale at
Electronic[s] Boutique, a retail mercantile establishment, with
the intent to permanently deprive said merchant of the
possession, use or benefit of said merchandise, without paying
the full retail value of said merchandise, said merchandise
having a value exceeding $150, in violation of 720 ILCS
5/16A–3(a).”
Defendant waived his right to a jury trial, so the case proceeded
to bench trial on March 10, 2004. At trial, defense counsel agreed to
stipulate to the State’s evidence. The stipulated evidence included
three police reports, defendant’s written statement to Electronics
Boutique, the Electronics Boutique manager’s summary of the cost
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of the stolen games, defendant’s videotaped statement to police, and
the fact that Electronics Boutique is a retail mercantile establishment.
The police reports were prepared by Officers Shawn Albert and
Brent Smallwood. Albert’s report stated that on August 25, 2003, he
was dispatched to investigate a burglary complaint at Electronics
Boutique. When Officer Albert arrived, manager Ken McDonough
told him that store management suspected defendant was stealing
video games from the store and also suspected defendant was selling
games to friends and pocketing the money. Consequently, a loss-
prevention officer for Electronics Boutique made purchases from
defendant, and defendant pocketed the money from those purchases.
The loss-prevention officer and McDonough confronted defendant.
Defendant immediately confessed to stealing from the store.
Defendant admitted that he sold games to friends at a reduced rate
and pocketed the money. Defendant also admitted to stealing video
games for himself. When Officers Albert and Smallwood spoke with
defendant, defendant again confessed to stealing from the store.
Officer Smallwood’s supplemental report indicated that, after
Albert secured the scene, Smallwood spoke with McDonough.
McDonough told Smallwood that an employee from another
Electronics Boutique store, Jaguneruku Rimes, went to the store and
asked defendant about purchasing a Madden football game.
Defendant offered the game and a handbook to Rimes at a reduced
cost.
Officer Smallwood then spoke with Rimes about the incident.
Rimes said that he went to the Electronics Boutique while defendant
was working and asked defendant about purchasing a preowned
Madden game at a reduced cost. Defendant told Rimes that defendant
would sell him a new Madden game and handbook for $35. Rimes
purchased the game and handbook and left the store. Rimes told
Officer Smallwood that the Madden game should have cost $50, and
the handbook should have cost $14.99.
In his written statement to Electronics Boutique, defendant
admitted that he had stolen a total of $1,242.95 from the store. The
statement said that defendant stole $367.95 in preowned Xbox
software that he kept for himself, as well as $100 in new software.
Defendant said he also stole $400 by selling new software to
customers for $40 cash and keeping the money. In addition, defendant
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stole $375 by charging customers $20 cash for preowned software
and keeping the cash. Defendant explained that he did these things
because he had money problems and did not think about the
consequences. Defendant also made a list of the stolen games that he
had at his home.
Ken McDonough submitted a typed list of the 15 video games
that defendant admitted stealing from the store. The list also included
the retail values for those games. The prices ranged from $17.99 to
$49.99, for a total of $430.85.
In defendant’s taped interview at the police station, defendant
stated that he had worked for Electronics Boutique for almost two
months. Defendant said he had been selling the games and pocketing
the money for three weeks. With regard to the games that he brought
home, defendant said that he would just take a game that he wanted,
although he did pay for a few games.
Defendant did not present any evidence. In closing argument,
defense counsel argued that the information in count II, which used
the “during a continuing course of conduct” language, was flawed.1
Defense counsel stated that he could find no authority allowing a
charge with a continuing course of conduct allegation. Defense
counsel then stated that although there was no dispute as to what had
happened, there was a dispute as to whether the evidence showed a
number of misdemeanors or a felony. Defense counsel argued that the
evidence showed a “bunch of misdemeanors, not a felony.” Defense
counsel noted that the evidence indicated that the Xbox games were
taken over a series of dates, not all at once, so that a felony charge
was not justified.
On March 24, 2004, the trial court entered an order finding
defendant guilty on count II, retail theft over $150. On April 15, 2004,
defendant filed a motion for judgment of acquittal or, in the
alternative, a motion in arrest of judgment (725 ILCS 5/116–2 (West
2004)). Defendant’s motion for judgment of acquittal cited People v.
Brenizer, 111 Ill. 2d 220 (1986), and argued that although Brenizer
held that a series of misdemeanor acts may be charged as a felony,
1
During closing argument, the parties indicated that they were
proceeding only on count II of the information.
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Brenizer also held that the State must allege that the acts were in
furtherance of a single intention and design. Defendant claimed that
the attempt to aggregate his multiple acts with the phrase “continuing
course of conduct” did not satisfy Brenizer. Defendant argued that the
evidence did not prove a single intention and design and, at most,
showed only that there were multiple intents to take property worth
less than $150. Consequently, defendant should be acquitted of the
felony charge.
Defendant’s motion in arrest of judgment claimed that the
language in the charging instrument did not sufficiently specify that
defendant’s conduct was in furtherance of a single intention and
design to deprive Electronics Boutique of property over $150. Thus,
the charge did not specifically identify a felony mental state of retail
theft over $150. For that reason, the charge did not state an offense,
so that the court should enter an order in arrest of judgment.
At the hearing on defendant’s posttrial motion, defendant stood
on his motion, noting that it was “essentially the same argument that
I made for purposes of the guilty phase.” The trial court denied the
motion, stating, “the Court looked at that issue, and I believe there is
some case law that directly supports the Court’s ruling on that, and
the motion will be denied.” As noted, the trial court sentenced
defendant to 120 days in jail, with 90 days stayed pending review, and
30 months’ probation. The trial court also ordered defendant to pay
$430.85 in restitution to Electronics Boutique, as well as other fines,
fees and costs.
The appellate court, with one justice specially concurring,
affirmed defendant’s conviction and sentence. 375 Ill. App. 3d 421.
The appellate court first agreed with the State’s concessions that
defendant was entitled to two days’ sentencing credit and a $10 credit
for time served to be applied against a $4 penalty imposed. In
addition, the appellate court agreed that the $10 DNA processing fee
and the $20 surcharge should be vacated. The appellate court also
agreed with the State that the trial court erroneously failed to hold a
hearing to determine defendant’s ability to pay the $200
reimbursement order for counsel’s fees, so that order must be vacated
and the cause remanded for a hearing on counsel fees.
The appellate court rejected defendant’s argument that his felony
retail theft conviction must be reduced to a misdemeanor because the
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State failed to allege or prove that the thefts were in furtherance of a
single intention and design. The appellate court also rejected
defendant’s claim that his felony retail theft conviction must be
vacated because the information failed to allege that defendant’s
conduct was in furtherance of a single intention and design. Finally,
the appellate court rejected defendant’s claim that his conviction must
be vacated because the trial court did not admonish him pursuant to
Supreme Court Rule 402 and did not admonish him about the
stipulations before defendant’s stipulated bench trial.
One justice specially concurred, writing separately to express his
concerns and suggestions regarding Illinois’ law on stipulations in
criminal cases. 375 Ill. App. 3d at 436 (Steigmann, P.J., specially
concurring). The appellate court subsequently denied defendant’s
petition for rehearing.
ANALYSIS
At issue in this appeal is defendant’s conviction of felony retail
theft. Section 16A–3 of the Criminal Code of 1961, the retail theft
statute, provides that:
“A person commits the offense of retail theft when he or
she knowingly:
(a) Takes possession of, carries away, transfers or causes
to be carried away or transferred, any merchandise displayed,
held, stored or offered for sale in a retail mercantile
establishment with the intention of retaining such
merchandise or with the intention of depriving the merchant
permanently of the possession, use or benefit of such
merchandise without paying the full retail value of such
merchandise.” 720 ILCS 5/16A–3(a) (West 2004).
If the full retail value of the property does not exceed $150, the
offense is a Class A misdemeanor. 720 ILCS 5/16A–10(1) (West
2004). If the full retail value of the property exceeds $150, the offense
is a Class 3 felony. 720 ILCS 5/16A–10(3) (West 2004). Further,
when a charge of retail theft of property, the full value of which
exceeds $150, is brought, the value of the property involved is an
element of the offense to be resolved by the trier of fact as either
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exceeding or not exceeding $150. 720 ILCS 5/16A–10(3) (West
2004).
In addition, section 111–4(c) of the Code of Criminal Procedure
of 1963 provides that, if two or more acts or transactions violate the
retail theft statute, those acts or transactions “may be charged as a
single offense in a single count of the same indictment, information
or complaint, if such acts or transactions by one or more defendants
are in furtherance of a single intention and design” and the property
obtained is from the same person or several persons having a
common interest in the property. 725 ILCS 5/111–4(c) (West 2004).
In that case, the period between the dates of the first act or transaction
and the final act or transaction may be alleged as the date of the
offense. 725 ILCS 5/111–4(c) (West 2004).
In People v. Brenizer, 111 Ill. 2d 220 (1986), this court addressed
whether a series of misdemeanors could be charged as a single felony,
or whether they must be charged as a single misdemeanor, pursuant
to section 111–4(c) (725 ILCS 5/111–4(c) (West 2004)). Brenizer
held that a series of acts committed by a defendant, each of which
might otherwise constitute a misdemeanor theft, may be charged as
a single felony when it is alleged that the acts were in furtherance of
a single intention and design to obtain the property of a single owner
or several persons having a common interest in the property.
Brenizer, 111 Ill. 2d at 228. The total value of the property taken will
determine whether the theft constitutes a misdemeanor or a felony.
Brenizer, 111 Ill. 2d at 229.
In this case, although the information charged defendant with a
violation of section 16A–3 of the Criminal Code of 1961, retail theft
over $150, a Class 3 felony, the parties agree that the information did
not allege that the acts were in furtherance of a single intention and
design, pursuant to section 111–4(c). Based upon this omission,
defendant argues that his felony retail theft conviction must be
reduced to the lesser-included offense of misdemeanor retail theft,
because the State failed to allege or prove that defendant’s conduct
was in furtherance of a single intention and design. Defendant also
argues that his felony retail theft conviction must be vacated because
the information did not allege the essential element of “in furtherance
of a single intention and design,” resulting in prejudice to defendant.
Finally, defendant argues that his felony retail theft conviction must
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be vacated because the State’s entire case was presented by
stipulation, and defendant was not personally admonished about the
stipulation, nor did he personally agree to the stipulation.
We first address defendant’s challenge to the information. As
noted, defendant argues that his felony retail theft conviction must be
vacated because the information failed to allege the essential element
that defendant’s mental state was to act in furtherance of a single
intention and design. Defendant contends that he was prejudiced by
this error because the charging instrument did not apprise defense
counsel of the correct elements of the offense with sufficient
specificity to allow him to properly prepare defendant’s defense.
Because this issue involves a question of law, our review is de novo.
People v. Daniels, 187 Ill. 2d 301, 307 (1999).
A defendant has a fundamental right, as set forth in section 111–3
of the Code of Criminal Procedure of 1963 (725 ILCS 5/111–3 (West
2004)), to be informed of the nature and cause of criminal accusations
made against him. People v. Nash, 173 Ill. 2d 423, 428-29 (1996).
Section 111–3(a)(3) provides that the charging instrument must set
forth the nature and elements of the offense charged. 725 ILCS
111–3(a)(3) (West 2004). Here, there is no dispute that the charging
instrument did not set forth the section 111–4(c) “in furtherance of a
single intention and design” element of the felony retail theft statute.
However, the timing of a challenge to the indictment is significant in
determining whether defendant is entitled to reversal of his conviction
based upon a charging instrument error. People v. Davis, 217 Ill. 2d
472, 478 (2005).
If an indictment or information is challenged before trial in a
pretrial motion, the indictment or information must strictly comply
with the pleading requirements of section 111–3. Nash, 173 Ill. 2d at
429; People v. DiLorenzo, 169 Ill. 2d 318, 321-22 (1996). If the
indictment or information does not strictly comply with the pleading
requirements of section 111–3, the proper remedy is dismissal.
People v. Cuadrado, 214 Ill. 2d 79, 87 (2005).
When an indictment or information is attacked for the first time
posttrial, however, case law and statute require a defendant to show
that he was prejudiced in the preparation of his defense. People v.
Davis, 217 Ill. 2d 472, 479 (2005). In People v. Gilmore, 63 Ill. 2d
23, 29 (1976), this court held that when the sufficiency of an
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indictment or information is attacked for the first time on appeal, the
indictment is sufficient if it apprised the accused of the precise
offense charged with sufficient specificity to prepare his defense and
to allow him to plead a resulting conviction as a bar to future
prosecutions arising from the same conduct. The legislature has
determined that the Gilmore prejudice standard also applies where a
charging instrument is challenged for the first time after trial, in a
timely motion in arrest of judgment alleging a failure to charge an
offense. 725 ILCS 5/116–2(c) (West 2004); see DiLorenzo, 169 Ill.
2d at 322 (motions in arrest of judgment attacking charging
instrument for failure to charge an offense subject to same two-
pronged test).
Defendant concedes that because his counsel first challenged the
information in this case in his posttrial motion in arrest of judgment,
the information is subject to the prejudice standard. Defendant
contends, however, that the error here did prejudice him because the
information did not apprise counsel of the proper elements of the
offense with sufficient specificity to allow him to prepare his defense.
The State denies that defendant was prejudiced by the error in this
case, arguing that this case is similar to this court’s decision in People
v. Cuadrado, 214 Ill. 2d 79 (2005). In Cuadrado, the defendant was
indicted for solicitation of murder for hire. Cuadrado, 214 Ill. 2d at
81. The relevant statutory provision provided that a person commits
solicitation of murder for hire when, with the intent that the offense
of first degree murder be committed, he procures another to commit
that offense. Cuadrado, 214 Ill. 2d at 83. The defendant’s indictment
charged that defendant, with the intent that the offense of first degree
murder be committed, solicited another to commit that offense.
Cuadrado, 214 Ill. 2d at 83-84. The defendant argued that because the
indictment replaced the essential statutory element of “procurement”
with the word “solicited,” she was not properly charged and the
indictment should have been dismissed. Cuadrado, 214 Ill. 2d at 84.
This court rejected the defendant’s argument. This court held that
the applicable standard for a midtrial challenge to an indictment is the
prejudice standard. Cuadrado, 214 Ill. 2d at 87. This court then
concluded that defendant was not prejudiced by the substitution of the
word “solicited” for the word “procured,” observing that defendant
had ample opportunity before trial to object to the indictment.
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Cuadrado, 214 Ill. 2d at 88. The indictment properly cited the
charged offense, and the only deficiency was the substitution of the
word “solicited” for the word “procured.” Cuadrado, 214 Ill. 2d at
88. This court held that, although the terms were not interchangeable,
the defendant was not prejudiced by the substitution. Cuadrado, 214
Ill. 2d at 88. This court further noted that, prior to filing her motion
to dismiss the indictment, the defendant had filed and argued a
motion for directed finding, which alleged that the State’s case in
chief failed to prove that defendant “procured” another to murder her
husband. Cuadrado, 214 Ill. 2d at 88. Defendant’s motion established
that defendant was aware of the State’s need to prove procurement,
so that the error in the indictment did not inhibit the defendant in the
preparation of her defense and did not cause her any prejudice.
Cuadrado, 214 Ill. 2d at 88.
We find this case distinguishable from Cuadrado and agree with
defendant that he was prejudiced because the information in this case
did not apprise him of the proper elements of the offense with
sufficient specificity to allow him to prepare his defense. In
Cuadrado, the indictment properly cited the charged offense and
simply substituted the word “solicited” for the word “procured.”
Thus, the defendant in Cuadrado could simply look to the statute to
determine that the State needed to prove procurement.
Here, in contrast, although the information properly cited the
felony retail theft statute, the information did not cite section
111–4(c), nor did the information allege that defendant’s conduct was
in furtherance of a single intention and design. Moreover, section
16A–3(a), the retail theft statute, contains no reference to section
111–4(c). Consequently, defendant could not look to section
16A–3(a), the cited statute, to find the missing element. In the
absence of the “in furtherance of a single intention and design”
language, or any reference to section 111–4(c) in the information,
then, defendant had no notice that the State was required to allege and
prove that the thefts at issue were in furtherance of a single intention
and design, in order to charge those thefts as a single felony.
Also in contrast to Cuadrado, there is no evidence that defendant
was aware that the State had to prove that the thefts were in
furtherance of a single intention and design. It was clear that the
defendant in Cuadrado knew that the State was required to prove
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procurement, because the defendant filed and argued a motion for
directed verdict at the close of the State’s case arguing that the State
failed to prove that defendant “procured” another to murder her
husband. Here, in closing argument, defense counsel argued that he
could find no authority allowing a charge with a “continuing course
of conduct” allegation, and that the “continuing course of conduct”
language was flawed. However, defense counsel never argued that the
State should have alleged and proved that the thefts were “in
furtherance of a single intention and design.”
The State argues, however, that the information sufficiently
apprised defendant that the State was attempting to aggregate several
individual thefts into a single felony theft, because defendant founded
his defense strategy on defeating that attempt. The State notes that
defendant’s defense was that the evidence showed only a “bunch” of
misdemeanors, not a felony.
Although defense counsel argued in closing that the evidence only
showed a “bunch” of misdemeanors and not a felony, and that the
Xbox games were taken over a series of dates rather than all at once,
we disagree with the State that this argument establishes that
defendant was not prejudiced in preparing his defense. It is clear that
defense counsel’s argument was in response to the “continuing course
of conduct” allegation. Defendant asserted no defense to a charge that
his conduct was “in furtherance of a single intention and design,” and
offered no evidence or argument that the games were taken pursuant
to numerous individual impulses, rather than in furtherance of a
single intention and design. Thus, while defendant may have been
aware that the State was attempting to aggregate several thefts into a
single felony, it is clear that defendant was not aware that in order to
aggregate those thefts, the State was required to prove that the thefts
were in furtherance of a single intention and design. The information
in this case, then, did not apprise defendant of the precise offense
charged with sufficient specificity to prepare his defense, resulting in
prejudice to defendant. Consequently, defendant’s conviction for
felony retail theft must be reversed.
Our inquiry, however, does not end there. This court recently
observed that “state and federal appellate courts have long exercised
the power to reverse a conviction while at the same time ordering the
entry of a judgment on a lesser-included offense.” People v. Knaff,
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196 Ill. 2d 460, 477-78 (2001). Here, in addition to challenging the
indictment, defendant has also argued that the evidence was not
sufficient to support his conviction for felony retail theft over $150.
Defendant claims that his felony retail theft conviction must be
reduced to the lesser-included offense of misdemeanor retail theft
because the State failed to allege or prove that his conduct was in
furtherance of a single intention and design. It is well established that
a defendant may be convicted of an offense not expressly included in
the charging instrument if that offense is a lesser-included offense of
the crime expressly charged. Knaff, 196 Ill. 2d at 472. In addition,
Supreme Court Rule 615(b)(3) (134 Ill. 2d R. 615(b)(3)), provides
that when a lesser-included offense is involved, a reviewing court has
the authority to reduce the degree of the offense of which a defendant
was convicted when the evidence fails to prove beyond a reasonable
doubt an element of the greater offense.
As a threshhold matter, we note that the parties dispute the proper
standard of review concerning this issue. Defendant argues that
because the facts of this case are not in dispute, and there is no issue
concerning the credibility of witnesses, this issue concerns the purely
legal question of whether the uncontested facts show that defendant’s
conduct satisfied the elements of the offense charged. Accordingly,
defendant claims the proper standard of review is de novo.
The State responds that there is a question of fact in this case:
whether the facts support an inference that defendant acted in
furtherance of a single intention and design, so that the appropriate
standard of review is reasonable doubt. Under that standard, the
relevant inquiry is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.
People v. McDonald, 168 Ill. 2d 420, 443-44 (1995). In that case, a
reviewing court will not reverse a criminal conviction unless the
evidence is so unreasonable, improbable or unsatisfactory as to create
a reasonable doubt of the defendant’s guilt. McDonald, 168 Ill. 2d at
444.
We need not resolve this issue, however, because, as set forth
below, even under the State’s more deferential standard of review, we
find that the State failed to prove beyond a reasonable doubt that
defendant committed the offense of felony retail theft. With regard to
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the merits of his claim, defendant argues that the State was required
to prove beyond a reasonable doubt that the multiple acts of theft
were in furtherance of a single intention or design. Defendant
maintains that the State failed to prove this element because there was
no evidence that defendant’s individual impulses to steal Xbox games
were part of a single intention and design. Moreover, the State never
argued that defendant’s actions were part of a single intention and
design, and the trial court never made any reference to the single
intention and design element in finding defendant guilty.
Consequently, defendant contends that his felony retail theft
conviction must be reduced to the lesser-included offense of
misdemeanor retail theft.
In addressing this issue, the appellate court stated that the State’s
failure to properly charge and argue the single intention and design
element was “disturbing,” but held that the evidence nonetheless
supported the inference that defendant acted with a single intention
and design. 375 Ill. App. 3d at 429. The appellate court rejected
defendant’s claim that because the games were taken over a six-week
period, the evidence established only that the games were taken as the
product of a number of individual impulses. The appellate court
stated that:
“The evidence, though, just as clearly shows that defendant
had money troubles and he systematically stole small amounts
of money and merchandise from his employer during most of
his employment in a manner that was less likely to raise
suspicion. Stealing the 15 games all at once or within a couple
of days would have been much more noticeable and likely to
immediately raise alarm. The evidence supports the inference
that defendant stole the 15 games over a period of time with
the single intention and design of stealing games he desired
without raising too much suspicion. The fact that he was
simultaneously stealing games and pocketing money during
his short time as an employee supports the inference that he
had a single intention and design to steal whatever he could
from his employer.” 375 Ill. App. 3d at 429.
We disagree with the appellate court. Our review of the record
establishes that the evidence was not sufficient to prove beyond a
reasonable doubt that defendant committed the offense of felony retail
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theft. With regard to the charged conduct, the stipulated evidence in
this case established that defendant stole 15 X-box video games for
himself, and that he would just take a game that he wanted. The value
of the games taken ranged in price from $17.99 to $49.99, so the State
was required to aggregate the thefts in order to prove that the full
retail value of the property taken exceeded $150. In order to aggregate
those thefts, the State was required to allege and prove that the acts
were in furtherance of a single intention and design to obtain the
property.
Following presentation of the stipulated evidence, the assistant
State’s Attorney argued:
“Your Honor, to be brief, I think Mr. Rowell’s written
statement, Exhibit C, actually summed up substantially what
happened, particularly what is in the charge, the theft of
XBOX [sic] video games, which he had been keeping for
himself. He admitted to the officers and also to the
Electronics Boutique employees that he had taken, in the
statement, $367 worth of games. The officers recovered those
games from Defendant’s residence.
The statement from the employee of Electronics Boutique,
Mr. McDonough, gives a sum of a slightly higher amount but
meets our burden of proof of $150, and also the observations
from the store employee, loss prevention officer, who tried to
make the purchase is consistent with the confession by the
Defendant, and he should be found guilty in this case.”
In response to defense counsel’s argument that the State had only
proven a “bunch” of misdemeanors and not a felony, the State
responded, “Briefly, your Honor, I would point out that right at the
beginning of Mr. Rowell’s written statement, he said ‘during his
employment with EB Games’. I think that is somewhat telling on that
issue addressed by [defense counsel].”
Absent from the preceding stipulated evidence and argument is
any evidence proving that defendant took the games in furtherance of
a single intention and design. As defendant argues, the State did not
accidentally prove an element that it neither charged nor argued. The
State established only that the total value of the games taken
exceeded $150, and that the games were taken during the course of
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defendant’s employment with Electronics Boutique. The appellate
court recognized in People v. Arbo, 213 Ill. App. 3d 828, 832 (1991),
that the “in furtherance of a single intention and design” element
relates to the mental state of the felony retail theft offense. Here, the
evidence was not sufficient to establish, by direct or circumstantial
evidence, the mental state that defendant acted in furtherance of a
single intention and design in stealing the video games. We agree
with defendant that, even viewing the evidence in the light most
favorable to the prosecution, the State failed to prove beyond a
reasonable doubt that defendant acted in furtherance of a single
intention and design. The evidence, therefore, was insufficient to
sustain a conviction for felony retail theft. However, we do conclude
that the evidence was sufficient to find defendant guilty of the lesser-
included offense of misdemeanor retail theft. Accordingly, we reduce
the degree of defendant’s conviction from felony retail theft to
misdemeanor retail theft, and remand this cause to the trial court for
resentencing on the lesser charge.
Finally, defendant also argues that his felony retail theft
conviction must be vacated because the State’s entire case was
presented by stipulation, and defendant was not personally
admonished about the stipulation, nor did the court obtain defendant’s
personal agreement to the stipulation. In support of this claim,
defendant cites this court’s decision in People v. Campbell, 208 Ill.
2d 203 (2003), contending that Campbell requires personal
admonishments where the stipulation includes a statement that the
evidence is sufficient to convict, or where the State’s entire case is to
be presented by stipulation. Defendant argues that because the State’s
entire case was presented by stipulation in this case, and he was not
personally admonished about the stipulation, Campbell requires
reversal of defendant’s conviction.
In Campbell, this court held that “defense counsel may waive a
defendant’s right of confrontation as long as the defendant does not
object and the decision to stipulate is a matter of trial tactics and
strategy.” Campbell, 208 Ill. 2d at 217. However, “when the State’s
entire case is to be presented by stipulation and the defendant does
not present or preserve a defense [citation], or where the stipulation
includes a statement that the evidence is sufficient to convict the
defendant,” the defendant must personally waive his right of
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confrontation. (Emphasis added.) Campbell, 208 Ill. 2d at 218. As we
explained in People v. Phillips, 217 Ill. 2d 270, 283 (2005), Campbell
“imposed no obligations on the trial court or counsel to admonish the
defendant and ensure that the advisement is made a part of the
record,” except in the preceding instances, when the stipulation is
tantamount to a guilty plea.
In the instant case, although the State’s entire case was presented
by stipulation, defendant did preserve a defense. For that reason, the
appellate court held that defendant did not need to be admonished
concerning the stipulations. 375 Ill. App. 3d at 434. We agree with
the appellate court. Because defendant preserved a defense in this
case, Campbell did not require the trial court or counsel to admonish
defendant and ensure that the stipulation was part of the record.
Defendant, however, points to the concluding language in
Campbell, where this court stated: “Where the stipulation includes a
statement that the evidence is sufficient to convict the defendant or
where the State’s entire case is to be presented by stipulation, we find
that a defendant must be personally admonished about the stipulation
and must personally agree to the stipulation.” Campbell, 208 Ill. 2d
at 221. Based upon the preceding language, defendant argues that
because the State’s entire case was presented by stipulation, the trial
court was required to admonish him about the stipulation and obtain
his consent. Defendant acknowledges that earlier in the Campbell
opinion, this court held that admonishments are required where the
State’s entire case is to be presented by stipulation and the defendant
does not preserve or present a defense. Nonetheless, defendant argues
that the more logical interpretation is that admonishments are
required any time the State’s entire case is to be presented by
stipulation, without regard to whether the defendant preserved or
presented a defense.
There is no merit to defendant’s claim. To clarify, this court’s
holding in Campbell is that admonishments are required when the
State’s entire case is presented by stipulation and the defendant does
not present or preserve a defense. The omission of the additional
qualification from the concluding language cited by defendant–that
the defendant did not present or preserve a defense–is a simple
oversight and does not reflect this court’s holding.
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CONCLUSION
For the reasons set forth above, we reverse the judgment of the
appellate court, affirming defendant’s conviction of felony retail theft,
and the judgment of the circuit court. We reduce defendant’s
conviction from felony retail theft to misdemeanor retail theft, and
remand to the circuit court with directions to resentence defendant on
the lesser charge.
Judgments reversed;
cause remanded with directions.
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