People v. Hicks , 29 N.E.3d 451 ( 2015 )

2015 IL App (1st) 120035FOURTH DIVISION
March 5, 2015
No. 1-12-0035
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 12655
)
CARL HICKS, ) Honorable
) Thomas M. Davy,
Defendant-Appellant. ) Judge Presiding.
JUSTICE ELLIS delivered the judgment of the court, with opinion. *
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment and
opinion.
OPINION
¶1 Defendant Carl Hicks was charged with armed robbery for allegedly holding up a candy
store. The State's witnesses testified that, during the robbery, he pointed a gun at the store's cashier
and struggled with her over the money he took from the cash register. Defendant admitted that he
took the money from the register, but denied carrying a gun or touching the cashier.
¶2 Based upon his testimony, defendant requested that the jury be instructed on the lesser
offense of theft, which the trial court allowed. The trial court also sua sponte instructed the jury on
robbery, over defendant's objection. During its deliberations, the jury requested a legal definition
of "force," an element of robbery. 720 ILCS 5/18-1(a) (West 2008). The trial court responded that
there was no definition and that the jury should decide whether defendant used force based upon
the facts of the case. Defendant's attorney agreed with the trial court's response. The jury convicted
defendant of robbery.
*
This case was recently reassigned to Justice Ellis.
No. 1-12-0035
¶3 Defendant appeals, raising three issues: (1) whether the State's evidence was insufficient to
prove that he took the money by the use or threat of force; (2) whether the trial court erred in sua
sponte instructing the jury as to the offense of robbery; and (3) whether his trial attorney provided
ineffective assistance of counsel when he failed to tender a definition of "force" in response to the
jury's question.
¶4 We conclude that the State's evidence was sufficient to prove that defendant committed
robbery. The evidence at trial, viewed in the light most favorable to the State, showed that
defendant grappled with the store's cashier when he took the money from the cash register and thus
used "force" sufficient to convict him of the offense of robbery.
¶5 We also conclude that the trial court did not err in instructing the jury as to the
lesser-included offense of robbery. The evidence at trial supported such an instruction, and the trial
court cited the correct legal authority before delivering the instruction. The record shows no abuse
of discretion.
¶6 Finally, we reject defendant's claim of ineffective assistance of counsel, because we find
that defense counsel's failure to define force did not prejudice defendant. There is no pattern jury
instruction defining "force," and no authority requires a trial court to define that term. Moreover,
defendant cannot show that the definition of "force" would have likely changed the outcome of his
trial where the State's evidence supported a finding that defendant used force. Therefore, defendant
cannot show that there was a reasonable probability that the trial court would have accepted his
definition of force, much less that this definition may have changed the outcome of his trial. We
affirm defendant's conviction.
¶7 I. BACKGROUND
¶8 A. Trial Evidence
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¶9 Selena Clark testified that, on June 23, 2008, she was working at her family's candy store
located at 1158 West 87th Street in Chicago. Around 4 p.m., she noticed defendant enter the store.
Defendant approached the counter and "mumbled something." Clark testified that defendant held a
black revolver to her with his left hand and tried "to go in the register" with his right hand. He told
her to give him the money in the register. She testified that, as defendant reached for the money,
she grabbed his left wrist and was "fighting him off."
¶ 10 Clark testified that she screamed for her father, who was in the back office of the store. As
her father ran out of the office, defendant "took off running out [of] the door" with some money
from the register. After defendant fled, Clark noticed a cell phone on the floor in front of the
counter. Clark testified that, after the struggle with defendant, her fingernails were broken and
bleeding.
¶ 11 Willie Tate, Clark's father, testified that, when he ran out of the office, defendant was
"reaching in the register and [Clark was] fighting him off." Tate said that defendant "reach[ed] at
the register *** and [Clark] was hitting him." As Tate approached defendant, he saw that
defendant had a revolver in his right hand. Clark fought with defendant for about 15 seconds, when
defendant backed away and went out the door. Tate went around the counter to the lobby of the
store, where he saw a cell phone on the floor. Tate testified that he called the police after defendant
left.
¶ 12 Tate suffered from glaucoma, which affected his vision. Tate maintained that he could still
see at the time of trial and that he saw much better in June 2008 than he did at the trial. At the time
of the trial, Tate was in the custody of the Illinois Department of Corrections for a 2009 conviction
for delivery of a controlled substance. He had been convicted of two other drug offenses in 2002
and 2004 and had a pending drug charge from 2011. Tate testified that he had not made any deals
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or agreements in exchange for his testimony.
¶ 13 Tate testified that, while he was in Cook County jail in February 2010, he saw defendant.
Defendant asked Tate if he remembered him. Tate testified that, later that day, he saw defendant
again in the Bridgeview courthouse lockup. Tate testified that defendant said he did not mean to
harm Clark or Tate on June 23, 2008; that "[h]e just was high" and "needed a couple of more bucks
to get him [sic] some more drugs." Tate said that defendant apologized to him. Tate testified that
defendant said he did not mind if Tate testified "that he committed the robbery ***, but he asked
[Tate] if [he] would just not mention *** the gun."
¶ 14 Officer Gabriel Campos of the Chicago police department testified that he responded to the
scene of the robbery and spoke to Clark or Tate. He did not recall Clark being injured. Campos
testified that he arrested defendant later that day. Clark and Tate identified defendant in a lineup at
the police station.
¶ 15 The parties stipulated that the cell phone left at the store was registered to defendant. They
also stipulated that an investigator from the Cook County State's Attorney's office would testify
that he spoke to Tate prior to trial and that Tate told the investigator that, when he spoke to
defendant in jail, defendant said he did not have a gun during the robbery.
¶ 16 Defendant testified that, as of June 23, 2008, he was addicted to drugs. On that date, he met
a woman named Vanessa who said that she was also an addict. Defendant gave Vanessa his phone
and asked if she could sell it so that defendant could use the money to buy drugs. Defendant
testified that Vanessa took his phone into the candy store while defendant waited outside.
Defendant testified that Vanessa finally left the store 45 minutes to an hour later. Defendant
followed Vanessa to an alley, where she spit out a $10 bag of cocaine. Defendant testified that
Vanessa said, "That's all he would give me."
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¶ 17 Defendant testified that he took the bag of cocaine and returned to the store, hoping to get
his phone back. When he entered, he approached Clark, who was standing behind the counter.
Defendant saw his phone sitting on the counter. Defendant put the bag of cocaine on the counter
and asked for his phone back. Defendant testified that Clark denied giving the cocaine to Vanessa
or accepting defendant's phone.
¶ 18 Defendant testified that he reached for his phone but Clark grabbed it first. In response,
defendant grabbed $40 out of the open cash register, put it in his pocket, and ran out of the store.
Defendant denied having a gun with him that day. He also denied touching Clark or having a
struggle with her.
¶ 19 Defendant admitted that he apologized to Tate while they were both in jail. Defendant said
that he told Tate that he did not have a gun in the store. Defendant testified that he asked Tate "to
not come into court and lie *** and say that [he] had a gun."
¶ 20 B. Jury Instructions, Deliberations, and Verdict
¶ 21 During a break in the State's case-in-chief, the court and the parties had a preliminary
discussion regarding jury instructions. Defense counsel requested an instruction on theft as a
lesser-included offense of armed robbery. The State argued that theft was not a lesser-included
offense of armed robbery. After hearing arguments from defense counsel and the State, the court
elected to "wait and see if the defendant testified, and see what his testimony [was]" before
deciding to give the instruction.
¶ 22 At the close of defendant's case, the parties held a hearing regarding the jury instructions.
Defendant again requested an instruction for theft. The court said that it was "inclined" to instruct
the jury as to armed robbery, robbery, and theft, noting, "Under People versus Garcia *** the
Court may sua sponte give a lesser instruction." Defendant objected to instructing the jury on
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robbery. The trial court ultimately instructed the jury as to both theft and robbery.
¶ 23 The court defined robbery in accord with Illinois Pattern Jury Instructions, Criminal, No.
14.01 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 14.01): "A person commits the offense of
robbery when he knowingly takes property from the person or presence of another by [the] use of
force or threatening the imminent use of force." The court also instructed the jury as to the
elements of robbery in accord with Illinois Pattern Jury Instructions, Criminal, No. 14.02 (4th ed.
2000) (hereinafter, IPI Criminal 4th No. 14.02):
"To sustain the charge of robbery, the State must prove the following propositions.
First proposition: That the defendant knowingly took property from the person or
presence of Selena Clark.
And second proposition: That the defendant did so by the use of force or
threatening the imminent use of force.
If you find from your consideration of all the evidence that each one of these
propositions has been proved beyond a reasonable doubt, you should find the defendant
guilty.
If you find from your consideration of all the evidence that any one of these
propositions has not been proved beyond a reasonable doubt, you should find the defendant
not guilty."
¶ 24 During their deliberations, the jurors sent out a note asking for the "[d]efin[i]tion of force
legally." The court indicated that it would instruct the jury to keep deliberating:
"The defense submitted a suggested response of there is no legal definition as to
what constitutes force. State has submitted in writing force is to be determined from the
evidence in this indication. Please continue to deliberate.
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Since those are both brilliant answers, I prepared a response: Members of the jury,
there is no specific legal definition of, in quotation marks, force. That is a fact for the jury
to determine from the evidence presented in this case. Please continue your deliberation."
(Internal quotation marks omitted.)
Neither the State nor defense counsel objected to the court's response. The jury found defendant
guilty of robbery. Defendant appeals.
¶ 25 II. ANALYSIS
¶ 26 A. Sufficiency of the Evidence of Force
¶ 27 Defendant first claims that the State's evidence was insufficient to prove him guilty of
robbery beyond a reasonable doubt. Specifically, defendant argues that the State's evidence did not
prove that he used or threatened force where "the only person who used force was the store
cashier." We disagree because the evidence, viewed in the light most favorable to the State,
showed that defendant struggled with Clark as he took money from the cash register.
¶ 28 In reviewing the sufficiency of the evidence, we determine whether a rational trier of fact,
viewing the evidence in the light most favorable to the State, could have found the essential
elements of the crime beyond a reasonable doubt. People v. Ross, 229 Ill. 2d 255, 272 (2008). We
will not substitute our judgment for that of the trier of fact with regard to the credibility of
witnesses, the weight to be given to each witness's testimony, or the reasonable inferences to be
drawn from the evidence. Id. A defendant's conviction will not be set aside unless the evidence is
so improbable or unsatisfactory that it creates a reasonable doubt as to his guilt. People v.
Siguenza-Brito, 235 Ill. 2d 213, 225 (2009).
¶ 29 In order to prove the offense of robbery, the State must prove beyond a reasonable doubt
that the defendant knowingly took property from the person or presence of another "by the use of
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force or by threatening the imminent use of force." 720 ILCS 5/18-1(a) (West 2008). " '[T]he
degree of force necessary to constitute robbery must be such that the power of the owner to retain
his property is overcome, either by actual violence physically applied, or by putting him in such
fear as to overpower his will.' " People v. Bowel, 111 Ill. 2d 58, 63 (1986) (quoting People v.
Williams, 23 Ill. 2d 295, 301 (1961)).
¶ 30 Viewed in the light most favorable to the State, the evidence was sufficient to prove that
the defendant used force because Clark and Tate testified that defendant and Clark struggled over
the money he grabbed from the register. Although "a simple snatching or sudden taking of
property from the person of another does not of itself involve sufficient force to constitute
robbery," force may be established "where a struggle ensues." People v. Patton, 76 Ill. 2d 45, 49
(1979).
¶ 31 For example, in People v. Merchant, 361 Ill. App. 3d 69, 71 (2005), the victim testified that
the defendant snatched money from his hand, and that he and the defendant then "grabbed each
other," the defendant "slammed [him] into a window," and they "tussled." (Internal quotation
marks omitted.) Id. The court recognized that the defendant did not use force when he grabbed the
money from the defendant's hand. Id. at 74-75. The court still found that the defendant used force
when "a mutual struggle ensued during which the defendant pushed [the victim] against the
window." Id. at 75. The court concluded that "this use of force elevate[d] what would have been
mere theft to robbery." Id.
¶ 32 Likewise, in People v. Lewis, 285 Ill. App. 3d 653, 656 (1996), the court held the defendant
used force where "there was a struggle to retain *** money" between the defendant and the victim.
In Lewis, the victim made a purchase at a store while the defendant stood behind him. Id. at 654.
As the store teller laid the victim's change on the counter, the defendant "reached around [the
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victim] and placed his hand on the money." Id. The victim grabbed the defendant's hand and the
defendant broke away from the victim's grasp. Id. at 654-55. The victim pushed the defendant,
defendant then stooped down, and the victim fell over the defendant. Id. at 655. The Lewis court
concluded that the "case involved more than a mere snatching"; rather, "a struggle ensued and
force occurred between the victim and the defendant." Id. at 656. The court thus affirmed the
defendant's robbery conviction. Id. at 658.
¶ 33 In this case, like Merchant and Lewis, the evidence showed that defendant and Clark
struggled over the money he snatched from the cash register. Clark and Tate both testified that
Clark was "fighting [defendant] off" while he tried to take the money. We recognize that the
struggle that took place in this case was less violent than in Merchant and Lewis. But the State's
evidence showed that Clark resisted defendant's attempt to grab the money, at least to the extent
that she received broken and bloodied fingernails. However the events precisely transpired,
defendant managed to physically overcome this resistance. We emphasize that we must view the
evidence in the light most favorable to the State and draw all reasonable inferences in the State's
favor. People v. Wheeler, 226 Ill. 2d 92, 116 (2007). We hold that the State presented sufficient
evidence to prove that defendant used force to sustain his conviction for robbery.
¶ 34 Defendant argues that, because he was acquitted of armed robbery, but convicted of simple
robbery, the jury must have found that he did not use a gun in the course of the robbery—and
without the gun, there was insufficient evidence of force. We have just explained that the physical
struggle between defendant and Clark, by itself, was sufficient evidence of "force." We thus find it
unnecessary to consider defendant's speculation as to what the jury found, or did not find, in
acquitting defendant of the greater offense. We note, however, that even if the jury did find that
defendant was unarmed, contrary to the testimony of Clark and Tate, we cannot simply assume
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that the jury wholly rejected those witnesses' testimony regarding the struggle. See People v. Ellis,
39 Ill. App. 3d 766, 769 (1976) (a reviewing court may not make assumptions about a jury's
specific findings from a bare not-guilty verdict). Because both Clark and Tate testified as to the
struggle between defendant and Clark, and we must view that evidence in the light most favorable
to the State, the State presented sufficient evidence to prove that defendant used force during the
robbery.
¶ 35 B. Jury Instruction for Robbery
¶ 36 Defendant next challenges the trial court's decision to sua sponte instruct the jury on the
offense of robbery. There is no dispute between the parties, however, that robbery was a
lesser-included offense of armed robbery in this case. We agree. Under the "charging instrument"
approach we must follow, an uncharged offense is a lesser-included offense if: (1) the allegations
in the charging instrument contain a broad foundation or main outline of the lesser offense; and (2)
the evidence adduced at trial rationally supports a conviction on the lesser offense. People v.
Kolton, 219 Ill. 2d 353, 361 (2006). Both elements are met here. The charging instrument alleged
that defendant "knowingly took *** United States currency from the person or presence of Selena
Clark, by the use of force or by threatening the imminent use of force." Those allegations expressly
included the necessary elements of robbery. See 720 ILCS 5/18-1(a) (West 2008) ("A person
commits robbery when he or she takes property *** from the person or presence of another by the
use of force or by threatening the imminent use of force."). The evidence at trial also rationally
supported a robbery conviction, as the jury could believe defendant's testimony that he was not
armed but also believe Clark's testimony that defendant used force to take the money from the cash
register. See supra ¶¶ 30-34.
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¶ 37 Defendant's argument on the sua sponte instruction is two-fold. First, he argues that the
trial court failed to exercise its discretion because the record does not show that the trial court
considered all of the necessary factors before instructing the jury. Second, defendant claims that, if
the court exercised its discretion, that exercise was an abuse of discretion. We address each of
defendant's claims in turn.
¶ 38 We review a trial court's sua sponte decision to instruct the jury on a lesser-included
offense for an abuse of discretion. People v. Carter, 208 Ill. 2d 309, 324-25 (2003). " 'An abuse of
discretion will be found only where the trial court's ruling is arbitrary, fanciful, unreasonable, or
where no reasonable person would take the view adopted by the trial court.' " People v. Patrick,
233 Ill. 2d 62, 68 (2009) (quoting People v. Hall, 195 Ill. 2d 1, 20 (2000)). We apply de novo
review, however, where the question involved is whether the trial court "exercise[d] its discretion
within the bounds of the law." People v. Smith, 233 Ill. 2d 1, 15 (2009). We thus apply de novo
review to defendant's first argument, that the trial court did not exercise discretion in any
meaningful way before instructing the jury as to robbery.
¶ 39 Defendant argues that the trial court erred because it "gave no hint of what factors it
considered much less indicated that it had done the required balancing of the factors." In People v.
Garcia, 188 Ill. 2d 265, 282 (1999), the Illinois Supreme Court held that, "under appropriate
circumstances, a trial court possesses the discretion to instruct a jury sua sponte on lesser-included
offenses, even where the State does not request such instruction and the defense objects." That
decision was based in large part upon the court's decision in People v. Taylor, 36 Ill. 2d 483, 491
(1967), where the court suggested factors that a trial court should balance in deciding whether to
instruct the jury on a lesser offense, including "the public interest in the punishment of
wrongdoers," whether the lesser-included offense instruction would increase the likelihood of a
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compromise verdict, and "the views of the prosecution and defense as indicated by their requests
for instructions." In this case, defendant's argument is essentially one of form: because the trial
court did not expressly state the factors it considered, it failed to properly exercise its discretion
before giving the robbery instruction.
¶ 40 We find this argument unpersuasive. Neither Garcia nor Taylor required trial courts to
recite a specific list of factors. Certainly, neither case went so far as to say that the mere failure to
list certain factors on the record constituted reversible error. Moreover, in this case, the trial court
cited Garcia before giving the robbery instruction, indicating that the court was familiar with the
relevant law, including the factors defendant would have had the trial court state for the record. See
Garcia, 188 Ill. 2d at 274 (quoting Taylor, 36 Ill. 2d at 491). Nothing in the record suggests that the
court misunderstood the law or applied an incorrect standard. The trial court gave both the State
and defendant ample opportunity to argue against the delivery of a robbery instruction before
making its ruling. The record offers no support for defendant's claim that the trial court abdicated
its responsibility under Garcia and Taylor.
¶ 41 Were we to accept defendant's argument, the mere failure to mechanically recite the factors
listed in Garcia and Taylor would constitute error. Not only would such a rule greatly expand the
duties of a trial court beyond the standards set in Garcia and Taylor, but it would also contradict
case law eschewing the kind of formalistic rule defendant advances. For example, in People v.
Williams, 173 Ill. 2d 48, 83 (1996), the Illinois Supreme Court declined to find that the trial court
failed to conduct the proper balancing test before admitting defendant's prior conviction as
impeachment evidence simply because "the judge did not expressly articulate it." The court noted
that the trial judge had referred to case law reflecting the proper standard and that the parties
mentioned the standards to the court. Id. The court thus concluded that there was no reason to find
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that the trial court erred even though "the trial judge *** did not explicitly state that he was
balancing the opposing interests." Id.¶ 42 In this case, like Williams, we decline to find error simply because the trial court did not
recite the factors it considered before instructing the jury. The record shows that the trial court was
familiar with the applicable law. Nothing suggests that the trial court disregarded or
misunderstood that law. We find no error.
¶ 43 Defendant cites People v. Walker, 232 Ill. 2d 113 (2009), and People v. Whirl, 351 Ill. App.
3d 464 (2004), to support his argument that the trial court did not exercise its discretion, but neither
case is comparable to this one. In Walker, the trial court denied the defendant's attorney a
continuance even though the attorney admitted to being unprepared to try the defendant's
double-murder case because she was mistaken about the date of the trial. Walker, 232 Ill. 2d at
117-18. On appeal, the Illinois Supreme Court held that the trial court's denial of a continuance
was reversible error because it "mechanically denied the continuance without engaging in
thoughtful consideration of the specific facts and circumstances presented in this matter." Id. at
126. The court noted that the record did not show a pattern of delay by defense counsel and that
nothing in the record suggested that defense counsel requested a continuance "to thwart the
administration of justice or as a vehicle for improper delay." Id. at 126-28. The court stressed that
the trial court's entire consideration of the request for a continuance "comprise[d] less than one
page of trial transcript." Id. at 129.
¶ 44 In Whirl, the defendant was on trial for residential burglary and possession of a controlled
substance. Whirl, 351 Ill. App. 3d at 466. Prior to trial, the defendant moved to exclude evidence of
his 10 prior convictions, including 2 burglary convictions and 2 convictions involving controlled
substances. Id. In denying the defendant's request to exclude those convictions, the trial court
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simply noted that the prior convictions were the same as the charged offenses, that the convictions
were " 'all within a 10-year period' " of the charged offenses, and that defendant brought his "
'entire past to the stand.' " Id. On appeal, the court found that "[t]he record *** reveal[ed] a
complete abdication by the trial court of its role in balancing the probative value and prejudicial
effect of defendant's prior convictions." Id. at 467. The court reached this conclusion based upon
the trial court's "simply not[ing] that the convictions were within 10 years of the trial, then rul[ing]
that [the] defendant's entire history was fair game." Id. The court also noted that the trial court did
not appreciate how the similarity between defendant's prior convictions and the charged offenses
would increase the prejudicial effect of their admission: "[T]he only real consideration the court
seemed to give to any factor was that prior convictions of the crimes for which [the] defendant was
on trial should especially, rather than sparingly, be used." (Emphasis in original.) Id.
¶ 45 In both Walker and Whirl, the trial courts briefly considered the issues at hand and made
decisions that ignored the law and the facts of the cases before them. The same cannot be said of
the trial court in this case. To the contrary, the record shows that the trial court carefully considered
the arguments of the parties and relevant case law before deciding to instruct the jury. The trial
court asked the State about whether robbery was a lesser-included offense of armed robbery in this
case, asked for defense counsel's position regarding a robbery instruction, and cited Garcia before
making its decision. We cannot conclude that the trial court erred simply because it did not recite
the factors it considered in making its decision.
¶ 46 We now turn to the question of whether the trial court abused its discretion in instructing
the jury on robbery as a lesser-included offense. While defendant does not contest that robbery was
a proper lesser-included offense, he presents three reasons why the trial court's decision to instruct
the jury on that offense was an abuse of discretion. First, defendant notes that neither the State nor
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defense requested the instruction. But that fact alone does not undermine the court's decision. By
definition, a decision to instruct the jury sua sponte does not come at the request of either party. As
noted above, the Illinois Supreme Court has authorized trial courts to instruct juries on
lesser-included offenses despite the parties' objections. Garcia, 188 Ill. 2d at 282; Taylor, 36 Ill. 2d
at 491. Moreover, neither party expressed surprise over the trial court's decision. In fact, before
formally objecting to the instruction, defense counsel suggested that he would agree to submitting
the robbery instruction so long as the theft instruction was also given.
¶ 47 Second, defendant claims his request for a theft instruction rendered the robbery
instruction unnecessary. In Taylor, the supreme court stated that trial judges should be empowered
to sua sponte instruct juries on lesser-included offenses because "one whose conduct is unlawful
should not escape punishment altogether because a jury does not believe that he is guilty of the
greater offense." Taylor, 36 Ill. 2d at 491. Citing this proposition, defendant argues that the theft
instruction already ensured that he would not escape punishment for taking the money. According
to defendant, because he would still be punished even if the jury convicted him of theft, the
robbery instruction was unnecessary and unreasonable.
¶ 48 Defendant ignores the critical fact that the evidence at trial supported a robbery conviction.
If the jury believed that evidence, a conviction for robbery, not theft, would have been appropriate.
One reason that trial courts are empowered to sua sponte instruct jurors on lesser-included
offenses is to further "society's interest in punishing the defendant for a crime, no more, no less,
than the crime actually committed." (Emphasis added.) Garcia, 188 Ill. 2d at 281. The robbery
instruction reflected the appropriate punishment for defendant—no more, no less—if the jury
believed that defendant took the money from Clark by force. The theft instruction did not serve the
same purpose. The fact that defendant likely would have faced some punishment even if the
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robbery instruction was not given does not make the trial court's decision to give the robbery
instruction unreasonable or arbitrary.
¶ 49 Third, defendant claims that the robbery instruction enhanced the possibility of a
compromise verdict. But defendant requested and received an instruction for the lesser-included
offense of theft. Whether or not the jury received the robbery instruction, the theft instruction
already created the possibility for a compromise verdict. It is difficult to see how the trial court's
instruction would have greatly increased that risk. Also, nothing in the record suggests that the jury
convicted defendant based upon a compromise—the jury's note did not say that it was deadlocked
or divided in any way. Based upon the record before us, we cannot say that the trial court's decision
to instruct the jury on robbery was arbitrary, fanciful, or unreasonable.
¶ 50 C. Ineffective Assistance of Trial Counsel
¶ 51 Finally, defendant contends that he was denied his right to effective assistance of counsel
when his attorney failed to offer a definition of the term "force" when the jury requested one. We
disagree and conclude that defendant has not shown that his attorney's decision not to define
"force" prejudiced his right to a fair trial.
¶ 52 To establish a claim of ineffective assistance of trial counsel, defendant must show that his
attorney's performance was deficient and that he suffered prejudice as a result, i.e., there was a
reasonable probability that, but for counsel's deficient performance, the result of the proceedings
would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). "A
reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at
694. "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient
prejudice [rather than a lack of deficient performance], that course should be followed." Id. at 697.
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¶ 53 In this case, defendant claims that defense counsel should have offered the following
definition of "force," drawn from case law defining that term: "(1) the physical touching of a
person such that his power to retain his property is overcome; or (2) putting a person in such fear
that his power to retain his property is overcome." Although defendant's proposed definition of
"force" accurately states the law (see Bowel, 111 Ill. 2d at 63), defendant does not explain how that
definition would have helped him avoid a robbery conviction. If the jury believed Clark and Tate
regarding the struggle, it could have concluded that defendant engaged in physical touching
sufficient to overcome Clark's power to retain the money. See supra ¶¶ 30-34. Defendant cannot
show that his attorney's failure to offer a definition of force prejudiced him where that definition
likely would have led to his conviction.
¶ 54 Moreover, defendant cannot show that there was a reasonable probability that the trial
court would have even tendered the jury the definition had counsel presented it. Defendant
acknowledges that the Illinois Pattern Jury Instructions, Criminal, do not require the court to
define "force" when the jury requests a definition of that term. Defendant cites no case—and we
have not found one—in which the failure to define "force" has been considered error. "[W]hen
words used in an instruction have a commonly understood meaning *** it is not necessary to
define them for the jury by the use of additional instructions. This is especially true when the
applicable Illinois Pattern Jury Instructions do not suggest that such an additional definition is
necessary." People v. Bradley, 192 Ill. App. 3d 387, 393 (1989).
¶ 55 This conclusion is supported by this court's decision in People v. Sanchez, 388 Ill. App. 3d
467 (2009). In that case, the jury asked the court for clarification of the terms "incite," "induce,"
and "predispose," as they were used in defendant's entrapment instruction. Id. at 472. The
defendant's trial counsel acquiesced to the court's response, which told the jury that it had received
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all of the instructions and asked the jury to continue deliberating. Id. On appeal, we rejected
defendant's claim that his trial attorney's failure to offer a definition of those terms constituted
ineffective assistance because "[t]here [was] no indication that an additional definition or
definitions [were] needed" when the defendant raised his entrapment defense. Id. at 478.
¶ 56 Like Sanchez, this case involves a jury's request for clarification of a term that is not further
defined in the pattern instructions. Neither the instruction defining robbery (IPI Criminal 4th No.
14.01) nor the instruction setting out the elements of robbery (IPI Criminal 4th No. 14.02) states
that the court must define "force" when the jury requests a definition for that term. Defendant has
cited no case holding that such additional definition is necessary. Consequently, defendant cannot
show either that there was a reasonable probability that the trial court would have accepted his
proposed definition of force or that there was a reasonable probability that the definition would
have led to his being acquitted of robbery.
¶ 57 Defendant cites People v. Lowry, 354 Ill. App. 3d 760, 765-66 (2004), but in that case, the
pattern instructions required the court to further define the term the jury sought to clarify. In
Lowry, defense counsel did not submit a proposed response to the jury's request for clarification of
the term "knowingly" as it was used in the offense of aggravated battery with a firearm. Id. at 762.
However, a pattern instruction defined the term "knowingly," and the committee note to that
instruction expressly stated that the court should define knowingly when the jury requests a
definition. Lowry, 354 Ill. App. 3d at 765-66. The court in Lowry also cited case law holding that a
trial court commits reversible error when it refuses to define "knowingly" in the face of a jury's
request to clarify that term. Lowry, 354 Ill. App. 3d at 765-66 (citing People v. Brouder, 168 Ill.
App. 3d 938, 941 (1988)). Here, unlike Lowry, there is no pattern jury instruction defining the term
"force" or authority requiring the trial court to clarify that term. Without authority showing that
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No. 1-12-0035
"force" should be defined upon a request from the jury, defendant cannot establish that, if his
attorney had proposed such a definition, there was a reasonable probability that the trial court
would have delivered it.
¶ 58 Defendant also cites People v. Coots, 2012 IL App (2d) 100592, but in that case, the
defendant established prejudice because the jury's note indicated that it planned to apply a lower
standard than the law required. In Coots, the defendant was convicted of drug-induced homicide,
which required the State to prove that the defendant unlawfully delivered heroin to the victim. Id.
¶¶ 1, 17. During deliberations, the jury sent out a note that asked whether they could interpret the
term "delivery" to mean "give." (Internal quotation marks omitted.) Id. ¶ 16. The judge, without
objection from defense counsel, told the jury to refer to the instructions it had been given. Id. On
appeal, the court found that the defense counsel's acquiescence to the trial court's response
prejudiced the defendant because the jury's question, equating "delivery" to "give," showed that
the jury "was at least entertaining the belief that defendant could be found guilty for doing no more
than handing heroin to [the victim]," which was incorrect. Id. ¶ 53. The court indicated that defense
counsel should have given one of two available pattern instructions that defined "delivery." Id.
¶ 54. Unlike Coots, there is nothing in this case to indicate that the jury had considered applying a
lesser standard of "force" than what the law required. Furthermore, unlike Coots, there is no
pattern instruction defining "force" and nothing to show that the trial court likely would have
accepted defendant's proposed definition. We thus find that defendant's reliance on Lowry and
Coots is misplaced.
¶ 59 Defendant has not shown that, if his attorney had accurately defined "force" in response to
the jury's question, there was a reasonable likelihood that the outcome of his trial would have been
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No. 1-12-0035
different. Therefore, defendant has not shown that his attorney's alleged ineffectiveness was
prejudicial. His Strickland claim must fail.
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated above, we affirm defendant's robbery conviction. The evidence,
viewed in the light most favorable to the State, was sufficient to prove that defendant used force
during the robbery. The trial court did not err in sua sponte instructing the jury on robbery—a
lesser-included offense of the charged offense—where the court cited relevant case law in making
its decision, and the record does not show that an instruction for robbery was unreasonable or
arbitrary. Finally, defendant has not shown that there was a reasonable likelihood that his trial
would have been different had his attorney offered a definition of "force" in response to the jury's
request.
¶ 62 Affirmed.
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