People v. Miller

Docket No. 107878.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.
JOHNNY L. MILLER, Appellee.
Opinion filed September 23, 2010.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Fitzgerald and Justices Freeman, Thomas, Kilbride,
Garman, and Karmeier concurred in the judgment and opinion.
OPINION
In People v. King, 66 Ill. 2d 551, 566 (1977), this court held that
when the State charges a defendant with multiple offenses that arise
“from a series of incidental or closely related acts and the offenses are
not, by definition, lesser included offenses” multiple convictions and
sentences can be entered. The question we must decide in this case is
whether, in determining when one offense is a lesser-included offense
of another under King, a court should employ the “charging
instrument” approach or the “abstract elements” approach. For the
reasons that follow, we hold that the abstract elements approach is the
proper analysis to employ.
Background
On December 16, 2004, the defendant, Johnny L. Miller, entered
a Walgreens drugstore in Elgin and was observed placing items in his
jacket. Predraqe Mrkalj, a security guard, stopped defendant as he
was leaving the store. Defendant agreed to accompany Mrkalj and
Jim McElmury, the store manager, to an office within the store.
There, defendant removed more than 20 items from his jacket.
Defendant then pulled a knife out, pointed it at Mrkalj and
McElmury, and fled. A woman in a car outside the store picked up
defendant and drove off. However, McElmury was able to obtain the
license plate number of the car and defendant was subsequently
arrested.
Thereafter, defendant was charged with burglary, retail theft, and
aggravated assault. The burglary indictment alleged that “defendant,
without authority, knowingly entered a building of Walgreen’s ***
with the intent to commit therein a theft.” The retail theft indictment
alleged that “defendant knowingly took possession of certain
merchandise for sale in a retail mercantile establishment, Walgreen’s,
*** being certain items, having a total value in excess of $150.00,
with the intention of depriving the merchant, Walgreen’s,
permanently of the possession of such merchandise, without paying
the full retail value of such merchandise.” The aggravated assault
charge stemmed from defendant pointing the knife at Mrkalj and
McElmury.
Following a jury trial in the circuit court of Kane County, at
which defendant represented himself, the jury returned guilty verdicts
on each count. Defendant filed a motion for a new trial, but did not
include a claim that retail theft was a lesser-included offense of
burglary. The motion was denied. Thereafter, defendant was
sentenced to one year of imprisonment on the aggravated assault
conviction, seven years on the burglary, and six years on the retail
theft, all to run concurrently. Defendant’s motion to reduce sentence
as excessive was denied.
On direct appeal, defendant argued that his retail theft conviction
must be vacated because it is a lesser-included offense of burglary
and, pursuant to King, convictions cannot be imposed for both a
greater offense and a lesser-included offense. The appellate court
agreed and reversed defendant’s conviction. No. 2–06–1211
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(unpublished order under Supreme Court Rule 23).
The appellate court held that, although defendant did not raise the
lesser-included offense claim in his posttrial motion, it would review
the alleged error under the plain-error doctrine. Applying the charging
instrument approach for deciding when an offense is lesser-included,
the appellate court concluded that, because the indictment for
burglary alleged that defendant entered the store “with the intent to
commit a theft therein,” it alleged the “main outline” of retail theft
and, therefore, that retail theft was a lesser-included offense of
burglary. Accordingly, the court held that defendant’s conviction for
retail theft had to be vacated under King. In reaching this holding, the
appellate court declined to follow People v. Poe, 385 Ill. App. 3d 763(2008), wherein the court rejected the charging instrument approach
and instead applied the abstract elements approach to determine that
theft was not a lesser-included offense of burglary under King.
We granted the State’s petition for leave to appeal. 177 Ill. 2d R.
315.
Analysis
In King, this court set forth what has come to be known as the
one-act, one-crime doctrine:
“Prejudice results to the defendant only in those instances
where more than one offense is carved from the same physical
act. Prejudice, with regard to multiple acts, exists only when
the defendant is convicted of more than one offense, some of
which are, by definition, lesser included offenses. Multiple
convictions and concurrent sentences should be permitted in
all other cases where a defendant has committed several acts,
despite the interrelationship of those acts. ‘Act,’ when used in
this sense, is intended to mean any overt or outward
manifestation which will support a different offense. We hold,
therefore, that when more than one offense arises from a
series of incidental or closely related acts and the offenses are
not, by definition, lesser included offenses, convictions with
concurrent sentences can be entered.” King, 66 Ill. 2d at 566.
Decisions following King have explained that the one-act, one-
crime doctrine involves a two-step analysis. People v. Rodriguez, 169
Ill. 2d 183, 186 (1996). First, the court must determine whether the
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defendant’s conduct involved multiple acts or a single act. Multiple
convictions are improper if they are based on precisely the same
physical act. Second, if the conduct involved multiple acts, the court
must determine whether any of the offenses are lesser-included
offenses. If an offense is a lesser-included offense, multiple
convictions are improper. Rodriguez, 169 Ill. 2d at 186. The present
case is concerned solely with the second step of the King analysis and
whether retail theft is a lesser-included offense of burglary.
Section 2–9 of the Criminal Code of 1961 defines a lesser-
included offense as an offense established by proof of lesser facts or
mental state, or both, than the charged offense. 720 ILCS 5/2–9 (West
2004). This court has noted that this definition provides little
guidance because it does not “specify what source to examine in
deciding whether a particular offense is a lesser included offense of
another.” People v. Novak, 163 Ill. 2d 93, 106 (1994); see also People
v. Kolton, 219 Ill. 2d 353, 360 (2006); People v. Bryant, 113 Ill. 2d
497, 505 (1986); People v. Mays, 91 Ill. 2d 251, 255 (1982). In the
absence of statutory direction, we have identified three possible
methods for determining whether a certain offense is a lesser-
included offense of another: (1) the “abstract elements” approach; (2)
the “charging instrument” approach; and (3) the “factual” or
“evidence” adduced at trial approach. Novak, 163 Ill. 2d at 106.
Under the abstract elements approach, a comparison is made of
the statutory elements of the two offenses. If all of the elements of
one offense are included within a second offense and the first offense
contains no element not included in the second offense, the first
offense is deemed a lesser-included offense of the second. Novak, 163
Ill. 2d at 106; Kolton, 219 Ill. 2d at 360. Although this approach is the
most clearly stated and the easiest to apply (J. Ettinger, In Search of
a Reasoned Approach to the Lesser Included Offense, 50 Brook. L.
Rev. 191, 198 (Winter 1984)), it is the strictest approach in the sense
that it is formulaic and rigid, and considers “solely theoretical or
practical impossibility.” In other words, it must be impossible to
commit the greater offense without necessarily committing the lesser
offense. Novak, 163 Ill. 2d at 106; Kolton, 219 Ill. 2d at 360.
Under the charging instrument approach, the court looks to the
charging instrument to see whether the description of the greater
offense contains a “broad foundation” or “main outline” of the lesser
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offense. Kolton, 219 Ill. 2d at 361. The indictment need not explicitly
state all of the elements of the lesser offense as long as any missing
element can be reasonably inferred from the indictment allegations.
This is the intermediate approach. Kolton, 219 Ill. 2d at 361.
Lastly, under the evidence or facts approach, the court looks to the
facts adduced at trial to determine whether proof of the greater
offense necessarily established the lesser offense. This is the broadest
and most lenient approach of the three. Kolton, 219 Ill. 2d at 360-61.
In the case at bar, the appellate court applied the charging
instrument approach to determine whether retail theft is a lesser-
included offense of burglary under King. The State contends that this
was error. The State acknowledges that King itself did not expressly
state which approach was to be used in determining whether one
offense is a lesser-included offense of another. However, the State
contends that the language used in King indicates that the court must
have applied the abstract elements approach. For example, in setting
forth the test to be applied, the court in King stated: “when more than
one offense arises from a series of incidental or closely related acts
and the offenses are not, by definition, lesser included offenses,
convictions with concurrent sentences can be entered.” (Emphasis
added.) King, 66 Ill. 2d at 566. Applying this test, King then upheld
the defendant’s multiple convictions (for burglary with intent to
commit rape and rape) because, as the court stated, each offense
required “proof of a different element.” (Emphasis added.) King, 66
Ill. 2d at 566. The State notes that the abstract elements approach
requires the court to examine offenses as defined by statute and
compare the offenses to see if different elements exist. Thus,
according to the State, when the court in King used the terminology,
“by definition” and “proof of a different element,” the court was
necessarily employing the abstract elements approach.
Defendant contends, however, that even if this court did employ
the abstract elements approach in King, we did not hold that courts
“were required” to do so. Moreover, defendant notes that in two
decisions issued subsequent to King, Rodriguez and People v.
McLaurin, 184 Ill. 2d 58 (1998), this court applied the charging
instrument approach to determine whether one offense was a lesser-
included offense of another under the one-act, one-crime doctrine. In
Rodriguez, the defendant was charged and convicted of, inter alia,
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aggravated criminal sexual assault and home invasion. “[B]ased on
the allegations in the indictment,” we concluded that home invasion
was not a lesser-included offense of aggravated criminal sexual
assault because the indictment referred to different conduct for each
offense. Rodriguez, 169 Ill. 2d at 190.
In McLaurin, defendant was charged and convicted of, among
other things, intentional first degree murder and home invasion. On
appeal, the defendant contended that, under the facts of the case,
home invasion was a lesser-included offense of murder and that his
conviction for home invasion had to be vacated. Applying the
charging instrument approach, we concluded that the indictment in
that case did not set out the main outline of home invasion and,
therefore, home invasion was not a lesser-included offense of
intentional murder. McLaurin, 184 Ill. 2d at 104-05.
Defendant maintains that “[e]ven if the use of the charging
instrument approach in Rodriguez and McLaurin represented a shift
away from the approach used in King, this Court was well within its
power to make that shift.” Defendant contends, therefore, that the
appellate court was correct to apply the charging instrument approach
in the case at bar.
The State argues, however, that Rodriguez and McLaurin do not
control the present case. The State points out that, in applying the
charging instrument approach, both Rodriguez and McLaurin cited
this court’s decision in Novak. In Novak, this court considered the
different approaches for determining whether one offense is a lesser-
included offense of another, and concluded that the charging
instrument approach was the preferred analysis to employ. Novak,
163 Ill. 2d at 112-14. However, Novak involved a defendant’s request
for a lesser-included offense instruction for an uncharged crime, not
whether, under the one-act, one-crime doctrine, one charged crime is
a lesser-included offense of another charged crime. The State
maintains that this distinction is significant. According to the State,
it may be appropriate to apply the charging instrument approach when
the lesser-included offense doctrine is used to determine whether a
defendant may be convicted of an uncharged offense or whether a
defendant is entitled to a jury instruction for an uncharged offense,
but it is not appropriate to apply the charging instrument approach for
determining whether a defendant may be convicted of multiple
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charged offenses. The State’s position finds support in case law.
In People v. Reed, 38 Cal. 4th 1224, 137 P.3d 184, 45 Cal. Rptr.
353 (2006), the California Supreme Court addressed what approach
should be used to determine whether one offense is a lesser-included
offense of another where multiple charged offenses are at issue. The
court began its analysis by discussing when a defendant may be
convicted of an uncharged offense. The Reed court noted: “[a]
defendant may be convicted of an uncharged crime if, but only if, the
uncharged crime is necessarily included in the charged crime.” Reed,
38 Cal. 4th at 1227, 137 P.3d at 186, 45 Cal. Rptr. at 355. According
to the court, “ ‘ “[t]his reasoning rests upon a constitutional basis:
‘Due process of law requires that an accused be advised of the
charges against him in order that he may have a reasonable
opportunity to prepare and present his defense and not be taken by
surprise by evidence offered at his trial.’ [Citation.]” ’ ” Reed, 38 Cal.
4th at 1227, 137 P.3d at 186, 45 Cal. Rptr. at 355-56.
In deciding whether an uncharged offense is necessarily included
within the charged offense, California applies a combination of two
tests: the statutory elements test (akin to our abstract elements test)
and the accusatory pleading test (akin to our charging instrument
test). The question before the Reed court was whether only the
statutory elements approach applied “to determine whether a
defendant may be convicted of multiple charged offenses” or whether
both tests should be used as in the case of uncharged offenses. Reed,
38 Cal. 4th at 1228, 137 P.3d at 186, 45 Cal. Rptr. at 356. The court
concluded that only the statutory elements test applied when
determining whether multiple charged convictions were proper,
finding “little reason” to apply both tests in such situations. Reed, 38
Cal. 4th at 1229, 137 P.3d at 187, 45 Cal. Rptr. at 357.
The Reed court noted that the accusatory pleading test “arose to
ensure that defendants receive notice before they can be convicted of
an uncharged crime.” Reed, 38 Cal. 4th at 1229, 137 P.3d at 187, 45
Cal. Rptr. at 357. Thus, the court reasoned that because a defendant
is entitled to notice of any possible charges he faces, “ ‘it makes sense
to look to the accusatory pleading (as well as the elements of the
crimes) in deciding whether a defendant had adequate notice of an
uncharged lesser offense so as to permit conviction of that uncharged
offense.’ [Citation.]” Reed, 38 Cal. 4th at 1229, 137 P.3d at 187-88,
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45 Cal. Rptr. at 357. However, the court then stated, “[b]ut this
purpose has no relevance to deciding whether a defendant may be
convicted of multiple charged offenses. ‘[I]t makes no sense to look
to the pleading, rather than just the legal elements, in deciding
whether conviction of two charged offenses is proper. Concerns about
notice are irrelevant when both offenses are separately charged... .’
[Citation.]” Reed, 38 Cal. 4th at 1229-30, 137 P.3d at 188, 45 Cal.
Rptr. at 357.
The Reed court then found that applying the accusatory pleading
test to charged crimes could lead to absurd results. The court noted
that one can easily commit robbery without murdering someone and
vice versa and that a conviction for both crimes would be warranted.
However, if the State alleged in the charging document, in connection
with the robbery, “that the force used in the crime consisted of killing
the victim with malice, then, as alleged, the defendant could not have
committed the robbery without also committing murder.” Reed, 38
Cal. 4th at 1230, 137 P.3d at 188, 45 Cal. Rptr. at 358. As such, “[i]f
the accusatory pleading test applied, conviction of both crimes would
be impermissible. Moreover, the murder would be necessarily
included in the robbery, not the other way around, which presumably
would require vacating the murder conviction.” (Emphases in
original.) Reed, 38 Cal. 4th at 1230, 137 P.3d at 188, 45 Cal. Rptr. at
358. The Reed court concluded: “[t]his outcome would be absurd
***.” Reed, 38 Cal. 4th at 1230, 137 P.3d at 188, 45 Cal. Rptr. at 358.
The defendant in Reed argued: “ ‘[j]ust as a ‘rose is a rose is a
rose is a rose’ [citation], a lesser included offense is a lesser included
offense is a lesser included offense’ ” and that the court must
“maintain a ‘logical consistency’ in the definition of necessarily
included offense ‘to make the scheme workable and logical.’ ” Reed,
38 Cal. 4th at 1230-31, 137 P.3d at 188, 45 Cal. Rptr. at 358. The
court rejected this argument, finding “it is logically consistent to
apply the accusatory pleading test when it is logical to do so (to
ensure adequate notice) but not when it is illogical to do so (when
doing so merely defeats the legislative policy permitting multiple
conviction[s]).” Reed, 38 Cal. 4th at 1231, 137 P.3d at 188, 45 Cal.
Rptr. at 358.
Ultimately, the Reed court held: “Our conclusion results in a
straightforward overall rule: Courts should consider the statutory
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elements and accusatory pleading in deciding whether a defendant
received notice, and therefore may be convicted, of an uncharged
crime, but only the statutory elements in deciding whether a
defendant may be convicted of multiple charged crimes.” (Emphases
in original.) Reed, 38 Cal. 4th at 1231, 137 P.3d at 188, 45 Cal. Rptr.
at 358. See also People v. Leal, 180 Cal. App. 4th 782, 103 Cal. Rptr.
3d 351 (2009) (applying statutory elements test to determine whether
the defendant could be convicted of multiple charged crimes).
In People v. Poe, 385 Ill. App. 3d 763 (2008), our appellate court
echoed much of the reasoning of Reed. In Poe, the defendant was
charged and convicted of both theft and burglary. On appeal, the
defendant contended that, under the charging instrument approach,
his conviction for theft was a lesser-included offense of burglary and,
therefore, had to be vacated under King.
Citing to decisions from this court such as Novak and People v.
Hamilton, 179 Ill. 2d 319 (1997), the appellate court acknowledged
that the charging instrument approach applied when determining
“whether a particular crime is a lesser-included offense for purposes
of jury instructions or convicting one of uncharged crimes in bench
trials.” Poe, 385 Ill. App. 3d at 769. However, the court went on to
conclude that the concerns which necessitated the application of the
charging instrument approach for determining whether a defendant
was entitled to a jury instruction on an uncharged offense, i.e., giving
the jury a third option to find the defendant guilty of a lesser offense,
were “logically not related to” the concerns at issue in King. Poe, 385
Ill. App. 3d at 769. Looking to the elements of the offenses at issue,
the appellate court then noted that “ ‘[b]urglary does not require a
taking and theft does not require an entry.’ ” Poe, 385 Ill. 3d at 766,
quoting People v. Johnson, 103 Ill. App. 3d 564, 567 (1982). For that
reason, the court concluded that theft was not a lesser-included
offense of burglary and affirmed the defendant’s convictions. See also
People v. Bridgewater, 388 Ill. App. 3d at 787, 802 (2009) (adopting
the reasoning of Poe).
We agree with the analysis of Reed and Poe. The justifications for
using the charging instrument approach with respect to uncharged
offenses–the importance of providing notice to the parties of what
offenses a defendant may be convicted of based on the particular facts
of the crime and what instructions may be sought–have no
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applicability when dealing with charged offenses. When charged
offenses are at issue, a defendant has notice of what the State seeks
to convict him of and is able to prepare and present a defense. As the
court in Reed commented, notice is simply not an issue. Moreover, as
a defendant is charged with both offenses, the jury will be instructed
on both and, thus, given “the option” to convict him of only the less
serious offense.
Likewise, allowing convictions on both charged offenses, under
the abstract elements test, will ensure that defendants are held
accountable for the full measure of their conduct and harm caused. As
the Reed court noted, it is illogical to apply the charging instrument
approach when it would defeat legislative intent. Relevant here, the
legislature has enacted two separate offenses, burglary and theft. Had
the legislature intended that a defendant could only be convicted of
one of them where they are based on conduct that occurred during the
same criminal transaction, it clearly could have said so. It did not.
Accordingly, we find no reason to apply the charging instrument
approach when a defendant is charged with multiple offenses and the
issue is whether, under King, one offense is a lesser-included offense
of the other.
We further agree with the State that McLaurin and Rodriguez do
not compel a different result. Nothing in McLaurin or Rodriguez
suggests that either party in those cases raised the issue of whether
King required the use of the abstract elements approach. Moreover,
there was no reason for this court to raise the issue on its own.
Because neither of the defendants in McLaurin or Rodriguez could
prevail under the broader charging instrument approach, there was no
need to consider whether their arguments would succeed under the
abstract elements approach. In short, today’s opinion represents the
first occasion for this court to consider, with the benefit of briefing
and argument, which approach should be applied under the one-act,
one-crime doctrine to determine whether one offense is a lesser-
included offense of another.
Finally, we note that our decision here is consistent with
principles of double jeopardy. The double jeopardy clause protects
against, inter alia, multiple punishments for the same offense. United
States v. Halper, 490 U.S. 435, 448-49, 104 L. Ed. 2d 487, 502, 109
S. Ct. 1892, 1902 (1989); Justices of Boston Municipal Court v.
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Lydon, 466 U.S. 294, 306, 80 L. Ed. 2d 311, 323, 104 S. Ct. 1805,
1812 (1984); United States v. Wilson, 420 U.S. 332, 343, 43 L. Ed. 2d
232, 241, 95 S. Ct. 1013, 1021 (1975); People v. Gray, 214 Ill. 2d 1,
6 (2005). Under double jeopardy principles, an offense and any
lesser-included offense are considered to be the “same offense.”
Brown v. Ohio, 432 U.S. 161, 168, 53 L. Ed. 2d 187, 195-96, 97 S.
Ct. 2221, 2226-27 (1977); Rutledge v. United States, 517 U.S 292,
297, 134 L. Ed. 2d 419, 426, 116 S. Ct. 1241, 1245 (1996); People v.
Pinkonsly, 207 Ill. 2d 555, 564-65 (2003). To determine whether an
offense is a lesser-included offense and, thus, the same as the greater
offense for double jeopardy purposes, the United States Supreme
Court employs the same elements test (see generally 50 Brook. L.
Rev. at 200), the equivalent of the abstract elements approach which
we have adopted in the case at bar.
Notably, other courts have recognized a distinction between
applying the charging instrument approach in the context of
uncharged offenses and applying the statutory or abstract elements
approach for purposes of double jeopardy. For example, in State v.
Baker, 456 So. 2d 419 (Fla. 1984), the Florida Supreme Court
concluded that the charging instrument approach might be appropriate
in defining a lesser-included offense for purposes of instructing the
jury on an uncharged offense, but that it played no role in double
jeopardy analysis. The court explained:
“ ‘Lesser included offense’ in regard to jury alternatives
is different from what that term means in regard to double
jeopardy. The former implements the nonconstitutional right
of an accused to an instruction which gives the jury an
opportunity to convict of an offense with less severe
punishment than the crime charged. The latter, on the other
hand, involves distinguishing offenses in order to protect
against multiple prosecutions for the same crime.” Baker, 456
So. 2d at 422.
See also Lemke v. Rayes, 213 Ariz. 232, 238, 141 P.3d 407, 413
(2006) (citing Baker and finding that lesser-included offenses in
connection with jury alternatives has a different meaning than in
connection with double jeopardy and applying the same elements test
to conclude that the defendant could not be convicted of both charged
offenses of armed robbery and felony murder).
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Having determined that the abstract elements approach is the
proper analysis to employ in the case at bar, we now look to the
statutory elements of the charged offenses to determine whether theft
is a lesser-included offense of burglary. We find that it is not. Under
section 19–1, “(a) A person commits burglary when without authority
he knowingly enters or without authority remains within a building,
*** with intent to commit therein a felony or theft” 720 ILCS 5/19–1
(West 2004). Under section 16A–3, “[a] person commits the offense
of retail theft when he or she knowingly: (a) Takes possession of, ***
any merchandise displayed, held, stored or offered for sale in a retail
mercantile establishment *** 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 (West 2004).
Not all of the elements of retail theft are included in the offense
of burglary and retail theft contains elements that are not included in
burglary. Retail theft requires a “taking” whereas burglary does not.
Likewise, retail theft requires that the defendant fail to pay for the
merchandise. Burglary does not. Lastly, the requisite intents of each
offense are different. Thus, it is possible to commit burglary without
necessarily committing retail theft. Accordingly, we conclude that
retail theft is not a lesser-included offense of burglary and, therefore,
both of defendant’s convictions can stand under King.
Conclusion
We conclude that the abstract elements approach applies to
determine whether one charged offense is a lesser-included offense
of another under King. We further conclude that theft is not a lesser-
included offense of burglary under that approach. Accordingly, we
reverse the judgment of the appellate court and affirm the judgment
of the circuit court.
Appellate court judgment reversed;
circuit court judgment affirmed.
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