No. 2--02--0026

After a stipulated bench trial, defendant, Jae D. Harrell, wasconvicted of two counts of theft from the person (720 ILCS 5/16--1(a), (b) (West 2000)), theft (720 ILCS 5/16--1(a) (West 2000)),and possession of drug paraphernalia (720 ILCS 600/3.5 (West2000)). Defendant appeals, contending that (1) the State failed toprove beyond a reasonable doubt that he took property from a personwhere the evidence showed that he stole a purse from a shoppingcart that was merely near the victim; (2) his three convictions oftheft violate the one-act, one-crime rule; and (3) the State didnot prove beyond a reasonable doubt that he possessed drugparaphernalia where there was no evidence that the glass pipe hepossessed was specifically marketed for use in ingesting drugs. Weaffirm in part, reverse in part, and vacate in part.

On January 22, 2001, Marie Campbell and her husband, Arthur,were shopping at Dominick's in Elmhurst. After they finishedshopping, Marie pushed her cart out to the couple's car. Her pursewas in the baby seat. When they reached the car, Arthur opened thetrunk. At this time, a white male with dark clothing approachedMarie from the rear, reached around her, and grabbed her purse fromthe cart. She did not see his face. The thief ran to a small,white car, and left.

Officer James Wadycki went to Dominick's and spoke to theCampbells. Marie said that her purse contained a cell phone,wallet, credit cards, $50 in cash, and a bank envelope with five$20 bills. While Wadycki was talking to the victim, anunidentified person handed him a slip of paper with the licensenumber T285901, stating that this was the license number of theoffender's car.

While still at Dominick's, Wadycki learned that Sergeant Buenzhad pulled over a car with license number T285901. The drivermatched the victim's general description of the thief. Marie wasdriven to the scene of the traffic stop and identified defendant,who had been driving the car, as the offender. The police found$50 in cash in the glove compartment.

Defendant and his passenger, Roger Pokosa, were arrested. Defendant gave a statement in which he admitted stealing the purse. He said that he and Pokosa had driven to Chicago earlier that dayto purchase crack cocaine, but had since run out of drugs. Theydrove to Elmhurst to see a girl whom defendant knew, but she wasnot at home. They drove to the nearby Dominick's so defendantcould buy a screwdriver to retrieve a crack pipe that had becomelodged in the center console of the car. In the parking lot, hedecided to steal Marie's purse.

Pokosa's statement generally corroborated defendant's. Headded that defendant gave him the purse as they were driving away. He removed $50 and threw the purse away on Washington Street.

Police looked for the purse but could not find it, althoughthey found Marie's cell phone. Later, Lawrence Reiger, who livesat 424 North Washington, called the police to report that his sonhad found a purse in front of their home. Marie identified thepurse as hers. After the police impounded defendant's car, acanine unit searched it. In the center console, police found aglass smoking pipe with cocaine residue.

Defendant was charged with two counts of theft from theperson, one count of theft, and possession of drug paraphernalia. Defendant agreed to a stipulated bench trial at which the courtconsidered the police reports. Defendant argued that he was notguilty of theft from the person because he did not take the pursefrom Marie's person, but merely from her presence. The trial courtdisagreed and found him guilty on all counts. The court latersentenced him to Treatment Alternatives for Safe Communities (TASC)probation.

Twenty-four days after sentencing, defendant filed a posttrialmotion. Although defendant now concedes that the motion wasuntimely, the State argued against the motion without objecting toits late filing. After the court denied the motion, defendantfiled a notice of appeal.

Before reaching the merits, we briefly address a potentialjurisdictional issue that the parties discuss. Although theposttrial motion was admittedly filed late, the State concedes thatappellate jurisdiction is proper because the State participated inthe hearing without objection. See People v. Kaeding, 98 Ill. 2d237, 240-41 (1983) (participating in hearing without objectionrevests trial court with jurisdiction). However, the State arguesthat defendant has waived all the issues he seeks to raise becauseonly a timely posttrial motion preserves issues for review.

We need not decide whether an untimely posttrial motion waivesthe issues it raises. Two of defendant's issues involve thesufficiency of the evidence, which cannot be waived. See People v.Enoch, 122 Ill. 2d 176, 190 (1988); People v. Bartlett, 175 Ill.App. 3d 686, 690 (1988). We choose to review the remaining issue--whether defendant was properly convicted of three counts of theftbased on a single act--as plain error. See 134 Ill. 2d R. 615(a).

On appeal, defendant first renews his contention that he wasnot proved guilty of theft from the person because the purse hestole was in a shopping cart and not on the victim's person. TheCriminal Code of 1961 provides that a person commits theft when heknowingly "[o]btains or exerts unauthorized control over propertyof the owner." 720 ILCS 5/16--1(a)(1) (West 2000). Section 16--1(b) defines different classes of theft offenses based on thepresence or absence of certain factors. For example, theft ofproperty not from the person and not exceeding $300 in value is aClass A misdemeanor. 720 ILCS 5/16--1(b)(1) (West 2000). Relevanthere, section 16--1(b)(4) provides, "[t]heft of property from theperson not exceeding $300 in value *** is a Class 3 felony." 720ILCS 5/16--1(b)(4) (West 2000).

As the State points out, theft from a person is not, strictlyspeaking, a separate offense, but is merely a factor authorizing anenhanced sentence. The State acknowledges that this is a"distinction without a difference," given that under Apprendi v.New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348(2000), the State must prove the enhancing factor beyond areasonable doubt. Therefore, we will analyze the issue under thereasonable doubt standard.

Where a defendant challenges on appeal the sufficiency of theevidence, the relevant question is whether, after viewing all theevidence in a light most favorable to the prosecution, a rationaltrier of fact could have found all the elements of the offensebeyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261(1985). This issue also involves construing the theft statute,which is an issue of law that we review de novo. People v. Harris,203 Ill. 2d 111, 116 (2003).

Apparently, only three Illinois cases have discussed what"theft from the person" means. In People v. Williams, 42 Ill. App.3d 134 (1976), the defendant was convicted of attempted robberyafter he handed a paper bag to a clerk at a dry cleaner and toldher, "Put the money in." Williams, 42 Ill. App. 3d at 135. Theappellate court reversed the defendant's attempted robberyconviction because there was no evidence of an implied threat, thenproceeded to decide of what lesser included offense the defendantwas guilty. The court rejected theft from the person because thedefendant did not try to take money from the clerk's person, butonly from the cash register, which was in her presence. Williams,42 Ill. App. 3d at 138. The appellate court thus reduced thedefendant's conviction to attempted theft. Williams, 42 Ill. App.3d at 138-39.

In People v. Jackson, 158 Ill. App. 3d 394 (1987), thedefendant pushed the victim against the outside of his car, reachedaround him, and took his wallet from under the front seat. Jackson, 158 Ill. App. 3d at 395. After considering conflictingauthority from other jurisdictions, the appellate court upheld thedefendant's conviction of theft from the person. The court opinedthat the "better view" is that the words " 'from the person' "include the taking of property from the presence of the victim. Jackson, 158 Ill. App. 3d at 399.

Most recently, in People v. Sims, 245 Ill. App. 3d 221 (1993),the appellate court reversed a conviction of theft from the personwhere the defendant took the victim's purse from a shopping cart. Evidence showed that the victim was 2