No. 3--03--0495

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2005

JUSTICE HOLDRIDGE delivered the Opinion of the Court.

The defendant, Charles Price, was convicted of two counts oftheft (720 ILCS 5/16--1(a)(1), (4) (West 2002)) and sentenced toconcurrent five-year terms of imprisonment. On appeal, thedefendant argues that (1) his two theft convictions are legallyinconsistent; (2) the circuit court erred when it failed toinstruct the jury on a lesser offense; and (3) one of thedefendant's convictions must be vacated according to one act, onecrime principles. We reverse and remand for a new trial.

FACTS

On March 5, 2003, a superceding bill of indictment was filedcharging the defendant and Anthony Rose with one count ofburglary (720 ILCS 5/19--1(a) (West 2002)) and two counts oftheft (720 ILCS 5/16--1(a)(1), (4) (West 2002)) in connectionwith property taken from a law firm on November 30, 2002.

In the first theft count, the defendant and Rose werealleged to have "exerted unauthorized control over certainproperty of Schenk, Duffy & McNamara, to wit: office relatedproperty." In the second theft count, the defendant and Rosewere alleged to have:

"knowingly obtained control over certain stolen property ofSchenk, Duffy & McNamara, being office related property ***,under such circumstances as would reasonably induce them tobelieve that the property was stolen."

At trial, testimony revealed that an off-duty police officerworking for the Joliet Housing Authority was patrolling a portionof housing authority property on December 1, 2002. Atapproximately 12:15 a.m., the officer observed the defendant andRose walking away from the property, heading east over theJackson Street bridge. Approximately one hour later, the officerobserved Rose return to the property. Upon questioning, Rosetold the officer that his friend's car had broken down, and hewas getting a shopping cart to help him carry food. Rose thenwalked away with the cart, heading east over the Jackson Streetbridge.

Approximately 10 minutes later, the officer observed thedefendant and Rose walking back toward the property with theshopping cart, heading west over the Jackson Street bridge. Theofficer observed that the cart had several items in it, includinga television set in its box and several briefcases, one of whichcontained a laptop computer. The officer questioned the menabout the items in the cart. Rose answered that they found theitems near the garbage at the back of a thrift store. Afterobtaining permission to look at the items, the officer foundbusiness cards from the Schenk, Duffy & McNamara law firm.

Testimony also revealed that the law firm of Schenk, Duffy &McNamara had been burglarized some time during the evening ofNovember 30, 2002. The law firm was located about four blockseast from the housing authority property. A television, laptop,stereo, humidor with cigars, and several briefcases, among otherthings, had been taken from the firm. The officer found all ofthe firm's missing items in the shopping cart, except for a bluebank bag containing change.

Another officer also testified that Rose stated he receivedthe items at the thrift store. However, the officer testifiedthat Rose stated a woman at the thrift store gave him the items.

The State also offered the testimony of the woman who closedthe thrift store on November 30, 2002. She testified that sheclosed the store at 5 p.m. and that there were no items outsidethe thrift store when she left.

During its deliberations, the jury asked the court toclarify the difference between the two theft charges, and whetherthe defendant and Rose could be convicted of both. The judgeanswered by referring the jury back to the packet of juryinstructions.

The jury returned verdicts of not guilty on the burglarycharge and guilty on both theft charges. The defendant was latersentenced to concurrent five-year sentences. The defendantappeals from these two theft convictions.

ANALYSIS

First, the defendant argues that the circuit court erredwhen it allowed the jury to return guilty verdicts on both theftcounts. Specifically, the defendant argues that the two theftcounts are mutually exclusive; accordingly, it is legallyinconsistent to be found guilty of both counts simultaneously.

Logically inconsistent verdicts are permissible, but legallyinconsistent verdicts may not stand. People v. Edwards, 337 Ill.App. 3d 912, 788 N.E.2d 35 (2002). Legally inconsistent verdictsoccur when the trier of fact finds the same element to exist andnot to exist for crimes arising from the same factual scenario. In re Donald R., 343 Ill. App. 3d 237, 796 N.E.2d 670 (2003). Wedetermine whether legally inconsistent verdicts exist byanalyzing the statutory language of the charged crimes and theevidence introduced by the State during trial. Edwards, 337 Ill.App. 3d 912, 788 N.E.2d 35.

Statutory construction requires the reviewing court to determine and give effect to the legislature's intent. People v.Ceja, 351 Ill. App. 3d 299, 814 N.E.2d 171 (2004). Accordingly,we look to the plain language of the statute and resort to othertools of statutory construction only if the plain language isambiguous. Ceja, 351 Ill. App. 3d 299, 814 N.E.2d 171. Statutory construction is a question of law that warrants de novoreview. Ceja, 351 Ill. App. 3d 299, 814 N.E.2d 171.

Subsection (a)(1) of the theft statute (720 ILCS 5/16--1(a)(1) (West 2002)) provides that one commits theft when oneknowingly "[o]btains or exerts unauthorized control over propertyof the owner." The possession of stolen property provision ofthe same statute (720 ILCS 5/16--1(a)(4) (West 2002)) providesthat one commits theft when one knowingly "[o]btains control overstolen property knowing the property to have been stolen or undersuch circumstances as would reasonably induce him to believe thatthe property was stolen." We note that these two provisions donot constitute separate offenses (People v. Siverson, 333 Ill.App. 3d 884, 776 N.E.2d 850 (2002)); rather, they constitute twoseparate means of committing the single offense of theft (Peoplev. Graves, 207 Ill. 2d 478, 800 N.E.2d 790 (2003)).

We note the legislature's use of the disjunctive "or" insection 16--1(a)(4); the statute thus provides that one commitstheft when one knowingly obtains control over stolen propertyknowing the property to have been stolen, or when one knowinglyobtains control over stolen property under circumstances as wouldreasonably induce him to believe that the property was stolen. In this case, the State sought to prosecute the defendant fortheft under the latter description of theft. The chargingdocument describes the third charge against the defendant andRose in the following fashion:

"knowingly obtained control over certain stolen property ofSchenk, Duffy & McNamara *** under such circumstances aswould reasonably induce them to believe that the propertywas stolen." (Emphasis added.)

Accordingly, a guilty verdict under 16--1(a)(4), when charged inthis fashion, indicates the jury found that the defendant did notin fact know that the property was stolen, but only reasonablybelieved it to be so. In contrast, the guilty verdict under 16--1(a)(1) indicates the jury found that the defendant knew theproperty was stolen because the defendant was the actual thief.

At trial, the State produced evidence that the law officewas burglarized on November 30, 2002. A police officer observedthe defendant and Rose pushing a shopping cart containing theitems taken from the law office. Rose told the officer that hefound the items by the garbage at a thrift shop. He later toldanother officer that some unknown woman gave him the items at therear of the thrift shop. Further, the State offered thetestimony of the woman working at the thrift shop on November 30,2002. She testified that there were no items by the garbage atthe rear of the thrift shop when she closed the shop at 5 p.m.

The evidence introduced by the State at trial, coupled withthe manner in which the State charged the defendant, indicatesthat the State was seeking a single conviction for theft. TheState was proceeding on a theory of the defendant being theactual thief, or, in the alternative, that he had committed theftby possession of stolen property. We believe that one cannot bethe actual thief and, at the same time, possess merely areasonable belief that the property was stolen. Accordingly, wefind that the jury's guilty verdicts are legally inconsistent inthat it found both that the defendant knew the property wasstolen and that the defendant did not in fact know that theproperty was stolen.

A circuit court's failure to send the jury back for furtherdeliberations after it returns inconsistent verdicts necessitatesa reversal and a new trial on all counts. People v. Porter, 168Ill. 2d 201, 659 N.E.2d 915 (1995). Because the jury returnedlegally inconsistent verdicts in this case and the circuit courtfailed to send the jury back for further deliberations, thedefendant is entitled to a new trial, and we need not address hisother two arguments.

We reverse the judgment of the circuit court of Will Countyand remand for a new trial on all counts.

Reversed and remanded.

SLATER, P. J., and LYTTON, J., specially concur.

PRESIDING JUSTICE SLATER, specially concurring:

I agree that, based on the wording of the charges in theindictment, the two theft convictions are legally inconsistent. I also agree that, under such circumstances, existing precedentappears to require reversal and a new trial on all counts. See,e.g., People v. Fornear, 176 Ill. 2d 523, 680 N.E.2d 1383 (1997);People v. Porter, 168 Ill. 2d 201, 659 N.E.2d 915 (1995). Inote, however, that our supreme court reexamined the issue ofinconsistent verdicts in People v. Jones, 207 Ill. 2d 122, 797N.E.2d 640 (2003). In Jones the court explicitly overruled pastprecedent and held that defendants cannot challenge convictionson the sole basis that they are legally inconsistent withacquittals on other charges. Adoption of this position madeIllinois law consistent with that of the United States SupremeCourt. See United States v. Powell, 469 U.S. 57, 83 L. Ed. 2d461, 105 S. Ct. 471 (1984) (consistency of verdicts not requiredby Constitution). The Jones court specifically noted, however,that a different rule applies to inconsistent guilty verdicts. In such cases a trial judge is required to send the jury back todeliberate further because the court cannot usurp the jury'sfunction by guessing at what the jury really meant. Jones, 207Ill. 2d at 135, 797 N.E.2d at 648.

Jones cited five cases in support of the inconsistent guiltyverdict rule. In each of those cases the defendants wereconvicted of offenses which were not only inconsistent, they werealso different crimes punishable by differing sentences. SeeFornear, 176 Ill. 2d 523, 680 N.E.2d 1383 (defendant convicted ofaggravated discharge of a firearm and reckless conduct); Porter,168 Ill. 2d 201, 659 N.E.2d 915 (first and second degree murder);People v. Flowers, 138 Ill. 2d 218, 561 N.E.2d 674 (1990) (murderand voluntary manslaughter); People v. Spears, 112 Ill. 2d 396,493 N.E.2d 1030 (1986) (attempted murder, armed violence andreckless conduct); People v. Almo, 108 Ill. 2d 54, 483 N.E.2d 203(1985) (murder and voluntary manslaughter); see also People v.Hoffer, 106 Ill. 2d 186, 478 N.E.2d 335 (1985) (murder, voluntarymanslaughter and involuntary manslaughter). In such situations,it would be unfair to the defendant to simply vacate the lessserious offense, and unfair to the State to vacate the other. Inthis case, however, the defendant was convicted of a singleoffense. The various subsections of the theft statute do not setforth separate offenses, but rather create a single offense oftheft which may be committed in a number of ways. People v.Graves, 207 Ill. 2d 478, 800 N.E.2d 790 (2003); see also Peoplev. Marino, 44 Ill. 2d 562, 256 N.E.2d 770 (1970). The penaltyfor violating subsection (a) (1) is no different than that ofsubsection (a) (4). See generally 720 ILCS 5/16--1 (West 2002). Under such circumstances, I see no reason not to simply vacateone of the theft convictions instead of reversing and remandingfor a new trial. Cf. People v. Lee, 344 Ill. App. 3d 851, 801N.E.2d 969 (2003) (where statute establishes multiple methods ofcommitting single offense, no due process violation for courts toinstruct jury in the disjunctive, and jury may return generalverdict without deciding which method defendant used to commitoffense); People v. Siverson, 333 Ill. App. 3d 884, 776 N.E.2d850 (2002) (no due process violation for trial court to alsoinstruct jury regarding subsection (a) (4) of theft statute eventhough defendant was only charged with violating subsection (a)(1)). Nevertheless, because our supreme court in Jones recentlyreiterated the necessity of reversing and remanding in cases ofinconsistent guilty verdicts, I concur.

LYTTON, J., joins in this special concurrence.