People v. Jenkins

THIRD DIVISION
June 30, 2008

No. 1-06-1939

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
) the Circuit Court
Plaintiff-Appellee, ) of Cook County.
)
v. ) No. 04 CR 836
)
HAROLD JENKINS, ) Honorable
) Lawrence P. Fox,
Defendant-Appellant. ) Judge Presiding.

JUSTICE THEIS delivered the opinion of the court:

Following a jury trial, defendant Harold Jenkins was convicted of one count of

aggravated possession of stolen firearms (720 ILCS 5/16-16.1 (West 2004)) and two counts of

possession of a stolen firearm (720 ILCS 5/16-16 (West 2004)) and was sentenced to four years’

imprisonment. On appeal, defendant claims that his convictions should be reversed because (1)

the indictment was barred by the statute of limitations; (2) the statutes under which he was

convicted are ex post facto laws because they impermissibly criminalize conduct and increase

penalties for offenses that occurred before their enactment; (3) the trial court erred in excluding

testimony of defense witnesses; and (4) the trial court erred in instructing the jury on the

elements of the offenses. Alternatively, defendant argues that his trial counsel was ineffective for

failing to request the proper jury instructions. For the following reasons, we affirm.
1-06-1939

Defendant is a former lieutenant with the Maywood Police Department. As a condition

of bond in another criminal case, defendant was ordered to surrender all of his weapons to

Joseph Thomas of the Illinois Attorney General’s firearms unit. On September 26, 2002,

Thomas seized 21 weapons from defendant’s home, including a.357-caliber Marlin rifle and a

.45-caliber Ruger pistol. All of the guns were inventoried and their serial numbers traced to

discover their original purchasers, according to standard protocol. The Marlin rifle was

originally purchased by Horace Reedy and the Ruger pistol was originally purchased by Jason

Taylor. When he was a Maywood police officer, defendant arrested both men for weapons

violations and confiscated these particular weapons as a result of the arrests.

Defendant was indicted by a grand jury on January 8, 2004, and charged with two counts

of possession of a stolen firearm and one count of aggravated possession of not less than two,

but not more than five, stolen firearms. Defendant filed a motion to dismiss the indictment,

arguing that the statute of limitations on these possession offenses had expired. According to

defendant, the limitations periods began to run when defendant acquired the stolen firearms.

Defendant argued that the State failed to allege when the guns were acquired, but the

circumstantial evidence indicates that they were acquired well beyond the limitations period.

Furthermore, possession offenses have not been designated by the legislature as continuing

offenses, which designation would have extended the limitations period. The court denied

defendant’s motion.

The State’s theory of the case was that defendant acquired these weapons from the

evidence locker at the Maywood Police Department some time after the criminal prosecutions of

Reedy and Taylor, when the guns were no longer needed as evidence. Although defendant was

2
1-06-1939

not charged with theft, the State alleged that defendant knew that the Marlin rifle and Ruger

pistol found in his home were stolen from the Maywood Police Department.

Defendant sought to introduce testimony of four witnesses, including two former

Maywood police chiefs, who would testify generally about the existence of an unwritten policy

at the Maywood Police Department allowing officers to take confiscated weapons for their own

personal use after the close of the criminal case involving those weapons. The State filed a

motion in limine to exclude that testimony, arguing that none of these witnesses would testify

about when or by whom the policy was created and, thus, the testimony would lack a proper

foundation and would be inadmissible hearsay. Moreover, it was irrelevant because none of the

witnesses would testify that they personally gave or allowed defendant to take either of the guns

at issue in this case. The court barred the witnesses’ testimony for the reasons advocated by the

State.

The case then proceeded to trial. Officer Anthony Winburn testified that he and

defendant arrested Reedy on March 22, 1980, for firing the Marlin rifle while on the back porch

of his home. Defendant seized the rifle from Reedy and gave it to Officer Winburn, saying that

“it looked like a good gun for hunting.” Officer Winburn inventoried the gun and locked it in

the evidence locker at the Maywood police station. Officer Winburn did not permit anyone to

take the rifle after that point.

Taylor then testified that he lawfully purchased the Ruger pistol on July 23, 1992. That

day, Taylor went to the Maywood Police Department to report the theft of a different gun.

While there, he was arrested by defendant for a weapons violation that did not involve the Ruger

pistol. An hour after he was placed in a holding cell, defendant took Taylor to an interview room

3
1-06-1939

and showed him ten of the handguns that defendant apparently confiscated from Taylor’s home

while he was in custody, including the Ruger pistol he picked up earlier that day. Taylor said

that was the last time he saw the Ruger pistol.

When Taylor returned to the police station several days later to retrieve his weapons,

defendant told him that they would not be returned to him because he no longer had a valid

Firearm Owner’s Identification (FOID) card. On redirect examination, he stated that he did not

report any of the confiscated weapons as being stolen because “they [were not] stolen.

[Defendant] had them.”

Officer Jose Mazieregos also testified that as a lieutenant in the Maywood Police

Department’s internal investigations division, he investigated alleged police misconduct. He

assisted with the Attorney General’s investigation of defendant regarding the weapons seized

from his home, specifically the Ruger pistol and the Marlin rifle, although he was not asked to

elaborate on the nature or results of that investigation. He testified that nobody in the Maywood

Police Department gave defendant permission to be in possession of the Ruger pistol or the

Marlin rifle that were stored in the evidence locker at the Maywood Police Department.

The defense rested without presenting any evidence. After the court denied defendant’s

motion for a directed verdict, the parties and the court discussed the jury instructions. After the

court read each proposed instruction, the parties were permitted to comment or object. The court

indicated that two of the instructions related to possession of a stolen firearm were not Illinois

Pattern Jury Instructions (IPI). The State indicated that there were no IPI instructions on that

offense. Defense counsel stated, “Judge, it is a non-IPI instruction. It certainly contains the

elements that are involved in the indictment. So, I won’t object.” As to the instruction for

4
1-06-1939

aggravated possession of stolen firearms, defense counsel stated, “This is another non-IPI. I

don’t have any objection. I believe it states the elements.”

After closing arguments, the jury was given the following instruction on possession of a

stolen firearm:

“To sustain the charge of possession [of a] stolen firearm[,] the State must

prove the following propositions.

First, that the property that the defendant possessed, firearm, to wit; a

Ruger model P 890, 45 calibre [sic] pistol, serial No. 66033592.

And [the] second proposition is that when the defendant did so[,] he was

not entitled to possess said firearm.

And [the] third proposition is, that the defendant knew said firearm was

stolen.

If you find from your consideration [of] all evidence that any one of these

propositions has not been proved beyond a reasonable doubt, you should find the

defendant not guilty.

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.”

The same instruction was given with respect to the Marlin rifle. The jury was also instructed

that “Possession may be actual or constructive. A person has actual possession when he has

immediate or exclusive control over a thing.” The court also instructed the jury on the

definitions of “constructive possession” and “firearm.”

5
1-06-1939

The court then read the following instruction:

“To sustain the charge of aggravated possession [of] stolen firearm[s,] the

State must prove the following propositions.

First proposition, that the defendant possessed two firearms, to wit; a

Ruger model 980, 45, pistol serial No. 66033519. And a Marlin model 1894, 357

calibre [sic] rifle, serial number 21191688.

And [the] second proposition is that when the defendant did so[,] he was

not entitled to possess said firearm.

And, [the] third proposition, that the defendant knew *** said firearms

were stolen. ***

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.

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.”

The jury convicted defendant on all three counts. Defendant filed a motion for a new

trial, which was denied. This timely appeal followed.

Defendant first argues that the circuit court erred when it failed to dismiss the indictment

as barred by the statute of limitations. He contends that the court erroneously determined that

sections 16-16 and 16-16.1 of the Illinois Criminal Code of 1961 (Code) (hereafter, the

possession statutes) were “continuing offenses” that extended the three-year limitations period

6
1-06-1939

set forth in section 3-5(b) of the Code (720 ILCS 5/3-5(b) (West 2004)). He argues that the State

failed to meet its burden of proving that the legislature intended for the possession statutes to be

construed as continuing offenses. Because the court’s interpretation of a statute was the basis for

denying dismissal, we apply a de novo standard of review. People v. Jones, 223 Ill. 2d 569, 580,

861 N.E.2d 967, 974 (2006).

Section 3-5(b) of the Code provides that “a prosecution for any offense *** must be

commenced within 3 years after the commission of the offense if it is a felony ***.” 720 ILCS

5/3-5(b) (West 2004). To determine whether the indictment was brought within the limitations

period, we first must determine when the crimes of possession of a stolen firearm and aggravated

possession of stolen firearms were “committed.”

Initially, we note that this is a case of first impression. Neither of the possession statutes

have been construed by any Illinois court. Thus, we begin our analysis by examining the

language of the possession statutes, which is “the surest and most reliable indicator of the

legislature’s intent.” People v. Hudson, 228 Ill. 2d 181, 191, 886 N.E.2d 964, 971 (2008).

Section 16-16(a) of the Code provides that “[a] person commits possession of a stolen

firearm when he or she, not being entitled to the possession of a firearm, possesses or delivers

the firearm, knowing it to have been stolen or converted.” 720 ILCS 5/16-16(a) (West 2004).

Section 16-16.1(a)(1) of the Code provides that “[a] person commits aggravated possession of a

stolen firearm when he or she *** not being entitled to the possession of not less than 2 and not

more than 5 firearms, possesses or delivers those firearms at the same time or within a one year

period, knowing the firearms to have been stolen or converted.” 720 ILCS 5/16-16.1(a)(1)

7
1-06-1939

(West 2004). Because this excerpted language of the possession statutes is virtually identical,

our discussion below applies to both statutes.

Defendant argues that the possession crimes are “committed” at the time of the original

theft of the stolen firearms. He contends that his position is bolstered by the fact that the

possession statutes are contained within article 16 of the Code, which governs theft.

Specifically, the possession statutes should be construed in pari materia with section 16-1 of the

Code governing the offense of theft, which is considered to have been committed at the time of

the actual taking and is not considered a “continuing offense.” See People v. Kimbro, 182 Ill.

App. 3d 572, 538 N.E.2d 826 (1989); People v. Steinmann, 57 Ill. App. 3d 887, 373 N.E.2d 757

(1989). Additionally, he cites to the legislative history of the possession statutes to support his

argument.

Prior to the enactment of the possession statutes in 2000, section 16-1(a)(4) of the Code

would have governed the offense of possession of stolen firearms. Section 16-1(a)(4) provides

that “[a] person commits theft when he knowingly [o]btains control over stolen property

knowing the property to have been stolen or under such circumstances as would reasonably

induce him to believe the property was stolen.” 720 ILCS 5/16-1(a)(4) (West 2004). The Code

defines the phrase “obtains or exerts control” over property as including “the taking, carrying

away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property.”

720 ILCS 5/15-8 (West 2004).

However, the legislature amended article 16 of the Code in 2000 to create the two new

possession statutes, which contain language different from and more specific than those

contained in section 16-1(a)(4). When the legislature uses certain language in one part of a

8
1-06-1939

statue and different language in another, we may assume different meanings were intended.

Hudson, 228 Ill. 2d at 193, 886 N.E.2d at 972. Here, the legislature isolated the specific offense

of “possession” from the broader prohibition against “the taking, carrying away, or the sale,

conveyance, or transfer of title to, or interest in, or possession of” any type of stolen property.

The legislature also isolated the possession of a specific type of stolen goods. Rather than

prohibiting the possession of any type of stolen goods, sections 16-16 and 16-16.1 prohibit only

the possession of stolen firearms. Thus, we must determine the legislature’s intent in creating a

specific prohibition against the possession of one or more stolen firearms.

In the absence of a definition supplied by the statute itself, the words of the statute must

be given their plain and ordinary meaning. People v. Pierce, 226 Ill. 2d 470, 476, 877 N.E.2d

408, 410 (2007). However, we must also construe statutes consistently and in their proper

context. People v. Trainor, 196 Ill. 2d 318, 332, 752 N.E.2d 1055, 1063 (2001). Where a word

is used in different sections of the same statute, that word is presumed to have the same meaning

throughout the statute, unless a contrary legislative intent has been clearly expressed. People v.

Maggette, 195 Ill. 2d 336, 349, 747 N.E.2d 339, 347 (2001). Thus, we must look to the

definition of a term as it is used elsewhere in the same section.

A defendant violates sections 16-16 and 16-16.1 when he “possesses” firearms he knows

to have been stolen. The Code does not specifically define the term “possession.” However,

according to Black’s Law Dictionary, “to possess” means “to have in one’s actual control; to

have possession of.” Black’s Law Dictionary 1183 (7th ed. 1999). Similarly, “possession” is

defined as “the continuing exercise of a claim to the exclusive use of a material object.” Black’s

9
1-06-1939

Law Dictionary 1183 (7th ed. 1999). The plain and ordinary meaning of possession connotes the

continuing, uninterrupted act of retaining an object in one’s control or custody.

Moreover, this court previously has held that under section 16-1, “unauthorized

possession need not begin on the day of the original theft but may be shown by possession at the

time of the arrest.” People v. Helm, 10 Ill. App. 3d 643, 646, 295 N.E.2d 78, 80 (1973)

(explaining that a defendant could be found guilty of theft for merely being in possession of a car

that was reported stolen while he was incarcerated). Accord People v. Quick, 15 Ill. App. 3d

300, 302, 304 N.E.2d 143, 145 (1973). Accordingly, the legislature could only have intended for

the possession statutes to prohibit the continuing, uninterrupted act of retaining stolen firearms in

one’s control or custody, regardless of when they were acquired. Moreover, a possession crime

is “committed” at the time of the offender’s arrest, not at the time of the original theft. See

Helm, 10 App. 3d at 646, 295 N.E.2d at 80.

In this case, because the possession crimes were “committed” when defendant was

arrested on September 26, 2002, the statute of limitations period began to run on that date.

There is no dispute that the indictment was filed on January 8, 2004, within 3 years of

defendant’s arrest. Therefore, the indictment was timely and the circuit court did not err in

denying defendant’s motion to dismiss.

We reject defendant’s argument that the possession crimes were “committed” at the time

he acquired the stolen weapons. Defendant relies on Kimbro, 182 Ill. App. 3d at 573, 538

N.E.2d at 827, in support of his position, but that case is distinguishable from the facts before us.

In Kimbro, the defendant stole a tractor in 1975 and was arrested for that crime thirteen years

later. However, unlike the present case, the defendant was charged with theft under section 16-

10
1-06-1939

1(a)(1) of the Code, which is violated when one knowingly “obtains or exerts unauthorized

control over property of the owner.” Kimbro, 182 Ill. App. 3d at 573, 538 N.E.2d at 827 (citing

Ill. Rev. Stat. Ann. 1987, ch. 38, par. 16-1(a)(1), the wording of which is identical to the current

version of the statute, 720 ILCS 5/16-1(a)(1) (West 2004)). Ultimately, the charges against the

defendant were dismissed because the court determined that the original theft occurred in 1975;

thus, the statute of limitations had run and theft was not considered a “continuing offense” that

extended the limitations period. Kimbro, 182 Ill. App. 3d at 573, 538 N.E.2d at 827.

Possession of the stolen tractor was not at issue in Kimbro. If it were, the charge could

have been sustained because possession may be established at the time of the arrest and need not

have been traced back to the day of the original theft. See Quick, 15 Ill. App. 3d at 302, 304

N.E.2d at 145. Thus, defendant’s reliance on Kimbro here is misplaced.

Additionally, both Kimbro and defendant cite to People v. Steinmann, 57 Ill. App. 3d

887, 373 N.E.2d 757 (1989), as authority for the proposition that theft occurs at the time of the

taking and is not a continuing offense. However, the defendant in Steinmann also was charged

with theft under section 16-1(a)(2) of the Code for “knowingly exert[ing] unauthorized control

over” a gun and “depriv[ing] the owner permanently of the use and benefit of said [gun]” by

selling it to a third party without the owner’s authority, and he was convicted. Steinmann, 57 Ill.

App. 3d at 891, 373 N.E.2d at 760.

Aside from the fact that the events in Steinmann were “atypical,” and bear little

resemblance to the present case, the purported authority relied upon is dicta. Steinmann, 57 Ill.

App. 3d at 892, 373 N.E.2d at 760. The court overturned the defendant’s conviction because the

11
1-06-1939

evidence was insufficient; it only later discussed the statute of limitations issue in anticipation of

further review by the supreme court. Steinmann, 57 Ill. App. 3d at 893, 373 N.E.2d at 761.

Notwithstanding that fact, the court determined that based upon the unique facts of the

case and the definition of theft advanced in Helm, the theft could only have occurred once and

was not a “continuing offense.” Steinmann, 57 Ill. App. 3d at 894, 373 N.E.2d at 762. However,

the court did not invoke the Helm court’s discussion of the nature of possession because the

mere possession of the stolen gun was not at issue. Steinmann, 57 Ill. App. 3d at 894, 373

N.E.2d at 761. Thus, because Steinmann also failed to address possession, it is also inapplicable

here.

Defendant committed the possession offenses at the time of his arrest and the indictment

was filed within the three-year limitations period for those offenses. Therefore, we need not

determine whether the possession statutes should be considered “continuing offenses” that

extend the limitations period.

Defendant next argues that the application of section 16-16.1 of the Code in this case

violated the prohibition against ex post facto laws because it criminalized conduct that was not

illegal before January 1, 2000, the effective date of the statute. Moreover, he contends that

section 16-16 impermissibly increased the penalty for the offense that was formerly considered

possession of stolen property, also an ex post facto violation. In response, the State asserts that

defendant forfeited the issue. Defendant concedes that the issue was not raised in the court

below, but that this court should nevertheless review the issue for plain error.

To preserve an issue for review, the defendant must not only object at trial but also raise

the issue before the circuit court in a posttrial motion. People v. Herron, 215 Ill. 2d 167, 175,

12
1-06-1939

830 N.E.2d 467, 472 (2005), citing People v. Enoch, 122 176, 186, 522 1124, 1130 (1988).

Failure to do so results in forfeiture of review. Herron, 215 Ill. 2d at 175, 830 N.E.2d at 472 .

However, we may review unpreserved errors for plain error when (1) the evidence

presented in a criminal case is closely balanced; or (2) the error is so fundamental and of such

magnitude that the accused is denied the right to a fair trial and the integrity of the judicial

process is undermined. Hudson, 228 Ill. 2d at 191, 886 N.E.2d at 971. In addressing an issue

under plain error review, we must first determine whether an error occurred at all. Hudson, 228

Ill. 2d at 191, 886 N.E.2d at 971. To determine whether an alleged error is “plain,” we must

examine it substantively. Hudson, 228 Ill. 2d at 191, 886 N.E.2d at 971. Thus, we must first

consider whether the circuit court erred in applying the possession statutes in this case in

violation of the prohibition against ex post facto laws.

A law is considered ex post facto where it is retroactive, in that it applies to events

occurring prior to its enactment, and it is disadvantageous to a defendant. People v. Malchow,

193 Ill. 2d 413, 418, 739 N.E.2d 433, 438 (2000); Toia v. People, 333 Ill. App. 3d 523, 528, 776

N.E.2d 599, 604 (2002). A law is disadvantageous to a defendant if: (1) it punishes as a crime

an act previously committed and innocent when done; (2) it makes the punishment for a crime

more burdensome after its commission; or (3) it deprives one charged with a crime of any

defense available at the time when the act was committed. Malchow, 193 Ill. 2d at 418, 739

N.E.2d at 438; Toia, 333 Ill. App. 3d at 528, 776 N.E.2d at 604.

Here, the possession statutes are not retroactive, and thus, are not ex post facto laws. As

we have already explained, the crimes of possession of stolen firearms and aggravated

possession of stolen firearms are committed at the time of the arrest because the defendant

13
1-06-1939

possessed the contraband at the time of the arrest. See Helm, 10 App. 3d at 646, 295 N.E.2d at

80. In this case, defendant was arrested on September 26, 2002, nearly three years after

enactment of the possession statutes. The possession statutes were not applied retroactively to

events that occurred prior to the enactment of those statutes. Accordingly, the circuit court did

not err in applying the possession statutes in this case. Where there was no error, there can be no

plain error. Hudson, 228 Ill. 2d at 199, 886 N.E.2d at 975.

Defendant next argues that the circuit court abused its discretion in granting the State’s

motion in limine to preclude four defense witnesses from testifying at trial and thereby denied

him the right to present his defense. The court determined that the proffered testimony lacked a

proper foundation, was inadmissible hearsay, and was not relevant to the issues in this case.

The circuit court has the inherent authority to admit or exclude evidence, including

evidence presented in a motion in limine. People v. Bennett, 376 Ill. App. 3d 554, 571, 876

N.E.2d 256, 271 (2007). Generally, a court of review will not disturb the circuit court’s ruling

on evidentiary issues absent an abuse of discretion, which occurs when the ruling is arbitrary,

fanciful or unreasonable, or when no reasonable person would take the same view. Bennett, 376

Ill. App. 3d at 571, 876 N.E.2d at 271.

According to defendant’s brief, the four witnesses, all of whom were current or former

Maywood police officers, would have testified that the Maywood Police Department had an

unwritten policy “allowing guns returned by the court in gun cases to be given to officers for

their own use.” Defendant then cites to the State’s motion in limine.

The motion in limine indicates that the State received “reports consisting of interviews

with [the four defense witnesses] conducted by a defense investigator” and attached copies of

14
1-06-1939

those transcripts to the motion. Specifically, “Exhibit A [of the State’s motion in limine]

consists of the interview with Solomon Smith; Exhibit B consists of the interview with Leon

Melton; Exhibit C consists of the interview with James Stenson; [and] Exhibit D consists of the

interview with Thomas Duffy.” However, those transcripts are not included in the record on

appeal, nor did defendant provide us with his written response to the motion in limine.

Defendant also cites to an alleged offer of proof made by defense counsel at the hearing on the

motion in limine.

As the appellant in this case, defendant bears the burden of providing this court with a

sufficiently complete record of the proceedings below to support his claim of error. Foutch v.

O’Bryant, 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). Absent a complete record on

appeal, it will be presumed that the circuit court’s order was in conformity with the law and had

a sufficient factual basis. Foutch, 99 Ill. 2d at 392, 459 N.E.2d at 959. Any doubts that may

arise from the incompleteness of the record will be resolved against the appellant. Foutch, 99 Ill.

2d at 392, 459 N.E.2d at 959.

Neither the hearing transcript nor the State’s motion, without exhibits, are sufficient to

allow us to review defendant’s claim that the court abused its discretion by barring the

witnesses’ testimony. The alleged offer of proof made by defense counsel at the hearing was

nothing more than a restatement of the general claim that the Maywood Police Department had

an unwritten policy of giving guns to police officers for their personal use. Nevertheless, it is

clear that the court considered additional information in arriving at its decision. The assistant

State’s attorney made repeated references at the hearing to the contents of the “interview

reports,” which appear to be the same interview transcripts that should have been included in the

15
1-06-1939

record on appeal as exhibits to the State’s motion in limine. Additionally, the court remarked

that unlike the present case, the witnesses’ testimony was “premised on a court case being

disposed of.” However, defendant provides us with no evidence or explanation of the court case

that apparently was integral to the court’s evaluation of the testimony. Without a record

sufficient to support defendant’s claim of error, we must presume that there was an adequate

factual basis for the court’s decision and that it was made in conformity with the law.

Finally, defendant argues that the circuit court erred in not instructing the jury on the

definitions of “stolen property” and “theft” in accordance with the IPI instructions for possession

of a stolen motor vehicle (625 ILCS 5/4-103(a)(1) (West 2004)). Illinois Pattern Jury

Instructions, Criminal, Nos. 23.35, 23.36 (4th ed. 2000). Specifically, he argues that “the mens

rea in the [possession of a stolen motor vehicle] statute is identical to that of the offenses with

which [defendant] was charged.” Therefore, because the applicable instructions for the “most

directly analogous” offense were already well-established, the court should have given those

instructions here.

Defendant concedes that this instructional issue was not preserved for appeal because he

did not raise this issue in the court below, but again urges us to apply the plain error doctrine.

The plain error doctrine applies to the review of unpreserved instructional errors. Hudson, 228

Ill. 2d at 191, 886 N.E.2d at 970; 210 Ill. 2d R. 451. Again, however, we must first determine

whether error occurred at all where the circuit court instructed the jury pursuant to the non-IPI

instructions agreed upon by the parties rather than the IPI instructions for possession of a stolen

motor vehicle. See Hudson, 228 Ill. 2d at 191, 886 N.E.2d at 970-71.

16
1-06-1939

Supreme Court Rule 451(a) provides that in criminal cases, the circuit court “shall” use

the applicable IPI jury instruction. People v. Hudson, 222 Ill. 2d 392, 399, 856 N.E.2d 1078,

1082 (2006); 210 Ill. 2d R. 451(a). However, if there is no IPI instruction governing a particular

criminal charge, the court has the discretion to give a non-IPI instruction to the jury that is

“simple, brief, impartial and free from argument.” Hudson, 222 Ill. 2d at 399, 856 N.E.2d at

1082; 210 Ill. 2d R. 451(a).

In this case, it is undisputed that there is no applicable IPI instruction governing either

simple or aggravated possession of stolen firearms. Accordingly, at the jury instruction

conference, the State tendered a non-IPI instruction for possession of a stolen firearm, which

defense counsel recognized “certainly contains the elements that are involved in the indictment.”

Defense counsel also recognized that the State offered a non-IPI instruction for aggravated

possession of stolen firearms and stated, “I don’t have any objection. I believe it states the

elements.” The court then provided those instructions to the jury.

The circuit court did not err in doing so. The non-IPI instructions given in this case

accurately set forth all of the elements of the crimes of possession of a stolen firearm and

aggravated possession of stolen firearms. The instructions were simple, brief, impartial and free

from argument. The circuit court had no duty to sua sponte give the jury IPI instructions that are

analogous to a different offense, especially where defense counsel presented no such instructions

to the court. See People v. Curry, 296 Ill. App. 3d 559, 567, 694 N.E.2d 630, 637 (1998), citing

People v. Layhew, 139 Ill. 2d 476, 485-86, 564 N.E.2d 1232, 1236 (1990). Therefore, the court

did not abuse its discretion where it provided adequate non-IPI instructions to the jury rather

17
1-06-1939

than providing IPI instructions for an arguably analogous offense. As there was no error here,

we need not address the issue further.

Alternatively, defendant argues that his trial counsel was ineffective for failing to offer

IPI Instructions 23.35 and 23.36 relating to possession of a stolen motor vehicle. To prevail on a

claim of ineffective assistance of counsel, defendant must satisfy the two requirements set forth

in Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064

(1984). See also People v. Albanese, 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Under

Strickland, defendant must show (1) that counsel made an error so serious that his conduct fell

below an objective standard of reasonableness; and (2) there is a reasonable probability that but

for counsel’s error, the result of the trial would have been different. Strickland, 466 U.S. at 687-

88, 80 L. Ed. 2d at 693-94, 104 S. Ct. at 2064-65; People v. Gill, 264 Ill. App. 3d 451, 460, 637

N.E.2d 1030, 1037 (1992).

Defense counsel’s failure to submit a proposed jury instruction does not create a

presumption of ineffective assistance of counsel. Gill, 264 Ill. App. 3d at 460, 637 N.E.2d at

1037. Rather, defendant bears the burden of showing that the proposed instructions would have

been given to the jury and that the outcome at trial would have been different as a result. Gill,

264 Ill. App. 3d at 460, 637 N.E.2d at 1037. We must evaluate the reasonableness of counsel’s

conduct from counsel’s perspective in light of the totality of the circumstances. Gill, 264 Ill.

App. 3d at 460, 637 N.E.2d at 1037.

Here, the non-IPI instructions given to the jury were nearly identical in form to

Instruction 23.36. Thus, in effect, defendant contends that trial counsel was ineffective for

failing to make the novel legal argument that the court should also provide the “Definition of

18
1-06-1939

Possession of Stolen or Converted Vehicle,” pursuant to Instruction 23.35, as well as the

definitions of “stolen property” and “theft,” pursuant to its Committee Notes.

Counsel’s failure to make that argument did not prejudice defendant because that

argument likely would have failed. Unlike the possession offenses at issue in this case,

possession of a stolen motor vehicle requires proof that the defendant intended to permanently

deprive the owner of possession of the car. People v. Henry, 203 Ill. App. 3d 278, 280, 560

N.E.2d 1205, 1206 (1990). It is that additional element that gave rise to the IPI Committee’s

instruction to provide the jury with definitions for “stolen property” and “theft.” See Illinois

Pattern Jury Instructions, Criminal, No. 23.35 and Committee Notes (4th ed. 2000). The instant

possession offenses do not require such proof of actual theft or intent to permanently deprive the

owner of possession of the firearms. Giving a jury inapplicable instructions would have caused

confusion; thus, it is unlikely that the court would have given Instruction 23.35. See People v.

Mohr, 228 Ill. 2d 53, 67-68, 885 N.E.2d 1019, 1027 (2008). Therefore, we reject defendant’s

contention that trial counsel was ineffective for failing to submit these jury instructions in the

court below.

For all of the foregoing reasons, we affirm the judgment of the circuit court.

QUINN, P.J., and GREIMAN, J., concur.

19
 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

HAROLD JENKINS,

Defendant-Appellant.
________________________________________________________________

No. 1-06-1939

Appellate Court of Illinois
First District, Third Division

Filed: June 30, 2007
_________________________________________________________________

JUSTICE THEIS delivered the opinion of the court.

Quinn, P.J., and Greiman, J., concur.
_________________________________________________________________

Appeal from the Circuit Court of Cook County
Honorable Lawrence P. Fox, Judge Presiding
_________________________________________________________________

For PLAINTIFF- Richard A. Devine, State’s Attorney
APPELLEE, James E. Fitzgerald, Assistant State’s Attorney
Noah Montague, Assistant State’s Attorney
Angela Zak Ordway, Assistant State’s Attorney
Richard J. Daley Center, Room 309
Chicago, IL 60602

For DEFENDANT- Patricia Unsinn, State Appellate Defender
APPELLANT, Heidi Linn Lambros, Assistant Appellate Defender
203 North LaSalle Street
24th Floor
Chicago, IL 60601