may please the court i'm jonathan some of them in with the illinois attorney general's office i represent the people on this appeal this court should apply people v k to the facts of this case to hold that retail theft is not a key headed that one more than one offense arises from a series of closely related acts and the offenses are not and i quote by definition unquote lesser included offenses convictions with in other words king adopted the abstract elements test for determining lesser included offenses under the want to run a crime doctrine apply to king's abstract elements test the crimes here would mean that retail theft  the victim suffered two distinct chorus from the two crowds defending cain sexually assaulted the victim and violated the said to be with her home and in this case the defendant enter crime when the jury had some question that to defend it was two of them or three greater but might conflict anyway on the greater because the jury felt that the defendant was said was to give and this is my answer to the difference to different rationale to different factual situation the different rationale has to do with jury instructions and given the jury  approach than jury instructions but convicted on both found enough proof so the factual scenario is different and the rationale is different so the rationale may please the court my name is deborah pugh and i'm the tourney for the f l d johnny miller the state is presenting this court with a solution in search of a problem the state would like this court to massively overhaul illinois jurisprudence based on based on hypothetical problems that in the past fifteen years since this court decided no back have never been proven to exist the state wants to revert back to the abstract elements approach which this court analyzed in detail in no back and then again in one thousand in two thousand and six in colton and determined to be superior to the charging instrument in nowak this court found that that the abstract elements approach was harsh mechanical and inflexible and it referred to charging instrument approach because the temper of the mechanical nature of the abstract elements approach which with the facts of the case now no back of course to deal with jury instructions and so therefore lesser included offenses that trial and what's at issue here is lesser included offense that sentencing in the one act one crime context however as discussed earlier in quite indicates that it did in fact consider can't quotes extensively from king including the language that said that that king's language about using the definition of the offense nevertheless rodriguez used the charging instrument or use a charging instrument approach to identify the lesser included offense so there is absolutely no indication that this court didn't consider what the import of king or what it meant to be quoting from novak which he did extensively in mclaurin although mclaurin didn't engage in an extensive analysis of the charging instrument approach it approaches then used at sentencing it's been easy to administer but the most important point is that the state in its reply brief and in argument today has been unable to point to one single case in which an actual problem related to the charging instrument approach has actually occurred yes and you cannot argue right that's because i think that because because the burglary is related to the entry of the theft is related to the taking that that it was not appropriate to argue that they were separate acts which is why i jumped immediately to the lesser granted there have been two recent cases in the courts there was a hole in the third district in bridgewater in the fourth district that explicitly rejected the charging instrument approach to lesser included offenses notably those cases did not even acknowledge that this court had used the charging instrument approach in rodriguez in mclaurin and in fact claimed falsely that this court has used the charging instrument approach only with regard to jury instructions notably too like the state here neither pony nor bridgewater could point to any actual problems with the charging instrument approach and instead was forced to like the state here discuss only hypothetical situations in which there are problems hypothetical situations that again have not occurred in the past fifteen years since nowak now one of these hypotheticals there's the well i don't think that there is a different consideration going on here understand the idea of i mean it is it is a different context and so it's that degree there's a different considerations but what we haven't considered is that actually in in the inside of illinois there's never been a difference between determining what the charging what  issue the jury is instructed under twenty six point zero one q or r whichever that they can acquit the defendant of false charges they can they can find the defendant guilty of one charge or they can find the defendant guilty of the of another charge  so if the state is not objecting to the charge against the right approach for that so let's say we have a charging instrument approach there the jury is properly instructed but nevertheless mistakenly returns with two of with two guilty verdicts for in this case for instance burglary and  now then once we've crossed the line of the conviction then suddenly the judge can say ok well there were two convictions that shouldn't probably have happened but because we now use the abstract omens approach on this and for sentencing that we can let those two convictions stand and this could happen not just in a jury instruction context but also in terms of a case like rodriguez where it was not a lesser included offense situation but where the defendant pleaded guilty and so there could be situations in which the defendant mistakenly improperly pleads guilty to two crimes one of which is  lesser included offense of the other and then then which would have been a problem at trial but then at the sentencing at the sentencing stage that there's no opportunity to correct that error because suddenly we jump to a different standard the abstract elements approach and so what was resulted in any windfalls but also switching to the abstract elements approach deprives courts of the opportunity to correct a problem that might have occurred at the trial in terms of finding the defendant guilty of lesser included offenses and and the greater offense which of the twenty six point  one q a jury should be instructed not to do and the state also presents other hypotheticals for instance in their brief they discuss situations in which the defendant is convicted of two crimes and then due to one act one crime would be sentenced on only the lesser crime so in this case that situation would be where my client johnny miller was was convicted of both burglary and retail theft and the state posits a scenario where due to one act one crime it would be the burglary conviction that would be vacated and the retail theft conviction would remain as this court made clear in levy any time that there is that conviction must be vacated under one act one crime it's the offense it's the more serious by the legislature that's the one that would remain and so in a different situation where the defendant is convicted of burglary and a more serious offense would be the burglar offense that would be vacated and so there would not result in any kind of windfalls for defendants where they're suddenly being sentenced to the less serious offense and due to the use of the charging instrument approach the charging instrument approaches proved to be reasonable and workable in practice that just cannot be stressed enough that there are no actual problems associated with it the state has been unable to find to determine any problems has been unable to comb through all of illinois law and come up with any actual problems any windfalls the defendant that lesser included offense jurisdiction is muddied and unintelligible other districts have not found that in a found it quite easy to apply especially considering that it's the same approach for jury instructions and the same approach for lesser included analysis whether there are two acts and we can see that there are two acts in this case the entry in the theft that's not that's not additional in this case what the polk or fails to recognize is the second half of lesser included offense analysis which this court has always used even prior to which is to look to whether there's a lesser included offense there there's a very telling quote in the poll case where the court says that the defendant argues quote that once a crime is laid it was labeled a lesser included offense of a greater crime no conviction can stand for the lesser included offense if the defendant is also convicted of the more serious offense we disagree in so saying the poker is disagreeing with this court in artists disagreeing with this court or in mclaurin and right because they disagree with this court and king disagreeing with this court in all of king's for in all the cases that preceded king this court has always maintained that there are two parts of the one act one crime analysis whether there are two acts and then if there are two acts whether one is a lesser included offense of the other the pol flatly rejects that and and just fails to understand completely that there is a lesser included offense analysis that at that that that issue there which i think is why that court found include a defense analysis to be so incredibly muddied because that court failed to recognize that there are two parts to it it's also notable that that court also that that that court also rejected this course opinion in nowak where nowak said explicitly that to determine whether one offense is a lesser included offense of the other that lesser included offense need not be essential to the commission of the greater offense and so novak said that the greater france does not necessarily have to require the lesser offense in order for the lesser offense to be a lesser included offense and poll also flatly rejected that saying well burg can be can be committed without that so therefore theft isn't a lesser included offense the whole court rejected this court's opinions and know that rejected this court's opinions an artist rejected this court's opinion thinking rejected the support court's opinions and in mclaurin in rodriguez not once even acknowledged that it was rejecting this course opinions and instead indicated that this court's opinions were somehow muddied and that that was the problem but in fact the problem was their failure to understand lesser included offense analysis and again that that the approach again was unable to point to any actual problem associated with it all of its problems were hypothetical it could not point to a single problem and the case in which in the case in which they decided that wasn't a lesser included offense was practically identical to the court's decision in hamilton determining that that was a lesser included offense of burglary and so as i said before there is nothing wrong with this court's approach and there is simply no reason to fix what isn't broken and if there are no furthe criminal conduct