## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Reim er , 2012 IL App (1st) 101253

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ROBERT REI MER, Defe ndant-Appe llant.

District & N o. First District, Second D ivision Docke t No. 1-10-1253

Opinion filed Rehea ringdenied Modified Opinion filed Marc h 30, 2012 May 3, 2012 May 8, 2012

Held (Note : This s

yl lab us

c o nst it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed by the Repo rt e r of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In a prosec ution for home repa ir fra ud, the State violated defe ndant’s due
proce ss rig hts by prese nting two incorre ct statements of law with reg ard
to home repa ir fra

ud befor e the g rand jury
, namely
, that the element of intent could be presumed and that defe ndant’s intent at t h e time of the
agree ment with the vi ctim was not an e lement of the offense, and those missta tements resulted in actua l and subst antial prejudice t o defe ndant; there fore
, the cause wa s remanded with direc tions to dismiss the indictment without prejudice
, s ince there wer e no conce rns about new dece ption or p erjure d testimony wher e the State would simply prese nt evidenc e satisfy

ing the element of defe ndant’s intent at the time of the
agree ment.

Dec ision Under Review Appea l from the Circuit Court of Cook Coun t y , No. 07-CR-20250; the Hon. Marc us R. Salone, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Phili p D. Pay ne, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s At torney , of Chicag o (Alan J

. Spellberg
, Ashley Rom ito, Mary Nee dham, and Sebastian Soto, Assistant State’s Attorney s, of counse l), for the People.

Panel J USTI CE HARRI S delivered the judgme nt of the cour t, with opinion.
J ustice Connors conc urre d in the judgme nt and opinion. Presiding Justice Quinn specia lly concur red, w ith opinion.

OP INION

¶ 1 Def

endant, R obert Reimer, was charg ed with one count of hom e repair fraud pur suant to section 3(a) (1) of the Home Repair Fr aud Act (815 I L CS 515/3(a)( 1) (West 2008)). A jury found defe ndant guilty

. The circ uit cour t sentenc ed defe ndant to 30 months’ probation, to pay ment of restitution to the victim, and to perf ormanc e of 288 hours of community service

. At issue is whether the State, in prese nting the case befor e the g rand jury
, violated defe ndant’s due proce ss rights. On Marc h 30, 2012, we filed an opinion afte r oral argument dismiss ing the indictment without prejudice
, reve rsing the judgme nt of the circ uit court and

rema nding the case for further proce eding s. Def endant filed a petition for rehe aring on April 20, 2012 asser

ting that the evidenc e prese nted at trial was insufficie n t t o s up port a conviction. Upon denial of defe ndant’s petition for rehe aring
, we issue this modified

1 opinion.

¶ 2 J URI SDI CTI ON ¶ 3 The circ uit court sentenc ed defe ndant on April 14, 2010. Def en d an t t i m ely filed his notice of appea l on April 16, 2010. Acc ording ly
, this court has jurisdiction pursuant to article VI
, section 6, of the I llinois Constituti o n and I llinois Supreme Court Rules 603 and 606,
g overning appea ls from a final judgme nt of conviction in a criminal case enter ed below. I ll. Const. 1970, art. VI , § 6; I ll. S. C t. R. 603 (eff. O ct. 1, 2010); R. 606 (ef f. Mar . 20, 2009).

Def end ant al so rai sed the fol lowi ng is sue s on app eal : wheth er the ci rc uit cou rt abu sed it s 1 dis cr et ion when it re

j ect ed def

end ant ’s sup ple m ent al j ury ins truct ion s; and whet her the eviden ce in thi s cas e was cl ose ly bal anc ed suc h tha t the ci rc uit court ’s viola ti on of I ll ino is Supr eme Cour t Rule 431( b) (e ff

. Ma y 1, 2007 ) amounts to pla in error

. However, due to our dis pos it ion of thi s app eal
, we do n ot nee d t o ad dre ss tho se ar gum ent s.

-2-¶ 4 BA CKGROUND

¶ 5 Def

endant wa s char g ed by

indictment with one count of home re pair fr aud pursua nt to section 3(a) (1) of the Home Repair Fr aud Act (Act ) (8 1 5 I L CS 515/3(a)( 1) (West 2008)). The indictment, in rele vant par t, stated defe ndant:
“KNO WI NGLY ENTERED I

NTO A WR I TTEN AGREEMENT OR CONTRACT, W HEN THE AMOUNT OF THE AGREEMENT OR CONTRACT WAS M OR E THAN $1,000.00, WI TH RI TA AVI LA FO R HOME REPAI R AND [ DEF ENDAN T] KNOWI NGLY PROMI SED PERFORMANCE WHI CH HE DI D NOT I NTEN[D] TO PERFORM OR HE KNEW WOUL D NOT B E PERFORMED.” ¶ 6 B e f

o r e the grand jury
, Detec tive Sandra Br yant of the Chicag o police depar tment testifi e d she was assig ned to investigate a home repa ir fra ud involving defe ndant as the offe nder and Rita Avila as the victim. Detec tive Br yant testified that throug h her investiga tion, she lear

ned that Avila enter ed into a contra ct with defe ndant to perf orm repa irs on her home on J une 11, 2007. On that same day Avila paid defe ndant $2,000. Def endant started work and Avila paid him a total of

$6,000. The last chec k that Avila g ave to de fenda nt w as on or about J uly 16, 2007. After J uly 16, 2007, defe ndant did not complete any more work on Avil a’ s h o m e. Detec tive Br

yant testified that at the time Avila and defe ndant came to an agree ment, Avila believed she knew wher e defe ndant’s office was. Avila had defe ndant’s cell phone number, which she use d to contact de fenda nt. ¶ 7 Detec tive Br

yant testi fi ed t h at wh en Av ila went to the addre ss wher e she believe d defe ndant’s office was located, she found a vaca nt lot. When Avila tried to contac t defe ndant throug h his c ell phone, it wa s disconnec ted. Def endant never provided Avila with any new contac t information. Detec tive Br yant stated that defe ndant did not perf orm $6,000 worth of work on Avila’s home. Specifica lly
, he was supposed to put in new kitchen cabine ts, which defe ndant neve r orde red. D efe ndant admitted to Detec tive Br yant that he started the w ork, but did not finish it, claiming that he ran out of m oney

. He further admitted he never gave Avila a ne w way

to contact him. ¶ 8 In response to questions from the g rand jury
, Detec tive Br yant testified that the defe ndant was supposed to “ tear out w alls and exis ting cabine ts in the kitchen and ba throom, replac e cabine ts and walls, paint, tile floors, an d p l u m bing work.” Detec tive Br yant testified that defe ndant “did demolition work” and “put up some walls.” Detec tive Br yant testified further that Avila found de fenda

nt on Contractors.com as BRB Construction. At one point during Detec tive Br

yant’s testimony
, th e grand jury asked the assistant State’s Attorney
, “What makes this a felony case versus a civil case to be taken befor e a civil court? ” In response , the followingexchang e occ urre d: “Q. [Assi stant State’s Attorney]: Detec tive, I ’m g oing to ask you a series of questions
to answer the For eman’ s question.
I s it true that acc ording to the hom e repair fraud statute that once two pa rties come
to an agree ment for home repa ir that if it is shown that the defe ndant has no intention to complete the w ork agree d upon, that it is a felony ?
A. Yes.

-3-Q. And does the statute also spec ifically show some examples of how intent to not finish can be inferr ed?
A. Yes. Q. And one of those specific examples is if the defe ndant ch an g es his business addre ss and does not by writing notify the victim of that chang e of the addre ss at the time of the c hang e?
A. Yes. Q. I s intent to not finis h the projec t a lso shown by the fa ct that the def

endant ne ver made c ontact with the victim to make any other a rra ng ements?
A. Yes. Q. And is it also shown by the fac t that the victim had no way either in person or by ph one or by letter, for that matter, since the addre ss was not exis tent to contac t the
contra ctor?
A. Yes.” ¶ 9 After testifying that defe ndant “stated he ran out of money” as t h e re as o n fo r n o t completing the work, the following exchang e occur red betwee n the g rand jury
, the assistant State’s Attorney , and De tective B ryant: “THE FOREPERSON: Did he admit that he intended not to complete the projec t or that he enter ed into this projec t with the intention of taking her money and not finishing? The question is: Did he intend not to finish this projec t on the onset of acc epting the job? Q. [Assi stant State’s Attorney]: Detec tive, is it corr ect that that is not an element of the offe nse? A. [Detective B ryant]: That’s corre ct.” ¶ 10 After

deliberating, the grand jury delivere d a true bill. 2 ¶ 11 Prior to trial, defe ndant filed a m o t i o n t o dismiss his indictment based on due proc ess violations. In his motion, defe ndant argued t h at “t h e State’s Attorney and the testifying detec tive misled the g rand jury by g rossly misstating the law for h o m e re p air fra ud.” 3 Specifica lly
, defe ndant argued that the State misled the g rand jury by stating that intent not to finish repa irs can be inferr ed in a varie ty of way s even though that subsection of the Home Repair Fra

ud Act had been severe d by our s up re me court. See People v. W atts , 181 I ll. 2d 133 (1998). Def

endant also pointed to the section of the g rand j u ry t ransc ript wher e

See sec ti on 17 of the J ury Act
, whic h st at es in re le vant part: “i t sha ll be the dut y of the cou rt 2
to app oin t a for eman *** whos e dut y it sha ll be, when the grand j ury, or any nin e of the m , fi nd a bil l of ind ic tment to be sup por te d by good and suf fi ci ent eviden ce, to ind ors e the re on ‘A true bil l.’ ” 705 I LCS 305 /17 (W est 200 8).

Def end ant al so al le ged in his m oti on to dis m is s t he i ndi ct m entth atth e St at e erron eou sl y 3 implie d to the grand j ury tha t he had pri or con victi ons

. Def end ant doe s not ra is e thi s con te nti on on app eal

.
-4-Detec tive Br yant, in response t o t h e assi stant State’s Attorney ’s question, stated that defe n d an t ’s i ntent not to finish the job at the onset of the job was not an element of the offe nse. Be cause the State did not prese nt evidenc e of defe ndant’s intent not to finish the job
at the onset o f th e co n t rac t, defe ndant argued that the State did not meet its burden of showing intent. Def

endant maintained that the State’s actions befor e the g rand jury resulted in actua l and substantial p re judice to him and the indictment ag ainst him should be dismiss ed. Def

endant also reque sted that the indictment be dismiss ed with prejudice beca use he contende d that the State would have to prese nt contra dictory evidenc e in order to reindict him. Def endant attache d to his motion as exhibi ts the transcript of the g rand j u ry p ro ce ed i n g s, a copy of section 3 of the Home Repair Fr aud Act (815 I L CS 515/3 (West 2008)), a nd his criminal history

repor t. ¶ 12 In response , the S tate argued that defe ndant never showed “how his due proc ess rights

wer e violated or how he was actua lly prejudiced.” The State maintained that it prese nted evidenc e showing that defe ndant did not intend to finish the projec t and that he did not finish the project. Sp ec i fi cally
, the S tate argued that “the intent not to complete the contra ct was evident by the defendant’s actions. The ex act timing of when the de fenda

nt decided not to complete the contra ct was an is sue for trial and wa s n o t require d for a finding of probable

cause .” The State also argued that it did not commit prosec utorial misconduct beca use there

was no e vidence that the assistant State’s Attorney intentionally

misled the g rand jury

. ¶ 13 The circuit court denie d d ef en d ant’s motion. In making its ruling
, the court stated that i t did not “believe that there was dece ption sufficie nt to undermine the deter mination o f probable cause .” The court commented further that “I think that statement attributed to the defe ndant wh er ei n t he defe ndant say s, I ran out of money

. I just wasn’t g oing to do it. He

cer tainly
, I think, exerted control over this young lady ’s money with the inten t to deprive her.” ¶ 14 After a trial, the jury found defe ndant gu i l t y

. Def endant filed a motion for a new tria l raising 19 points of err or. Relevant to t h i s appea l, defe ndant argued that the circ uit court

err ed in dismiss ing his motion to dismiss the indictment. Def endant was sentenc ed to 30 months’ probation, to pay ment of restitution to the victim, and to perf ormanc e of 288 hours of community

service

. ¶ 15 Def

endant timely

appea led.

¶ 16 ANALYSI S ¶ 17 We will first look at section 3 of the Ho m e R ep ai r Fr aud Act (815 I L CS 515/ 3(a) (1) (West 2008)), before addre ssing whether the State, in presentingthe ca se bef ore the g rand jury , violated def

endant’ s rig ht to due proce ss.

¶ 18 Section 3 of the Home Repair F raud A ct ¶ 19 The purpose of the Home Repair Fr aud Act “is to prohibit and preve nt the knowing use of fra ud and deceptive prac tices to induce an unwitting homeowner to e nter into a contra ct

-5-for home r epair s.” People v . Thompson , 275 I ll. App. 3d 725, 732 (1995). Section 3 of the

Home Repa ir Fr aud Ac t, in releva nt part, states: “(a ) A pe rson commits the offe nse of home repa ir fra ud when he knowing ly

enter s i n t o an agree ment or contra ct, written or oral, with a person for home repa ir, and h e knowing ly : (1) Misrepre sents a materia l fac t rela ting to the terms of the contra ct or agree ment or the pre exis ting or

exis ting condition of any portion of the prope rty involved, or cr eate s

or confirms another ’s impression which is false and which he does not believe to be true,

or promises perfo rm an ce which he does not intend to perf orm or knows will not be perf ormed; ***
* * * (c) For purposes of subsection (a)
, para g raph (1), it shall be a rebuttable presumption of intent or knowledg e that a person promises perf ormanc e which he does not intend to perf orm and knows will not be perf ormed when, afte r no perf ormanc e or no substantial perf orm an ce o f a contra ct or agree ment for home repa ir, he fails or ref uses to return pay ments made by

the victim and he: (1) fails to acknow ledg e or respond to a wr itten demand for commence ment or completion of home repa ir within 10 day s afte r such demand is mailed or prese nted
to him by the victim or by the victim’s leg al repr esentative or by a law enfor ceme nt

or consumer

ag ency actingon behalf

of the victim; or (2) fails to notify

the victim in writing of a chang e of business name or a ddress prior to the completion of the home re pair; or (3 ) makes false statements or repr esentations to the victim to excuse his non

perf ormanc e or non- substantial perfor mance ; or (4) uses dece ption to obtain the victim’s consent to modification of the terms of the orig inal contra ct or a gree ment; or (5) fails to employ qualified personne l nece ssary to perf orm the home repa ir; or (6) fails to order or purcha se the basic materia ls require d for perf ormanc e of the home re pair; or (7) fails to comply with municipa l, c ounty , State or fede ral regulations or codes relating to the pe rfor

mance of home re pair.
Intent and kn owledg e shall be deter mined by an evaluation of all circ umstances surrounding a transac tion and the deter mination shall not be limit ed to the t ime of
contra ct or a g ree ment. Substantial perf

ormanc e shall not include work perf ormed in a manner of littl e or no value or work that fails to comply with the appropr iate municipal, county , State, or fede ral re gulations or codes.”815 I L CS 515/ 3(a) (1), ( c) ( West 2008) ¶ 20 In Fe bruar

y of 1998, our supreme court issued its decision in People v. W atts , 181 I ll. 2d 133 (1998). W

atts addre ssed whethe r s ub s ection (c) under section 3 of the Home Repair Fr aud Act violated the “the constitutional limit s on the State’s rig ht to use presumptions in

-6-proving defe ndant’s guilt.” W atts , 181 I ll. 2d at 141. The defe ndant in W atts was char g ed with one count of theft and, like the defendant in the ca se at ba r, one c ount of home re pair fra ud under section 3(a )(1) of the Ac t. Id . at 135-36. The circ uit court found def endant not
guilty of t he theft count because “the S tate failed to prove that defenda nt had not intended
to perf orm the construction service s at the time that he enter ed into the contra ct.” Id

. at 137- 38. As for the home re pair fr aud count, the supreme court noted t hat because there was no dispute reg arding the exis tence of a contra ct betwee n the parties, “the only question at trial

was whether d ef

en d an t had intended to perf orm the promised work at the time he enter ed i n t o t h e contract.” Id. at 138. The trial court found that the S tate failed to prove defenda nt intended not to perf

orm his obligations under the contra ct, but did prove “the fa ct ors

nece ssary to raise a presumption of intent” under subsection (c) of the Act which “trig g ere d” the “statutory

presumption of intent.” Id. at 138-39. After finding defe ndant failed to r ebut the presumption of intent, the trial court found defe ndant guilty of home repa ir fra ud. Id. at 139. ¶ 21 In analy

zing the issue, our supre m e co urt fi rs t noted that “in the are a of criminal law, mandatory rebuttable presumptions which shift the burden of production to the defe ndant are unconstitutional” beca

use t h ey violate the due proce ss clause of both the United States Constitution and the I llinois Consti tution. Id. at 147. The supreme court then held that the “pre sumption contained in subsection (c) is mandatory and, as such, is unconstitutional.” Id.
at 149. After holding that subsection (c) was unconstitutional, the court dec i d ed that subsection (c) should be sever ed from the rest of the statute. Id. at 150-51. The supreme court noted that “while we strike subsection (c) of the statute, the rema inder of the statute rema ins intact and valid.” Id. at 151. We note that in making our deter mination in this case , we must consider our

supreme c ourt’s interpr etation of the Home Repair Fr aud Act in W atts as par

t of the statute beca

use the leg islature has not y et amende d section 3(a) (1) of the Home Repair Fr aud Act. See Abruzzo v. City of Park Ridge
, 231 I ll. 2d 324, 34 3 (2 0 0 8 ) (“Our interpre tation is considered pa rt of the statute itself until the l eg islature amends it contrary to that interpretation.”). ¶ 22 The supreme court also ruled that the defe ndant in W atts could not be retrie d on the same home repa ir fra

ud count due to collater al estoppel. W atts , 181 I ll. 2d at 152. The court stated, “the circuit court found that the S tate had not met its burden of proving that the defendant d i d n o t intend to perf

orm when he enter ed into the contra ct and, as a result, acq u i t t ed defe ndant on the theft count.” Id. The court held that this issue cannot be relitig ated beca use “a court in a retria l unde r the Act would be left to deter mine the issue of defe ndant’s intent
prec isely as it was decide d under the theft count at the orig inal trial.” Id. There fore
, beca use the circ uit court had alre ady acquitted the defe ndant of the theft count beca use the State did
not prove defe ndant had the requisite intent when enter ing into th e contract, the issue had alre ady been de cided in def

endant’ s favor

. Id. 4

J ust ic e Mi ll er spe ci al ly con cur re d, st at ing tha t he agree d wit h the m aj ori ty’s ana lysis 4

re gardi ng the fe der al con st it uti ona l is sue

. W att s , 181 I ll

. 2d at 152 (M il le r, J
., con cur ri ng). However, he bel ie ved tha t, “Bec aus e the cas e is dec ide d on fe der al con st it uti ona l grounds
, the re is no nee d for

-7-¶ 23 Gra nd J ury ¶ 24 Def

endant argues that th e ci rc u i t co u rt erred in denying his motion to dismiss his indictment. He conte nds the State misled the gra nd jury
, which he alleg es vi olated his due
proce ss rig hts and resulted in actua l and substantial prejudice

. Def endant arg

ues that the State misled the g rand jury by misinforming it in reg ard to the i ntent element of the Home Repair Fr aud Act, by specific ally rely ing on subsection (c) of section 3 of the Home Repair Fr aud Act, which was sever ed i n W a t t s

. Id. at 149. Def

endant maintains that he was prejudice d beca

use absent the misleading testimony
, he believes the grand jury would not have r eturne d a true bill aga inst him

. ¶ 25 In response , the State first conte nds defe ndant aff irmatively waived his c ontention that the State misled the g rand jury

. The S t at e points to comments by defe nse counsel during
argument befor e the circ uit court on defe ndant’s motion to dismiss the indictment which the State maintains shows that defe ndant conce ded that the State did not act intentionally . The State also argues that the rec ord establishes that the State did not deliberately mislead the
g rand jurors. In the alternative, the State arg ues that defe ndant cannot show that he suffe red
actua l and substantial prejudice

. The State contends that there was ample evidenc e to support the indictment and def

endant’ s eventua l conviction. ¶ 26 In proce eding s befor e the g rand jury
, the State’s Attorney acts as an advisor and prese nts both the law and the proposed char g es ag ainst the defe ndant. People v. DiVincenzo
, 183 I ll. 2d 239, 254 (1998). The g rand jury is allowed “the broade st possible sc ope consistent with constitutional limit ations” when conducting its investigations. People v. Fassler
, 153 I ll. 2d 49, 59 (1 9 9 2 ). Our supreme court has stated, and defe ndant rea dily admits in his opening brief, that “[c]hallenge s to gra n d j u ry proce eding s are limit ed.” DiVincenzo
, 183 I ll. 2d at 255. Ty pically
, “a defe ndant m ay not challeng e the validity of an indictment returne d by a leg ally constituted g rand jury” nor may a defe ndant “see k to challeng e the sufficie ncy of the

ev i d ence considere d by a g rand jury if some evidenc e was prese nted.” Id. However, indictments resulting from prosec utorial misconduct may be challeng ed by a defe ndant. Id. ;

see also People v. Holmes
, 397 I ll. App. 3d 737, 741 (2010) (“A trial court may dismiss an indictment if the defe ndant establishes t h at h e h as suffe red a prejudicia l denial of due
proce ss.”). ¶ 27 W h en ru l i ng on a motion to dismiss an indictment, courts ty pically consider only

th e transcript of the proce eding s befor e the grand jury

. DiVincenzo
, 183 I ll. 2d at 255. In doing so, we will revie w whethe r defe ndant suffe red a prejudicia l denial of due proce ss de novo

. People v. Mattis
, 367 I l l

. App. 3d 432, 435-36 (2006) (“be cause the essential fac ts

conce rning what happene d at the g rand jury proce eding s are undisputed, we revie w de novo

wh e ther defe ndant suffe red a prejudicia l denial of due proce ss that could war rant dism is s a l” )

. ¶ 28 P ro s ec u t o ri al misconduct befor e the g rand jury does not war rant dismis s al o f t h e

us to con si der her e whether the I ll ino is Cons ti tut ion ind epe n d e ntl y re qui re s the same re sul t.” Id. J ust ic e Mi ll er , the re for e, did “no t j oin the bri ef dis cus si on in the m aj ori ty opi nio n re gardi ng a st at e

con st it uti ona l b asi s” forth e de ci si on. Id.

-8-indictment unless defe ndant “ca n show that such misconduct results in actua l and substantial prejudice to him.” Fassler
, 153 I ll. 2d at 58. Our supreme court, in DiVincenzo
, explained:
“To war rant dismiss al of the indictment, howeve r, a defe ndant must ordinarily show that *** any prosec utorial misconduct aff ecte d the g rand jury ’s deliberations. [C itation.] Prosecutoria l misconduct must rise to the level of a depr i v ation of due proce ss or a miscarr iag e of

justice. [C itations.] The due proce ss rig hts of a defe ndant may be violated if the prosec utor deliberately or intentionally misleads the g rand ju ry , uses known perjure d or false testimony
, or pre sents other dece ptive or inacc urate evidenc e. [C itations.] An in d ic tm e nt may also be dismiss ed wher e the prosec utor has applied undue
pressure or coer cion so that the indictment is, in eff ect, that of the prosec utor rathe r than the grand jury

. [C itatio n

. ] T o warrant dismiss al of the indictment, [a] defe ndant must there fore show that the prosec utors preve nted the g rand jury from returning a meaning ful indictment by

misleadingor coe rcingit.” DiVincenzo , 183 I ll. 2d at 257-58. ¶ 29 In this case , defe ndant was char g ed under section 3(a) (1) of the Home Repair Fr aud Ac t. Section 3(a) (1) provides, in rele vant part, that home repa ir fra ud is committed when a defe ndant “knowing ly enter s into an agree ment or cont rac t *** with a person for home repai r, and he knowing ly : *** promises perf ormanc e which he does not intend to perf orm or knows will not be performe d.” 815 I L C S 5 1 5 / 3(a) (1) (West 2008). The State could not rely on subsection (c) to prove defe ndant’s intent or knowledg e, as that portion of the statute

was sever ed from the rest of the statute in W atts

. W atts , 1 8 1 I l l

. 2 d at 151. Howeve r, in

answe ring questions from the g rand jury
, the State clea rly relied on subsection (c) despite it being sever ed from the statute. The following exchang e, in response to a question from the
g rand jury , follows subsection (c )’s unc onstitut ional presumption of intent: “Q

. [Assi stant State’s Att orney]: And does the s tatute also specific ally show som e examples of how intent to not finish can be infe rre d? A. [Detective B ryant]: Yes. Q. And one of those specific examp l es is if the defe ndant chang es his business addre ss and does not by writing notify the victim of that chang e of the addre ss at the time of the c hang e?
A. Yes. Q. I s intent to not finis h the projec t a lso shown by the fa ct that the def

endant ne ver made c ontact with the victim to make any other a rra ng ements?
A. Yes. Q. And is it also shown by the fac t that the victim had no way either in person or by phone or by letter, for that matter, since the addre ss was not exis tent to contac t the
contra ctor?
A. Yes.” This is clea

rly an incorre ct statement of the law of home repa ir fra ud. Be fore the g rand jury
, the prosec utor serve s as an advisor and is supposed to “inform the g rand jury of the proposed char g es and the pertinent law.” DiVincenzo
, 183 I ll. 2d at 254. In this case , the prosec utor’s

-9-misstatement of the law made it e asier to se cure an indictment by informing the g rand jury that the eleme nt of intent can be presumed. ¶ 30 L ater in the g rand jury proce eding s, the g rand jury asked the assistant State’s Attorney
, “Did [defendant] intend not to finish this projec t on the onset of acc epting the j o b ? ”, to which the following exchang e occur red betwee n the assistant State’s Attorney and Detec tive Br yant: “Q. [Assi stant State’s Attorney]: Detec tive, is it corr ect that that is not an element of the offe nse? A. [Detective B ryant]: That’s corre ct.”
Howeve r, the statute clea

rly states that “A person commits the offe nse of home repa ir fra ud when he knowing ly enter s into an agree ment or contra ct *** and he kno wi n gl y : * * * promises perf

ormanc e which he does not intend to perf orm or knows will not be perf ormed[.] ” 815 I L CS 515/3(a)( 1) (West 2008). The languag e of the statute makes clear that defe ndant’s intent at the time of the agree ment is an element of the offe nse. In W atts , the defe ndant, like the defe ndant in our case , was char g ed under section 3(a) (1) of the Act. The
supreme court noted that it was undisputed that defe ndant had enter ed into a co n t ra ct fo r home repa ir, there fo re ; “the only question at trial was whether defe ndant had intended to perf orm the promised work at the time he enter ed into the contra ct.” W atts , 181 I ll. 2d at 138. Fur ther, the purpose of the Ac t “i s t o prohibit and preve nt the knowing use of fra ud and dece ptive prac tices to induce an unwitting homeowner to enter i n t o a contra ct for home

re p ai rs

. ” Thompson
, 275 I ll. App. 3d at 732. We hold that the assistant State’s Attorney ’s
response to the g rand jury ag ain misstated the law of home re pair fra

ud. The c omments by the assistant State’s Attorney and the testifying witness incorre ctly claim that intent is not an element of the crime. Instead of informing the g rand jury of the law as it was require d to do, the State re prese nted to the grand jury two incorre ct statements of the law. ¶ 31 Howeve r, misstatements of law by the prosec utor to the g rand jury do not automatically result in the indictment being dismiss ed. Def endant must “show that such misconduct results in actua l and substantial prejudice to him.” Fassler
, 153 I ll. 2d at 58. We hold defe ndant has
met this burden here

. Be fore the g rand jury
, Detec tive Br yant test i fi ed that defe ndant and Avila came to an agree ment, Avila paid defe ndant $2,000, and defe ndant beg an the remode l work. Detec tive Br

yant further testified that Avila paid defe ndant three additional chec ks for

a total of approximately $6,00 0

. Af ter the last chec k on J uly 16, 2007, defe ndant stopped working

. Detec tive Br

yant stated defe ndant admitted to starting the work, but not finishing i t

. Def endant told Detec tive Br

yant that he ran out of money and admitted that he did no t notify Avila with any new information on how to contac t him. Detec tive Br yant also testified that defe ndant never order ed kitchen cabine ts, but admitted that defe ndant “did demolition work and *** put up some walls.” Detec tive Br yant also testified that Avila could not rea ch defe ndant by phone afte r the first month of work beca use defe ndant’s pho n e wa s disconnec ted. Avila went to the addre ss listed as defe ndant’s office
, which was a vaca nt lot. ¶ 32 S i gnificantly
, the State did not prese nt any evidenc e t o t h e gra n d j u ry re gar d i n g d efendant’s int ent t o not perf orm the contract at the t ime the contract was formed, in s t ea d

-10-its evidenc e conce ntrated only on what occur red once the contra ct had been formed and the work started. Howeve r, the assistant State’s Attorney ’s two incorre ct statements of law to the
g rand jury b oth addre ssed defe ndant’s intent. In the first statement, the assistant State’s Attorney prese nted to the g rand jury incorre ct law that would allow it to presume intent. In the second misstatement, the assistant State’s Attorney denied that intent was even an element to b e proven. The t wo m isstatements aff ecte d the gra

nd jury proce eding s beca

use without them, we cannot say that a true bill would have been returne d. DiVincenzo
, 183 I ll. 2d at 257 (“To war

rant dismiss al of the indictment *** [a] defe ndant must ordinarily show that *** any prosecu t o rial misconduct aff ecte d the g rand jury ’s deliberations.”); see also People v. Oliver
, 368 I ll. App. 3d 690, 696-97 (2006) (“a due process vi olation consisting of prosec utorial misconduct befor e a g rand jury is actua lly and substantially prejudicia l only if without it t he grand jury would not have indicted de fenda nt”). ¶ 33 The State maintains that defe ndant did not suffe r actua l and substantial prejudice beca use def en dant did not show that the State acte d intentionally in misstating the law befor e the
g rand jury

. The State relies on the Second District’s decision in People v. Hart
, 338 I ll. App. 3d 983 (2003), to argue that defe ndant must show that the State intentionally misled the
g rand jury befor e dismiss al of an indictment is war rante d. In Hart
, the majority stated “[i] n

our view, howeve r, there must be
, at the very least, intent on the part of some State actor to materia lly mislead the gra nd jury in order to g ive rise to a violation of due process.” Hart
, 338 I ll. App. 3d at 991. J ustice McL are n concur red, but disag ree d with this statement by the majority
, classifying it as “ obiter dicta ,” and commented “it is incorre ct to require dece ption

on the part of a S t at e ac t or” based on prior prec edent. Hart
, 338 I ll. App. 3d at 995 (McL are n, J
., concur

ring ). The majority in People v. Oliver
, 368 I ll. App. 3d 690 (2006), also

a Second District decision, agree d with J ustice McL are n’s concur renc e. Oliver
, 368 I ll. App. 3d at 696 (“Thus, in light of DiVincenzo
, we hold that the State’s prese ntation of dece ptive evidenc e denied defe ndant due proce ss, reg ardle ss whether the d e c eption was intentional.”). 5 We agree with J ustice McL are n’s concurre n ce i n Ha rt and the majority in Oliver

. The assistant State’s Attorney ’s actions may or may not have been inadver tent; howeve r, it is still the role of the prosec utor to prese nt the “per tinent” law to the grand jury

. DiVincenzo , 183 I ll. 2d at 254. Subjecting a defe ndant to criminal prosec ution in this case based on the State’s incorre ct prese ntation of the law to the g rand jury deprive d him of his r ight to due proce ss, whether the assistant State’s At t o rney ’s actions wer e intentional or not. To the extent that Hart conflicts with our holding in this case , we respe ctfully decline to follow it. See O’Casek

v. Children’s Home & Aid Society of Illinois
, 229 I ll. 2d 421, 440 (2008) (under the doctrine of stare decisis
, “the opinion of one district, divisi on, or pane l of the appe llate court is not

J ust ic e Gromete r con cur re d in Oli ver and bel ie ved tha t it was not nec ess ary to even add re ss 5 the is sue of int ent in tha t cas e. Oli ver , 368 I ll

. App. 3d at 700-02 (Gr om et er , J
., con cur ri ng). J ust ic e Gromete r st at ed tha t he did not “be li eve tha t the m aj ori ty’s int erpre ta ti on of Peop le v. DiVi nce nzo , 183 I ll

. 2d 239 (19 98)
, is as st ra ightf orwa rd as the m aj ori ty con cl ude s. Sec ond, al tho ugh the m aj ori ty doe s not exp li ci tl y say so, the ef fe ct of it s rul ing i n t h i s c a s e i s t o overrule our re cen t dec is ion in Peop le v. Ha rt , 338 I ll . App. 3d 9 83 ( 2003 ).” Id. at700

.
-11-binding on other districts, divisi ons, or pane ls”). ¶ 34 In making our decision, we n o t e t h at at n o t i m e did the State attempt to amend the indictment afte r secur ing it. We al s o n o t e that defe ndant proper ly prese rved this issue for
ap p eal by both filing a motion to dismiss the indictment befor e trial and objecting t o t h e indictment afte r trial. The motion to dismiss the indictment is important beca use it occur

red befor e def

endant wa s found guilty

. ¶ 35 In a p et i t i o n for rehe aring filed by defe ndant, he asser ts that the conviction should be

reve rsed outrig ht beca

use the evi d en ce prese nted at trial was insufficient to support a conviction. We are not persuade d. ¶ 36 It is not the function of this court to retry a d ef en d an t wh en re v i ewing whether the evidenc e at trial was sufficie nt to sustain a conviction. People v. Hall
, 194 I ll. 2d 305, 329-30 (2000). “Rather, in such cases the rele vant question is whether , afte r viewing the evidence in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime beyond a rea sonable doubt.” People v. Smith
, 185 I ll. 2d 532, 541 (1 9 9 9). The trier of fac t is responsible for deter mining a witness’s cre dibilit y and the weight to be g iven to a witness’s testimony
, as well as dra wing any rea sonable infere nces from the evidenc e. People v. Jimerson
, 127 I ll. 2d 12, 43 (1989). Additionally
, the t rier of fac t’s finding s of cre dibilit y are g iven g reater weight beca use it saw and hear d the witnesses. People v. W

heele r , 226 I ll. 2d 92, 114-15 (2007). C i rcumstantial evidenc e can sustain a

co nviction, “provide d that such evidenc e satisfies proof beyond a rea sonable doub t o f t h e elements of the crime char g ed.” Hall
, 194 I ll. 2d at 330. Howeve r, i f t he evidenc e is so

unrea sonable, unsatisfac tory , or improbable that it raises a rea s o n able doubt as to a defe ndant’s guilt, we will reve rse a conviction. People v. Evans
, 209 I ll. 2d 194, 209 (2004). ¶ 37 After revie wing the evidence in the l ight most favor able to the S tate, we conclude that a rational tr i er of fact could have found the essential elements of the crime of hom e repair fra ud beyond a re asonable doubt. The Act provides that “A person commi ts the offe nse of home repa ir fra

ud when he kn o wing ly enter s into an agree ment or contra ct *** and he knowing ly *** promises perf ormanc e which he does not intend to perf orm or knows will not be perf ormed.” 815 I L CS 515/3(a)( 1) (West 2008). It is undisputed the parties enter ed into

an agree ment. The State only had to pro v e at tri al
, like in W atts , “whe ther defe ndant had intended to perf

orm the promised work at the time he enter ed into the contra ct.” W atts , 181 I ll. 2d at 138; see also Thompson
, 275 I ll. App. 3d at 732 (“The Act’s g oal is to prohibit and
preve nt the knowing use of fra ud and dece ptive prac tices to induce an unwitting homeowner
to enter into a contra ct for hom e re p ai rs.”)

. We also note that circ umstantial evidenc e can sustain a conviction. Hall , 194 I ll. 2d at 330. ¶ 38 In this case, c ircumstantial evidenc e from both Avila and Joaquin Mina showed that at the time of the agree ment, defe ndant did not intend to perf orm. Avila testified that at the time she enter ed into the agree ment wi t h defe ndant, defe ndant “would need [$] 2,000 a wee k befor e starting the job and the [$] 2,000 was to order my kitchen cabine ts, which would take
two wee ks to be delivere d.” L ater , d ef en d an t promised Avila that the cabine ts would be delivere d and installed by J uly 20, 2007, almost two months afte r t he contract wa s signe d.

-12-Despite both promises by defe ndant, he never order ed the cabine ts, let alone installed them.

Avila continued to pay defe ndant ever y few wee ks at defe ndant’s reque st. Mina testified that it took him five day s to complete the work, wher eas defe ndant had wo rk ed fi v e wee ks, completing minimal work, befor e quitting the job. Taking this evidenc e toge ther, it is

rea sonable to believe that defe ndant never intended to perf orm the wo rk p rom ised. It is

rea sonable to believe that defe ndant did minimal work, while stretching t h at work over a five-w eek time period, to continue to ask Avila for more money

. The evidenc e was sufficie nt to prove defe ndant guilty beyond a rea son ab l e doubt. This finding remove s the risk of subjecting defe ndant to double jeopar dy

. See People v. Taylor
, 76 I ll. 2d 289, 309-10 (1979). ¶ 39 Due to our conclusion in th i s ca s e, we d o not need to addre ss defe ndant’s re maining
arguments.

¶ 40 CONCLUSI ON ¶ 41 The judg ment of the c ircuit court is re verse d. On re mand, we dir ect the c ircuit court to dismiss the indictment without prejudice.

¶ 42 Reverse d and re manded.

¶ 43 PRES I DI

NG JUS TI CE QUI

NN, spec ially

concur ring : ¶ 44 I agree with the majority that the State violated d ef en d an t ’s du e p ro ce s s ri g hts by
prese nting an incorre ct statement of law. Howeve r, I disag ree with the majority ’s asser tion that “The comments by the assistant State’s Attorney and the testifying w itness inc orre ctly claim that intent is not an element of the crime.” Supra ¶ 30. ¶ 45 The transcript of t h e g rand jury proce eding s ref lects t hat t he gra

nd jury fore man aske d the assistant State’s Attorney (ASA), “Did [defendant] intend not to finish this projec t on the onset of ac cepting

the job? The ASA then a sked De tective B ryant: “Q. [ASA]: Detec tive, is it correc t that that is not an element of the of fense ? A. [Detective B ryant]: That’s corre ct.” ¶ 46 The majority corr ectly point out that subsection (a) (1) of s ec t i o n 3
, en titled “Home Repair F raud,” under which def endant wa s char g ed provide s: “A person commits the offe nse of home repa ir fra ud when he knowing ly enter s into a n agree ment or contra ct, written or oral, with a person for home repa ir, and he knowing ly : (1) *** [P ]romis es perf

ormanc e which he does not intend to perf orm or knows will not be per formed[.]” 815 I L CS 515/ 3 (West 2006). The majority asser

t that “The la

nguag e of the statute makes c lear that defe ndant’s intent at the time of the a g ree ment is an eleme nt of the off ense.” Supra ¶ 30. ¶ 47 Howeve r, subsec tion 3(c) in per tinent part provides:
“Intent and kn o wl edg e shall be deter mined by an evaluation of all circ umstances surrounding a transac tion and the deter mination shall not be limit ed to the time of

-13-contra ct or a g ree ment.” 815 I L CS 515/ 3(c) (West 2006).

¶ 48 Iwould rea d this “penultimate” sente nce of subsection (c ) to mean that the trier of fa ct need not limit its deter

mination of when the acc used formed the intent to defr aud the victim
to the time when the contra ct was enter ed into. This rea ding would be supported by I llinois Pattern Jury Instructions, Criminal, No. 13.64 (4th ed. 2000) ( here inafter , I PICriminal 4th No. 13.64), whic h provides in per tinent part:
“De finition of Home Repair F raud–A gree ment or Contrac t A per son commits the offense of home repair fraud when he know ingly enter s into

a contra ct for an amount exceeding $1,000 with a person for home repa ir, and he knowing ly
* * * [3] promises perf

ormanc e which he does not intend to perf orm or knows will not be perf ormed.” ¶ 49 Def

ense tria l counsel cor

rec tly rec og nized that this langua g e did not restric t the jury to deter mine the defe ndant’s intent at the time when the contra ct was enter ed into. That is why he asked that the jurors be g iven a nonpattern instruction rea ding: “A person commits home
repa ir fra ud when the did not intend to perf orm the promised work at the time he enter ed into the contra ct.” ¶ 50 Havingsaid this, Iacknow ledg e that the major ity are absolutely corr ect when they rely
upon People v. W

atts , 181 I ll. 2d 133 (1998), wher e our supreme court held, “The re was no dispute that defe ndant had enter ed int o a contr act f or home repair. Thus, the only question
at trial was whether defe ndant had intended to perf orm the pro m i s ed wo rk at the time he
enter ed into the contra ct.” W atts , 181 I ll. 2d at 138. ¶ 51 Fur

ther, the court in W

atts had a completely differ ent interpre tation of subsection (c) than Ijust presented.
“We believe that the penultimate sentenc e of subsection (c) is intended to assist a defe ndant by expanding the rea lm of rele vant evidenc e which he may use to rebut the presumption. For example, if the State trig g ere d the presum p tion by proving that a defe ndant had used an unqualified subcontrac tor, the defendant mi g ht attempt to rebut the presumption by introducing evidenc e of the subcontrac tor’s satisfac tory perf ormanc e

on prior projec ts. This would tend to show a g ood-fa ith belief on the defe ndant’s part that the subcontrac tor was qualified and, there fore
, that the defe ndant intended to perf orm the promised work. I f subsection (c) did not include the penultimate sentenc e, the evidenc e might be considere d irrele vant, beca use the ultimate issue is the defe ndant’s intent at the time he enter ed the contra ct. Howeve r, by expli citly allowing the defe ndant to introduce evidenc e ‘n ot limit ed to the time of the contra ct,’ the sentenc e would allow the introduction of the evide nce in the e x ample.” W atts , 181 I ll. 2d at 148-49. ¶ 52 A reading of W atts lea d s t o the conclusion that the m ajority are corr ect in holding that the prosec utor misstated the law when he asked/told Detec tive Br yant that the State was not require d to prove that the defe ndant had the intent not to finish the projec t when he enter ed

-14-into the contrac t. This mis statement of law was err oneous but it did not constitute a de nial

“that intent was even an element to be proven,” as the majority state twice. I agree with the majority that defe ndant h as s h o wn that this misstatement of law resulted in actua l and substantial prejudice to the defe ndant. Fassler , 153 I ll. 2d at 58. ¶ 53 I also agree with the majority that W atts further held that “the presumption contained in subsection (c ) is mandatory and, as suc h, is unconstituti onal.” W atts , 181 I ll. 2d at 149. ¶ 54 The prosec utor was relying on subsection 3(c) (2) wh en h e as k ed De t ec tive Br y ant whether the s t atut e allowed the g rand jurors to infer the defe ndant’s intent by defe ndant’s failure to notify the victim of his chang e of addre ss and the fac ts that defe ndant never made further co n t ac t wi th victim and the victim had no way to contac t the defe ndant afte r he stopped working on the projec t. The ASA phrase d the question as, “And does the statute also specific ally

show some examples of how intent to not finish can be inf err ed? ” ¶ 55 The User’ s Guide to I llinois Pattern J ury Instructions, Criminal, at x (4th ed. Supp. 2011) provides:
“Infer ence s are a staple of our adver sary sy stem and are essential to expeditious resolution of fac tual questions. Funche s , 212 I ll. 2d at 339 ***. An infere nce is a fac tual conclusion that the jury may rationally draw in its discretion by considering other fac ts. Id

. at 339 ***. By nature , infere nces are permissive. Id

. The jury is fre e to acc ept or reje ct

a sug g ested infere nce and no burden is place d on the defe ndant. Id .; W atts , 181 I ll. 2d at 142 ***.” ¶ 56 In People v. Jordan
, 218 I ll. 2d 255 (2006), our supreme court considere d section 12-21.6 of the Criminal Code of 1961, entitled “Enda ng ering the life or health of a child” (720 I L CS 5/12-21.6 (West 2002)). It provides: “(a ) I t i s u nlawful for any person to willfully cause or permit the l ife or health of a child under the ag e of 18 to be endang ere d or t o willfully cause or permit a child to be place d in circ umstances that endang er the child’s l i fe or health, except that it is not unlawful for a person to relinquish a child in acc ordanc e with the Abandone d Newbor n Infant Protec tion Act. (b) There is a rebuttable presumption that a person committed the offe nse if he or she left a child 6 y ear s of ag e or young er unattended in a motor vehicle for more than 10 minutes.” 720 I L CS 5/ 12-21.6(a ), (b) (West 2002). ¶ 57 The Jordan court decide d: “We hold that subsection (b) of section 12-21.6 of the Code

cre ates a n unconstitutional mandatory rebuttable presumption.” Jordan , 218 I ll. 2d at 266. The c ourt also held: “Although the State is constitutionally require d to prove ever y element of a cr i m e beyond a rea s o nable doubt [citation]
, the State may nonetheless rely upon cer tain presumptions and infere nces to prove its case

. Pomyk ala
, 203 I ll. 2d at 202 ***.” Jordan
, 218 I ll. 2d at 265. ¶ 58 The c ourt continued:

“F inally
, we consider the conseque nces of the presumption’s invalidity in this case

.

-15-* * *
*** [W ]e believe that a rational trier of fac t could have found that defe ndant knowing ly endang ere d his infant daughte r’s life or health by leavingher unattended in his vehicle. Severa l fac tors bear upon that deter mination, including the setting wher e the vehicle was parke d, the weather co n d itions, and the amount of time defendant left his daughter alone in the ve hicle .” (Empha sis added.) Jordan , 218 I ll. 2d at 268-70. ¶ 59 The court t h er ef o re considere d the leng th of time the child was left unattended e ven though the court struck down subsection (b), which listed this fac tor as the basis to apply the unconstitutional rebuttable pre sumption. 720 I L CS 5/ 12-21.6(b) (West 2002). ¶ 60 Applying the rationale of Jordan to the facts in the instant case , I believe that it would be proper for a prosec utor to argue that all of the fac tors listed in subsections (c) (1) throug h (c) (7) may provide the basis for an infere nce that a defe ndant is guilty of committing home
repa ir fra ud. 815 I L CS 515/ 3 (c) (1) through (c) (7) ( West 2006). Howeve r, I agree with the majority that it was improper for the prosec utor to ask Detec tive Br yant whether the statute provided these fac tors as “examples,” wher e this portion of t h e s t at u t e providing for an improper r ebuttable pr esumption was struck down in W atts

. ¶ 61 This issue is made all the important because
, as a very rec ent l aw review article points out, “Toda

y , sevente en criminal statutes still include some fo rm o f a mandatory presumption.” Theodore A. Gottfri e d & Pe ter G

. Ba roni, Presumptions, Inferenc es and Strict Liabil ity in Illinois Criminal Law: Preem pting the Presumption of In n o ce n ce ? ”, 41 J

. Marsha ll L

. Rev. 715, 722 (2008). In this ve ry well-wr itten a rticle, the authors sug g est that these statutes may pass constitutional m u s t er b y removing the “rebuttable presumption” languag e and repla cing it with “it may be inferr ed,” conver ting the mandatory presumption into a constitutionally

acc eptable pe rmissive infere nce. G ottfried & Ba roni, supra , at 723. ¶ 62 Finally
, I disag ree with the majority ’s discussion of the holdings in People v. Hart , 338 I ll. App. 3d 983 (2003), and People v. Ol i ve r , 368 I ll. App. 3d 690 (2006). Both Hart and Oliver involved testimony

of witnesses whic h turned out to be fa lse. ¶ 63 Hart held that: “ther e must be, at the very least, intent on the part of some State actor to materia lly mislead the gra nd jury in order to g ive rise to a viol ation of due pr ocess.” Hart
, 338 I ll. App. 3d at 991. In d o i n g s o , the majority relied on People v. J.H.
, 136 I ll. 2d 1 (1 9 9 0 ), which held “[s] ome case s sug g est [t hat undermining the integ rity of the judi ci al
proce ss] may occur wher e a prosec utor deliberately or intentionally misleads the g rand jury to the prejudice of the de fenda nt.” (Emphasis omitted.) J.H. , 136 I ll. 2d at 13. ¶ 64 The majority in Oliver held that “the State’s pre sentation of dec eptive evide nce de nied defe ndant due pr ocess, r eg ardle ss [ of] whether the dece ption wa s intentional.” Oliver , 368 I ll. App. 3d at 696. In doing so, the majority relied on the holding in People v. DiVincenzo
, 183 I ll. 2d 239, 257 (1998): “The due proce ss rig hts of a defe ndant m ay be violated if the
prosec utor deliberately or intentionally misleads the g rand jury
, uses known perjure d or false testimony
, or prese nts other dece ptive or inacc urate evidenc e.” J ustice Gromete r concur red in Oliver
, arguing that t h e ab o v e languag e did not support the majority ’s holding on the immateriality of the prosec utor’s intention. In doing s o , J u s t ice Gromete r cited another

-16-portion of the holding in People v. J.H. : “A pro s ec u tor should not be inhibited in his

prese ntation of a case to a grand jury by fea r of dismiss al due to [t his] err oneous, but honest,
appra isal of the admissibili ty of cer tain evidenc e for trial purposes.” J.H.
, 136 I ll. 2d at 13; Oliver , 368 I ll. App. 3d at 701 (Grome ter, J., concurring ). ¶ 65 Ba sed on the above discussion, I think that the majority in Hart and J ustice Grome ter’s

concur renc e in Oliver are corr ect in requiring an intentional act on the part of a state actor when a defe ndant seeks to dismiss an indictment based on the prese ntation of alleg edly false testimony to a g rand jury

. Howeve r, I do not believe that Hart or Oliver has any applicability
to the instant case wher e the prosec utor misstated the law applicable to the char g es prese nted
to the g rand jury

. It is abundantly clea r t h at th e prosec utor was unawa re of the holding in W atts and did not intentionally mislead the g rand jury

. Indeed, defe nse trial counsel told the trial court that he did not believe t h e prosec utor acte d willfully

. Consequently
, I do not believe that the prosec utor’s actions befor e the g rand jury co nstitut ed prosec utorial misconduct. In the final analy sis, ho wever, I believe the defe ndant has met his burden of

s h o wing that the prosec utor’s misstatement resulted in actua l and substanti a l p r e ju d ic e to h im wher e the grand jury fore man specific ally asked whether the defe ndant int en d ed not to perf orm the work when he enter ed into the contra ct. Fassler
, 153 I ll. 2d at 58. Consequently
, Iconcur in the result re ache d by

the majority

.

-17-