No. 2--04--0595 filed 4/26/06

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________ IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT

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________ THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 03--CF--3288 ) ) Honorable EWATHA J. GREEN, ) Richard W. Vidal and ) Steven G. Vecchio, Defendant-Appellant. ) Judges, Presiding.

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_____ JUSTICE McLAREN delivered the opinion of the court: Defendant, Ewatha J. Green, appeals from his c onviction of robbery after a jury trial and unsuccessful postsentencing motion, this bei ng a direct appeal from the trial court's judgment pursuant to Illinois Supreme Court Rule 606(b) (188 Ill. 2d R. 606(b)). Defendant asserts he was denied a fair trial, resulting from the trial court's failure to properly instruct the jury. We note that the record contains a jury verdict, signed and returned by the jurors, that reads in its entirety, "We, the jury, find the def endant, Ewatha Green, guilty of Robbery." For the reasons stated below, we determi ne that the trial cour t did not commit error or plain error in giving the inst ructions that were presented to the jury. However, we alsoNo. 2--04--0595

- 2 - determine that the jury verdict form tender ed by the State and signed and returned by the jury limited the nature of the conviction and thus the sentence def endant can receive. Therefore, for reasons set forth below, we affirm the trial court's denial of defendant's postsentencing motion asserting the trial court' s failure to properly instruct the jury. However, we modify the judgment of conviction of robbery of a person of 60 years of age or over to a judgment of convicti on of robbery, and we vacate the trial court's sentence for robbery of a person of 60 year s of age or over, with a remand for the trial court to resentence defendant for the offense of robbery, without any enhancements. Defendant was indicted on the allegations t hat he took property from the person of one Carol Mortenson, a person over the age of 60, by the use of force on November 8, 2003. The case was heard by a jury at tr ial, which began on April 19, 2004. The State presented testimony from four eyewitnesses regarding the events, wh ich occurred in and near the 320 Store (located at 320 North Court in Rockford) on November 8, 2003. The State's four witnesses included D ennis Bragelman, the owner of t he store in front of which the robbery took place. Bragelman testified t hat he saw defendant with a purse in his hand, running quickly away from t he store area and across a nearby parking lot. Bragelman was alerted to the action as a resu lt of a customer's yelling,"Hey , leave her alone." Bragelman had seen defendant running from approximately 25 yards and identified him, in part, because of earlier observations of defendant in hi s store a few minutes before the incident.

The victim of the cr ime, Carol Mortenson, testified t hat she was 61 years of age in 2003 at the time of the robbery. Mortenson testified that s he had been in the 320 Store. She further testified that, afte r she left the store with three bags of purchases, she went toNo. 2--04--0595

- 3 - her car. Mortenson placed the bags on the backs eat of her car. She then turned around and saw a man coming toward her who was saying to her that she had left something in the store. Once Mortenson turned around, the man who had approac hed her lunged at her and pulled her purse from her left shoulder. After a struggle, Mortenson decided that keeping her purse was not worth incurring personal injury, so she let go of the purse after one or two minutes. The man then fled. At trial, Mortenson identified defendant as the man who took the purse from her as a result of that struggle. Ann Petty was a bystander wit ness who had been in the vicinity of the store at the time of the incident. Petty testified that, as she backed her car out of a parking place in front of the store, she saw a man and woman facing each other, struggling over a purse. Petty called the police on her cellular phone. She then saw the man who had taken the purse run across a nearby parking lot. Petty identified defendant at trial as the man who had taken the purse. Finally, the State presented wit ness Benjamin Nease. Neas e testified that he had been staying at a nearby mission shelter for a couple of weeks and that he had become acquainted with defendant at that s helter during that time. N ease testified that he saw defendant try to take a purse from a woman, while defendant was right across from the 320 Store. Police officers Regez and Bruno intervie wed defendant. According to Officer Regez's testimony at trial, defendant had stated, in respons e to earlier questioning about the incident at the 320 Store, "Well, I may have gone there." The trial court conducted a c onference on the jury instructions tendered by the State and by defendant and thereafter charged the jury with the instructions that had beenNo. 2--04--0595

- 4 - admitted as a result of the c onference. The jury deliberat ed and returned the guilty verdict on the verdict form admitted as a result of the conference. On May 7, 2004, defendant's counsel filed a motion for a new trial, which was denied on May 27, 2004. The sentencing hearing began on May 27, 2004, and was completed on June 7, 2004. The trial cour t found defendant eligible for sentencing in the Class X range and imposed a sentence of 25 y ears for the Class 1 robbery conviction. Defendant's counsel filed a postsentencing motion to recons ider the sentence, wh ich the trial judge denied on June 9, 2004. Defendant filed hi s notice of appeal on the same day. We first address the issue as to whether the trial court failed to give proper instructions to the jury. In particular, defendant submits that the tria l court failed to give Illinois Pattern Jury Instruction, Criminal, No.14.04 (Illinois Pattern Jury Instructions, Criminal, No. 14.04 (4th ed. 2000)) (hereinafte r IPI Criminal 4th No. 14.04), as defendant modified by two additional paragraphs that def endant has first present ed and argued in his appeal: "If you find from your consideration of all of the evidenc e that each one of these propositions has been proved beyond a reasonable doubt, you should find defendant guilty. If you find from consideration of all of the evidence that any one of these propositions has not been proved beyond a reasonable doubt, you should find defendant not guilty." By failing to give the modified instructi on as now presented on appeal, defendant argues, the trial court failed to inform the jury on how to apply the reasonable doubt standard of proof to the elements on a r obbery charge instruction form. Defendant argues that thatNo. 2--04--0595

- 5 - failure in the trial court made the No. 14.04 inst ruction that was actually given a fatally and fundamentally deficient inst ruction that thereby denied defendant a fair trial. The standard of review as to whether a cour t has given proper jury instructions in a criminal case on the elements of an offense is well settled. A party who desires a specific instruction must tender the instru ction to the trial court and ask that it be read to the jury. Generally, the trial court has no obligation to offer an instruction on its own motion. Also, usually a party who fails to tender an instruction or to object at trial or in a posttrial motion waives the issue for appellate review. People v. Layhew , 139 Ill. 2d 476, 485 (1990). (Indeed, this court notes that even though IP I Criminal 4th No. 14.04 was modified well before the time of tria l, defendant did not present the offi cial modified version of the No. 14.04 instruction even to this court. See IPI Criminal 4th No. 14.04 (Supp. 2003).) However, in criminal cases, the rule that a party must tender a desired instruction is modified in certain situations, by virtue of the requirements for a fair trial. Illinois courts have held that the court bears the burden of seeing that the jury is instructed on the elements of the crime char ged, on the presumption of innocence, and on the burden of proof. People v. Parks , 65 Ill. 2d 132, 137 (1976). As a result, there are situati ons where the requirement of a fair trial requires the trial court to sua sponte offer an instruction on the elem ents of the crime charged, the presumption of innocenc e, and the burden of proof. People v. Turner , 128 Ill. 2d 540, 562- 63 (1989). In such circumstances, the court's failure to properly instruct the jury on any of these key factors casts doubt on whether the def endant received a fair tr ial. People v. Boose , 256 Ill. App. 3d 598, 602 (1994).No. 2--04--0595

- 6 - When errors in key jury instructions cast doubt on whether a defendant received a fair trial, a reviewing court ma y consider whether such errors fall under the plain error rule. Boose , 256 Ill. App. 3d at 602. In considering such questions under the plain error rule, a review of the entire record is appropriate for the reviewing court to determine the context in which the instructions were given. Boose , 256 Ill. App. 3d at 603. Accordingly, this court has considered whet her plain error occurred in this case and whether the trial court sua sponte should have given a different instruction to the jury. A review of the record affirmatively shows that the trial court gave instructions to the jury sufficient to avoid a fundamentally deficient or unfair trial. The cour t instructed the jury on several occasions as to the State's burden of proving defendant guilty beyond a reasonable doubt on each and every element of the offens e. The trial judge cautioned the jury regarding the State's burden of proof, twice during voir dire and again in his opening remarks at the commencem ent of the trial. Moreover, during voir dire , defense counsel repeatedly questioned jurors on their ab ilities to return a ve rdict of not guilty if they were not convinced of defendant's guilt beyond a reasonable doubt. The court accepted and read to the jury IPI Criminal 4th No. 2.03. That instruction charges the jury to presume the defendant's innocence throughout the trial, including during the jury's deliberations; the instruction also instructs the jury that the State has the bur den of proving the guilt of the defendant beyond a reasonable doubt, a burden that remains on the State throughout the case. We determine there was no plain erro r as to the jury instructions given.

In summation, because defendant cannot show that the instructi ons given caused a "severe threat" to the fairness of his trial, based on the long standing pr inciples of the plain error analysis in the jury instructional context, t here was no injustice. Accordingly, we findNo. 2--04--0595

- 7 - that, because there was no preser ved error and no plain error, the trial court did not have the duty to tender its own instru ction to the jury sua sponte , and we affirm the denial of defendant's postsentencing petition. We now turn to the issue of the ve rdict form tendered to the jury and signed and returned by the jury. The State argues that defendant waived his cl aim of verdict-form error and that the plain error exception does not apply where the ve rdict form did not make a specific finding of a sentencing-enhancement element (of the victim's age, in th is case). The State cites People v. Chapman , 194 Ill. 2d 186, 235 (2000), and People v. Tannenbaum , 82 Ill. 2d 177, 180-81 (1980), to support its position. While the state of the record in a case frequently results in waiver, our supreme court has recognized that certain instructions, such as those pertaining to the burden of proof, the presumption of i nnocence, and the elements of the crime charged, are so central to our constitutional guarantee of a fair trial that the failure to object to their omission does not result in a waiver. See People v. Layhew , 139 Ill. 2d 476, 486 (1990). We find that defendant's enhanced sentence, based upon the conviction flowing from the jury's verdict on the form used, was plain e rror, and defendant's failure to object to the verdict form did not result in waiver of the issue. In Chapman , 194 Ill. 2d at 235, our supreme court held that the defendant in that case had waived his objection to the jury verd ict form, which omitted the culpable mental state necessary to support a finding of death e ligibility, because, under the facts of that case, the omission of the ment al state from the verdict form was not so fundamental a defect as to amount to plain error. In Tannenbaum , 82 Ill. 2d at 80-81, our supreme courtNo. 2--04--0595

- 8 - reiterated the well-established rule that the failure to object at trial to an asserted error in jury instructions waives the question, adding t hat issues not raised in a posttrial motion also are effectively waived for appella te review. Importantly, both Chapman , 194 Ill. 2d 186, and Tannenbaum , 82 Ill. 2d 177, concern issues affected by Apprendi v. New Jersey , 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), which dealt directly with the requirement of a verdict form that demonstrates a jury's determination of guilt, beyond a reasonable doubt, of each element of an offense. We determine that Apprendi , 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348, supercedes Tannenbaum and Chapman and addresses the critical import of the verdict form presented to and signed and returned by the jury. The United States Supreme Court has stated that pursuant to the sixth and fourteenth amendm ents to the United States Constitution (U.S. Const., amends. VI, XIV), a criminal defendant is entitled to a jury determination whether he is guilty, beyond a reasonable doubt, of every element of the crime with which he is charged. Apprendi , 530 U.S. at 475-76, 147 L. Ed. 2d at 446, 120 S. Ct. at 2355. We find that the jury in this case made a determination of guilt beyond a reasonable doubt, as indicated by its signed ve rdict, that defendant was guilty of robbery only. The jury did not make a determinati on of any enhancement element. Defendant can be deemed to have been convicted of robbery onl y and cannot be sentenced for any crime other than robbery. Therefore, we affirm the trial court's denial of defendant's postsentencing motion asserting the trial court's failure to properly instruct the jury. However, we modify the judgment of conviction of robber y of a person of 60 years of age or over to a judgment of conviction of robbery, and we vacate the trial court's sentence for robbery of a person ofNo. 2--04--0595

- 9 - 60 years of age or over and remand the cause for the trial court to resentence defendant for the offense of robber y, without any enhancements. Affirmed as modified in part and vacated in part; cause remanded. GROMETER, P.J., and HUTCHINSON, J., concur.