THIRD DI VISI ON June 18, 2008 No. 1-06-1940 THE PEOPLE OF THE STATE OF IL LI NOIS, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 02 CR 10176 ) HAROL D PHI LLIPS, ) The Honorable ) Daniel P. Darcy , Defendant-Appellant. ) Judge Presiding.

JUSTICE GREIMAN deliv ered the opinion of

the cour t: Following a jury

trial, defendant Harold Phillips was convicted of first degr ee felony murder a nd agg ravate d arson a

nd was se ntenced to natura l life and 30 years’ im

prisonme nt, respectively , the sentences to be served consecutively . On appeal, defendant advances nume rous claims pertaining to his convictions and the sentences imposed thereon. Spec ifically, defe ndant contends: (1) his felony mur der conviction must be vacated pursuant to the same-act doctrine because the same conduct formed the ba ses for the predicate felony and the felony mur

der charges; (2) trial counsel provided inef fective assistance when he failed to offe r jury instructions on the lesser-included offense of criminal damage to property a nd failed to introduce, as substantive evidence, a report from state fire inve stigators concluding that the fire originated in a different location than the location determined by the supervising fire marshall; (3) the trial court erred i n refusi ng to g rant def ense cou nsel’s mot

ion for a mistrial w

hen one o f the State ’s witnes s provided testimony that violated the court’ s prior ruling on a motion in limine ; (4) the trial court violated defendant’s constitutional right to be present at his trial when it permitted trial counse l to waive defendant’s presence a t a conference discussing the re sponse to a question posed by the jury during

jury delibera

tions; and (5) his conviction and consecutive sentence for ag gravated1-06-1940

2

arson mus t be vaca

ted beca use I llinois law

does not pe

rmit the imp osition of a

separa te convicti on and se

ntence f or the pr edicate offense of felon y mu rder. We affirm i n part an d vacate in part. In the

early morning hours of M arch 22, 2002, a th ree-sto ry residen ce beca me engu lfed in flames a nd the fir e resulte d in the de ath of thr ee child ren: Fr ankie Ra mos, age 8, Erica Ramos, age 7, and Samantha Cruz, age 3. I n a 23-count indictment, defendant was charg ed with various crimes in connection with the fatal fire including intentional and knowing murder (720 ILCS 5/9- 1(a)(1), (a)(2) (West 2002)), ag gravated arson (720 I

LCS 5/20-1.1(a)(3) (West 2002)), re sidential arson (720 IL CS 5/20-1.2(a) (West 2002)), and first degree fe lony murder (720 I LCS 5/9-1(a)(3) (West 2002)) predicated on charge s of aggravated a nd residential arson. Prior to trial, defendant, through counsel, filed a motion in limine seeking to bar testimony that def endant ha d committe d prior a

cts of arson, arg

uing tha t such testimony

would be “extraordinarily pr

ejudicial to the defendant.” The State made no objection to defe ndant’s motion. Ac cordingly, the trial court g ranted t he motion a

nd order ed both pa

rties to a dmonish their trial witnesses not to reference prior fire s. In addition, the day

before trial commenced, the State moved to nol-pros the intentional and knowing murder charg es. Accordingly , it chose to proceed solely on the felony murde

r charges predicated on a

ggravated and re sidential arson. At trial, Elzy Ramos testified that in March 2002, she lived on the sec ond floor of a twostory residence loca

ted at 244 2 West 25th

Street with her mother, Trinidad, her sister Doris, her nephew Danny , and her three children: Frankie, Er ica, and Samantha. Elzy’s sister Gloria lived with her three children and her boy friend on the first floor of the residence. On Mar ch 21, 2002,1-06-1940

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at approximately 9:30 p.m., Elzy put her three children to bed in the rear of the ir second-story residence. Thereafter, Elzy exited her residence at approximately 11:40 p.m., leaving her three children in the care of her mother and sister, w ho both remained home. Elzy retur ned to her house in the early

morning hours of March 22, 2002, and “seen [ sic ] [her] house getting burned.” She immediately asked her neighbor if her children had g otten out of the house safely and was told that they had been ta ken to the hospital. Elzy learned that her two daughters had been transported to Mount Sinai Hospital, while her son was taken to St. Anthony’ s Hospital. When Elzy arrived at Mount Sinai, she was infor med that her young est daughter, Samantha, had died; however, her daughter Er ica was still alive and was receiving medica l treatment. A detective then took Elzy to St. Anthony ’s, where she was informed that her son Fr ankie was also dead. Shortly thereafter, El zy le arned that Erica had also d

ied as a r esult of the injurie s she susta ined in the fire. Doris Ramos confirmed that in March 2002, she had been living with Elzy and Elzy’s childre n at the 24 42 West 25th

Street residence, which she described a s a brick building with a wooden enclosed porch that was affixed to the rear wall of the building. Doris further confirmed that on March 21, 2002, at approximately 11:30 p.m., Elzy instructed her to watch over her three children and left the residence. Doris fell asle ep shortly therea fter in her bedroom located near the front of the house. She awoke later that night and sme lled smoke. She looked out of her window and saw that the back of her house was e ngulfed in flames. She immediately informed her mothe

r and her sister Gloria that t

he house was on fir

e and exite d the res idence. Once Do ris exited the residence, she realized that Elzy ’s children were still in the house and informed the members of the fire department that there we re children in the burning house. Doris denied that1-06-1940

4

gasoline had been stored in the house or on the porc h at the time of the fire, but explained that her family did store ke

rosene on the top of the porch near the attic. More over, Doris testified that their garbage ca ns wer e not s tored near th e hous e; rat her, t heir C ity of Ch icago i ssued garbage

ca ns we re lo ca te d i n t he al le y. Gloria Ramos testified that she went to sleep on March 21, 2002, at approximately 10 p.m., and was awakened when her sister Dor is pounded on her door and told her the house was on fire. Gloria looked toward the back of the house a nd saw that “every

thing was on fire.” Accord ingly, Gloria, her live -in boy friend, and her t

wo daug hters exite d the res idence. Shortly thereafter, her mother rea lized that Elzy’s children were still in the house. Gloria then r an up the stairs but could not enter the residence to rescue he r nieces and nephew because it wa s too hot and there was too much smoke. She informed a firefig hter that there were children still in the house. He

went up th e stairs, but came back dow

n and said

he could n

ot find the

m. Gloria confirme d that her

family stored a five-g allon con

tainer o f kerose

ne on the p orch of t

heir residence along with various kinds of paints. She also confirmed tha t the family did not store their garbage c ans near their residence; rather , the garbage ca ns were stored in the alley

. Chicago firefighter Edwa rd Negron responded to an alar m concerning the fire at 2442 West 25th

Street on March 22, 2002, at approximately 2:45 a.m. When Negron arrived at the scene, he noted that it was “[v]ery windy” and “

very cold”

and that “a fire was going with heavy smoke.” He and his team unfurled their hose and led it throug h the gangway

located between the 2442 and 2440 buildings. They discovered “heavy

flame *** from top to bottom” in the back of the building. Negron did not see any thing burning except for the back porch. N otably, he did not see any garbage cans burning in the gangway . Several other fire companies arrived a t the scene1-06-1940

5

and it took three or four hours to extinguish the blaze. Chicago firefighter Richar d Koffski was part of the second engine company to arr

ive at the fire on March 22, 2002. Upon his arrival, Koffski went to the re ar of the building “where the body of the fire

was.” He noted that the entire back porch was ablaze. Koffski, however, did not observe any

burning garbag e cans near the residence. H e assisted in the rescue of the three children, covering Firefig hter Herrera as he passed the children out of the window. Kenneth Herzlich , a free lance vi deo journalist who provides overnig ht video f ootage to local television stations, testified that on March 22, 2002, at approximately 2:46 a .m., he was monitoring police and fire radio transmissions, when he hear d a transmission about a fire at 2442 West 25th

Street. Herzlich drove to that location and saw flames at the back of the residence. He then proceeded to shoot video footage of the fire from locations at the front of the house as well as in the back ya rd of a ne ighbor’ s house, w hich he then sold to t

he local television stations. Herzlich’s video was published to the jury . In the 10-minute video, the fire is shown fr om diff eren t ang les. T

he vi deo a

lso de picts the e ffor ts by vari ous f iref ighters t o extin guish the blaze and shows firemen carry

ing two unconscious children from the fire. An attempt by one of the firefighter’s to perform CPR on one of the victims is also shown. Dr. Mitra Kelelkar, the assistant deputy chief medical examiner of Cook County, a nd a forensi c patholo gy

special ist, perf

ormed an autopsy on Erica Ramos. I

n perfor ming the autopsy on Erica, she started with an external examination and noted that Erica had burn mar ks on her chest, abdomen, as well as her upper and lower extremities. Dr. Kelelkar also saw a number of signs of medical intervention. She then conducted an internal e xamination and discovered that Erica’s respiratory

system showed signs of

congestion of the lary

ngeal mucosa, evidence of a1-06-1940

6

burn injury. Ba sed on her findings, Dr. Kelelkar opined that Er ica Ramos died after sustaining thermal injuries in a fire and that “[t]he manner of death was homicide.” Dr. Kelelkar also reviewed the autopsy reports of Samantha Cruz and Frankie Ramos. The external examination of Samantha Cruz revealed the presence of soot a round Samantha’s nose and mouth. Moreover, there were va rious areas of skin slippage where Sama ntha’s skin had blistered. The internal examination revealed that Samantha had soot on her tong ue and in her trachea, a finding that is “consistent with inhaling smoke fr om a fire.” Toxicology

tests were also performed on Samantha, the results of which showed that her blood tested positive for carbon monoxide at a level of 47%. Based on her re view of the reports, Dr. Kelelkar opined that Samantha died “as a result of carbon monoxide intoxication as a result of a house fire” and that the manner of death was homicide. The external examination of Frankie Ramos revealed that Fr ankie had soot deposits on his face and that the skin on his chest, abdomen, and left forea rm showed signs of blistering. The interna l examinati on revea

led the pr esence of soot in the trach ea and bronchi. T oxicology tests were also performed on Fra nkie and the results revealed that his blood tested positive for carbon monoxide at

a level o f 33%. B ased on h er revi ew of the autopsy and toxicol ogy

reports performed on Frankie, Dr. Kele lkar opined that Frankie’s death was the “r esult of carbon monoxide intoxication, because of inhalation of smoke and soot resulting from a house fire” and that the manner of death was homicide. Pablo Alvarez testified that on March 22, 2002, he lived on the third floor of an apartme nt building

located at 2448 Wes t 24th

Place, of which he was the landlord. Defenda nt and his roommate, David Bingenheimer, re sided in the coach house located in the rear of the1-06-1940

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property. At a

pproximately 2 a.m., Alvarez was talking with a friend approximately 100 y ards west of hi s reside

nce, whe n he saw d

efenda nt, wear ing a bla ck leath er jack

et, exit the

propert y and hea d in a wes terly

direction. Alvar

ez did not se e any

thing in d efenda nt’s hand s. Sometime thereafter, as Alvarez was enter ing his apartment building, defendant returne d. Alvarez asked defenda nt where he had g one and d

efenda nt indica ted that h e had be en walkin g, and t hey both went to the ir respe ctive re sidence s. Approxima tely 10 minutes

later, Alvarez he ard fire

trucks, looked out, and saw flames in the direction in which defendant had r eturned from his walk. He became upset, went to defendant’s residenc e, and asked defendant if he was re sponsible for the fire. The two engage d in a heated discussion, during which defendant stated: “ I didn’t do nothing but light a garbage c an.” Alvarez then told defendant to “Get the f--- out.” David Bingenheimer, defenda nt’s former roommate and friend for over 20 y ears, testified that on Ma

y 21 , 2002, at

approxima

tely 8 p.m., he

and defe ndant we re in the coach house drinking beer an d watchin g movies with their

friend M ario Sanc

hez. Bing enheime

r also admitted that he had snorted cocaine sometime earlier that da y. Sanchez left sometime afte r midnight and Bing enheime

r took a shower. Whe

n he beg an walkin

g arou nd the coa

ch house nude, de fendant

became upset and

the two me

n had a ph

ysi cal conf

rontation . After t

heir fig ht, defendant “stormed out” of their residence . Bingenheimer noted that as defe ndant left, he was carry ing a container that resembled an antifr eeze bottle; however, Bingenheimer did not know the exact contents of the bottle. Moreover, Bingenhe imer conceded that the handwritten statement that he provided to investigators does not mention that he saw defenda nt remove a bottle from their residence. Defendant re turned approximately 20 to 30 minutes later and informed Binge nheimer that he ha

d lit a ga rbage can on fi re using gasoline. Bing enheime

r did1-06-1940

8

not think defendant’s statement was significant and went to sleep. Bingenheimer awoke whe n Pablo Alvarez came to the coach house later that nig ht. After engaging in a discussion with Bing enheimer and defendant, Alvarez left. The ne xt day, when Bingenheimer awoke, he notice d that defendant had left the apartment with his belonging s. Bingenheimer then walked over to the scene of the fire and talked to two office rs from the Chicago fire department’s office of fire investigation, including Fire Marshall O’Toole. Bingenheimer informed O’Toole tha t he thought defendant had started the fire be cause “[t]here’s been others in the past.” He further informed O ’Toole that defendant had left their apartment carry ing an object and that, when he returne d, defendant “said he lit a garbage can on fire.” Thereafter, Binge

nheimer conversed with Detective Timothy O’Meara from the Chicago police department’s bomb and arson unit at the unit’s headquarters. Following their conversation, Binge nheimer and Detective O’Meara went to look for defendant. After unsuccessfully attempting to locate defendant at the houses of his rela tives, they “spotted him on Cermak and Leavitt behind a laundr omat” at approximately 6:30 p.m. as they were driving around the neig hborhood in O’Meara’s squad car. De tective O’Meara enga

ged in a conversation with defendant and defendant e ntered the squad car. Defenda nt and Bingenheimer then c onver sed in the ba ckseat of the vehic le and defend ant agai n admi tted t hat he lit a garbage can on fire. Detective O’Meara confirmed tha t he conversed with Bingenheimer on Ma rch 22, 2002, at approximately 3 p.m., and that based on the infor mation provided by Bing enheimer, he attempted to locate defendant with Bingenhe imer’s assistance. After successfully locating defendant in the alley

located at 2139 West Cermak Road at approximately 6:30 p.m., he1-06-1940

9

identifie d himself a s a detective with the Chicag o police d epartme nt’s bomb a

nd arson u

nit, informed defenda nt of his ri ghts, an

d put defe ndant in th

e backse at of the

police c ar with Bingenheimer. Defenda

nt and Bingenheimer converse d while Detective O’Meara drove the vehicle. He overheard defe ndant admit to Bingenheimer that he had set fire to a garbage ca

n. Thereafter, Detective O’Me ara drove back to the scene of the fire. He was joined by

Detective Flynn, and tog ether they a sked defendant to retrace his steps and show them how he started the fire. They

started t he reenactment a

t defend ant’s re sidence

located at 2428 Wes t 24th

Place. Defendant then led Detectives Fly nn and O’Meara westward and they crossed an embankment and some railroad tracks. They walked south along the tracks until they arrived at the residence located at 2442 Wes t 25th

Street. Defendant then led the men to the back of the r esidence and reveal ed tha t ther e had b een garb age cans up agai nst t he nor th wal l of th e buil ding, altho ugh there were no garba

ge cans present during the reenactment. Defendant explained that he opene d one of the garbage

cans and attempted to ignite the trash inside. He further revealed that he had trouble s tarting

the fire because it was wind

y. Accordin

gly , defend

ant moved

the gar bage c an to the east side of the building to shield it from the wind before using a lig hter to ignite the fire. Once he lit the fire, defendant explained that the flames bec ame large and that he beca me scared and ran away . Defendant never mentioned using g asoline or an accelerant to ignite the f ire. Following defendant’s reena ctment, Detective O’Meara took defe ndant to his office, where he called Area 4 violent cr imes and spoke to Detective Swiderek. The next day , Detective O’Mear a contac ted the of fice of fire inve stigation to obtain additiona l manpowe

r to help h

im locate the garbage

can that defendant had said he had set on fire . After obtaining the necessary1-06-1940

10

manpower, Detective O’Meara and several members of the office of fire investigation, including Supervising Fire Marshall Timothy Corcoran, went to the scene of the fire a nd visually examined the debris. He explained that they were looking for evidence to cor roborate defendant’s confession. Specifically , they were looking for remnants of a gar bage can. Detective O’ Meara expla ined that “ [t]hey

melt, the p lasti c ga

rbag e ca n[s]. T hey melt d own in to a p anca

ke. We alway s find tha t pancak e.” Afte r sifting through the lay ers of de bris, how ever, they

were unable to find evidence of the melted garbage can. But, once they reached the bare g

round, Detective O’Meara could smell “a very , very strong

odor [that] smelled like gasoline.” Accordingly, he took a sample of the soil, which he placed in a metal can and tra nsported the can to the crime lab for ana lys is. Supervising Fire Marshall Timothy Corcorcan confirmed that he met with Detective O’Meara at the scene of the f ire on March 23, 2002, at approximately 9 a.m. Corcoran explained that once Detective O’Meara infor med him that there was an individual in custody w ho admitted to starting a fire in a garba ge can on the east side of the re sidence, his “first priority” was to find the remnants of a melted garbag e can. Specifically , he was looking for a “flat piece of congealed metal, or plastic, with a metal axle in it.” He found several gar bage cans that were intact and broke an axel off one of the cans and used it to compare it to other pieces of metal recovered from the fire; however, he was unable to find a match. Thereafter, Corcoran commenc ed a walk-through of the residenc e. The rear of the residence contained several fe et of fire debris. Once they reached the bottom of the pile, he noticed “an overwhelming odor of something that was similar to that of gasoline. That was unmistakable.” Corcoran confirmed that Detective O ’Meara then recovered a soil sample.1-06-1940

11

Based upon his examination of the fire scene, Corcorca n opined that “this fire was the result of the splashing or pouring of ignitable liquid, with a smell that was similar to that of g asoline. The only logica l ignition source i s an open

flame.” His opinion

was base d on the soi l sample a s well as the burn patterns on the building; however, he conc eded that the report he prepared on the fire made no mention of burn patterns. Corcorcan further opined that the fire was intentional, but ack now led ged th at n o ga sol in e ca n or any o th er a cce ler ant con tai ner was fou nd a t t he s cen e. In response to questions as to his familiarity with a re port completed by bomb and a rson investigators concluding that the fire originated in the second-floor rear enclosed por ch, Corcoran indicated that he was unfamiliar with that report and reve aled that he did not agree with that conclusion. William Tyrrell, a curre

nt retiree from the Illinois State Police crime labor atory, re ceived the can containing the soil sample collected by Detective O’Meara on March 25, 2002. When he opened the can, Ty

rrell noted an “[o]dor of gasoline.” Thereaf ter, he conducted various tests and concluded that the soil sample tested positive for the presence of g asoline. Tyrre ll also tested an article of clothing recovere d at the fire scene and found that it tested positive for the prese nce of petroleum distillate. Detective Greg Swiderek testified tha t on March 22, 2002, at approximately 8 p.m., he receiv ed an ass ignment

to investigate the f

ire at 24 42 West 25th

Street. Accordingly , he arrived at the bomb and arson headquarters and met with Detec tives O’Meara and Fly

nn and learned that they suspected de fendant of starting the fire. Detec tive Swiderek arranged for both de fendant and Bingenheimer to be transported to Ar ea 4 headquarters and subsequently met with defendant in a priva te interv iew room. After in

troducin g himsel f, he inf

ormed de fendant

of his Miranda1-06-1940

12

rights, and defendant agr

eed to talk with him about the fire. Defendant explained that at approximately 8 p.m. on March 21, 2002, he began drinking and watching movies with his roommate David Binge nheimer and their friend Mario Sanchez. Sanchez left the coach house at approximately 1 a.m. on March 22, 2002, and Bingenheimer began “messing with him.” The two men had a physical confr

ontation, after which defendant left the residence carry

ing a beer. Defendant infor med Detective Swiderek that he walked west on 24th Place toward the t

rain tra cks and that he ca

me upon the

north alle

y of 25th Street, a n area i n which defendant was familiar because he had spent time party

ing there. Because he

was mad at Bingenheimer, defendant wa nted to burn a garbage

can. He found a garba

ge can behind the 2442 West 25th

Street bu ilding a nd drag ged it c loser to the rear of the bui lding. H e attempt ed to ign ite a fire in the garbag e can, but because it was windy, he was unsuccessful. Accordingly , defendant moved the garbage c an once again until it was located betwee n the 2442 and the 2440 buildings. At that point, defendant used a green cig arette lighter and ignited a piec e of cardboard in the garba ge ca n. Defe ndant fur ther expla ined that once the fire “st arted g oing g ood,” he

became scared, retraced his footsteps and ra n back to his residence. On his way back to the coac h hous e, de fend

ant e ncou nter ed hi s land

lord, Pablo

Alva rez, who aske d defend

ant why he was r unning. Defend

ant then i nformed Alvarez t hat he ha d lit a garba ge ca n on fire . Alvare z told defe ndant he was no long er welc ome to live in the coa

ch house and ordered him to pack his belongings and le ave. Once he arrived at the c oach house, defendant informed Bingenheimer that Alvare z had ordered him to leave and, shortly thereafter, Alvarez arrived to ensure that defendant was lea ving. Once he gathere d his clothes and left the residence, he be ga n w al ki ng to hi s g ra nd mo th er ’s re si de nc e, wh ic h w as lo ca te d n ea rb y. O n t he wa y,1-06-1940

13

defendant saw several fire e ngines and smoke, which he believed stemmed from the f ire he had ignited. Following their conversation, Detective Swidere k contacted the Cook County State’s Attorney’s fe lony review unit, and Assistant State’s Attorne y (ASA) Michae l O’Donnell arrived shortly thereafter. Swi derek w as prese nt when de fendant

engag ed in a dis cussion with O’Donne ll and whe

n defend ant memor

ialized his

statemen t on videot

ape. At a ll times, defendant was cooperative and answered their questions. Moreover, defendant ne ver mentioned using gasoline to ignite the fire during any of the c onversations in which Detective Swiderek was present. ASA Michael O’Donnell confirmed that he rece ived a phone call on March 23, 2002, pertain ing to inv estiga

tions abou

t a fire t hat had oc curred

the prior day . After r

eceivin g the ca ll, O’Donnell relocated to Area 4, wher e he conversed with Detectives Swiderek a nd Soroghan and learned that defendant was suspected of igniting the fatal fire. He met with defe ndant in an interview room in Area 4 headquarters. O’ Donnell introduced himself, informed defendant that he was an assistant State’s Attorney , and advised defendant of his constitutional rights. After being informed of his rights, defendant indica ted that he understood his rights and revealed that he wanted to speak with O’Donnell about the fire. They conversed for approximately 30 to 40 minutes, and at the conclusion of their preliminary conversation, O’Donnell provided defendant with several options with which to memorialize his statement. Defendant elected to provide a videotaped statement and signed a consent-to-videota pe form. In his videotaped statement, defe ndant provided an account of the fire that was c onsistent with his prior statements. Specifically, de fendant stated that in the early morning hours of March1-06-1940

14

22, 2002, he had a phy sical confrontation with David Bingenheimer, a fter Bingenheimer initiated

severa l homosexua

l advanc es towar

d him afte

r a nigh t of drink ing. He left the c oach hou se with a beer in his hand, made a right turn, and wa lked over the railroad tracks until he reac hed an empty lot near 2442 West 25 thStreet. There, he found two empty garbage ca

ns. Because he was “frustrated” by

his encounter with his roommate, defendant attempted to ignite the re fuse inside one of the garba ge ca ns with a c igare

tte light er; howe ver, bec ause it wa s windy , his attem pts were unsuccessful. Accordingly, defenda nt moved the garbage ca

n to the space separating the 2442 residence from another residence , where it was less windy . Defendant explained that the garbage ca

n was three feet away

from the wall of the 2442 residence, a distance w here he believed “it wouldn’t catch any thing.” Defendant knew that people lived in the re sidence. He explained that he would exchange friendly greetings with one of the women and some of the children that lived there. Defendant then used his lighter to ignite a piece of cardboard inside the garbage ca

n. Defend ant state d that the

fire “w asn’t mea

nt for the houses.” He start ed the fi re beca use he was f rustrate d by

his encou

nter with Binge nheimer and he “ didn’t wa

nt any thing to d o with houses getting burnt. I

t was an accident.” Once the flame s in the garbage ca n became bigger, defendant became scared a nd ran back to his residence. He did not call the police or the fire department. He did, however, encounter his landlord, a nd informed Alvarez that he had started a fire in a garbage

can. Alvarez then ordered defenda nt to leave and defendant returned to the coach house and began to pac k up his belongings. Alvarez came by shortly thereaf

ter to ensure that defendant was leaving and told defe ndant that the fire was big and asked him whether he had burned a car or a ga

rage rather than a g arbage can. Def endant repeated that he had ignited a1-06-1940

15

garbage ca

n. Defendant then left the coach house and spe nt the remainder of the night in the hallway of his g

randmother’s building, which was located near by. At the conclusion of the State’s case-in-chief, def ense counsel moved for a directed verdict, which the trial court denied. The State then moved to nol-pros the counts c harging defendant with residential arson and felony murder predicated on residential arson, which the trial court allowed. Defense counsel prese nted no evidence and both parties rested. There after, outside th e prese

nce of the jury , the par

ties submit

ted jury instructi ons for th e trial c ourt to review. Defense counsel reque sted that the jury be provide d with an instruction on the offense of involuntary manslaug

hter, arguing that there was evidence to support the conclusion that defendant acted recklessly and that his reckless acts unintentionally caused the deaths of the three childre n. Specif ically, counse l argue d: “[The State] presented evidence that Mr. Phillips lit a fire in a garbag e can close to a house. And which we would argue is a re ckless act on a windy day, lighting

a fire in a garbage ca

n close to a wood and asphalt shingled house. That’s a re ckless act and the jury could rea

dily believe that bec ause of that reckless act, that house caug ht fire and the children died.” The State, however, objected to defendant’s r equest for an involuntary

manslaughter instruction, arguin g that th e instruction was “ not avail able” to

defenda nt becau se involun

tary manslaug

hter is not a lesser-included offense of felony murder. The trial court agree d with the State and declined to instruct the jury on the offe nse of involuntary manslaug hter. Defense counsel also requested an instruction on the offense of reckless conduct; howeve r, the trial court declined to provide that instruction as well.1-06-1940

16

Thereafter, the parties proce eded with closing arguments. The State empha sized that defendant repeatedly

admitted his involvement with the fire, but argued that defendant attempted to minimize his culpability by c laiming that he started the fire in a ga rbage can on the east side of the residence, rather than with ga soline on the west side of the residence. The State arg ued “[t]he physical evidenc e in this case is contrary to what defendant said,” noting that the remains of a melted g arbag e can we

re not fo und, and t hat the bu rn patte rns and the gaso line soil sa mple revealed that the fire originate d on the west side of the residence, rather than on the east side of the residence. According to the State, the phy sical evidence showed that the “house was burne d down by gasoline” and that defe

ndant acted inten

tionally . Based

on the evi dence, the State argued that defendant should be convicte d of felony murde r predicated on agg

ravated arson. Defense counsel, however, arg ued that there was no credible evidence that defendant knowingly ig

nited the residence with gasoline, noting that no g asoline container was ever found and that neither Pablo Alvarez nor David Bingenhe imer ever mentioned that defendant smelled like ga soline on t

he nigh t of the fi re. I nstead, c ounsel em

phasized t

hat defe ndant con sistently stated on six different occasions that he started a fire in a g arbage can. Acc ordingly, c ounsel argued that there was no evidenc e that defendant knowingly started the residence on fire and that the State failed to prove that defendant was g uilty of felony

murder predicated on agg ravated

arson. At the conclusion of the closing arguments, the jury received the relevant jury instructions, including instructions on felony murde r. Approximately one hour af ter jury deliberations commenced, the presiding judge received a note from the jury inquiring into the meaning of the term “knowingly .” Specifically, the note stated: “This is our question:1-06-1940

17

Knowingly da

mage, partially

or totally any

building, is knowingly mea nt to be one, having knowledge of, two, or with intent. Or, to dispute unknowingly .” The court informed the attorneys for

both parties about the jury’ s question and asked defense counsel if he “wa ive[d] [defendant’s] appearance” and counse l responded, “Yes.” I n response to the jury’ s question, the State argued that “the langua ge of knowledge is pretty plain. At this point, they don’t need any other direction and they

should keep on deliberating.” Defense counsel, however, requested the court to provide th e jurors with I llinois Patt

ern Jury Instr uction, Cr

iminal, No . 5.01B (

4th ed. 2000), su bparag raph 2, w hich state s: “ ‘Per son acts k nowingl y with reg ard to the

result of his conduct w

hen he is c onsciousl

y a ware tha t such re sult is pra

ctically certain to be cau sed by

his conduct.’ ” The court agre ed with defense counsel that further instruction would assist the jury and orde red that the jury receiv e the instr

uction re quested by de fense c ounsel. After receiving the additional instruction, the jury found defendant guilty

of aggravated

arson an d first de gree f

elony murder. Thereafter, the

trial cou rt, afte r finding defenda nt eligib le for the death penalty

based on the number and ages of the victims, presided over defendant’s sentencing hearing. Afte

r hearing the argume

nts advanced in aggra

vation and mitigation, the trial court declined to impose the death penalty . Rather, the trial court imposed a natural life sentence for his first degree murder conviction and a 30-y ear sentence for the aggravated arson conviction and ordered the sentences to be ser ved consecutively . Defendant responded with a motion to reconsider his sentence, which the trial court denied. Ther eafter, defendant filed a timely notice of appea

l. On appeal, defendant first asserts that I llinois courts implicitly follow the same-act doctrine in reviewing felony murder convictions and that, pursuant to this doctrine, his felony1-06-1940

18

murder conviction must be vacated because the f ire and the death of the children arose out of the same phy sical act. The Stat

e respon ds that the

same-a ct doctr ine does n

ot apply and that I

llinois precedent supports defendant’s conviction for f elony murder ba sed on the predicate offense of aggravated ar

son. The issue of whether a legal doctr ine applies in a specific case presents a que stion of law, which is subject to de novo review. See Heastie v. Robert s , 226 Ill. 2d 515, 530-31 (2007). A person commits the offense of felony murder when he, without lawful justification, causes a person’s death while “he is attempting or committing a forcible felony other than second degree murder.” 720 I

LCS 5/9-1(a)(3) (West 2002). Aggravated arson is a forcible f elony and, accordingly , can serve as the predicate off ense for felony

murder. 720 IL CS 5/2-8 (West 2002) (“ ‘For cible fe lony ’ means * ** agg ravate d arson” ); see also People v. Hobley , 159 Ill. 2d 272 (1994) (upholding a defendant’s felony murder conviction predicated on agg ravated arson); People v. Washington , 272 Ill. App. 3d 913 (1995) (same) . The ultimate purpose of the felony murder d octrine “is to limit t

he violen ce that a ccompan ies the c ommission of

forcible felonie s, so that a nyone who commi ts su ch a vi olent felon y will be a utom atica lly subj ect to a murd er char ge if someone is killed during the commission of that felony .” People v. Figueroa , No. 1-05-2805, slip op. at 8 (Marc h 28, 2 008), citi ng People v. Belk , 203 Ill. 2d 187, 192 (2003). Felony murde

r differs from other forms of first deg ree murder in that the State is not required to provide evidence of the defe ndant’s mental state at the time of the offense. Cf . 720 IL CS 5/9-1(a)(1) (West 2002) (intentional murder); 720 ILCS 5/9-1(a)(2) (West 2002) (knowing murder) . Beca

use of thi s fact, c oncern a rose tha t the State would use

felony murder c harge s to avoid the burden of proving intentional or knowing killings to obtain a f irst degree murder1-06-1940

19

conviction and would effectively eliminate second degree murder charges, a concer

n that was especially pa

ramount in cases where the same evidence is used to prove the predicate felony and the killing. See People v. Morgan , 197 Ill. 2d 404, 430 (2001). Our supreme court addressed this concern in People v. Morgan . In Morgan , the 14-yearold defendant, in response to being struck by his grandfather for rec eiving a detention at school, retriev ed his gr

andfather’s ha

ndgun a nd shot his g

randfa ther. The defenda nt then sho t his grand mother a s she atte

mpted to exit the resi dence. The def endant w as char

ged wit h multiple counts of murder, including felony murder predicated on agg ravated battery

and aggravated di sch arg e of

a fi rea rm. At h is ju ry tr ial , t he j ury r ece iv ed i nst ruc ti ons on f elo ny mu rde r. In analy zing the propriety

of the ins truction, the supre me court noted: “The forcible felonies underly ing the charges of fe lony murder in this case–a ggravated battery and ag grava

ted discharge o f a fire arm–wer e acts th at were

inheren t in, and a rose out of, the fatal shootings of [defendant’s gra ndparents]. It is arguable that it was not the pred icate fel onie s that

resu lted i n and caus ed th e mur

ders of [de fend

ant’ s gr andp aren ts], but rather that it was the murders of [defendant’s gr andparents] which gave rise to the predicate felonies.” Morgan , 197 Ill. 2d at 447. The cour t held tha t “where the acts constituti ng forc ible felonies aris e from a nd are in herent i n the act of murder itself, those acts cannot serve a s predicate felonies for a charge of felony murder.” Morgan , 197 Ill. 2d at 447. According ly, because the predicate felonies arose from and were inherent in the murder of the defe ndant’s grandparents, the court found that the tr ial court erred in instructing the jury on felony murder

. Morgan , 197 Ill. 2d at 447-48. The court next addressed the felony murder doctrine in People v. Pelt , 207 Ill. 2d 4341-06-1940

20

(2003). In Pelt , the defendant was convicted of aggravated battery of his 95-day-old son and felony murder

predicated on aggr

avated battery

of a child, based on evidence presented a t trial showing that the defendant threw his son aga inst a dresser and caused injuries that resulted in the infant’s death. Defendant challeng ed his conviction, arguing his felony murder conviction was improperly predic ated on aggravate d battery, bec ause, as in Morgan , the act constituting the forcible felony

was inherent in the killing itself. Pelt , 207 Ill. 2d at 436-41. Our supreme cour t agree d, finding : “The act of throwing the infant forms the ba sis of defendant’s aggra vated battery conviction, but it is also the same act underly ing the killing. Therefore, as in Morgan , it is difficult to conclude that the predicate felony underlying

the charge of felony

murder involved conduct with a felonious purpose other than the conduct which killed the infant.” Pelt , 207 Ill. 2d at 442. Accord ingly, the cour

t held tha t the ag grava

ted batte ry charg e could not serve a s the pre dicate felony to felony

murder and reversed the defe ndant’s felony murde

r conviction. Pelt , 207 Ill. 2d at 442-43. The supreme court provided its most recent comprehensive a nalysis of the felony

murder doctrine in People v. Davis , 213 Ill. 2d 459 (2004). I n Davis , the defendant was convicted of felony murder

predicated upon mob action, based on evidence pre sented at trial that the defenda nt joined a

group o f 10 or mor

e men and

inflicte d blows upon the vict im, a stra nger to their neighborhood, who died as a result of the bea ting he received. Defenda nt had admitted that he struck the victim several times, but stated that “ ‘[he] did not mean for the guy to die.’ ” Davis , 213 I ll. 2d at 46 7. The de fendant challen ged his c onviction , argu

ing, in pe rtinent pa rt,1-06-1940

21

that his conviction for felony murde r could not stand pursuant to the reasoning in Morgan and Pelt

. In re

jecting the defe ndant’s c laim, our s

upreme c ourt rea

ffirmed its prior holdings i

n Morgan and Pelt , confirming that when “ ‘the acts constituting for cible felonies arise from and are inh erent i n the a ct of m urder i tself , tho se acts canno t serv e as pre dicat e felon ies fo r a char ge of felony murde

r.’ ” Davis , 213 Ill . 2d at 472, q uoti ng Morgan , 197 Ill. 2d at 447. The court then found the facts in Morgan and Pelt distingu ishable f rom those present in the ca se at han

d, noting : “[T]o convict defendant of mob action, it was not necessary to prove that defendant struck [the victim], much less performed the act that caused the killing. Unlike Morgan and Pelt , we are able to conclude that the predic ate felony unde rlying the c

harge of felony murder involved conduct with a felonious purpose other than the conduct whic h killed [the victim]. Therefore, under the facts of the instant case, mob action was a proper predicate felony

for felony mur

der.” Davis , 213 Ill. 2d at 474-75. Accordingly , the court upheld the defendant’s felony murder conviction. Although the decisions in Morgan , Pelt , and Davis neither explicitly

refer ence nor apply the same-act doctrine, defendant, re lying on Justice Garman’ s special concurrence in Davis , contends that Illinois courts implicitly follow the same-act doctrine

. Davis , 213 Ill. 2d at 480-97 (Garman, J., specially c oncurring). I n her concurrence, Justice Garman provided a brief overview of various approaches take n by differe

nt jurisdictions to determine the propriety of felony murder

convictions. Specifically, she ide ntified the merger doctrine, where “a felonious assault can never serve as the basis of a charge of felony

murder”; the same-act doctrine, which precludes felony

murder “whenever the act that constitutes the pre dicate felony is the same act1-06-1940

22

that results in the death of the victim,” and is thus an expansion of the merger doctrine “to any predicate felony , whether or not it involves assaultive conduct”; and the collateral-f elony doctrine, which “requires that the predicate felony not be a le sser-included offense of second degree murder.” Davis , 213 Ill. 2d at 483, 488-89 (Garman, J., specially concurring). Thereaf

ter, Justice Garman noted that the Illinois Supreme Court had never e xpressly adopted the merg er, same-act, or collateral-felony doctrines, and, in fact, had expressly rejected the merger a

nd sameact doctrines in People v. Viser , 62 Ill. 2d 568 (1975). Davis , 213 Ill. 2d at 490 (Garman, J., specially conc

urring). Justice Garman, however, indicated her conc ern that the supreme court had implicitly adopted the same-a ct doctrine, despite reaffirming its prior dec ision in Viser , based on the language in Morgan requiring that “ ‘the predicate f elony underly

ing a charge of felony murder

must involve conduct with a felonious purpose other than the killing itself.’ ” (Emphasis in original.) Davis , 213 Ill. 2d at 490-91 (Garman, J., specially concurring), quoting People v. Morgan , 307 Ill. App. 3d 707, 714 (1999). Although Justice Garman e xpressed dissatisfaction with the same-act doctrine due to the fact that it ignor ed the legislative intent of the felony m

urder st atute, sh e sugg ested tha

t if the co urt were to adopt th e same- act doct rine, “i t should do so unequivocally and there by give clear guidance to prosecutors and trial courts.” Davis , 213 Ill. 2d at 495 (Garman, J., specially concurring). Ultimately, we find that Justice Garman’s spe cial concurrence does not provide us with a reason to vacate defendant’s fe lony murder conviction. Pursuant to the reasoning in Morgan , Pelt , and Davis , the relevant inquiry is not the number of acts committed by de fendant but, rather, whether the predicate felony underlying

the felony murde

r charge was inhere

nt in the killing and involved conduct with a felonious purpose other than the conduct that resulted in the killing.1-06-1940

23

Morgan , 197 I ll. 2d at 44 7-48; Pelt , 207 I ll. 2d at 44 2-43; Davis , 213 I ll. 2d at 47 4; see al so People v. Figueroa , No. 1-05 -2805, sli p op. at 10

(March 28, 2008)(conclu

ding tha t pursuan t to the supre me court ’s holding s inMorgan , Pelt , and Davis , the relevant inquiry is whether the predicate felony

was inherent in the killing such that it “involved conduct with a felonious purpose other

than killin

g” (em phasis in origina

l)); Pe op le v. Bo yd , 356 Ill. App. 3d 254, 257-61 (2005) (same). Inde ed, in Davis , the court affirmed the defendant’s convic tion for felony murde

r even thou gh he on ly c ommitted one crimina l act, a r esult that would hav e been in

consiste nt with a literal application of the same-act doctrine. See Davis , 213 I ll. 2d at 49 4 (Garma n, J., speci ally concurring) (recog

nizing that in Davis , the court was “faced with a case in which the defendant committed only one criminal act y et we are affirming his conviction for f elony murder” ). Applying the r

easoning of Morgan , Pelt , and Davis , we conclude that defendant’s conduct in starting the fire was not an act that was inhere nt in and arose out of the murder of Samantha Cruz, Eric a Ramos, a

nd Fran kie Ramos, because

it involved

conduct w

ith a felonious purp ose other than killing the three children. I ndeed, in his videotaped confession, defendant admitted that he sta

rted the fire be cause he

was frus trated by hi s recen t unpleas ant enco

unter wit h his

roommate , not beca

use he int ended to k

ill any of the re sidents of

the home. “When the

intent is to kill, there is no predicate felony ; it is only when there is no intent to kill that a predicate f elony is possible.” Bo yd , 356 Ill. App. 3d at 259 (upholding the defe ndant’s conviction for felony murder predicated on agg ravated discharge of a

firearm, because the evidence showed that the defendant shot his firearm in an attempt to scare his brother, a nd that he did not intend to kill the victim). B ecause

defenda nt did not in

tend to kill

the victim s when he

set the fi re, the predica

te offense of agg ravate d arson w as not an a ct inher ent in the killings. Accord

ingly, we uphol d1-06-1940

24

defendant’s conviction for felony murder. Next, defe

ndant con tends tha t his convi ctions must

be reve rsed bec ause he was denie d his constituti onal rig

ht to rec eive ef

fective assistanc e of coun sel when his trial c ounsel fa

iled to request a jury

instruction on the lesser-included offense of criminal damag e to property w here there was some evidence in the recor d to support such an instruction. The State argues that an instruction on the lesser-included offense of criminal damag e to property was not warranted because there was no rational basis upon which the jury could have convicted him of the lesser offense and acquitted him of agg ravated arson, and, accordingly, trial counsel was not inef fective for failing to request such an instruction. A criminal defendant has a constitutional right to rece ive effective assistance of counsel. U.S. Const. , amends. VI, X IV; I ll. Const. 19 70, art. I , §8. To establish a v iolation of

his constituti onal rig

ht to effe ctive as sistance

of counse l a defe

ndant must

meet the t

wo-pron ged tes t established by the United States Supreme Court in Strickland v. Washington , 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068 (1984), and show that (1) counsel’s performance was objectively unreasonable and (2) resulted in prejudice to him. Strickland , 466 U.S. at 687 , 694, 80 L . Ed. 2d at 693, 698, 1 04 S. Ct. at 2 064, 2068; People v. Albanes e , 104 I ll. 2d 504, 525-26 (1984). It is incumbent upon a defe ndant to satisfy both prong s of the Strickland

test. Strickland , 466 U.S. a t 687, 80 L . Ed. 2d at

693, 104 S. C t. at 2064; People v. Patterson , 217 Ill. 2d 407, 438 (2005). To satisfy the first prong, the defendant must overcome the “ strong presumption” that counsel’s performance was a matter of sound trial strategy

. Strickland , 466 U.S. at 689 , 80 L. Ed. 2d at 6 94, 104 S. Ct. at 2065; People v. Perry , 224 Ill. 2d 312, 341-42 (2007). M oreover, to satisf y th e prejud

ice pron g, the d efenda nt must prov e that a r

easonab le1-06-1940

25

probability exists that, but for counsel’s unreasona ble performance, the trial result would have been different. Strickland , 466 U.S. a t 694, 80 L . Ed. 2d at

698, 104 S. C t. at 2068; People v. Cunningham , 376 Ill. App. 3d 298, 301 (2007). Generally , a defendant may not be convicted of an offense for which he has not been charged; however, in ce

rtain cases a defendant may be entitled to proffer an instruction on an uncharged lesser-included of fense to the jury. People v. Ceja , 204 Ill. 2d 332, 359 (2003). A lesser-included offense is one that “[i]s established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is re quired to establish the commission of the offense charged.” 720 I LCS 5/2-9(a) (West 2002). Courts employthe twotiered charging instrument approa ch to determine whether an offense is prope rly considere d a lesser- included

offense and whet her a de fendant

is entitle d to a less er-inc luded off ense instruction. People v. Kolton , 219 I ll. 2d 353, 3 59-60 (20 06); People v. Echols , No. 1-05-3293 (April 22, 2008). Pursuant to this approach, an offense is a lesser- included offense of a charg ed offense if the factual description of the cha rged offense in the indictment contains a “ ‘ broad foundation’ ” or “ ‘main outline’ ” of the lesser off ense. Kolton , 219 Ill. 2d at 364, quoting People v. Jones, 207 Ill. 2d 122, 143-44 (2003) (Fitzger ald, J., specially concurring ). However, “ ‘[t]he identification of a lesser included offense does not automatically give rise to a correlative right to have the jury

instructed on the lesser offense. [Citation.]’ ” People v. Baldwin , 199 I ll. 2d 1, 1 3 (200 2), qu otin g People v. Novak , 163 Ill. 2d 93, 107-08 (1994). According ly, once a lesser- included

offense is identif ied, the c ourt must examine the e vidence adduce d at trial

to determine whethe

r the evi dence r

ationally supports a

convicti on for the

lesser- included

offense in order to determine whether the defenda nt is entitled to an instruction on the lesser offense.1-06-1940

26

People v. Medina , 221 Ill. 2d 394, 405 (2006) (explaining that “[a] defendant is entitled to a lesser- included

offense instructi on only

if the evidence a

t trial is su

ch that a jury could ra tionally find the defendant guilty

of the lesser offense, y

et acquit him of the greater”). H owever, irrespective of whether an offe nse is considered a lesser-included offense , Illinois courts have gener ally recog nized that “

‘[t]he dec ision to off

er an ins truction on a lesse r-includ ed offe nse is one of trial strategy , which has no bearing on the competency of counsel.’ ” People v. Evans , 369 Ill. App . 3d 36 6, 383 (2006 ), quo ting People v. Balle , 256 Ill. App. 3d 963, 971 (1993). In this case, defenda

nt contends, and the State agrees, that based on the charging instrument approach, the offense of criminal damag e to property is a le sser-included offense of aggravated ar

son. We agree with the assessment of both parties. Pursuant t

o section 20-1.1(a ) of the Cr

iminal Code

of 1961 (Criminal Cod

e): “A person commits aggrava ted arson when in the course of committing arson he knowingly da

mages, partially

or totally, any

building or structure, including any adjacent building or structure, including all or any part of a school building, house trailer, watercraft, motor vehicle, or railroa d car, and (1) he knows or reasonably should know that one or more pe

rsons ar e prese nt there in or (2)any

person suffers g

reat bod ily harm, or permanent disability or disfig urement as a result of the fire or explosion or (3) a fireman or police man who is p

resent a t the sce ne actin g in the l ine of dut

y, i s injured

as a result of the fire or explosion.” 720 ILCS 5/20-1.1(a) (West 2002). In this case, the indictment charg ed defendant with committing the offense of “aggravated a

rson in that he, when in the course of committing arson, by means of fire,1-06-1940

27

knowing ly d

amage d real pr

operty, to wit: the

building located at 2442 Wes t 25th

Street, Chicago, Cook County, I

llinois and knew or reasonably should have known that one or more persons were present therein, in violation of Chapter 720 Act 5 Section 20-1.1(a)(1) of the Illinois Compiled Statutes 2001, as amended and, contrary to the Statute and against the peace and dig

nity of the same People of the State of Illinois.” With respe ct to the o ffense of criminal damag e to prope rty , the Crimin

al Code pr

ovides, in pertinent part, that “[a] person commits an illegal act when he: (a) know ingly dama

ges any property of a

nother without his consent; or (b) recklessly by means of fir

e or explosive damages property of a

nother; or (c) knowingly

starts a fire on the land of another without his consent.” 720 IL CS 5/21-1(1) (West 2002). We conclu

de that de fendant ’s indictment for the offen se of aggrava ted arson contain s a sufficiently broa

d foundation or main outline for the offense of criminal damag e to property. Defend ant’s indi ctmen t charge d him with knowi ngly damagi ng anot her’s p ropert y by starting a fire and thus supports a charge of c riminal damage to property under sections 21-1(1)(a) and 21- 1(1)(c). See People v. Kyles , 303 Ill. App. 3d 338, 350 (1998) (recog nizing that section 21- 1(1)(a) “would also be implicated where the property is damaged by fire , although in that subsection that cause of the damage ne ed not be fire related”). Moreove r, the indictment provides a sufficient foundation for a charg e of criminal damage to property under section 21- 1(1)(b) because “the highe r mental state of knowledge can be vie wed to provide an outline for the mental state of recklessness.” People v. Parsons , 284 I ll. App. 3d 1049, 1059(1996); s ee also Kyles , 303 I ll. App. 3d

at 350 (“ Subsection (1)(b) of [the cr iminal damage to p

roperty ] statute1-06-1940

28

involves a different mental state, recklessness, [than the aggravated arson statute] but that distinction is not fatal since by definition an included off ense may be

an offense which requires proof of a less cu lpable me ntal state ”). Acc ordingl

y, we conclu

de that ba sed on the

indictmen

t in this case, criminal damage to property is a lesser-included offense of aggravated arson. See Parsons , 284 Ill. App. 3d at 1058-59 (finding that criminal damage to proper ty was a lesser

included offense of agg

ravated arson based on an indictment containing similar lang uage); People v. Bradley , 256 Ill. App. 3d 514, 516-17 (1993) (same); se e also Kyles , 303 Ill. App. 3d at 349-50 (finding that criminal damage to prope rty was a le sser-included offense of attempted aggravated ar

son). Having determined that the indictment in this case contained a suff icient foundation for the offense of criminal damage to pr operty, we must now e

xamine the evidence presented at trial to determine whether the jury could have rationally

found defendant guilty

of the lesser offense, and if so, whether counsel’s failure to request such a n instruction caused defendant to receive ineffective assistance of counsel. Def endant contends that his repeated statements that he started a fire in a garbag e can located three feet a way fr om a residence provides “more than slight evide nce” of

reckle ss con duct a nd, ac cordi ngly, an in struc tion on th e offen se of cr imin al dam age to property under

section 21-1(1)(b) of the Criminal Code (720 I LCS 5/21-1(1)(b) (West 2002)) was warranted. The State, however, ma intains that the jury could not have ra tionally acquitted defenda nt of the g

reater charg e of ag grava

ted arson becau se the ev

idence overwhe lmingly demonstrates that defendant knowingly started the fatal fire. Both parties rely

on People v. Bradley , 256 I ll. App. 3d 514 (1993 ), to support their1-06-1940

29

respective arguments as to the existence, or lac k thereof, of evidence of rec klessness based on defendant’s confession. I n Bradley , the defendant was charge d with aggravated arson based on evidence that she set fire to her boy friend’s mattress. Initially, when asked about the fire, the defendant indicated that she had been smoking a nd may have dr

opped a cigarette, thus igniting the mattress. However, upon further questioning, the de fendant admitted that she deliberately set her boyfr iend’s mattress on fire with her cigare tte lighter because she was ang ry with him. On appeal, the defendant challeng ed her aggra vated arson conviction, arguing that the tr ial court erred in failing to instruct the jury on the lesser-included offense of criminal damage to property. Bradley , 256 I ll. App. 3d

at 515-16 . We agr

eed, hold ing: “In the present ca se, defendant initially off ered [police] an explanation of how the fire might have been caused. She state d that she may have dropped and not retrieved a light ed cigar ette d uring a struggl e with [her b oyfriend ]. Th is st ateme nt, al thou gh subsequently rec anted by def endant, could have supported a determination by the jury that defendant acted recklessly rather than knowingly

and deliberately . Defendant’s initial statement as to the cause of the fire entitled her to an instruction on criminal damage to property . We hold that the trial court erred in finding that there was no evidenc e of rec

klessnes s and in re fusing t o give the instruction on cr iminal damage to property.” Bradley , 256 Ill. App. 3d at 516. Defendant contends that, like the defendant’s conf ession in Bradley , his confession that he ignited a piece of cardboa rd in a garbage c an located three feet away from the residence because he was frustrated by the recent fight he had with his roommate could have supported a1-06-1940

30

finding by the jur

y that he acted recklessly a nd, accordingly , he was entitled to an instruction on criminal damage to proper ty. We disag

ree. As the State correctly n

otes, whe n the def endant in Bradley initially admitted to accidentally dropping a lit cigarette, this evidenced a lack of intentional and deliberate action by the defendant. Here, in contrast, the defe ndant’s confession reveals that he started the fire knowing ly and delibera tely, neg ating any

contention that the fire was caused by

mere recklessness. I

ndeed, unlike the defendant in Bradley , defendant never claimed that the fire was started accidenta lly; rather, in all of the a

ccounts that defendant provided of the fire, he consistently admitted to deliberately star ting a fire in a garbage can, which he positioned close to the residence. Moreover, the State presented evidence tha t the defendant actually

started the fire by igniting gasoline on the rear wall of the residence, which was clear ly a delibera

te and knowing act. Specifically , Detective O’Meara and Supervising Fire Marshall Corcoran testified that they encountered a very

strong odor of gasoline at the scene of the fire and they

were unable to find the remnants of a

melted g arbag e can to c orrobor ate def endant’ s confes sion. More over, a s oil sample taken from the fire scene tested positive for the presence of gasoline and none of the firefighters who responded to the fire saw a burning garbage can when they arrived at the scene. Accord ingly, althoug

h we find that crim inal dama ge to pr operty was a les ser-inc luded off ense to the charged offense of

aggravated ar

son, we find that defendant was not entitled to an instruction on the lesser offense in this case based on his confession. I ndeed, even if the jury

had believed his confession, there is no basis upon which the jury rationally could have

acquitted him of the charg ed offe

nse of ag grava ted arson and con

victed hi m of crimi

nal dama ge to pr operty because1-06-1940

31

there was no evidence that defenda nt acted recklessly

when he admitted to deliberately starting the fire. See Parsons , 284 Ill . App. 3d at 1 060 (f indi ng that whil e the o ffense of cri minal damage to proper ty w as a less er-inc luded off ense of a ggra vated arson, the de fendant was not e

ntitled to an instruction on the lesser-included offense beca use the evidence showed that the defendant intentionally implanted an explosive device in a Chicago bar and thus, “there was no rational basis for acquitting the defendant of the g reater offense [of agg

ravated arson] and for convicting him only of the lesser included of fense”); see also Kyles , 303 Ill. App. 3d at 351 (finding that the defendant, charged with attempted a ggravated arson, wa s not entitled to an instruction on the lesser-included offense of criminal damag e to property be cause “[t]here was no evidence of carele ssness on t

he part o f the def

endant” in startin g the fi re); People v. Ryan , 97 Ill. App. 3d 1071, 1074

(1981) ( holding t hat the de fendant , charg ed with ag grava ted arson, was not

entitled t o an criminal damag e to prope rty instructi on, beca

use she a dmitted to i

ntentiona lly s tarting

fires in an acquaintance’s townhouse and, “[a]s such, the rec ord is void of any evidenc e which establishes mere ‘recklessness’ ”). Ac cordingly , because defendant was not entitled to an instruction on the lesser-included offense of criminal damag e to property, w e find that counsel was not ineffective for failing to reque st such an instruction. Defendant also contends that trial counsel provided ineffe ctive assistance when he failed to introduce, as substantive evidence, a report completed by state fire investigators concluding that the f ire originated in

a diffe rent loc ation tha

n that det ermined by Su pervisin g Fire Marshal l Corcoran. The State notes that the report is not contained in the recor d on appeal and thus argues that ther e is no evi dence w

ith which t

his court can dete rmine whe

ther def ense cou nsel’s fa ilure to1-06-1940

32

introduce the report as substantive evidence amounted to ineff ective assistance of counsel. As a general rule, wher

e a defendant’s ineffective a ssistance of counsel claim requires consideration of matters not included in the record on appea l, a postconviction relief proceeding is better suited to r

esolve th at claim a

nd the app ellate c ourt may properl y de cline to a

djudicat e the defendant’s claim on direct appeal. See, e.g ., People v. Millsap , 374 Ill. App. 3d 857, 863 (2007) (declining to address the defenda nt’s ineffective assistance of counsel claim on direc t appeal because the record did not conta in sufficient material to allow for meaningful consider ation of the claim) ; People v. Ligon , 365 Ill. App. 3d 109, 122 (2006) (same). In this case, although de fense counsel reference d the report during his cross-examination of Supervising Fire Marshall Corcoran, the r eport itself is not contained in the record on appeal. Without rev

iewing the report, we ca

nnot know t

he prec ise conc lusions dr awn by the state investigators or the evidence that led to those conclusions, and, ac cordingly , we cannot determine whether defense counsel’s failure to introduce the report as substantive evidence deprived defendant of his right to receive ef fective assistance of counsel. Bec ause this claim of ineffective assistanc e of coun sel requ ires con siderati on of matte rs not con tained in the rec ord, we d

ecline to address this argument on direct appeal. Millsap , 374 I ll. App. 3d at 863; Ligon , 365 Ill. App. 3d at 122. Next, defendant contends that the trial court erred when it re fused to instruct the jury on the offense of involuntary manslaughter. The State responds the trial court cor rectly found tha

t an instruction on the offense of involuntary manslaughter was not warranted be cause involuntary manslaughter is not a lesser-included offense of felony murde

r pursuant to the supreme court’s1-06-1940

33

reasoning in People v. Davis , 213 Ill. 2d 459 (2004).

As we hav e alrea

dy o utlined a bove, co urts employ th e charg

ing instr ument approach to determine whether an offense is a lesse r-included offense of a charged offense and whether a defendant is entitled to an instruction on that offense. Kolton , 219 I ll. 2d at 36 0-61; People v. Csaszar , 375 Ill. App. 3d 929, 944 (2007).

In thi s case, d

efenda nt with cha

rged w ith: “First Degree [Felony

] Murder in that he, without lawful justification killed Samantha Cruz, [Eric a Ramos, a

nd Fran kie Ramos] w

hile he wa s committing

a forci ble felony, to wit: an ag grava ted arson at 2442 We st 25th Street, Ch

icago, Cook County

, Illi nois, in violation of Chapter 720, Act 5, Section 9-1(a)(3) of the I llinois Compiled Statutes 2001, as amend ed, and c ontrary

to the Statu

te, and a gainst t he peac e and dig

nity of the sa me People of the State of Il linois .” The Criminal Code de fines the offense of involun

tary manslaug

hter as f ollows: “A person who unintentionally kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly , except in cases in which the cause of death consists of driving a motor vehicle or operating a snowmobile, all-ter rain vehicle, or watercraft, in which case the person commits reckless homicide.” 720 I LCS 5/9-3(a) (West 2002). Consistent

with the st

atutory definition of felony m

urder ( see 720 I

LCS5/9 -1(a)( 3) (West 2002); Davis , 213 Ill. 2d at 477), defendant’s indictment for felony murder

does not reference1-06-1940

34

any mental state with re spect to the killing. In contrast, the statutory definition of involuntary manslaughter specifies that a defe ndant must have had a reckless mental state to be guilty of that offense. 720 ILCS 5/9-3(a) (West 2002). As our supreme court explained in Davis , “for involuntary manslaug

hter to be a lesser-included offense of f elony murder, the

felony-murde

r count must include a more culpable or equally culpable mental state as involuntary manslaughter.” Davis , 213 Ill. 2d at 477. Because felony murder , as described in defendant’s indictment, does not contain a mental state, and the offense of involuntary manslaughter requires a reckless mental state, we conclude that the c harging instrument does not contain a broad outline of involuntary manslaug

hter. Accordingly , in this case, involuntary manslaughter is not a lesserincluded offense of felony murder, and the trial court did not err in refusing to instruct the jur y on that offense. See Davis , 213 I ll. 2d at 47 7 (concl uding tha t involunta

ry manslaug

hter was not a lesser- included

offense of felon y mu rder in that case

because “[f]elony murder a s descri

bed in defenda nt’s indictment doe s not inclu de a culp able men

tal state as to the k

illing wh ile the of fense of involuntary manslaug

hter does requires a reckless mental state” ); see also People v. McCarro ll , 168 I ll. App. 3d 1020, 1023 (1988) ( “Where t he sole mu

rder charge a

gainst a defendant is based on felony murder, no involuntary mansla ughter charge ne ed be given”). In so holding, we are

unpersuaded by

defendant’s argument that the approa ch taken by the supreme court in Davis was too na rrow be cause the court “ illogica lly i gnore d the pre dicate felony desc

ribed in the indictment” when it found that involuntarymanslaughter was not a lesserincluded offense of felony murder based on a simple review of the defe ndant’s indictment for felony murder

and the statutory def

inition of involuntary manslaughter . Specifically, def endant1-06-1940

35

contends that the Davis court’s “analy sis ignores a fundamental requirement of e very fe lony murder in dictment: the pred

icate forcible f

elony . *** I

ndeed, b ecause

felony murder necessa

rily requires a predicate forcible f elony, any

charging instrument analy sis of a felony murde

r indictment necessarily must consider the predicate felony , including its concomitant mental state.” We disagree. Defenda nt’s argument ignores the fundame ntal nature and purpose of the felony murder d octrine . Beca

use “[f]el ony

murder is

premised on strict l iability

for one w

ho kills or is responsible for a killing during the commission of a felony ” ( People v. Hall , 291 Ill. App. 3d 411, 420 (1997)), there is no merit to his claim that the mental state of the underly ing felony should be examined when a defendant requests an involuntary manslaughter instruction in a felony murder

case. Next, defe

ndant con tends tha t the tria l court c ommitted r

eversib le erro

r when it r

efused t o order a mistrial when one of the State’s witnesses offer ed testimony that violated the court’s ruling on a motion in limine , precluding referenc e to prior acts of arson. The State responds that a mistrial was not warranted because def endant was not prejudiced by the testimony. Generally , testimony pertaining to a defendant’s prior unrelated crimes or a cts of misconduct to prove the defendant’s propensity to commit a crime is prejudicial. See People v. Jackson , 372 I ll. App. 3d

112, 121- 22 (2007) . Howeve r, if evid ence of prior cr imes is off

ered in contravention of the trial court’s ruling on a motion in limine , such error may generally be cured by sustaining the de fendant’s objection and instructing the jury to disregard the statement. People v. Hall , 194 Ill. 2d 305, 342 (2000). The violation of a trial court’ s ruling on a motion in limine is groun

ds for a m

istrial on ly w hen the vi olation e ffectiv ely deprive d the def

endant of his1-06-1940

36

right to a fair trial. Hall , 194 Ill. 2d at 341-42; see also People v. Bishop , 218 Ill. 2d 232, 251 (2006) (“a mistrial should be granted wher e an error of such gra

vity has occurr

ed that it has infecte d the fund

amental f airness of the tri al, such t

hat conti nuation of

the proc eeding

would defeat the ends of justice”) . Ultimate ly, because it is within t

he trial c ourt’s so

und discr etion to grant or deny

a party’ s request for a mistrial, we will uphold the trial court’s decision to deny the defendant’s motion for a mistrial absent an abuse of discre tion. Bishop , 218 Ill. 2d at 251; People v. Nolan , 332 Ill. App. 3d 215, 229 (2002). An abuse of discr etion exists only when the trial court’s ruling is “ ‘arbitrary , fanciful, *** or where no reasonable man would take the view adopted by the trial c ourt.’ ” People v. Melchor , 376 Ill. App. 3d 444, 451 (2007), quoting People v. Santos , 211 Ill. 2d 395, 401 (2004). In this case, defenda

nt’s roommate David Bingenheimer was a sked various questions per tai ni ng t o t he c onv ers ati on h e ha d wi th Fir e Ma rsh all O’T ool e th e da y aft er t he f ire . In pertinent part, Bingenheimer wa s asked, “And what did y ou tell him about who started the fire?” Bingenheimer responded, “The re’s been others in the past.” Accordingly, there is no dispute that Bingenheimer’s testimony violated the trial court’s ruling on defendant’s motion in limine precluding the introduction of evidence per taining to prior acts of arson. However, we cannot conclude that the violation of the motion in limine deprived defendant of his right to a fair tr ial. Inde ed, following B ingenh eimer’s response , defens e counse l posed an immediate objection, which t

he trial c ourt immed

iately sustaine d. Althoug

h the tria l court de nied def ense counsel’s request for a mistrial during the sidebar that followed, the trial court did admonish the jury “to disreg ard that last question and last answer.” Moreover, at the c onclusion of the trial, the1-06-1940

37

trial court instructed the jurors to disregard questions that were sustained and testimony that was stricken. Accordingly , although an error occurre d, we find that the brief mention of other unspecified acts of arson was sufficiently cured by the

trial court’s subsequent ruling and admonishments to the jury and that the trial cour t did not abuse its discretion in denying defendant’s request for a mistrial. See Hall , 194 Ill. 2d at 342-43 (concluding tha t the trial court did not abu se its discretion in d eny ing the d efenda nt’s req uest for a mistria l when the

State violated its ruling on a motion in limine precluding referenc e to other crimes because the reference to other crimes wa s brief and the trial court sustained the defendant’s objec tion, admonished the jury to disreg ard the question and answer, and instructed the jury at the end of the trial to disregard questions to which an objection was sustained); see also People v. Monroe , 366 Ill. App. 3d 1080, 1092 (2006) (finding that the de fendant was not deprived of his right to a fair trial when four witnesses provided testimony concerning prior acts in contrave ntion of the court’s ruling on a motion in limine because the trial court sustained objections to the testimony and admon

ished the jury to disreg ard the t

estimony , and thus e ffectiv ely

“cured any prejudic e to the defendant”). Defendant next contends that the trial court violated his constitutional right to appear and particip ate in his t

rial whe n it permit

ted defe nse coun sel to wai

ve defe ndant’s a ppeara nce at a confer ence dis cussing

the appr opriate response to a quest

ion posed by th e jury

during i ts deliberation. The State responds that defendant has forf eited review of this issue because he failed to include t his conte ntion of e rror in a posttrial motion. Alt

ernativ ely , the State

sugge sts that defendant’s lack of presence at the conference discussing the jury ’s question did not1-06-1940

38

prejudice him and accordingly , if any er ror occurred, it was necessar ily harmless. As a ge neral r ule, to pr operly preser ve an issu e for ap pellate r eview, the defen

dant must make a timely objection at trial and include the error in a written posttrial motion. People v. Enoch , 122 I ll. 2d 176, 1 86 (1988) ; People v. Jones , 364 I ll. App. 3d 740, 748 ( 2006). I

n this case, there is no dispute that defendant failed to raise this issue in a posttrial motion. However, because claims of error involving judicial misconduct ar e not generally

subject to the same rules of waiver (see People v. Dameron , 196 I ll. 2d 156, 1 71 (2001) ; Peopl e v. J ennin gs , 364 Ill. App. 3d 473, 483 (2005)), we will review the merit of this argume nt. Defendant asserts that the right to be prese nt “is a personal right which counsel may not waive on his client’s behalf” and, according ly, the trial court er

red in accepting trial counsel’s waiver of defendant’s constitutional right. The State, howe ver, suggests that no error oc curred, because the trial court was not required to make a direct inquiry of

defendant to accept a waiver of his right to be present. A criminal defendant has a constitutional right to appear and participate in person and by counsel i n all proc eeding s that impa ct his subs tantial r

ights. U .S. Const., a

mend. VI ; Ill. Const. 1970, ar t. I, § 8; People v. Childs , 159 Ill. 2d 217, 227 (1994). “Jury deliberations are a critical stage of trial which involve substantial rights, trigg ering the defendant’s rig ht to be present and participate in person and by counsel.” People v. Ross , 303 Ill. App. 3d 966, 975 (1999). Accord ingly, “[a] commu

nication betwee n the judg e and the

jury following

the jury ’s retir

ing to deliberate, except one held in open court and in the defenda nt’s presence, deprives the defenda nt of his constitutional rights.” People v. Kliner , 185 Ill. 2d 81, 162 (1998). As with any1-06-1940

39

constitutional right, however, the right to be present c an be waived. People v. Justice , 349 I ll. App. 3d 98 1, 987 (20 04); People v. Wilson , 257 Ill. App. 3d 670, 678 (1993). However , “ ‘ “[w]aivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the re levant circumstances and likely consequences.” ’ ” People v. Stroud , 208 Ill . 2d 39 8, 403 (2004 ), quo ting People v. Johnson , 75 Ill. 2d 180, 187 (1979 ), quo ting Brady

v. United States , 397 U.S. 7 42, 748, 25 L. Ed . 2d 747, 75 6, 90 S. Ct. 1463, 1469, (1970); see also People v. Mallett , 30 Ill. 2d 136, 142 (1964) (“Waiver assumes knowledge”).

Initi ally , we disa

gree w ith defe ndant tha t a trial c ourt may

only accept a waive r direc tly from a defendant. We rejected this very claim in People v. Wilson , 257 Ill. App. 3d 670 (1993), noting that there is no “supreme court rule or statute re quiring such direct inquiry to defendant personally, ra

ther than through to his counsel, to establish a waiver of defe ndant’s right to be present at trial or jury

selection.” Wilson , 257 Ill. App. 3d at 680. Accordingly, we found that the defendant had waived his right to be pre sent during the voir dire of prospective jurors when defense counsel, in defendant’s prese nce, informed the court that he had discussed various options with his client and that defendant had chosen to waive his presence dur ing the voir dire process. Wilson , 257 Ill. App. 3d at 679-80. This same arg ument was also rejected by the Fourth District in People v. Justice , 349 Ill. App. 3d 981 (2004). I n that case, the Fourth District upheld a written “waiver of presence ” filed by def ense counsel on the defendant’s behalf that waived the defendant’s right to be pre sent at the hearing to withdraw his guilty plea, reasoning that no supreme court rule or statute exists that requires the trial court to personally admonish a1-06-1940

40

defendant prior to accepting a waiver of presence and that the re cord revealed that the defendant was aware he had a rig

ht to be present and that he had repeatedly informed his counsel he wished to waive that right. Justice , 349 I ll. App. 3d 988. Acc ordingl

y, t he trial c ourt is pe

rmitted to accept a waiver of a def

endant’s constitutional right to be present from defense c ounsel. Justice , 349 I ll. App. 3d

at 988; Wilson , 257 Ill. App. 3d at 680. However, “[d]efense counsel may waive a defen dant’s r ight to be present only if the de fendant

voluntar ily, knowing ly, and intel ligently waived his right.” Justice , 349 Ill. App. 3d at 988. Therefore, the mere fac

t that defense counsel waived defendant’s r ight to be present is not itself problematic. What is problematic, however, is that there is no evidence that def endant voluntar ily, knowing ly, and intel ligently waived h is right t o be pres ent at the

confer ence to discuss th e question posed by the jury during i ts deliber ations. I ndeed, w hile the r ecords i n Wilson and Justice showed that the defendants were awa re of their right to be present and that they voluntar ily a nd knowing

ly w aived the ir prese

nce, the record in this is ca se is comp letely devoid of evidence that defendant was eve n aware of the jury ’s question, let alone, that he was aware that he had a right to be pr esent at the conference to discuss the response to that question and chos e to waive

that rig ht. Rather, the rec ord in this c ase show s that the t rial cou rt simply informed counsel for both parties of the jury ’s question and asked whether defense counse l waived defendant’s presence. D efense counsel simply responded, “Yes,” and did not give any indication that he had conferred with his client prior to doing so. Acc ordingly, ba sed on the record, we find that there is insufficient evidenc e that defendant voluntarily , knowingly, a nd intelligently waive d his right to be present.1-06-1940

41

Despite the invalid waiver, the State suggests that no improper ex parte communication occurred because even thoug h defendant was not present in the courtroom at the time the conversation occurred, he was re presented by

counsel. We disagree. Our supreme court has recog nized that a criminal defendant’s right to be present includes the right “to appear and participate in person a nd by cou nsel at all pro ceeding s that invo lve his substantial rights.” (Emphasis in original.) People v. McDonal d , 168 Ill. 2d 420, 459 (1995). A defendant’s right to be personally present exists “ ‘so that he knows what is being done, can make objections and take such action as he deems best to sec ure his rights and for his protection and defense.’ ” People v. Thornton , 333 Ill . App. 3d 638 , 652 ( 2002) , quot ing People v. Harris , 294 Ill. App. 3d 561, 568 (1998). According ly, because

defendant was not afforded the opportunity to participate in person, we find that an improper ex parte communication occurred. See Thornton , 333 I ll. App. 3d at 652 (f inding that trial c ourt eng aged in an “err oneous” ex parte communication when it interviewed a juror while the defenda nt was absent even though the defendant’s counsel was present for the c ommunication); see also People v. McLa urin , No. 1-05- 1149, slip op. at 11 (May 15, 2008) (f inding that the trial court erred when it eng aged in an ex parte conversation when the defendant “was not infor med or consulted or allowed to be present when the trial court and the attorney s discussed the jury’s five notes that were sent to the trial court judge”). Defend ant’s ab sence a

lone, how ever, do es not provide us wit h cause t o rever se his convicti on beca

use: “ ‘Even where a defenda nt has the gener al righ t to be pre sent bec ause the procee ding is a1-06-1940

42

“critical” stage, a defe

ndant’s absence is not a per se constitutional violation. Rather, a defenda nt’s abse nce from such a pr

oceedin g will vio late his c onstitutional righ ts only if the rec ord demon strates t hat defe ndant’s a bsence c aused the

procee ding to be

unfair or if his absence resulted in a denial of an underly ing substantial right.’ ” Stroud , 208 Ill. 2d at 405, q uoti ng People v. Lindsey , 201 Ill. 2d 45, 57 (2002). Accordingly , where it is apparent that an improper ex parte communication did not prejudice the defendant, we will not set aside the jury ’s verdict. McDonal d , 168 I ll. 2d at 46 0; People v. Thornton , 333 Ill. App. 3d 638, 653 (2002). I t is the State’s burden, however, to prove that the improper communication was harmless and did not prejudice the defe ndant. Kliner , 185 Ill. 2d at 162; McDonal d , 168 Ill. 2d at 460. The State contends that defendant was not prejudiced by the conversation because the trial cou rt agr eed to pr ovide the additiona l definiti on of the t

erm “knowingly

” that de fense counsel r equeste d. Defe

ndant, however, sugge sts that he was pre judiced b ecause

“complete definitions of both knowingly and r eckless mental states would have been appropriate responses to the jury’s questions.” In this case, we ca

nnot conclude that defendant’s absence pre judiced him. The jury’s question centered on the term “knowingly .” Specifically, the jury inquired: “This is our question: Knowingly dama ge, partially

or totally any

building, is knowingly mea nt to be one, having knowledg e of, two , or with in tent. Or, to dispute

unknowing

ly. ” While the

State sugge sted that “

the lang uage o f knowle dge is pr

etty plain,” d efense counsel r equeste d the cour

t to provide t he juror s with I llinois Patt ern Jury Instr uction, Cr

iminal, No . 5.01B (

4th ed. 2000)1-06-1940

43

5.01B, subparagraph 2, which provide s that: “ ‘Person acts knowingly with regard to the result of his conduct when he is consciously aware that such result is practically certain to be caused by his conduct.’ ” The trial court agre ed with defense counsel’s sugg estion and provided the additiona l instruct ion to the ju

ry . We do not a

gree t hat defe nse coun sel should

have als o requested that the court provide an instruction on the mental state of re cklessness. Namely , an instruction of a reckless mental state would have been unre sponsive to the jury’s question seeking additional explanation for the term “knowingly .” Moreover, an instruction on recklessness would have been inappropriate g iven the complete lack of evidence that defe ndant acted recklessly

when he ignited the fire. According ly, although a

n improper ex parte conversation occurred, we conc lude that the communication did not prejudice defendant; rather, it was harmless beyond a

reasonable doubt.

In so finding , we are

unpersua ded by defenda nt’s reli ance on

our rec ent deci sion in People v. McLa

urin , No. 1-05-1149 (May 15, 2008). In McLa

urin , the def

endant a ppealed his weapons convicti ons seeki

ng rev ersal on

the gro unds that t

he trial c ourt viola

ted his constitutional right to be present when it excluded him from discussions pertaining to five notes sent by the deadloc

ked jury during

jury delibera

tions and permitted the sheriff to have an ex parte conversation with the jurors. We agreed that the de fendant’s constitutional rights were violated and reversed his conviction due to the fact that “[t]he cumulative effect of the trial court’s violations of [the defendant’s] constitutional rights was so serious that it affected the fairness of his trial.” (Emphasis added.) McLa urin , slip op at 14. The facts in McLa urin are thus readily distingu ishable f rom those present in the ca se at bar , where

there wa s one mee

ting con ducted in1-06-1940

44

open court discussing a single question posed by the jury, and the tria

l court responded to the jury’s question in the prec ise manner requested by defense counsel. Moreover, unlike McLa urin , because the ex parte

communication occurred in open court and there is a r ecord of what transpired, we are able to conclude be yond a rea sonable doubt that communication did not prejudice defendant. See McLa urin , slip op. at 16 (declining to speculate on the effects of the sheriff ’s ex parte

communication with the jurors in the jury deliber ation room). Accordingly , we reject defendant’s claim that the trial court’s violation of his constitutional right to be pr esent compels reversal in this case. Finally, defe

ndant contends, and the State concedes, that his conviction for aggravated arson and the 30-y

ear sentence imposed thereon must be vacated because it was the lesserincluded predicate offense for his fe lony murder conviction. “[M]ultiple convictions are improper if they ar e based on lesser included offenses.” People v. Smith , 183 Ill . 2d 42 5, 431 -32 (1 998), citi ng Peopl e v. Ro drig uez, 169 Ill. 2d 183, 186 (1996). It is thus improper for a cr iminal defendant to receive a separa te conviction and sentence for the felony

that served as the predicate offense to felony murder. See Smith , 183 Ill. 2d at 432 (vacat ing the d efenda nt’s conv iction and sentenc e for ar med robbe

ry , the pre dicate o ffense underly ing the f elony murder c harge ); Washington , 272 Ill. App. 3d at 919 (vacating the defendant’s conviction and sentence for a ggravated arson, be cause “the prosecution here based the felony murde

r charge on ag gravated arson”). In this case, ag gravated arson was the off ense underly

ing the felony

murder charge. Accordingly , defendant’s conviction and sentence for a ggravated arson c annot stand. Smith , 1831-06-1940

45

Ill. 2 d at 432; Washington , 272 Ill. App. 3d at 919. We thus vacate defe ndant’s aggravated a

rson conviction and the sentence imposed thereon. For the foregoing r

easons, we affirm defendant’s conviction and sentence for felony murder and vacate defendant’ s conviction and sentence for agg ravated arson. Affirmed in part and vacated in part.

QUINN, P.J., and THEI S, J., concur.