THIRD DI VISI ON June 30, 2008

No. 1-06-1939

THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from

) the Circuit Court Plaintiff-Appellee, ) o f C oo k C ou nt y. ) v. ) No. 04 CR 836 ) HAROL D JENKI NS, ) Honorab le ) Lawrence

P. Fox, Defend ant-App ellant. ) Judge Presi ding.

JUSTICE THEI S deliver

ed the opi nion of the

court: Following a jury

trial, defendant Harold Jenkins was convicted of one count of aggravated possession of stolen fire arms (720 IL CS 5/16-16.1 (West 2004)) and two counts of possession of a stol en fire arm (720 IL CS 5/16-16 (

West 2004) ) and wa s sentenc ed to four ye ars’ imprisonment. On appeal, defendant claims that his convictions should be reversed be cause (1) the indictment was barred by the statute of limitations; (2) the statutes under which he was convicted are ex post facto laws bec ause the y imp ermissibl

y criminalize

conduct a

nd incre ase penalties for offenses that occurred be fore their enactment; (3) the trial court er red in excluding testimony of defense

witnesses; and (4) the trial court erred in instructing the jur y on the elements of the offenses. Alternatively, defendant argues that his trial counsel wa s ineffective for failing to reque st the pro

per jury instructi ons. For

the follow

ing rea sons, we a

ffirm.1-06-1939

2

Defendant is a former lieutenant with the May wood Police Department. As a condition of bond in a

nother criminal c ase, def

endant w as order

ed to surr ender a ll of his we apons to Joseph Thomas of the Illinois Attorney General’s firearms unit. On September 26, 2002, Thomas seized 21 weapons from defendant’s home, including a .357-caliber Marlin rifle and a .45-cal iber Rug er pistol. All of the guns we re inven toried a nd their s erial nu

mbers tra ced to discover their original purchasers, a ccording to standard protocol. The Marlin rifle was originally pur

chased by H orace Reedy

and the Ruger pistol was originally purchased by

Jason Taylor. When he wa s a Maywood police officer, defendant arre sted both men for weapons violations and confiscated these particular weapons a s a result of the arrests. Defend ant was in

dicted by a gran d jury on January

8, 2004, a

nd charg ed with tw o counts of possession of a stolen firearm and one count of aggravated possession of not less than two, but not mor

e than fi ve, stole n firea rms. Def endant f iled a moti on to dismiss

the indic tment, arguin g that th e statute

of limitati ons on thes e possess ion offe nses had e

xpired. Ac cording

to defendant, the limitations periods began to run when defe ndant acquired the stolen firearms. Defendant argued that the State fa iled to allege when the guns wer e acquired, but the circumstantial evidence indicates that they were acquired well bey

ond the limitations period. Furthermore, possession offenses have not bee n designated by

the legislature as continuing offenses, which designation would have extended the limitations period. The cour t denied defendant’s motion. The State’s theory

of the case was that defendant ac quired these weapons from the evidence locker at the May wood Police Department some time after the criminal prosecutions of Reedy and Ta

ylor, when the g

uns were no longer needed a s evidence. Although defendant was1-06-1939

3

not charged with theft, the State allege d that defendant knew that the Marlin rifle and Ruge r pistol found in his home were stolen from the May wood Police Department. Defendant sought to introduce testimony of four witnesses, including two former Maywood police c

hiefs, who would testify g enerally a bout the existence of an unwritten policy at the Maywood Police De partment allowing officers to take confisca ted weapons for their own personal use after the close of the cr iminal case involving those weapons. The State filed a motion in limine to exclude that testimony, arguing that none of these witnesses would testify about when or by w

hom the policy was cr

eated and, thus, the testimony would lac k a proper foundation and would be inadmissible hearsay . Moreover, it was irrelevant because none of the witnesses would testify that they personally g ave or allowed defendant to take either of the guns at issue in this case. The court barred the witnesses’ testimony for the reasons advocated by the State. The case then proceeded to trial. Off icer Anthony Winburn testified that he a nd defendant arrested Reedy on March 22, 1980, for firing the Marlin rifle while on the back porch of his home. Defendant seized the rifle from Reedy and gave it to Officer Winburn, say ing that “it looke d like a g ood gun f or hunting .” Offic er Winbur n inventor

ied the g un and locked it in the evide nce lock er at the May wood polic e station. Office r Winburn d

id not per mit any one to take the rifle af ter that p oint. Taylor then testified tha

t he lawfully purc

hased the Ruger pistol on July 23, 1992. That day, Tay lor went to the Maywood Police D epartment to report the theft of a differe nt gun. While there, he was arrested by defendant for a weapons violation that did not involve the Ruger pistol. An hour after he was placed in a holding ce ll, defendant took Tay lor to an interview room1-06-1939

4

and showe d him ten of

the handg

uns that de fendant

appare ntly confisc ated fr

om Tay lor’s home while he was in cust

ody , includin

g the Rug er pistol he picked up earli er that d

ay . Tay lor said that was the last time he saw the Ruger pistol. When Tay

lor retur ned to the police sta

tion seve ral day s later to retriev e his wea

pons, defenda nt told him th at they

would not b e retur

ned to him b ecause

he no long er had a

valid Firearm Owner’s I dentification (FOID) card. On redirect examination, he stated that he did not report any

of the confiscated weapons as being stolen because “they

[were not] stolen. [Defendant] had them.” Officer Jose Mazieregos also testified that as a lieutenant in the May wood Police Department’s internal investigations division, he investigated alleg ed police misconduct. He assisted with the Attorney Ge neral’s investigation of defendant regarding the weapons seized from his home, spec ifically the Ruge r pistol an

d the Mar lin rifle , althoug

h he was n

ot asked t o elaborate on the nature or results of that investiga tion. He testified that nobody in the May wood Police Department gave defenda nt permission to be in possession of the Ruger pistol or the Marlin ri fle that w ere stor ed in the e

vidence locker a t the May wood Polic e Depar

tment. The defense rested without presenting a ny evidence . After the court denied defendant’s motion for a directed verdict, the parties and the cour t discussed the jury instructions. After the court read each proposed instruction, the parties w ere permitted to comment or object. The court indicate d that two o f the instr uctions r elated to possession of a stol en fire arm wer e not I llinois Pattern Jury I

nstructions (IPI). The State indicated that there were no I PI instructions on that offense. Defense counsel stated, “Judge , it is a non-IPI instruction. It certainly

contains the elements that are involved in the indictment. So, I won’t object.” As to the instruction for1-06-1939

5

aggravated possession of stolen fire arms, defense counsel stated, “This is another non-I PI. I don’t have any

objection. I believe it states the elements.” After closing arguments, the jury was given the following instruction on possession of a stolen fir earm: “To susta

in the cha rge of possession [of a] stole

n firea rm[,] the Sta

te must prove the following

propositions. First, th at the pr

operty that the d

efenda nt possess ed, fire arm, to wi t; a Ruger model P 890, 45 calibre [sic] pistol, serial No. 66033592. And [the] second proposition is that when the defendant did so[,] he was not entitle d to posses s said fir earm. And [the] third proposition is, that the defendant knew said firearm was stolen. If y

ou find fr om your consi deration [of] all evidence t hat any one of the se propositions has not been proved bey ond a reasonable doubt, y ou should find the de fe nd an t n ot gu il ty. If y ou find from your c onsideration of all the evidence that each one of these propositions has been proved bey ond a reasonable doubt, y ou should find the defendant guilty .” The same instruction was given with respect to the Marlin rifle . The jury wa s also instructed that “Possession may be actual or constructive. A person has actual possession when he ha s immediate or exclusive control over a thing.” The court also instructed the jury on the definitions of “constructive possession” and “firearm.”1-06-1939

6

The court then read the following instruction: “To sustain the charge of aggravated possession [of] stolen firearm[s,] the State must prove the

following

propositions. First pr oposition, that the d

efenda nt possess ed two fir

earms, to wit; a Ruger model 980, 45, pistol serial No. 66033519. And a Marlin model 1894, 357 calibre [sic] rifle, serial number 21191688. And [the] second proposition is that when the defendant did so[,] he was not entitle d to posses s said fir earm. And, [the] th

ird propo sition, tha

t the def endant knew *** sa

id firea rms were stolen. *** If y ou find from your c onsideration of all the evidence that any one of these pr opositions

has not be en prove d bey

ond a rea sonable d

oubt, y ou should fi nd th e d ef

en da nt no t g ui lt y. If y ou find from your c onsideration of all the evidence that each one of these propositions has been proved bey ond a reasonable doubt, y ou should find the defendant guilty .” The jury convicted defendant on all three counts. Defenda nt filed a motion for a new trial, which was denied. This timely a ppeal followed. Defendant first argues that the c ircuit court erred when it failed to dismiss the indictment as barred by

the statute of limitations. He contends that the court erroneously determined that sections 16-16 and 16-16.1 of the Illinois Criminal Code of 1961 (Code) (he reafter, the possession statutes) were “continuing offenses” that extended the three-y ear limitations period1-06-1939

7

set forth in section

3-5(b) o f the Code

(720 I LCS 5/3 -5(b) (

West 2004) ). He ar

gues tha t the State failed to meet its burden of proving that the legislature intended for the possession statutes to be construed as continuing offenses. Be cause the court’s interpretation of a statute wa s the basis for denying dismissal, we apply a de novo standard of review. People v. Jones , 223 Ill. 2d 569, 580, 861 N.E.2d 967, 974 (2006). Section 3-5(b) of the Code provides that “a prosecution for a ny offense

*** must be

commenc ed within 3 ye ars afte r the com mission of t

he offe nse if it is a felony ***.” 720

IL CS 5/3-5(b) (West 2004). To determine whether the indictment was broug ht within the limitations period, we first must determine when the crimes of possession of a stolen fire arm and aggrava ted possession of stolen firearms were “committed.” Initially , we note that this is a case of first impression. Neither of the possession statutes have been construed by

any I llinois court. Thus, we begin our analysis by examining the language of the possession statutes, which is “the sur est and most reliable indicator of the legislature’s intent.” People v. Hudson , 228 Ill. 2d 181, 191, 886 N.E.2d 964, 971 (2008). Section 16-16(a) of the Code provides that “[a] person commits possession of a stolen firearm when he or she, not being e ntitled to the possession of a firearm, possesses or delivers the firearm, knowing it to have been stolen or conve rted.” 720 IL CS 5/16-16(a) (West 2004). Section 16-16.1(a)(1) of the Code provides that “[a] person commits agg ravated possession of a stolen firearm when he or she *** not being e ntitled to the possession of not less than 2 and not more than 5 firearms, possesses or delivers those firea rms at the same time or within a one y ear period, knowing the firearms to have bee n stolen or converted.” 720 ILCS 5/16-16.1(a)(1)1-06-1939

8

(West 2004 ). Bec ause this excerpte d language of

the posse ssion statu

tes is virt ually identica l, our discu ssion below applies to both sta

tutes. Defendant argues that the possession cr imes are “committed” at the time of the original theft of the stolen firearms. He contends that his position is bolstered by the fact that the possession statutes are contained within article 16 of the Code, which g overns theft. Specifically, the possession statutes should be c onstrued in pari mate ria with section 16-1 of the Code governing the offense of theft, which is considered to have been committed at the time of the actual taking and is not considered a “c ontinuing offense.” See People v. Kimbro , 182 I ll. App. 3d 57 2, 538 N.E .2d 826 (1 989); People v. Steinmann , 57 Ill. App. 3d 887, 373 N.E.2d 757 (1989). Additionall

y, he cites to

the leg islative h

istory of the pos session sta

tutes to sup

port his argument. Prior to the enactment of the possession statutes in 2000, section 16-1(a)(4) of the Code would have governed the offense of possession of stolen firearms. Section 16-1(a)(4) provides that “[a] pe

rson comm

its theft w hen he knowingly

[o]btains control ove

r stolen property knowing the prope rty to have be en stolen

or under such cir cumstanc es as wou

ld reasonably induce him to believe the property was stolen.” 720 IL CS 5/16-1(a)(4) (West 2004). The Code defines the phrase “obtains or exerts control” over prope rty as including

“the taking, carry

ing away, or the sale, convey

ance, or transfer of title to, or interest in, or possession of prope rty.” 720 IL CS 5/15-8 (West 2004). However, the legislature amende d article 16 of the Code in 2000 to create the two new possession statutes , which c ontain la nguag e diffe

rent from and more

specific than those contained in section 16-1(a)(4). When the legislature uses certain language

in one part of a1-06-1939

9

statue and different languag e in another, we may assume different meanings were intended. Hudson , 228 I ll. 2d at 19 3, 886 N.E .2d at 972 . Here, the leg islature isolated t he speci fic offe

nse of “possession” from the broader prohibition aga inst “the taking, carry

ing away , or the sale, conveya nce, or transfer of title to, or interest in, or possession of” any type of stolen proper

ty. The legislature also isolated the possession of a specific ty pe of stolen goods. Rather than prohibitin g the po ssession o f any

typ e of stole

n goods, sections

16-16 and 16-16.1 prohibit o nly the po ssess ion o f stol en fir earms . Thus , we mu st det ermin e the l egisla ture’ s int ent in creati ng a specific prohibition again st the poss ession of one or mor

e stolen f irearms

. In the absence of a def inition supp lied by

the statut e itself, the word s of the sta tute must be given their plain and ordinary meaning. People v. Pierce , 226 Ill. 2d 470, 476, 877 N.E.2d 408, 410 (2007). However, we must also construe statutes consistently and in their proper

context. People v. Trainor , 196 Ill. 2d 318, 332, 752 N.E.2d 1055, 1063 (2001). Where a wor d is used in different sections of the same statute, that word is presumed to have the same meaning throughout the statute, unless a contrary legislative intent has been clearly expressed. People v. Magg ette , 195 Ill. 2d 336, 349, 747 N.E.2d 339, 347 (2001). Thus, we must look to the definition of a term as it is used elsewhere in the same section. A defendant violates sections 16-16 and 16-16.1 when he “ possesses” firearms he knows to have been stolen. The Code does not specifically define the term “possession.” However, accord ing to B lack’s L

aw Dictionary , “to posse ss” mean s “to have in one’s a

ctual control; to have pos session of

.” Blac k’s L aw Dictionary

1183 (7th e d. 1999). Similarly , “posses sion” is defined as “the continuing exercise of a c laim to the exclusive use of a material object.” Black’s1-06-1939

10

Law Dictionary

1183 (7th ed. 1999). The plain and ordinary meaning of possession connotes the continuing, uninterrupted act of retaining a n object in one’s control or custody

. Moreover, this court previously has held that under section 16-1, “unauthorized possession need not begin on the day of the original theft but may be shown by possession at the time of the arrest.” People v. Helm , 10 Ill. App. 3d 643, 646, 295 N.E.2d 78, 80 (1973) (explaining that a defendant could be found guilty of theft for merely

being in possession of a car that was reported stolen while he was incarce rated). Accord People v. Quick , 15 Ill. App. 3d 300, 302, 304 N.E.2d 143, 145 (1973). Accordingly, the legislature could only have intended for the posse ssion statu

tes to pro hibit the c ontinuing , uninter rupted a ct of retaining

stolen fir earms in one’s control or c

ustody , rega

rdless of when the y w ere ac quired. M oreover , a posses sion crime is “committed” at the time of the offender’s arre st, not at the time of the original theft. See Helm , 10 App. 3d at 646, 295 N.E.2d at 80. In this case, because

the possession crimes were “committed” when defe ndant was arrested on September 26, 2002, the statute of limitations period began to run on tha t date. There is no dispute that the indictment was filed on January 8, 2004, within 3 years of defenda nt’s arr est. Ther efore, the indic tment was timely and the c ircuit co

urt did not

err in denying defendant’s motion to dismiss. We reject defend

ant’s ar gument t hat the po ssession c

rimes we re “com mitted” a t the time he acquired the stolen weapons. Defenda nt relies on Kimbro , 182 Ill. App. 3d at 573, 538 N.E.2d at 827, in support of his position, but that case is distinguishable from the facts before us. In Kimbro , the defendant stole a tractor in 1975 and was ar rested for that crime thirteen y ears later. However, unlike the present case , the defendant was charge d with theft under section 16-1-06-1939

11

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

of the owner.” Kimbro , 182 Ill. App. 3d at 573, 538 N.E.2d at 827 (citing Ill. Rev. Stat. Ann. 1987, ch. 38, par. 16-1(a) (1), the wording of which is identical to the curre nt version of the statute, 720 IL CS 5/16-1(a)(1) (West 2004)). Ultimately , the charges aga inst the defendant were dismissed because the c ourt determined that the original theft occurre d in 1975; thus, the statute of limitations had run and theft was not considered a “continuing off ense” that extended the limitations period. Kimbro , 182 Ill. App. 3d at 573, 538 N.E.2d at 827. Possession of the stolen tractor was not at issue in Kimbro . If i t were, t he char ge cou ld have been sustained because possession may be established at the time of the arrest and need not have been traced back to the day of the original theft. See Quick , 15 Ill. App. 3d at 302, 304 N.E.2d at 145. Thus, defendant’s reliance on Kimbro here is misplaced. Additionally, both Kimbro and defendant cite to People v. Steinmann , 57 Ill. App. 3d 887, 373 N.E.2d 757 (1989), as authority for the proposition that theft occurs at the time of the taking and is not a continuing offense. Howe ver, the defendant in Steinmann also was charged with theft under section 16-1(a)(2) of the Code for “knowingly

exert[ing] unauthorized control over” a gun and “depriv[ing] the owner permanently of

the use and benefit of said [gun]” by selling it to a third party without the owne r’s authority, and he

was convicted. Steinmann , 57 I ll. App. 3d at 891, 373 N.E.2d at 760. Aside from the fact that the events in Steinmann were “ aty pical,” and bea r little resemblance to the present case, the pur ported authority re lied upon is dicta. Steinmann , 57 I ll. App. 3d at 892, 373 N.E.2d at 760. The court overturned the defe ndant’s conviction because the1-06-1939

12

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

the supreme court. Steinmann , 57 Ill. App. 3d at 893, 373 N.E.2d at 761. Notwithstanding that fact, the court determined that based upon the unique facts of the case and the definition of theft advanced in Helm , the theft could only have occurred once and was not a “continuing offense.” Steinmann , 57 Ill. App. 3d at 894, 373 N.E.2d at 762. However , the court did not invoke the Helm court’s discussion of the nature of possession because the mere possession of the stolen gun was not at issue. Steinmann , 57 Ill. App. 3d at 894, 373 N.E.2d at 761. Thus, because Steinmann also fail ed to addr ess posse ssion, it is a

lso inappl icable here. Defendant committed the possession offenses at the time of his arrest a nd the indictment was filed within the three-y ear limitations period for those offenses. Therefor e, we need not determine whether the possession statutes should be considered “continuing offenses” that extend the limitations period. Defend ant next ar

gues tha t the appl ication o f section 16-16.1 o f the Code

in this cas e violated the prohi bition ag ainst ex post facto laws because it criminalized conduct that was not illegal before January

1, 2000, the effective date of the statute. Moreove r, he contends that section 16-16 impermissibly increa sed the penalty f or the offense that was formerly considered possession of stolen property, a lso an ex post fa cto violation. In response, the State asserts that defendant forfeited the issue. Defenda nt concedes that the issue was not raised in the court below, but that this court should nevertheless review the issue for plain error

. To prese rve an is sue for r

eview, the defen

dant must not only

object a t trial but also rais e the issue before the circuit court in a posttrial motion. People v. Herron , 215 Ill. 2d 167, 175,1-06-1939

13

830 N. E.2d 4 67, 47 2 (200 5), ci ting People v. Enoch , 122 176, 186, 522 1124, 1130 (1988). Failure to do so results in forfeiture of review. Herron , 215 Ill. 2d at 175, 830 N.E.2d at 472 . However, we may

review unpreserved errors f or plain error when (1) the evidence presented in a criminal case is closely balanced; or (2) the error is so fundamenta l and of such magnitude that the accused is denied the rig ht to a fair trial and the integrity of the judicial process is undermined. Hudson , 228 Ill. 2d at 191, 886 N.E.2d at 971. I n addressing an issue under plain error review, we must first deter mine whether an error occurr ed at all. Hudson , 228 Ill. 2 d at 191, 8 86 N.E.2d at 971. To

determine whethe

r an alle ged er

ror is “p lain,” we

must examine it substantively. Hudson , 228 I ll. 2d at 19 1, 886 N.E .2d at 971 . Thus, we must first consider whether the circ uit court e

rred in a pply ing the p ossession

statutes i n this cas e in violation o f the prohibition against ex post fa cto laws. A law is considered ex post facto where it is retroa ctive, in that it app lies to eve

nts occurring prior to its enactment, and it is disadvantag eous to a defendant. People v. Malchow , 193 I ll. 2d 413, 4 18, 739 N. E.2d 433, 4 38 (2000) ; Toia v. Pe ople , 333 Ill. App. 3d 523, 528, 776 N.E.2d 59 9, 604 (20 02). A la w is disadv antage ous to a de fendant if: (1) it p

unishes a s a crime an act pr eviously committed

and innoc ent when

done; (2) it makes the punishme

nt for a c rime more burdensome after its commission; or (3) it deprives one charg ed with a crime of any defense available at the time when the act was committed. Malchow , 193 Ill. 2d at 418, 739 N.E.2d a t 438; Toia , 333 Ill. App. 3d at 528, 776 N.E.2d at 604. Here, the possess ion statute s are not retroa ctive, a nd thus, ar

e not ex post facto laws. As we have already

explained, the crimes of possession of stolen firearms and agg ravated possession of stolen firearms are committed at the time of the arre st because the defendant1-06-1939

14

possessed the contraband at the time of the arrest. See Helm , 10 App. 3d at 646, 295 N.E.2d at 80. In this case, defenda

nt was arrested on September 26, 2002, nearly three ye ars after

enactme nt of the p ossession

statutes. The posse ssion statu tes were not applie d retroa

ctively to events th at occur

red prior to the e

nactmen t of those statutes. Accord

ingly , the cir

cuit cour t did not err in applying

the possession statutes in this case. Where there was no error, there can be no plain error. Hudson , 228 Ill. 2d at 199, 886 N.E.2d at 975. Defendant next argues that the circuit court a bused its discretion in granting the State’s motion in limine to preclude four defense witnesses from testify ing at trial and thereby

denied him the right to present his defense. The court deter mined that the proffered testimony lacked a proper foundation, was inadmissible hearsay, and was not relevant to the issues in this case. The circuit court has the inherent authority to admit or exclude evidence, including evidence presented in a motion in limine

. People v. Bennet t , 376 Ill. App. 3d 554, 571, 876 N.E.2d 256, 271 (2007). Generally , a court of review will not disturb the circuit court’s ruling

on ev id en ti ar y is su es ab se nt an ab us e o f d is cr et io n, wh ic h o cc ur s w he n t he ru li ng is ar bi tr ar y, fanciful or unreasonable, or when no re asonable person would take the same view. Bennet t , 376 Ill. App. 3d at 571, 876 N.E.2d at 271. According to defendant’s brief , the four witnesses, all of whom were current or former Maywood police of

ficers, would have testified that the May wood Police Department had an unwritten policy “allowing guns returned by

the court in gun cases to be given to off icers for their own use.” Defendant then cites to the State’s motion in limine

. The motion in limine indicates that the State received “reports consisting of interviews with [the four defense witnesses] conducted by a defense investigator” and a ttached copies of1-06-1939

15

those transcripts to the motion. Specifically, “ Exhibit A [of the State’s motion in limine ] consists of the interview with Solomon Smith; Exhibit B consists of the interview with Leon Melton; Exhibit C consists of the interview with James Stenson; [and] Ex hibit D consists of the interview with Thomas Duffy .” However, those transcripts are not included in the r ecord on appeal, nor did defendant provide us with his written response to the motion in limine

. Defendant also cites to an alleged of fer of proof made by

defense counsel at the hearing on the motion in limine

. As the appellant in this case, defendant bears the burde n of providing this court with a sufficiently complete r

ecord of the proceedings be low to support his claim of error. Foutch v. O’Bry ant , 99 Ill. 2d 389, 391-92, 459 N.E.2d 958, 959 (1984). Absent a c omplete record on appeal, it will be presumed that the circuit court’s order wa s in conformity with the law and ha d a sufficient factual basis. Foutch , 99 Ill. 2d at 392, 459 N.E.2d at 959. Any doubts that may arise from the incompleteness of the record will be r esolved against the appellant. Foutch , 99 I ll. 2d at 392, 459 N.E.2d at 959. Neither the hear ing tra nscript nor the Sta

te’s motion, without e

xhibits, are

sufficie nt to allow us to review defendant’s claim that the court abused its discre tion by barring

the witnesses’ testimony. The alleg ed offer of proof made by defense counsel at the hearing was nothing more than a restatement of the g eneral claim that the May wood Police Department had an unwri tten polic y of giving guns to p olice of

ficers f or their p ersonal

use. Nev erthele ss, it is clear that the court considered additional information in arr iving at its decision. The assistant State’s attorney made

repeated referenc es at the hearing to the contents of the “intervie w reports,” which appear to be the same inter view transcripts that should have been included in the1-06-1939

16

record on appeal as exhibits to the State’s motion in limine . Additionally, the court rema rked that unlike the present case, the witnesses’ testimony was “premised on a court case being disposed o f.” Howe

ver, def endant pr ovides us w

ith no evid

ence or explanation of the c ourt cas e that apparently was integral to the court’s evaluation of the testimony . Without a record sufficie nt to suppor

t defend ant’s cla im of err or, we mu st presume

that ther e was an adequa te factual basis for the court’s decision and that it was made in c onformity with the law. Finally, defe

ndant argues that the circuit court err ed in not instructing the jury on the definitions of “stolen property ” and “theft” in accordance with the IPI

instructions for possession of a stolen motor vehicle (625 IL CS 5/4-103(a)(1) (West 2004)). Illinois Pattern Jury Instructions, Criminal, Nos. 23.35, 23.36 (4th ed. 2000). Specifically , he argues that “the mens

rea in the [posse ssion of a stolen motor vehicl e] statute is identic al to that o f the off enses wit h which [def

endant] wa s charg ed.” The refore , becau se the ap

plicable instructi ons for th e “most directly analog ous” off

ense we re alre ady well-es tablished , the cour t should ha

ve give n those instructions here. Defendant concedes that this instructional issue was not preserve d for appeal because he did not raise this issue in the court below, but again urges us to apply the plain error doctrine. The plain error doctrine applies to the review of unpreserved instructional errors. Hudson , 228 Ill. 2d at 191, 886 N.E.2d at 970; 210 I ll. 2d R. 451. Again, however, we must first determine whether error o ccurre d at all wh ere the circuit c ourt instr

ucted the jury pursuant to the non- IPI instructions agreed upon by the parties rather than the I PI instructions for possession of a stolen motor vehicle. See Hudson , 228 Ill. 2d at 191, 886 N.E.2d at 970-71.1-06-1939

17

Supreme C ourt Rule 4 51(a) pr ovides tha

t in criminal case s, the cir cuit cour t “shall” use the applicable IPI

jury instruction. People v. Hudson , 222 Ill. 2d 392, 399, 856 N.E.2d 1078, 1082 (2006); 210 Ill. 2d R. 451(a). Howeve r, if there is no IPI

instruction governing a particular criminal charg e, the co

urt has th e discre

tion to gi ve a non- IPI

instructi on to the ju

ry that is “simple, brief, impartial and free from arg ument.” Hudson , 222 Ill. 2d at 399, 856 N.E.2d at 1082; 210 Ill. 2d R. 451(a). In this case, it is undisputed that there is no applicable I PI instruction governing

either simple or aggravated possession of stolen fire arms. Accordingly , at the jury instruction conference, the State tendered a non-IPI instruction for possession of a stolen firearm, which defense counsel recognized “c ertainly contains the e lements that are involved in the indictment.” Defense counsel also recog nized that the State offered a non-I PI instruction for agg

ravated possession of stolen firearms and stated, “I don’t have any

objection. I believe it states the el em en ts .” Th e c ou rt th en pr ov id ed th os e i ns tr uc ti on s t o t he ju ry. The circ uit court d

id not err in doing s o. The non -IPI instructi ons give

n in this ca se accurately

set forth all of the elements of the crimes of possession of a stolen firea rm and aggravated possession of stolen fire arms. The instructions were simple, brief, impartial and free from argument. The circuit court had no duty to sua sponte give the jury IPI instructions that are analogous to a different offense , especially whe re defense counsel presented no such instructions to the court. See People v. Curry , 296 Ill. App. 3d 559, 567, 694 N.E.2d 630, 637 (1998), citing People v. Lay

hew , 139 Ill. 2d 476, 485-86, 564 N.E.2d 1232, 1236 (1990). There fore, the court did not abuse its discretion where it provided adequate non-I PI instructions to the jury rather1-06-1939

18

than providing IPI

instructions for an arguably analogous offense. As there wa s no error here, we need not address the issue further. Alternatively, def

endant argues that his trial counsel was ineff ective for failing to offer IPI Instructions 23.35 and 23.36 relating to possession of a stolen motor vehicle. To prevail on a claim of i neffec tive assis tance of

counsel, defenda

nt must sati sfy

the two re quireme

nts set for th in Strickland v. Washington , 466 U.S. 668, 687, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). See also People v. Albanes e , 104 Ill. 2d 504, 473 N.E.2d 1246 (1984). Under Strickland , defend

ant must show (1) tha

t counsel made an e

rror so s erious th at his con duct fel l below an objective standard of reasonablene ss; and (2) there is a reasonable probability that but for counsel’s error, the result of the trial would have been different. Strickland , 466 U.S. at 687- 88, 80 L . Ed. 2d at

693-94, 1 04 S. Ct. at 2 064-65; People v. Gill , 264 Ill. App. 3d 451, 460, 637 N.E.2d 1030, 1037 (1992). Defense counsel’s failure to submit a proposed jury instruction does not create a presumption of ineffective assistance of counsel. Gill , 264 Ill. App. 3d at 460, 637 N.E.2d at 1037. Rather, defendant bears the burden of show ing that the proposed instructions would have been given to the jury

and that the outcome at trial would have been differe nt as a result. Gill , 264 Ill. App. 3d at 460, 637 N.E.2d at 1037. We must evaluate the re asonableness of counsel’s conduct from counsel’s perspective in light of the totality of the circumstances. Gill , 264 I ll. App. 3d at 460, 637 N.E.2d at 1037. Here, the non-I

PI inst ructions given to the jury were ne arly

identica l in form to Instruction 23.36. Thus, in effect, def endant contends that trial counsel was ineffective for failing to make the novel legal arg ument that the court should also provide the “Definition of1-06-1939

19

Possession of Stolen or Converted Vehicle,” pursuant to Instruc tion 23.35, as well as the definitions of “stolen property ” and “theft,” pursuant to its Committee Notes. Counsel’s failure to make that argument did not prejudice de fendant because that argument likely

would have failed. Unlike the possession offenses at issue in this case, possession of a stol en motor v ehicle r equires proof tha t the def endant in tended to permane ntly deprive the owner of possession of the car. People v. Henry , 203 Ill. App. 3d 278, 280, 560 N.E.2d 1205, 1206 (1990). It is that additional element that g ave rise to the IPI Committee’s instructi on to provi de the jur y with defini

tions for “ stolen pr

operty ” and “theft.” Se e Ill inois Pattern Jury I

nstructions, Criminal, No. 23.35 and Committee Notes (4th ed. 2000). The instant possession offenses do not require such proof of actua l theft or intent to permanently de prive the owner of possession of the firearms. Giving a jury inapplicable instructions would have caused confusion; thus, it is unlikely that the court would have given Instruction 23.35. See People v. Mohr , 228 Ill. 2d 53, 67-68, 885 N.E.2d 1019, 1027 (2008). There fore, we reject defenda nt’s contention that trial counsel was ineffective for fa iling to submit these jury instructions in the court below. For all o f the for

egoing reasons , we aff

irm the jud

gment of the circ uit court. QUINN, P.J., and GREI

MAN, J., concur.REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT

_________________________________________________________________ THE PEOP LE OF THE STAT E OF ILLINO IS, Plaintiff-Appellee,

v. HAROLD JEN KINS, Defendant-Appellant.

________________________________________________________________ No. 1-06-1939 Appellate

Court of Ill

inois First District, Third Division Filed: June 30, 2007

_________________________________________________________________

JUSTICE THEIS delivered the opinion of the court. Quinn, P.J., and Greiman, J., concur.

_________________________________________________________________

Appeal from the Circuit Court of Cook County Honorable L awrence P . Fox, Ju dge Pre siding

_______________________________________________________________ __ For PLAI NTIFF- Richard A. Devine, State’s Attorney APPEL LEE, James E. Fitzgerald, Assistant State’s At torney Noah Montague, Assistant State’s Attorney Angela Zak Ordway, Assistant State’s Attorney Richard J. Daley Center, Room 309 Chicago, IL 60602 For DEF ENDANT- Patricia Unsinn, State Appellate Defender APPEL LANT, Heidi Linn Lambros, Assistant Appellate Defender 203 North LaSalle Street 24th Floor Chicago, IL 60601