No. 2--02--0226

_________________________________________________________________

	IN THE

	APPELLATE COURT OF ILLINOIS

	SECOND DISTRICT

_________________________________________________________________

THE PEOPLE OF THE STATE	)	Appeal from the Circuit Court

OF ILLINOIS,	)	of Jo Daviess County.

	)

	Plaintiff-Appellee,	)

	)

v.	)	No. 00--CF--21

	)

JOSHEA A. DeBORD,	)	Honorable

	)	William A. Kelly,

	Defendant-Appellant.	)	Judge, Presiding.

_________________________________________________________________

	JUSTICE BYRNE delivered the opinion of the court:

	A jury found defendant, Joshea A. DeBord, guilty of

involuntary manslaughter (720 ILCS 5/9--3(a) (West 2000)).  The

jury also found that the victim was less than 12 years old.  At the

sentencing hearing, the trial court found that the victim was a

"family or household member" (725 ILCS 5/112A--3(3) (West 2000)). 

Based only on the family-or-household-member finding, the court

ruled that the offense was elevated from a Class 3 felony to a

Class 2 felony, and the court imposed a 10-year prison term.  The

court also imposed a $100 domestic violence fine and ordered that

the fine be drawn from defendant's bond.

	On appeal, defendant argues that his due process rights were

violated because he was not charged with, and the jury did not

find,  the family-or-household-member element.  The State responds

that defendant's conviction and sentence may be affirmed under the harmless error doctrine as set forth in the recent supreme court

case of People v. Thurow, 203 Ill. 2d 352 (2003).

	We agree with the State that Thurow excuses the inadequate jury instructions.  However, we reverse the conviction and sentence

and remand the cause because the charging instrument did not allege

that the victim was a family or household member.  Finally, the

State concedes that the trial court erred in ordering the fine to

be drawn from defendant's bond.

FACTS

	The following evidence was admitted at trial.  During the

night of March 31, 2000, Tyler DeBord, who was two months old, died

from a head injury suffered while in defendant's care.  Tyler was

the child of Christina Michels, defendant's girlfriend.  Defendant

was not the baby's father, but he supported Michels and the child. 

The baby had been videotaped at a family gathering the day before

and appeared to be healthy before the incident.

	Michels and defendant were each 20 years old at the time of

the incident, and they lived with the baby in a trailer that they

rented.  At about 8 p.m. on the night of the incident, Michels went

out with her cousin after arguing with defendant about her plans

for the evening.  Defendant agreed to watch the baby, but at 1:15

a.m., he alerted two neighbors, Patrick and Tracy Enright, that the

baby was not breathing.  The Enrights saw that the baby's head was

bruised and that the baby was cold and had no pulse.  Defendant's

trailer lacked a telephone, and Tracy Enright called 911 and

relayed cardiopulmonary resuscitation (CPR) instructions to

defendant.  Defendant placed the baby on the floor and attempted CPR.  Officer Kevin Stewart arrived and observed that defendant was

performing CPR incorrectly.  Officer Stewart applied a

defibrillator to the child and attempted CPR.

	Paramedics tried to revive the child during the ambulance trip

to the hospital.  One paramedic observed two bruises under the

baby's chin.  A nurse noticed bruises on the baby's forehead, leg,

and inner arms.  The child died at the hospital at 3:37 a.m., and

an autopsy disclosed that brain swelling resulting from an impact

to the side of the baby's head caused his death.  The baby's skull

was fractured and his right leg was broken.

	After the incident, defendant offered conflicting accounts of

the events.  Defendant initially told a police officer and the

treating physician that he had simply discovered the baby  not

breathing and unresponsive in his bassinet.  Upon later police

questioning, defendant stated that he accidentally hit the baby on

the coffee table while reaching for a container of water. 

Defendant ultimately admitted that he slammed the baby on the

floor.

	On April 3, 2000, defendant was charged by information with

first-degree murder (720 ILCS 5/9--1(a)(2) (West 2000)),

involuntary manslaughter of a family or household member (720 ILCS

5/9--3(f) (West 2000)), and aggravated battery of a child (720 ILCS

5/12--4.3(a) (West 2000)).  On April 19, 2000, the same charges

were filed by indictment.

	On December 29, 2000, a superceding indictment was filed,

charging only two counts of first-degree murder (720 ILCS 5/9--

1(a)(1), 9--1(a)(2) (West 2000)).  One of the charges was later dismissed.  The remaining murder charge identified the victim as

"Tyler Allan DeBord" and alleged that he was two months old at the

time of the offense.  The charge omitted the previous allegation

that the victim was a member of defendant's family or household.

	At trial, the court instructed the jury that it could find

defendant (1) not guilty of first-degree murder and not guilty of

involuntary manslaughter; (2) guilty of first-degree murder; or (3)

guilty of involuntary manslaughter.  The court instructed the jury

on the elements of first-degree murder and involuntary

manslaughter.  The court added that the jury should not find

defendant guilty of either offense unless the victim, "Tyler A.

DeBord," was under 12 years old.  The jury was not instructed to

decide whether the victim was a family or household member.  The

jury found defendant guilty of the involuntary manslaughter of

Tyler DeBord, a person under 12 years old.

	At the sentencing hearing, the State argued that the victim

was a member of defendant's family or household, and therefore, 

the offense was elevated from a Class 3 felony to a Class 2 felony. 

The State recommended a 14-year prison term, the maximum

nonextended term for the involuntary manslaughter of a family or

household member.

	The trial court credited the State's argument but imposed only

a 10-year term after concluding that defendant's sparse criminal

history rendered the maximum sentence, 14 years' imprisonment,

excessive.  In imposing the sentence, the court did not rely upon

the jury's finding regarding the youth of the victim, but the court emphasized that the offense involved a "savage attack on a two-

month-old baby."

	The judgment order states that defendant was convicted of the

"special class 2 felony" of involuntary manslaughter under section

9--3(f) of the Criminal Code of 1961 (720 ILCS 5/9--3(f) (West

2000)).  Defendant's posttrial motion was denied, and this timely

appeal followed.

ANALYSIS

	In this case, defendant was charged with first-degree murder,

and he requested a jury instruction on the lesser-included offense

of involuntary manslaughter, a Class 3 felony.  The jury found

defendant guilty of the involuntary manslaughter of Tyler DeBord,

a person under 12 years old.  However, the trial court entered a

Class 2 felony conviction and imposed a 10-year sentence based on

the court's finding that the victim was a family or household

member.

	Defendant argues that he could not be convicted of the

involuntary manslaughter of a family or household member because it

is not a lesser-included offense of first-degree murder.  Defendant

contends that his due process rights were violated because (1) the

charging instrument did not allege the family-or-household-member

element and (2) the jury did not find the element beyond a

reasonable doubt.  Defendant also argues that he was denied a

monetary credit for the time he spent in pretrial custody.

	1.	 Charging Instrument

	Generally, a defendant cannot be convicted of an offense that

was never alleged, but the supreme court has recognized the "charging instrument approach" as a two-tiered exception to the

general rule.  People v. Baldwin, 199 Ill. 2d 1, 6 (2002).  A defendant can be convicted of an uncharged offense if (1) the

uncharged offense is identified by the charging instrument as a

lesser offense of the one charged and (2) the evidence adduced at

trial rationally supports the conviction of the lesser-included

offense.  Baldwin, 199 Ill. 2d at 6.

	Before deciding whether defendant was convicted of a "lesser-

included offense" of first-degree murder, we must identify the

offense of which defendant was actually convicted.  "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 ***."  720 ILCS 5/9--3(a) (West 2000).

	Involuntary manslaughter is ordinarily a Class 3 felony (720

ILCS 5/9--3(d)(1) (West 2000)) punishable by two to five years'

imprisonment (730 ILCS 5/5--8--1(a)(6) (West 2000)).  However,

"[i]n cases involving involuntary manslaughter in which the victim

was a family or household member [(725 ILCS 5/112A--3(3) (West

2000))], the penalty shall be a Class 2 felony, for which a person

if sentenced to a term of imprisonment, shall be sentenced to a

term of not less than 3 years and not more than 14 years."  720

ILCS 5/9--3(f) (West 2000).  " 'Family or household members'

include spouses, former spouses, parents, children, stepchildren and other persons related by blood or by present or prior marriage,

persons who share or formerly shared a common dwelling, persons who have or allegedly have a child in common, persons who share or

allegedly share a blood relationship through a child, persons who

have or have had a dating or engagement relationship, and persons

with disabilities and their personal assistants."  (Emphasis

added.)  725 ILCS 5/112A--3(3) (West 2000).

	The Supreme Court has stated that "[o]ther than the fact of a

prior conviction, any fact that increases the penalty for a crime

beyond the prescribed statutory maximum must be submitted to a

jury[] and proved beyond a reasonable doubt."  Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 455, 120 S. Ct. 2348, 2362-63 (2000).  The Illinois Supreme Court has held that, "because

[the family-or-household-member] enhancement factor 'increase[s]

the prescribed range of penalties to which a criminal defendant is

exposed,' it is an element of the offense and must be submitted to a jury and proved beyond a reasonable doubt."  (Emphasis added.)  Thurow, 203 Ill. 2d at 360, quoting Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at 2363.

	The above-italicized phrase in Thurow suggests that the family-or-household-member element is a fact that must be alleged

in a charging instrument, but the Thurow court reached the opposite conclusion.  The defendant was charged, under sections 9--3(a) and

(f) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/9--

3(a), (f) (West 1998)), with the involuntary manslaughter of a

family or household member, and the defendant argued that the

statute was unconstitutional on its face and therefore void ab initio.  Emphasizing that "Apprendi's central holding *** makes no mention of any indictment right," the court stated in dicta that the absence of a notice requirement in section 9--3(f) of the

Criminal Code does not render it unconstitutional and, therefore,

the family-or-household-member element need not be included in an

instrument charging involuntary manslaughter.  Thurow, 203 Ill. 2d at 367.

	Thurow's conclusion that Apprendi does not confer an indictment right does not dispose of defendant's challenge to the

sufficiency of the charging instrument here.  Thurow is distinguishable from this case where defendant was convicted of an

offense with which he was not charged.  See Baldwin, 199 Ill. 2d at 6 ("a defendant cannot be convicted of an offense that was never

alleged").  Because defendant was convicted of a lesser offense

than the one charged, he is entitled to due process rights that

were not implicated in Thurow.

	We hold that in cases involving the conviction of a lesser-

included offense, (1) the family-or-household-member fact is an

element of the offense of involuntary manslaughter of a family or

household member as defined by section 9--3(f) of the Criminal Code

and (2) the element must be identified in an instrument charging

the greater offense.  Therefore, even if the superceding indictment

charging first-degree murder set out the main outline of simple

involuntary manslaughter, defendant could not be convicted of the

involuntary manslaughter of a family or household member if the

charging instrument did not identify the family-or-household-member

element.

	We next consider whether the charging instrument identified

the lesser offense of involuntary manslaughter of a family or household member.  Section 2--9(a) of the Criminal Code defines an

included offense as 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 required to establish the commission

of the offense charged.' "  Baldwin, 199 Ill. 2d at 6, quoting 720 ILCS 5/2--9(a) (West 1998).  The statutory definition does not,

however, provide the determinative factors for deciding whether a

particular offense is an included offense of another.  Baldwin, 199 Ill. 2d at 6.

	The charging instrument approach for identifying a lesser-

included offense does not generally require that the lesser offense

be a theoretically or practically necessary part of the greater

offense.  Instead, the lesser offense need only relate to the

greater offense to the extent that the charging instrument

describes the lesser.  " 'The "lesser offense must have a broad

foundation in the instrument charging the greater," or at least

"set out the main outline of the lesser offense." ' "  Baldwin, 199 Ill. 2d at 7-8, quoting People v. Novak, 163 Ill. 2d 93, 107 (1994), quoting People v. Bryant, 113 Ill. 2d 497, 505 (1986).  A charging instrument need not expressly allege all of the elements

of the crime if those elements can be inferred from the language of

the charging instrument.  Baldwin, 199 Ill. 2d at 8.

	Defendant was tried on one count of first-degree murder.  720

ILCS 5/9--1(a)(2) (West 2000).  Pursuant to the superceding

indictment, a person commits first-degree murder if he kills an

individual without lawful justification and he knows that his acts

create a strong probability of death or great bodily harm.  720 ILCS 5/9--1(a)(2) (West 2000).  The indictment further alleged that

the victim was two months old and had the same surname as

defendant.

	The basic difference between simple involuntary manslaughter

and first-degree murder is the mental state that accompanies the

conduct resulting in the victim's death.  Simple involuntary

manslaughter requires a less culpable mental state than first-

degree murder.  People v. DiVincenzo, 183 Ill. 2d 239, 249 (1998).  However, a conviction under section 9--3(f) of the Criminal Code

requires the additional proof beyond a reasonable doubt that the

victim was a family or household member.  

	The superceding indictment merely identified the victim as

"Tyler A. DeBord," a person who was two months old at the time of

the offense.  The murder charge did not allege that the victim was

a "family or household member" as section 112A--3 of the Code of

Criminal Procedure of 1963 defines that term.  The absence of such

an express allegation is not dispositive, but we decide that an

inference of the element is unreasonable.  We may not infer from

the shared surname of defendant and the victim that they were

members of the same family or household.  If we were to make such

an inference, the State would be excused from charging the family-

or-household-member element in every instance in which the victim

and defendant shared a surname.  

	We conclude that the offense of involuntary manslaughter of a

family or household member was not a lesser-included offense of

first-degree murder as charged in the superceding indictment.  The

lesser offense lacked a broad foundation in the instrument charging the greater offense and did not set out the main outline of the

lesser offense.  See Baldwin, 199 Ill. 2d at 7-8.

	2.	 Jury Instructions

	The State disregards the distinction we draw between Thurow and this case regarding the deficiency in the charging instrument. 

Instead, the State contends that the trier of fact's failure to

find the family-or-household-member element may be excused as

harmless error under Thurow.

	In Thurow, the defendant was charged with the involuntary manslaughter of a family or household member.  The trial court

instructed the jury on the elements of simple involuntary

manslaughter and the jury found Thurow guilty.  At sentencing, the

judge determined that Thurow was eligible for an enhanced sentence

because the victim was a member of Thurow's household (720 ILCS

5/9--3(f) (West 1998)).  Alternatively, the sentencing judge

determined that Thurow was eligible for an extended-term sentence

because the victim was less than 12 years old (730 ILCS 5/5--5--

3.2(b)(4)(i) (West 1998)).  As a result, the trial court sentenced

Thurow to 8 years in prison, a sentence within both the 3- to

14-year range for an enhanced sentence (720 ILCS 5/9--3(f) (West

1998)) and the 5- to 10-year range for an extended-term sentence

(730 ILCS 5/5--8--2(a)(5) (West 1998)).

	The appellate court vacated the sentence, concluding that it

violated Apprendi, and remanded the cause for a new sentence not to exceed the five-year statutory maximum for the Class 3 felony of

simple involuntary manslaughter.

	Our supreme court held that, "because [the family-or-

household-member] enhancement factor 'increase[s] the prescribed

range of penalties to which a criminal defendant is exposed,' it is

an element of the offense and must be submitted to a jury and

proved beyond a reasonable doubt."  Thurow, 203 Ill. 2d at 360, quoting Apprendi, 530 U.S. at 490, 147 L. Ed. 2d at 455, 120 S. Ct. at2348, 2363 , 2365 (2000).

	The State conceded the Apprendi violation based on the absence of a jury finding on the family-or-household-member element. 

Thurow, 203 Ill. 2d at 361.  However, the supreme court concluded that Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999), permitted a harmless error review of the trial

judge's determination that the victim was a member of the

defendant's family or household.  Thurow, 203 Ill. 2d at 368.

	In Neder, the Supreme Court found that a trial court's failure to submit an issue to the jury was harmless because evidence

supporting the element was uncontested and overwhelming and the

criminal defendant " 'did not, and apparently could not, bring

forth facts contesting the omitted element.' "  Thurow, 203 Ill. 2d at 369, quoting Neder, 527 U.S. at 19, 144 L. Ed. 2d at 53, 119 S. Ct. at 1838.

	The Thurow court noted that both the defendant and the victim's mother testified to facts establishing that the victim was

a member of the defendant's household.  Because "the evidence in

support of the omitted element was uncontested and overwhelming"

(Thurow, 203 Ill. 2d at 369), it was undisputed that the victim was a person who shared a common dwelling with the defendant (Thurwow, 203 Ill. 2d at 369, quoting 725 ILCS 5/112A--3(3) (West 1998)). 

The court characterized the Apprendi violation as harmless because it was "clear beyond a reasonable doubt that a properly instructed,

rational jury would have found defendant guilty of involuntary

manslaughter against a household member."  Thurow, 203 Ill. 2d at 369.  The court, therefore, reversed the appellate court's order

and affirmed the eight-year sentence imposed by the trial court.

	The Thurow court recognized that its harmless error analysis under Neder created a tension with Apprendi by "in a sense adding error upon error by repeating the violation committed by the trial

judge, who made the original, erroneous determination."  Thurow, 203 Ill. 2d at 369-70.

	As in Thurow, defendant did not and could not introduce facts contesting the omitted element of the victim's status as a family

or household member.  Although we agree with the State that the

erroneous jury instructions were harmless, our analysis of the

charging instrument issue controls this case.  In Thurow, only the jury instructions were deficient, and the supreme court

acknowledged that a harmless error review perpetuated the error. 

Here, neither the charging instrument nor the jury instructions

identified the family-or-household-member element of section 9--

3(f).  If we were to excuse the deficient charging instrument as

well as the inadequate jury instructions here, we would exacerbate

the Apprendi violation even further.

	Moreover, the jury found defendant guilty of only a Class 3

felony, but the trial court elevated the offense to a Class 2

felony based on an improper finding of the family-or-household- member element.  Defendant, therefore, is additionally prejudiced

by the collateral consequences of a Class 2 felony conviction,

which are more serious than those attendant to a Class 3 felony

conviction.  See, e.g., 730 ILCS 5/5--5--3(c)(8) (West 2000) ("When a defendant, over the age of 21 years, is convicted of a Class 1 or

Class 2 felony, after having twice been convicted of any Class 2 or

greater Class felonies in Illinois, and such charges are separately

brought and tried and arise out of different series of acts, such

defendant shall be sentenced as a Class X offender").  The

cumulative effect of the errors in this case compels us to reverse

the Class 2 felony conviction of and sentence for involuntary

manslaughter of a family orand household member.  We remand the cause

for the entry of a new judgment.

	On remand, the trial court may enter a judgment of conviction

pursuant to the jury's verdict.  Here, the jury found defendant

guilty of the involuntary manslaughter of a person under 12 years

old.  A finding that the victim was under 12 years old does not

affect the classification of involuntary manslaughter and only

increases the potential penalty to 5 to 10 years' imprisonment. 

730 ILCS 5/5--5--3.2(b)(4)(i), 5--8--2(a)(5) (West 2000).  The

finding regarding the age of the victim did not violate defendant's

Apprendi rights because the jury found that element beyond a reasonable doubt.  See Thurow, 203 Ill. 2d at 365-67 (section 5-- 5--3.2(b)(4)(i) permits the imposition of an extended-term sentence

only if the finder of fact determines the aggravating factor beyond

a reasonable doubt).

	Like in Thurow, the trial court in this case imposed a 10-year sentence that was both within the 3- to 14-year range of section 9-

-3(f) of the Criminal Code and within the 5- to 10-year range of

section 5--8--2(a)(5) of the Unified Code of Corrections.  However,

the trial court stated that a "maximum sentence" was inappropriate

because defendant lacked a significant criminal history.  We

conclude that a new sentencing hearing is necessary because it is

unclear whether the trial court would have imposed the 10-year

sentence if the court had known it was the statutory maximum.

	3.	 Domestic Violence Fine

	In addition to the prison term, the trial court imposed a $100

domestic violence fine and ordered that the fine be drawn from

defendant's bond.  Defendant was entitled to receive a $5-per-day

credit toward his fine for each day he spent in custody before

sentencing.  725 ILCS 5/110--14 (West 2000).  Defendant was

arrested on April 2, 2000, and released on bond on April 7, 2001. 

The trial court credited the 401 days against his sentence but

allowed no monetary credit toward the fine, ordering instead that

the fine be drawn from defendant's bond.  The State concedes that 

defendant's $100 fine was satisfied by the 401-day custodial credit

and that the judgment should be amended to reflect the credit.

	For the preceding reasons, the judgment of the circuit court

of Jo Daviess County is reversed and the cause is remanded with

directions.

	Reversed and remanded with directions.

	McLAREN and O'MALLEY, JJ., concur.