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A jury found defendant, Joshea A. DeBord, guilty ofinvoluntary manslaughter (720 ILCS 5/9--3(a) (West 2000)). Thejury also found that the victim was less than 12 years old. At thesentencing 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 courtruled that the offense was elevated from a Class 3 felony to aClass 2 felony, and the court imposed a 10-year prison term. Thecourt also imposed a $100 domestic violence fine and ordered thatthe fine be drawn from defendant's bond.

On appeal, defendant argues that his due process rights wereviolated because he was not charged with, and the jury did notfind, the family-or-household-member element. The State respondsthat defendant's conviction and sentence may be affirmed under theharmless error doctrine as set forth in the recent supreme courtcase of People v. Thurow, 203 Ill. 2d 352 (2003).

We agree with the State that Thurow excuses the inadequatejury instructions. However, we reverse the conviction and sentenceand remand the cause because the charging instrument did not allegethat the victim was a family or household member. Finally, theState concedes that the trial court erred in ordering the fine tobe drawn from defendant's bond.

FACTS

The following evidence was admitted at trial. During thenight of March 31, 2000, Tyler DeBord, who was two months old, diedfrom a head injury suffered while in defendant's care. Tyler wasthe child of Christina Michels, defendant's girlfriend. Defendantwas not the baby's father, but he supported Michels and the child. The baby had been videotaped at a family gathering the day beforeand appeared to be healthy before the incident.

Michels and defendant were each 20 years old at the time ofthe incident, and they lived with the baby in a trailer that theyrented. At about 8 p.m. on the night of the incident, Michels wentout with her cousin after arguing with defendant about her plansfor the evening. Defendant agreed to watch the baby, but at 1:15a.m., he alerted two neighbors, Patrick and Tracy Enright, that thebaby was not breathing. The Enrights saw that the baby's head wasbruised and that the baby was cold and had no pulse. Defendant'strailer lacked a telephone, and Tracy Enright called 911 andrelayed cardiopulmonary resuscitation (CPR) instructions todefendant. Defendant placed the baby on the floor and attemptedCPR. Officer Kevin Stewart arrived and observed that defendant wasperforming CPR incorrectly. Officer Stewart applied adefibrillator to the child and attempted CPR.

Paramedics tried to revive the child during the ambulance tripto the hospital. One paramedic observed two bruises under thebaby'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., andan autopsy disclosed that brain swelling resulting from an impactto the side of the baby's head caused his death. The baby's skullwas fractured and his right leg was broken.

After the incident, defendant offered conflicting accounts ofthe events. Defendant initially told a police officer and thetreating physician that he had simply discovered the baby notbreathing and unresponsive in his bassinet. Upon later policequestioning, defendant stated that he accidentally hit the baby onthe coffee table while reaching for a container of water. Defendant ultimately admitted that he slammed the baby on thefloor.

On April 3, 2000, defendant was charged by information withfirst-degree murder (720 ILCS 5/9--1(a)(2) (West 2000)),involuntary manslaughter of a family or household member (720 ILCS5/9--3(f) (West 2000)), and aggravated battery of a child (720 ILCS5/12--4.3(a) (West 2000)). On April 19, 2000, the same chargeswere 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 laterdismissed. The remaining murder charge identified the victim as"Tyler Allan DeBord" and alleged that he was two months old at thetime of the offense. The charge omitted the previous allegationthat the victim was a member of defendant's family or household.

At trial, the court instructed the jury that it could finddefendant (1) not guilty of first-degree murder and not guilty ofinvoluntary manslaughter; (2) guilty of first-degree murder; or (3)guilty of involuntary manslaughter. The court instructed the juryon the elements of first-degree murder and involuntarymanslaughter. The court added that the jury should not finddefendant guilty of either offense unless the victim, "Tyler A.DeBord," was under 12 years old. The jury was not instructed todecide whether the victim was a family or household member. Thejury found defendant guilty of the involuntary manslaughter ofTyler DeBord, a person under 12 years old.

At the sentencing hearing, the State argued that the victimwas 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 maximumnonextended term for the involuntary manslaughter of a family orhousehold member.

The trial court credited the State's argument but imposed onlya 10-year term after concluding that defendant's sparse criminalhistory rendered the maximum sentence, 14 years' imprisonment,excessive. In imposing the sentence, the court did not rely uponthe jury's finding regarding the youth of the victim, but the courtemphasized 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 section9--3(f) of the Criminal Code of 1961 (720 ILCS 5/9--3(f) (West2000)). Defendant's posttrial motion was denied, and this timelyappeal followed.

ANALYSIS

In this case, defendant was charged with first-degree murder,and he requested a jury instruction on the lesser-included offenseof involuntary manslaughter, a Class 3 felony. The jury founddefendant guilty of the involuntary manslaughter of Tyler DeBord,a person under 12 years old. However, the trial court entered aClass 2 felony conviction and imposed a 10-year sentence based onthe court's finding that the victim was a family or householdmember.

Defendant argues that he could not be convicted of theinvoluntary manslaughter of a family or household member because itis not a lesser-included offense of first-degree murder. Defendantcontends that his due process rights were violated because (1) thecharging instrument did not allege the family-or-household-memberelement and (2) the jury did not find the element beyond areasonable doubt. Defendant also argues that he was denied amonetary credit for the time he spent in pretrial custody.

1.  Charging Instrument

Generally, a defendant cannot be convicted of an offense thatwas never alleged, but the supreme court has recognized the"charging instrument approach" as a two-tiered exception to thegeneral rule. People v. Baldwin, 199 Ill. 2d 1, 6 (2002). Adefendant can be convicted of an uncharged offense if (1) theuncharged offense is identified by the charging instrument as alesser offense of the one charged and (2) the evidence adduced attrial rationally supports the conviction of the lesser-includedoffense. Baldwin, 199 Ill. 2d at 6.

Before deciding whether defendant was convicted of a "lesser-included offense" of first-degree murder, we must identify theoffense of which defendant was actually convicted. "A person whounintentionally kills an individual without lawful justificationcommits involuntary manslaughter if his acts whether lawful orunlawful which cause the death are such as are likely to causedeath or great bodily harm to some individual, and he performs themrecklessly ***." 720 ILCS 5/9--3(a) (West 2000).

Involuntary manslaughter is ordinarily a Class 3 felony (720ILCS 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 victimwas a family or household member [(725 ILCS 5/112A--3(3) (West2000))], the penalty shall be a Class 2 felony, for which a personif sentenced to a term of imprisonment, shall be sentenced to aterm of not less than 3 years and not more than 14 years." 720ILCS 5/9--3(f) (West 2000). " 'Family or household members'include spouses, former spouses, parents, children, stepchildrenand other persons related by blood or by present or prior marriage,persons who share or formerly shared a common dwelling, persons whohave or allegedly have a child in common, persons who share orallegedly share a blood relationship through a child, persons whohave or have had a dating or engagement relationship, and personswith disabilities and their personal assistants." (Emphasisadded.) 725 ILCS 5/112A--3(3) (West 2000).

The Supreme Court has stated that "[o]ther than the fact of aprior conviction, any fact that increases the penalty for a crimebeyond the prescribed statutory maximum must be submitted to ajury[] and proved beyond a reasonable doubt." Apprendi v. NewJersey, 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 isexposed,' it is an element of the offense and must be submitted toa jury and proved beyond a reasonable doubt." (Emphasis added.) Thurow, 203 Ill. 2d at 360, quoting Apprendi, 530 U.S. at 490, 147L. Ed. 2d at 455, 120 S. Ct. at 2363.

The above-italicized phrase in Thurow suggests that thefamily-or-household-member element is a fact that must be allegedin a charging instrument, but the Thurow court reached the oppositeconclusion. 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 afamily or household member, and the defendant argued that thestatute was unconstitutional on its face and therefore void abinitio. Emphasizing that "Apprendi's central holding *** makes nomention of any indictment right," the court stated in dicta thatthe absence of a notice requirement in section 9--3(f) of theCriminal Code does not render it unconstitutional and, therefore,the family-or-household-member element need not be included in aninstrument charging involuntary manslaughter. Thurow, 203 Ill. 2dat 367.

Thurow's conclusion that Apprendi does not confer anindictment right does not dispose of defendant's challenge to thesufficiency of the charging instrument here. Thurow isdistinguishable from this case where defendant was convicted of anoffense with which he was not charged. See Baldwin, 199 Ill. 2d at6 ("a defendant cannot be convicted of an offense that was neveralleged"). Because defendant was convicted of a lesser offensethan the one charged, he is entitled to due process rights thatwere 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 anelement of the offense of involuntary manslaughter of a family orhousehold member as defined by section 9--3(f) of the Criminal Codeand (2) the element must be identified in an instrument chargingthe greater offense. Therefore, even if the superceding indictmentcharging first-degree murder set out the main outline of simpleinvoluntary manslaughter, defendant could not be convicted of theinvoluntary manslaughter of a family or household member if thecharging instrument did not identify the family-or-household-memberelement.

We next consider whether the charging instrument identifiedthe lesser offense of involuntary manslaughter of a family orhousehold member. Section 2--9(a) of the Criminal Code defines anincluded offense as one that " '[i]s established by proof of thesame or less than all of the facts or a less culpable mental state(or both), than that which is required to establish the commissionof the offense charged.' " Baldwin, 199 Ill. 2d at 6, quoting 720ILCS 5/2--9(a) (West 1998). The statutory definition does not,however, provide the determinative factors for deciding whether aparticular offense is an included offense of another. Baldwin, 199Ill. 2d at 6.

The charging instrument approach for identifying a lesser-included offense does not generally require that the lesser offensebe a theoretically or practically necessary part of the greateroffense. Instead, the lesser offense need only relate to thegreater offense to the extent that the charging instrumentdescribes the lesser. " 'The "lesser offense must have a broadfoundation in the instrument charging the greater," or at least"set out the main outline of the lesser offense." ' " Baldwin, 199Ill. 2d at 7-8, quoting People v. Novak, 163 Ill. 2d 93, 107(1994), quoting People v. Bryant, 113 Ill. 2d 497, 505 (1986). Acharging instrument need not expressly allege all of the elementsof the crime if those elements can be inferred from the language ofthe charging instrument. Baldwin, 199 Ill. 2d at 8.

Defendant was tried on one count of first-degree murder. 720ILCS 5/9--1(a)(2) (West 2000). Pursuant to the supercedingindictment, a person commits first-degree murder if he kills anindividual without lawful justification and he knows that his actscreate a strong probability of death or great bodily harm. 720ILCS 5/9--1(a)(2) (West 2000). The indictment further alleged thatthe victim was two months old and had the same surname asdefendant.

The basic difference between simple involuntary manslaughterand first-degree murder is the mental state that accompanies theconduct resulting in the victim's death. Simple involuntarymanslaughter 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 Coderequires the additional proof beyond a reasonable doubt that thevictim 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 ofthe offense. The murder charge did not allege that the victim wasa "family or household member" as section 112A--3 of the Code ofCriminal Procedure of 1963 defines that term. The absence of suchan express allegation is not dispositive, but we decide that aninference of the element is unreasonable. We may not infer fromthe shared surname of defendant and the victim that they weremembers of the same family or household. If we were to make suchan inference, the State would be excused from charging the family-or-household-member element in every instance in which the victimand defendant shared a surname.

We conclude that the offense of involuntary manslaughter of afamily or household member was not a lesser-included offense offirst-degree murder as charged in the superceding indictment. Thelesser offense lacked a broad foundation in the instrument chargingthe greater offense and did not set out the main outline of thelesser offense. See Baldwin, 199 Ill. 2d at 7-8.

2.  Jury Instructions

The State disregards the distinction we draw between Thurowand this case regarding the deficiency in the charging instrument. Instead, the State contends that the trier of fact's failure tofind the family-or-household-member element may be excused asharmless error under Thurow.

In Thurow, the defendant was charged with the involuntarymanslaughter of a family or household member. The trial courtinstructed the jury on the elements of simple involuntarymanslaughter and the jury found Thurow guilty. At sentencing, thejudge determined that Thurow was eligible for an enhanced sentencebecause the victim was a member of Thurow's household (720 ILCS5/9--3(f) (West 1998)). Alternatively, the sentencing judgedetermined that Thurow was eligible for an extended-term sentencebecause 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 sentencedThurow to 8 years in prison, a sentence within both the 3- to14-year range for an enhanced sentence (720 ILCS 5/9--3(f) (West1998)) 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 itviolated Apprendi, and remanded the cause for a new sentence not toexceed the five-year statutory maximum for the Class 3 felony ofsimple involuntary manslaughter.

Our supreme court held that, "because [the family-or-household-member] enhancement factor 'increase[s] the prescribedrange of penalties to which a criminal defendant is exposed,' it isan element of the offense and must be submitted to a jury andproved 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.at 2363 (2000).

The State conceded the Apprendi violation based on the absenceof a jury finding on the family-or-household-member element. Thurow, 203 Ill. 2d at 361. However, the supreme court concludedthat 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 trialjudge's determination that the victim was a member of thedefendant's family or household. Thurow, 203 Ill. 2d at 368.

In Neder, the Supreme Court found that a trial court's failureto submit an issue to the jury was harmless because evidencesupporting the element was uncontested and overwhelming and thecriminal defendant " 'did not, and apparently could not, bringforth facts contesting the omitted element.' " Thurow, 203 Ill. 2dat 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 thevictim's mother testified to facts establishing that the victim wasa member of the defendant's household. Because "the evidence insupport of the omitted element was uncontested and overwhelming"(Thurow, 203 Ill. 2d at 369), it was undisputed that the victim wasa person who shared a common dwelling with the defendant (Thurow,203 Ill. 2d at 369, quoting 725 ILCS 5/112A--3(3) (West 1998)). The court characterized the Apprendi violation as harmless becauseit was "clear beyond a reasonable doubt that a properly instructed,rational jury would have found defendant guilty of involuntarymanslaughter against a household member." Thurow, 203 Ill. 2d at369. The court, therefore, reversed the appellate court's orderand affirmed the eight-year sentence imposed by the trial court.

The Thurow court recognized that its harmless error analysisunder Neder created a tension with Apprendi by "in a sense addingerror upon error by repeating the violation committed by the trialjudge, who made the original, erroneous determination." Thurow,203 Ill. 2d at 369-70.

As in Thurow, defendant did not and could not introduce factscontesting the omitted element of the victim's status as a familyor household member. Although we agree with the State that theerroneous jury instructions were harmless, our analysis of thecharging instrument issue controls this case. In Thurow, only thejury instructions were deficient, and the supreme courtacknowledged that a harmless error review perpetuated the error. Here, neither the charging instrument nor the jury instructionsidentified the family-or-household-member element of section 9--3(f). If we were to excuse the deficient charging instrument aswell as the inadequate jury instructions here, we would exacerbatethe Apprendi violation even further.

Moreover, the jury found defendant guilty of only a Class 3felony, but the trial court elevated the offense to a Class 2felony based on an improper finding of the family-or-household-member element. Defendant, therefore, is additionally prejudicedby the collateral consequences of a Class 2 felony conviction,which are more serious than those attendant to a Class 3 felonyconviction. See, e.g., 730 ILCS 5/5--5--3(c)(8) (West 2000) ("Whena defendant, over the age of 21 years, is convicted of a Class 1 orClass 2 felony, after having twice been convicted of any Class 2 orgreater Class felonies in Illinois, and such charges are separatelybrought and tried and arise out of different series of acts, suchdefendant shall be sentenced as a Class X offender"). Thecumulative effect of the errors in this case compels us to reversethe Class 2 felony conviction of and sentence for involuntarymanslaughter of a family or household member. We remand the causefor the entry of a new judgment.

On remand, the trial court may enter a judgment of convictionpursuant to the jury's verdict. Here, the jury found defendantguilty of the involuntary manslaughter of a person under 12 yearsold. A finding that the victim was under 12 years old does notaffect the classification of involuntary manslaughter and onlyincreases 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). Thefinding regarding the age of the victim did not violate defendant'sApprendi rights because the jury found that element beyond areasonable doubt. See Thurow, 203 Ill. 2d at 365-67 (section 5--5--3.2(b)(4)(i) permits the imposition of an extended-term sentenceonly if the finder of fact determines the aggravating factor beyonda reasonable doubt).

Like in Thurow, the trial court in this case imposed a 10-yearsentence 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 ofsection 5--8--2(a)(5) of the Unified Code of Corrections. However,the trial court stated that a "maximum sentence" was inappropriatebecause defendant lacked a significant criminal history. Weconclude that a new sentencing hearing is necessary because it isunclear whether the trial court would have imposed the 10-yearsentence 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 $100domestic violence fine and ordered that the fine be drawn fromdefendant's bond. Defendant was entitled to receive a $5-per-daycredit toward his fine for each day he spent in custody beforesentencing. 725 ILCS 5/110--14 (West 2000). Defendant wasarrested on April 2, 2000, and released on bond on April 7, 2001. The trial court credited the 401 days against his sentence butallowed no monetary credit toward the fine, ordering instead thatthe fine be drawn from defendant's bond. The State concedes that defendant's $100 fine was satisfied by the 401-day custodial creditand that the judgment should be amended to reflect the credit.

For the preceding reasons, the judgment of the circuit courtof Jo Daviess County is reversed and the cause is remanded withdirections.

Reversed and remanded with directions.

McLAREN and O'MALLEY, JJ., concur.