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No. 2--02--1318

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE KAPALA delivered the opinion of the court:

Following a jury trial, defendant, Jessie Gray, was convicted of aggravated robbery (720 ILCS5/18--5(a) (West 2002)). He was sentenced to 14 years' imprisonment. He appeals, arguing that thetrial court erred in answering the jury's request for clarification of a phrase in the issues instructionfor aggravated robbery (Illinois Pattern Jury Instructions, Criminal, No. 14.20 (4th ed. 2000)). Wedetermine that the court properly answered the jury's request, and thus we affirm.

We begin by presenting the evidence that is relevant to the issues on appeal. On April 30,2002, about 8 p.m., Joseph Wesley and Jordan Ratley were walking toward a convenience store. Asthey walked, they were accosted by defendant, whom they did not previously know. Defendant stoodin front of them with his hand under the football jersey that he was wearing. He swore at them andtold them that he would kill them if they were members of the "GD" gang, which they were not. Inlight of defendant's erratic behavior and the smell of his breath, Wesley and Ratley knew that he wasdrunk.

Slurring his words, defendant told Wesley and Ratley that he had a pistol. He walked threeor four feet away, turned his back, and acted as if he were taking something out of his jersey andputting it behind a tree. Wesley thought that defendant may have put down his gun. Defendant returned to Wesley and Ratley, took off his jersey, and placed it onto a car. Wesley could see thatdefendant had no gun at that point. Defendant asked for money, but Ratley told him to go home. Defendant threw a punch at Ratley, who was bigger than defendant, and Ratley blocked the punch. Defendant turned to Wesley, who was smaller than defendant, and demanded the chain that Wesleywas wearing. Wesley tried to run, but defendant blocked his path. Wesley took off his chain andthrew it onto defendant's jersey. Wesley and Ratley ran to Wesley's house and called the police. When the police apprehended defendant, he had his jersey and Wesley's chain. He had no weapon.

In instructing the jury, the trial court stated as follows:

"To sustain the charge of aggravated robbery, the State must prove the followingpropositions: The first proposition: That the Defendant knowingly took property from theperson or the presence of Joseph Wesley and, second proposition, that the Defendant did soby the use of force or by threatening the imminent use of force, and third proposition, that theDefendant did so while indicating verbally or by his actions to the victim that he was at thattime armed with a gun." (Emphasis added.)

See Illinois Pattern Jury Instructions, Criminal, No. 14.20 (4th ed. 2000).

During its deliberations, the jury sent a note to the trial court: "We want clarification on 'atthat time.' Does this mean 'any time during the incident' or 'at the exact time the chain was handedover'?" Defense counsel argued that "at that time" means "[at] that instant." However, the trial courtnoted People v. Dennis, 181 Ill. 2d 87 (1998), in which the supreme court:

"talked about armed robbery, but [held] that although the required force or threat of forcemay either precede or be contemporaneous with the taking of the victim's property, use of adangerous weapon at [any] point in a robbery will constitute armed robbery so long as itreasonably can be said to be part of a single occurrence. Sufficient force exists when theforce used is part of a series of events that constitute a single incident or occurrence."

See Dennis, 181 Ill. 2d at 101-02. The trial court reasoned that "[c]ertainly the same has got to besaid for an aggravated robbery." Thus, over defendant's objection, the court instructed the jury asfollows:

"The required force or threat of force must either procede [sic] or becontemporaneous with the taking of the victim's property. Indicating verbally or by actionsto the victim that the person was armed with a gun can constitute aggravated robbery so longas it reasonably can be said to be part of a single occurance [sic]."

Shortly thereafter, the jury submitted a second note, raising two questions:

"1. Is 'procede' intended to be precede or proceed?

2. Does contemporaneous mean 'within the time frame of taking of the victim's property'?"

As to the first question, the trial court instructed the jury that "the word used in the prior responseshould be 'precede.' " As to the second, the court agreed with the State's contention that the questionwas "very similar to the last question." In any event, over defendant's objection, the court instructedthe jury that "contemporaneous as it applies to the use of force means that the force may be used aspart of a series of events constituting a single incident." See Dennis, 181 Ill. 2d at 102.

Ultimately, the jury convicted defendant of aggravated robbery, and the trial court sentencedhim and denied his posttrial and postsentencing motions. Defendant timely appealed.

On appeal, defendant asserts that the trial court erred in answering the jury's request forclarification of "at that time." To resolve that issue, we must address two questions. First, we mustdetermine whether the court erred in defining the phrase at all. Second, we must determine whetherthe court's definition was correct. We will address each question in turn.

Generally, a trial court has a duty to answer when a jury raises (1) an explicit question (2) ona point of law (3) about which the jury indicates doubt or confusion. People v. Childs, 159 Ill. 2d217, 228-29 (1994); People v. Landwer, 279 Ill. App. 3d 306, 314 (1996). Nevertheless, the courtshould refuse to answer if an answer would express the court's opinion on the evidence or wouldprobably direct a verdict. People v. Reid, 136 Ill. 2d 27, 39-40 (1990). The court's decision toanswer or refrain from answering will not be disturbed absent an abuse of discretion. Landwer, 279Ill. App. 3d at 314.

Applying the aforementioned criteria, we determine that the trial court had a duty to answerthe jury's request. First, as the jury requested a definition of a specific phrase, its request was explicit. See People v. Oden, 261 Ill. App. 3d 41, 45 (1994) (" 'What is possession?' "). Second, a questionof a definition of a phrase in a jury instruction is a question of law. Landwer, 279 Ill. App. 3d at 315. Third, in requesting "clarification" of the phrase, the jury demonstrated that it was confused aboutthe issue. See Landwer, 279 Ill. App. 3d at 313 (jury requested that court "clarify" term). Thus, thecourt did not abuse its discretion in deciding to answer the jury's request; indeed, a refusal to answermay have been prejudicial error. See Childs, 159 Ill. 2d at 229.

Defendant contends that the trial court improperly provided its "interpretation of the evidence[and] invaded the province of the jury as fact-finder and essentially directed a verdict of guilt." However, the court simply provided a definition of the phrase; it did not apply that definition to theevidence or instruct the jury on how to do so. Because the court defined the phrase "without relatingit to any particular fact of the case" (People v. Comage, 303 Ill. App. 3d 269, 273 (1999)), its answerwas purely legal. It remained the jury's task to apply that law to the evidence and to determinedefendant's guilt.

Defendant further contends that an answer to the jury's request was precluded by our opinionin People v. Brackett, 288 Ill. App. 3d 12 (1997). There, in rejecting a vagueness challenge to thestatute defining aggravated robbery, we stated that "[w]hat constitutes 'indicating verbally or by hisor her actions to the victim that he or she is presently armed with a firearm' [(720 ILCS 5/18--5(a)(West 2002))] is not capable of precise definition and is a question properly left to be determined bythe fact finder on a case-by-case basis." Brackett, 288 Ill. App. 3d at 18. In that case, however, thedefendant argued only that "indicating" is vague. Brackett, 288 Ill. App. 3d at 16. Thus, what wedetermined is that the definition of "indicating" must be left to the jury; we did not state that thedefinition of "presently" (or "at that time," the equivalent phrase in the issues instruction) must betreated similarly.

In sum, the trial court did not abuse its discretion in deciding to answer the jury's request fora definition of "at that time." Now, we must determine whether the court provided the correctdefinition. Needless to say, when a court answers a jury's question, the court must not misstate thelaw. People v. Carroll, 322 Ill. App. 3d 221, 224-25 (2001). Whether the court misstated the lawis naturally a question of law, and our review is de novo. See People v. Cameron, 336 Ill. App. 3d548, 551 (2003) (jury-instruction issue reviewed de novo to the extent it involved issue of statutoryconstruction). We conclude that, in applying the principles of armed robbery, the court correctlystated the law of aggravated robbery.

Armed robbery and aggravated robbery may be committed in various ways. 720 ILCS 5/18--2(a), 18--5 (West 2002). However, as relevant here, the crimes are extremely similar. Each requires,first, a robbery, i.e., a taking of property "from the person or presence of another by the use of forceor by threatening the imminent use of force" (720 ILCS 5/18--1(a) (West 2002)). See 720 ILCS5/18--2(a), 18--5(a) (West 2002). Beyond that, "[t]he elements of the offenses differ in that armedrobbery requires that a defendant 'carr[y] on or about his or her person or [be] otherwise armed witha firearm,' while aggravated robbery requires that a defendant 'indicat[e] verbally or by his or heractions to the victim that he or she is presently armed with a firearm.' " People v. McDonald, 321 Ill.App. 3d 470, 472-73 (2001), quoting 720 ILCS 5/18--2(a)(2) (West Supp. 1999) and 720 ILCS5/18--5(a) (West1998). Thus, a defendant commits armed robbery by committing robbery whileactually armed with a firearm; on the other hand, a defendant commits aggravated robbery bycommitting robbery while merely indicating that he or she is armed with a firearm, whether he or sheis actually armed or not. See 720 ILCS 5/18--2(a)(2), 18--5(a) (West 2002).

As the trial court noted, the Dennis court recognized that a defendant may commit armedrobbery even when he or she is not armed with a firearm at the instant of the taking:

"Although the required force or threat of force must either precede or be contemporaneouswith the taking of the victim's property [citations], use of a dangerous weapon at any pointin a robbery will constitute armed robbery as long as it reasonably can be said to be a part ofa single occurrence [citation]. Sufficient force exists where the force used is part of a seriesof events that constitute a single incident or occurrence." Dennis, 181 Ill. 2d at 101-02.

These principles have enabled appellate courts to sustain convictions on facts that, though inthe context of armed robbery, are fairly similar to the facts here. One example is People v. Stewart,54 Ill. App. 3d 76 (1977). There, about 1 p.m., the defendants put guns to the victim's head andordered him to give them $1,000 by 4 p.m. The defendants left, one of them returned about 3 p.m.,and the victim gave him the money. No evidence indicated that the defendant was armed at thatpoint. The appellate court affirmed the defendants' convictions of armed robbery. Noting theprinciples that the Dennis court would later recognize, the appellate court held that the intervalbetween the use of the weapons and the taking of the money was not long enough "to preclude theseevents from constituting a single, uninterrupted and inseparable incident *** to satisfy a convictionfor armed robbery." Stewart, 54 Ill. App. 3d at 80.

Similarly, in People v. Talley, 97 Ill. App. 3d 439 (1981), the defendant forced the victim intoa bedroom at gunpoint, put his gun in a closet, forced the victim to disrobe, and took a coin pursethat was in the victim's clothing. He argued that he was not guilty of armed robbery because he didnot take the purse while he was armed. Citing Stewart, the appellate court disagreed:

"It is immaterial that defendant did not have the gun in hand at the time of the taking. Theconviction for armed robbery can be sustained if the trier of fact could properly find that theweapon had been displayed to the victim, and thereafter remained accessible to theperpetrator." Talley, 97 Ill. App. 3d at 444-45.

These cases demonstrate that, had defendant here actually had a gun and then actually put itbehind the tree before taking Wesley's chain, he would have been guilty of armed robbery if the entireepisode had been a single occurrence. As armed robbery and aggravated robbery "are obviouslyclosely related in subject and proximity," we must presume that they are "governed by one spirit anda single policy" (People v. Masterson, 207 Ill. 2d 305, 329 (2003)). Thus, as defendant merelyindicated that he had a gun and then merely indicated that he put it behind the tree before takingWesley's chain, he must be guilty of aggravated robbery if the entire episode was a single occurrence. As the trial court suggested, there is simply no logical alternative.

Defendant contends that, rather than the law of armed robbery, the trial court should have adopted the law of armed violence (720 ILCS 5/33A--2(a) (West 2002)). We summarily reject thatassertion. We do not deny that a defendant commits armed violence, like armed robbery, "whilearmed with a dangerous weapon." 720 ILCS 5/33A--2(a) (West 2002). Nevertheless, it nearly goeswithout saying that aggravated robbery is more "closely related in subject and proximity" (Masterson,207 Ill. 2d at 329) to armed robbery than to armed violence. Thus, while aggravated robbery andarmed robbery "are undoubtedly governed by one spirit and a single policy" (Masterson, 207 Ill. 2dat 329), aggravated robbery and armed violence are not.

We conclude that the trial court properly applied the principles of armed robbery in thecontext of aggravated robbery. In this context, although the required force or threat of force musteither precede or be contemporaneous with the taking of the victim's property, the defendant'sindication that he or she is armed with a firearm at any point in a robbery will constitute aggravatedrobbery as long as it reasonably can be said to be a part of a single occurrence. Sufficient force existswhere the force used is part of a series of events that constitute a single incident or occurrence. SeeDennis, 181 Ill. 2d at 101-02. Thus, in answering the jury's request for clarification of "at that time"in the issues instruction for aggravated robbery, the court properly instructed the jury accordingly.

The judgment of the circuit court of Du Page County is affirmed.

Affirmed.

McLAREN and BYRNE, JJ., concur.