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No. 3--01--0095

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

The defendant, Charles M. Siverson, was charged with theft byobtaining unauthorized control over property (720 ILCS 5/16--1(a)(1) (West 2000)). On the witness stand, he confessed to theftby receiving stolen property (720 ILCS 5/16--1(a)(4) (West 2000)). The trial judge instructed the jury on both forms of theft. Thejury returned a general verdict that the defendant was guilty oftheft. He was sentenced to eight years' imprisonment. On appeal,the defendant argues that his due process rights were violated whenthe judge instructed the jury on a form of theft for which he wasnot charged. We affirm.

BACKGROUND

Two Streator police officers testified that at approximately11:30 a.m. on August 25, 2000, they were conducting surveillance ina parking lot because of a "crime stopper tip." They observed thedefendant exit from a car and walk in their direction. He wascarrying a box containing a camcorder under one arm and a coolerwith his other hand. When the officers asked the defendant if theycould talk with him, he threw up his hands and said "you caughtme." The cooler contained various small items with K-Mart labels. The defendant told the officers that he "swiped" the camcorder andthe small items from K-Mart.

A K-Mart manager testified that the defendant was working atthe store on the day in question through a temporary agency. Hehad access to the entire store. The items found on the defendantby the officers had been stored in a room near where the defendantwas working that day. When asked by the manager why he had acooler near a tree outside the store, the defendant said he waskeeping soft drinks in the cooler.

The manager said that Brian Persinger also was working at thestore that day in the same area where the defendant was working. The police officers testified that Persinger was in the car thatdropped off the defendant.

After the State rested, defense counsel told the judge thatthe defendant wished to testify on his own behalf. Defense counselhad advised the defendant that by testifying, he might implicatehimself in having committed a "different version" of "the samecrime." Despite his attorney's advice, the defendant wished totestify.

The defendant testified that he did not take the items from K-Mart. He said that he bought the items from Persinger knowing thatPersinger stole the items from K-Mart.

During the conference on jury instructions, the judge statedthat, because of the defendant's testimony, the judge was going toinstruct the jury not only on subsection (a)(1) of the theftstatute (720 ILCS 5/16--1(a)(1) (West 2000)), but also onsubsection (a)(4) (720 ILCS 5/16--1(a)(4) (West 2000)). Defensecounsel objected that subsection (a)(4) was a separate crime fromsubsection (a)(1). The attorney argued that the court, therefore,would be instructing the jury on a crime for which the defendantwas not charged. The court overruled the objection and gave bothinstructions to the jury.

The jury found the defendant guilty of theft. The verdictform did not specify whether the defendant was guilty undersubsection (a)(1) or subsection (a)(4). The defendant renewed hisobjection to the second jury instruction in a motion for new trial,which was denied. He was sentenced to eight years' imprisonment. The defendant appealed.

ANALYSIS

The defendant contends that the trial court erred by givingthe jury an instruction on theft by receiving stolen property whenthe defendant was charged with theft by obtaining unauthorizedcontrol over property.

In general, a defendant may not be convicted of an offense forwhich he was not charged. The question of whether the offense forwhich a defendant was convicted was included within the offense forwhich he was charged is a matter of law, which we review de novo. People v. Landwer, 166 Ill. 2d 475, 655 N.E.2d 848 (1995).

The version of the theft statute in force at the time thedefendant committed the offense stated:

"(a) A person commits theft when he knowingly:

(1) [o]btains or exerts unauthorized controlover property of the owner; or

* * *

(4) [o]btains control over stolen propertyknowing the property to have been stolen." 720ILCS 5/16--1(a)(1), (4) (West 2000).

In People v. Marino, 44 Ill. 2d 562, 256 N.E.2d 770 (1970),the Illinois Supreme Court considered the analogous sections of the1963 version of the theft statute. The statute then read:

"A person commits theft when he knowingly:

(a) [o]btains or exerts unauthorized controlover property of the owner; or

* * *

(d) [o]btains control over stolen propertyknowing the property to have been stolen byanother." Ill. Rev. Stat. 1963, ch. 38, par.16--1(a), (d).

The defendants in Marino argued that they should have been chargedunder subsection (d) rather than subsection (a) of the statute. The Marino court said that the conduct proscribed in subsection (d)was not a separate theft offense, but rather was included withinsubsection (a).

In the present case, the defendant contends that subsections(a)(1) and (a)(4) of the 2000 version of the theft statute areseparate offenses. These two subsections of the 2000 statute arevirtually identical to subsections (a) and (d), respectively, ofthe 1963 statute. Under Marino, we hold that subsections (a)(1)and (a)(4) of the 2000 theft statute are not separate offenses.

In this case, the defendant was charged with theft undersubsection (a)(1). On the witness stand and against defensecounsel's advice, he confessed to theft by receiving stolenproperty knowing that it had been stolen. The judge instructed thejury on a form of theft that was introduced into evidence by hisown courtroom admission. Under Marino, he was convicted of thesame offense for which he was charged. Therefore, as a matter oflaw, the defendant's due process rights were not violated when thetrial judge instructed the jury on theft under subsection (a)(4)when the defendant was charged with theft under subsection (a)(1).

CONCLUSION

For the foregoing reasons, we affirm the judgment of the LaSalle County circuit court.

Affirmed.

HOMER and McDADE, JJ., concur.