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09/10/97 PEOPLE STATE ILLINOIS v. MICHAEL EGGERMAN

September 10, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL EGGERMAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 96 CR 11515. Honorable Michael Bolan, Judge Presiding.

Released for Publication November 10, 1997.

The Honorable Justice Gordon delivered the opinion of the court. Gordon, J., with Cousins, P.j. and Leavitt.

The opinion of the court was delivered by: Gordon

The Honorable Justice GORDON delivered the opinion of the court: Michael Eggerman, the defendant, was charged by indictment with aggravated vehicular hijacking, vehicular hijacking, armed violence based on vehicular hijacking, armed robbery, robbery, armed violence based on robbery and unlawful use of weapons by a felon. In reliance on the double jeopardy clauses of the state and federal constitutions, the defendant moved to dismiss all of the charges with the exception of the unlawful use of weapons by a felon charge based upon his earlier plea of guilty to the charge of possession of a stolen motor vehicle which was based upon the same February 1, 1996 occurrence. The trial court denied the motion and the defendant filed this interlocutory appeal pursuant to Supreme Court Rule 604(f) (145 Ill. 2d R. 604(f)).

The sole issue on appeal is whether the charge of possession of a stolen motor vehicle is a lesser included offense of the offenses of robbery, armed robbery, vehicular hijacking, and aggravated vehicular hijacking. *fn1 We hold that it is and we reverse.

The relevant facts in the instant case show that the defendant, who was a resident of Lake County, was charged in Lake County by information with the offense of possession of a stolen motor vehicle. That offense, alleged to have occurred on February 1, 1996, involved a 1991 Ford Escort having a specified Illinois registration number. On March 28, 1996, the defendant pled guilty to that charge and was sentenced to three years' imprisonment in the Illinois Department of Corrections. On April 19, 1996, the defendant was transferred to a Chicago Police Department station where an arrest report was prepared charging the defendant with aggravated vehicular hijacking based upon defendant's taking by use of a knife of the 1991 Ford Escort from its owner in Chicago on February 1, 1996. Thereafter, on May 7, 1996, the aforementioned indictments were returned by the Cook County grand jury.

The double jeopardy question raised by this appeal is governed by the test set forth in Blockburger v. United States, 284 U.S. 299, 304, 52 S. Ct. 180, 182, 76 L. Ed. 306 (1932) which states:

"Where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not *** ."

Accord Rutledge v. United States, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996). See Brown v. Ohio, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187 (1977) (applying Blockburger test to successive prosecutions). The Blockburger test focuses on the proof necessary to prove the statutory elements of each offense, rather than on overlapping conduct. United States v. Dixon, 509 U.S. 688, 113 S. Ct. 2849, 125 L. Ed. 2d 556 (1993). If each offense contains an element or fact different from the other offense, the offenses are not the same offense for double jeopardy purposes. Rutledge, 517 U.S. 292, 116 S. Ct. 1241, 134 L. Ed. 2d 419 (1996). Pursuant to the Blockburger test, prosecution of a lesser included offense, which by its definition requires no proof beyond that which is required in the greater offense, would prevent the subsequent prosecution of the greater offense. Brown, 432 U.S. 161, 97 S. Ct. 2221, 53 L. Ed. 2d 187. See 720 ILCS 5/2-9(a) (West 1994) (a lesser included offense means an offense which "is 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"). Whatever the sequence may be, the Fifth Amendment double jeopardy clause forbids successive prosecution and cumulative punishment for a greater and lesser included offense. Brown, 432 U.S. at 169, 97 S. Ct. at 2227, 53 L. Ed. 2d 187.

In the instant case, the defendant argues that the offense of possession of a stolen motor vehicle is a lesser included offense of robbery, armed robbery, vehicular hijacking and aggravated vehicular hijacking. *fn2 We agree.

The elements to the offense of possession of a stolen motor vehicle are that the defendant possessed a vehicle; that the defendant was not entitled to possession of the vehicle; and that the defendant knew that the vehicle was stolen. 625 ILCS 5/4-103(a)(1) (West 1994). See People v. Cozart, 235 Ill. App. 3d 1076, 601 N.E.2d 1325, 176 Ill. Dec. 627 (1992). The elements to the offense of vehicular hijacking are the taking of a motor vehicle from a person by the use of force or threatening the imminent use of force (720 ILCS 5/18-3 (West 1994)); and the offense of aggravated vehicular hijacking includes additional elements, the one here relevant being that the offender carry a dangerous weapon (720 ILCS 5/18-4 (West 1994)). The elements to the offenses of robbery and armed robbery are nearly identical to offenses of vehicular hijacking and aggravated vehicular hijacking, respectively, except motor vehicles are excluded from the former. Compare 720 ILCS 5/18-3 and 5/18-4 with 5/18-1 and 5/18-2 (West 1994). See People v. Aguilar, 286 Ill. App. 3d 493, 676 N.E.2d 324, 221 Ill. Dec. 803 (1997).

Based upon these statutory provisions, we agree that the offense of possession of a stolen motor vehicle is a lesser included offense of vehicular hijacking and aggravated vehicular hijacking. The taking of a motor vehicle, as required in the vehicular hijacking offenses, includes unauthorized possession and knowledge that the vehicle is stolen since the person charged with the hijacking is the one who has taken the vehicle by force or threat of force. See People v. Cramer, 85 Ill. 2d 92, 421 N.E.2d 189, 51 Ill. Dec. 681 (1981) (stating that word "stolen" in the possession of stolen motor vehicle offense refers to theft; court found that the same facts necessary to prove possession of motor vehicle offense would prove theft). See also People v. Bryant, 128 Ill. 2d 448, 539 N.E.2d 1221, 132 Ill. Dec. 415 (1989) (stating that possession of a stolen motor vehicle is no longer lesser included offense of theft; due to increased penalty it is now treated as a more serious offense than theft). The offenses of vehicular hijacking and aggravated hijacking are the greater offenses because in addition to including unauthorized possession and knowledge that the motor vehicle was stolen, they require facts such as the taking of the vehicle from a person by force or threat of force (720 ILCS 5/18-3 (vehicular hijacking)) and being armed with a dangerous weapon (720 ILCS 5/18-4 (aggravated vehicular hijacking)).

The State, in reliance on People v. Bivens, 156 Ill. App. 3d 222, 509 N.E.2d 640, 108 Ill. Dec. 944 (1987); People v. Cozart, 235 Ill. App. 3d 1076, 601 N.E.2d 1325, 176 Ill. Dec. 627 (1992); and People v. Cramer, 85 Ill. 2d 92, 421 N.E.2d 189, 51 Ill. Dec. 681 argues that possession of a stolen motor vehicle is not a lesser included offense of robbery or vehicular hijacking. According to the State, those cases hold that whenever a defendant's unauthorized possession is premised on defendant's theft of the vehicle, proof of the offense of possession of a stolen motor vehicle requires proof of theft. The State further argues that since theft is a specific intent offense, the inclusion of that element transforms the offense of possession of a stolen motor into a specific intent crime that would require proof of an element different from the general intent offenses of robbery and vehicular hijacking. See People v. Baker, 72 Ill. App. 3d 682, 391 N.E.2d 91, 28 Ill. Dec. 892 (1979). That argument and People v. Baker were rejected in People v. Jones, 149 Ill. 2d 288, 595 N.E.2d 1071, 172 Ill. Dec. 401 (1992). The Jones court held that the specific intent offense of theft is a lesser included offense of a general intent offense of armed robbery despite the differing mental states. Jones, 149 Ill. 2d at 297-98, 595 N.E.2d at 1075 (stating that the armed robbery statute implicitly includes the mental state of intent to permanently deprive the victim of the property).

In the instant case, the defendant was charged with possession of a stolen motor vehicle. The same facts that would prove the vehicular hijacking offense, the taking of a motor vehicle by force or threat of force, would establish unauthorized possession and knowledge that the vehicle was stolen. No additional facts are needed to establish the possession offense; thereby making it a lesser included offense of the vehicular hijacking offense and the related aggravated hijacking offense. As a result, these three offenses are the same under the Blockburger test and defendant's plea of guilty to the Lake County charge of possession of a stolen motor vehicle prevents the State from pursuing successive prosecutions for the greater offenses of vehicular hijacking and aggravated ...


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