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People v. Thompson

Court of Appeals of Illinois, Fifth District

May 4, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
JEREMY R. THOMPSON, Defendant-Appellant.

         Appeal from the Circuit Court of Hamilton County, No. 11-CF-50; the Hon. David K. Frankland, Judge, presiding.

         Affirmed in part; vacated in part.

          Michael J. Pelletier, Ellen J. Curry, and Lawrence J. O'Neill, of State Appellate Defender's Office, of Mt. Vernon, for appellant.

          Justin Hood, State's Attorney, of McLeansboro (Patrick Delfino, David J. Robinson, and Sharon Shanahan, of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

          Panel JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Presiding Justice Moore and Justice Cates concurred in the judgment and opinion.

          OPINION

          JUSTICE GOLDENHERSH

         ¶ 1 After a jury trial in the circuit court of Hamilton County, defendant, Jeremy R. Thompson, was convicted of attempt to procure anhydrous ammonia with the intent to manufacture methamphetamine (720 ILCS 646/25(a)(2) (West 2010)) and tampering with anhydrous ammonia equipment (720 ILCS 646/25(d)(2) (West 2010)). Defendant was sentenced as a Class X offender pursuant to section 5-4.5-95(b) of the Unified Code of Corrections to 18 years in the Department of Corrections to be followed by 3 years of mandatory supervised release. 730 ILCS 5/5-4.5-95(b) (West 2010). Defendant appealed to this court, raising three issues: (1) whether the trial court erred in admitting lay opinion testimony identifying defendant from surveillance recordings, (2) whether the trial court erred in failing to instruct the jury on an essential element of attempt, and (3) whether defendant's conviction for tampering with anhydrous ammonia equipment should be vacated under the one-act, one-crime rule because it arose from the same physical act which formed the basis of his conviction for procurement of anhydrous ammonia with the intent to manufacture methamphetamine.

         ¶ 2 The State conceded that convicting defendant of both attempt to procure and tampering was in error in that the two charges were based on the same physical act. Ultimately, we (1) reversed defendant's convictions on the basis that the trial court erred in admitting the lay opinion testimony because none of the witnesses aided the jurors' own identification of who was depicted in the surveillance video; (2) agreed, based on the State's concessions, that the two charges were based on the same physical act, but were confident that such error would not occur on remand; and (3) found it unnecessary to address the other issue and remanded with directions. People v. Thompson, 2014 IL App (5th) 120079, 21 N.E.3d 1. The State filed a petition for leave to appeal, which our supreme court granted. The supreme court reversed our judgment and remanded, finding any error in admitting the testimony as lay opinion testimony was harmless. The court subsequently issued a modified opinion in which it reversed our judgment and remanded the case to us in order to consider other issue(s) properly before us. People v. Thompson, 2016 IL 118667, 49 N.E.3d 393.

         ¶ 3 Upon remand, we requested the parties file supplemental briefs. Both parties have complied with our request. The issue now before us is the issue we did not address in the first appeal, whether the trial court erred in failing to instruct the jury on "substantial step, " an essential element of attempt. For the following reasons, we affirm.

         ¶ 4 FACTS

         ¶ 5 For our statement of facts, we borrow liberally from our first opinion issued in this matter as well as our supreme court's opinion. At trial, Deputy Jason Stewart of the Hamilton County sheriff's department testified how methamphetamine is produced using anhydrous ammonia, which is often stolen from local farm supply stores. Deputy Stewart explained that in June 2011, he oversaw the installation and maintenance of a surveillance camera at Hamson Ag after the owner contacted the sheriff's department because the store's equipment was often damaged by thieves. The camera was directly aimed at three tanks containing anhydrous ammonia.

         ¶ 6 On July 21, 2011, Deputy Stewart was dispatched to Hamson Ag after the three tanks' caps were removed. Stewart reviewed copies of recordings made by the surveillance camera. He testified the surveillance video showed a white male with short, dark hair and a balding or thinning spot on the back of the head, a large forehead, and a receding hairline, wearing a gray cut-off T-shirt and baggy pants, carrying a five-gallon bucket and a green soda bottle with a clear hose attached. Stewart explained that a soda bottle attached to a hose is a common way to steal anhydrous ammonia. Stewart noted the video showed the subject walking in front of the tanks, then out of view, then back in view, and then in between the tanks. The subject emerged from between the tanks carrying the bucket with the soda bottle and then ran off. While Stewart did not recognize the subject, he circulated the video to other members of his department and to Chief Deputy William Sandusky to distribute to other counties and agencies. The video was played for the jury.

         ¶ 7 Chief Deputy Sandusky testified he spoke with Stewart and viewed the surveillance video. Sandusky did not immediately recognize the subject in the video. He emailed a still image from the video to other police departments. Several days later, he was contacted by Ronnie Almaroad, head of narcotics at the Mt. Vernon police department, who recognized the person depicted in the video as defendant.

         ¶ 8 Sandusky then interviewed defendant after giving defendant his Miranda rights and receiving defendant's waiver thereof. Sandusky testified that after he informed defendant he had been caught on surveillance video, defendant asked to see the evidence. Sandusky showed defendant the still photograph, after which defendant looked at it for several seconds and then uttered, "I wish this wasn't me-or I wish I could say this wasn't me, but it is." ...


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