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People v. Henson

Court of Appeals of Illinois, Second District

October 31, 2017

JAMES R. HENSON, Defendant-Appellant.

         Appeal from the Circuit Court of McHenry County. No. 14-CF-503 Honorable Gordon E. Graham, Judge, Presiding.

          HUDSON PRESIDING JUSTICE delivered the judgment of the court, with opinion. Justices Hutchinson and Spence concurred in the judgment and opinion.



         ¶ 1 Defendant, James R. Henson, appeals from his conviction of two counts of burglary (720 ILCS 5/19-1(a) (West 2014)) and one count of possession of burglary tools (720 ILCS 5/19-2 (West 2014)). Defendant raises three issues on appeal: (1) whether the trial court properly refused defendant's proposed jury instruction on theft as a lesser included offense of burglary; (2) whether the trial court conducted an adequate inquiry into defendant's pro se posttrial claims of ineffective assistance of counsel; and (3) whether defendant is entitled to a $5-per-day credit against certain fines for time spent in presentencing custody. For the reasons that follow, we find that the trial court's refusal to instruct the jury on the lesser included offense of theft is reversible error. As that issue is dispositive, we need not address the remaining issues. We reverse and remand for a new trial.

         ¶ 2 I. BACKGROUND

         ¶ 3 On June 18, 2014, defendant was indicted on two counts of burglary (720 ILCS 5/19-1(a) (West 2014)) and one count each of unlawful possession of burglary tools (720 ILCS 5/19-2 (West 2014)), theft (720 ILCS 5/16-1(a)(1)(A) (West 2014)), criminal damage to property (720 ILCS 5/21-1(a)(1) (West 2014)), and criminal trespass to real property (720 ILCS 5/21-3(a)(2) (West 2014)), arising out of the unlawful entry of two trucks owned by MJ Electric, LLC, located on property owned by Curran Group, on May 31, 2014. Prior to trial, the State nol-prossed the counts of theft, criminal damage to property, and criminal trespass to property.

         ¶ 4 The indictment alleged, inter alia, that defendant committed the offense of burglary in that he "knowingly entered a motor vehicle, belonging to MJ Electric, LLC, *** with the intent to commit therein a theft." There was one count of burglary for each vehicle entered.

         ¶ 5 The following evidence was adduced at defendant's jury trial. Crystal Lake police officer Jason Duncan testified that, at about 5:30 a.m. on May 31, 2014, he responded to a dispatch concerning a suspicious incident. When he arrived at Main Street and Virginia Road, he encountered an excited woman on the bike path who told him that it sounded like there was something chained up in the bushes. As Duncan approached the bushes, he heard metallic clanking. Duncan walked through vegetation toward the sound and found defendant sitting in knee-high vegetation. Duncan also saw defendant's bicycle. The bicycle had a black bucket in a basket attached to the handlebars and a milk crate attached to the back. Duncan did not see anyone else in the area. Duncan asked defendant to walk toward him, and defendant complied, joining Duncan on the bike path. Duncan did not smell any smoke on defendant.

         ¶ 6 Crystal Lake patrol sergeant Todd Richardson arrived on the scene as Duncan called defendant out of the bushes. Defendant appeared awake, dirty, and slightly wet. His hands were very dirty. He had black smudges on his face and on the backs of his hands. The bottoms of defendant's shoes were very muddy. Richardson went into the bushes and saw a bicycle jammed into a bush. There were buckets and a basket affixed to the bicycle. On the ground near the bicycle were two white buckets with "MJ Electric" stickers on the sides. One bucket contained a mix of brass and copper fittings. The other bucket was empty and partially melted. Located next to the buckets was a pile of brass and copper fittings that looked new. Defendant had the following other items in his possession: two pairs of cloth gloves; various hand tools; two flashlights; binoculars; a large serrated knife; a pocket knife; a screwdriver; two adjustable wrenches; two wire cutters; a long extended lighter; and a package containing multiple rolls of electrical tape.

         ¶ 7 Richardson testified that he examined the area around defendant. He discovered a muddy area and found a bucket, a gas can, wire, and bolt cutters. The bolt cutters were never tested for fingerprints. He also found a path of trampled vegetation that led from the muddy area to an area where there was some cable that had been burned to strip it of its insulation. About 1, 000 feet away from where defendant was found, Richardson found a chain-link fence that had a hole cut in it. While standing in the muddy area, he saw MJ Electric trucks parked in the Curran Group parking lot (the lot), about 50 feet away from the hole in the fence.

         ¶ 8 Richardson testified that, at about 6 a.m., MJ Electric field supervisor Orlando Nieves arrived at work. Richardson and Nieves entered the lot together and examined the scene. Richardson saw scraps of copper wire and insulation on the ground. Nieves told Richardson that the wire had not been left on the ground the night before; he stated that it would have been in the trucks, held in place by bungee cords. Upon examining certain trucks, Nieves noted that some five-gallon buckets that had contained spill kits had been removed from the trucks. The lids had been removed from the buckets, and the spill kits had been dumped into the beds of the trucks. Nieves saw that some locks had been cut on the side compartments of two trucks. Inside the compartments, there were empty trays that had previously contained brass and copper fittings and ground rod connectors. Richardson examined a truck that had not been entered and saw brass and copper items that were identical to those found near defendant. Richardson determined that two trucks had been broken into. Richardson checked for the presence of gravel on the bottoms of defendant's shoes, because "[if] someone had walked into that parking lot, they would have had gravel-dry gravel on their feet." Defendant's shoes were muddy, but Richardson did not see any gravel.

         ¶ 9 Crystal Lake police officers Krzysztof Krol and Edward Lepkowicz arrived on the scene soon after Richardson. Krol heard defendant say that he was en route to his house in McHenry and that he stayed in the bushes because he did not want to be caught on the bike path after dark for fear he would be cited for trespassing. Lepkowicz was directed by Richardson to gather the brass and copper fittings found near defendant and bring them to the lot, which was about a quarter-mile away. Nieves identified the items as belonging to MJ Electric. Nieves stated that he needed the items for work, and they were returned to him. Lepkowicz did not attempt to obtain fingerprints from the trucks.

         ¶ 10 Richardson and Lepkowicz asked defendant where he got the buckets filled with the fittings. Defendant told them that he was working in residential construction with a man named Phil Cotton and that Cotton let him have the fittings while at a job site in Algonquin. Richardson questioned defendant further, because he did not believe that anyone would give away new fittings. Defendant then told him that he obtained the fittings in Elgin but that he could not provide any way to contact his boss. Richardson testified that he attempted to locate Cotton through his computer system but was unable to do so.

         ¶ 11 Rollin Henson, defendant's father, testified for the defense. Rollin, a roofing contractor, testified that defendant lived with him and his wife and occasionally worked with him. Defendant did not own a car, so Rollin drove him to worksites. Rollin testified that defendant pieced together a bicycle, which defendant used for personal transportation. Because the bicycle often broke down, defendant usually carried tools around with him in a bucket. These included tools for fixing his bicycle as well as tools for taking apart and adhering roofing, such as knives, a flashlight, a lighter, a pry bar, and a hammer. Rollin identified a picture of defendant's shoes and stated that they had roofing material and plastic roofing cement stuck on them. Rollin could not recall if defendant worked on a roofing job on May 30, 2014, but he stated that he would not have sent defendant on a job in the ...

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