Court of Appeals of Illinois, First District, Second Division
from the Circuit Court of Cook County. No. 14 CR 5363
Honorable Nicholas R. Ford, Judge, presiding.
JUSTICE MASON delivered the judgment of the court, with
opinion. Justices Pucinski and Hyman concurred in the
judgment and opinion.
1 Following a jury trial in Cook County circuit court,
defendant Michael Fein was convicted of theft from a person
by obtaining unauthorized control over certain property (720
ILCS 5/16-1(a)(1)(A) (West 2012)) and sentenced to 10
years' imprisonment. On appeal, he argues (1) the
evidence was insufficient to prove beyond a reasonable doubt
that he committed theft by obtaining unauthorized control
over the victim's property, (2) the trial court erred by
failing to conduct a proper preliminary inquiry pursuant to
People v. Krankel, 102 Ill.2d 181 (1984), and (3)
his mittimus lists the incorrect conviction and felony
classification. For the following reasons, we affirm
Fein's conviction, remand, and order his mittimus
2 Fein and codefendant Lorraine Adams were charged with armed
robbery, for knowingly taking "a purse and its contents,
from the person or presence of Marquianna Anderson, by the
use of force or by threatening the imminent use of force, and
they carried on or about their persons or were otherwise
armed with a firearm." The defense theory of the case
was that Fein was a con artist who tricked Anderson into
willingly giving him money and that he was not guilty of
armed robbery but instead committed theft.
3 At approximately 1 p.m. on September 6, 2013, Anderson
withdrew money from the bank and had $300 cash in her wallet.
She went to a strip mall at Halsted and 47th Streets to go
shopping at a sports store. She parked far from the
store's entrance because the parking lot was full. As she
walked toward the store, a man and woman, later identified as
Fein and Adams, approached her. Fein stated that he was from
Iowa, his name was Dave, and he had found a wallet. He asked
Anderson whether he would receive a reward for turning the
wallet in to the police. Anderson attempted to walk away, but
Fein showed her that he had a gun in his waistband. Adams did
not speak, but on Fein's instruction, she took
Anderson's purse. Once they obtained her purse, Fein and
Adams ran away with it. As they were running, Anderson
observed them throw her purse into the street on 47th. She
ran to retrieve her purse, and Fein and Adams continued
running. Anderson did not chase them. She recovered her purse
but discovered that her money was missing.
4 As she was recovering her purse, Anderson's grandfather
was "coming up" the street. She told him that she
had been robbed, and he called the police. Within minutes,
the police arrived at the strip mall. Anderson spoke with the
officers and gave them physical descriptions of Fein and
Adams. She told the officers that Fein had a gun. On October
10, 2013, and November 17, 2013, respectively, Anderson
identified Fein and Adams in photographic arrays. She spoke
with police on several occasions and each time told them that
Fein was in possession of a gun during the incident. Anderson
denied giving Fein and Adams her purse or offering them
5 Anderson acknowledged that a police car was in the parking
lot when Fein initially approached her and she did not signal
to the police. The police car eventually drove away. There
were cameras in the parking lot, but she did not attempt to
find mall security or inform anyone in the stores that she
had been robbed. The entire incident lasted 6 to 7 minutes.
Anderson only saw the handle of the gun in Fein's
waistband, and he did not take the gun out of his pants.
Anderson denied telling officers that Fein and Adams
approached her on the sidewalk. She further denied telling
officers that Fein and Adams walked, rather than ran, away
from the scene.
6 On October 7, 2013, Chicago police Detective Fred Marshall
was assigned to investigate the incident. Pursuant to his
investigation, he compiled two photographic arrays, one with
male subjects and one with female subjects. Anderson
identified Fein in one photo array and Adams in the second
photo array. Marshall was present when Fein was arrested on
November 16, 2013. Adams was later arrested on February 12,
2014. Each time Marshall spoke with Anderson, she indicated
that Fein had a gun during the incident. Marshall could not
recall whether Anderson reported Fein and Adams walking or
running away from the scene. His report indicated that
Anderson reported the individuals running away. But an
initial report, which summarized a first responder's
notes, indicated that Anderson reported them walking away.
7 In the course of his investigation, Marshall went to the
strip mall. He was unable to obtain video surveillance
footage because he was informed that the strip mall cameras
did not point far enough back into the parking lot to where
the incident occurred. Additionally, there were no Chicago
police pod cameras in the vicinity.
8 Marshall acknowledged that he did not recover additional
evidence to corroborate Anderson's statements that Fein
possessed a gun. He did not obtain a photograph of the gun
used. Fein was arrested in his vehicle, no gun was recovered,
and his home was not searched.
9 Fein testified in his defense and stated that on September
6, 2013, he was in the strip mall on Halsted with Adams, and
they were planning to "hit a lick, " which meant
that they were trying to swindle someone out of money. The
two of them were playing a "con game" called
"pigeon drop, " where they would deceive someone
out of money. But he denied using a gun because he did not
believe in guns and does not carry them.
10 Fein and Adams observed Anderson in the parking lot, and
when she got closer to them, they approached her and began
talking to her. Fein told her he was "Dave
Washington" and had just moved to Chicago from Iowa and
worked at a nearby store, Fairplay. In reality, Fein did not
work at Fairplay, and he was not "Dave from Iowa."
He told Anderson that he had found a wallet, which contained
almost $1000 in cash, and asked whether he would receive a
reward for turning it in. Anderson told him he should keep
the money. The wallet was actually Fein's own wallet with
his own cash inside it. Fein offered to give both Anderson
and Adams (who Fein pretended not to know) $225 in exchange
for them mailing the identification and credit cards found in
the wallet back to the owner.
11 Fein, Anderson, and Adams walked to a restaurant. Fein
then left Adams and Anderson and went into his "work,
" Fairplay, to get change for the money found in the
wallet. When he returned, he told Anderson and Adams that the
wallet additionally had $11, 000 in blank cashier's
checks and Fein and his boss intended to keep the
cashier's checks. However, Fein's boss offered to
give each woman $1000 in exchange for keeping quiet about the
wallet and its contents. Anderson and Adams both agreed, and
Anderson was excited about the prospect of getting $1000.
Fein sent Adams to Fairplay to talk to his boss, and she
returned shortly ...