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People v. Fein

Court of Appeals of Illinois, First District, Second Division

December 19, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MICHAEL FEIN, Defendant-Appellant.

         Appeal 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.

          OPINION

          MASON JUSTICE.

         ¶ 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 corrected.

         ¶ 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."[1] 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 money.

         ¶ 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 ...


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