FIRST DIVISION September 12, 2016

No. 1-14-2031

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 21817 ) ANTHONY STEPHENSON, ) Honorable ) William G. Lacey, Defendant-Appellant. ) Judge Presiding.

JUSTICE MIKVA delivered the judgment of the court, with opinion. Justices Cunningham and Harris concurred in the judgment and opinion.

OPINION

¶1 After a bench trial, defendant Anthony Stephenson was convicted of burglary and

possession of burglary tools and was sentenced to concurrent prison terms of nine and three

years, respectively. On appeal, Mr. Stephenson contends that the charging instrument was fatally

deficient based on its misidentification of the owner of the burglarized property. For the

following reasons, we affirm the judgment of the trial court.

¶2 BACKGROUND

¶3 Mr. Stephenson was charged by indictment with two counts of burglary and one count of

possession of burglary tools. The indictment for count 1 stated that Mr. Stephenson committed

the offense of burglary on or about October 24, 2013:

“[I]n that HE, KNOWINGLY AND WITHOUT AUTHORITY,

ENTERED A BUILDING, TO WIT: A WAREHOUSE BUILDING, THE

PROPERTY OF ANOTHER, TO WIT: ARONSON FURNITURE

CORPORATION, LOCATED AT 2020 NORTH AUSTIN AVENUE, IN No. 1-14-2031

CHICAGO, COOK COUNTY, ILLINOIS, WITH THE INTENT TO COMMIT

THEREIN A THEFT,

IN VIOLATION OF CHAPTER 720 ACT 5 SECTION 19-1(a) OF THE

ILLINOIS COMPILED STATUTES[.]”

¶4 Because Mr. Stephenson has focused his appeal on the adequacy of the charging

instrument, we will address the evidence presented at trial only to the extent necessary for an

understanding of the appeal.

¶5 The State presented two witnesses at trial: Keith Henderson, Jr., and Carlos Salvador,

both employees of Peter Aaronson. Each testified that Peter Aaronson owned the warehouse at

2020 North Austin Avenue (the warehouse). When asked whether Peter Aaronson was “of the

Peter Aronson Furniture Company,” Mr. Henderson responded “[n]o, it’s not.”

¶6 Mr. Henderson and Mr. Salvador testified that, at approximately 7:30 a.m. on October 24,

2013, they were driving together in a pickup truck when they saw three men coming out of the

main door of the warehouse, where only employees were permitted to be. Both Mr. Henderson

and Mr. Salvador testified that the three men did not have permission to be in the warehouse and

that they were carrying bags. Mr. Henderson and Mr. Salvador also both testified that one of the

three men was Mr. Stephenson, and they saw him carrying a fish tank with a hammer inside of it.

Mr. Henderson identified the fish tank, like nearly everything inside the warehouse, as property

of Peter Aaronson that was being stored there.

¶7 Mr. Henderson testified that, after noticing the men, he exited the pickup truck and asked

them where they were going. Two of them dropped what they had been carrying, walked to a

nearby van, and drove away. Mr. Henderson and Mr. Salvador followed the third man, Mr.

Stephenson, and witnessed him hide the fish tank by some bushes near the warehouse. They

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stated that Mr. Stephenson ran when he heard police sirens approaching. When the police

arrived, Mr. Salvador informed them that Mr. Stephenson ran into the alley. The police officers

apprehended Mr. Stephenson. In the meantime, Mr. Henderson retrieved the items that were

dropped by the other two men, which included bags of “pieces of copper, wire pipes, all that

stuff,” and power tools. Mr. Salvador testified that a wrench, a hammer, and bolt cutters, none of

which he recognized as coming from the warehouse, were also recovered.

¶8 The parties stipulated that, if called by the defense, Mr. Stephenson’s aunt, Brenda

Stephenson, would have testified that Mr. Stephenson was scheduled to do some work on her

home the day of the burglary and she had spoken to him that morning.

¶9 Mr. Stephenson testified on his own behalf. According to him, at approximately 7 a.m. on

October 24, 2013, he spoke with his aunt and then went to Home Depot to price merchandise for

finishing work at his aunt’s house. At some point later that morning he was about two blocks

away from 2020 North Austin Avenue when he was approached by an older man and a couple of

other men that he did not know. The individuals jumped out of a van and approached to question

him. According to Mr. Stephenson, when he began backing away from the men, they came

closer and surrounded him. He saw that they had a hammer and ran. Mr. Stephenson testified

that he was familiar with the warehouse but that he did not enter or take anything from the

warehouse that morning and was not with anyone who did.

¶ 10 The parties additionally stipulated to three of Mr. Stephenson’s prior convictions: a 2011

conviction for possession of a controlled substance, a 2007 conviction for unlawful use of a

weapon by a felon, and a 2006 conviction for possession of a controlled substance.

¶ 11 The trial court found Mr. Stephenson guilty on all counts and denied his motion for a new

trial. Mr. Stephenson was sentenced as a Class X offender to nine years in prison on the burglary

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counts, with count 2 merging into count 1, and three years for possession of burglary tools to run

concurrently with the burglary sentence, plus three years of mandatory supervised release.

¶ 12 JURISDICTION

¶ 13 Mr. Stephenson timely filed his notice of appeal in this matter on June 13, 2014, the same

day he was sentenced. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of

the Illinois Constitution (Ill. Const. 1970, art. VI, § 6), and Illinois Supreme Court Rules 603 and

606, governing appeals from a final judgment of conviction in a criminal case. (Ill. S. Ct. Rs.

603, 606 (eff. Feb. 6, 2013)).

¶ 14 ANALYSIS

¶ 15 Mr. Stephenson’s sole contention on appeal is that the charging instrument was facially

defective because it included a fatal variance from the evidence presented at trial: namely, that

while the indictment charged Mr. Stephenson with the burglary of the warehouse owned by

“Aronson Furniture Corporation” at 2020 North Austin Avenue, the evidence at trial

demonstrated that an unrelated individual named Peter Aaronson owned the warehouse at that

address.

¶ 16 “[A] defendant has a fundamental right to be informed of the nature and cause of criminal

accusations made against him.” People v. Espinoza,

, ¶ 15. Section 111-3(a) of

the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/111-3(a) (West 2012)) requires that

a charge be in writing and that it “allege the commission of an offense” by stating the name and

statutory provision of the offense, the nature and elements of the offense, the date and county

when and where the offense occurred, and the name of the accused.

¶ 17 Whether a charging instrument was sufficient is a question of law we review de novo.

Espinoza,

, ¶ 15. Because a failure to properly charge an offense implicates due

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process concerns, such a defect may be attacked at any time. People v. DiLorenzo,

(1996).

¶ 18 The timing of the challenge to the indictment “determines whether a defendant must

show that he was prejudiced by the defect in the charging instrument.” Espinoza,

, ¶ 23. If an indictment or information is challenged in a pretrial motion, it “must strictly

comply with the pleading requirements of section 111-3.” People v. Rowell,

(2008). However, if the defendant challenges the sufficiency of the charging instrument for the

first time on appeal, as Mr. Stephenson did here, it will be considered sufficient so long as “it

apprised the accused of the precise offense charged with sufficient specificity to prepare his

defense and allow pleading a resulting conviction as a bar to future prosecutions arising out of

the same conduct.” (Internal quotation marks omitted.) People v. Benitez,

(1996).

¶ 19 When challenged for the first time on appeal, a variance between the charging document

and the proof at trial is only fatal if it is material and could “ ‘mislead the accused in making his

defense or expose him to double jeopardy.’ ” People v. Davis,

(1980) (quoting

People v. Figgers,

(1962)). This is what Mr. Stephenson refers to as the

“Pujoue” test, based on People v. Pujoue,

(1975). Here, Mr. Stephenson has

failed to satisfy any part of this test.

¶ 20 First, the ownership of the premises burglarized was not material to the indictment. The

supreme court has held that ownership is not an element of the offense of burglary. People v.

Rothermel,

(1982); see also People v. Dotson,

(1994) (following Rothermel); People v. Escalante,

(1994) (holding

that “the lack of an allegation of ownership or possessory interest is not fatal to a charging

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instrument” for burglary); People v. Austin,

(1984) (“failure to allege

ownership or to prove ownership as alleged in a burglary charge does not defeat the charge

unless the defendant was harmed in preparing a defense”); People v. Tucker,

(1989) (noting that “ownership is no longer a required element of the crime of

burglary”).

¶ 21 Second, Mr. Stephenson has failed to demonstrate that the challenged variance prejudiced

the preparation of his defense in any way. Mr. Stephenson argues that there was “no way” for

him “to prepare his defense *** where the evidence at trial established that the property was

owned by Peter Aaronson.” This conclusory statement will be disregarded since it is unsupported

by legal analysis, citation to legal authority, or citation to the record. See Ill. S. Ct. R. 341(h)(7)

(eff. Feb. 6, 2013) (the argument section of an appellant’s brief “shall contain the contentions of

the appellant and the reasons therefor, with citation of the authorities and the pages of the record

relied on”); see also People v. Haissig,

(conclusory statements do

not constitute arguments pursuant to Rule 341(h)(7)).

¶ 22 Moreover, any suggestion of prejudice is belied by the record. Mr. Stephenson’s defense

was that he did not enter the warehouse, which had nothing to do with the identity of the

warehouse owner. A mistake in an indictment as to identity of a crime victim is not prejudicial

where, as here, the defense is a denial of the alleged criminal activity. See People v.

Montgomery,

(1981) (defendant charged with assaulting a police

officer was not prejudiced by fact that indictment named the wrong police officer where

defendant denied assaulting any officer with a gun); People v. Santiago,

(1996) (no prejudice where the information named wrong victim and defendant denied

any involvement in the armed robbery); see also Rothermel,

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(misidentification of owner of burglarized premises did not prejudice the preparation of defense

of entrapment).

¶ 23 Finally, Mr. Stephenson fails to demonstrate any risk of double jeopardy. Even if Mr.

Stephenson could look only to the indictment, the charging instrument contains a unique street

address, which alone would be sufficient to protect him from a second prosecution for this crime.

Moreover, as the supreme court recognized in Rothermel, testimony from the first trial can be

admitted in any subsequent prosecution, should it be necessary to support a defense of prior

jeopardy. Rothermel,

; see also Santiago,

(the time that

a charging document defined the “limits of jeopardy” has long since passed and a prior

prosecution can also be proved by the trial transcript and other evidence introduced at trial).

Thus, Mr. Stephenson is well protected against a subsequent prosecution for this offense.

¶ 24 Mr. Stephenson recognizes that he must overcome Rothermel, but argues that in both

Rothermel and Dotson, which followed Rothermel, there was a connection between the alleged

owner and the actual owner. This is correct, but irrelevant. As the court made clear in Rothermel,

an “inaccurate allegation of ownership” of the burglarized premises, when challenged for the

first time on appeal, does not defeat the charging instrument. Rothermel,

.

This court agrees with Mr. Stephenson that the record does not demonstrate any connection

between Peter Aaronson and Aronson Furniture Corporation and acknowledges that they are not

even spelled the same way. However, it does not matter how “inaccurate” the description is or

whether there was a connection between the named owner and the real owner, as in Rothermel,

or no connection at all, as in this case. Rather, at this point, Mr. Stephenson must show that

ownership was an element of the charged crime and that he was prejudiced in his defense or at

risk of double jeopardy. He has shown none of these and that is fatal to his appeal.

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¶ 25 Mr. Stephenson relies heavily on Espinoza,

, which was decided while

his appeal was pending. In that case, the supreme court affirmed the appellate court’s dismissal

of the criminal complaints in two cases, based upon the insufficiency of charging instruments

that failed to identify the victims by name. Id. ¶ 1. The defendants had challenged the charging

documents prior to trial. Id. ¶¶ 4-5, 9. Because of the timing of their challenge, this meant that

they were not required to show prejudice and that the documents used to charge them had to

strictly comply with the pleading requirements of section 111-3 of the Code. Id. ¶ 23. That alone

makes this case quite different than Espinoza.

¶ 26 Additionally, in the cases consolidated under Espinoza, one defendant was charged with

domestic battery and the other was charged with endangering the life and health of a child, both

“crimes on which the impact is focused upon an individual” and therefore “the identity of the

victims was an essential allegation of the charging instruments.” Id. ¶ 20. Conversely, Mr.

Stephenson was charged with burglary, a crime against property, and our supreme court in

Rothermel held that the identity of the property owner is not an element of this crime. Rothermel,

.

¶ 27 Mr. Stephenson cites Espinoza for the proposition that a charging instrument for the

offense of burglary is necessarily deficient if it fails to correctly identify the complainant, but we

disagree with his reading of that case. The opinion in Espinoza includes the sweeping statement

that “ ‘[w]here an indictment charges an offense either against persons or property, the name of

the person or property injured, if known, must be stated, and the allegation must be proved as

alleged.’ ” Espinoza,

(quoting People v. Walker,

(1955)).

That broad statement is dicta to the extent that it references property crimes since those were not

at issue in Espinoza. The court in Rothermel noted that the Walker case, which was quoted and

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relied on by the court in Espinoza, was a throwback to a time when an “allegation of ownership

was *** indispensable in charging burglary.” Rothermel,

. In reading these cases

together, this court concludes that the Espinoza court did not intend to question the holding in

Rothermel that the identity of the complainant in a burglary case is not a material element of a

charging instrument. Thus, the fact that burglary is a crime against property, where the identity

of the property owner is not a necessary element, is a second reason that Espinoza cannot help

Mr. Stephenson in this case.

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, we affirm the judgment of the trial court.

¶ 30 Affirmed.

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