People v. Perry

Docket No. 101612.

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant, v.

MICHAEL L. PERRY, Appellee.

Opinion filed February 16, 2007.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Chief Justice Thomas and Justices Freeman, Karmeier and Burke

concurred in the judgment and opinion.

Justice Fitzgerald dissented, with opinion, joined by Justice

Kilbride.

OPINION

After a jury trial in the circuit court of Du Page County, defendant

Michael L. Perry was convicted of theft by deception (720 ILCS

5/16–1(a)(2) (West 2000)). Based on the value of the stolen property,

his crime was classified as a Class 2 felony and he was sentenced to a

term of six years’ imprisonment and ordered to pay restitution. 720

ILCS 5/16–1(b)(5) (West 2000). On appeal, the court held that he

could be convicted only of the lesser offense of theft of property

valued in excess of $300, but less than $10,000 (720 ILCS

5/16–1(b)(4) (West 2000)), a Class 3 felony, and remanded for a new

sentencing hearing. 361 Ill. App. 3d 703. We granted the State’s

petition for leave to appeal, under Rules 315 and 604(a)(2) (210 Ill.

2d Rs. 315, 604(a)(2)), to determine whether defendant was properly

convicted of theft of property valued in excess of $10,000 when the

property at issue was the occupancy of a hotel room for a period of

more than three months. In addition, we consider defendant’s request

for cross-relief on his claim of ineffective assistance of trial counsel.

BACKGROUND

Defendant, along with his wife and children, occupied a suite at

the Embassy Suites hotel in Lombard, Illinois, from January through

April 2000. The testimony at trial revealed that after staying at the

hotel for several weeks, defendant sought to negotiate a reduced rate

for the room. He also requested that the cost of his stay be billed to a

company of which he was the president, Prolific Development

Corporation (Prolific). He provided several trade references and a

credit card in the name of Bryan Green.

The hotel manager drafted a document headed “RATE

AGREEMENT February 2000–December 30, 2000.” The agreement

provided for a rate of $130 per night for a two-room suite, with a

minimum stay of 100 nights “on an annual basis.” Both parties signed

the agreement. Several days thereafter, the hotel controller sent a

letter to defendant at the address he had provided for Prolific,

confirming that billing statements would be sent to the corporate

address and that the hotel’s “net terms are 30 days from each

statement date.”

After four bills sent to the business address went unpaid, the

hotel’s controller slid a letter under defendant’s hotel room door. The

letter noted that payment was more than 60 days past due and that the

balance on the account was over $12,000. Defendant did not respond

to the letter.

Eventually, it was revealed that the person defendant identified as

the contact person for Prolific was not actually connected with the

company. The hotel was also unable to contact the company using the

e-mail address provided by defendant. Bills and letters that had been

sent to the business address were returned to the hotel by the post

office in a single envelope marked “Address Unknown.” When the

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trade references were eventually contacted, one reported that

defendant did not have a valid account. Another reported that

defendant was not in good standing and owed it money.

At various times, defendant explained to members of the hotel

staff that he was having problems with the post office, that he had

submitted the bill to his accountant for payment, that payment would

be made by May 9, 2000, that payment would arrive “any day,” and

that the check was being “cut from another company” about which he

was unable to provide any information.

On the afternoon of May 12, 2000, the hotel contacted the

Lombard police department. An officer responded and, along with

several members of the hotel staff, went to defendant’s room to speak

to him. He was not present, so they left a message with his wife.

Defendant did not respond to the message.

During the night shift on May 13, 2000, defendant and his family

vacated the hotel room without checking out or settling the bill.

Although defendant paid a small portion of his bill by credit card

during the early part of his stay, the unpaid balance for the room,

restaurant, laundry services, telephone, and other charges exceeded

$15,000. An attempt by the hotel to charge some of these expenses to

the credit card in the name of Bryan Green, which defendant had

provided earlier, was unsuccessful because the individual named on

the credit card disputed the charges.

A Du Page County grand jury returned an indictment charging

defendant with theft by deception “of property exceeding $10,000 and

not exceeding $100,000 in value.” 720 ILCS 5/16–1(a)(2), (b)(5)

(West 2000). He remained free on bond but failed to appear on

January 9, 2001. The following month, he was taken into custody in

Georgia. He was returned to Illinois in April 2001.

After a jury trial, defendant was convicted of the theft and

sentenced accordingly. 720 ILCS 5/16–1(b)(5) (West 2000). The

additional charge of violating his bail bond and failing to appear was

nol-prossed by the State.

ANALYSIS

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Part C of the Criminal Code of 1961 codifies the law of offenses

against property. Article 15 therein defines various statutory terms

used elsewhere in part C, including the term “property.” Article 16

defines theft and related offenses. Defendant was charged with theft

under section 16–1:

“(a) A person commits theft when he knowingly:

***

(2) Obtains by deception control over property of the

owner; ***

***

*** and

(A) Intends to deprive the owner permanently of

the use or benefit of the property[.]” 720 ILCS

5/16–1(a)(2)(A) (West 2000).

Depending on the value of the stolen property and other facts, the

crime of theft may be punished as a Class A misdemeanor, a Class 4,

3, 2, or 1 felony, or a Class X felony. 720 ILCS 5/16–1(b) (West

2000). “Theft of property exceeding $10,000 and not exceeding

$100,000 in value is a Class 2 felony.” 720 ILCS 5/16–1(b)(5) (West

2000). “When a charge of theft of property exceeding a specified

value is brought, the value of the property involved is an element of

the offense to be resolved by the trier of fact as either exceeding or

not exceeding the specified value.” 720 ILCS 5/16–1(c) (West 2000).

“Property” is defined in section 15–1 as follows:

“ ‘[P]roperty’ means anything of value. Property includes

real estate, money, commercial instruments, admission or

transportation tickets, written instruments representing or

embodying rights concerning anything of value, labor, or

services, or otherwise of value to the owner; things growing

on, affixed to, or found or land, or part of or affixed to any

building; electricity, gas and water; telecommunications

services; birds, animals and fish, which ordinarily are kept in

a state of confinement; food and drink; samples, cultures,

microorganisms, specimens, records, recordings, documents,

blueprints, drawings, maps, and whole or partial copies,

descriptions, photographs, computer programs or data,

prototypes or models thereof, or any other articles, materials,

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devices, substances and whole or partial copies, descriptions,

photographs, prototypes, or models thereof which constitute,

represent, evidence, reflect or record a secret scientific,

technical, merchandising, production or management

information, design, process, procedure, formula, invention,

or improvement.” 720 ILCS 5/15–1 (West 2000).

Relying on People v. Davis, 203 Ill. App. 3d 838 (1990), the

appellate court concluded that the occupancy of a hotel room is not

“property” as that term is defined in section 15–1. As a result, the

stolen property consisted only of food and other incidentals obtained

by defendant, valued at over $300, but less than $10,000, and

punishable as a Class 3 felony. 720 ILCS 16–1(b)(4) (West 2000).

The Davis defendants were indicted for theft of property after it

was alleged that they instructed city employees to engage in political

activities such as the collection of absentee ballots during time that

they were being paid by the City of East St. Louis to work on a public

works project. Davis, 203 Ill. App. 3d at 841. The trial court

dismissed the indictments on the basis that the labor of an employee

is not the property of the employer and, thus, diversion of the

employee’s labor is not a theft. Davis, 203 Ill. App. 3d at 841-42.

The appellate court affirmed the dismissal of the indictments for

several reasons. The court noted that “[a]t common law, only tangible

personal property could be the subject of larceny” (Davis, 203 Ill.

App. 3d at 844), and that section 15–1 was intended to add to this

definition “things not embraced by larceny under common law.” The

court concluded that the statutory definition of property in section

15–1 includes only tangible personal property that was subject to

larceny at common law, indicated by the phrase “anything of value,”

and those other items specifically enumerated in the following

sentence. Further, the court stated that section 15–1 “only lists items

which may be physically possessed and carried away.” Davis, 203 Ill.

App. 3d at 845.

In addition, the Davis court relied on the canon of construction

that “[l]egislation in derogation of the common law is usually strictly

construed.” Thus, the court stated, the word “includes” in section

15–1 “should be considered an enumeration excluding all other things

not in the specific category.” Davis, 203 Ill. App. 3d at 846. Finally,

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the court noted that “[c]riminal or penal statutes are to be strictly

construed in favor of the accused.” Davis, 203 Ill. App. 3d at 846.

In the present case, the appellate court noted that except for the

subsequent addition of the term “telecommunications services,”

section 15–1 is identical to the statute at issue in Davis. 361 Ill. App.

3d at 712. The appellate court concluded that the Davis court

“implicitly recognized that the word ‘includes’ as used in section 15–1

was ambiguous” because the Davis court noted that this word “has

more than one reasonable meaning” and thereafter resolved the

ambiguity by employing the rule that a statute in derogation of the

common law must be strictly construed. 361 Ill. App. 3d at 712. The

appellate court then found that “this resolution of the ambiguity was

the proper one because it limits the expansion of the common-law

definition.” 361 Ill. App. 3d at 713.

Further, the appellate court reasoned that the “structure of section

15–1 also supports this conclusion.” The legislature could have used

two sentences instead of one, but instead of saying that property is

“anything of value including” a list of examples, the legislature chose

to use a separate sentence beginning with the phrase “[p]roperty

includes.” This structure, the appellate court concluded, “was intended

to convey that the items specifically enumerated were in addition to,

not part of, the general class.” 361 Ill. App. 3d at 713. The appellate

court also observed that the legislature has not amended the statute

subsequent to Davis, so it may be presumed that it has “acquiesced in

the court’s interpretation of legislative intent.” 361 Ill. App. 3d at 714.

Because the use of a hotel room is neither tangible personal property

nor one of the items specifically enumerated in section 15–1, the

appellate court held that the right to use a hotel room is not property

that can be stolen by deception under section 16–1.

Before this court, the State argues that the right to occupy a hotel

room is property as that term is defined in section 15–1 of the

Criminal Code because the leasehold interest created by renting a

hotel room is a chattel, which falls under the common law definition

of property that has been incorporated into section 15–1. The State

also argues that the term “includes” in section 15–1 was not intended

to limit the scope of the statutory definition to the enumerated items

but, rather, to illustrate the types of property that the legislature

intended to include in an expanded definition of property.

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The principles guiding our analysis are well established. Our

primary objective is to ascertain and give effect to legislative intent,

the surest and most reliable indicator of which is the statutory

language itself, given its plain and ordinary meaning. Illinois Graphics

Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). In determining the plain

meaning of statutory terms, we consider the statute in its entirety,

keeping in mind the subject it addresses and the apparent intent of the

legislature in enacting it. People v. Davis, 199 Ill. 2d 130, 135 (2002).

Where the language of the statute is clear and unambiguous, we must

apply it as written, without resort to extrinsic aids to statutory

construction. People v. Collins, 214 Ill. 2d 206, 214 (2005).

If the language is ambiguous, making construction of the language

necessary, we construe the statute so that no part of it is rendered

meaningless or superfluous. People v. Jones, 214 Ill. 2d 187, 193

(2005). We do not depart from the plain language of the statute by

reading into it exceptions, limitations, or conditions that conflict with

the expressed intent. People v. Martinez, 184 Ill. 2d 547, 550 (1998).

The traditional canons or maxims of statutory construction are not

rules of law, but rather are “merely aids in determining legislative

intent and must yield to such intent.” In re Application of the County

Treasurer, 214 Ill. 2d 253, 259 (2005).

In the present case, we are called upon to review the appellate

court’s construction of sections 15–1 and 16–1 of the Criminal Code

(720 ILCS 5/15–1, 16–1 (West 2000)). The construction of a statute

is a question of law, which we review de novo. People v. Donoho, 204

Ill. 2d 159, 172 (2003).

Whether the Occupancy of a Hotel Room Is “Property”

At common law, the crime of larceny was “the felonious stealing,

taking and carrying, leading, riding or driving away the personal

goods of another *** with the felonious intent to deprive the owner

of his property.” People v. Pastel, 306 Ill. 565, 568 (1923). Under this

traditional definition of larceny, the occupancy of a hotel room clearly

could not have been the subject of the crime.

Eventually, the common law crimes were codified by statute. As

the State correctly notes, for at least 50 years prior to the adoption of

the Criminal Code of 1961, some items that would not have been

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subject to the crime of larceny at common law were nevertheless

property subject to statutory theft. For example, in Moline Water

Power Co. v. Cox, 252 Ill. 348 (1911), this court held that water

power created by a waterfall was property under the theft statute at

the time. This court explained:

“[Water] [p]ower is not a chattel. It is not a tangible entity. It

manifests itself only by its results. But it is property, and is

bought and sold in the market as freely as the products of the

farm. At common law it could not be the subject of larceny,

which must be of goods and chattels, but it is now protected

by statute to the same extent as other forms of property, and

the unauthorized connection of any gas, water or electric

current with a motor or other appliance is a misdemeanor,

punishable by law. (Crim. Code, par. 117.) The use of a fall of

water artificially impounded is that taking of that which has

been produced by the combination of artificial means and

natural forces, and partakes of the nature of a profit à

prendre. It is, in fact, an interest in the aggregate of rights

constituting the water power, which is real estate.” Moline

Water Power, 252 Ill. at 357.

Similarly, in People v. Menagas, 367 Ill. 330, 336 (1937), this

court held that the defendant was properly charged with larceny of

electrical energy because larceny under the Criminal Code (Ill. Rev.

Stat. 1935, ch. 38, par. 380) had wider application than at common

law. The larceny statute then said, “ ‘Larceny shall embrace every

theft which deprives another of his money or other personal property,

or those means or muniments by which the right and title to property,

real or personal, may be ascertained.’ ” Menagas, 367 Ill. at 336,

quoting Ill. Rev. Stat. 1935, ch. 38, par. 380.

Our Criminal Code underwent revision in 1961 and the section

dealing with crimes against property was entirely reorganized.

“ ‘Formerly, in Illinois, there were some seventy-four separate

sections which dealt in one form or another with the obtaining

of property of another with the intent to permanently deprive

such other or the true owner of the property or its beneficial

use. All lawyers and judges are too familiar with the highly

technical differences between larceny, larceny by trick,

embezzlement, false pretenses, confidence game, and the many

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variations to require detailed comment. Suffice to say that,

with the exception of robbery, burglary, arson, and criminal

damage and trespass to property, which are covered

respectively in Articles 18, 19, 20 and 21, the Committee

intended to codify the entire range of offenses against property

into Articles 16 and 17, and to abolish completely the labels

and highly technical distinctions which had developed through

centuries of case law and statutory amendments.’ ” People v.

McCarty, 94 Ill. 2d 28, 34 (1983), quoting Ill. Ann. Stat., ch.

38, art. 16, Committee Comments–1961, at 18 (Smith-Hurd

1977).

With this background in mind, we turn to the question of whether

the use of a hotel room is property that can be the subject of theft by

deception under section 16–1. We note that this inquiry requires the

interpretation of two separate statutes. First, we must determine

whether the use of a hotel room is property under section 15–1.

Second, if the answer to the first question is yes, we must determine

whether one who obtains such property by deception can be charged

under section 16–1.

The Davis court and the appellate court in the present case seem

to have conflated these two inquiries. Section 15–1 does not define

the term “property” only as that term is used in section 16–1. It

defines the term “property” as it is “used in this Part C.” 720 ILCS

5/15–1 (West 2000). Part C is titled “Crimes Against Property.” In

addition to the crimes of theft, robbery, burglary, and arson (720

ILCS 5/16–1, 18–1, 19–1, 20–1 (West 2000)), which were known at

common law, part C defines offenses such as computer crime, wireless

service theft, and financial identity theft (720 ILCS 5/16D–1, 16F–13,

16G–15 (West 2000)). Part C is clearly intended to be broad in scope.

The first sentence of section 15–1 states that the word “property”

as it is used in part C “means anything of value.” The appellate court,

relying on Davis, limited the meaning of “anything” to items of

tangible personal property. Because part C encompasses much more

than the crime of theft, we must examine the definition of property in

section 15–1 without regard to what types of property might or might

not have been subject to larceny at common law. See Concrete

Materials Corp. v. Gordon, 395 Ill. 203, 207-08 (1946) (common law

definitions must yield to definitions of employee, employer, and

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employment contained in the Unemployment Compensation Act); see

also 34 Ill. L. & Prac. Statutes §51 (2001) (“The General Assembly

has the power to make a reasonable definition of the terms used in an

act, even though such definitions do not correspond with those

contained in other acts. Statutory definitions control in the

construction of the terms of an act, and the common-law definitions

of those terms must yield to the statutory definitions”).

The plain meaning of the first sentence of section 15–1 is that

“property,” when that term is used in any provision of part C of the

Criminal Code, does indeed include any thing of value.

We note that the Davis court inaccurately stated that section 15–1

“only lists items which may be physically possessed and carried away.”

Davis, 203 Ill. App. 3d at 845, citing People v. Zakarian, 121 Ill.

App. 3d 968, 972-73 (1984). Zakarian, in turn, relied on cases that

predated the adoption of the Criminal Code of 1961. According to the

Zakarian court, the test of whether property is embraced by the theft

statute “is not whether the property is corporeal or incorporeal or

tangible or intangible. Rather, it is whether the property is capable of

being taken and carried away by someone other than the owner.”

Zakarian, 121 Ill. App. 3d at 972-73 (citing Menagas, 367 Ill. 330,

and Woods v. People, 222 Ill. 293 (1906)).

The legislature’s inclusion, in 1961, of real estate and electricity

and, in 1994, of telecommunications services in the statutory

definition of property encompassed by the theft statute did away with

this ancient rule. Real estate cannot be taken and carried away, yet it

is “property” under section 15–1. Similarly, electricity and

telecommunications services can be stolen but cannot be taken and

carried away. See Menagas, 367 Ill. at 336-38 (describing the test for

whether an item is personal property as whether it may “be taken and

carried away,” “transported from place to place,” and “bought and

sold like other personal property,” but noting that real property may

also be the subject of larceny).

The phrase “anything of value” is unambiguous. Clearly, the

legislature intended to expand the definition of property to include not

only items of tangible personal property but also other things of value

such as real estate, electricity, and telecommunications services. The

hospitality industry provides lodging to the public for profit. The

market for hotel and motel rooms is vast. The use of a hotel room

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does have value. See Moline Water Power, 252 Ill. at 357 (stating that

water power is property because it “is bought and sold in the market

as freely as the products of the farm”). We conclude that the use of a

hotel room is a thing of value as that phrase is used in the first

sentence of section 15–1.

The appellate court, however, construed the word “includes” in

the second sentence of section 15–1 to limit the types of “things” that

come within the definition of property. The State argues that the

weight of authority favors interpreting “includes” as a term of

enlargement or illustration. Defendant argues that the appellate court

properly construed the term as one of limitation.

Article 2 of the Criminal Code of 1961 contains “General

Definitions.” Section 2–10, which was not cited to this court by either

party, states:

“ ‘Includes’ or ‘including’ means comprehending among

other particulars, without limiting the generality of the

foregoing word or phrase.” 720 ILCS 5/2–10 (West 2000).

Although there have been no cases interpreting or applying this

definition, its meaning is unmistakable. Either of these words, when

followed by a listing of items, means that the preceding general term

encompasses the listed items, but the list is not exhaustive. The

preceding general term is to be construed as a general description of

the listed items and other similar items.

Based on this statutory definition, we conclude that in enacting

section 15–1 the legislature intended the definition of property to

include not only items of tangible personal property, but also other

things of value. The enumerated items are illustrative of types of

property that would not have been within the scope of the traditional

common law definition of property that could be the subject of

larceny, but are within the scope of part C of the Criminal Code.

In light of this statutory definition, we reject the appellate court’s

suggestion that the term “includes” in section 15–1 is ambiguous

because the words “but is not limited to” are not present. 361 Ill. App.

3d at 712, citing Davis, 203 Ill. App. 3d at 846 (“Although the word

‘include’ does not by itself necessarily limit general language, cases

which support a broad or enlarging interpretation for the term

‘include’ do so in order to give effect to a legislative intent to provide

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as large an access as possible to the general term. [Citation.] The

word ‘include’ is sometimes used to add to the general class a species

which does not naturally belong to it. [Citation.] In this case, the items

listed after ‘includes’ should be considered an enumeration excluding

all other things not in the specific category”). The appellate court

concluded that because the word “includes” is sometimes used to

expand a general term and is sometimes used to enumerate specific

items to be added to the general term, it is ambiguous. The court

noted that if the legislature had intended for the items following the

word “includes” to be merely illustrative of items of property, “it

could have written ‘property is anything of value including.’ ” Based

on the lack of such language and the fact that the “includes” language

is in a separate sentence from the “anything of value” language, the

court concluded that the second sentence “was intended to convey

that the items specifically enumerated were in addition to, not part of,

the general class.” 361 Ill. App. 3d at 713.

The legislature has on many occasions used the phrases “including

but not limited to” or “includes but is not limited to” to indicate that

the list that follows is intended to be illustrative rather than exhaustive.

An electronic search of the Illinois Compiled Statutes reveals 1749

statutes using the phrase “including but not limited to” and 249

containing the phrase “includes but is not limited to.” Over a dozen of

these provisions are contained in part C of the Criminal Code of 1961,

“Offenses Against Property.” See, e.g., 720 ILCS 5/16–1.3, 16–18,

16–21, 16A–2.8, 16D–2, 16F–2 (West 2004).

We conclude, however, that even in the absence of the phrase “but

is not limited to,” the plain, ordinary, and popularly understood

meaning of the term “includes” does not support the appellate court’s

conclusion. In determining the plain meaning of a statutory term, it is

entirely appropriate to look to the dictionary for a definition. See, e.g.,

People v. Brooks, 221 Ill. 2d 381, 390-91 (2006) (using dictionaries

to provide the definition of the word “docket”); People v. Hari, 218

Ill. 2d 275, 292-93 (2006) (using dictionaries to provide the definition

of the word “involuntary”); U.S. Bank National Ass’n v. Clark, 216

Ill. 2d 334, 347 (2005) (using dictionaries to provide the definition of

the word “compensation”).

According to Black’s Law Dictionary, “include” means:

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“To contain as a part of something. The participle

including typically indicates a partial list <the plaintiff asserted

five tort claims, including slander and libel>. But some drafters

use phrases such as including without limitation and including

but not limited to–which mean the same thing.” (Emphases in

original.) Black’s Law Dictionary 777-78 (8th ed. 2004).

The law dictionary refers the reader to the term “namely,” which

means:

“By name or particular mention; that is to say <the plaintiff

asserted two claims, namely wrongful termination and

slander>. The term indicates what is to be included by name.

By contrast, including implies a partial list and indicates that

something is not listed.” (Emphasis in original.) Black’s Law

Dictionary 1049 (8th ed. 2004).

Similarly, the editor of Black’s Law Dictionary observes in

another work that:

“[I]ncluding is sometimes misused for namely. But it

should not be used to introduce an exhaustive list, for it

implies that the list is only partial. In the words of one federal

court, ‘It is hornbook law that the use of the word including

indicates that the specified list ... is illustrative, not exclusive.’

Puerto Rico Maritime Shipping Auth. v. I.C.C., 645 F.2d

1102, 1112 n.26 (D.C. Cir. 1981).” (Emphases in original.) B.

Garner, A Dictionary of Modern Legal Usage 431 (1995).

Given the statutory definition of “includes” in section 2–10 and the

plain and ordinary meaning of the word, the absence of additional

verbiage such as “but not limited to” does not render section 15–1

ambiguous. In this section, the word “includes” is used to introduce

a list of things of value that illustrate the meaning of the general term

“property.”

Defendant notes that the legislature has not changed the definition

of property in the wake of Zakarian and Davis and argues that, if

these cases had improperly construed section 15–1, the legislature

would have acted to correct the error. He cites no authority for this

proposition. This court has stated that “ ‘[w]here the legislature

chooses not to amend a statute after a judicial construction, it will be

presumed that it has acquiesced in the court’s statement of the

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legislative intent.’ ” Zimmerman v. Village of Skokie, 183 Ill. 2d 30,

50 (1998), quoting Miller v. Lockett, 98 Ill. 2d 478, 483 (1983). This

presumption, however, is merely a jurisprudential principle; it is not

a rule of law. The fact the legislature has not amended the definition

of property in the years since Zakarian (1984) and Davis (1990) were

decided is of little weight when the meaning of the statute is

unambiguous.

We note, further, that Zakarian and Davis have not been

extensively relied upon by Illinois courts. The appellate court’s

decision in the present case is the only published Illinois decision to

cite Davis for its discussion of the meaning of “property” in the theft

statute. Davis, in turn, is the only published Illinois decision to cite

Zakarian for this purpose. Our decision in the present case necessarily

overrules Zakarian, 121 Ill. App. 3d 968, and Davis, 203 Ill. App. 3d

838, with respect to the definition of the term “property” in the theft

statute. The Davis court’s conclusion that the labor of an employee

does not belong to the employer is unaffected. Davis, 203 Ill. App. 3d

at 841-42.

Because we hold that the use of a hotel room is a thing of value

and is, thus, within the statutory definition of property in section 15–1,

we need not consider whether registration as a guest in a hotel creates

a leasehold interest that would be considered a chattel real at common

law, as argued by the State, or an interest in real estate.

We respond briefly to the appellate court’s application of the

canon of construction that a statute in derogation of the common law

must be strictly construed. Davis, 203 Ill. App. 3d at 846. “The rule

in Illinois is that statutes in derogation of the common law are to be

strictly construed in favor of persons sought to be subjected to their

operation.” Barthel v. Illinois Central Gulf R.R. Co., 74 Ill. 2d 213,

220 (1978). Thus, in Barthel, this court declined to construe the

Public Utility Act to abrogate the common law defense of

contributory negligence because it did not plainly appear to be the

intent of the legislature to do so. Barthel, 74 Ill. 2d at 221.

In the present case, the statutory terms “property” and “includes”

are unambiguously defined. As noted above, a court will not engage

in statutory construction if the statutory language is unambiguous.

Collins, 214 Ill. 2d at 214 (where the language of the statute is clear

and unambiguous it will be applied as written, without resort to

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extrinsic aids to statutory construction). See also 34 Ill. L. & Prac.

Statutes §50 (2001) (“The purpose of all rules or maxims adopted by

the courts for the construction or interpretation of statutes is to

discover the true intent and meaning of the law. These rules or

maxims are not rules of law, but are merely aids used by the courts in

arriving at the real intention of the legislature when that intention is

not clearly manifest from the language used. These rules are useful

only in cases of doubt, and are never to be used to create a doubt, but

only to remove it”). Thus, the maxim of strict construction has no

application.

Similarly, the rule of lenity need not be employed. Under this

canon of statutory construction, “penal statutes, where ambiguous,

should be construed to afford lenity to the accused.” People v. Hicks,

164 Ill. 2d 218, 222 (1995). In such a circumstance, the penal statute

must be strictly construed in favor of the accused, with nothing taken

by intendment or implication beyond the obvious or literal meaning of

the statute. People v. Laubscher, 183 Ill. 2d 330, 337 (1998). Because

section 15–1 is not ambiguous, there is no need for construction and

the rule of lenity is not implicated.

The Requirement of Permanent Deprivation of Property

Having concluded that section 15–1 was intended to broaden the

definition of property and that the use of a hotel room is property

within the meaning of this statute, we turn to the separate question of

whether such property may be the subject of theft by deception under

section 16–1 of the Criminal Code.

Section 16–1(a)(2) provides that a person commits theft when he

knowingly obtains control of the property of another by deception.

720 ILCS 5/16–1(a)(2) (West 2000). So long as one of the three

required mental states is present, the crime of theft is complete.

Defendant was charged under section 16–1(a)(2)(A), the intent “to

deprive the owner permanently of the use or benefit of the property.”

720 ILCS 5/16–1(a)(2)(A) (West 2000).

In addition to defining “property,” section 15 defines other terms

used in section 16–1(a)(2)(A). See 720 ILCS 5/15–2 (defining

“Owner”); 15–3 (defining “Permanent Deprivation”); 15–4 (defining

“Deception”); 15–8 (defining “Obtains Control”) (West 2000).

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The parties do not dispute that the hotel is the owner of the

property, the meaning of the term “deception,” or that defendant

obtained control over the hotel room during the period of his

occupancy. The question is whether, when the property at issue is the

use of a hotel room, it is possible to permanently deprive the owner of

its use or benefit. If not, defendant cannot be convicted under section

16–1(a)(2)(A) for its theft.

“Permanent Deprivation,” as used in part C of the Criminal Code,

means to:

“(a) Defeat all recovery of the property by the owner; or

(b) Deprive the owner permanently of the beneficial use of

the property; or

(c) Retain the property with intent to restore it to the

owner only if the owner purchases or leases it back, or pays a

reward or other compensation for its return; or

(d) Sell, give, pledge, or otherwise transfer any interest in

the property or subject it to the claim of a person other than

the owner.” 720 ILCS 5/15–3 (West 2000).

In the present case, only (a) or (b) are potentially applicable.

The State cites People v. Collins, 106 Ill. 2d 237, 261 (1985), in

support of its argument that a rational trier of fact could have found

that defendant intended to permanently deprive the hotel of the use or

benefit of a leasehold interest. Because the trier of fact may deduce

the intent to permanently deprive the owner of property “ ‘from the

facts and circumstances surrounding the alleged criminal act’ ”

(quoting People v. Veasey, 251 Ill. App. 3d 589, 591-92 (1993)), the

State argues that the jury properly inferred that defendant intended

permanent deprivation when he provided a false billing address and

false trade references and made false promises to pay his bill. Thus,

the State would treat the issue of permanent deprivation as a question

of fact.

Defendant’s position is that under section 16–1(a)(2), the thing

that is taken by deception from the owner must not only be property

within the meaning of 15–1, but must also be property of which the

owner can be permanently deprived. Defendant states that he and his

family:

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“took over temporary use of a suite for a three-month period.

... They did not obtain permanent control over what the hotel

owned, ... but rather they made use of hotel property, which

was available for hire for about $130 per night. The hotel was

thereby precluded from making the room available to any

other lodger for each night in that period. But the hotel did

not permanently lose possession of the suite or its rights

thereto.” (Emphases added.)

We agree with defendant that the question presented–whether the

one who uses deception to obtain control of a hotel room for three

months has permanently deprived the owner of the beneficial use of

the property–is one of law. However, defendant is mistaken when he

suggests that the statute requires permanent control by the defendant

or permanent loss of possession by the owner.

The property at issue here is the use of a hotel room. The hotel’s

complement of rooms can be analogized to a store’s inventory of

goods. The hotel has a finite number of rooms, which it can rent to

members of the public 365 nights each year. One night in one room is

a thing of value. When this thing of value is taken by deception, the

owner has permanently lost the benefit of one night’s income. We,

therefore, hold that each night of occupancy that is obtained by

deception permanently deprives the owner of the beneficial use of the

hotel room within the meaning of section 15–3(b) (720 ILCS

5/15–3(b) (West 2000)).

Defendant acknowledges that even though the hotel “was deprived

of the rental value it should have received for the room on each of the

nights” that he and his family occupied the suite, the record does not

provide a basis to conclude that the suite would have been rented to

another guest who would have paid at least $130 per night. He cites

no authority for the proposition that in addition to proving that the

value of the property involved exceeded $10,000 (720 ILCS

5/16–1(c) (West 2000)), the State has the burden of proving that the

suite would have been occupied by a paying customer if defendant and

his family had not been there.

It is well-settled law that the value of stolen property is the fair

cash market value at the time and place of the theft. See, e.g., People

v. Josephine, 165 Ill. App. 3d 762, 764 (1987); People v. Moore, 109

Ill. App. 3d 874, 877 (1982); People v. Brown, 36 Ill. App. 3d 416

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(1976). The rate of $130 per night negotiated by defendant was a

discounted rate. The record supports a finding that the value of the

stolen property exceeded $10,000.

Theft Versus Use of Property

Defendant also argues that he cannot be prosecuted under section

16–1 for the theft by deception of the use of a hotel room because that

offense is codified at section 16–3(a) (720 ILCS 5/16–3 (West 2000))

and must be charged as such.

Section 16–3(a) provides:

“A person commits theft when he obtains the temporary

use of property, labor or services of another which are

available only for hire, by means of threat or deception or

knowing that such use is without the consent of the person

providing the property, labor or services.” 720 ILCS 5/16–3

(West 2000).

Violation of this section is punishable as a Class A misdemeanor. 720

ILCS 5/16–3(c) (West 2000).

The question of law which we must answer is whether the two

offenses are mutually exclusive, or whether under the facts of this

case, the State properly charged defendant under section 16–1. We

begin with a comparison of the elements of the two crimes.

Section 16–1(a)(2)(A) requires that the defendant: (1) knowingly

obtain control, (2) over the property of the owner, (3) by deception,

(4) with the intent to permanently deprive the owner of the use or

benefit of the property. The State must also prove (5) the value of the

stolen property in order to establish the grade of the offense. 720

ILCS 5/16–1(b) (West 2000). Section 16–3(a) requires that he (1)

obtain the temporary use of property, (2) that is available only for

hire, (3) by threat or deception or knowing that the owner has not

consented. 720 ILCS 5/16–3(a) (West 2000).

Each offense requires proof of one or more elements not required

of the other. To convict a defendant of section 16–1 theft, the State

need not prove that the property is available only for hire. To convict

a defendant of section 16–3 theft, the State need not prove either the

intent to permanently deprive the owner of the use or benefit of the

property or the value of the property.

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Nevertheless, defendant argues that the use of deception to obtain

the temporary use of property that is available only for hire, such as

a hotel suite, may be prosecuted only under section 16–3. He asserts

that section 16–3 is “directed at precisely the sort of conduct” in

which he allegedly engaged and that the legislature intended such

conduct to be punished as a Class A misdemeanor. See Davis, 203 Ill.

App. 3d at 844 (holding that section 16–3 did not apply to the

defendants’ conduct of diverting the labor of city employees to their

own purposes because section 16–3 is “intended to protect businesses

from the unscrupulous practices of prospective customers”).

Defendant also calls our attention to the comment of the drafters of

section 16–3:

“This section codifies the ‘temporary use’ aspect of

sections 300 (now ch. 71, §31) (hotels), 404b (customers list),

438 (commercial vehicle) and 439 (motor vehicle) of Ill. Rev.

Stat. 1959, ch. 38.” Ill. Ann. Stat., ch. 38, par. 16–3,

Committee Comments–1961, at 218 (Smith-Hurd 1977)

(Revised in 1970 by Charles H. Bowman).

The “section[ ] 300” referenced above was the first section of “An

Act to define and punish frauds upon hotel, inn, boarding and eating-

house keepers.” The act was approved in 1889. That section

provided:

“[A]ny person who shall obtain food, lodging or other

accommodation at any hotel, inn, boarding or eating house,

with intent to defraud the owner or keeper thereof, shall be

deemed guilty of a misdemeanor, and upon conviction, shall

be punished by a fine not exceeding one hundred dollars or

imprisoned in the county jail not exceeding thirty days.” See

Ill. Rev. Stat 1933, ch. 38, par. 300.

Defendant also points to the provisions of the Innkeeper

Protection Act, which, although contained in the Code of Civil

Procedure, parallels the language of section 16–3 of the Criminal

Code:

“Any person who, with intent to defraud, shall obtain

lodging, food, money, property or other accommodations at

a hotel, inn, boarding house or lodging house without paying

therefor shall be guilty of a Class A misdemeanor. In case of

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a second conviction of the offense described, the punishment

shall be that provided for a Class 4 felony.” 740 ILCS 90/5

(West 2000).

The Innkeeper Protection Act was in effect in Illinois as early as 1889

(1889 Ill. Laws 167). It was amended as recently as 1972 (Pub. Act

77–2529, §1, eff. January 1, 1973).

The State responds that sections 16–1 and 16–3 are not mutually

exclusive, pointing to the drafters’ comment that:

“ ‘Because of the special characteristics of the stolen

commodity, and the practical problems of knowledge and

intent involved, the theft of lost or mislaid property, and of

labor, services or the use of property, are dealt with separately

in sections 16–2 and 16–3. However it should be noted that

these offenses are also Theft.

All other forms of theft are included in section 16–1

except the special deceptive practices proscribed by Article

17.’ ” McCarty, 94 Ill. 2d at 34, quoting Ill. Ann. Stat., ch. 38,

art. 16, Committee Comments–1961, at 18 (Smith-Hurd

1977).

Thus, the State argues, if it can prove the elements of a section 16–1

theft, it may prosecute under that section, even if the property is

available for hire and the defendant’s conduct might otherwise meet

the elements of section 16–3.

We conclude, for several reasons, that the State has the better

argument. First, although the Innkeeper Protection Act and the

forerunners of section 16–3 have been the law in Illinois for many

decades, the legislature has not expressed any intent that these statutes

are intended to be the exclusive basis for the prosecution of theft by

deception of the use of a hotel room.

Second, the prosecutor has broad discretion in determining

whether to charge an individual with a criminal offense and the nature

of the offense to be charged. Lyons v. Ryan, 201 Ill. 2d 529, 539

(2002). Both this court and the United States Supreme Court have

held that the prosecutor has the discretion to decide which of two

offenses to charge where two different statutes prohibit the same

criminal conduct but prescribe different punishments. People v.

McCollough, 57 Ill. 2d 440, 443-44 (1974) (same set of facts may

-20-

constitute separate offenses under different statutes); United States v.

Batchelder, 442 U.S. 114, 123-24, 60 L. Ed. 2d 755, 764, 99 S. Ct.

2198, 2204 (1979) (“when an act violates more than one criminal

statute, the Government my prosecute under either so long as it does

not discriminate against any class of defendants”).

Where, as here, proof of theft under section 16–1 requires proof

of elements not required under section 16–3, it is clear that the

prosecutor has the exclusive discretion to decide which charge to

bring. People v. Jamison, 197 Ill. 2d 135, 161-62 (2001); see also

People v. Barlow, 58 Ill. 2d 41, 44 (1974) (when conduct violates

more than one statute and the statutes require different proof or

provide different defenses, a defendant is not denied equal protection

of the law if he is prosecuted under the statute that provides the

greater penalty).

Third, the structure of section 16–1 evinces a clear legislative

intent that the theft of property of greater value is deserving of greater

punishment than the theft of less valuable property. Thus, the person

who, through deception, steals one night’s occupancy at a discount

motel is less culpable than the person who steals one night’s

occupancy in a penthouse suite at a four-star hotel. The person who,

through deception, steals one night’s stay at a hotel is less culpable

than the person who stays for three months.

We note that under section 16–1(b)(1), “[t]heft of property not

from the person and not exceeding $300 in value is a Class A

misdemeanor.” 720 ILCS 5/16–1(b)(1) (West 2000). Similarly, any

section 16–3 theft is a Class A misdemeanor. If the value of the hotel

stay is under $300, both statutes yield the same result and the State

may choose, as a matter of prosecutorial discretion, to proceed under

16–3 because this charge is more easily proven. On the other hand, if

the value of the hotel stay is greater than $300, and if the State can

prove the additional elements, it may choose to proceed under section

16–1.

Defendant’s Request for Cross-relief

In a portion of the appellate court opinion unpublished under

Supreme Court Rule 23 (No. 2–04–0398 (unpublished under Supreme

Court Rule 23)), the appellate court considered and rejected

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defendant’s claim of ineffective assistance of counsel at trial. He

renews his arguments before this court.

We note that defendant filed pro se posttrial motions raising

claims of ineffective assistance of counsel and, after dismissing both

the privately retained attorney who represented him at trial and the

public defender appointed to represent him in posttrial proceedings,

represented himself at the hearing on the matter. On more than one

occasion, the trial court warned defendant of the risk of procedural

default. Thus, any failure to preserve a specific claim of ineffective

assistance in a posttrial motion must be attributed to defendant

himself, not to counsel. See People v. Enoch, 122 Ill. 2d 176, 186

(1988) (to preserve an issue for appellate review, a defendant must

both make a contemporaneous objection and raise the matter in a

posttrial motion). His failure to preserve an issue in one of his posttrial

motions is not corrected by the efforts of the appellate defender to

raise the issue before the appellate court or in a brief to this court. As

we observe below, some of the issues raised in defendant’s brief are

arguably procedurally defaulted. We, nevertheless, choose to address

those issues because the State has not argued default.

With this background in mind, we turn to defendant’s allegations

of ineffective assistance of counsel. To prevail on a claim of

ineffective assistance of counsel, a defendant must show both that: (1)

counsel’s representation was so deficient as to fall below an objective

standard of reasonableness under prevailing professional norms, and

(2) the deficient performance so prejudiced defendant as to deny him

a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed.

2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To establish deficient

performance, the defendant must overcome the strong presumption

that counsel’s action or inaction was the result of sound trial strategy.

People v. Evans, 186 Ill. 2d 83, 93 (1999). This means the defendant

must show that counsel’s errors were so serious, and his performance

so deficient, that he did not function as the “counsel” guaranteed by

the sixth amendment. In addition, defendant must prove there is a

reasonable probability that, but for counsel’s errors, the result of the

proceeding would have been different. People v. Johnson, 218 Ill. 2d

125, 143-44 (2005). If either prong of the Strickland test is not met,

defendant’s claim must fail. Thus, a reviewing court need not consider

whether counsel’s performance was deficient before determining

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whether the defendant was so prejudiced by the alleged deficiencies

that he is entitled to a new trial. People v. Alvine, 173 Ill. 2d 273, 293

(1996).

Hearsay Statements

In one of his posttrial motions, defendant stated: “The Court erred

in allowing hearsay testimony in.” The motion asserted that the State’s

Attorney made a hearsay statement regarding statements of the

Lombard police officer who investigated the hotel’s complaint, but it

does not quote the alleged hearsay statement or describe when or

under what circumstances the statement was made by the officer or

referred to by the prosecutor. No other specific instances of hearsay

testimony were identified. During his cross-examination of attorney

Wolfe, defendant did not question him about his decisions regarding

objections to any alleged hearsay statements. Defendant did not make

any argument on this issue to the trial court during the posttrial

proceedings.

With the assistance of the appellate defender, defendant now

argues that defense counsel failed to object to certain hearsay

statements in the testimony of the hotel’s general manager and

assistant general manger and that he compounded the error by eliciting

further details of the hearsay on cross-examination. The two managers

testified regarding telephone conversations with the vendors listed by

defendant as trade references and with the individual defendant had

identified as the contact person for Prolific. They testified that the

vendors gave negative reports about defendant and that the purported

contact at Prolific denied any connection to defendant or his company.

Defendant asserts that these statements were hearsay because they

were out-of-court statements offered for the truth of the matters

asserted and that these statements would have been excluded had

counsel objected. In addition, defendant argues that testimony that the

words “Address Unknown” appeared on the envelope returned by the

post office also constituted inadmissible hearsay.

These claims could be deemed procedurally defaulted by defendant

because he failed to raise them in his posttrial motion and in his

argument to the trial court during the hearing that was held for the

purpose of considering his claim of ineffective assistance of counsel.

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The State overlooks default and argues that these statements were

not hearsay because they were not offered for the truth of the matters

asserted. The State was not attempting to prove that defendant owed

money to one of this trade references, or that he did not have a valid

account with the other. The State was not trying to prove that the

purported contact person was not affiliated with Prolific, or that the

address provided by the defendant was inaccurate. Rather, each of

these statements was offered as evidence of defendant’s intent to

deceive. The State further asserts and that even if these statements

were hearsay, defense counsel’s decision not to object was a matter

of trial strategy.

The appellate court reasoned that the out-of-court statements

would not serve as evidence of intent to deceive unless they were true.

The appellate court thus concluded that the challenged statements

were, indeed, hearsay, but that counsel’s choice not to object was a

matter of trial strategy because an objection might have prompted the

State to call the individuals who made the statements and their

testimony might have proven even more damaging to defendant than

the hearsay statements themselves.

Defendant responds that “the record provides no indication that

the State was prepared” to offer the testimony of a postal official,

representatives of the purported trade references, or the individual

who denied being defendant’s business associate. Thus, he claims, it

cannot have been a matter of trial strategy to forgo objecting to the

hearsay testimony.

This court has noted on several occasions that decisions regarding

“what matters to object to and when to object” are matters of trial

strategy. People v. Pecoraro, 175 Ill. 2d 294, 327 (1997); People v.

Graham, 206 Ill. 2d 465, 478-79 (2003). We have also made it clear

that a reviewing court will be highly deferential to trial counsel on

matters of trial strategy, making every effort to evaluate counsel’s

performance from his perspective at the time, rather than through the

lens of hindsight. People v. Madej, 177 Ill. 2d 116, 157 (1997).

Thus, in Graham, this court rejected a claim of ineffective

assistance of counsel based on counsel’s failure to object to the

admission of a witness’ prior consistent statement to bolster his trial

testimony. We noted that counsel’s decision not to object was a

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“strategic choice” that did not fall below an objective standard of

reasonableness. Graham, 206 Ill. 2d at 478-79.

In People v. Evans, 209 Ill. 2d 194, 220-21 (2004), the assistant

State’s Attorney read portions of the defendant’s court-reported

statement to the jury. In his statement, the defendant mentioned

having been involved in “other incidents.” He argued on appeal that

the mention of “other incidents” was inadmissible evidence of other

crimes and that defense counsel was ineffective for failing to object.

We observed that it was “highly possible that defense counsel allowed

the statement to pass without objecting to diffuse its importance,

rather than object and draw further attention to the statement.” Evans,

209 Ill. 2d at 221. We further noted that defense counsel’s failure to

object to testimony “may be a matter of sound trial strategy, and does

not necessarily establish deficient performance.” Evans, 209 Ill. 2d at

221.

We agree with the appellate court that it is entirely likely counsel

chose to let these statements pass rather than object and run the risk

of the declarants themselves being called to testify. If these individuals

had been put on the stand, they may have offered even more damaging

evidence. In fact, the transcript of the posttrial hearing testimony of

defense counsel clearly demonstrates that he declined to call several

of the witnesses defendant wished to call because they would have

given testimony damaging to the defense. People v. Patterson, 217 Ill.

2d 407, 442 (2005) (whether to call a particular witness is a matter of

trial strategy and such decisions generally will not support a claim of

ineffective assistance of counsel). In addition, we reject defendant’s

argument that the record must reflect that the State was “prepared to

present” these other potential witnesses because he offers no authority

for this proposition.

We conclude, therefore, that defendant has not demonstrated that

defense counsel’s decision not to object to these statements

constitutes deficient performance under the objective test of

Strickland.

Prosecutor’s Closing Argument

Defendant’s pro se posttrial motions cited several cases addressing

the issue of improper comment by prosecutors, but did not apply these

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cases to the facts of his own case. The motions contained conclusory

statements such as: “The State’s closing arguments were false,

misleading, and deliberately prejudicial.” He also alleged that defense

counsel “failed to object to several improper comments by the

prosecutor in closing argument.” A thorough review of defendant’s

pro se filings and his argument at the motion hearing reveals that he

did identify several specific statements that, in his opinion, defense

counsel should have objected to during closing argument. These

statements are the prosecutor’s assertions that: (1) he is not a

“businessman”; (2) he had no income or prospect for income when he

registered at the hotel; (3) he is a “conman,” a “fraud,” and a “fake”;

(4) he provided credit card information to the hotel that was not valid;

and (5) all charges made to the credit card were reversed when, in

fact, approximately $500 in charges were accepted.

Before this court, defendant argues that he was “unfairly

disparaged” by the prosecutor, who also “portrayed the State’s

evidence as being stronger than was actually the case,” and that

defense counsel’s failure to object constituted deficient performance.

He identifies four such statements. First, the prosecutor stated that

defendant had no income or real prospect for income at the time he

registered as a guest at the hotel. Second, the prosecutor stated that

defendant left the hotel in the middle of the night without settling his

bill and was never seen again. Third, at the beginning of his rebuttal,

the prosecutor called defendant a “conman,” a “fraud,” and a “fake.”

Finally, the prosecutor concluded her rebuttal with the statement:

“Don’t let Michael Perry deceive you.”

Defendant objects to the statements regarding his financial status

and his nighttime departure from the hotel on the basis that they lack

evidentiary support. Defendant asserts that defense counsel should

have objected to the first statement because there had been no

testimony about his “overall financial status” and that he had, in fact,

been able to pay for the initial part of his stay using credit cards. As

for the second statement, he argues that defense counsel should have

objected because the “record simply does not support any inference

of a surreptitious mass departure by dark of night.” The third

statement is, he claims, improper disparagement. The fourth statement

is described as an improper accusation that defendant was attempting

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to deceive the jury to obtain an acquittal to which counsel should have

“vehemently objected.”

Although the specific statements to which defendant is now

objecting are not precisely the same statements that he mentioned in

his posttrial motions, we conclude that he has adequately preserved

this issue and, as a result, our analysis will be guided by the Strickland

factors.

The appellate court concluded that the statements were not

improper, so the lack of an objection by defense counsel was not

deficient performance.

In general, prosecutors have wide latitude in the content of their

closing arguments. Evans, 209 Ill. 2d at 225. The prosecutor may

comment during closing argument on the evidence and on any fair and

reasonable inference the evidence may yield, even if the suggested

inference reflects negatively on the defendant. People v. Nicholas, 218

Ill. 2d 104, 121 (2005). Reviewing courts will consider the closing

argument as a whole, rather than focusing on selected phrases or

remarks. Evans, 209 Ill. 2d at 225. A reviewing court will find

reversible error only if the defendant demonstrates that the improper

remarks were so prejudicial that real justice was denied or that the

verdict resulted from the error. Johnson, 218 Ill. 2d at 141. Thus, in

order to meet the prejudice prong of the Strickland test, defendant

must make the same showing–that real justice was denied or that the

verdict resulted from counsel’s failure to object.

We note that prior to closing arguments, the trial court instructed

the jury that “[l]ike opening statements, closing arguments are not

evidence and any statement or argument that is made by the attorneys

which is not based on the evidence or reasonable inferences to be

drawn from the evidence should be disregarded.” See Nicholas, 218

Ill. 2d at 122-23 (brief reference to defendant as “pure evil” did not

require new trial where the comment was not repeated and where the

trial court preemptively cautioned the jury to disregard argument not

based on the evidence); People v. Ceja, 204 Ill. 2d 332, 357-58

(2003) (comments overstating the evidence did not deny defendant a

fair trial where thee comments were brief and where the trial court

instructed the jury to ignore statements made in closing argument that

were not based on the evidence).

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During his closing argument, defense counsel repeatedly referred

to defendant as a “businessman” who, during his stay at the hotel, was

working on a real estate deal. Counsel summarized the testimony

describing the details of the deal and why the deal collapsed, leaving

defendant unable to pay his hotel bill. Counsel called the jury’s

attention to evidence of defendant’s having notified the hotel as early

as May 7 that he intended to check out on May 13, which, he argued,

countered the suggestion that defendant left the hotel surreptitiously

during the night.

Our review of the record reveals that there was sufficient

evidentiary support for the prosecutor’s characterization of

defendant’s business prospects and the circumstances under which he

left the hotel. Defense counsel’s decision to address these comments

by counterarguement rather than by objection was, thus, a matter of

sound trial strategy. Given the trial court’s admonition to the jury and

defense counsel’s counterargument, we conclude that the lack of

objection to these statements was not deficient performance by

defense counsel.

Defendant also argues that in her rebuttal argument, the

prosecutor engaged in name-calling in an effort to prejudice the jury

and that defense counsel’s failure to object was another example of

deficient performance. Specifically, the prosecutor opened her rebuttal

argument with the statement: “Conman. Fraud. Fake. It’s Michael

Perry.” Defendant cites People v. Johnson, 119 Ill. 2d 119, 139

(1987), for the proposition that a prosecutor should not engage in

inflammatory name-calling to arouse the passions of a jury against a

defendant.

In Johnson, the prosecutor described the defendant, who was

accused of a brutal murder, as an “animal” who “butchered” four

persons. This court observed that calling a defendant an “animal” is

improper “even where that characterization is based on the evidence”

(Johnson, 119 Ill. 2d at 139), because the term is inflammatory and

prejudicial. Nevertheless, this court did not find reversible error. The

trial court had specifically instructed the jury to disregard any

statements made during closing arguments that were not based on the

evidence. In addition, the remark was “isolated” and “not dwelled

upon further by the prosecutor.” Johnson, 119 Ill. 2d at 140.

-28-

Defendant also attacks the prosecutor’s “name-calling” on the

grounds that it suggested to the jury that he had engaged in deceptive

behavior in the past. He argues that it is improper for the State to

suggest that a defendant has engaged in similar conduct on other

occasions, relying on this court’s decision in People v. Whitlow, 89 Ill.

2d 322 (1982). In Whitlow, the prosecutor made references to

background of one of the defendants in violation of an order in limine,

including a comment that “ ‘[m]aybe this time he will get caught.’ ”

Whitlow, 89 Ill. 2d at 340. The prosecutor also asked the jury the

rhetorical question, “ ‘How many other corporations was he using?

How many other shareholders? How much more money was he

taking ***?’ ” Whitlow, 89 Ill. 2d at 340. Based on the cumulative

effect of these and other comments, this court found reversible error.

Whitlow, 89 Ill. 2d at 343.

In the present case, the prosecutor described defendant as a

“conman,” “fraud,” and “fake” only in the opening sentence of her

rebuttal. This was an isolated remark that introduced the argument

that the evidence showed defendant had deliberately deceived the

hotel. See Nicholas, 218 Ill. 2d at 122 (prosecutor’s calling defendant

“pure evil” merely prefaced his argument that the facts proved

defendant guilty; these facts included defendant’s getting a gun,

hunting his mother in the street, shooting her four times, hiding the

gun, going back to bed, and displaying little concern about her death).

In addition, as in Johnson, the jury was properly instructed to

disregard any statement made during closing argument that was not

supported by the evidence. The prosecutor did not suggest to the jury

that defendant had a history of engaging in theft or fraud. Describing

a defendant who is charged with theft by deception as a conman,

fraud, or fake is similar to describing a defendant who is charged with

murder as a killer or a murderer. The label does not necessarily imply

a pattern of similar behavior. We, therefore, conclude that defendant

would not have been be entitled to a new trial based on the

prosecutor’s comment and that, therefore, counsel’s failure to object

cannot have caused the type of prejudice necessary under Strickland.

The last comment that defendant challenges was made by the

prosecutor at the close of her rebuttal argument. She said: “Don’t let

Michael Perry deceive you. Find him guilty of theft by deception.”

Defendant characterizes this comment as a suggestion to the jury that

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he or his counsel was attempting to deceive, trick, or confuse the jury

to obtain an acquittal. He cites People v. Emerson, 97 Ill. 2d 487

(1983), in which a new trial was granted in a capital murder case on

the basis of multiple instances of prosecutorial misconduct. In

Emerson, this court found reversible error where, among other things,

the prosecutor suggested that defense counsel laid down a

smokescreen “ ‘composed of lies and misrepresentations and

innuendoes,’ ” and that he, like all defense attorneys, tried to “dirty up

the victim.” Emerson, 97 Ill. 2d at 497.

The statement in the present case, even if improper, is readily

distinguishable from the pattern of inflammatory and prejudicial

statements that resulted in a new trial for the defendants in Emerson.

In any event, defendant confines his argument on the issue of

prosecutorial comments to the first prong of the Strickland test. He

argues that “by failing to object when the prosecutor disparaged Mr.

Perry before the jury, trial counsel failed to provide proper

representation,” but he makes no colorable argument that there is a

reasonable probability that, but for counsel’s alleged error, the result

of the proceeding would have been different. We conclude that, with

respect to each of the asserted instances of improper comment by the

prosecutor, counsel’s performance was either not deficient or, even if

deficient, did not result in prejudice to defendant that would require

a new trial.

Trial Court’s Answer to Jury Question

The jury was initially instructed on the meaning of the phrase

“permanent deprivation” according to Illinois Pattern Jury Instruction,

Criminal, No. 13.33B (4th ed. 2000), which is virtually identical to the

statutory definition of the term (720 ILCS 5/15–3 (West 2000)).

During deliberations, the jury sent out a note asking, “In this case,

what exactly does ‘deprive the owner permanently’ mean?” Defense

counsel did not object when the trial court indicated its intent to utilize

the dictionary definition of “permanently” to fashion its response:

“The intent to deprive the owner permanently means the intent to not

pay back or the intent not to return.” However, the trial court’s

written response that was actually given to the jury did not contain the

definition to which defense counsel had agreed. Instead, the trial

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court’s written response said only: “The intent to ‘deprive the owner

permanently’ means the intent to deprive.”

Defendant’s pro se motion alleged that the trial court “erred in

rendering a definition of the meaning of ‘permanently deprive’ in

response to a jury question.” Defendant did not claim that defense

counsel was ineffective with regard to the court’s response to the jury

question. This issue could be deemed procedurally defaulted for

failure to preserve it in a posttrial motion.

Defendant now argues that defense counsel was “responsible for

and complicit in” the trial court’s giving a “meaningless incomplete

response” to the jury’s question.

We conclude that defendant cannot prevail on this claim because,

even if trial court’s written response to this jury question introduced

error, the error is attributable to the trial court, not to ineffective

assistance by defense counsel. Similarly, even if the response that

defense counsel agreed to would have been improper, his agreement

to the court’s proposed answer cannot have prejudiced defendant

because that answer was never given to the jury.

Defense Theory of the Case

In his pro se posttrial motions, defendant claimed that defense

counsel “failed to develop a coherent theory of defense.” In support

of this claim, defendant listed numerous questions that he thought

should have been put to various witnesses. He named several

individuals who, in his opinion, should have been subpoenaed to

testify for the defense and asserted that he had given these names to

counsel prior to trial. These included members of the hotel staff who

would testify that he was a generous tipper and that he and his wife

treated them with “generous benevolence.” He accused counsel of

failing to subpoena the personnel files of hotel employees to discover

any instances of disciplinary action and of failing to subpoena records

from other hotels that he and his family had stayed at in the past. He

also claimed that counsel was ineffective for failing to investigate the

Lombard police department. Finally, defendant stated that counsel was

ineffective for failing to file various motions that defendant requested

“and gave the case numbers for reference.” The requested motions

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included a motion to dismiss a frivolous complaint, a motion to

dismiss indictment, and a motion to dismiss for malicious prosecution.

The appellate court resolved this issue by noting that defendant

“failed to show that any mitigating evidence was indeed available”

and, thus, he had “no evidence to support his claim” that counsel

failed to investigate or prevent favorable evidence.” Although the trial

court and the appellate court both found these claims to lack merit, he

has properly preserved these issues for review under Strickland.

Before this court, defendant claims that the dispute between

himself and the hotel was entirely a civil matter involving breach of

contract and an unpaid debt. Defendant argues further that defense

counsel was ineffective for failing to present available evidence that

would have bolstered his theory of the case and countered the State’s

evidence against him. The “available evidence” that defendant refers

to is a brochure from HG Global Workplaces, which describes

“flexible turn-key officing solutions” available at the address defendant

provided to the hotel for his company, Prolific Development

Corporation. The brochure states that HG Global provides a mailing

address and other facilities to small or virtual businesses. According

to defendant, “defense counsel could have subpoenaed records and a

representative of HQ Global to authenticate the existence of a

business address for Prolific Development Corporation and explain its

office status.” He asserts that the address he provided to the hotel was

not fraudulent, but was “a legitimate business mailing address, at least

at some point.” Further, counsel “could have shown the defendant’s

claim to hotel personnel that he was having trouble with mail delivery

to be more plausible, rather than leaving it for the jury to believe that

the address did not exist.” This is the only specific example offered in

defendant’s brief of defense counsel’s alleged failure to make

reasonable efforts to counter the State’s case.

The State responds that defense counsel’s decisions regarding

what documentary evidence to subpoena and which witnesses to

present are matters of trial strategy and that these decisions ultimately

rest with defense counsel, citing People v. West, 187 Ill. 2d 418, 432

(1999) (decisions concerning which witnesses to call and what

evidence to present are matters of trial strategy and are generally

immune from claims of ineffective assistance of counsel).

The trial court heard the lengthy testimony of defense counsel at

the posttrial hearing and clearly found his testimony to be credible.

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Defense counsel testified that he based his decision on what witnesses

to call on whether the defense “would get nothing but positive

response from those witnesses, relative to the theory of our defense.”

He stated that his conversations with several of the witnesses

suggested by defendant revealed that “it would not have been

beneficial to [defendant] to subpoena certain witnesses on that list.”

He concluded that the risk of having those witnesses testify about

their dealings with defendant “outweighed the probative value.”

Defense counsel also testified that he called the only two witnesses

whose testimony he expected to be useful in establishing the defense

theory. These two individuals testified that they were in business with

defendant and that he reasonably anticipated that the deal he was

working on during the time he was staying at the hotel would be

profitable and would enable him to pay the hotel what he owed.

Counsel also stated that he declined to call other suggested witnesses,

such as the hotel’s van driver, because their testimony would be

“peripheral to the theory of the defense.” He decided not to subpoena

information from other hotels at which defendant had stayed because

he had learned from defendant’s prior attorney that “there had been a

bill left outstanding when Mr. Perry vacated” one of those hotels, and

that he would be opening a “Pandora’s box,” if he made an issue of

defendant’s previous lengthy hotel stays. He did not subpoena

documents regarding the mailing address for Prolific because he did

not think that the defense needed to establish the status of the

company in order to raise the defense that defendant did not engage

in deceit because he intended to pay the hotel, but was simply unable

to do so because of a business deal that fell through.

Based on our review of the trial transcript and of the transcript of

the hearing on defendant’s posttrial motions, we conclude that he has

failed to meet his burden of demonstrating that defense counsel’s

decisions regarding witnesses and documentary evidence were not

within the realm of trial strategy. People v. Enis, 194 Ill. 2d 361, 378

(2000).

Further, even if defense counsel makes a mistake in trial strategy

or tactics or an error in judgment, this will not render representation

constitutionally defective. West, 187 Ill. 2d at 432-33. Only if

counsel’s trial strategy so unsound that he entirely fails to conduct

meaningful adversarial testing of the State’s case will ineffective

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assistance of counsel be found. West, 187 Ill. 2d at 432-33. This is not

such a case.

Cumulative Error

Defendant briefly alludes to People v. Vera, 277 Ill. App. 3d 130,

141 (1995), for the proposition that the errors made by defense

counsel should be “viewed cumulatively” to determine whether a

defendant is entitled to a new trial as a result.

We have rejected defendant’s claims of ineffective assistance of

counsel, concluding that counsel’s performance was not deficient or,

even if deficient, did not result in prejudice under Strickland. Because

we have rejected every claim of error, cumulative-error analysis is not

necessary.

CONCLUSION

In sum, we hold that the occupancy of a hotel room is “property”

within the meaning of section 15–1 of the Criminal Code and that the

taking of such property by deception can result in the owner’s being

permanently deprived of its use or benefit. We further hold that the

offenses defined in sections 16–1 and 16–3 are not mutually exclusive

and that, in the present case, the State properly charged the defendant

with theft under section 16–1. Because these questions of law are

resolved against the defendant and because a rational trier of fact

could have found that defendant intended to permanently deprive the

hotel of the use or benefit a suite of rooms (Collins, 106 Ill. 2d at

261), we reverse the judgment of the appellate court as to defendant’s

conviction of theft.

We further hold that defendant is not entitled to a new trial on the

basis of ineffective assistance of counsel.

The judgment of the appellate court is reversed and the judgment

of the circuit court is affirmed.

Appellate court judgment reversed;

circuit court judgment affirmed.

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JUSTICE FITZGERALD, dissenting:

I respectfully dissent because I believe the legislature was careful

to exclude the mere “use” of property from the definition of

“property” in section 15–1. 720 ILCS 5/15–1 (West 2000). That

section defines “property” to mean “anything of value.” It includes:

money, food and drink, real estate, fixtures, telecommunications

services, electricity, gas, water, tickets, documents, photographs,

computer programs, drawings, models, commercial instruments, and

“written instruments representing or embodying rights concerning

anything of value, labor, or services, or otherwise of value to the

owner.” 720 ILCS 5/15–1 (West 2000). Notably, the statutory

definition of property does not cover labor or services themselves,

only written instruments embodying the rights to such services. This

definition also does not include the right to temporarily use property.

Therefore, the defendant cannot be found guilty of theft by deception

of the use of a hotel room under section 16–1 (720 ILCS 5/16–1

(West 2000)).

I further disagree with several points in the majority’s reasoning.

In support of its holding, the majority states,

“The phrase ‘anything of value’ is unambiguous. Clearly,

the legislature intended to expand the definition of property to

include not only items of tangible personal property but also

other things of value such as real estate, electricity, and

telecommunications services. The hospitality industry provides

lodging to the public for profit. The market for hotel and

motel rooms is vast. The use of a hotel room does have value.

See Moline Water Power, 252 Ill. at 357 [1911] (stating that

water power is property because it ‘is bought and sold in the

market as freely as the products of the farm’). We conclude

that the use of a hotel room is a thing of value as that phrase

is used in the first sentence of section 15–1.” Slip op. at 10-

11.

I first disagree that the phrase “anything of value” unambiguously

supports the majority’s holding. I believe my interpretation above at

least renders the phrase “anything of value” ambiguous. The majority

opinion ignores the underlying premise of the sole citation for this

proposition. The premise of this statement in Moline Water Power

was that one buys and sells the ownership of the electricity in the

market, not the right to temporarily use that electricity. In other

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words, it is not the rental of these things which is “bought and sold on

the market”; it is the thing itself.

The majority further emphasizes that it is a night of occupancy that

was the “use” of the room which was permanently lost, explaining,

“The property at issue here is the use of a hotel room. The

hotel’s complement of rooms can be analogized to a store’s

inventory of goods. The hotel has a finite number of rooms,

which it can rent to members of the public 365 nights a year.

One night in one room is a thing of value. When this thing of

value is taken by deception, the owner has permanently lost

the benefit of one night’s income. We, therefore, hold that

each night of occupancy that is obtained by deception

permanently deprives the owner of the beneficial use of the

hotel room within the meaning of section 15–3(b) (720 ILCS

5/15–3(b) (West 2000)).” Slip op. at 17.

By continuing to equate the mere “use” of a hotel room with a

“store’s inventory of goods” the majority continues to ignore the

distinction between rental, in which the owner allows another

temporarily to possess a thing, and the sale of a thing, where

ownership of the thing itself changes hands. The leap of logic in the

majority’s analogy is that a store is not in the habit of renting its

inventory of goods for temporary use. Because the failure to

recognize this distinction, I believe the majority has made an

unwarranted expansion of section 15–1 of the statute beyond the

legislature’s intention.

Moreover, it is unclear that the Embassy Suites would have

otherwise obtained the money for the night’s lodging used by

defendant. The majority cites no specific evidence that defendant

denied the hotel the opportunity to rent the room to another customer.

Further, there is no basis to conclude that there were any nights when

the hotel was full and another party would have taken the suite. In this

context, the mere opportunity that the hotel might have had to take in

other money for the suite cannot be found to constitute “property” for

purposes of the general theft statute.

The majority’s expansive interpretation is problematic for several

other reasons. First, tenants and landlords could potentially apply the

court’s reasoning concerning “use” to criminalize breaches of leases.

Commentators have criticized similar approaches because of “the

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possibility of theft prosecutions in cases of holdover or eviction in a

landlord-tenant relationship” and the “problem *** of distinguishing

between theft and criminal trespass.” Model Penal Code §223.2,

Comment, at 173-74 (1980). Commentators also state that obstacles

to theft prosecution in these situations makes sense, for “the

immobility and virtual indestructibility of real estate makes unlawful

occupancy of land a relatively minor harm for which civil remedies

supplemented by mild criminal sanctions for trespass should be

adequate.” Model Penal Code §223.2, Comment, at 172 (1980).

Furthermore, “Relations between a landlord and a tenant are so

minutely regulated and constitute such a delicate socio-political

problem that it would be wrong to introduce the possibility of a theft

prosecution for unauthorized occupancy by a tenant or improper

eviction by a landlord.” Model Penal Code §223.2, Comment, at 172

(1980).

These criticisms may explain the lack of even one prior appellate

court decision which has found that the mere “use” of property for a

period of time constitutes “property” under section 15–1. Previous

cases have only implicitly found that leaseholds constituted property

under section 15–1 and have not provided an iota of analysis on the

issue. See People v. Hagan, 199 Ill. App. 3d 267 (1990) (where the

appellate court overturned a conviction of attempted theft by

deception of a commercial lease, but did not address whether a lease

was property under section 15–1); People v. Veasey, 251 Ill. App. 3d

589 (1993) (where the appellate court upheld a conviction of theft by

deception of a car lease, but similarly did not specifically address

whether the right to temporarily use the car constituted “property”

under the statute). Therefore, this court will be the first to hold that

this type of “use” is “property” under section 15–1, and thus the first

to apply the theft-by-deception concepts to landlord-tenant law.

My research has revealed only one case that has, albeit implicitly,

supported my interpretation over the majority holding. In People v.

Mattingly, 106 Ill. App. 2d 74 (1969), a tenant signed a lease and paid

a security deposit to the landlord. Upon arriving on the first day of his

tenancy, the tenant found that other persons were already occupying

the premises. The landlord was subsequently convicted of theft by

deception of the security deposit. In reversing the conviction, the

court found that the failure of the landlord to deliver possession would

not terminate the lease and the tenant would have the right to gain

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possession from the occupants by suit in forcible detainer.

Accordingly, the landlord had a right to control the security deposit

until the termination of the lease. The fact that others occupied the

premises when the tenant was to take possession did not entitle the

tenant to demand a portion of the security deposit which he had paid.

Thus, the landlord’s refusal to return that portion of the security

deposit did not constitute theft by deception. Therefore, the court

reversed the landlord’s conviction.

Significantly, the Mattingly court focused only on the money that

remained in the hands of the landlord as being the “property” subject

to theft, rather than focusing on the use of the premises which the

landlord denied the tenant. This is because the court found that the

lease was still in effect until the tenant had gained the right to

possession by a suit in forcible detainer. Yet, the majority is

overturning Mattingly, sub silentio, making the deceptive taking of

the tenant’s contractual right to the “use” of the premises illegal, and

subjecting the landlord to a theft conviction. The implications of the

majority’s reasoning are therefore squarely applicable to typical

landlord-tenant situations. Consider three common, hypothetical

cases.

The first situation is the typical failure of a landlord to provide

habitable rental property, even for a short period of time. For instance,

a landlord may lack the money or desire to sufficiently winterize the

building. Nevertheless, the landlord accepts rent from various tenants

in the building, knowing full well that the facilities to provide the

building’s heat and hot water are inadequate. But he decides to wait

until the facilities actually break down in the dead of winter before he

fixes the problem. Consequently, the landlord has denied the tenants

the benefit of their bargain. The tenants have lost their contractual

right to “use” of the apartment, and also the opportunity to rent

another apartment before the onset of winter. Some tenants may even

have lost sub-rental income. Under normal circumstances, the landlord

would be subject to civil remedies such as a suit by the municipality

seeking an injunction to repair the property, and for fines for

ordinance violations, or a tenant’s suit directly against the landlord for

whatever value that the property has been diminished. Following the

majority’s reasoning, however, the landlord has committed a theft

because he consciously deprived the tenants of their rightful “use” of

the property to which the tenant’s were entitled under the lease.

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Depending on the number of apartments in the building, the number

of days deprived, and the degree to which the building was without

heat, the landlord could also be liable for theft by deception and a

Class 2 felony (720 ILCS 5/16–1(a)(2) (West 2000)). The tenant’s

right to “use” of the property is clearly a “thing of value” to them,

making the landlord guilty of theft by deception.

Perhaps clearer is a typical “self-help” eviction. A tenant has not

paid rent for three months. Instead of initiating a proceeding for

forcible entry and detainer, the landlord deliberately changes the locks

on the tenant’s apartment, permanently barring the tenant from the

property. Because the tenant still retains the right to the “use” of the

property for the remainder of the lease, a landlord would be guilty of

theft of the tenant’s right to “use” the property under the lease.

The third case is one of a holdover tenant. The family’s

breadwinner has lost his job and is unable to pay rent. The family

knows that it is unlikely or unwilling to pay the arrears on the rent and

holds out in the apartment until the landlord institutes civil

proceedings for forcible entry and detainer. The family avoids the

landlord and deprives the landlord of his ability to rent the property to

another tenant. Under all normal circumstances, the legislature has

given the tenant the benefit of civil legal processes of forcible entry

and detainer, which begins with a five-day notice, service of process,

and, eventually, a day in court. Thus, the tenant has the legal right to

“use” the premises until a court finds that the landlord has the right of

possession. This opinion theoretically entitles the landlord to submit

a complaint for prosecution upon the tenants for a felony offense

punishable by six years in prison in lieu of or in addition to the normal

course of civil proceedings. I do not know what the deleterious effects

of this additional remedy may be, but I believe that it is best

considered by the legislature.

Next, this decision implicates the legislative judgment not to

criminalize ordinary cases sounding in contract. I believe the

legislature should act with caution in imposing criminal penalties on

a hotel guest, landlord, tenant, or any party which has the right to

“use” property where contractual remedies remain available. As Judge

Posner has stated,

“[U]nder the common law (including the common law of

Illinois ***), a breach of contract is not considered wrongful

activity in the sense that a tort or a crime is wrongful. When

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we delve for reasons, we encounter Holmes’s argument that

practically speaking the duty created by a contract is just to

perform or pay damages, for only if damages are inadequate

relief in the particular circumstances of the case will specific

performance be ordered. In other words, and subject to the

qualification just mentioned, the entire practical effect of

signing a contract is that by doing so one obtains an option to

break it. The damages one must pay for breaking the contract

are simply the price if the option is exercised. See Oliver

Wendell Holmes, Jr., The Common Law 300-02 (1881);

Holmes, ‘The Path of the Law,’ 10 Harv. L. Rev. 457, 462

(1897).

Why such lenity? Perhaps because breach of contract is a

form of strict liability. Many breaches are involuntary and so

inapt occasions for punishment. Even deliberate breaches are

not necessarily culpable, as they may enable an improvement

in efficiency ***. *** The option of which Holmes spoke was

the option not to perform because performance was

impossible or because some more valuable use of the

resources required for performance arose after the contract

was signed.” Zapata Hermanos Sucesores, S.A. v. Hearthside

Baking Co., 313 F.3d 385, 389-90 (7th Cir. 2002).

Here, the hotel seeks criminal punishment because of the inability, at

least initially, to screen out defendant as a customer and thereafter to

be made whole through adequate contractual remedies. Further,

defendant’s theft of the “use” of the hotel property could also simply

be characterized as a breach of his duty to pay under the contract. The

holding today calls into question whether a person who deliberately

breaches a contract may also be subject to significant criminal

penalties.

Lastly, the legislature has already addressed the concerns in other

statutes. In these provisions, the legislature has specifically outlawed

the act of unlawfully using a hotel by employing words such as “use,”

“lodging,” or “accommodations.” The legislature has prohibited

defendant’s behavior in section 16–3(a) (720 ILCS 5/16–3(a) (West

2000)), which is a Class A misdemeanor. This provision states, “(a) A

person commits theft when he obtains the temporary use of property,

labor or services of another which are available only for hire, by means

of threat or deception or knowing that such use is without the consent

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of the person providing the property, labor or services.” 720 ILCS

5/16–3(a) (West 2000). Second, the Innkeeper Protection Act (740

ILCS 90/5 (West 2000)) also specifically prohibits this action, and

also is a Class A misdemeanor for the first offense. This provision

states, “Any person who, with intent to defraud, shall obtain lodging,

food, money, property or other accommodation at a hotel, inn,

boarding house or lodging house without paying therefor shall be

guilty of a Class A misdemeanor. In case of a second conviction of the

offense described, the punishment shall be that provided for a Class 4

felony.” 740 ILCS 90/5 (West 2000). I deduce from these examples

that the legislature could have explicitly employed words such as

“accommodation,” “lodging,” or “use” of property in its definition of

“property” in section 15–1. This demonstrates that the legislature has

explicitly intended that defendant’s behavior receive punishment as a

Class A misdemeanor. Therefore, defendant’s behavior will not go

unpunished had the court ruled that the “use” of a hotel room is not

“property” within section 15–1 (720 ILCS 5/15–1 (West 2000).

Because of the foregoing reasons, I respectfully dissent.

JUSTICE KILBRIDE joins in this dissent.

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