People v. Reimer

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Reimer, 2012 IL App (1st) 101253

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption ROBERT REIMER, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-10-1253

Opinion filed March 30, 2012

Rehearing denied May 3, 2012

Modified Opinion filed May 8, 2012

Held In a prosecution for home repair fraud, the State violated defendant’s due

(Note: This syllabus process rights by presenting two incorrect statements of law with regard

constitutes no part of to home repair fraud before the grand jury, namely, that the element of

the opinion of the court intent could be presumed and that defendant’s intent at the time of the

but has been prepared agreement with the victim was not an element of the offense, and those

by the Reporter of misstatements resulted in actual and substantial prejudice to defendant;

Decisions for the therefore, the cause was remanded with directions to dismiss the

convenience of the indictment without prejudice, since there were no concerns about new

reader.)

deception or perjured testimony where the State would simply present

evidence satisfying the element of defendant’s intent at the time of the

agreement.

Decision Under Appeal from the Circuit Court of Cook County, No. 07-CR-20250; the

Review Hon. Marcus R. Salone, Judge, presiding.

Judgment Reversed and remanded.

Counsel on Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,

Ashley Romito, Mary Needham, and Sebastian Soto, Assistant State’s

Attorneys, of counsel), for the People.

Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.

Justice Connors concurred in the judgment and opinion.

Presiding Justice Quinn specially concurred, with opinion.

OPINION

¶1 Defendant, Robert Reimer, was charged with one count of home repair fraud pursuant

to section 3(a)(1) of the Home Repair Fraud Act (815 ILCS 515/3(a)(1) (West 2008)). A jury

found defendant guilty. The circuit court sentenced defendant to 30 months’ probation, to

payment of restitution to the victim, and to performance of 288 hours of community service.

At issue is whether the State, in presenting the case before the grand jury, violated

defendant’s due process rights. On March 30, 2012, we filed an opinion after oral argument

dismissing the indictment without prejudice, reversing the judgment of the circuit court and

remanding the case for further proceedings. Defendant filed a petition for rehearing on April

20, 2012 asserting that the evidence presented at trial was insufficient to support a

conviction.1 Upon denial of defendant’s petition for rehearing, we issue this modified

opinion.

¶2 JURISDICTION

¶3 The circuit court sentenced defendant on April 14, 2010. Defendant timely filed his

notice of appeal on April 16, 2010. Accordingly, this court has jurisdiction pursuant to article

VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606,

governing appeals from a final judgment of conviction in a criminal case entered below. Ill.

Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).

1

Defendant also raised the following issues on appeal: whether the circuit court abused its

discretion when it rejected defendant’s supplemental jury instructions; and whether the evidence in

this case was closely balanced such that the circuit court’s violation of Illinois Supreme Court Rule

431(b) (eff. May 1, 2007) amounts to plain error. However, due to our disposition of this appeal, we

do not need to address those arguments.

-2-

¶4 BACKGROUND

¶5 Defendant was charged by indictment with one count of home repair fraud pursuant to

section 3(a)(1) of the Home Repair Fraud Act (Act) (815 ILCS 515/3(a)(1) (West 2008)).

The indictment, in relevant part, stated defendant:

“KNOWINGLY ENTERED INTO A WRITTEN AGREEMENT OR CONTRACT,

WHEN THE AMOUNT OF THE AGREEMENT OR CONTRACT WAS MORE

THAN $1,000.00, WITH RITA AVILA FOR HOME REPAIR AND [DEFENDANT]

KNOWINGLY PROMISED PERFORMANCE WHICH HE DID NOT INTEN[D] TO

PERFORM OR HE KNEW WOULD NOT BE PERFORMED.”

¶6 Before the grand jury, Detective Sandra Bryant of the Chicago police department testified

she was assigned to investigate a home repair fraud involving defendant as the offender and

Rita Avila as the victim. Detective Bryant testified that through her investigation, she learned

that Avila entered into a contract with defendant to perform repairs on her home on June 11,

2007. On that same day Avila paid defendant $2,000. Defendant started work and Avila paid

him a total of $6,000. The last check that Avila gave to defendant was on or about July 16,

2007. After July 16, 2007, defendant did not complete any more work on Avila’s home.

Detective Bryant testified that at the time Avila and defendant came to an agreement, Avila

believed she knew where defendant’s office was. Avila had defendant’s cell phone number,

which she used to contact defendant.

¶7 Detective Bryant testified that when Avila went to the address where she believed

defendant’s office was located, she found a vacant lot. When Avila tried to contact defendant

through his cell phone, it was disconnected. Defendant never provided Avila with any new

contact information. Detective Bryant stated that defendant did not perform $6,000 worth of

work on Avila’s home. Specifically, he was supposed to put in new kitchen cabinets, which

defendant never ordered. Defendant admitted to Detective Bryant that he started the work,

but did not finish it, claiming that he ran out of money. He further admitted he never gave

Avila a new way to contact him.

¶8 In response to questions from the grand jury, Detective Bryant testified that the defendant

was supposed to “tear out walls and existing cabinets in the kitchen and bathroom, replace

cabinets and walls, paint, tile floors, and plumbing work.” Detective Bryant testified that

defendant “did demolition work” and “put up some walls.” Detective Bryant testified further

that Avila found defendant on Contractors.com as BRB Construction. At one point during

Detective Bryant’s testimony, the grand jury asked the assistant State’s Attorney, “What

makes this a felony case versus a civil case to be taken before a civil court?” In response, the

following exchange occurred:

“Q. [Assistant State’s Attorney]: Detective, I’m going to ask you a series of questions

to answer the Foreman’s question.

Is it true that according to the home repair fraud statute that once two parties come

to an agreement for home repair that if it is shown that the defendant has no intention to

complete the work agreed upon, that it is a felony?

A. Yes.

-3-

Q. And does the statute also specifically show some examples of how intent to not

finish can be inferred?

A. Yes.

Q. And one of those specific examples is if the defendant changes his business

address and does not by writing notify the victim of that change of the address at the time

of the change?

A. Yes.

Q. Is intent to not finish the project also shown by the fact that the defendant never

made contact with the victim to make any other arrangements?

A. Yes.

Q. And is it also shown by the fact that the victim had no way either in person or by

phone or by letter, for that matter, since the address was not existent to contact the

contractor?

A. Yes.”

¶9 After testifying that defendant “stated he ran out of money” as the reason for not

completing the work, the following exchange occurred between the grand jury, the assistant

State’s Attorney, and Detective Bryant:

“THE FOREPERSON: Did he admit that he intended not to complete the project or

that he entered into this project with the intention of taking her money and not finishing?

The question is: Did he intend not to finish this project on the onset of accepting the job?

Q. [Assistant State’s Attorney]: Detective, is it correct that that is not an element of

the offense?

A. [Detective Bryant]: That’s correct.”

¶ 10 After deliberating, the grand jury delivered a true bill.2

¶ 11 Prior to trial, defendant filed a motion to dismiss his indictment based on due process

violations. In his motion, defendant argued that “the State’s Attorney and the testifying

detective misled the grand jury by grossly misstating the law for home repair fraud.”3

Specifically, defendant argued that the State misled the grand jury by stating that intent not

to finish repairs can be inferred in a variety of ways even though that subsection of the Home

Repair Fraud Act had been severed by our supreme court. See People v. Watts, 181 Ill. 2d

133 (1998). Defendant also pointed to the section of the grand jury transcript where

2

See section 17 of the Jury Act, which states in relevant part: “it shall be the duty of the court

to appoint a foreman *** whose duty it shall be, when the grand jury, or any nine of them, find a bill

of indictment to be supported by good and sufficient evidence, to indorse thereon ‘A true bill.’ ” 705

ILCS 305/17 (West 2008).

3

Defendant also alleged in his motion to dismiss the indictment that the State erroneously

implied to the grand jury that he had prior convictions. Defendant does not raise this contention on

appeal.

-4-

Detective Bryant, in response to the assistant State’s Attorney’s question, stated that

defendant’s intent not to finish the job at the onset of the job was not an element of the

offense. Because the State did not present evidence of defendant’s intent not to finish the job

at the onset of the contract, defendant argued that the State did not meet its burden of

showing intent. Defendant maintained that the State’s actions before the grand jury resulted

in actual and substantial prejudice to him and the indictment against him should be

dismissed. Defendant also requested that the indictment be dismissed with prejudice because

he contended that the State would have to present contradictory evidence in order to reindict

him. Defendant attached to his motion as exhibits the transcript of the grand jury

proceedings, a copy of section 3 of the Home Repair Fraud Act (815 ILCS 515/3 (West

2008)), and his criminal history report.

¶ 12 In response, the State argued that defendant never showed “how his due process rights

were violated or how he was actually prejudiced.” The State maintained that it presented

evidence showing that defendant did not intend to finish the project and that he did not finish

the project. Specifically, the State argued that “the intent not to complete the contract was

evident by the defendant’s actions. The exact timing of when the defendant decided not to

complete the contract was an issue for trial and was not required for a finding of probable

cause.” The State also argued that it did not commit prosecutorial misconduct because there

was no evidence that the assistant State’s Attorney intentionally misled the grand jury.

¶ 13 The circuit court denied defendant’s motion. In making its ruling, the court stated that

it did not “believe that there was deception sufficient to undermine the determination of

probable cause.” The court commented further that “I think that statement attributed to the

defendant wherein the defendant says, I ran out of money. I just wasn’t going to do it. He

certainly, I think, exerted control over this young lady’s money with the intent to deprive

her.”

¶ 14 After a trial, the jury found defendant guilty. Defendant filed a motion for a new trial

raising 19 points of error. Relevant to this appeal, defendant argued that the circuit court

erred in dismissing his motion to dismiss the indictment. Defendant was sentenced to 30

months’ probation, to payment of restitution to the victim, and to performance of 288 hours

of community service.

¶ 15 Defendant timely appealed.

¶ 16 ANALYSIS

¶ 17 We will first look at section 3 of the Home Repair Fraud Act (815 ILCS 515/3(a)(1)

(West 2008)), before addressing whether the State, in presenting the case before the grand

jury, violated defendant’s right to due process.

¶ 18 Section 3 of the Home Repair Fraud Act

¶ 19 The purpose of the Home Repair Fraud Act “is to prohibit and prevent the knowing use

of fraud and deceptive practices to induce an unwitting homeowner to enter into a contract

-5-

for home repairs.” People v. Thompson, 275 Ill. App. 3d 725, 732 (1995). Section 3 of the

Home Repair Fraud Act, in relevant part, states:

“(a) A person commits the offense of home repair fraud when he knowingly enters

into an agreement or contract, written or oral, with a person for home repair, and he

knowingly:

(1) Misrepresents a material fact relating to the terms of the contract or agreement or

the preexisting or existing condition of any portion of the property involved, or creates

or confirms another’s impression which is false and which he does not believe to be true,

or promises performance which he does not intend to perform or knows will not be

performed; ***

***

(c) For purposes of subsection (a), paragraph (1), it shall be a rebuttable presumption

of intent or knowledge that a person promises performance which he does not intend to

perform and knows will not be performed when, after no performance or no substantial

performance of a contract or agreement for home repair, he fails or refuses to return

payments made by the victim and he:

(1) fails to acknowledge or respond to a written demand for commencement or

completion of home repair within 10 days after such demand is mailed or presented

to him by the victim or by the victim’s legal representative or by a law enforcement

or consumer agency acting on behalf of the victim; or

(2) fails to notify the victim in writing of a change of business name or address

prior to the completion of the home repair; or

(3) makes false statements or representations to the victim to excuse his non-

performance or non-substantial performance; or

(4) uses deception to obtain the victim’s consent to modification of the terms of

the original contract or agreement; or

(5) fails to employ qualified personnel necessary to perform the home repair; or

(6) fails to order or purchase the basic materials required for performance of the

home repair; or

(7) fails to comply with municipal, county, State or federal regulations or codes

relating to the performance of home repair.

Intent and knowledge shall be determined by an evaluation of all circumstances

surrounding a transaction and the determination shall not be limited to the time of

contract or agreement.

Substantial performance shall not include work performed in a manner of little or no

value or work that fails to comply with the appropriate municipal, county, State, or

federal regulations or codes.” 815 ILCS 515/3(a)(1), (c) (West 2008)

¶ 20 In February of 1998, our supreme court issued its decision in People v. Watts, 181 Ill. 2d

133 (1998). Watts addressed whether subsection (c) under section 3 of the Home Repair

Fraud Act violated the “the constitutional limits on the State’s right to use presumptions in

-6-

proving defendant’s guilt.” Watts, 181 Ill. 2d at 141. The defendant in Watts was charged

with one count of theft and, like the defendant in the case at bar, one count of home repair

fraud under section 3(a)(1) of the Act. Id. at 135-36. The circuit court found defendant not

guilty of the theft count because “the State failed to prove that defendant had not intended

to perform the construction services at the time that he entered into the contract.” Id. at 137-

38. As for the home repair fraud count, the supreme court noted that because there was no

dispute regarding the existence of a contract between the parties, “the only question at trial

was whether defendant had intended to perform the promised work at the time he entered

into the contract.” Id. at 138. The trial court found that the State failed to prove defendant

intended not to perform his obligations under the contract, but did prove “the factors

necessary to raise a presumption of intent” under subsection (c) of the Act which “triggered”

the “statutory presumption of intent.” Id. at 138-39. After finding defendant failed to rebut

the presumption of intent, the trial court found defendant guilty of home repair fraud. Id. at

139.

¶ 21 In analyzing the issue, our supreme court first noted that “in the area of criminal law,

mandatory rebuttable presumptions which shift the burden of production to the defendant are

unconstitutional” because they violate the due process clause of both the United States

Constitution and the Illinois Constitution. Id. at 147. The supreme court then held that the

“presumption contained in subsection (c) is mandatory and, as such, is unconstitutional.” Id.

at 149. After holding that subsection (c) was unconstitutional, the court decided that

subsection (c) should be severed from the rest of the statute. Id. at 150-51. The supreme court

noted that “while we strike subsection (c) of the statute, the remainder of the statute remains

intact and valid.” Id. at 151. We note that in making our determination in this case, we must

consider our supreme court’s interpretation of the Home Repair Fraud Act in Watts as part

of the statute because the legislature has not yet amended section 3(a)(1) of the Home Repair

Fraud Act. See Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 343 (2008) (“Our

interpretation is considered part of the statute itself until the legislature amends it contrary

to that interpretation.”).

¶ 22 The supreme court also ruled that the defendant in Watts could not be retried on the same

home repair fraud count due to collateral estoppel. Watts, 181 Ill. 2d at 152. The court stated,

“the circuit court found that the State had not met its burden of proving that the defendant

did not intend to perform when he entered into the contract and, as a result, acquitted

defendant on the theft count.” Id. The court held that this issue cannot be relitigated because

“a court in a retrial under the Act would be left to determine the issue of defendant’s intent

precisely as it was decided under the theft count at the original trial.” Id. Therefore, because

the circuit court had already acquitted the defendant of the theft count because the State did

not prove defendant had the requisite intent when entering into the contract, the issue had

already been decided in defendant’s favor.4 Id.

4

Justice Miller specially concurred, stating that he agreed with the majority’s analysis

regarding the federal constitutional issue. Watts, 181 Ill. 2d at 152 (Miller, J., concurring). However,

he believed that, “Because the case is decided on federal constitutional grounds, there is no need for

-7-

¶ 23 Grand Jury

¶ 24 Defendant argues that the circuit court erred in denying his motion to dismiss his

indictment. He contends the State misled the grand jury, which he alleges violated his due

process rights and resulted in actual and substantial prejudice. Defendant argues that the

State misled the grand jury by misinforming it in regard to the intent element of the Home

Repair Fraud Act, by specifically relying on subsection (c) of section 3 of the Home Repair

Fraud Act, which was severed in Watts. Id. at 149. Defendant maintains that he was

prejudiced because absent the misleading testimony, he believes the grand jury would not

have returned a true bill against him.

¶ 25 In response, the State first contends defendant affirmatively waived his contention that

the State misled the grand jury. The State points to comments by defense counsel during

argument before the circuit court on defendant’s motion to dismiss the indictment which the

State maintains shows that defendant conceded that the State did not act intentionally. The

State also argues that the record establishes that the State did not deliberately mislead the

grand jurors. In the alternative, the State argues that defendant cannot show that he suffered

actual and substantial prejudice. The State contends that there was ample evidence to support

the indictment and defendant’s eventual conviction.

¶ 26 In proceedings before the grand jury, the State’s Attorney acts as an advisor and presents

both the law and the proposed charges against the defendant. People v. DiVincenzo, 183 Ill.

2d 239, 254 (1998). The grand jury is allowed “the broadest possible scope consistent with

constitutional limitations” when conducting its investigations. People v. Fassler, 153 Ill. 2d

49, 59 (1992). Our supreme court has stated, and defendant readily admits in his opening

brief, that “[c]hallenges to grand jury proceedings are limited.” DiVincenzo, 183 Ill. 2d at

255. Typically, “a defendant may not challenge the validity of an indictment returned by a

legally constituted grand jury” nor may a defendant “seek to challenge the sufficiency of the

evidence considered by a grand jury if some evidence was presented.” Id. However,

indictments resulting from prosecutorial misconduct may be challenged by a defendant. Id.;

see also People v. Holmes, 397 Ill. App. 3d 737, 741 (2010) (“A trial court may dismiss an

indictment if the defendant establishes that he has suffered a prejudicial denial of due

process.”).

¶ 27 When ruling on a motion to dismiss an indictment, courts typically consider only the

transcript of the proceedings before the grand jury. DiVincenzo, 183 Ill. 2d at 255. In doing

so, we will review whether defendant suffered a prejudicial denial of due process de novo.

People v. Mattis, 367 Ill. App. 3d 432, 435-36 (2006) (“because the essential facts

concerning what happened at the grand jury proceedings are undisputed, we review de novo

whether defendant suffered a prejudicial denial of due process that could warrant dismissal”).

¶ 28 Prosecutorial misconduct before the grand jury does not warrant dismissal of the

us to consider here whether the Illinois Constitution independently requires the same result.” Id.

Justice Miller, therefore, did “not join the brief discussion in the majority opinion regarding a state

constitutional basis” for the decision. Id.

-8-

indictment unless defendant “can show that such misconduct results in actual and substantial

prejudice to him.” Fassler, 153 Ill. 2d at 58. Our supreme court, in DiVincenzo, explained:

“To warrant dismissal of the indictment, however, a defendant must ordinarily show

that *** any prosecutorial misconduct affected the grand jury’s deliberations. [Citation.]

Prosecutorial misconduct must rise to the level of a deprivation of due process or a

miscarriage of justice. [Citations.] The due process rights of a defendant may be violated

if the prosecutor deliberately or intentionally misleads the grand jury, uses known

perjured or false testimony, or presents other deceptive or inaccurate evidence.

[Citations.] An indictment may also be dismissed where the prosecutor has applied undue

pressure or coercion so that the indictment is, in effect, that of the prosecutor rather than

the grand jury. [Citation.] To warrant dismissal of the indictment, [a] defendant must

therefore show that the prosecutors prevented the grand jury from returning a meaningful

indictment by misleading or coercing it.” DiVincenzo, 183 Ill. 2d at 257-58.

¶ 29 In this case, defendant was charged under section 3(a)(1) of the Home Repair Fraud Act.

Section 3(a)(1) provides, in relevant part, that home repair fraud is committed when a

defendant “knowingly enters into an agreement or contract *** with a person for home

repair, and he knowingly: *** promises performance which he does not intend to perform

or knows will not be performed.” 815 ILCS 515/3(a)(1) (West 2008). The State could not

rely on subsection (c) to prove defendant’s intent or knowledge, as that portion of the statute

was severed from the rest of the statute in Watts. Watts, 181 Ill. 2d at 151. However, in

answering questions from the grand jury, the State clearly relied on subsection (c) despite it

being severed from the statute. The following exchange, in response to a question from the

grand jury, follows subsection (c)’s unconstitutional presumption of intent:

“Q. [Assistant State’s Attorney]: And does the statute also specifically show some

examples of how intent to not finish can be inferred?

A. [Detective Bryant]: Yes.

Q. And one of those specific examples is if the defendant changes his business

address and does not by writing notify the victim of that change of the address at the time

of the change?

A. Yes.

Q. Is intent to not finish the project also shown by the fact that the defendant never

made contact with the victim to make any other arrangements?

A. Yes.

Q. And is it also shown by the fact that the victim had no way either in person or by

phone or by letter, for that matter, since the address was not existent to contact the

contractor?

A. Yes.”

This is clearly an incorrect statement of the law of home repair fraud. Before the grand jury,

the prosecutor serves as an advisor and is supposed to “inform the grand jury of the proposed

charges and the pertinent law.” DiVincenzo, 183 Ill. 2d at 254. In this case, the prosecutor’s

-9-

misstatement of the law made it easier to secure an indictment by informing the grand jury

that the element of intent can be presumed.

¶ 30 Later in the grand jury proceedings, the grand jury asked the assistant State’s Attorney,

“Did [defendant] intend not to finish this project on the onset of accepting the job?”, to

which the following exchange occurred between the assistant State’s Attorney and Detective

Bryant:

“Q. [Assistant State’s Attorney]: Detective, is it correct that that is not an element of

the offense?

A. [Detective Bryant]: That’s correct.”

However, the statute clearly states that “A person commits the offense of home repair fraud

when he knowingly enters into an agreement or contract *** and he knowingly: ***

promises performance which he does not intend to perform or knows will not be

performed[.]” 815 ILCS 515/3(a)(1) (West 2008). The language of the statute makes clear

that defendant’s intent at the time of the agreement is an element of the offense. In Watts, the

defendant, like the defendant in our case, was charged under section 3(a)(1) of the Act. The

supreme court noted that it was undisputed that defendant had entered into a contract for

home repair, therefore; “the only question at trial was whether defendant had intended to

perform the promised work at the time he entered into the contract.” Watts, 181 Ill. 2d at 138.

Further, the purpose of the Act “is to prohibit and prevent the knowing use of fraud and

deceptive practices to induce an unwitting homeowner to enter into a contract for home

repairs.” Thompson, 275 Ill. App. 3d at 732. We hold that the assistant State’s Attorney’s

response to the grand jury again misstated the law of home repair fraud. The comments by

the assistant State’s Attorney and the testifying witness incorrectly claim that intent is not an

element of the crime. Instead of informing the grand jury of the law as it was required to do,

the State represented to the grand jury two incorrect statements of the law.

¶ 31 However, misstatements of law by the prosecutor to the grand jury do not automatically

result in the indictment being dismissed. Defendant must “show that such misconduct results

in actual and substantial prejudice to him.” Fassler, 153 Ill. 2d at 58. We hold defendant has

met this burden here. Before the grand jury, Detective Bryant testified that defendant and

Avila came to an agreement, Avila paid defendant $2,000, and defendant began the remodel

work. Detective Bryant further testified that Avila paid defendant three additional checks for

a total of approximately $6,000. After the last check on July 16, 2007, defendant stopped

working. Detective Bryant stated defendant admitted to starting the work, but not finishing

it. Defendant told Detective Bryant that he ran out of money and admitted that he did not

notify Avila with any new information on how to contact him. Detective Bryant also testified

that defendant never ordered kitchen cabinets, but admitted that defendant “did demolition

work and *** put up some walls.” Detective Bryant also testified that Avila could not reach

defendant by phone after the first month of work because defendant’s phone was

disconnected. Avila went to the address listed as defendant’s office, which was a vacant lot.

¶ 32 Significantly, the State did not present any evidence to the grand jury regarding

defendant’s intent to not perform the contract at the time the contract was formed, instead

-10-

its evidence concentrated only on what occurred once the contract had been formed and the

work started. However, the assistant State’s Attorney’s two incorrect statements of law to the

grand jury both addressed defendant’s intent. In the first statement, the assistant State’s

Attorney presented to the grand jury incorrect law that would allow it to presume intent. In

the second misstatement, the assistant State’s Attorney denied that intent was even an

element to be proven. The two misstatements affected the grand jury proceedings because

without them, we cannot say that a true bill would have been returned. DiVincenzo, 183 Ill.

2d at 257 (“To warrant dismissal of the indictment *** [a] defendant must ordinarily show

that *** any prosecutorial misconduct affected the grand jury’s deliberations.”); see also

People v. Oliver, 368 Ill. App. 3d 690, 696-97 (2006) (“a due process violation consisting

of prosecutorial misconduct before a grand jury is actually and substantially prejudicial only

if without it the grand jury would not have indicted defendant”).

¶ 33 The State maintains that defendant did not suffer actual and substantial prejudice because

defendant did not show that the State acted intentionally in misstating the law before the

grand jury. The State relies on the Second District’s decision in People v. Hart, 338 Ill. App.

3d 983 (2003), to argue that defendant must show that the State intentionally misled the

grand jury before dismissal of an indictment is warranted. In Hart, the majority stated “[i]n

our view, however, there must be, at the very least, intent on the part of some State actor to

materially mislead the grand jury in order to give rise to a violation of due process.” Hart,

338 Ill. App. 3d at 991. Justice McLaren concurred, but disagreed with this statement by the

majority, classifying it as “obiter dicta,” and commented “it is incorrect to require deception

on the part of a State actor” based on prior precedent. Hart, 338 Ill. App. 3d at 995

(McLaren, J., concurring). The majority in People v. Oliver, 368 Ill. App. 3d 690 (2006), also

a Second District decision, agreed with Justice McLaren’s concurrence. Oliver, 368 Ill. App.

3d at 696 (“Thus, in light of DiVincenzo, we hold that the State’s presentation of deceptive

evidence denied defendant due process, regardless whether the deception was intentional.”).5

We agree with Justice McLaren’s concurrence in Hart and the majority in Oliver. The

assistant State’s Attorney’s actions may or may not have been inadvertent; however, it is still

the role of the prosecutor to present the “pertinent” law to the grand jury. DiVincenzo, 183

Ill. 2d at 254. Subjecting a defendant to criminal prosecution in this case based on the State’s

incorrect presentation of the law to the grand jury deprived him of his right to due process,

whether the assistant State’s Attorney’s actions were intentional or not. To the extent that

Hart conflicts with our holding in this case, we respectfully decline to follow it. See O’Casek

v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) (under the doctrine

of stare decisis, “the opinion of one district, division, or panel of the appellate court is not

5

Justice Grometer concurred in Oliver and believed that it was not necessary to even address

the issue of intent in that case. Oliver, 368 Ill. App. 3d at 700-02 (Grometer, J., concurring). Justice

Grometer stated that he did not “believe that the majority’s interpretation of People v. DiVincenzo,

183 Ill. 2d 239 (1998), is as straightforward as the majority concludes. Second, although the majority

does not explicitly say so, the effect of its ruling in this case is to overrule our recent decision in

People v. Hart, 338 Ill. App. 3d 983 (2003).” Id. at 700.

-11-

binding on other districts, divisions, or panels”).

¶ 34 In making our decision, we note that at no time did the State attempt to amend the

indictment after securing it. We also note that defendant properly preserved this issue for

appeal by both filing a motion to dismiss the indictment before trial and objecting to the

indictment after trial. The motion to dismiss the indictment is important because it occurred

before defendant was found guilty.

¶ 35 In a petition for rehearing filed by defendant, he asserts that the conviction should be

reversed outright because the evidence presented at trial was insufficient to support a

conviction. We are not persuaded.

¶ 36 It is not the function of this court to retry a defendant when reviewing whether the

evidence at trial was sufficient to sustain a conviction. People v. Hall, 194 Ill. 2d 305, 329-30

(2000). “Rather, in such cases the relevant question is whether, after viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” People v. Smith, 185 Ill. 2d 532,

541 (1999). The trier of fact is responsible for determining a witness’s credibility and the

weight to be given to a witness’s testimony, as well as drawing any reasonable inferences

from the evidence. People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Additionally, the trier of

fact’s findings of credibility are given greater weight because it saw and heard the witnesses.

People v. Wheeler, 226 Ill. 2d 92, 114-15 (2007). Circumstantial evidence can sustain a

conviction, “provided that such evidence satisfies proof beyond a reasonable doubt of the

elements of the crime charged.” Hall, 194 Ill. 2d at 330. However, if the evidence is so

unreasonable, unsatisfactory, or improbable that it raises a reasonable doubt as to a

defendant’s guilt, we will reverse a conviction. People v. Evans, 209 Ill. 2d 194, 209 (2004).

¶ 37 After reviewing the evidence in the light most favorable to the State, we conclude that

a rational trier of fact could have found the essential elements of the crime of home repair

fraud beyond a reasonable doubt. The Act provides that “A person commits the offense of

home repair fraud when he knowingly enters into an agreement or contract *** and he

knowingly *** promises performance which he does not intend to perform or knows will not

be performed.” 815 ILCS 515/3(a)(1) (West 2008). It is undisputed the parties entered into

an agreement. The State only had to prove at trial, like in Watts, “whether defendant had

intended to perform the promised work at the time he entered into the contract.” Watts, 181

Ill. 2d at 138; see also Thompson, 275 Ill. App. 3d at 732 (“The Act’s goal is to prohibit and

prevent the knowing use of fraud and deceptive practices to induce an unwitting homeowner

to enter into a contract for home repairs.”). We also note that circumstantial evidence can

sustain a conviction. Hall, 194 Ill. 2d at 330.

¶ 38 In this case, circumstantial evidence from both Avila and Joaquin Mina showed that at

the time of the agreement, defendant did not intend to perform. Avila testified that at the time

she entered into the agreement with defendant, defendant “would need [$]2,000 a week

before starting the job and the [$]2,000 was to order my kitchen cabinets, which would take

two weeks to be delivered.” Later, defendant promised Avila that the cabinets would be

delivered and installed by July 20, 2007, almost two months after the contract was signed.

-12-

Despite both promises by defendant, he never ordered the cabinets, let alone installed them.

Avila continued to pay defendant every few weeks at defendant’s request. Mina testified that

it took him five days to complete the work, whereas defendant had worked five weeks,

completing minimal work, before quitting the job. Taking this evidence together, it is

reasonable to believe that defendant never intended to perform the work promised. It is

reasonable to believe that defendant did minimal work, while stretching that work over a

five-week time period, to continue to ask Avila for more money. The evidence was sufficient

to prove defendant guilty beyond a reasonable doubt. This finding removes the risk of

subjecting defendant to double jeopardy. See People v. Taylor, 76 Ill. 2d 289, 309-10 (1979).

¶ 39 Due to our conclusion in this case, we do not need to address defendant’s remaining

arguments.

¶ 40 CONCLUSION

¶ 41 The judgment of the circuit court is reversed. On remand, we direct the circuit court to

dismiss the indictment without prejudice.

¶ 42 Reversed and remanded.

¶ 43 PRESIDING JUSTICE QUINN, specially concurring:

¶ 44 I agree with the majority that the State violated defendant’s due process rights by

presenting an incorrect statement of law. However, I disagree with the majority’s assertion

that “The comments by the assistant State’s Attorney and the testifying witness incorrectly

claim that intent is not an element of the crime.” Supra ¶ 30.

¶ 45 The transcript of the grand jury proceedings reflects that the grand jury foreman asked

the assistant State’s Attorney (ASA), “Did [defendant] intend not to finish this project on the

onset of accepting the job? The ASA then asked Detective Bryant:

“Q. [ASA]: Detective, is it correct that that is not an element of the offense?

A. [Detective Bryant]: That’s correct.”

¶ 46 The majority correctly point out that subsection (a)(1) of section 3, entitled “Home

Repair Fraud,” under which defendant was charged provides:

“A person commits the offense of home repair fraud when he knowingly enters into an

agreement or contract, written or oral, with a person for home repair, and he knowingly:

(1) *** [P]romises performance which he does not intend to perform or knows will

not be performed[.]” 815 ILCS 515/3 (West 2006).

The majority assert that “The language of the statute makes clear that defendant’s intent at

the time of the agreement is an element of the offense.” Supra ¶ 30.

¶ 47 However, subsection 3(c) in pertinent part provides:

“Intent and knowledge shall be determined by an evaluation of all circumstances

surrounding a transaction and the determination shall not be limited to the time of

-13-

contract or agreement.” 815 ILCS 515/3(c) (West 2006).

¶ 48 I would read this “penultimate” sentence of subsection (c) to mean that the trier of fact

need not limit its determination of when the accused formed the intent to defraud the victim

to the time when the contract was entered into. This reading would be supported by Illinois

Pattern Jury Instructions, Criminal, No. 13.64 (4th ed. 2000) (hereinafter, IPI Criminal 4th

No. 13.64), which provides in pertinent part:

“Definition of Home Repair Fraud–Agreement or Contract

A person commits the offense of home repair fraud when he knowingly enters into

a contract for an amount exceeding $1,000 with a person for home repair, and he

knowingly

***

[3] promises performance which he does not intend to perform or knows will not be

performed.”

¶ 49 Defense trial counsel correctly recognized that this language did not restrict the jury to

determine the defendant’s intent at the time when the contract was entered into. That is why

he asked that the jurors be given a nonpattern instruction reading: “A person commits home

repair fraud when the did not intend to perform the promised work at the time he entered into

the contract.”

¶ 50 Having said this, I acknowledge that the majority are absolutely correct when they rely

upon People v. Watts, 181 Ill. 2d 133 (1998), where our supreme court held, “There was no

dispute that defendant had entered into a contract for home repair. Thus, the only question

at trial was whether defendant had intended to perform the promised work at the time he

entered into the contract.” Watts, 181 Ill. 2d at 138.

¶ 51 Further, the court in Watts had a completely different interpretation of subsection (c) than

I just presented.

“We believe that the penultimate sentence of subsection (c) is intended to assist a

defendant by expanding the realm of relevant evidence which he may use to rebut the

presumption. For example, if the State triggered the presumption by proving that a

defendant had used an unqualified subcontractor, the defendant might attempt to rebut

the presumption by introducing evidence of the subcontractor’s satisfactory performance

on prior projects. This would tend to show a good-faith belief on the defendant’s part that

the subcontractor was qualified and, therefore, that the defendant intended to perform the

promised work. If subsection (c) did not include the penultimate sentence, the evidence

might be considered irrelevant, because the ultimate issue is the defendant’s intent at the

time he entered the contract. However, by explicitly allowing the defendant to introduce

evidence ‘not limited to the time of the contract,’ the sentence would allow the

introduction of the evidence in the example.” Watts, 181 Ill. 2d at 148-49.

¶ 52 A reading of Watts leads to the conclusion that the majority are correct in holding that

the prosecutor misstated the law when he asked/told Detective Bryant that the State was not

required to prove that the defendant had the intent not to finish the project when he entered

-14-

into the contract. This misstatement of law was erroneous but it did not constitute a denial

“that intent was even an element to be proven,” as the majority state twice. I agree with the

majority that defendant has shown that this misstatement of law resulted in actual and

substantial prejudice to the defendant. Fassler, 153 Ill. 2d at 58.

¶ 53 I also agree with the majority that Watts further held that “the presumption contained in

subsection (c) is mandatory and, as such, is unconstitutional.” Watts, 181 Ill. 2d at 149.

¶ 54 The prosecutor was relying on subsection 3(c)(2) when he asked Detective Bryant

whether the statute allowed the grand jurors to infer the defendant’s intent by defendant’s

failure to notify the victim of his change of address and the facts that defendant never made

further contact with victim and the victim had no way to contact the defendant after he

stopped working on the project. The ASA phrased the question as, “And does the statute also

specifically show some examples of how intent to not finish can be inferred?”

¶ 55 The User’s Guide to Illinois Pattern Jury Instructions, Criminal, at x (4th ed. Supp. 2011)

provides:

“Inferences are a staple of our adversary system and are essential to expeditious

resolution of factual questions. Funches, 212 Ill. 2d at 339 ***. An inference is a factual

conclusion that the jury may rationally draw in its discretion by considering other facts.

Id. at 339 ***. By nature, inferences are permissive. Id. The jury is free to accept or reject

a suggested inference and no burden is placed on the defendant. Id.; Watts, 181 Ill. 2d at

142 ***.”

¶ 56 In People v. Jordan, 218 Ill. 2d 255 (2006), our supreme court considered section 12-21.6

of the Criminal Code of 1961, entitled “Endangering the life or health of a child” (720 ILCS

5/12-21.6 (West 2002)). It provides:

“(a) It is unlawful for any person to willfully cause or permit the life or health of a

child under the age of 18 to be endangered or to willfully cause or permit a child to be

placed in circumstances that endanger the child’s life or health, except that it is not

unlawful for a person to relinquish a child in accordance with the Abandoned Newborn

Infant Protection Act.

(b) There is a rebuttable presumption that a person committed the offense if he or she

left a child 6 years of age or younger unattended in a motor vehicle for more than 10

minutes.” 720 ILCS 5/12-21.6(a), (b) (West 2002).

¶ 57 The Jordan court decided: “We hold that subsection (b) of section 12-21.6 of the Code

creates an unconstitutional mandatory rebuttable presumption.” Jordan, 218 Ill. 2d at 266.

The court also held:

“Although the State is constitutionally required to prove every element of a crime

beyond a reasonable doubt [citation], the State may nonetheless rely upon certain

presumptions and inferences to prove its case. Pomykala, 203 Ill. 2d at 202 ***.” Jordan,

218 Ill. 2d at 265.

¶ 58 The court continued:

“Finally, we consider the consequences of the presumption’s invalidity in this case.

-15-

***

*** [W]e believe that a rational trier of fact could have found that defendant

knowingly endangered his infant daughter’s life or health by leaving her unattended in

his vehicle. Several factors bear upon that determination, including the setting where the

vehicle was parked, the weather conditions, and the amount of time defendant left his

daughter alone in the vehicle.” (Emphasis added.) Jordan, 218 Ill. 2d at 268-70.

¶ 59 The court therefore considered the length of time the child was left unattended even

though the court struck down subsection (b), which listed this factor as the basis to apply the

unconstitutional rebuttable presumption. 720 ILCS 5/12-21.6(b) (West 2002).

¶ 60 Applying the rationale of Jordan to the facts in the instant case, I believe that it would

be proper for a prosecutor to argue that all of the factors listed in subsections (c)(1) through

(c)(7) may provide the basis for an inference that a defendant is guilty of committing home

repair fraud. 815 ILCS 515/3 (c)(1) through (c)(7) (West 2006). However, I agree with the

majority that it was improper for the prosecutor to ask Detective Bryant whether the statute

provided these factors as “examples,” where this portion of the statute providing for an

improper rebuttable presumption was struck down in Watts.

¶ 61 This issue is made all the important because, as a very recent law review article points

out, “Today, seventeen criminal statutes still include some form of a mandatory

presumption.” Theodore A. Gottfried & Peter G. Baroni, Presumptions, Inferences and Strict

Liability in Illinois Criminal Law: Preempting the Presumption of Innocence?”, 41 J.

Marshall L. Rev. 715, 722 (2008). In this very well-written article, the authors suggest that

these statutes may pass constitutional muster by removing the “rebuttable presumption”

language and replacing it with “it may be inferred,” converting the mandatory presumption

into a constitutionally acceptable permissive inference. Gottfried & Baroni, supra, at 723.

¶ 62 Finally, I disagree with the majority’s discussion of the holdings in People v. Hart, 338

Ill. App. 3d 983 (2003), and People v. Oliver, 368 Ill. App. 3d 690 (2006). Both Hart and

Oliver involved testimony of witnesses which turned out to be false.

¶ 63 Hart held that: “there must be, at the very least, intent on the part of some State actor to

materially mislead the grand jury in order to give rise to a violation of due process.” Hart,

338 Ill. App. 3d at 991. In doing so, the majority relied on People v. J.H., 136 Ill. 2d 1

(1990), which held “[s]ome cases suggest [that undermining the integrity of the judicial

process] may occur where a prosecutor deliberately or intentionally misleads the grand jury

to the prejudice of the defendant.” (Emphasis omitted.) J.H., 136 Ill. 2d at 13.

¶ 64 The majority in Oliver held that “the State’s presentation of deceptive evidence denied

defendant due process, regardless [of] whether the deception was intentional.” Oliver, 368

Ill. App. 3d at 696. In doing so, the majority relied on the holding in People v. DiVincenzo,

183 Ill. 2d 239, 257 (1998): “The due process rights of a defendant may be violated if the

prosecutor deliberately or intentionally misleads the grand jury, uses known perjured or false

testimony, or presents other deceptive or inaccurate evidence.” Justice Grometer concurred

in Oliver, arguing that the above language did not support the majority’s holding on the

immateriality of the prosecutor’s intention. In doing so, Justice Grometer cited another

-16-

portion of the holding in People v. J.H.: “A prosecutor should not be inhibited in his

presentation of a case to a grand jury by fear of dismissal due to [this] erroneous, but honest,

appraisal of the admissibility of certain evidence for trial purposes.” J.H., 136 Ill. 2d at 13;

Oliver, 368 Ill. App. 3d at 701 (Grometer, J., concurring).

¶ 65 Based on the above discussion, I think that the majority in Hart and Justice Grometer’s

concurrence in Oliver are correct in requiring an intentional act on the part of a state actor

when a defendant seeks to dismiss an indictment based on the presentation of allegedly false

testimony to a grand jury. However, I do not believe that Hart or Oliver has any applicability

to the instant case where the prosecutor misstated the law applicable to the charges presented

to the grand jury. It is abundantly clear that the prosecutor was unaware of the holding in

Watts and did not intentionally mislead the grand jury. Indeed, defense trial counsel told the

trial court that he did not believe the prosecutor acted willfully. Consequently, I do not

believe that the prosecutor’s actions before the grand jury constituted prosecutorial

misconduct. In the final analysis, however, I believe the defendant has met his burden of

showing that the prosecutor’s misstatement resulted in actual and substantial prejudice to him

where the grand jury foreman specifically asked whether the defendant intended not to

perform the work when he entered into the contract. Fassler, 153 Ill. 2d at 58. Consequently,

I concur in the result reached by the majority.

-17-