People v. Hicks, 29 N.E.3d 451

On June 23, 2008, Carl Hicks was charged with armed robbery for taking money from a candy store; cashier Selena Clark and her father Willie Tate testified Hicks pointed a revolver and struggled with Clark while he took cash. Hicks admitted taking money but denied having a gun or touching Clark. A cell phone left at the scene was stipulated to be registered to Hicks.
Hicks testified he entered to recover a phone and grabbed $40 from the open register after Clark grabbed the phone; he denied any struggle or weapon and admitted asking Tate in jail not to mention a gun.
The trial court instructed the jury on theft (requested by defense) and, over defense objection, on robbery sua sponte.
During deliberations the jury asked for a legal definition of “force.” The court replied there is no specific legal definition and that force is a question for the jury to decide from the evidence; defense counsel did not object.
The jury convicted Hicks of robbery (not armed robbery). Hicks appealed, arguing (1) insufficient evidence of force, (2) error in sua sponte robbery instruction, and (3) ineffective assistance for counsel’s failure to propose a definition of “force.”

Issue	Plaintiff's Argument (People)	Defendant's Argument (Hicks)	Held
Sufficiency of evidence of "force" for robbery	Evidence (Clark and Tate) showed a physical struggle during the taking; that struggle satisfies the force element.	Only the cashier used force (resisting); defendant merely snatched money, so theft not robbery.	Conviction affirmed; jury could find a struggle overcame victim’s power to retain property—sufficient force.
Sua sponte robbery instruction	Robbery was a proper lesser-included offense under the charging instrument and evidence; court correctly cited Garcia and exercised discretion.	Court failed to demonstrate it considered required factors and abused discretion by giving robbery instruction over objection.	No abuse of discretion; court cited controlling law, permitted counsel to argue, and the record supports the instruction.
Ineffective assistance for failing to define "force"	No pattern instruction requires definition; defense counsel’s acquiescence was not prejudicial because the evidence supported force; proffered definition likely would not have changed outcome.	Counsel should have offered a judicial definition (from case law) when jury asked; failure prejudiced Hicks.	No prejudice shown; no requirement to define "force," and Hicks cannot show a reasonable probability a definition would have produced a different verdict.

People v. Bowel, 111 Ill. 2d 58 (1986) (describes degree of force necessary for robbery: overcoming owner’s power to retain property by violence or fear)
People v. Patton, 76 Ill. 2d 45 (1979) (a struggle that ensues after a taking can elevate theft to robbery)
People v. Merchant, 361 Ill. App. 3d 69 (2005) (mutual struggle during taking can constitute sufficient force for robbery)
People v. Lewis, 285 Ill. App. 3d 653 (1996) (struggle over money supports robbery conviction)
People v. Garcia, 188 Ill. 2d 265 (1999) (trial court may, under appropriate circumstances, sua sponte instruct on lesser-included offenses)
People v. Kolton, 219 Ill. 2d 353 (2006) (framing when an uncharged offense is a lesser-included offense under the charging instrument)
People v. Taylor, 36 Ill. 2d 483 (1967) (factors trial courts may consider when deciding to give lesser-included instructions)
People v. Ross, 229 Ill. 2d 255 (2008) (standard of review for sufficiency of the evidence)
Strickland v. Washington, 466 U.S. 668 (1984) (two-part test for ineffective assistance of counsel)