{ "id": 3524310, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREA J. DUNGY, Defendant-Appellant", "name_abbreviation": "People v. Dungy", "decision_date": "1984-01-31", "docket_number": "No. 82\u20141139", "first_page": "314", "last_page": "326", "citations": [ { "type": "official", "cite": "122 Ill. App. 3d 314" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "338 N.E.2d 184", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 580", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965915 ], "pin_cites": [ { "page": "582" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0580-01" ] }, { "cite": "449 N.E.2d 164", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 3d 695", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3592405 ], "weight": 2, "pin_cites": [ { "page": "698" }, { "page": "698" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/114/0695-01" ] }, { "cite": "383 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. 2d 204", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5440986 ], "pin_cites": [ { "page": "211" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/73/0204-01" ] }, { "cite": "442 N.E.2d 891", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "93 Ill. 2d 94", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3102970 ], "year": 1978, "pin_cites": [ { "page": "99" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/93/0094-01" ] }, { "cite": "365 N.E.2d 460", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 900", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3367601 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "907" }, { "page": "906" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0900-01" ] }, { "cite": "410 N.E.2d 228", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3178848 ], "year": 1977, "pin_cites": [ { "page": "813" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0805-01" ] }, { "cite": "93 S. Ct. 2731", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "37 L. Ed. 2d 144", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "412 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6196194, 6197987, 6196411, 6196635, 6197557, 6196885, 6197787, 6197338, 6197115 ], "opinion_index": 0, "case_paths": [ "/us/412/0918-01", "/us/412/0918-09", "/us/412/0918-02", "/us/412/0918-03", "/us/412/0918-07", "/us/412/0918-04", "/us/412/0918-08", "/us/412/0918-06", "/us/412/0918-05" ] }, { "cite": "289 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "53 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927578 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "75-76" }, { "page": "71" }, { "page": "72" }, { "page": "74" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0062-01" ] }, { "cite": "405 N.E.2d 18", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. App. 3d 181", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3206427 ], "pin_cites": [ { "page": "184" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/0181-01" ] }, { "cite": "433 N.E.2d 1385", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 750", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5470693 ], "pin_cites": [ { "page": "758" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0750-01" ] }, { "cite": "308 N.E.2d 636", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2510048 ], "weight": 3, "pin_cites": [ { "page": "791-92" }, { "page": "795" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0791-01" ] }, { "cite": "437 U.S. 1", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6176664 ], "weight": 9, "pin_cites": [ { "page": "11" }, { "page": "9" }, { "page": "2147" }, { "page": "15" }, { "page": "12" }, { "page": "2149" }, { "page": "15" }, { "page": "12" }, { "page": "2149" } ], "opinion_index": 0, "case_paths": [ "/us/437/0001-01" ] } ], "analysis": { "cardinality": 1063, "char_count": 27488, "ocr_confidence": 0.766, "pagerank": { "raw": 1.1147714358369465e-07, "percentile": 0.5719092116953537 }, "sha256": "96e00b46264e81c3b62c227a9046a96502045a917c3a27718e755b65b67d547f", "simhash": "1:bbb48429b20a6a75", "word_count": 4584 }, "last_updated": "2023-07-14T18:37:51.597464+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREA J. DUNGY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE BERLIN\ndelivered the opinion of the court:\nAndrea J. Dungy (defendant) appeals from her September 30, 1981, conviction by a Cook County circuit court jury of retail theft (Ill. Rev. Stat. 1979, ch. 38, par. 16A \u2014 3(a)) and the trial court\u2019s April 1, 1982, order denying her post-trial motions. Defendant was sentenced to six months\u2019 conditional, nonreporting discharge.\nOn appeal, defendant contends that the trial court erred in: (1) violating her fifth and fourteenth amendment rights by denying her pretrial motions thereby allegedly allowing her to be twice subjected to prosecution for the same crime; (2) permitting the jury to separate during deliberations; (3) giving the \u201cPrim Charge\u201d jury instruction; and (4) denying her post-trial motions.\nOn October 21, 1977, defendant was arrested at Marshall Field\u2019s (Field\u2019s) State Street store in Chicago after being detained on suspicion of \u201cshoplifting\u201d by a store security guard, Thomas Seablom (Seablom). Seablom signed a complaint charging defendant with the theft of a purse. Defendant was accused of the theft of a purse valued less than $150. On November 14, 1977, this complaint was filed in Cook County circuit court. On June 7, 1979, because the original complaint apparently had been misplaced and was unavailable, the State was granted leave by the trial court to file a \u201csubstitute\u201d complaint. On November 28, 1979, prior to the beginning of trial, the State was, over defendant\u2019s objection, granted leave of court to amend the June 7, 1979, complaint changing the description of Field\u2019s from \u201can Illinois corporation licensed to do business in the State of Illinois\u201d to \u201ca retail mercantile establishment\u201d as prescribed by the retail theft statute (Ill. Rev. Stat. 1979, ch. 38, par. 16A \u2014 3(a)). On November 28, 1979, defendant\u2019s first trial ended in a mistrial due to her hospitalization. On January 21, 1980, following her second trial, defendant was found guilty of retail theft. On May 5, 1980, the trial court granted defendant\u2019s motion for a new trial based on the possibility that \u201cmanufactured\u201d evidence was used at trial. On January 14, 1981, defendant\u2019s third trial ended with a hung jury and, upon defendant\u2019s motion, a mistrial was declared.\nOn September 21, 1981, prior to the start of defendant\u2019s fourth trial, she filed a motion to dismiss the charges against her. She contended that reprosecution would violate her rights to be free from \u201cdouble jeopardy.\u201d Defendant also argued that the original complaint of October 21, 1979, was \u201cinsufficient as a matter of law to sustain the charge of retail theft\u201d and that the second complaint was improperly filed. On September 22, 1981, defendant\u2019s motion was denied and defendant\u2019s fourth trial began.\nThomas Seablom, a Field\u2019s store security guard, testified to the following:\nOn October 21, 1977, Seablom was on duty in the fifth floor Wa bash area of Field\u2019s Chicago State Street store when he observed defendant remove a purse from around the neck of a display mannequin, \u201ctake the price tag off the purse and drop it on the floor and insert the purse into a plastic bag.\u201d Defendant then approached the \u201cadjustment desk\u201d and \u201crequested a refund.\u201d She was \u201cunable\u201d to obtain a refund and carrying her own purse and the plastic bag containing the display purse, she walked from the adjustment desk to a \u201cdown\u201d escalator. Seablom got on the escalator behind defendant, identified himself as a Field\u2019s security guard and asked her to accompany him to the second floor security office. Defendant did so. Defendant was taken to a small interrogation room and the plastic bag she was carrying was taken from her by Seablom. Seablom returned to the fifth floor and retrieved the price tag that defendant allegedly dropped on the floor. When he returned to the interrogation room, he searched the contents of defendant\u2019s purse. In so doing he noted and recognized the name of defendant\u2019s brother, Dennis Dungy, as that of an individual he had detained for shoplifting one year earlier. Seablom \u201cassumed\u201d that defendant and Dennis Dungy were related.\nDuring cross-examination Seablom acknowledged that during a previous trial in this matter he testified that defendant told him that she was attempting to exchange the purse because of a defect.\nThree other Field\u2019s security guards, including two supervisors Charles Brown and Timothy J. Bogert, testified to the procedures utilized by Field\u2019s when securing materials to be used as possible evidence in future prosecutions.\nSamuel Toia, a Field\u2019s employee, next testified to the following:\nOn October 21, 1977, while working in the fifth floor shoe department, he saw defendant \u201cwalk up to a display and take a handbag off a display.\u201d Defendant placed the handbag in \u201ca bag\u201d and then walked around a coat display to the adjustment desk where defendant requested a refund. He contacted a floor manager, Susan Lawler, and told her what he had seen. He then \u201creturned to [his] business.\u201d\nDuring cross-examination Samuel Toia acknowledged that only two days before her arrest he had unsuccessfully attempted to sell defendant a coat. Toia stated that although defendant \u201cwas dissatisfied [he] didn\u2019t have her size,\u201d he could not say that she had insulted him.\nThe State rested and defendant\u2019s motion for a directed verdict was denied.\nDennis Dungy testified on his sister\u2019s behalf to the following:\nIn 1976 he was detained by Thomas Seablom on suspicion of \u201cshoplifting.\u201d He was arrested on that charge after Seablom signed a complaint. The State\u2019s objection to Dennis Dungy\u2019s further testimony regarding that incident was sustained. Defense counsel, however, was permitted to make a \u201cquestion-and-answer\u201d offer of proof for the purpose of establishing Seablom\u2019s alleged bias toward defendant and her family. Following the offer of proof, the court concluded that the testimony added nothing to the testimony previously elicited during the State\u2019s case in chief and, as such, would not be presented to the jury. The court explained that \u201cthe testimony of [Dennis Dungy] does not indicate that the party who arrested him had any knowledge of who his sister was at the time the incident [October 21, 1977] occurred.\u201d\nOther defense witnesses included defendant\u2019s mother, Mildred Dungy, who stated that defendant was \u201cgiven the privilege to use\u201d her Field\u2019s charge card. Loretta Kinach-Boffa, a Field\u2019s employee, testified that a sales receipt offered in evidence by defendant reflected that on October 18, 1977, three days before defendant\u2019s arrest, Boffa had in fact sold an \u201cAigner\u201d purse model number 4115 priced at $62. Jim Jensen, another Field\u2019s employee, testified that the price tag allegedly retrieved by Seablom after observing defendant tear it from the display purse and drop it on the floor, contained a \u201cstyle number\u201d different than that of the purse defendant was accused of stealing. However, when asked if he ever found a wrong price tag attached to a particular \u201cAigner product,\u201d Jensen responded: \u201cOccasionally, very rarely, it does happen.\u201d\nDefendant testified to the following:\nOn October 21, 1977, she arrived in Chicago from Valparaiso, Indiana, where- she was enrolled as a third-year law student at Valparaiso University. Among the items defendant carried with her to Chicago was a \u201cCarson, Pirie Scott draw string bag\u201d containing a purse she purchased on October 18, 1977, at Field\u2019s State Street store. Defendant \u201cintended to return\u201d this purse because it \u201chad a defect on it.\u201d Defendant arrived at Field\u2019s about 4:30 p.m. She purchased a pair of shoes and then proceeded to the fifth floor Wabash side of the store and to the department where on October 18, 1977, she had purchased the first purse. Upon her arrival in that department, she noticed a purse which was \u201csimilar to the one [she] wanted.\u201d She placed her packages on the floor next to the exchange desk, \u201creached up on the display shelf and took the bag off that was similar to the one [she] wished to exchange, and [she] set it on top of the - exchange desk.\u201d Defendant spoke with a Field\u2019s employee, \u201cMr. Kidd,\u201d at the exchange desk. She asked if the man who had \u201coverseen\u201d the purchase of the purse on October 18, 1977, Mark Warning, was working. Mr. Kidd told defendant that Mark Warning was not working and any exchange she wished to make would have to be an \u201ceven exchange.\u201d Kidd took the \u201cCarson\u2019s\u201d bag from defendant, placed it on the exchange desk and told another Field\u2019s employee that \u201cit was an even exchange.\u201d Officer Seablom then approached Mr. Kidd and asked \u201cwhat the problem was.\u201d Mr. Kidd responded that there was no problem. Defendant attempted to explain to Seablom that, although she left her receipt at home, \u201cthe bag was an even exchange.\u201d Seablom told her \u201che wasn\u2019t talking to her,\u201d grabbed her by the arm and told her she had to come with him. At that time defendant\u2019s packages were still on the floor near the exchange desk and the purse she wished to exchange, along with the purse she had removed from the display shelf, was still on the exchange desk. She managed to take her packages, including the bag containing the purse - she wished to exchange, with her as she accompanied Seablom. In the security office defendant was asked to sign an admission of guilt form and a release of liability of Field\u2019s arising from a \u201cfalse arrest.\u201d Defendant refused to sign the forms and again explained that she had a receipt for the purse. She requested that the security guards \u201ccheck the records\u201d to establish that she had in fact purchased the purse. The security guard supervisor, Charles Brown, told her she would go to jail if she did not sign the documents. She refused and the Chicago police were called. She was placed under arrest and the complaint was filed.\nDefendant then testified that the purse admitted at trial as People\u2019s exhibit No. 1, which Seablom identified as the purse defendant removed from the display, was not the same purse that she brought to the Field\u2019s State Street store in the plastic \u201cCarson\u2019s\u201d bag.\nFollowing defendant\u2019s testimony, the defense rested.\nThe jury was instructed by the trial court and began deliberations. At approximately 7:30 p.m., after more than five hours of deliberation, the jury sent to the trial judge a note asking: \u201cIs it possible to have a hung jury?\u201d Before the jury returned to the courtroom, the court, in chambers, discussed with counsel the possibility of allowing the jury to adjourn to their homes for the night. Both defense counsel and prosecutor partook in this discussion without objection. Defense counsel suggested additional admonishments for the jury which the court in fact gave. The jury returned to the courtroom and was informed that it would be \u201cdischarged\u201d for the evening with deliberations to resume the following morning. The court, without answering the jury\u2019s question regarding the possibility of a hung jury, admonished the jury and allowed them to return to their homes. The following morning the trial court answered the jury\u2019s question and told them that it was indeed possible to have a hung jury.\nThe jury reconvened their deliberations at 9 a.m. and continued for nearly eight hours until about 4:45 p.m. At that time the jury again sent a note to the court which read: \u201cThe jury is firm on their votes, no compromises, no total agreement, hung jury.\u201d\nThe court informed counsel of his intent to deliver the so-called \u201cPrim Instruction\u201d to the jury. Following a brief argument and objection by defense counsel, the court delivered, orally, the following instruction:\n\u201cThe verdict must represent the considered judgment of each juror. In order to return a verdict it is necessary that each juror agree thereto. Your verdict must be unanimous. It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement, if you can do so without violence to individual judgment. Each of you must decide the case for yourself, but do so only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to re-examine your own views and change your opinion if convinced it is erroneous; but do not surrender your honest conviction as to the weight or effect of evidence solely because of the opinion of your fellow jurors, or for the mere purpose of returning a verdict. You are not partisans. You are judges, judges of the facts. Your sole interest is to ascertain the truth from the evidence in the case.\u201d\nAt 4:50 p.m. the jury resumed its deliberations. At 5:30 p.m. the jury returned a verdict of guilty. Although the motion by defense counsel requesting that he be allowed personally to poll the jurors individually was denied, the jury was in fact polled by the court asking each juror if this was his or her own verdict. Each answered \u201cyes.\u201d\nOn October 29, 1981, defendant filed a post-trial motion which was subsequently amended. Among the specific allegations assigned as error was the contention (accompanied by affidavits of two jurors) that the jurors reached their verdict in part because of the failure of any Field\u2019s employees working at the exchange desk on October 21, 1977, to testify. Defendant argued that this fact indicates that the jurors ignored the court\u2019s instructions and improperly placed the burden upon defendant to prove her innocence.\nOn April 1, 1982, defendant\u2019s post-trial motions were denied and she was sentenced to six months\u2019 conditional, nonreporting discharge. Defendant appeals from her conviction and from the denial of her post-trial motions.\nInitially, defendant contends that the trial court erred in allowing her to be twice prosecuted for the same crime.\nOn May 5, 1980, following defendant\u2019s second trial and conviction, the court granted her motion for a new trial. The court stated that defendant\u2019s motion was sustained \u201con the basis of the material deviation\u201d between the testimony of officer Seablom and information contained in affidavits supplied to the court by defendant which alleged that certain photographic evidence offered at trial may have been \u201cmanufactured\u201d by officer Seablom. The court stated that this material deviation\n\u201cmight have effected [sic] this jury, might have effected [sic] the decision of the jury. And based on that ground alone I\u2019m granting a motion for a new trial.\u201d\nPrior to defendant\u2019s third and fourth trials, defendant moved for dismissal of the charge against her contending, as she does on appeal, that the \u201ceffect of the court\u2019s [May 5, 1980] ruling was a determination that the court did not believe the evidence of the occurrence offered by the prosecutor to be sufficient to sustain the conviction.\u201d As such, defendant argued that the trial court should have granted her motion for acquittal.\nIt is well established that an individual may not be twice prosecuted for the same offense. (Ill. Rev. Stat. 1979, ch. 38, par. 3 \u2014 4(a); Burks v. United States (1978), 437 U.S. 1, 11, 57 L. Ed. 2d 1, 9, 98 S. Ct. 2141, 2147.) A subsequent prosecution is not, however, barred if the conviction is set aside \u201cdue to trial error\u201d rather than \u201cevidentiary insufficiency.\u201d 437 U.S. 1, 15, 57 L. Ed. 2d 1, 12, 98 S. Ct. 2141, 2149.\nWe do not believe that the trial court\u2019s May 5, 1980, order granting defendant a new trial was based upon its determination that the evidence was insufficient. Rather, we conclude that the court in this instance determined that defendant was convicted \u201cthrough a judicial process which [was] defective in some fundamental respect, e.g., incorrect receipt or rejection of evidence.\u201d (437 U.S. 1, 15, 57 L. Ed. 2d 1, 12, 98 S. Ct. 2141, 2149.) Defendant was not in our opinion subjected twice to prosecution for the same crime.\nNext, defendant contends that the trial court in allowing the jury to separate and adjourn to their homes during deliberations committed reversible error. Section 115 \u2014 4(1) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115 \u2014 4(1)) provides:\n\u201cWhen the jury retires to consider its verdict an officer of the court shall be appointed to keep them together and to prevent conversation between the jurors and others. Upon agreement between the State and defendant or his counsel the jury may seal and deliver its verdict to the clerk of the court, separate, and then return such verdict in open court at its next session.\u201d\nDefendant urges this court to follow the decision in People v. Ritzert (1974), 17 Ill. App. 3d 791, 308 N.E.2d 636, in which Ritzert was convicted of driving while intoxicated. After the jury had deliberated for over four hours and prior to their reaching a verdict, the trial court, in Ritzert, asked counsel whether a mistrial should be declared or if the jury should be allowed to go home for the night and resume deliberations the following morning. Defendant preferred that a mistrial be declared, and the prosecutor urged that the jury be sent home. (17 Ill. App. 3d 791, 791-92.) The trial court sent the jury home. The following morning the defendant objected to the procedure, but the trial court noted that no objection had been voiced prior to the jury\u2019s release. The Second District of this court reversed defendant\u2019s conviction and found that defendant\u2019s failure to object to the separation was of no consequence and that under the statute, agreement to such a separation is permitted \u201conly after the jury has concluded deliberations and sealed their verdict.\u201d 17 Ill. App. 3d 791, 795.\nMore recent decisions of this court have interpreted section 115\u2014 4(1) more liberally. In People v. Jackson (1982), 105 Ill. App. 3d 750, 758, 433 N.E.2d 1385, the court determined that, where defendant, through his attorney, agreed to allow the jury to go home for the evening and made no objection to the procedure the following morning, defendant had knowingly and intelligently waived the statutory requirement of section 115 \u2014 4(1).\nIn the instant case, prior to the beginning of defendant\u2019s fourth trial, the court indicated to counsel that if circumstances warranted, it would allow the jury to separate and retire to their homes during deliberations. Defense counsel made no objection at that time. When, in fact, the jury was deadlocked after deliberating for more than five hours, the court indicated its intent to allow the jury, after proper admonishment, to retire to their homes and to return the following morning. Not only did defense counsel fail to object to the court\u2019s proposed action, but he participated in the procedure by suggesting additional cautions for the jury. No objection by defendant to the procedure was made on the following morning. The defendant offers no evidence to establish that she was in any way prejudiced by this procedure. See People v. Payton (1980), 84 Ill. App. 3d 181, 184, 405 N.E.2d 18.\nUnder these circumstances, it appears to us that defendant, through her counsel\u2019s active participation in the procedure utilized by the court, waived objection to such procedure.\nDefendant next asserts that the trial court erred in orally giving the so-called \u201cPrim Instruction.\u201d\nThe Illinois Supreme Court in People v. Prim (1972), 53 Ill. 2d 62, 75-76, 289 N.E.2d 601, cert, denied (1973), 412 U.S. 918, 37 L. Ed. 2d 144, 93 S. Ct. 2731, directed, courts of this State, when faced with deadlocked juries to instruct the jury as the trial court did in the instant case.\nIn Prim, after four hours of deliberation, the jury was brought into the courtroom and asked if they were hopelessly deadlocked. The foreman indicated that he thought there was a chance to reach a verdict. (53 Ill. 2d 62, 71.) The trial court then reminded the jury of its duty, in terms similar to that set out above, and the jury returned to deliberate. Fifteen minutes thereafter a verdict of guilty as charged was reached. (53 Ill. 2d 62, 72.) The court in Prim acknowledged the \u201ccoercive dangers\u201d inherent in such an instruction given to a deadlocked jury. The court concluded, however, that such action was preferable to allowing the jury \u201cto grope in such circumstances without some guidance from the court.\u201d 53 Ill. 2d 62, 74.\nIt has been held that when assessing the coercive nature of an instruction given as directed in Prim, consideration should be accorded to the time when the instruction is given and to the length of time the jury deliberates after such instruction. (People v. Bonds (1980), 87 Ill. App. 3d 805, 813, 410 N.E.2d 228; People v. Allen (1977), 47 Ill. App. 3d 900, 907, 365 N.E.2d 460.) It is within the trial court\u2019s discretion to permit further deliberation and to monitor the length of such deliberation even after a jury has indicated that it is \u201chopelessly deadlocked.\u201d People v. Allen (1977), 47 Ill. App. 3d 900, 906.\nThe jury in this case deliberated for more than five hours and prior to reaching a verdict, retired for the night. The following day, after deliberating for an additional seven hours, the jury sent a note to the court which read: \u201cThe jury is firm on their votes, no compromises, no total agreement, hung jury.\u201d The court indicated that whether there was in fact a \u201chung jury\u201d was a determination to be made by the court itself and not the jury. The court then, over defense objection, gave the \u201cPrim Instruction\u201d to the jury. The jury continued deliberations for about 40 minutes and returned a verdict of guilty.\nOur review of this record, being mindful of the protracted nature of this case, leads us to conclude that the trial court did not abuse its discretion when it gave to the jury the \u201cPrim Instruction.\u201d\nFinally, defendant contends the. trial court erred in denying her post-trial motion which inter alia challenged the sufficiency of the original complaint.\nIt is well established in Illinois that where, as here, the sufficiency of a charge is challenged in a motion in arrest of judgment, the standard for determining whether the charging instrument is deficient is whether the elements of the offense charged are set forth as required by section 111 \u2014 3(a) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1979, ch. 38, par. 111 \u2014 3(a); People v. Simmons (1982), 93 Ill. 2d 94, 99, 442 N.E.2d 891, quoting People v. Lutz (1978), 73 Ill. 2d 204, 211, 383 N.E.2d 171.) Section 111 \u2014 3(a) requires that the charging instrument be in writing, stating the name of the offense and the relevant statutory provisions violated; setting forth the nature and elements of the offense and the date and county in which the offense occurred and naming the accused if known or a reasonably certain description. (People v. Testa (1983), 114 Ill. App. 3d 695, 698, 449 N.E.2d 164.) Generally, a charging instrument setting forth the offense in the language of the statute \u201c \u2018is deemed sufficient when the words of the statute so far particularize the offense that by their use alone an accused is apprised with reasonable certainty of the precise offense with which he or she is charged.\u2019 \u201d People v. Testa (1983), 114 Ill. App. 3d 695, 698, quoting People v. Dickerson (1975), 61 Ill. 2d 580, 582, 338 N.E.2d 184.\nThe original complaint in the instant case was signed and sworn to by the complainant, officer Seablom, on October 21, 1977. This complaint was filed on November 14, 1977. On May 1, 1979, a bill of particulars was filed by defendant. The original complaint, however, was misplaced. On June 7, 1979, the State was allowed by the trial court to present a \u201csubstitute\u201d complaint to the court and to defense counsel. The trial court and defense counsel at that time \u201cacknowledged\u201d receipt of the \u201csubstitute\u201d complaint.\nDefendant asserts that: (1) the People \u201cnever requested or were granted leave to withdraw the first complaint and substitute the second complaint\u201d; (2) that the second complaint filed more than one year and six months after the offense was untimely; (3) that the substitute complaint was \u201csubstantially\u201d different from the first complaint; and (4) the first complaint was \u201cinsufficient as a matter of law to sustain a charge of retail theft.\u201d\nOur review of the record indicates that the People did request and were granted a substitution of complaints because the original was lost. The substitute, filed on June 7, 1979, with the authority of the court and the acknowledgment of defense counsel, was not a new charge or complaint but was intended as a substitute for the lost original. As such, it was not time-barred.\nDefendant asserts that the original and substitute complaints are substantially different and that the original complaint was insufficient to charge the offense of retail theft.\nSome time after the filing of the June 7, 1979, \u201csubstitute\u201d complaint, and before defendant\u2019s second trial, the original complaint which had been lost was found and has been made a part of the record on appeal. Comparison of the two complaints reveals that, whereas the original complaint cites the statutory section for \u201cretail theft\u201d and specifies the time and place of the alleged crime and the merchandise involved, it does not, as the substitute complaint does, indicate in the language of section 16A \u2014 3(a) that the location of the crime was \u201ca retail mercantile establishment\u201d or that the merchandise was taken \u201cwithout paying the full retail value ***.\u201d Ill. Rev. Stat. 1979, ch. 38, par. 16A \u2014 3(a).\nWe note, however, that during oral argument before this court, defense counsel acknowledged that at all times during these proceedings, including the time during which the original complaint was misplaced, he had in his possession a copy of such complaint. It appears also that defendant was in possession of both the original and the substitute complaints prior to her second trial. It seems clear in our opinion that defendant was at all times apprised with reasonable certainty of the offense with which she was charged.\nFor the reasons herein stated, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nSTAMOS and DOWNING, JJ., concur.\nIt appears that photographs of the display area described by officer Seablom as having been taken by him on a given day were in fact on film not manufactured, according to the film company, until a subsequent date.\nDennis Dungy\u2019s testimony reiterated the same facts elicited during the testimony of officer Seablom including the fact that Dennis was found not guilty by a jury of the charge of retail theft and brought a civil action against Marshall Field\u2019s and officer Seablom. This suit was pending at the time of defendant's arrest and was settled out of court in the spring of 1978.\nAt the outset of defendant\u2019s testimony on September 22, 1981, she stated that she was, and had been since June 1981, a patient and resident of Ridgeway Psychiatric Hospital. Defendant\u2019s emotional illness and hospitalization was the cause of the first mistrial in this matter. There has been no speculation by either party what, if any, effect this information had on the jury.\nMr. Kidd did not testify nor were other employees of Field\u2019s to whom defendant allegedly spoke on October 21, 1977, called to testify.", "type": "majority", "author": "JUSTICE BERLIN" } ], "attorneys": [ "Aldus S. Mitchell and Stephen Stern, both of Chicago, for appellant.", "Richard M, Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Maria Elena Gonzalez, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREA J. DUNGY, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 82\u20141139\nOpinion filed January 31, 1984.\nRehearing denied March 27, 1984; April 3, 1984.\nAldus S. Mitchell and Stephen Stern, both of Chicago, for appellant.\nRichard M, Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Marie Quinlivan, and Maria Elena Gonzalez, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0314-01", "first_page_order": 336, "last_page_order": 348 }