People v. Oliver

2026 IL App (3d) 240436-U

Opinion

NOTICE: This order was filed under Illinois Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2026 IL App (3d) 240436-U

Order filed March 20, 2026 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-24-0436 v. ) Circuit No. 22-CF-2289 ) GUILLERMO NAVA OLIVER, ) Honorable ) Margaret M. O’Connell, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

JUSTICE HOLDRIDGE delivered the judgment of the court. Presiding Justice Hettel and Justice Davenport concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: Trial counsel provided ineffective assistance where he failed to object to erroneous jury instructions.

¶2 The defendant, Guillermo Nava Oliver, appeals from his conviction for retail theft. The

defendant argues that (1) he was deprived of effective assistance where defense counsel failed to

object to erroneous and confusing jury instructions, (2) the Du Page County circuit court erred in

barring him from presenting evidence of his codefendant’s consciousness of guilt, and (3) the court erred in refusing to consider the available disposition of second chance probation because he

exercised his right to a jury trial.

¶3 I. BACKGROUND

¶4 On December 6, 2022, the defendant was indicted for retail theft (720 ILCS 5/16-25(a)(1)

(West 2022)), alleging that on October 23, 2022, he and his codefendant, Paul Jiminez, knowingly

took possession of merchandise, valued in excess of $300, offered for sale at Nordstrom, “with the

intention of depriving *** Nordstrom, permanently of the possession, use or benefit of the

merchandise without paying the full retail value.”

¶5 Prior to trial, the defendant filed a motion seeking, in relevant part, to admit evidence that

Jiminez furnished a false name to asset protection officers following the incident. The defendant

argued that Jiminez was responsible for the criminal act and their conduct upon being apprehended,

and Jiminez’s lies and the defendant’s cooperation was relevant to illustrate that they were not

acting in concert with each other. The State proffered that, at trial, the asset protection officers

would testify that the defendant and Jiminez both selected items from a shelf, placed them into a

bag that the defendant was holding, and left the store. The court denied the defendant’s motion

finding that Jiminez providing a false name to officers was not relevant or probative.

¶6 The case proceeded to jury trial on March 19, 2024. The court read the charge to

prospective jurors, mirroring the language of the indictment. Nordstrom asset protection officer

Mark Wiggins testified that, on October 23, 2022, he was in the asset protection office when he

received information about two men in the men’s fragrance department. He located the two men,

later determined to be Jiminez and the defendant, on the store surveillance cameras. Wiggins

observed the men acting dismissive of customer service associates who approached them. He

indicated that Jiminez selected two bottles of cologne and the defendant selected one bottle of

2 cologne. He explained that when the men were selecting the items, they were not very observant

of the price tags and “just kind of grabbing” them. Wiggins testified that these behaviors are

indicators that someone may be shoplifting.

¶7 After they took the bottles of cologne, Jiminez and the defendant walked to the men’s

sportswear department. Wiggins stated that they remained close to one another as they walked side

by side through the store. Jiminez concealed his bottles in a white Nordstrom bag that he was

holding. The defendant handed his bottle to Jiminez who placed it inside the bag. Wiggins then

observed them walk toward the exit. They passed several cash registers without paying and exited

the store. The defendant and Jiminez were brought to the asset protection office. A search of

Jiminez’s bag revealed the three bottles of cologne, valued at approximately $579.

¶8 In Wiggins’s written report of the incident, he indicated that he was informed by a sales

associate that Jiminez and the defendant were “refusing service.” At that point, he located them on

the surveillance camera at the fragrance counter selecting the bottles of cologne. He admitted that

the report made no mention of any personal observations of walking away from associates or

disregarding price tags. Wiggins indicated that the defendant did have a wallet in his possession.

¶9 Carlos Ortiz, an assistant asset protection manager at Nordstrom, testified that he was

conducting floor surveillance on October 23, 2022, with his manager Osiris Chaney. They received

a report regarding two men acting suspiciously in the men’s fragrance department. When they

arrived, Ortiz observed the defendant holding a bottle of cologne and Jiminez holding two bottles

of cologne and a white Nordstrom bag. Ortiz stated that he observed the defendant making furtive

eye movements, seeming more concerned about his surroundings than the merchandise he was

selecting. He also indicated that the defendant appeared to select the bottle of cologne without

regard for its price or size. Eventually, the defendant and Jiminez left the fragrance department

3 and went to the men’s sportswear department. The defendant was walking behind Jiminez. Ortiz

observed Jiminez put his two bottles of cologne into the bag he was carrying. Jiminez turned

around and the defendant handed him the bottle that he was holding. Jiminez placed that bottle in

his bag. After the bottles were concealed, they exited the building without attempting to pay for

the merchandise. Ortiz stopped them and escorted them to the asset protection office where a

search revealed a Barbie doll and three bottles of cologne in Jiminez’s bag. Ortiz did not prepare

a report in connection with this incident. Ortiz testified that he had disclosed his observations of

furtive eye movements and disregarding size and price to the state’s attorney’s office, but the

parties stipulated that Ortiz did not disclose any such observations during trial preparation.

¶ 10 Chaney testified similarly to Ortiz. He indicated that he did not observe the defendant

looking at any clothing in the sportswear department. Chaney also stated that the defendant was

compliant and cooperative upon being brought back inside the store.

¶ 11 The defendant testified that on October 23, 2022, he went to Nordstrom with an employee

of his father, Jiminez. The defendant was shopping for himself and his family. While at Nordstrom,

the defendant went to the men’s fragrance department and selected a cologne. The defendant gave

the bottle that he selected to Jiminez because Jiminez told him that he would purchase the cologne

for him. The defendant indicated that he and Jiminez separated after he handed Jiminez the bottle.

The defendant began to look at clothing in the sportswear department. The defendant saw Jiminez

heading toward the exit, so he began to follow him. He did not see what Jiminez did while they

were separated. The defendant stated that he had his wallet with him which contained $661 and

two credit cards. He did not know that Jiminez intended to steal the bottles of cologne.

¶ 12 The jury was instructed that:

4 “A person commits the offense of retail theft when he or one for whose

conduct he is legally responsible knowingly takes possession of any merchandise

displayed for sale in a retail mercantile establishment with the intention of retaining

such merchandise without paying the full retail value of such merchandise and the

value of the property exceeds $300.”

Further, the propositions provided to the jury, by both the court and the State, stated, in relevant

part, “To sustain the charge of retail theft, the State must prove [t]hat the defendant, or one for

whose conduct he is legally responsible, intended to retain the merchandise ***.”

¶ 13 During deliberations, the jurors sent a note stating: “Does ‘retain’ refer to either purchasing

the goods or stealing the goods.” The court informed the jury that it was in possession of all the

relevant law and instructed them to continue deliberating. A second note read: “We are at an

impass[e]! Extra time will not help tonight. We have 2 members who have responsibilities to care

for others ***.” The court instructed the jurors to continue deliberating. Eventually, the jury found

the defendant guilty. The defendant was sentenced to 12 months’ probation. The defendant

appealed.

¶ 14 II. ANALYSIS

¶ 15 The defendant first argues on appeal that he was provided ineffective assistance where

defense counsel failed to object to the usage of a proposed jury instruction which did not reflect

the indictment, was confusing, and did not contain an element of the offense. The defendant asserts

that counsel’s deficient performance prejudiced him where the evidence was closely balanced and

the record reflects confusion from the jurors.

¶ 16 “Every defendant has a constitutional right to the effective assistance of counsel under the

sixth amendment to the United States Constitution and the Constitution of Illinois.” People v.

5 Domagala, 2013 IL 113688, ¶ 36. Claims of ineffective assistance of counsel are measured against

the standard set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on a claim

of ineffective assistance, the defendant must demonstrate that counsel’s performance was

deficient, and that the deficient performance prejudiced the defendant. Id. To establish prejudice,

a defendant must demonstrate that there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694. “A

reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.

Prejudice may be found in cases where the chance of acquittal is less than 50% provided that a

finding of not guilty would not be unreasonable. People v. Lucious, 2016 IL App (1st) 141127,

¶ 45.

¶ 17 “The function of jury instructions is to convey to the jury the law that applies to the

evidence presented.” People v. Herron, 215 Ill. 2d 167, 187 (2005). Here, the instructions provided

to the jurors asked them to determine whether the defendant retained the merchandise. These

instructions do not reflect the charge against the defendant that he intended to permanently deprive

the merchant of the items. The State concedes, and we agree, that defense counsel’s performance

was deficient in failing to object to the instructions.

¶ 18 The State argues that the erroneous jury instructions did not prejudice the defendant

because the evidence presented at trial showed that the defendant and Jiminez took the cologne

intending to deprive Nordstrom of the items without paying the retail price. Based on this, the State

contends that no reasonable probability exists that the verdict would be different with the correct

instructions.

¶ 19 Wiggins and Ortiz observed the defendant select one bottle of cologne and Jiminez select

two bottles. Wiggins testified that the defendant and Jiminez walked side by side to the men’s

6 sportswear department. Jiminez placed his bottles inside a bag he was carrying. The defendant

handed Jiminez his bottle which was subsequently placed inside the same bag. They walked past

several registers and exited the store without attempting to pay. Ortiz indicated that upon going to

the sportswear department, the defendant walked behind Jiminez. Jiminez turned around to collect

the defendant’s bottle of cologne and placed it in his bag. After concealing the bottles, they walked

toward the exit, passing several registers without paying. Both Wiggins and Ortiz testified to

observations that were not disclosed in either reports or trial preparation.

¶ 20 The defendant admitted that he selected a bottle of cologne and handed it to Jiminez.

However, he indicated that Jiminez had offered to purchase the bottle for him, and he did not know

that Jiminez intended to steal it. The defendant was carrying enough money in his wallet to cover

the cost of the cologne he selected.

¶ 21 It is the responsibility of the jury to determine the credibility of the witness, weigh the

evidence, and resolve any conflicts in the testimony. People v. Gray, 2017 IL 120958, ¶ 35.

However, due to the confusing nature of the instructions, we cannot say that the jury necessarily

rejected the defendant’s testimony and determined the asset protection officers to be more credible.

The jurors were asked to determine whether the defendant retained merchandise rather than

intended to permanently deprive Nordstrom of the cologne without paying full retail value. The

record demonstrates that the jurors were confused about what retention entailed, contemplating

that it could encompass an intent to purchase the item. Had the jurors been correctly instructed as

to the elements of the charge against the defendant, a reasonable probability exists that the outcome

would have been different. Accordingly, we reverse the defendant’s conviction and remand for

further proceedings.

7 ¶ 22 Because we have reversed and remanded for further proceedings, we need not address the

defendant’s remaining issues. However, since the issue is likely to recur on remand, we note that

the facts presented to the court at the hearing to admit evidence regarding Jiminez furnishing a

false name to asset protection officers were contrary to the evidence presented at trial. The trial

evidence established that the items were concealed by Jiminez in Jiminez’s bag, not a bag in the

defendant’s possession. Thus, the court relied on incorrect facts, unsupported by the record, when

concluding that the requested evidence was irrelevant. Where the contested question at trial is

whether the defendant and Jiminez both possessed the requisite intent to permanently deprive

Nordstrom of the value of the cologne, both individuals’ behavior and interactions with asset

protection officers are relevant and probative.

¶ 23 III. CONCLUSION

¶ 24 The judgment of the circuit court of Du Page County is reversed and remanded for further

proceedings.

¶ 25 Reversed and remanded.