OPINION OF THE COURT

Hunter, Jr., J.

Judgment of conviction, rendered December 9, 2009, reversed, on the law and on the facts, accusatory instrument dismissed and fíne and surcharge, if paid, remitted.

On the evening of December 19, 2008, defendant was arrested for trespass at Manhattan’s Taft Houses, a public housing development consisting of nine almost identical brown brick buildings. According to defendant, he was there to visit a longtime family friend for dinner and provide her with computer assistance, but mistakenly entered the wrong building directly across the street. Following his arrest, defendant was charged by misdemeanor complaint with second-degree criminal trespass (Penal Law § 140.15), but in a subsequent prosecutor’s information, the charge was reduced to one count of criminal trespass in the third degree (Penal Law § 140.10 [a]).

At the nonjury trial, the arresting officer, Raquel Marte, was the prosecution’s sole witness. She testified, inter alia, that on December 19, 2008, she was on “vertical patrol” at one of the Taft Houses buildings, located at 65 East 112th Street. She testified that tenants would access the building by using a key or the intercom and that there were “no trespassing” signs posted. She could not recall if the locks on the entrance doors to the building were working that day and could not recall exactly where the “no trespassing” signs were posted. She went on to testify that the entrance doors to the building were not always locked. She observed the defendant enter the building but was not able to state how the defendant gained entry. She then observed defendant board an elevator within a minute of his entering the building. She and her partner boarded an adjacent elevator to the 19th floor. However, she stated that the elevator stopped on the 11th floor, at which time she observed defendant standing in the hallway. Marte and her partner continued up to the 19th floor where they patrolled the roof before taking the stairs down to the 18th floor. Marte testified that she then *75observed defendant standing in the hallway of the 18th floor. She approached him and asked him if he lived in the building. Defendant informed her that he did not live in the building but was visiting an aunt who was a tenant in the building and that he also had friends in the building. Defendant could not provide an apartment number or the name of his aunt or friends. Defendant was then arrested and searched. No drugs or weapons were found on his person.

Defendant testified that while he was a student at the State University of New York at Albany, he became close friends with a classmate named Charee Walker and subsequently developed a close relationship with her mother, Laurie Holder, whom he referred to as his “aunt.” Defendant testified that Ms. Holder lived in the Taft Houses and he visited her 10 to 15 times over a 10-year period prior to December 2008. However, he had not visited her in 2008.

Defendant further testified that he had spoken to Ms. Holder by telephone on December 18, 2008, and arranged to visit her the next day to help her with some computer problems and to have dinner. The next day, he took the subway to Taft Houses to see Ms. Holder and when he got off the subway at 110th Street, “it was dark” and he had not been “in that area a while.” He “did notice some changes” but stated that “for the most part everything was the same.” He proceeded to walk to 112th Street and stated that he crossed a parking lot connected to a walkway which was significant to him because a similar parking lot and walkway was in front of 1695 Madison Avenue where Ms. Holder lives. However, he instead entered 65 East 112th Street.

Defendant testified that he gained access to 65 East 112th Street as another individual exited the building and he took the elevator to the 18th floor. He exited on the 18th floor and “realized that it probably wasn’t the right floor” as it did not look familiar to him. He knocked on the door to an apartment he believed was Ms. Holder’s, but no one answered, and by that time he “was pretty sure that it wasn’t the right floor.” He took the stairs down to the 14th floor and exited the staircase to see if it “looked like the right one”; since that one did not look familiar to him, he continued to go down the stairs and exited on the 11th floor to call Ms. Holder because he “didn’t think it would be safe to go all the way downstairs.”

While he was searching for Ms. Holder’s number on his cell phone, he was approached by Marte and her partner who asked *76him if he lived in the building, what he was doing in the building and if he knew anyone who lives in the building. Defendant informed them that he was “visiting friends” and that his “aunt” lived in the building. When asked where his aunt lived, he testified that he told the officers, “I thought she lived on the 18th floor but I am calling her right now to go check because I had the floor wrong.” He testified that Marte did not permit him to make a phone call. He informed her that he was on probation and if he was permitted to make a phone call it would “clear everything up.” She refused and he was arrested.

Defendant admitted that there was no blood relation between him and Ms. Holder. He explained that he referred to her as his “aunt” at the time of the arrest “to create an understanding” that it was “somebody older” and not just a “buddy” or “pal,” but he was nevertheless arrested.

Ms. Holder also testified for the defense and essentially corroborated defendant’s assertions. Ms. Holder confirmed that she had known defendant since 1997 and that he was the “son” she never had. She testified that he called her “mom” and confirmed that she invited defendant to her apartment on the evening of December 19, 2008 to fix her computer and have dinner. Ms. Holder also testified that she lives on the 18th floor of 1694 Madison Avenue, not 1695 Madison Avenue, and that defendant “constantly called” her to confirm what floor she lived on. She testified that Taft Houses is comprised of at least 10 buildings that are the same shape and height and arrangement with the only visible difference being a colored strip “in the middle” that is “not very visible” and to notice it one would “have to know it to look for it.”

Ms. Holder further testified that there is a parking lot in front of her building and acknowledged that there was one in front of 65 East 112th Street. The only difference is that the one in front of her building is “directly in front” and the parking lot in front of 65 East 112th Street is “slightly to the side.” She also testified that the intercom system in her building does not work and the directory listing residents was incomplete and she did not know whether or not her name was listed. She also testified that the door to her building “hasn’t been locked in years.”

Ms. Holder testified that after receiving the telephone call from defendant notifying her of his arrest, she contacted 311 and eventually filed a complaint with the “complaint bureau” about the fact that her invited guest had been arrested for *77trespassing. Following the trial, Criminal Court convicted defendant of criminal trespass in the third degree. This appeal ensued, and we reverse.

With respect to the weight of the evidence, “in conducting its weight of the evidence review, a court must consider the elements of the crime, for even if the prosecution’s witnesses were credible their testimony must prove the elements of the crime beyond a reasonable doubt” (People v Danielson, 9 NY3d 342, 349 [2007]). The court must determine, viewing the evidence in the light most favorable to the prosecution, whether there is a valid line of reasoning and permissible inferences from which the factfinder could have found the elements of the crime proved beyond a reasonable doubt (see People v Steinberg, 79 NY2d 673, 681-682 [1992]).

A conviction based on legally sufficient evidence is subject to this court’s factual review power to assure that the verdict is supported by the weight of the evidence. “If based on all the credible evidence a different finding would not have been unreasonable, then the appellate court must, like the trier of fact below, ‘weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony’ ” (People v Bleakley, 69 NY2d 490, 495 [1987], quoting People ex rel. MacCracken v Miller, 291 NY 55, 62 [1943]).

To convict a person for criminal trespass in the third degree, the prosecution is required to prove that the person knowingly entered or remained unlawfully in a building (see Penal Law § 140.10). A person knowingly enters or remains unlawfully in a building when he is aware that he is not licensed or privileged to do so (see Penal Law § 140.00 [5]).

Upon a factual review of the record, I find that defendant’s conviction for criminal trespass in the third degree was against the weight of the evidence. An individual “who enters upon premises accidentally, or who honestly believes that he is licensed or privileged to enter, is not guilty of any degree of criminal trespass” (People v Basch, 36 NY2d 154, 159 [1975]).

It was the prosecution’s burden to prove unlawful entry or remaining, and the testimony of Marte, standing alone, was insufficient to prove beyond a reasonable doubt that defendant “knowingly enter[ed] or remain[ed] unlawfully,” without license or privilege, in the subject building (Penal Law §§ 140.10 [a]; 140.00 [5]; see People v Basch, 36 NY2d at 159). Although Marte testified that defendant was unable to provide the apartment *78number for his “aunt,” the inability to provide the arresting officer with the explanation she sought “has no logical bearing on the adequacy of the proof’ that defendant remained unlawfully in the building (Matter of James C., 23 AD3d 262, 264 [1st Dept 2005]). Moreover, it was not his obligation to provide the arresting officer with an explanation for his presence in the building (id.; see Matter of Daniel B., 2 AD3d 440, 441 [2d Dept 2003]).

Defendant’s testimony at trial was corroborated by Ms. Holder in that he was her invited guest on the day he was arrested. His testimony that he was visiting his “aunt” and mistakenly believed she lived on the 18th floor of that building coupled with Ms. Holder’s testimony was sufficient to support his reasonable belief that he was licensed or privileged to be in the building. Therefore, his belief, even if mistaken, negated the element of “knowingly and unlawfully remaining” (see People v Basch, 36 NY2d at 159).

Accordingly, the judgment of conviction is reversed, the accusatory instrument is dismissed, and the fine and surcharge, if paid, are remitted. In light of this determination, we need not reach defendant’s remaining contentions.

Shulman, J.

(dissenting). Defendant was convicted, after a bench trial, of third-degree criminal trespass upon evidence, largely undisputed: that police officers conducting a “vertical sweep” of a drug prone building in a public housing development known as the Taft Houses observed defendant enter the building at about 6:50 p.m. on a December evening, proceed through the lobby to an elevator and, within a 10-minute period, appear in three different hallways on the building’s upper floors; that “No Trespassing” signs were displayed near the building’s entranceways and that the entrance doors generally were locked; and that defendant, in response to police inquiries, acknowledged that he did not live in the building, explaining that he intended to visit his aunt — though unable to provide her name or apartment number — and that he had an unnamed friend or friends in the building.

The primary defense asserted at trial, as defense counsel framed it in her opening statement, was whether defendant had “made a mistake by walking into the wrong building.” In this connection, defendant testified that he had previously made arrangements to have dinner with his “very good friend,” one Laurie Holder, in her apartment at 6:00 p.m. on the evening in question. The trial record shows, and it is undisputed, that *79Holder actually lives in a Taft Houses building known as 1694 Madison Avenue, located across the street from the building (65 East 112th Street) in which defendant was arrested. Despite admittedly having visited the Holder residence on no fewer than 10 to 15 prior occasions and being “completely familiar” with the surrounding area, defendant maintained that he mistakenly entered the wrong building, gaining access “as another tenant or guest was exiting.” Defendant came to realize his mistake when, after taking the elevator to the 18th floor and walking down the staircase to the 14th floor,1 he could not find Holder’s apartment. Defendant testified as follows as to what occurred next:

“I figured I was in the wrong building so I had started to exit the building by the stairs because to wait . . . the elevator just takes [too] long. So I was going to take the stairs down and while I was taking the stairs I . . . got out on the 11th floor so I could make the phone call [to explain his tardy arrival to Holder] because I didn’t really think that the stairs would be safe to go all the way downstairs and also I had to make the phone call anyway.”

The police approached defendant in the 11th floor hallway before he could call Holder and, in response to their questioning about his presence in the building, defendant told the officers that he was visiting a “close friend,” that his “aunt lives in the building,” and that he “had a place to be,” but “had the floor wrong.” Asked on direct examination to “clarify” the nature of his relationship with Holder, defendant stated that, while there is no “blood relation” between them, Holder is the mother of a close female friend of his and that he generally calls Holder “mom” because she is older than he is and “that is how [Holder’s] daughter introduced her to [him].” As to why he referred to Holder as his “aunt” in response to police questioning, defendant testified that he used that term so as to convey to the officers that “it was more than ... a buddy of mine or a pal that I was visiting. It was somebody older who was very close to me.” Defendant acknowledged on cross-examination that this occasion marked the “only time” he ever referred to Holder as his aunt. Defendant also testified that, immediately prior to his arrest, he “humbly” asked the police “for some courtesy because [he] was on probation.”

*80Called as a defense witness, Holder offered testimony tending to essentially confirm defendant’s account of the timing and purpose of the (allegedly) planned apartment visit and the nature of her relationship with defendant. As to the latter point, Holder appeared to waffle, initially characterizing their relationship as merely “pretty close,” but ultimately describing defendant as the “son [she] never had,” a “son,” it bears mention, whose precise age or birth date Holder could not identify. Further, Holder conceded that, despite defendant’s failure to appear at the appointed hour, she did not call his cell phone at any point that evening to find out if he was all right, and only came to know of defendant’s arrest sometime after 8:30 p.m. that night, when she (or, more precisely, her husband) received a call from an officer at the police precinct.

The arresting police officer, in testimony elicited on rebuttal, denied defendant ever indicated he was lost.

Defendant’s arguments relating to the legal sufficiency of the evidence supporting his criminal trespass conviction are unpreserved for appellate review inasmuch as he failed to move for a trial order of dismissal on these or any other grounds (see People v Gray, 86 NY2d 10 [1995]), and I would not review them in the interest of justice. As an alternative holding, I would reject them on the merits. When the evidence is viewed in the light most favorable to the prosecution and given the benefit of every favorable inference (see People v Ford, 66 NY2d 428, 437 [1985]), it clearly sufficed to establish beyond a reasonable doubt that the dwelling premises was “fenced or otherwise enclosed in a manner designed to exclude intruders” (Penal Law § 140.10 [a]; see and compare People v Moore, 5 NY3d 725 [2005]) and that defendant knowingly entered or remained unlawfully there (see Matter of Lonique M., 93 AD3d 203 [2012]; see also People v Williams, 16 AD3d 151 [2005], lv denied 5 NY3d 771 [2005] [probable cause for criminal trespass arrest found where defendant claimed to be visiting his cousin in a Housing Authority building, but was unable to provide an apartment number and falsely identified a woman in the lobby as his cousin]). The credited police testimony detailing defendant’s suspicious behavior in the hallways of the public housing building, his ready admission that he did not live in the building and his inability to identify the name(s) or apartment number(s) of the person(s) he purportedly was attempting to visit was sufficient to establish, at least circumstantially, that he entered or remained unlawfully in the building without the requisite *81license or privilege (see Penal Law § 140.00 [5]; Matter of Lonigue M., 93 AD3d 203 [2012], supra; see also People v Lozado, 90 AD3d 582 [2011], lv denied 18 NY3d 925 [2012]; People v Quinones, 173 AD2d 395 [1991], lv denied 78 NY2d 972 [1991]). I find unavailing defendant’s apparent argument that the trial court, in determining whether the prosecution met its burden to establish guilt beyond a reasonable doubt, could not properly rely on defendant’s on-the-scene statements. Having, by his own account, affirmatively explained his presence in the building in response to police questioning, and indeed having relied on that explanation as the centerpiece of his defense at trial, defendant may not now be heard to argue that the trial court was precluded from drawing any inferences adverse to him from that evidence on the theory that it was not his obligation, in the first instance, to explain his presence (see Matter of Lonigue M., 93 AD3d 203, 207 [2012]; cf. Matter of Daniel B., 2 AD3d 440 [2003]; Matter of James C., 23 AD3d 262 [2005]).

Nor, respectfully, can I join the majority’s conclusion that defendant’s conviction was against the weight of the evidence (see People v Danielson, 9 NY3d 342 [2007]). In conducting an independent review of the weight of the evidence, a reviewing court must assess in a neutral light “all the credible evidence” (People v Bleakley, 69 NY2d 490, 495 [1987]), including evidence presented by the defense, to ascertain whether such evidence was accorded the proper weight by the factfinder, here the trial court. Under a weight-of-evidence analysis, the court “does not take the place of the [factfinder] in passing on questions of the reliability of witnesses and the credibility of testimony” (People v Griffin, 63 AD3d 635, 638 [2009], lv denied 13 NY3d 835 [2009], citing People v Romero, 7 NY3d 633, 642, 643 [2006]), and instead must give “[g]reat deference ... to the fact-finder’s opportunity to view the witnesses, hear the testimony and observe demeanor” (see People v Mateo, 2 NY3d 383, 410 [2004], cert denied 542 US 946 [2004], quoting People v Bleakley, 69 NY2d at 495).

Upon reviewing the record here, I am satisfied that defendant’s conviction comported with the weight of the credible evidence. To be sure, a person who “honestly believes that he is licensed or privileged to enter[ ] is not guilty of any degree of criminal trespass” (People v Basch, 36 NY2d 154, 159 [1975]). The central question put before the trial judge, then, was whether defendant, assuming he was invited to visit Holder’s apartment, “honestly believe [d]” he had lawfully entered the *82building housing that apartment pursuant to Holder’s consent. Resolution of that issue required the trial judge to make a credibility call, pure and simple. The court, in the end, rejected— justifiably, in my view — defendant’s explanation as to how it came about that, despite his avowed familiarity with the Taft Houses and their environs, he managed to get lost in the hallways and stairwells on the upper floors of the “wrong” Taft Houses building. The trial court’s decision to reject defendant’s trial testimony was well within its province as factfinder, particularly considering the various unanswered questions raised by the defense accounts, including why defendant (mis)identified Holder as his “aunt” to police; why, in initially attempting to exit the building, he initially chose to eschew the elevator in favor of descending at least 14 flights of stairs when he was already late for a dinner engagement; why he ultimately paused in his descent on the 11th floor hallway; and why Holder, if she in fact invited defendant to eat dinner at her apartment, made no effort whatsoever to call her supposed surrogate son to determine his whereabouts and safety.2

Because it does not “appear[ ] that the trier of fact has failed to give the evidence the weight it should be accorded” (People v Bleakley, 69 NY2d at 495), and given the lack of merit to defendant’s challenge to the facial sufficiency of the information, I respectfully dissent and vote to affirm the judgment of conviction.

Torres, J.E, and Hunter, Jr., J., concur; Shulman, J., dissents in a separate opinion.

CADY, Justice.

In this appeal, the defendant claims there was insufficient evidence to support the assault element of his conviction for second-degree robbery of a convenience store, during which the store clerk confronted him at the door of the store as he *532was attempting to exit following a theft. In resolving the issue, the State asks that we declare the crime of assault to be a general-intent offense and submits a well-researched and thorough brief to support its position.. We conclude substantial evidence supports the conviction and decline to consider the additional question raised by the State. We affirm the judgment and sentence of the district court.

I.Background Facts and Proceedings

On March 28, 2004, Larry Keeton entered a convenience store in Marshalltown and purchased a pack of cigarettes. When the store clerk opened the cash register drawer to make change, Keeton reached over the counter and grabbed the twenty-dollar bills from the register. He stated: “I’ll take that.” Keeton then attempted to exit the store, but the clerk rushed to the door and blocked his path by standing in front of the double doors. She also tried to grab the cash from Keeton’s hand as he approached, but he would not release the money from his hand. Their hands touched when she attempted to retrieve the money. Keeton then briefly backed away from the door and extended his arm. The clerk realized she could not keep him in the store until police arrived, and stepped aside to allow Keeton to leave the store. As he exited through the door, she snatched the hat from his head in anger. The incident was recorded by surveillance video.

Keeton was arrested and charged with robbery in the second degree in violation of Iowa Code section 711.1(1) (2003). He waived his right to a jury trial, and the case proceeded to a bench trial. The district court found Keeton guilty of second-degree robbery and sentenced him to a term of imprisonment not to exceed ten years.

Keeton appeals. He claims there was insufficient evidence presented at trial to support the assault element of robbery.

II. Standard of Review

‘We review sufficiency-of-the-evidenee claims for correction of errors at law. We uphold a verdict if substantial evidence supports it. ‘Evidence is substantial if it would convince a rational fact finder that the defendant is guilty beyond a reasonable doubt.’ Substantial evidence must do more than raise suspicion or speculation. We consider all record evidence not just the evidence supporting guilt when we make sufficiency-of-the-evidence determinations. However, in making such determinations, we also view the ‘evidence in the light most favorable to the State, including legitimate inferences and presumptions that may fairly and reasonably be deduced from the record evidence.’ ”

State v. Williams, 695 N.W.2d 23, 27 (Iowa 2005) (quoting State v. Quinn, 691 N.W.2d 403, 407 (Iowa 2005)).

III. Discussion

A sufflciency-of-evidence claim on appeal not only requires us to review all the relevant evidence, but also the governing law. Ultimately, we must apply the law to the evidence to determine if the evidence is sufficient to support the conviction.

Section 711.1 defines robbery as follows:

A person commits a robbery when, having the intent to commit a theft, the person does any of the following acts to assist or further the commission of the intended theft or the person’s escape from the scene thereof with or without the stolen property:

1. Commits an assault upon another.

*5332. Threatens another with or purposely puts another in fear of immediate serious injury.

3. Threatens to commit immediately any forcible felony.

It is immaterial to the question of guilt or innocence of robbery that property was or was not actually stolen.

Iowa Code § 711.1. The State charged Keeton under the first paragraph of the statute, commission of an assault. The State claimed at trial that Keeton committed an assault on the store clerk in furtherance of his escape from the convenience store.

We look to the definition of assault in section 708.1 to consider whether a robbery occurred under section 711.1(1). See State v. Spears, 312 N.W.2d 79, 80 (Iowa 1981). Section 708.1 provides, in relevant part:

An assault as defined in this section is a general intent crime. A person commits an assault when, without justification, the person does any of the following:

1. Any act which is intended to cause pain or injury to, or which is intended to result in physical contact which will be insulting or offensive to another, coupled with the apparent ability to execute the act.

2. Any act which is intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.

3. Intentionally points any firearm toward another, or displays in a threatening manner any dangerous weapon toward another.

Iowa Code § 708.1. In this case, the State relied upon the first two alternatives of assault, and the district court found Kee-ton committed assault under both alternatives.

Although the State asks us to resolve the sufficiency-of-evidenee claim by considering section 708.1(l)-(2) to only require a general intent element, the specific issue on appeal in this case only requires us to decide if the evidence in the case satisfies the statutory elements of the crime of assault. This question can be decided without considering whether the statutory language used to define the crime of assault requires a specific or general intent. See In re M.S., 10 Cal.4th 698, 42 Cal.Rptr.2d 355, 896 P.2d 1365, 1383-84 (1995) (Mosk, J., concurring) (“Indeed, ‘specific intent’ and ‘general intent’ do not define criminal mental states. Rather, they are essentially ‘labels’ attached to particular crimes to identify them as admitting (‘specific intent’) or not admitting (‘general intent’) the defense of voluntary intoxication. There is no need to attach one of the labels here. The issue is not implicated before this court. Indeed, there is a need not to attach either label. ‘Specific intent’ and ‘general intent’ have been ‘ “notoriously difficult ... to define and apply,” ’ and ‘have proved to be mischievous.’” (Citations omitted.)); Scott A. Anderegg, Note, The Voluntary Intoxication Defense in Iowa, 73 Iowa L.Rev. 935, 935 (1988) (noting confusion regarding concepts of specific and general intent); see also Model Penal Code § 2.02, at 230 & n. 3 (1985) (stating the Model Penal Code employed four culpability distinctions in lieu of the specific-intent/general-intent dichotomy, “which has been such an abiding source of confusion and ambiguity in the penal law”).

We understand the need for answers to important legal questions faced by the bench and bar. However, fundamental principles of judicial restraint limit our role to deciding each case on the issues presented, and we refrain from deciding *534issues not presented by the facts. Williams, 695 N.W.2d at 30. We explained the need to resolve legal issues based on facts in Williams:

[W]e recognize the law to be an evolving process that often makes the resolution of legal questions a composite of several cases, from which appellate courts can gain a better view of the puzzle before arranging all the pieces. The wisdom of this process has been revealed time and again, and we continue to subscribe to it today;

Id.

Accordingly, we decline to revisit the issue whether assault is a general- or specific-intent crime in this case. Regardless of which label is attached to the offense, the State was still required to prove Kee-ton possessed the mens rea required by the statute, and we turn to decide if it did so. State v. Taylor, 689 N.W.2d 116, 132 (Iowa 2004) (“[R]egardless of whether assault is a specific intent or general intent crime, the State must prove by evidence beyond a reasonable doubt that the defendant intended his act to cause pain or injury to the victim or to result in physical contact that would be insulting or offensive to the victim.”); State v. Bedard, 668 N.W.2d 598, 601 (Iowa 2003) (“The intent elements discussed in Heard remain as part of the definition of the offense and continue to be matters that the State must prove by evidence beyond a reasonable doubt.”), cert. denied, 543 U.S. 932, 125 S.Ct. 336, 160 L.Ed.2d 234 (2004). The State had to prove that Keeton did an act he intended either: (1) to cause the clerk pain or injury, (2) to make insulting or offensive physical contact with the clerk, or (3) to make the clerk fear immediate painful, injurious, insulting, or offensive physical contact. Iowa Code § 708.1(1)- ■ (2). We turn to the evidence in the record that bears upon this intent element.

Keeton testified that he did not intend to touch, hurt, insult, or offend the clerk. However, intent required by the statute “may be inferred from the circumstances of the transaction and the actions of the defendant.” 21 Am.Jur.2d Criminal Law § 128, at 214-15 (1998); see also Taylor, 689 N.W.2d at 132 (“[A]n actor will ordinarily be viewed as intending the natural and probable consequences that usually follow from his or her voluntary act.” (citing Bedard, 668 N.W.2d at 601)).

We begin by considering the actions of the parties to the incident. The surveillance video of the incident offered into evidence at trial showed that the clerk blocked one of the double doors as Keeton tried to exit by standing in front of the door. After the clerk attempted to retrieve the money, Keeton moved in the direction of the other door to exit, and the clerk lunged in front of that door to block Keeton from leaving. Keeton then backed up and began to walk toward the clerk with his hand extended, holding the money. He then pulled his hand to his chest at the same time as the clerk moved off to the side of the doors to permit Keeton to exit.

This evidence could, support an inference of intent to place the clerk in fear of immediate physical contact that would be painful, injurious, insulting, or offensive. Similarly, the evidence could support an inference that the actions of Keeton were intended to result in physical contact which would be insulting or offensive to the clerk. Keeton wanted to leave the store, and his outstretched hand could evidence his intent to push the clerk out of his path.

Furthermore, the testimony of Keeton and the testimony of the clerk at trial provided further evidence of the intent to support the conviction under the statute. The clerk testified she felt Keeton was *535“bound and determined to keep the money,” and she realized there was “no way” she could keep him from leaving. While this testimony is not dispositive, these perceptions are properly considered in determining intent. See Spears, 312 N.W.2d at 81 (stating the fact that the victim “may or may not have been afraid of the victim is not dispositive” and that the focus of the assault statute is on the defendant, not the victim); 6 Am.Jur.2d Assault and Battery § 18, at 25 (1999) (“Some courts have held that the requisite intent can be inferred from evidence that the complainant was in fear of imminent serious bodily injury, and that he felt it was the defendant’s intention to so place him”). Moreover, Keeton acknowledged on cross-examination that he “would have pushed past [the clerk] and went out the door” if the clerk failed to move from the exit. Although Keeton tried to retract this testimony on redirect examination, it was nevertheless evidence of intent.

We conclude that the record, viewed in the light most favorable to the State, reveals substantial evidence to satisfy the intent element of the crime of assault under section 708.1(1) and (2). Furthermore, the same evidence supports the conclusion that Keeton committed an overt act in furtherance of that intent. See Iowa Code § 708.1 (requiring an act); Heard, 636 N.W.2d at 230 (“Assault requires an overt act.” (citing State v. Smith, 309 N.W.2d 454, 457 (Iowa 1981))); 6 Am.Jur.2d Assault and Battery § 24, at 29 (“When an assault is defined as an attempt to commit a battery, the overt act, to be sufficient to support a charge of assault, must be a direct, ineffectual act toward the commission of a battery. When an unequivocal purpose of violence is accompanied by any act which, if not stopped or diverted, will result in personal injury, the execution of the purpose to commit a battery has begun and is enough to constitute a criminal assault.”). The final element of assault— that Keeton had the apparent ability to do the act — is not disputed on appeal.

We understand Keeton’s argument that he was only attempting to leave the store to complete his theft, not to commit an assault. Yet, this is not a case where proof of intent depends upon a single piece of evidence from which two reasonable inferences could be drawn. See State v. Truesdell, 679 N.W.2d 611, 618-19 (Iowa 2004) (“[W]hen two reasonable inferences can be drawn from a piece of evidence, we believe such evidence only gives rise to a suspicion, and, without additional evidence, is insufficient to support guilt.” (Citations omitted; emphasis added.)). The multiple actions of the participants in this case and the inferences derived from those actions, as well as their testimony, are together sufficient to support a finding of the intent element of an assault under our statutory definition. The success of Keeton’s claim at trial hinged on the facts as viewed by the fact-finder, and it is not for us to interfere with the finding made when supported by substantial evidence, even though the evidence may have also supported a finding favorable to the defendant. See Chrysler Fin. Co. v. Bergstrom, 703 N.W.2d 415, 418 (Iowa 2005) (“ ‘ “Evidence is not insubstantial merely because we may draw different conclusions from it; the ultimate question is whether it supports the finding actually made, not whether the evidence would support a different finding.” ’ ” (quoting Fischer v. City of Sioux City, 695 N.W.2d 31, 33-34 (Iowa 2005); citing 5 Am.Jur.2d Appellate Review § 666, at 340 (1995))); State v. Axline, 450 N.W.2d 857, 860 (Iowa 1990) (affirming because although the evidence could have supported a different conclusion than that reached by the district court, there was substantial evidence to support the conclusion actually reached).

*536Keeton does not challenge the sufficiency of the evidence on the other elements of robbery. Therefore, we need not consider them.

IV. Conclusion

We conclude there was substantial evidence presented at trial that Keeton committed an assault on the clerk. We affirm his conviction for robbery in the second degree.

AFFIRMED.

Justice Thomas

delivered the opinion of the Court.

In Schmuck v. United States, 489 U. S. 705 (1989), we held that a defendant who requests a jury instruction on a lesser offense under Rule 81(e) of the Federal Rules of Criminal Procedure must demonstrate that “the elements of the lesser offense are a subset of the elements of the charged offense.” Id., at 716. This ease requires us to apply this elements test to the offenses described by 18 U. S. C. §§ 2113(a) and (b) *259(1994 ed. and Supp. IV). The former punishes “[wjhoever, by force and violence, or by intimidation, takes ... from the person or presence of another . . . any . . . thing of value belonging to, or in the . . . possession of, any bank . . . .” The latter, which entails less severe penalties, punishes, inter alia, “[wjhoever takes and carries away, with intent to steal or purloin, any . .. thing of value exceeding $1,000 belonging to, or in the . . . possession of, any bank . . . .” We hold that § 2113(b) requires an element not required by § 2113(a) — three in fact — and therefore is not a lesser included offense of § 2113(a). Petitioner is accordingly prohibited as a matter of law from obtaining a lesser included offense instruction on the offense described by § 2113(b).

f — I

On September 9, 1997, petitioner Floyd J. Carter donned a ski mask and entered the Collective Federal Savings Bank in Hamilton Township, New Jersey. Carter confronted a customer who was exiting the bank and pushed her back inside. She screamed, startling others in the bank. Undeterred, Carter ran into the bank and leaped over the customer service counter and through one of the teller windows. One of the tellers rushed into the manager’s office. Meanwhile, Carter opened several teller drawers and emptied the money into a bag. After having removed almost $16,000 in currency, Carter jumped back over the counter and fled from the scene. Later that day, the police apprehended him.

A grand jury indicted Carter, charging him with violating § 2113(a). While not contesting the basic facts of the episode, Carter pleaded not guilty on the theory that he had not taken the bank’s money “by force and violence, or by intimidation,” as § 2113(a) requires. Before trial, Carter moved that the court instruct the jury on the offense described by § 2113(b) as a lesser included offense of the offense described by § 2113(a). The District Court, relying *260on United States v. Mosley, 126 F. 3d 200 (CA3 1997),1 denied the motion in a preliminary ruling. At the close of the Government’s ease, the District Court denied Carter’s motion for a judgment of acquittal and indicated that the preliminary ruling denying the lesser included offense instruction would stand. The jury, instructed on § 2113(a) alone, returned a guilty verdiet, and the District Court entered judgment pursuant to that verdiet.

The Court of Appeals for the Third Circuit affirmed in an unpublished opinion, relying on its earlier decision in Mosley. Judgment order reported at 185 F. 3d 863 (1999). While the Ninth Circuit agrees with the Third that a lesser offense instruction is precluded in this context, see United States v. Gregory, 891 F. 2d 732, 734 (CA9 1989), other Circuits have held to the contrary, see United States v. Walker, 75 F. 3d 178, 180 (CA4 1996); United States v. Brittain, 41 F. 3d 1409, 1410 (CA10 1994). We granted certiorari to resolve the conflict, 528 U. S. 1060 (1999), and now affirm.

II

In Schmuck, supra, we were called upon to interpret Federal Rule of Criminal Procedure 31(e)’s provision that “[t]he defendant may be found guilty of an offense necessarily included in the offense charged.” We held that this provision requires application of an elements test, under which “one offense is not ‘necessarily included’ in another unless the elements of the lesser offense are a subset of the elements of the charged offense.” 489 U. S., at 716.2 The *261elements test requires “a textual comparison of criminal statutes,” an approach that, we explained, lends itself to “certain and predictable” outcomes. Id., at 720.3

Applying the test, we held that the offense of tampering with an odometer, 15 U. S. C. §§ 1984 and 1990e(a) (1982 ed.), is not a lesser included offense of mail fraud, 18 U. S. C. §1341. We explained that mail fraud requires two elements — (1) having devised or intending to devise a scheme to defraud (or to perform specified fraudulent acts), and (2) use of the mail for the purpose of executing, or attempting to execute, the scheme (or specified fraudulent acts). The lesser offense of odometer tampering, however, requires the element of knowingly and willfully causing an odometer to be altered, an element that is absent from the offense of mail fraud. Accordingly, the elements of odometer tampering are not a subset of the elements of mail fraud, and a defendant charged with the latter is not entitled to an instruction on the former under Rule 31(e). Schmuck, supra, at 721-722.

Turning to the instant ease, the Government contends that three elements required by §2113(b)’s first paragraph are not required by § 2113(a): (1) specific intent to steal; (2) asportation; and (3) valuation exceeding $1,000. The statute provides:

Ҥ2113. Bank robbery and incidental crimes

“(a) Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, *262management, or possession of, any bank, credit union, or any savings and loan association ...

“Shall be fined under this title or imprisoned not more than twenty years, or both.

“(b) Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined under this title or imprisoned not more than ten years, or both; or

‘Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value not exceeding $1,000 belonging to, or in the care, custody, control, management, or possession of any bank, credit union, or any savings and loan association, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

A “textual comparison” of the elements of these offenses suggests that the Government is correct. First, whereas subsection (b) requires that the defendant act “with intent to steal or purloin,” subsection (a) contains no similar requirement. Second, whereas subsection (b) requires that the defendant “tak[e] and carr[y] away” the property, subsection (a) only requires that the defendant “tak[e]” the property. Third, whereas the first paragraph of subsection (b) requires that the property have a “value exceeding $1,000,” subsection (a) contains no valuation requirement. These extra clauses in subsection (b) “cannot be regarded as mere surplusage; [they] mea[n] something.” Potter v. United States, 155 U. S. 438, 446 (1894).

Carter urges that the foregoing application of Schmuck’s elements test is too rigid and submits that ordinary principles of statutory interpretation are relevant to the Schmuck inquiry. We do not dispute the latter proposition. The *263 Schmuck test, after all, requires an exercise in statutory interpretation before the comparison of elements may be made, and it is only sensible that normal principles of statutory construction apply. We disagree, however, with petitioner’s conclusion that such principles counsel a departure in this ease from what is indicated by a straightforward reading of the text.

Ill

We begin with the arguments pertinent to the general relationship between §§ 2118(a) and (b). Carter first contends that the structure of §2113 supports the view that subsection (b) is a lesser included offense of subsection (a). He points to subsection (c) of §2118, which imposes criminal liability on a person who knowingly “receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank... in violation of subsection (b).” (Emphasis added.) It would be anomalous, posits Carter, for subsection (e) to apply — as its text plainly provides — only to the fence who receives property from a violator of subsection (b) but not to the fence who receives property from a violator of subsection (a). The anomaly disappears, he concludes, only if subsection (b) is always violated when subsection (a) is violated — i. e., only if subsection (b) is a lesser included offense of subsection (a).

But Carter’s anomaly — even if it truly exists — is only an anomaly. Petitioner does not claim, and we tend to doubt, that it rises to the level of absurdity. Cf. Green v. Bock Laundry Machine Co., 490 U. S. 504, 509-511 (1989); id., at 527 (Scalia, J., concurring in judgment). For example, it may be that violators of subsection (a) generally act alone, while violators of subsection (b) are commonly assisted by fences. In such a state of affairs, a sensible Congress may have thought it necessary to punish only the fences of property taken in violation of subsection (b). Or Congress may have thought that a defendant who violates subsection (a) *264usually — if not inevitably — also violates subsection (b), so that the fence may be punished by reference to that latter violation. In any event, nothing in subsection (c) purports to redefine the elements required by the text of subsections (a) and (b).

Carter’s second argument is more substantial. He submits that, insofar as subsections (a) and (b) are similar to the common-law crimes of robbery and larceny, we must assume that subsections (a) and (b) require the same elements as their common-law predecessors, at least absent Congress’ affirmative indication (whether in text or legislative history) of an intent to displace the common-law scheme. While we (and the Government) agree that the statutory crimes at issue here bear a close resemblance to the common-law crimes of robbery and larceny, see Brief for United States 29 (citing 4 W. Blackstone, Commentaries *229, *232); accord, post, at 278-279, that observation is beside the point. The canon on imputing common-law meaning applies only when Congress makes use of a statutory term with established meaning at common law, and Carter does not point to any such term in the text of the statute.

This limited scope of the canon on imputing common-law meaning has long been understood. In Morissette v. United States, 342 U. S. 246 (1952), for example, we articulated the canon in this way:

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Id., at 263 (emphasis added).

*265In other words, a “duster of ideas” from the common law should be imported into statutory text only when Congress employs a common-law term, and not when, as here, Congress simply describes an offense analogous to a common-law crime without using common-law terms.

We made this clear in United States v. Wells, 519 U. S. 482 (1997). At issue was whether 18 U. S. C. § 1014 — which punishes a person who “knowingly makes any false statement or report . . . for the purpose of influencing in any way the action” of a Federal Deposit Insurance Corporation insured bank “upon any application, advance, . . . commitment, or loan” — requires proof of the materiality of the “false statement.” The defendants contended that since materiality was a required element of “false statement”-type offenses at common law, it must also be required by § 1014. Although Justice Stevens in dissent thought the argument to be meritorious, we rejected it:

‘‘[Fjundamentally, we disagree with our colleague’s apparent view that any term that is an element of a common-law crime carries with it every other aspect of that common-law crime when the term is used in a statute. Justice Stevens seems to assume that because ‘false statement’ is an element of perjury, and perjury criminalizes only material statements, a statute criminalizing ‘false statements’ covers only material statements. By a parity of reasoning, because common-law perjury involved statements under oath, a statute criminalizing a false statement would reach only statements under oath. It is impossible to believe that Congress intended to impose such restrictions sub silentio, however, and so our rule on imputing common-law meaning to statutory terms does not sweep so broadly.” 519 U. S., at 492, n. 10 (emphasis added; citation omitted).4

*266Similarly, in United States v. Turley, 352 U. S. 407 (1957), we declined to look to the analogous common-law crime because the statutory term at issue — “stolen”—had no meaning at common law. See id., at 411-412 (“[WJhile ‘stolen’ is constantly identified with larceny, the term was never at common law equated or exclusively dedicated to larceny” (internal quotation marks omitted)).

By contrast, we have not hesitated to turn to the common law for guidance when the relevant statutory text does contain a term with an established meaning at common law. In Neder v. United States, 527 U. S. 1 (1999), for example, we addressed whether materiality is required by federal statutes punishing a “scheme or artifice to defraud.” Id., at 20, and 20-21, nn. 3-4 (citing 18 U.S.C. §§1341, 1343, 1344). Unlike the statute in Wells, which contained no common-law term, these statutes did include a common-law term— “defraud.” 527 U. S., at 22. Because common-law fraud required proof of materiality, we applied the canon to hold that these federal statutes implicitly contain a materiality requirement as well. Id., at 23. Similarly, in Evans v. United States, 504 U. S. 255, 261-264 (1992), we observed that “extortion” in 18 U. S. C. § 1951 was a common-law term, and proceeded to interpret this term by reference to its meaning at common law.

Here, it is undisputed that “robbery” and “larceny” are terms with established meanings at common law. But nei*267ther term appears in the text of § 2113(a) or § 2113(b).5 While the term “robbery” does appear in §2113’s title, the title of a statute “ ‘[is] of use only when [it] shed[s] light on some ambiguous word or phrase’” in the statute itself. Pennsylvania Dept. of Corrections v. Yeskey, 524 U. S. 206, 212 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947) (modifications in original)). And Carter does not claim that this title illuminates any such ambiguous language. Accordingly, the canon on imputing common-law meaning has no bearing on this ease.

<

We turn now to Carter’s more specific arguments concerning the “extra” elements of § 2113(b). While conceding the absence of three of §2113(b)’s requirements from the text of § 2113(a) — (1) “intent to steal or purloin”; (2) “takes and carries away,” i. e., asportation; and (3) “value exceeding $1,000” (first paragraph) — Carter claims that the first two should be deemed implicit in § 2113(a), and that the third is not an element at all.

A

As to “intent to steal or purloin,” it will be recalled that the text of subsection (b) requires a specific “intent to steal or purloin,” whereas subsection (a) contains no explicit mens rea requirement of any kind. Carter nevertheless argues that such a specific intent requirement must be deemed implicitly present in § 2113(a) by virtue of “our cases interpreting criminal statutes to include broadly applicable scienter requirements, even where the statute by its tei’ms *268does not contain them.” United States v. X-Citement Video, Inc., 513 U.S. 64, 70 (1994).6 Properly applied to §2113, however, the presumption in favor of scienter demands only that we read subsection (a) as requiring proof of general intent — that is, that the defendant possessed knowledge with respect to the actus reus of the crime (here, the taking of property of another by force and violence or intimidation).

Before explaining why this is so under our cases, an example, United States v. Lewis, 628 F. 2d 1276, 1279 (CA10 1980), cert, denied, 450 U. S. 924 (1981), will help to make the distinction between “general” and “specific” intent less esoteric. In Lewis, a person entered a bank and took money from a teller at gunpoint, but deliberately failed to make a quick getaway from the bank in the hope of being arrested so that he would be returned to prison and treated for alcoholism. Though this defendant knowingly engaged in the acts of using force and taking money (satisfying “general intent”), he did not intend permanently to deprive the bank of its possession of the money (failing to satisfy “specific intent”).7 See generally 1W. LaPave & A. Scott, Substantive Criminal *269Law § 3.5, p. 315 (1986) (distinguishing general from specific intent).

The presumption in favor of scienter requires a court to read into a statute only that mens rea which is necessary to separate wrongful conduct from “otherwise innocent conduct.” X-Citement Video, supra, at 72. In Staples v. United States, 511 U. S. 600 (1994), for example, to avoid criminalizing the innocent activity of gun ownership, we interpreted a federal firearms statute to require proof that the defendant knew that the weapon he possessed had the characteristics bringing it within the scope of the statute. Id., at 611-612. See also, e. g., Liparota v. United States, 471 U. S. 419, 426 (1985); Morissette, 342 U. S., at 270-271. By contrast, some situations may call for implying a specific intent requirement into statutory text. Suppose, for example, a statute identical to § 2113(b) but without the words “intent to steal or purloin.” Such a statute would run the risk of punishing seemingly innocent conduct in the case of a defendant who peaceably takes money believing it to be his. Reading the statute to require that the defendant possess general intent with respect to the actus reus — i. e., that he know that he is physically taking the money — would fail to protect the innocent actor. The statute therefore would need to be read to require not only general intent, but also specific intent — i. e., that the defendant take the money with “intent to steal or purloin.”

In this case, as in Staples, a general intent requirement suffices to separate wrongful from “otherwise innocent” conduct. Section 2113(a) certainly should not be interpreted to apply to the hypothetical person who engages in forceful taking of money while sleepwalking (innocent, if aberrant activity), but this result is accomplished simply by requiring, as Staples did, general intent — i. e., proof of knowledge with respect to the actus reus of the crime. And once this mental state and actus reus are shown, the concerns underlying the presumption in favor of scienter are fully satis*270fied, for a forceful taking — even by a defendant who takes under a good-faith claim of right — falls outside the realm of the “otherwise innocent.” Thus, the presumption in favor of scienter does not justify reading a specific intent requirement — “intent to steal or purloin” — into § 2113(a).8

Independent of his reliance upon the presumption in favor of scienter, Carter argues that the legislative history of § 2113 supports the notion that an “intent to steal” requirement should be read into § 2113(a). Carter points out that, in 1934, Congress enacted what is now § 2113(a), but with the adverb “feloniously” (which all agree is equivalent to “intent to steal”) modifying the verb “takes.” Act of May 18, 1934, ch. 304, §2(a), 48 Stat. 783. In 1937, Congress added what is now § 2113(b). Act of Aug. 24, 1937, ch. 747, 50 Stat. 749. Finally, in 1948, Congress made two changes to §2113, deleting “feloniously” from what is now § 2113(a) and dividing the “robbery” and “larceny” offenses into their own separate subsections. 62 Stat. 796.

Carter concludes that the 1948 deletion of “feloniously” was merely a stylistic change, and that Congress had no intention, in deleting that word, to drop the requirement that the defendant “feloniously” take the property — that is, with intent to steal.9 Such reasoning, however, misunder*271stands our approach to statutory interpretation. In analyzing a statute, we begin by examining the text, see, e. g., Estate of Cowart v. Nicklos Drilling Co., 505 U. S. 469, 475 (1992), not by "psychoanalyzing those who enacted it,” Bank One Chicago, N. A. v. Midwest Bank & Trust Co., 516 U. S. 264, 279 (1996) (Scalia, J., concurring in part and concurring in judgment). While “feloniously” no doubt would be sufficient to convey a specific intent requirement akin to the one spelled out in subsection (b), the word simply does not appear in subsection (a).

Contrary to the dissent’s suggestion, post, at 283-284, this reading is not a fanciful one. The absence of a specific intent requirement from subsection (a), for example, permits the statute to reach eases like Lewis, see supra, at 268, where an ex-convict robs a bank because he wants to be apprehended and returned to prison. (The Government represents that indictments on this same fact pattern (which invariably plead out and hence do not result in reported decisions) are brought “as often as every year,” Brief for United States 22, n. 13.) It can hardly be said, therefore, that it would have been absurd to delete “feloniously” in order to reach such defendants. And once we have made that determination, our inquiry into legislative motivation is at an end. Cf. Bock Laundry Machine Co., 490 U. S., at 510-511.10

*272B

Turning to the second element in dispute, it will be recalled that, whereas subsection (b) requires that the defendant “tak[e] and earr[y) away the property,” subsection (a) requires only that the defendant “tak[e]” the property. Carter contends that the “takes” in subsection (a) is equivalent to “takes and carries away” in subsection (b). While Carter seems to acknowledge that the argument is at war with the text of the statute, he urges that text should not be dispositive here because nothing in the evolution of § 2113(a) suggests that Congress sought to discard the asportation requirement from that subsection.

But, again, our inquiry focuses on an analysis of the textual product of Congress’ efforts, not on speculation as to the internal thought processes of its Members. Congress is certainly free to outlaw bank theft that does not involve aspor-tation, and it hardly would have been absurd for Congress to do so, since the taking-without-asportation scenario is no imagined hypothetical. See, e. g., State v. Boyle, 970 S. W. 2d 835, 836, 838-839 (Mo. Ct. App. 1998) (construing state statutory codification of common-law robbery to apply to defendant who, after taking money by threat of force, dropped the money on the spot). Indeed, a leading treatise applauds the deletion of the asportation requirement from the elements of robbery. See 2 LaFave & Scott, Substantive Criminal Law § 8.11, at 439. No doubt the common law’s decision to require asportation also has its virtues. But Congress adopted a different view in § 2113(a), and it is not for us to question that choice.

C

There remains the requirement in §2113(b)’s first paragraph that the property taken have a “value exceeding $1,000” — a requirement notably absent from § 2113(a). Carter, shifting gears from his previous arguments, concedes the textual point but claims that the valuation require*273ment does not affect the Schmuck elements analysis because it is a sentencing factor, not an element. We disagree. The structure of subsection (b) strongly suggests that its two paragraphs — the first of which requires that the property taken have “value exceeding $1,000,” the second of which refers to property of “value not exceeding $1,000” — describe distinct offenses. Each begins with the word “[w]hoever,” proceeds to describe identically (apart from- the differing valuation requirements) the elements of the offense, and concludes by stating the prescribed punishment. That these provisions “stand on their own grammatical feet” strongly suggests that Congress intended the valuation requirement to be an element of each paragraph’s offense, rather than a sentencing factor of some base § 2113(b) offense. Jones v. United States, 526 U. S. 227, 234 (1999). Even aside from the statute’s structure, the “steeply higher penalties” — an enhancement from a 1-year to a 10-year maximum penalty on proof of valuation exceeding $1,000 — leads us to conclude that the valuation requirement is an element of the first paragraph of subsection (b). See Castillo v. United States, ante, at 127; Jones, 526 U. S., at 233. Finally, the constitutional questions that would be raised by interpreting the valuation requirement to be a sentencing factor persuade us to adopt the view that the valuation requirement is an element. See id., at 239-252.

The dissent agrees that the valuation requirement of subsection (b)’s first paragraph is an element, but nonetheless would hold that subsection (b) is a lesser included offense of subsection (a). Post, at 287-289. The dissent reasons that the “value not exceeding $1,000” component of §2113(b)’s second paragraph is not an element of the offense described in that paragraph. Hence, the matter of value does not prevent §2113(b)’s second paragraph from being a lesser included offense of § 2113(a). And if a defendant wishes to receive an instruction on the first paragraph of § 2113(b) — which entails more severe penalties than the sec*274ond paragraph, but is a more realistic option from the jury’s standpoint in a case such as this one where the value of the property clearly exceeds $1,000 — the dissent sees no reason to bar him from making that election, even though the “value exceeding $1,000” element of §2113(b)’s first paragraph is clearly absent from § 2118(a).

This novel maneuver creates a problem, however. Since subsection (a) contains no valuation requirement, a defendant indicted for violating that subsection who requests an instruction under subsection (b)’s first paragraph would effectively “waive ... his [Fifth Amendment] right to notice by indictment of the ‘value exceeding $1,000’ element.” Post, at 289. But this same course would not be available to the prosecutor who seeks the insurance policy of a lesser included offense instruction under that same paragraph after determining that his case may have fallen short of proving the elements of subsection (a). For, whatever authority defense counsel may possess to waive a defendant’s constitutional rights, see generally New York v. Hill, 528 U. S. 110 (2000), a prosecutor has no such power. Thus, the prosecutor would be disabled from obtaining a lesser included offense instruction under Rule 31(c), a result plainly contrary to Schmuck, in which we explicitly rejected an interpretive approach to the Rule that would have permitted “the defendant, by in effect waiving his right to notice,... [to] obtain a lesser [included] offense instruction in circumstances where the constitutional restraint of notice to the defendant would prevent the prosecutor from seeking an identical instruction,” 489 U. S., at 718.

* * *

We hold that § 2113(b) is not a lesser included offense of § 2113(a), and therefore that petitioner is not entitled to a jury instruction on § 2113(b). The judgment of the Third Circuit is affirmed.

It is so ordered.

*275Justice Ginsburg,

with whom Justice Stevens, Justice Souter, and Justice Breyer join, dissenting.

At common law, robbery meant larceny plus force, violence, or putting in fear. Because robbery was an aggravated form of larceny at common law, larceny was a lesser included offense of robbery. Congress, I conclude, did not depart from that traditional understanding when it rendered “Bank robbery and incidental crimes” federal offenses. Accordingly, I would hold that petitioner Carter is not prohibited as a matter of law from obtaining an instruction on bank larceny as a lesser included offense. The Gourt holds that Congress, in 18 U. S. C. §2113, has dislodged bank robbery and bank larceny from their common-law mooring. I dissent from that determination.

I

The Court presents three reasons in support of its conclusion that a lesser included offense instruction was properly withheld in this case under the elements-based test of Schmuck v. United States, 489 U. S. 705 (1989). First, the Court holds that bank larceny contains an “intent to steal” requirement that bank robbery lacks. Ante, at 267-271. Second, the Court concludes that larceny contains a requirement of carrying away, or “asportation,” while robbery does not. Ante, at 272. And third, the Court states that the “value exceeding $1,000” requirement in the first paragraph of the larceny statute is an element for which no equivalent exists in the robbery statute. Ante, at 272-274. The Court’s first and second points, I conclude, are mistaken. As for the third, I agree with the Court that the “value exceeding $1,000” requirement is an element essential to sustain a conviction for the higher degree of bank larceny. I would hold, however, that Carter was not disqualified on that account from obtaining the lesser included offense instruction he sought.

*276I note at the outset that the structure of §2118 points strongly toward the conclusion that bank larceny is a lesser included offense of bank robbery. Section 2113(e) imposes criminal liability on any person who knowingly “receives, possesses, conceals, stores, barters, sells, or disposes of, any property or money or other thing of value which has been taken or stolen from a bank ... in violation of subsection (b).” If bank larceny, covered in § 2113(b), contains an intent or asportation element not included in bank robbery, covered in § 2113(a), then § 2113(c) creates an anomaly. As the Court concedes, ante, at 263-264, under today’s decision the fence who gets his loot from a bank lareenist will necessarily receive property “stolen... in violation of subsection (b),” but the one who gets his loot from a bank robber will not. Once it is recognized that bank larceny is a lesser included offense of bank robbery, however, the anomaly vanishes. Because anyone who violates § 2113(a) necessarily commits the lesser included offense described in § 2113(b), a person who knowingly receives stolen property from a bank robber is just as guilty under § 2113(e) as one who knowingly receives stolen property from a bank lareenist.1

I emphasize as well that the title of § 2113 is “Bank robbery and incidental crimes.” This Court has repeatedly recognized that “The title of a statute and the heading of a section’ are ‘tools available for the resolution of a doubt’ *277about the meaning of a statute.” Almendarez-Torres v. United States, 523 U. S. 224, 234 (1998) (quoting Trainmen v. Baltimore & Ohio R. Co., 331 U. S. 519, 528-529 (1947)).2 Robbery, all agree, was an offense at common law, and this Court has consistently instructed that courts should ordinarily read federal criminal laws in accordance with their common-law origins, if Congress has not directed otherwise. See Neder v. United States, 527 U. S. 1, 21 (1999) (“[W]here Congress uses terms that have accumulated settled meaning under the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” (internal quotation marks and modifications omitted)); Evans v. United States, 504 U. S. 255, 259 (1992) (“It is a familiar ‘maxim that a statutory term is generally presumed to have its common-law meaning.’ ”) (quoting Taylor v. United States, 495 U. S. 575, 592 (1990)); United States v. Turley, 352 U. S. 407, 411 (1957) (“We recognize that where a federal criminal statute uses a common-law term of established meaning without otherwise defining it, the general practice is to give that term its common-law meaning.”). As we explained in Morissette v. United States, 342 U. S. 246 (1952):

“[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary *278direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.” Id., at 263.

In interpreting §2118, then, I am guided by the common-law understanding of “robbery and incidental crimes.” At common law, as the Government concedes, robbery was an aggravated form of larceny. Specifically, the common law defined lareeny as “the felonious taking, and carrying away, of the personal goods of another.” 4 W. Blackstone, Commentaries on the Laws of England 230 (1769) (Blackstone) (internal quotation marks omitted). Robbery, in turn, was larceny effected by taking property from the person or presence of another by means of force or putting in fear. Brief for United States 29-30 (citing 2 W. LaFave & A. Scott, Substantive Criminal Law § 8.11, pp. 437-438 (1986) (LaFave & Scott)). Larceny was therefore a lesser included offense of robbery at common law. See 4 Blackstone 241 (robbery is “[o]pen and violent lareiny from the person” (emphasis deleted)); 2 E. East, Pleas of the Crown § 124, p. 707 (1803) (robbery is a species of “aggravated larceny”); 2 W. Russell & C. Greaves, Crimes and Misdemeanors *101 (“robbery is an aggravated species of lareeny”).

Closer inspection of the common-law elements of both crimes confirms the relationship. The elements of common-law lareeny were also elements of robbery. First and most essentially, robbery, like lareeny, entailed an intentional taking. See 4 Blackstone 241 (robbery is “the felonious and forcible taking, from the person of another, of goods or money to any value, by putting him in fear”); 2 East, supra, at 707 (robbery is the “felonious taking of money or goods, to any value, from the person of another, or in his presence, against his will, by violence or putting him in fear”). Second, as the above quotations indicate, the taking in a robbery had to be “felonious,” a common-law term of art signifying an intent to steal. See 4 Blackstone 232 (“This taking, and carrying away, must also be felonious; that is, done animo *279 furandi [with intent to steal]: or, as the civil law expresses it, lucri causa [for the sake of gain].”)) Black’s Law Dictionary 555 (5th ed. 1979) (“Felonious” is “[a] technical word of law which means done with intent to commit crime”). And third, again like larceny, robbery contained an asportation requirement. See 2 LaFave & Scott §8.11, at 489 (“Just as larceny requires that the thief both ‘take’ (secure dominion over) and ‘carry away5 (move slightly) the property in question, so too robbery under the traditional view requires both a taking and an asportation (in the sense of at least a slight movement) of the property.” (footnotes omitted)). Unlike larceny, however, robbery included one further essential component: an element of force, violence, or intimidation. See 4 Blackstone 242 (“[P]utting in fear is the criterion that distinguishes robbery from other lareinies.”).3

Precedent thus instructs us to presume that Congress has adhered to the altogether clear common-law understanding *280that larceny is a lesser included offense of robbery, unless Congress has affirmatively indicated its design, in codifying the crimes of robbery and larceny, to displace their common-law meanings and relationship.

Far from signaling an intent to depart from the common law, the codification of § 2113’s predecessor statute suggests that Congress intended to adhere to the traditional ranking of larceny as a lesser included offense of robbery. There is no indication at any point during the codification of the two crimes that Congress meant to install new conceptions of larceny and robbery severed from their common-law foundations.

Prior to 1934, federal law did not criminalize bank robbery or larceny; these crimes were punishable only under state law. Congress enacted the precursor to § 2113(a) in response to an outbreak of bank robberies committed by John Dillinger and others who evaded capture by state authorities by moving from State to State. See Jerome v. United States, 318 U. S. 101, 102 (1943) (1934 Act aimed at “interstate operations by gangsters against banks — activities with which local authorities were frequently unable to cope”). In bringing federal law into this area, Congress did not aim to reshape robbery by altering the common-law definition of that crime. On the contrary, Congress chose language that practically jumped out of Blackstone’s Commentaries:

“Whoever, by force and violence, or by putting in fear, feloniously takes, or feloniously attempts to take, from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank shall be fined not more than $5,000 or imprisoned not more than twenty years, or both.” Act of May 18,1934, ch. 304, §2(a), 48 Stat. 783.

*281It soon became apparent, however, that this legislation left a gap: It did not reach the thief who intentionally, though not violently, stole money from a bank. Within a few years, federal law enforcers endeavored to close the gap. In a letter to the Speaker of the House, the Attorney General conveyed the Executive Branch’s official position: “The fact that the statute is limited to robbery and does not include larceny and burglary has led to some incongruous results.” See H. R. Rep. No. 732, 75th Cong., 1st Sess., 1 (1937) (reprinting letter). In particular, the Attorney General cited the example of a thief apprehended after taking $11,000 from a bank while a teller was temporarily absent. Id., at 1-2. He therefore asked Congress to amend the bank robbery statute, specifically to add a larceny provision shorn of any force, violence, or fear requirement. Id., at 2. Congress responded by passing an Act “[t]o amend the bank robbery statute to include burglary and larceny.” Act of Aug. 24, 1937, ch. 747, 50 Stat. 749. The Act’s new larceny provision, which Congress placed in the very same section as the robbery provision, punished “whoever shall take and carry away, with intent to steal or purloin,” property, money, or anything of value from a bank. Ibid. There is not the slightest sign that, when this new larceny provision was proposed in terms tracking the common-law formulation, the Attorney General advocated any change in the definition of robbery from larceny plus to something less. Nor is there any sign that Congress meant to order such a change. The Act left in place the 1934 Act’s definition of bank robbery, which continued to include the word “feloniously,” requiring (as the Court concedes, ante, at 270) proof by the Government of an intent to steal. 50 Stat. 749.

In its 1948 codification of federal crimes, Congress delineated the bank robbery and larceny provisions of §§ 2113(a) and 2113(b) and placed these provisions under the title “Bank robbery and incidental crimes.” Act of June 25,1948, § 2113, *28262 Stat. 796-797. In this codification, Congress deleted the word “feloniously” from the robbery provision, leaving the statute in substantially its present form.

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That 1948 deletion forms the basis of the Government’s prime argument against characterizing § 2113(b) as a lesser included offense of § 2113(a), namely, that robbery, unlike larceny, no longer requires a specific intent to steal. The Government concedes that to gain a conviction for robbery at common law, the prosecutor had to prove the perpetrator’s intent to steal. The Government therefore acknowledges that when Congress uses the terms “rob” or “robbery” “without further elaboration,” Congress intends to retain the common-law meaning of robbery. Brief for United States 16, n. 9. But the Government contends that the 1948 removal of “feloniously” from § 2113(a) showed Congress’ purpose to dispense with any requirement of intent to steal.

It is true that the larceny provision contains the words “intent to steal” while the current robbery provision does not.4 But the element-based comparison called for by Schmuck is not so rigid as to require that the compared statutes contain identical words. Nor does Schmuck counsel deviation from our traditional practice of interpreting federal criminal statutes consistently with their common-law origins in the absence of affirmative congressional indication to the contrary. Guided by the historical understanding of the relationship between robbery and larceny both at common law and as brought into the federal criminal code, I conclude that the offense of bank robbery under § 2113(a), like the offense of bank larceny under § 2113(b), has always included and continues to include a requirement of intent to steal.

*283This traditional reading of the robbery statute makes common sense. The Government agrees that to be convicted of robbery, the defendant must resort to force and violence, or intimidation, to accomplish his purpose. But what purpose could this be other than to steal? The Government describes two scenarios in which, it maintains, a person could commit bank robbery while nonetheless lacking intent to steal. One scenario involves a terrorist who temporarily takes a bank’s money or property aiming only to disrupt the bank’s business; the other involves an ex-convict, unable to cope with life in a free society, who robs a bank because he wants to be apprehended and returned to prison. Brief for United States 22, n. 13.

The Government does not point to any cases involving its terrorist scenario, and I know of none. To illustrate its ex-convict scenario, the Government cites United States v. Lewis, 628 P. 2d 1276 (CA10 1980), which appears to be the only reported federal case presenting this staged situation. The facts of Lewis — a case on which the Court relies heavily, see ante, at 268, 271 — were strange, to say the least. Hoping to be sent back to prison where he could receive treatment for his alcoholism and have time to pursue his writing hobby, Lewis called a local detective and informed him of his intention to rob a bank. 628 F. 2d, at 1277. He also discussed his felonious little plans with the police chief, undercover police officers, and a psychologist. Ibid. He even allowed his picture to be taken so that it could be posted in local banks for identification. Ibid. Following his much-awaited heist, Lewis was arrested in the bank’s outer foyer by officers who had him under surveillance. Id., at 1278.

I am not sure whether a defendant exhibiting this kind of “bizarre behavior,” ibid., should in fact be deemed to lack a specific intent to steal. (The Tenth Circuit, I note, determined that specific intent was present in Lewis, for “[t]he jury, charged with the duty to infer from conflicting evidence the defendant’s intent, could have concluded that *284if Lewis was not arrested he would have kept the money and spent it.” Id., at 1279.) But whatever its proper disposition, this sort of case is extremely rare — the Government represents that, nationwide, sueh indictments are brought no more than once per year. Brief for United States 22, n. 13. Moreover, unlike a John Dillinger who foils state enforcers by robbing banks in Chicago and lying low in South Bend, the thief who orchestrates his own capture at the hands of the local constable hardly poses the kind of problem that one would normally expect to trigger a federal statutory response. In sum, I resist the notion — apparently embraced by the Court, see ante, at 271 — that Congress’ purpose in deleting the word “feloniously” from § 2113(a) was to grant homesick ex-eonviets like Lewis their wish to return to prison. Nor can I credit the suggestion that Congress’ concern was to cover the Government’s fictional terrorist, or the frustrated account holder who “withdraws” $100 by force or violence, believing the money to be rightfully his, or the thrill seeker who holds up a bank with the intent of driving around the block in a getaway car and then returning the loot, or any other defendant whose exploits are seldom encountered outside the pages of law school exams.

Indeed, there is no cause to suspect that the 1948 deletion of “feloniously” was intended to effect any substantive change at all. Nothing indicates that Congress removed that word in response to any assertion or perception of prosecutorial need. Nor is there any other reason to believe that it was Congress’ design to alter the elements of the offense of robbery. Rather, the legislative history suggests that Congress intended only to make “changes in phraseology.” H. R. Rep. No. 304, 80th Cong., 1st Sess., A135 (1947). See Prince v. United States, 352 U. S. 322, 326, n. 5 (1957) (“The legislative history indicates that no substantial change was made in this [1948] revision” of §2113); Morissette, 342 U.S., at 269, n. 28 (“The 1948 Revision was not intended to ereate new crimes but to recodify *285those then in existence.”)- As the Third Circuit has recognized, “it seems that the deletion of ‘feloniously’ was a result of Congress’ effort to delete references to felonies and misdemeanors from the code, inasmuch as both terms were defined in 18 U. S. C. § 1,” a statute that has since been repealed.5 United States v. Mosley, 126 F. 3d 200, 205 (CA3 1997). See also United States v. Richardson, 687 F. 2d 952, 957 (CA7 1982) (giving the same account of the 1948 revision). I would not attribute to Congress a design to create a robbery offense stripped of the requirement of larcenous intent in the absence of any affirmative indication of such a design.6

Our decision in Prince supports this conclusion. The petitioner in that ease had entered a bank, displayed a revolver, and robbed the bank. He was convicted of robbery and of entering the bank with the intent to commit a felony, both crimes prohibited by § 2113(a). The trial judge sentenced him, consecutively, to 20 years for the robbery and 15 years for the entering-with-intent crime. 352 U. S., at 324. This Court reversed the sentencing decision. The entering-with-intent crime, we held, merges with the robbery crime once the latter erime is consummated. Thus, we explained, the punishment could not exceed 20 years, the sentence authorized for a consummated robbery. Id., at 329. In reaching our decision in Prince, we noted that, when the federal bank robbery proscription was enlarged in 1937 to add the entering-with-intent and larceny provisions, “[i]t was manifestly the purpose of Congress to establish lesser offenses.” *286 Id., at 827. We further stated that the “heart of the [entering] crime is the intent to steal,” and that “[t]his mental element merges into the completed crime if the robbery is consummated.” Id., at 328. Prince thus conveys the Court’s comprehension that an intent to steal is central not only to the entry and larceny crimes, but to robbery as well.

United States v. Wells, 519 U. S. 482 (1997), relied on by the Court, ante, at 265, is not in point. In that case, we held that the offense of making a false statement to a federally insured bank, 18 U. S. C. § 1014, did not include a requirement of materiality. We reached that holding only after concluding that the defendants in that ease had not “come close to showing that at common law the term ‘false statement’ acquired any implication of materiality that came with it into § 1014.” 519 U. S., at 491. Indeed, the defendants made “no claims about the settled meaning of ‘false statement’ at common law.” Ibid. Moreover, we held that “Congress did not codify the crime of perjury or comparable common-law crimes in § 1014;... it simply consolidated 13 statutory provisions relating to financial institutions” to create a single regulatory offense. Ibid. Three of those 13 provisions, we observed, had contained express materiality requirements and lost them in the course of consolidation. Id., at 492-493. From this fact, we inferred that “Congress deliberately dropped the term ‘materiality’ without intending materiality to be an element of §1014.” Id., at 493. Here, by contrast, it is clear that Congress’ aim was to codify the common-law offenses of bank robbery and bank larceny; that intent to steal was an element of common-law robbery brought into § 2113(a) via the word “feloniously”; and that Congress’ deletion of that word was not intended to have any substantive effect, much less to dispense with the requirement of intent to steal.

Having accepted the Government’s argument concerning intent to steal, the Court goes on to agree with the Government that robbery, unlike larceny, does not require that *287the defendant carry away the property. As with intent to steal, the historical linkage of the two crimes reveals the Court’s error. It is true that § 2113(b) includes the phrase “takes and carries away” while § 2113(a) says only “takes.” Both crimes, however, included an asportation requirement at common law. See supra, at 279. Indeed, the text of §§ 2113(a) and (b) — which the Court maintains must be the primary focus of lesser included offense analysis — mirrors the language of the common law quite precisely. At common law, larceny was typically described as a erime involving both a “taking” and a “carrying away” See 4 Blaekstone 231 (helpfully reminding us that “cepit et asportavit was the old law-latin”). Robbery, on the other hand, was often defined in “somewhat undetailed language,” LaFave & Scott § 8.11, at 438, n. 6, that made no mention of “carrying away,” see 4 Blaekstone 231, but was nevertheless consistently interpreted to encompass an element of asportation. The Court overlooks completely this feature of the common-law terminology. I note, moreover, that the asportation requirement, both at common law and under §2113, is an extremely modest one: even a slight movement will do. See LaFave & Scott §8.11, at 439; 2 Russell & Greaves, Crimes and Misdemeanors, at *152-*153. The text of §§ 2113(a) and (b) thus tracks the common law. The Court’s eonclusory statement notwithstanding, nothing in the evolution of the statute suggests that “Congress adopted a different view in § 2113(a),” ante, at 272, deliberately doing away with the minimal asportation requirement in prosecutions for bank robbery. I would hold, therefore, that both crimes continue to contain an asportation requirement.

Finally, the Court concludes that the “value exceeding $1,000” requirement of the first paragraph of § 2113(b) is an element of the offense described in that paragraph. I agree with this conclusion and with the reasoning in support of it. See ante, at 273. It bears emphasis, however, that the lesser degree of bank larceny defined in §2113(b)’s second para*288graph contains no dollar value element even arguably impeding its classification as a lesser included offense of bank robbery. The Government does not contend that the “value not exceeding $1,000” component of that paragraph is an element of the misdemeanor offense, and such a contention would make scant sense. Surely Congress did not intend that a defendant charged only with the lower grade of bank larceny could successfully defend against that charge by showing that he stole more than $1,000. In other words, if a defendant commits larceny without exhibiting the distinguishing characteristics of robbery (force and violence, or intimidation), he has necessarily committed at least the lesser degree of larceny, whether he has taken $500 or $5,000. Under Schmuek, then, a defendant charged with bank robbery in violation of § 2113(a) is not barred as a matter of law from obtaining a jury instruction on bank larceny as defined in the second paragraph of § 2113(b).

I see no reason why a defendant charged with bank robbery, which securely encompasses as a lesser included offense the statutory equivalent of petit larceny, should automatically be denied an instruction on the statutory equivalent of grand larceny if he wants one. It is clear that petit and grand larceny were two grades of the same offense at common law. See 4 Blackstone 229 (petit and grand larceny are “considerably distinguished in their punishment, but not otherwise”). And, as earlier explained, supra, at 278-279, robbery at common law was an aggravated form of that single offense. One of the key purposes of Schmuck’s elements test is to allow easy comparison between two discrete crimes. See 489 U. S., at 720-721. That purpose would be frustrated if an element that exists only to distinguish a more culpable from a less culpable grade of the same crime were sufficient to prevent the defendant from getting a lesser included offense instruction as to the more culpable grade. I would therefore hold that a defendant charged with the felony of bank robbery is not barred as a matter of *289law from requesting and receiving an instruction describing as a lesser included offense the felony grade of bank larceny.7

To be sure, any request by the defendant for an instruction covering the higher grade of bank larceny would be tantamount to a waiver of his right to notice by indictment of the "value exceeding $1,000” element. See Stirone v. United States, 361 U. S. 212, 215 (1960) (Fifth Amendment requires the Government to get a grand jury indictment before it may prosecute any felony). The constitutional requirement of notice would likely prevent the prosecution from obtaining the same instruction without the defendant’s consent. I would limit any such asymmetry, however, to the unusual circumstance presented here, where an element serves only to distinguish a more culpable from a less culpable grade of the very same common-law crime and where the less culpable grade is, in turn, a lesser included offense of the crime charged.

* * *

In sum, I would hold that a defendant charged with bank robbery as defined in 18 U. S. C. § 2113(a) is not barred as a matter of law from obtaining a jury instruction on bank larceny as defined in 18 U. S. C. § 2113(b). In reaching the opposite conclusion, the Court gives short shrift to the common-law origin and statutory evolution of §2113. The Court’s woodenly literal construction gives rise to practical anomalies, see supra, at 276, and n. 1, and effectively shrinks the jury’s choices while enlarging the prosecutor’s options. I dissent.

Opinion

GEORGE, C. J.

Section 459 of the Penal Code1 provides, in part, that one who “enters any house, room, apartment, . . . store, ... or other building . . . with intent to commit. . . larceny or any felony is guilty of burglary.” (Italics added.) We granted review to address a conflict in Court of Appeal decisions concerning whether a defendant’s entry into a bedroom within a single-family house with the requisite intent can support a burglary conviction if that intent was formed only after the defendant’s entry into the house. We conclude that such an entry can support a burglary conviction under section 459, and hence reverse the judgment of the Court of Appeal, which reached a contrary conclusion.

I.

At approximately noon on April 20, 1999, 22-year-old Ana I. answered defendant’s knock at the door of her single-family home in Vista. Defendant, then 25 years of age, attempted to sell Ana some magazines, but she stated she was not interested. Defendant asked Ana for a glass of water, which she provided to him as he remained outside the house. Defendant eventually asked Ana whether he could enter the house, and he did so. (Ana could not recall at trial whether she invited defendant to enter.)

Defendant sat at the dining room table while Ana stood in the “area where the door to the kitchen was.” Eventually Ana sat at the table with defendant. Defendant persisted in his attempt to sell a magazine subscription, but soon changed the subject, asking Ana whether she had a boyfriend. When told that she did not, defendant asked her why she did not. Ana revealed that she had broken up with her boyfriend. Ana felt nervous because she did not *74speak English well and “did not know how to answer the questions he was asking.”2 Ana asked defendant to leave, telling him that she had to depart to pick up her niece and saying to defendant, “can you go out,” while raising her hand and making a motion. After some time, Ana repeated to defendant that she had to pick up her niece at school and when he still did not leave the house, Ana got up, walked to the living room to turn off the stereo, and again told defendant that she had to depart to pick up her niece.

At this point, defendant had been in the house, talking with Ana at the dining room table, for about 15 minutes. Defendant rose from the dining room table, walked to the living room where Ana was standing near the stereo, and asked her whether she liked the music that was playing. Ana replied that she did, and walked down the hall to her bedroom to find outdoor shoes to wear upon leaving the house.

Although Ana did not ask defendant to go with her into the bedroom, he followed her into that room. (There was no testimony that the bedroom door was closed, or that Ana opened it.) As Ana retrieved her shoes from the floor of the closet, she realized that defendant was in the bedroom with her, standing just inside the bedroom doorway. At that point, defendant may have asked Ana whether the bedroom was hers. Defendant blocked Ana’s exit, diverted her attention by telling her to look out a window, and then shoved her face down onto the bed, pressing a pillow on top of her head as she began to scream. During her struggles, Ana began to see white spots and had difficulty breathing. Ultimately, defendant raped her, and then walked into the bathroom. Ana closed her bedroom door, and locked it. When defendant exited from the bathroom, he knocked on Ana’s door. She told him to leave and stated that she was “not going to tell anybody, but he should leave.”

Ana left the house through her bedroom window and walked to a school to meet her niece, who noticed that Ana had red splotches on her face. Later that day Ana told her mother and her sister that she had been attacked, and that evening Ana went to a hospital, where she described the assault to a police officer. A later medical examination revealed the presence of defendant’s semen in Ana’s vagina. Ana also showed signs of petechiae (pinpoint hemorrhaging) on her face, a condition consistent with asphyxia.

The trial court instructed the jury on the offense of burglary by using a modified version of CALJIC No. 14.50 as follows: “The defendant is accused in count one of having committed the crime of burglary, a violation *75of section 459 of the Penal Code. [f| Every person who enters a building or any room within a building with the specific intent to commit rape, a felony, is guilty of the crime of burglary in violation of Penal Code section 459.”3 (Italics added.) Based upon these and related instructions,4 the prosecution argued to the jury that defendant could be found guilty of burglary if he formed the intent to rape either (i) prior to entering the house, or (ii) after entering the house, but prior to entering the bedroom in which the sexual assault occurred.

The jury convicted defendant of first degree burglary (§§ 459, 460) and forcible rape (§261, subd. (a)(2)), and found true the allegations that defendant personally used a deadly weapon (the pillow) (§§ 12022, subd. (b)(1), 12022.3, subd. (a)). The jury also found true the allegation that the forcible rape was committed during the commission of a residential burglary with the intent to commit forcible rape (§ 667.61, subds. (a) and (d)(4)). The trial court imposed a sentence of 29 years to life in prison.5

The Court of Appeal upheld defendant’s conviction for forcible rape, but in a split decision reversed the burglary conviction for instructional error, setting aside the related true finding concerning the section 667.61 allegation. We granted the Attorney General’s petition for review.

*76II.

The Attorney General asserts that the plain words of section 459 (defining as burglary the entry of “any . . .room. . . with intent to commit . . . larceny or any felony”) establish that the court’s instructions were correct and that the elements of the offense of burglary were established in this case.

Defendant contends, as the Court of Appeal majority held below, that the Legislature could not have intended for the circumstances presented here to constitute a burglary. He maintains that the word “room” in section 459 applies only to those rooms as to which there is an expectation of protection from intrusion—from room to room—that is comparable to the expectation of protection from intrusion into a house from outside the house. In other words, defendant argues that the term “any . . . room” as used in section 459 was intended to encompass only certain types of rooms—for example, a locked room within a single-family house or a separate dwelling unit within a boarding house, entry into which is generally unauthorized even for other legal occupants of the house.

If we were to view the issue before us from the perspective of how the offense of burglary currently is defined in other jurisdictions in the nation, defendant’s proposed interpretation of that offense would have substantial support. During the past few decades, the legislatures of many of our sister states have been quite active in amending their respective burglary statutes in ways that either clarify or limit the meaning of the term “room,” or otherwise narrow the circumstances in which entry of a room can constitute burglary. At the present time, statutes in most jurisdictions, consistent with the recommendation of the Model Penal Code,6 make clear that the burglary statutes in these jurisdictions apply only to entry of a “room” that constitutes *77a “separate unit” or a “separately secured” or “separately occupied” portion of a building or structure.7

As noted, the interpretation proposed by defendant would focus upon the nature of the room entered and would inquire whether an occupant’s reasonable expectation of protection from intrusion into that room from the other rooms is comparable to the expectation of protection from intrusion into a house from outside the house. As the dissenting justice in the Court of Appeal observed, under this view no burglary occurs “unless the nature of the room is such that it is considered as secure from entry from the interior of the structure as from the exterior, e.g., it is a separate dwelling place or is kept locked.” (Italics added.) In other words, the limiting gloss proposed by defendant essentially would embrace the “separately secured or occupied” standard endorsed by the Model Penal Code and adopted, in one form or another, in most (but not all) other jurisdictions.8

*78Although the interpretation of the statute proposed by defendant (and endorsed by the majority in the Court of Appeal below) is not unreasonable, as explained below we do not write on a clean slate. In view of the history and prior interpretation of the California statute, we are not free to adopt by judicial construction a limitation on the term “room” that has been explicitly established in other jurisdictions only by explicit legislative action. Instead, in light of governing California precedent, we conclude that section 459 reasonably must be interpreted in the manner urged by the Attorney General.

III.

At common law, the offense of burglary was defined as breaking and entering the dwelling house of another in the nighttime with intent to commit a felony. (2 Jones’ Blackstone (1916) p. 2431 (Jones’ Blackstone); see 2 LaFave & Scott, Substantive Criminal Law (1986) Crimes Relating to Property, § 8.13, p. 464.) “Across the intervening centuries these elements have been expanded or discarded to such an extent that the modern-day offense commonly known as burglary bears little relation to the common-law ancestor.” (LaFave & Scott, supra, at p. 464; see People v. Davis (1998) 18 Cal.4th 712, 720-722 [76 Cal.Rptr.2d 770, 958 P.2d 1083]; People v. Valencia (2002) 28 Cal.4th 1, 6-8 [120 Cal.Rptr.2d 131, 46 P.3d 920].)

In California, the metamorphosis of common law burglary into statutory burglary began in 1850 with the adoption of section 58 of the Act Concerning Crimes and Punishments, from which today’s Penal Code section 459 is derived. This first statute defined burglary as entering, in the nighttime and with the requisite intent, “any dwelling house, or any other house whatever . . . .” (Stats. 1850, ch. 99, § 58, p. 235.)9

Eight years later, in 1858, section 58 was amended by substituting for the phrase “any dwelling house, or any other house whatever,” the phrase that exists today in section 459, ‘‘‘'any house, room, apartment or tenement.” (Stats. 1858, ch. 245, § 58 p. 206, italics added.)10 Upon being codified into *79the Penal Code in 1872, the statute read essentially the same11 and, as relevant here, section 459 continues to read the same today: “Every person who enters any house, room, apartment, tenement, shop, warehouse, store, mill, bam, stable, outhouse or other building . . . with intent to commit. . . larceny or any felony is guilty of burglary.” (Italics added.)12 Section 460, subdivision (a), currently specifies that “[e]very burglary of an inhabited dwelling house ... is burglary of the first degree.”

We proceed to examine the principal California decisions that have construed the word “room” in our burglary statute.

A.

This court directly ruled upon the meaning of the word “room,” as used in section 459, for the first time in People v. Young (1884) 65 Cal. 225 [3 P. 813] (Young). 13 In that case, the defendant entered a public railway station and thereafter entered a ticket office (which apparently had walls that were *80eight to nine feet high but did not reach the ceiling) located within the station. We rejected the theory that section 459 required the defendant to have formed the required intent prior to entering the railway station, so long as he formed that intent prior to entering a room within that structure—the ticket office. Accordingly, we held that the trial court did not err in refusing a requested defense instruction that if the defendant conceived his intent to steal after he entered the railway station building, the jury should find the defendant not guilty. (Young, at p. 226.) We stated: “One who enters, with burglarious intent, a room of a house enters the house with such intent. . . .” (Ibid.) In this regard, Young reflected the prevailing common law understanding that entry from inside a structure into a room within that structure could constitute a burglary.14

Subsequent to Young, a number of California appellate court decisions have held that entry into various types of rooms can constitute burglary.

Most of these cases, like Young, concern entry into private rooms within public or commercial buildings. (E.g., People v. Elsey (2000) 81 Cal.App.4th 948 [97 Cal.Rptr.2d 269] (Elsey) [entry into separate, locked school classrooms]; People v. Church (1989) 215 Cal.App.3d 1151 [264 Cal.Rptr. 49] [entry into separately leased and locked offices in an office building]; People v. Mackabee (1989) 214 Cal.App.3d 1250 [263 Cal.Rptr. 183 ] [entry into an *81enclosed “office area” set off by “a waist-high counter about two-and-one-half feet wide” in the lobby of a building otherwise open to the public]; People v. Edwards (1971) 22 Cal.App.3d 598 [99 Cal.Rptr. 516] [entry into women’s restroom inside hospital]; People v. Garcia (1963) 214 Cal.App.2d 681 [29 Cal.Rptr. 609] [entry into enclosed storage cage within a liquor store], disapproved on another ground in Mozzetti v. Superior Court (1971) 4 Cal.3d 699, 706 [94 Cal.Rptr. 412, 484 P.2d 84]; People v. Davis (1959) 175 Cal.App.2d 365 [346 P.2d 248] [entry into closed office from “lubrication room” of a service station]; People v. Gaytan (1940) 38 Cal.App.2d 83 [100 P.2d 496] [entry into storage room of cafe].)

In other decisions, courts have upheld burglary convictions based upon the defendant’s (i) entry into a private room within a multi-unit lodging facility (e.g., People v. O’Keefe (1990) 222 Cal.App.3d 517 [271 Cal.Rptr. 769] (O’Keefe) [entry into separate student dormitory rooms]; People v. Fleetwood (1985) 117 Cal.App.3d 982 [217 Cal.Rptr. 612] [entry into motel room]), (ii) entry from the garage of a single-family home into a locked kitchen (People v. Thomas (1991) 235 Cal.App.3d 899 [1 Cal.Rptr.2d 434] (Thomas)), and (iii) entry, from inside a home, into a rented and locked bedroom within the home (People v. Wilson (1989) 208 Cal.App.3d 611 [256 Cal.Rptr. 422]).

Of all the cases applying section 459, only one, People v. McCormack (1991) 234 Cal.App.3d 253 [285 Cal.Rptr. 504] (McCormack), concerns the precise type of entry we face here—entry, by an ostensible guest in the home, from inside the living quarters of a single-family home, into the unsecured bedroom of a member of a family living in the home. Most of the other recent decisions described above—specifically, Elsey, supra, 81 Cal.App.4th 948, Thomas, supra, 235 Cal.App.3d 899, and O’Keefe, supra, 222 Cal.App.3d 517—have made a point of distinguishing McCormack and the normal single-family-home setting. We first discuss McCormack, and then the three other cited appellate decisions.

B.

The defendant in McCormack, supra, 234 Cal.App.3d 253, entered a single-family home through an unlocked door, assertedly at the occupant’s invitation. The occupant—the brother of the homeowner—observed the defendant in the kitchen and asked him to leave the house, but the defendant refused to do so. Instead, the defendant asked the occupant whether he wanted a beer and requested permission to use the telephone. {Id., at p. 255.) The occupant departed and telephoned the police from a neighbor’s residence. When the police arrived, they found the defendant (in a hallway of *82the home) holding items taken from bedrooms. The defendant was charged with a single count of burglary. The trial court instructed that the “ ‘intent [to steal the personal property of another] need not be in the mind of the person at the time of the initial entry into the structure, if he subsequently forms the intent and enters a room within the structure.’ ” (Ibid., bracketed material in original.) Consistent with this instruction, the prosecutor argued to the jury that the defendant committed burglary even if he formed the intent to steal after entering the house, so long as he did so before he entered one of the bedrooms. (Ibid.) The defendant was convicted of burglary and appealed.

The Court of Appeal in McCormack found the trial court’s instruction “consistent with the literal language of the controlling code section. In its current form this code section states: ‘Every person who enters any . . . room . . . with intent to commit grand or petit larceny or any felony is guilty of burglary.’ (§ 459.) We have found no published decisions by a court of this state holding, on facts similar to those present here, that burglary is not committed when the intent to steal is formed after entry to a building but before entering a room therein from which the defendant intends to steal property.” (McCormack, supra, 234 Cal.App.3d 253, 255.) Relying upon our decision in Young, supra, 65 Cal. 225, and some of the Court of Appeal decisions cited ante, at pages 80-81, the court held that because “the plain language of the code includes entry into a room within the definition of burglary,” the instruction was proper. (McCormack, at p. 256.)

The court in McCormack also found that the basic policy underlying the burglary statute (see People v. Gauze (1975) 15 Cal.3d 709, 715 [125 Cal.Rptr. 773, 542 P.2d 1365]) supported its view: “Just as the initial entry into a home carries with it a certain degree of danger [to personal safety], subsequent entries into successive rooms of the home raise the level of risk that the burglar will come into contact with the home’s occupants with the resultant threat of violence and harm. Applying the plain language of the statute therefore serves rather than frustrates the policy of the law.” (McCormack, supra, 234 Cal.App.3d at p. 257.)15

C.

One year prior to McCormack, the Court of Appeal in O ’Keefe, supra, 222 Cal.App.3d 517, addressed whether entries into separate rooms in a college *83dormitory supported convictions for separate burglary counts. The court answered in the affirmative. It reasoned that merely because “each of the rooms is within the one building . . . does not mean they are not separate dwellings within the meaning of section 459,” and found that “an individual student dormitory room is a separate inhabited dwelling within the meaning of section 459.” (Id., at p. 521.)

The defendant in O’Keefe, supra, 222 Cal.App.3d 517, attempted to avoid this conclusion by arguing that the student dormitory rooms were analogous to rooms in a single-family home (as to which, the defendant assumed, multiple convictions under § 459 would not be proper). Without endorsing the defendant’s assumption, the court in O’Keefe rejected the attempted analogy between dormitory rooms and bedrooms of a single-family home. First, it observed, a student dormitory is “analogous to a hotel or apartment complex” and not to a single-family home. (O’Keefe, supra, 222 Cal.App.3d at p. 521.) The court noted that “[i]n many apartment and hotel complexes, facilities are shared but separate burglaries of the individual rooms may still occur” (ibid), and it cited decisions finding the entry into a bedroom of a tenant of a home to be burglary, and the entry into separate rooms in a business complex to constitute separate burglaries.16 Second, the court in O’Keefe declined to analogize between students living in a dormitory and family residents occupying a single-family home, noting that although the dormitory residents “may share kitchen and bathroom facilities . . . , this does not make them one big family. . . . [Ejach student lives and enjoys separate privacy in each of their individual dormitory rooms. These rooms are their homes while attending school. Unauthorized entry into each dormitory room presents a new and separate danger to each of the occupants. Accordingly, individual dormitory rooms and the students who occupy them are entitled to protection under the meaning of section 459.” (O’Keefe, at p. 521.)

D.

Shortly after McCormack was filed, the Court of Appeal decided Thomas, supra, 235 Cal.App.3d 899. In that case the defendant first entered the garage of a single-family residence and then, while still in the garage, forcibly entered locked living quarters of the home—the kitchen. The prosecutor in Thomas argued that the jury could convict the defendant of *84burglary if he formed an intent to steal in the garage but prior to entry into the kitchen. The defendant asserted that he could not be convicted of burglary under these circumstances, because when a garage is “an attached, integral part of a house, it must be considered simply one room of several which together constitute the dwelling for purposes of burglary.” (Id., at p. 905.) The court rejected the defense position, observing that section 459 proscribed entry into a “room” with felonious intent and “nothing in this language . . . would exempt [the defendant] from conviction for burglary simply because his entry into the [victims’] house took place from the garage rather than from somewhere outdoors.” (Thomas, at p. 905.)

As in O’Keefe, however, the court in Thomas, supra, 235 Cal.App.3d 899, proceeded to distinguish the entry there at issue from other entries of rooms within single-family homes. The court emphasized that the defendant’s “forcible and unauthorized entry into the living quarters of the [victims’] home [from the garage] was precisely the evil that the burglary statute is designed and intended to prevent. The kitchen was separate from the garage. It was protected and secured by a locked door which [the defendant] forced open with a crowbar. The [victims’] expectation of privacy and security within their living quarters was clearly greater than that in their garage, even if the garage may be considered part of the entire dwelling for burglary purposes. In our opinion, it would defeat the purposes of the burglary statute to hold in this case that [the defendant] could not be found guilty of burglary unless it was shown that he conceived his felonious intent prior to entering the garage . . . .” (Thomas, supra, 235 Cal.App.3d at pp. 906-907, italics added.) In the course of its discussion, the court in Thomas also asserted in a footnote: “[W]here a burglar enters several rooms in a single structure, each with felonious intent, and steals something from each, ordinarily he or she cannot be charged with multiple burglaries and punished separately for each room burgled unless each room constituted a separate, individual dwelling place within the meaning of sections 459 and 460.” (Thomas, supra, 235 Cal.App.3d at p. 906, fii. 2, italics in original.)

E.

Most recently, the court in Elsey, supra, 81 Cal.App.4th 948, addressed the defendant’s entry into six classrooms, some of them located in the same building, on a single school campus. The court, distinguishing “entry into multiple rooms of a single-family house [from] the entries into multiple secured classrooms” (id., at p. 959), upheld the resulting six burglary convictions.

In so concluding, the court in Elsey noted that section 459 provides in relevant part that “every person who enters a house [or] room . . .” with the *85requisite intent is guilty of burglary, and it reasoned that “[s]ince entry into a ‘house’ with the requisite intent constitutes burglary under the plain language of [section 459], it would be redundant to claim that entry into the rooms of the house constitutes additional burglaries. The larger category subsumes the smaller.” (Elsey, supra, 81 Cal.App.4th at p. 959.) The court then addressed the general situation that we face here—formation of the requisite intent by an ostensible or actual guest, after his or her initial entry into the house, but prior to entry of the subject room within the house. The court commented: “Of course, where the ‘house’ may have been entered without the requisite intent, entry into the broader category does not constitute the burglary, allowing the courts to focus on an entry into a room in the house, with the requisite intent, as the basis for the burglary(Ibid., italics added.)

IV.

Defendant asserts that the interpretation of section 459 set out in McCormack, supra, 234 Cal.App.3d 253, will produce bizarre results. He echoes the Court of Appeal majority below, which observed that the defendant in McCormack entered the kitchen in the home without the intent necessary for burglary, and that if the defendant had formed the requisite intent while in the kitchen and yet thereafter did not enter any other room, he would not have been guilty of burglary17—but if the defendant had gone into another room and then reentered the kitchen, this time with the requisite intent, he would have been guilty of burglary. The Court of Appeal majority also asserted that allowing a conviction of burglary on the present facts improperly would subject defendants to conviction of multiple counts of burglary for every room in the house entered with the requisite intent.

Justice Benke, dissenting in the Court of Appeal below, conceded that under McCormack’s interpretation of the statute, whether a particular entry into a room constitutes burglary will depend upon “the location of an actor when the requisite intent is formed,” but further observed that this consequence “is not the result of the McCormack rule but of the nature of the crime of burglary itself as defined in section 459.” Moreover, Justice Benke *86noted that even if the interpretation of the statute set out in McCormack, supra, 234 Cal.App.3d 253, may “allow[] the creative mind to formulate disconcerting hypotheticals about the application of the law of burglary,” the rule proposed by defendant would do so as well: “For example, a person may enter a residence without the intent to commit a theft. He walks down a hall off of which there are two indistinguishable bedrooms. The first is the bedroom of a family member, the second the bedroom rented by a family friend. Under the [rule proposed by defendant and the majority below], if the person enters the first with the intent to commit a theft, he commits no burglary [because he has not invaded a separate possessory interest]. If he enters the second [with the intent to commit a theft], he commits a first degree burglary. This distinction makes no sense . . . and does not serve the policy basis of the crime.” Accordingly, Justice Benke concluded that the rule proposed by defendant “simply exchanges one set of potential anomalies ... for another,” and she asserted that “[i]f I must choose my anomalies . . . , then I believe I am duty bound to choose those created by the Legislature.”

V.

As noted above, California decisions applying section 459 have upheld burglary convictions based upon entry into diverse types of rooms—among them ticket offices, liquor cages, business offices, enclosed counter areas, school classrooms, hotel rooms, apartments, a kitchen in a single-family home, and, in McCormack, supra, 234 Cal.App.3d 253, a bedroom within a single-family home. These decisions—and McCormack in particular—are consistent with common law cases from other jurisdictions, recognizing as burglary the entry (with requisite intent), from within a home, into a bedroom inside the home.18 Although the burglary statute historically has been the subject of frequent amendments, our Legislature has not revised *87section 459 to disapprove any of these decisions.19 Furthermore, although in recent years the legislatures of many of our sister states have enacted statutes that have narrowed and confined the type of room that will qualify as the subject of a burglary (see ante, fns. 7 & 8), the California Legislature, when presented with legislation that proposed similar amendments, did not adopt any similar amendment to our burglary statute.20

As the court observed in McCormack, supra, 234 Cal.App.3d 253, treating the entry at issue here as an entry for burglary is consistent with the personal security concerns of the burglary statute, because entry, from inside a home, into a bedroom of the home “raise[s] the level of risk that the burglar will come into contact with the home’s occupants with the resultant threat of violence and harm.” (Id., at p. 257.) Here, the 22-year-old victim, living in her family’s home, reasonably could expect significant additional privacy and security when she retreated into her own bedroom. Accordingly, consistent with California decisions construing section 459, reaching back to Young, supra, 65 Cal. 225, and consistent with the common law and the history of section 459, we conclude that the unadorned word “room” in section 459 reasonably must be given its ordinary meaning. It follows that the trial court did not err in this case by instructing the jury that entry into Ana’s bedroom with the specific intent to commit rape constitutes a burglary in violation of section 459.21

*88VI.

In light of California decisions construing section 459, the policy underlying that statute, common law antecedents, and the history of section 459, we conclude that the trial court did not err in defining burglary to include entry into the victim’s bedroom with the specific intent to commit rape.

We reverse the judgment of the Court of Appeal insofar as it is contrary to the above conclusion, and remand the matter to that court with directions to affirm the conviction of burglary and the true finding on the related section 667.61 allegation.

Kennard, J., Baxter, J., Werdegar, J., Chin, J., Brown, J., and Moreno, J., concurred.

On June 19, 2002, the opinion was modified to read as printed above.

*528WATHEN, C.J.

[¶ 1] Defendant John R. Moon appeals from a judgment entered in the Superior Court (Penobscot County, Hjelm, J.) following a jury verdict finding him guilty of theft (Class B), 17-A M.R.S.A. § 353 (1983).1 Defendant contends that the court erred in limiting his expert’s testimony, in instructing the jury concerning the charges of theft by unauthorized taking or transfer and theft by misapplication of property, in instructing the jury concerning the time at which an intention to deprive must exist, and in allowing overly remote evidence of the mental element. Finding no error, we affirm.

[¶ 2] The relevant facts may be summarized as follows: Defendant, while working on his M.B.A. degree at the University of Maine at Orono, was recruited to be a resident advisor of the Sigma Chi Fraternity house. After the local chapter of the Sigma Chi was closed, he was again recruited by alumni of the Rho Rho Chapter of Sigma Chi to resurrect the chapter at the University. He was hired as director of the fundraising campaign, project manager of the renovation project, and live-in resident advisor. He also served, without compensation, as treasurer of the Rho Rho Chapter. During the period defendant was treasurer, he transferred funds from the fraternity’s bank accounts on numerous occasions to either himself personally or to Marsh Island Development Company (MIDCO), a corporation in which he was a significant shareholder. He used the funds primarily to renovate a four-story brick townhouse located at 137 Main Street, Bangor, with the intention of then obtaining conventional residential financing. In the end, he was unable to obtain residential financing. He concealed these transfers from the Board of Trustees of the fraternity and obtained no authorization from the Board. During the period defendant was taking the funds, his personal bank balances were low and he incurred substantial debt, the proceeds of which he used in part to repay the fraternity. Defendant continued to take funds even when he knew that obtaining the residential financing would be difficult. He admits that from 1991 to 1994 he took approximately $120,000.00, returned over $100,000.00, and still owes $19,972.41.

[¶ 3] His defense at trial focused on demonstrating that he had no intent to deprive. He argued that he always intended to repay the money and that he believed he had $110,000.00 in equity in his Main Street property to cover the money he had taken. To support his defense, defendant testified himself as to his intent and also introduced the testimony of Gregory Noonan, a certified fraud examiner, certified public accountant and attorney. Noonan testified before the jury as follows: Defendant kept a separate account entitled “accounts receivable-other” in the journal and properly recorded each transaction in which defendant either took funds from the fraternity or returned funds. It was significant that defendant included no other receivables within the “accounts receiv*529able-other” account, in accordance with generally accepted accounting principles, and important that he included none of these transfers in the general accounts receivable account, which would have been improper because he was an employee. As a result, according to Noonan, defendant left a very good audit trail so that it was easy for an auditor to trace the transactions back to the check register and determine that the funds were made payable to John Moon or MIDCO. Noonan’s review of the records confirmed that during the period from 1991 to 1994 the total amount that went to defendant was $123,477.86 and the amount repaid by defendant was approximately $103,505.00, leaving a balance of approximately $19,-000.00.

[¶ 4] Defendant was indicted in 1997 for theft by unauthorized taking or transfer in violation of 17-A M.R.S.A. § 353 (1983) and subsequently indicted for theft by misapplication of property in violation of 17-A M.R.S.A. § 358 (1983).2 In a trial on the consolidated counts, defendant was found guilty of theft in violation of 17-A M.R.S.A. § 353 and now appeals.

I. Exclusion of Expert Testimony

[¶ 5] Despite the fact that Noonan testified at length, defendant now argues that the court erred by refusing to let him introduce the expert testimony of Noonan that would explain to the lay person how the financial records were kept, how the records created an audit trail, and how the audit trail was inconsistent with all methods of obscuring theft in the books of a business. In fact, the court excluded only the last element of Noonan’s testimony. In voir dire, Noonan testified that there are four basic “embezzlement schemes,” i.e., lapping a/k/a kiting, fictitious receivables, diverting payments in old written off receivables, and borrowing against receivables; that in fourteen years of experience he has not seen a situation of account receivable or cash fraud that fell outside of these four categories; and this case is distinguished because “every transaction was documented right to the T.”

[¶ 6] The court refused to allow this portion of Noonan’s testimony on the basis of relevancy under M.R. Evid. 401 and 402 and jury confusion under M.R. Evid. 403. The court determined that the expert’s testimony dealt with embezzlement schemes, that defendant was charged with theft, and that embezzlement and theft are not necessarily co-extensive. It further found that the testimony could confuse the jurors because Noonan’s audit standards for the embezzlement schemes differ from the statutory elements of theft.

[¶ 7] We review evidentiary rulings on relevancy and prejudicial effect for clear error or an abuse of discretion. See State v. Shuman, 622 A.2d 716, 718 (Me.1993). “[W]e accord wide discretion to the court’s determination on the relevancy of the proffered evidence, as well as to its evaluation of any unfair prejudice that may result from the admission of the evidence.” Id. (citations omitted). Evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” M.R. Evid. 401. Even if the proffered evidence on voir dire might have helped the jury understand that defendant’s conduct was different than the normal conduct of one who takes money in an embezzlement scheme, it was not relevant because it did not make the *530determination of a fact of consequence more or less probable.

[¶ 8] The jury had the expert’s testimony, without the proffered portion, that explained how the financial records were kept and how the records created an audit trail. This evidence, without the proffered evidence, supported defendant’s argument that because of his meticulous recordkeep-ing and because he returned a substantial portion of the funds, he did not intend to deprive the fraternity of the funds permanently, but instead intended to repay the debt. Moreover, whether defendant’s conduct conforms with historical patterns of embezzlement is irrelevant to whether defendant committed theft by unauthorized taking or by misapplication of funds as defined by the statute. The court correctly found that the embezzlement schemes to which the expert would have testified and the crime of theft as defined by the statute are not co-extensive.

[¶ 9] Expert testimony may be relevant when it is offered to show that the defendant’s conduct conformed with a criminal technique. See State v. Gervais, 394 A.2d 1183, 1187-88 (Me.1978) (allowing admission of expert testimony that “directions” technique was a commonly recognized method of operation used by burglars to help the jury appreciate the relationship between seemingly innocent acts); United States v. Brawner, 173 F.3d 966, 970-71 (6th Cir.1999) (allowing admission of expert testimony concerning telemarketing schemes to help the jury decide whether the defendant’s operations were fraudulent). The opposite could be relevant, but in this context the issue is more problematic. Simply because a person is clever enough to devise a new method of committing a theft that does not conform with a known existing embezzlement scheme, or foolhardy enough to document his activity, does not make it less probable that the crime of theft was committed. Although defendant and his expert witness focused on his intent to repay the money to support his contention that he did not intend to deprive the fraternity of the funds permanently, see 17-A M.R.S.A. § 352(3)(A), they ignored the patent possibility that he committed theft in violation of the statute by using the fraternity’s money “under circumstances that make it unlikely that the owner will recover it.” 17-A M.R.S.A. § 352(3)(C). Accordingly, the expert’s testimony concerning embezzlement schemes is not relevant and does not tend to prove that defendant lacked the intent to deprive based on the complete statutory definition of theft.

II. Jury Instructions

[¶ 10] We review jury instructions “to ensure that they correctly informed the jury of the governing law.” State v. Tarmey, 2000 ME 23, ¶ 9, 755 A.2d 482 (citation omitted). A court is not required to give instructions in the same language as requested, provided the court’s instructions are complete and accurate. See State v. Carvelle, 290 A.2d 190, 193 (Me.1972).

[¶ 11] Defendant argues that the court erred in consolidating the two indictments for theft, theft by unauthorized taking, 17-A M.R.S.A. § 353, and theft by misapplication, 17-A M.R.S.A. § 358, before the verdict because it confused the jury. He argues that he submitted two proposed instructions that treated the two indictments separately, but that the court did not use his instructions and instead improperly combined the indictments. He argues that because the two crimes of theft require proof of different elements, by mixing the two in its jury instructions, the court invited the jurors to mix the elements so that the verdict does not necessarily méan that they found all the elements of one offense in order to reach their verdict.

[¶ 12] Reviewed as a whole, the jury instructions were both complete and accurate and not confusing to the jury. At the beginning of the trial, the court instructed the jury as follows: “I do want to *531alert you at this point that those charges will be consolidated for your purposes of deliberation; in other words, when you deliberate and reach a verdict, you will be reaching one verdict, whether it’s guilty or not guilty, rather than two separate verdicts on two separate charges.” In its jury instructions at the end of the trial, the court separately described the elements of theft by unauthorized taking and the elements of theft by misapplication and defined the meaning of the various terms therein. The court explained that the jury could find defendant guilty if the jury found that the State had proven beyond a reasonable doubt that the defendant committed the crime of theft, either theft by unauthorized taking or transfer or theft by misapplication of property. Therefore, the jury instructions relating to the two alternatives for finding theft were not erroneous.

[¶ 18] Defendant also argues that the court erred because it refused to provide his proposed jury instructions which emphasized that the necessary mental element of intent to deprive must exist “at the time of the taking.” Defendant’s proposed instruction stated in relevant part:

This intent to deprive the true owner of the property must have existed at the time that the unauthorized control first took place.... [I]f you find that the Defendant exercised unauthorized control over the fraternity’s money, you must then examine the evidence whether, at the time Defendant began exercising unauthorized control, he then and there had the intent to deprive the fraternity of that money.

The court instructed the jury as follows:

A person commits the crime of theft ... if that person obtains or exercises unauthorized control over the property of another with the intent, at the time he obtains or exercises unauthorized control over the property, to deprive the owner thereof.

The difference between the instructions is that defendant sought to limit the criminal act to a single point in time, namely, “the time Defendant began exercising unauthorized control,” for the purpose of determining the presence of the required mental element. The distinction, however, if any, is not relevant in this case. Even if defendant intended to repay the funds at the precise moment he took them, he nonetheless consciously used the money in a way which the jury could find made it unlikely that the fraternity would recover it, in violation of section 352(3)(C).

III. Remote Evidence

[¶ 14] Defendant also argues that the court erred in allowing evidence that he filed bankruptcy years after he took the funds and that he had not repaid the fraternity up until the time of the trial. He argues that the evidence was too remote and thus prejudicial because the intent to deprive must be at the time of initially obtaining possession or control. This argument also focuses on his intent to repay the money at the time of the taking and thus lacks merit because it does not negate the particular variant of intent to deprive involved in this case. In any event, the jury could have inferred that defendant had not repaid the fraternity based on his testimony on direct examination that he owes the fraternity $19,972.41.

The entry is:

Judgment affirmed.

*317JUSTICE CARMAN

delivered the judgment of the court, with opinion.

Chief Justice Thomas and Justices Freeman, Karmeier and Burke concurred in the judgment and opinion.

Justice Fitzgerald dissented, with opinion, joined by Justice Kilbride.

OPINION

After a jury trial in the circuit court of Du Page County, defendant Michael L. Perry was convicted of theft by deception (720 ILCS 5/16 — 1(a)(2) (West 2000)). Based on the value of the stolen property, his crime was classified as a Class 2 felony and he was sentenced to a term of six years’ imprisonment and ordered to pay restitution. 720 ILCS 5/16 — 1(b)(5) (West 2000). On appeal, the court held that he could be convicted only of the lesser offense of theft of property valued in excess of $300, but less than $10,000 (720 ILCS 5/16 — 1(b)(4) (West 2000)), a Class 3 felony, and remanded for a new sentencing hearing. 361 Ill. App. 3d 703. We granted the State’s petition for leave to appeal, under Rules 315 and 604(a)(2) (210 Ill. 2d Rs. 315, 604(a)(2)), to determine whether defendant was properly convicted of theft of property valued in excess of $10,000 when the property at issue was the occupancy of a hotel room for a period of more than three months. In addition, we consider defendant’s request for cross-relief on his claim of ineffective assistance of trial counsel.

BACKGROUND

Defendant, along with his wife and children, occupied a suite at the Embassy Suites hotel in Lombard, Illinois, from January through April 2000. The testimony at trial revealed that after staying at the hotel for several weeks, defendant sought to negotiate a reduced rate for the *318room. He also requested that the cost of his stay be billed to a company of which he was the president, Prolific Development Corporation (Prolific). He provided several trade references and a credit card in the name of Bryan Green.

The hotel manager drafted a document headed “RATE AGREEMENT February 2000 — December 30, 2000.” The agreement provided for a rate of $130 per night for a two-room suite, with a minimum stay of 100 nights “on an annual basis.” Both parties signed the agreement. Several days thereafter, the hotel controller sent a letter to defendant at the address he had provided for Prolific, confirming that billing statements would be sent to the corporate address and that the hotel’s “net terms are 30 days from each statement date.”

After four bills sent to the business address went unpaid, the hotel’s controller slid a letter under defendant’s hotel room door. The letter noted that payment was more than 60 days past due and that the balance on the account was over $12,000. Defendant did not respond to the letter.

Eventually, it was revealed that the person defendant identified as the contact person for Prolific was not actually connected with the company. The hotel was also unable to contact the company using the e-mail address provided by defendant. Bills and letters that had been sent to the business address were returned to the hotel by the post office in a single envelope marked “Address Unknown.” When the trade references were eventually contacted, one reported that defendant did not have a valid account. Another reported that defendant was not in good standing and owed it money.

At various times, defendant explained to members of the hotel staff that he was having problems with the post office, that he had submitted the bill to his accountant for payment, that payment would be made by May 9, *3192000, that payment would arrive “any day,” and that the check was being “cut from another company” about which he was unable to provide any information.

On the afternoon of May 12, 2000, the hotel contacted the Lombard police department. An officer responded and, along with several members of the hotel staff, went to defendant’s room to speak to him. He was not present, so they left a message with his wife. Defendant did not respond to the message.

During the night shift on May 13, 2000, defendant and his family vacated the hotel room without checking out or settling the bill. Although defendant paid a small portion of his bill by credit card during the early part of his stay, the unpaid balance for the room, restaurant, laundry services, telephone, and other charges exceeded $15,000. An attempt by the hotel to charge some of these expenses to the credit card in the name of Bryan Green, which defendant had provided earlier, was unsuccessful because the individual named on the credit card disputed the charges.

A Du Page County grand jury returned an indictment charging defendant with theft by deception “of property exceeding $10,000 and not exceeding $100,000 in value.” 720 ILCS 5/16 — 1(a)(2), (b)(5) (West 2000). He remained free on bond but failed to appear on January 9, 2001. The following month, he was taken into custody in Georgia. He was returned to Illinois in April 2001.

After a jury trial, defendant was convicted of the theft and sentenced accordingly. 720 ILCS 5/16 — 1(b)(5) (West 2000). The additional charge of violating his bail bond and failing to appear was nol-prossed by the State.

ANALYSIS

Part C of the Criminal Code of 1961 codifies the law of offenses against property. Article 15 therein defines various statutory terms used elsewhere in part C, including the term “property.” Article 16 defines theft and *320related offenses. Defendant was charged with theft under section 16 — 1:

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

(2) Obtains by deception control over property of the owner; ***

* *

*** and

(A) Intends to deprive the owner permanently of the use or benefit of the property[.]” 720 ILCS 5/16 — 1(a)(2)(A) (West 2000).

Depending on the value of the stolen property and other facts, the crime of theft may be punished as a Class A misdemeanor, a Class 4, 3, 2, or 1 felony, or a Class X felony. 720 ILCS 5/16 — 1(b) (West 2000). “Theft of property exceeding $10,000 and not exceeding $100,000 in value is a Class 2 felony.” 720 ILCS 5/16 — 1(b)(5) (West 2000). “When a charge of theft of property exceeding a specified value is brought, the value of the property involved is an element of the offense to be resolved by the trier of fact as either exceeding or not exceeding the specified value.” 720 ILCS 5/16 — 1(c) (West 2000). “Property” is defined in section 15 — 1 as follows:

“ ‘[Plroperty’ means anything of value. Property includes real estate, money, commercial instruments, admission or transportation tickets, written instruments representing or embodying rights concerning anything of value, labor, or services, or otherwise of value to the owner; things growing on, affixed to, or found or land, or part of or affixed to any building; electricity, gas and water; telecommunications services; birds, animals and fish, which ordinarily are kept in a state of confinement; food and drink; samples, cultures, microorganisms, specimens, records, recordings, documents, blueprints, drawings, maps, and whole or partial copies, descriptions, photographs, computer programs or data, prototypes or models thereof, or any other articles, materials, devices, substances and whole or partial copies, descriptions, photographs, prototypes, or models thereof which constitute, represent, *321evidence, reflect or record a secret scientific, technical, merchandising, production or management information, design, process, procedure, formula, invention, or improvement.” 720 ILCS 5/15 — 1 (West 2000).

Relying on People v. Davis, 203 Ill. App. 3d 838 (1990), the appellate court concluded that the occupancy of a hotel room is not “property” as that term is defined in section 15 — 1. As a result, the stolen property consisted only of food and other incidentals obtained by defendant, valued at over $300, but less than $10,000, and punishable as a Class 3 felony. 720 ILCS 16 — 1(b)(4) (West 2000).

The Davis defendants were indicted for theft of property after it was alleged that they instructed city employees to engage in political activities such as the collection of absentee ballots during time that they were being paid by the City of East St. Louis to work on a public works project. Davis, 203 Ill. App. 3d at 841. The trial court dismissed the indictments on the basis that the labor of an employee is not the property of the employer and, thus, diversion of the employee’s labor is not a theft. Davis, 203 Ill. App. 3d at 841-42.

The appellate court affirmed the dismissal of the indictments for several reasons. The court noted that “[a]t common law, only tangible personal property could be the subject of larceny” (Davis, 203 Ill. App. 3d at 844), and that section 15 — 1 was intended to add to this definition “things not embraced by larceny under common law.” The court concluded that the statutory definition of property in section 15 — 1 includes only tangible personal property that was subject to larceny at common law, indicated by the phrase “anything of value,” and those other items specifically enumerated in the following sentence. Further, the court stated that section 15 — 1 “only lists items which may be physically possessed and carried away.” Davis, 203 Ill. App. 3d at 845.

In addition, the Davis court relied on the canon of *322construction that “ [legislation in derogation of the common law is usually strictly construed.” Thus, the court stated, the word “includes” in section 15 — 1 “should be considered an enumeration excluding all other things not in the specific category.” Davis, 203 Ill. App. 3d at 846. Finally, the court noted that “[cjriminal or penal statutes are to be strictly construed in favor of the accused.” Davis, 203 Ill. App. 3d at 846.

In the present case, the appellate court noted that except for the subsequent addition of the term “telecommunications services,” section 15 — 1 is identical to the statute at issue in Davis. 361 Ill. App. 3d at 712. The appellate court concluded that the Davis court “implicitly recognized that the word ‘includes’ as used in section 15 — 1 was ambiguous” because the Davis court noted that this word “has more than one reasonable meaning” and thereafter resolved the ambiguity by employing the rule that a statute in derogation of the common law must be strictly construed. 361 Ill. App. 3d at 712. The appellate court then found that “this resolution of the ambiguity was the proper one because it limits the expansion of the common-law definition.” 361 Ill. App. 3d at 713.

Further, the appellate court reasoned that the “structure of section 15 — 1 also supports this conclusion.” The legislature could have used two sentences instead of one, but instead of saying that property is “anything of value including” a list of examples, the legislature chose to use a separate sentence beginning with the phrase “[pjroperty includes.” This structure, the appellate court concluded, “was intended to convey that the items specifically enumerated were in addition to, not part of, the general class.” 361 Ill. App. 3d at 713. The appellate court also observed that the legislature has not amended the statute subsequent to Davis, so it may be presumed that it has “acquiesced in the court’s interpretation of legislative intent.” 361 Ill. App. 3d at *323714. Because the use of a hotel room is neither tangible personal property nor one of the items specifically enumerated in section 15 — 1, the appellate court held that the right to use a hotel room is not property that can be stolen by deception under section 16 — 1.

Before this court, the State argues that the right to occupy a hotel room is property as that term is defined in section 15 — 1 of the Criminal Code because the leasehold interest created by renting a hotel room is a chattel, which falls under the common law definition of property that has been incorporated into section 15 — 1. The State also argues that the term “includes” in section 15 — 1 was not intended to limit the scope of the statutory definition to the enumerated items but, rather, to illustrate the types of property that the legislature intended to include in an expanded definition of property.

The principles guiding our analysis are well established. Our primary objective is to ascertain and give effect to legislative intent, the surest and most reliable indicator of which is the statutory language itself, given its plain and ordinary meaning. Illinois Graphics Co. v. Nickum, 159 Ill. 2d 469, 479 (1994). In determining the plain meaning of statutory terms, we consider the statute in its entirety, keeping in mind the subject it addresses and the apparent intent of the legislature in enacting it. People v. Davis, 199 Ill. 2d 130, 135 (2002). Where the language of the statute is clear and unambiguous, we must apply it as written, without resort to extrinsic aids to statutory construction. People v. Collins, 214 Ill. 2d 206, 214 (2005).

If the language is ambiguous, making construction of the language necessary, we construe the statute so that no part of it is rendered meaningless or superfluous. People v. Jones, 214 Ill. 2d 187, 193 (2005). We do not depart from the plain language of the statute by reading into it exceptions, limitations, or conditions that conflict *324with the expressed intent. People v. Martinez, 184 Ill. 2d 547, 550 (1998). The traditional canons or maxims of statutory construction are not rules of law, but rather are “merely aids in determining legislative intent and must yield to such intent.” In re Application of the County Treasurer, 214 Ill. 2d 253, 259 (2005).

In the present case, we are called upon to review the appellate court’s construction of sections 15 — 1 and 16 — 1 of the Criminal Code (720 ILCS 5/15 — 1, 16 — 1 (West 2000)). The construction of a statute is a question of law, which we review de novo. People v. Donoho, 204 Ill. 2d 159, 172 (2003).

Whether the Occupancy of a Hotel Room Is “Property” At common law, the crime of larceny was “the felonious stealing, taking and carrying, leading, riding or driving away the personal goods of another *** with the felonious intent to deprive the owner of his property.” People v. Pastel, 306 Ill. 565, 568 (1923). Under this traditional definition of larceny, the occupancy of a hotel room clearly could not have been the subject of the crime.

Eventually, the common law crimes were codified by statute. As the State correctly notes, for at least 50 years prior to the adoption of the Criminal Code of 1961, some items that would not have been subject to the crime of larceny at common law were nevertheless property subject to statutory theft. For example, in Moline Water Power Co. v. Cox, 252 Ill. 348 (1911), this court held that waterpower created by a waterfall was property under the theft statute at the time. This court explained:

“[Water] [p]ower is not a chattel. It is not a tangible entity. It manifests itself only by its results. But it is property, and is bought and sold in the market as freely as the products of the farm. At common law it could not be the subject of larceny, which must be of goods and chattels, but it is now protected by statute to the same extent as other forms of property, and the unauthorized connection of any gas, water or electric current with a motor or other appliance is *325a misdemeanor, punishable by law. (Crim. Code, par. 117.) The use of a fall of water artificially impounded is that taking of that which has been produced by the combination of artificial means and natural forces, and partakes of the nature of a profit á prendre. It is, in fact, an interest in the aggregate of rights constituting the water power, which is real estate.” Moline Water Power, 252 Ill. at 357.

Similarly, in People v. Menagas, 367 Ill. 330, 336 (1937), this court held that the defendant was properly charged with larceny of electrical energy because larceny under the Criminal Code (Ill. Rev. Stat. 1935, ch. 38, par. 380) had wider application than at common law. The larceny statute then said, “ ‘Larceny shall embrace every theft which deprives another of his money or other personal property, or those means or muniments by which the right and title to property, real or personal, may be ascertained.’ ” Menagas, 367 Ill. at 336, quoting Ill. Rev. Stat. 1935, ch. 38, par. 380.

Our Criminal Code underwent revision in 1961 and the section dealing with crimes against property was entirely reorganized.

“ ‘Formerly, in Illinois, there were some seventy-four separate sections which dealt in one form or another with the obtaining of property of another with the intent to permanently deprive such other or the true owner of the property or its beneficial use. All lawyers and judges are too familiar with the highly technical differences between larceny, larceny by trick, embezzlement, false pretenses, confidence game, and the many variations to require detailed comment. Suffice to say that, with the exception of robbery, burglary, arson, and criminal damage and trespass to property, which are covered respectively in Articles 18,19, 20 and 21, the Committee intended to codify the entire range of offenses against property into Articles 16 and 17, and to abolish completely the labels and highly technical distinctions which had developed through centuries of case law and statutory amendments.’ ” People v. McCarty, 94 Ill. 2d 28, 34 (1983), quoting Ill. Ann. Stat., ch. 38, art. 16, Committee Comments — 1961, at 18 (Smith-Hurd 1977).

*326With this background in mind, we turn to the question of whether the use of a hotel room is property that can be the subject of theft by deception under section 16 — 1. We note that this inquiry requires the interpretation of two separate statutes. First, we must determine whether the use of a hotel room is property under section 15 — 1. Second, if the answer to the first question is yes, we must determine whether one who obtains such property by deception can be charged under section 16 — 1.

The Davis court and the appellate court in the present case seem to have conflated these two inquiries. Section 15 — 1 does not define the term “property” only as that term is used in section 16 — 1. It defines the term “property” as it is “used in this Part C.” 720 ILCS 5/15 — 1 (West 2000). Part C is titled “Crimes Against Property.” In addition to the crimes of theft, robbery, burglary, and arson (720 ILCS 5/16 — 1, 18 — 1, 19 — 1, 20 — 1 (West 2000)), which were known at common law, part C defines offenses such as computer crime, wireless service theft, and financial identity theft (720 ILCS 5/16D — 1, 16F — 13, 16G — 15 (West 2000)). Part C is clearly intended to be broad in scope.

The first sentence of section 15 — 1 states that the word “property” as it is used in part C “means anything of value.” The appellate court, relying on Davis, limited the meaning of “anything” to items of tangible personal property. Because part C encompasses much more than the crime of theft, we must examine the definition of property in section 15 — 1 without regard to what types of property might or might not have been subject to larceny at common law. See Concrete Materials Corp. v. Gordon, 395 Ill. 203, 207-08 (1946) (common law definitions must yield to definitions of employee, employer, and employment contained in the Unemployment Compensation Act); see also 34 Ill. L. & Prac. Statutes §51 *327(2001) (“The General Assembly has the power to make a reasonable definition of the terms used in an act, even though such definitions do not correspond with those contained in other acts. Statutory definitions control in the construction of the terms of an act, and the common-law definitions of those terms must yield to the statutory definitions”).

The plain meaning of the first sentence of section 15 — 1 is that “property,” when that term is used in any provision of part C of the Criminal Code, does indeed include any thing of value.

We note that the Davis court inaccurately stated that section 15 — 1 “only lists items which may be physically possessed and carried away.” Davis, 203 Ill. App. 3d at 845, citing People v. Zakarian, 121 Ill. App. 3d 968, 972-73 (1984). Zakarian, in turn, relied on cases that predated the adoption of the Criminal Code of 1961. According to the Zakarian court, the test of whether property is embraced by the theft statute “is not whether the property is corporeal or incorporeal or tangible or intangible. Rather, it is whether the property is capable of being taken and carried away by someone other than the owner.” Zakarian, 121 Ill. App. 3d at 972-73 (citing Menagas, 367 Ill. 330, and Woods v. People, 222 Ill. 293 (1906)).

The legislature’s inclusion, in 1961, of real estate and electricity and, in 1994, of telecommunications services in the statutory definition of property encompassed by the theft statute did away with this ancient rule. Real estate cannot be taken and carried away, yet it is “property” under section 15 — 1. Similarly, electricity and telecommunications services can be stolen but cannot be taken and carried away. See Menagas, 367 Ill. at 336-38 (describing the test for whether an item is personal property as whether it may “be taken and carried away,” “transported from place to place,” and “bought and sold *328like other personal property,” but noting that real property may also be the subject of larceny).

The phrase “anything of value” is unambiguous. Clearly, the legislature intended to expand the definition of property to include not only items of tangible personal property but also other things of value such as real estate, electricity, and telecommunications services. The hospitality industry provides lodging to the public for profit. The market for hotel and motel rooms is vast. The use of a hotel room does have value. See Moline Water Power, 252 Ill. at 357 (stating that waterpower is property because it “is bought and sold in the market as freely as the products of the farm”). We conclude that the use of a hotel room is a thing of value as that phrase is used in the first sentence of section 15 — 1.

The appellate court, however, construed the word “includes” in the second sentence of section 15 — 1 to limit the types of “things” that come within the definition of property. The State argues that the weight of authority favors interpreting “includes” as a term of enlargement or illustration. Defendant argues that the appellate court properly construed the term as one of limitation.

Article 2 of the Criminal Code of 1961 contains “General Definitions.” Section 2 — 10, which was not cited to this court by either party, states:

“ ‘Includes’ or ‘including’ means comprehending among other particulars, without limiting the generality of the foregoing word or phrase.” 720 ILCS 5/2 — 10 (West 2000).

Although there have been no cases interpreting or applying this definition, its meaning is unmistakable. Either of these words, when followed by a listing of items, means that the preceding general term encompasses the listed items, but the list is not exhaustive. The preceding general term is to be construed as a general description of the listed items and other similar items.

Based on this statutory definition, we conclude that *329in enacting section 15 — 1 the legislature intended the definition of property to include not only items of tangible personal property, but also other things of value. The enumerated items are illustrative of types of property that would not have been within the scope of the traditional common law definition of property that could be the subject of larceny, but are within the scope of part C of the Criminal Code.

In light of this statutory definition, we reject the appellate court’s suggestion that the term “includes” in section 15 — 1 is ambiguous because the words “but is not limited to” are not present. 361 Ill. App. 3d at 712, citing Davis, 203 Ill. App. 3d at 846 (“Although the word ‘include’ does not by itself necessarily limit general language, cases which support a broad or enlarging interpretation for the term ‘include’ do so in order to give effect to a legislative intent to provide as large an access as possible to the general term. [Citation.] The word ‘include’ is sometimes used to add to the general class a species which does not naturally belong to it. [Citation.] In this case, the items listed after ‘includes’ should be considered an enumeration excluding all other things not in the specific category”). The appellate court concluded that because the word “includes” is sometimes used to expand a general term and is sometimes used to enumerate specific items to be added to the general term, it is ambiguous. The court noted that if the legislature had intended for the items following the word “includes” to be merely illustrative of items of property, “it could have written ‘property is anything of value including.’ ” Based on the lack of such language and the fact that the “includes” language is in a separate sentence from the “anything of value” language, the court concluded that the second sentence “was intended to convey that the items specifically enumerated were in addition to, not part of, the general class.” 361 Ill. App. 3d at 713.

*330The legislature has on many occasions used the phrases “including but not limited to” or “includes but is not limited to” to indicate that the list that follows is intended to be illustrative rather than exhaustive. An electronic search of the Illinois Compiled Statutes reveals 1,749 statutes using the phrase “including but not limited to” and 249 containing the phrase “includes but is not limited to.” Over a dozen of these provisions are contained in part C of the Criminal Code of 1961, “Offenses Against Property.” See, e.g., 720 ILCS 5/16 — 1.3, 16 — 18, 16 — 21, 16A — 2.8, 16D — 2, 16F — 2 (West 2004).

We conclude, however, that even in the absence of the phrase “but is not limited to,” the plain, ordinary, and popularly understood meaning of the term “includes” does not support the appellate court’s conclusion. In determining the plain meaning of a statutory term, it is entirely appropriate to look to the dictionary for a definition. See, e.g., People v. Brooks, 221 Ill. 2d 381, 390-91 (2006) (using dictionaries to provide the definition of the word “docket”); People v. Hari, 218 Ill. 2d 275, 292-93 (2006) (using dictionaries to provide the definition of the word “involuntary”); U.S. Bank National Ass’n v. Clark, 216 Ill. 2d 334, 347 (2005) (using dictionaries to provide the definition of the word “compensation”).

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

“To contain as a part of something. The participle including typically indicates a partial list <the plaintiff asserted five tort claims, including slander and libel>. But some drafters use phrases such as including without limitation and including but not limited to — which mean the same thing.” (Emphases in original.) Black’s Law Dictionary 777-78 (8th ed. 2004).

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

“By name or particular mention; that is to say <the *331plaintiff asserted two claims, namely wrongful termination and slander >. The term indicates what is to be included by name. By contrast, including implies a partial list and indicates that something is not listed.” (Emphasis in original.) Black’s Law Dictionary 1049 (8th ed. 2004). Similarly, the editor of Black’s Law Dictionary

observes in another work that:

“[I]ncluding is sometimes misused for namely. But it should not be used to introduce an exhaustive list, for it implies that the list is only partial. In the words of one federal court, Tt is hornbook law that the use of the word including indicates that the specified list ... is illustrative, not exclusive.’ Puerto Rico Maritime Shipping Auth. v. I.C.C., 645 F.2d 1102, 1112 n.26 (D.C. Cir. 1981).” (Emphases in original.) B. Garner, A Dictionary of Modern Legal Usage 431 (1995).

Given the statutory definition of “includes” in section 2 — 10 and the plain and ordinary meaning of the word, the absence of additional verbiage such as “but not limited to” does not render section 15 — 1 ambiguous. In this section, the word “includes” is used to introduce a list of things of value that illustrate the meaning of the general term “property.”

Defendant notes that the legislature has not changed the definition of property in the wake of Zakarian and Davis and argues that, if these cases had improperly construed section 15 — 1, the legislature would have acted to correct the error. He cites no authority for this proposition. This court has stated that “ ‘[w]here the legislature chooses not to amend a statute after a judicial construction, it will be presumed that it has acquiesced in the court’s statement of the legislative intent.’ ” Zimmerman v. Village of Skokie, 183 Ill. 2d 30, 50 (1998), quoting Miller v. Lockett, 98 Ill. 2d 478, 483 (1983). This presumption, however, is merely a jurisprudential principle; it is not a rule of law. The fact the legislature has not amended the definition of property in the years since Zakarian (1984) and Davis (1990) were decided is *332of little weight when the meaning of the statute is unambiguous.

We note, further, that Zakarian and Davis have not been extensively relied upon by Illinois courts. The appellate court’s decision in the present case is the only published Illinois decision to cite Davis for its discussion of the meaning of “property” in the theft statute. Davis, in turn, is the only published Illinois decision to cite Zakarian for this purpose. Our decision in the present case necessarily overrules Zakarian, 121 Ill. App. 3d 968, and Davis, 203 Ill. App. 3d 838, with respect to the definition of the term “property” in the theft statute. The Davis court’s conclusion that the labor of an employee does not belong to the employer is unaffected. Davis, 203 Ill. App. 3d at 841-42.

Because we hold that the use of a hotel room is a thing of value and is, thus, within the statutory definition of property in section 15 — 1, we need not consider whether registration as a guest in a hotel creates a leasehold interest that would be considered a chattel real at common law, as argued by the State, or an interest in real estate.

We respond briefly to the appellate court’s application of the canon of construction that a statute in derogation of the common law must be strictly construed. Davis, 203 Ill. App. 3d at 846. “The rule in Illinois is that statutes in derogation of the common law are to be strictly construed in favor of persons sought to be subjected to their operation.” Barthel v. Illinois Central Gulf R.R. Co., 74 Ill. 2d 213, 220 (1978). Thus, in Barthel, this court declined to construe the Public Utility Act to abrogate the common law defense of contributory negligence because it did not plainly appear to be the intent of the legislature to do so. Barthel, 74 Ill. 2d at 221.

In the present case, the statutory terms “property” *333and “includes” are unambiguously defined. As noted above, a court will not engage in statutory construction if the statutory language is unambiguous. Collins, 214 Ill. 2d at 214 (where the language of the statute is clear and unambiguous it will be applied as written, without resort to extrinsic aids to statutory construction). See also 34 Ill. L. & Prac. Statutes §50 (2001) (“The purpose of all rules or maxims adopted by the courts for the construction or interpretation of statutes is to discover the true intent and meaning of the law. These rules or maxims are not rules of law, but are merely aids used by the courts in arriving at the real intention of the legislature when that intention is not clearly manifest from the language used. These rules are useful only in cases of doubt, and are never to be used to create a doubt, but only to remove it”). Thus, the maxim of strict construction has no application.

Similarly, the rule of lenity need not be employed. Under this canon of statutory construction, “penal statutes, where ambiguous, should be construed to afford lenity to the accused.” People v. Hicks, 164 Ill. 2d 218, 222 (1995). In such a circumstance, the penal statute must be strictly construed in favor of the accused, with nothing taken by intendment or implication beyond the obvious or literal meaning of the statute. People v. Laubscher, 183 Ill. 2d 330, 337 (1998). Because section 15 — 1 is not ambiguous, there is no need for construction and the rule of lenity is not implicated.

The Requirement of Permanent Deprivation of Property

Having concluded that section 15 — 1 was intended to broaden the definition of property and that the use of a hotel room is property within the meaning of this statute, we turn to the separate question of whether such property may be the subject of theft by deception under section 16 — 1 of the Criminal Code.

Section 16 — 1(a)(2) provides that a person commits *334theft when he knowingly obtains control of the property of another by deception. 720 ILCS 5/16 — 1(a)(2) (West 2000). So long as one of the three required mental states is present, the crime of theft is complete. Defendant was charged under section 16 — 1(a)(2)(A), the intent “to deprive the owner permanently of the use or benefit of the property.” 720 ILCS 5/16 — 1(a)(2)(A) (West 2000).

In addition to defining “property,” section 15 defines other terms used in section 16 — 1(a)(2)(A). See 720 ILCS 5/15 — 2 (defining “Owner”); 15 — 3 (defining “Permanent Deprivation”); 15 — 4 (defining “Deception”); 15 — 8 (defining “Obtains Control”) (West 2000).

The parties do not dispute that the hotel is the owner of the property, the meaning of the term “deception,” or that defendant obtained control over the hotel room during the period of his occupancy. The question is whether, when the property at issue is the use of a hotel room, it is possible to permanently deprive the owner of its use or benefit. If not, defendant cannot be convicted under section 16 — 1(a)(2)(A) for its theft.

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

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

(b) Deprive the owner permanently of the beneficial use of the property; or

(c) Retain the property with intent to restore it to the owner only if the owner purchases or leases it back, or pays a reward or other compensation for its return; or

(d) Sell, give, pledge, or otherwise transfer any interest in the property or subject it to the claim of a person other than the owner.” 720 ILCS 5/15 — 3 (West 2000).

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

The State cites People v. Collins, 106 Ill. 2d 237, 261 (1985), in support of its argument that a rational trier of fact could have found that defendant intended to permanently deprive the hotel of the use or benefit of a leasehold interest. Because the trier of fact may deduce *335the intent to permanently deprive the owner of property “ ‘from the facts and circumstances surrounding the alleged criminal act’ ” (quoting People v. Veasey, 251 Ill. App. 3d 589, 591-92 (1993)), the State argues that the jury properly inferred that defendant intended permanent deprivation when he provided a false billing address and false trade references and made false promises to pay his bill. Thus, the State would treat the issue of permanent deprivation as a question of fact.

Defendant’s position is that under section 16— 1(a)(2), the thing that is taken by deception from the owner must not only be property within the meaning of 15 — 1, but must also be property of which the owner can be permanently deprived. Defendant states that he and his family:

“took over temporary use of a suite for a three-month period. ... They did not obtain permanent control over what the hotel owned, ... but rather they made use of hotel property, which was available for hire for about $130 per night. The hotel was thereby precluded from making the room available to any other lodger for each night in that period. But the hotel did not permanently lose possession of the suite or its rights thereto.” (Emphases added.)

We agree with defendant that the question presented — whether the one who uses deception to obtain control of a hotel room for three months has permanently deprived the owner of the beneficial use of the property — is one of law. However, defendant is mistaken when he suggests that the statute requires permanent control by the defendant or permanent loss of possession by the owner.

The property at issue here is the use of a hotel room. The hotel’s complement of rooms can be analogized to a store’s inventory of goods. The hotel has a finite number of rooms, which it can rent to members of the public 365 nights each year. One night in one room is a thing of value. When this thing of value is taken by deception, *336the owner has permanently lost the benefit of one night’s income. We, therefore, hold that each night of occupancy that is obtained by deception permanently deprives the owner of the beneficial use of the hotel room within the meaning of section 15 — 3(b) (720 ILCS 5/15 — 3(b) (West 2000)).

Defendant acknowledges that even though the hotel “was deprived of the rental value it should have received for the room on each of the nights” that he and his family occupied the suite, the record does not provide a basis to conclude that the suite would have been rented to another guest who would have paid at least $130 per night. He cites no authority for the proposition that in addition to proving that the value of the property involved exceeded $10,000 (720 ILCS 5/16 — 1(c) (West 2000)), the State has the burden of proving that the suite would have been occupied by a paying customer if defendant and his family had not been there.

It is well-settled law that the value of stolen property is the fair cash market value at the time and place of the theft. See, e.g., People v. Josephine, 165 Ill. App. 3d 762, 764 (1987); People v. Moore, 109 Ill. App. 3d 874, 877 (1982); People v. Brown, 36 Ill. App. 3d 416 (1976). The rate of $130 per night negotiated by defendant was a discounted rate. The record supports a finding that the value of the stolen property exceeded $10,000.

Theft Versus Use of Property

Defendant also argues that he cannot be prosecuted under section 16 — 1 for the theft by deception of the use of a hotel room because that offense is codified at section 16 — 3(a) (720 ILCS 5/16 — 3 (West 2000)) and must be charged as such.

Section 16 — 3(a) provides:

“A person commits theft when he obtains the temporary use of property, labor or services of another which are available only for hire, by means of threat or deception or know*337ing that such use is without the consent of the person providing the property, labor or services.” 720 ILCS 5/16 — 3 (West 2000).

Violation of this section is punishable as a Class A misdemeanor. 720 ILCS 5/16 — 3(c) (West 2000).

The question of law which we must answer is whether the two offenses are mutually exclusive, or whether under the facts of this case, the State properly charged defendant under section 16 — 1. We begin with a comparison of the elements of the two crimes.

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

(1) knowingly obtain control, (2) over the property of the owner, (3) by deception, (4) with the intent to permanently deprive the owner of the use or benefit of the property. The State must also prove (5) the value of the stolen property in order to establish the grade of the offense. 720 ILCS 5/16 — 1(b) (West 2000). Section 16 — 3(a) requires that he (1) obtain the temporary use of property,

(2) that is available only for hire, (3) by threat or deception or knowing that the owner has not consented. 720 ILCS 5/16 — 3(a) (West 2000).

Each offense requires proof of one or more elements not required of the other. To convict a defendant of section 16 — 1 theft, the State need not prove that the property is available only for hire. To convict a defendant of section 16 — 3 theft, the State need not prove either the intent to permanently deprive the owner of the use or benefit of the property or the value of the property.

Nevertheless, defendant argues that the use of deception to obtain the temporary use of property that is available only for hire, such as a hotel suite, may be prosecuted only under section 16 — 3. He asserts that section 16 — 3 is “directed at precisely the sort of conduct” in which he allegedly engaged and that the legislature intended such conduct to be punished as a Class A misdemeanor. See Davis, 203 Ill. App. 3d at 844 (holding that section 16 — 3 did not apply to the defendants’ conduct of diverting the *338labor of city employees to their own purposes because section 16 — 3 is “intended to protect businesses from the unscrupulous practices of prospective customers”). Defendant also calls our attention to the comment of the drafters of section 16 — 3:

“This section codifies the ‘temporary use’ aspect of sections 300 (now ch. 71, §31) (hotels), 404b (customers list), 438 (commercial vehicle) and 439 (motor vehicle) of Ill. Rev. Stat. 1959, ch. 38.” Ill. Ann. Stat., ch. 38, par. 16 — 3, Committee Comments — 1961, at 218 (Smith-Hurd 1977) (Revised in 1970 by Charles H. Bowman).

The “section[ ] 300” referenced above was the first section of “An Act to define and punish frauds upon hotel, inn, boarding and eating-house keepers.” The act was approved in 1889. That section provided:

“[A]ny person who shall obtain food, lodging or other accommodation at any hotel, inn, boarding or eating house, with intent to defraud the owner or keeper thereof, shall be deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine not exceeding one hundred dollars or imprisoned in the county jail not exceeding thirty days.” See Ill. Rev. Stat. 1933, ch. 38, par. 300.

Defendant also points to the provisions of the Innkeeper Protection Act, which, although contained in the Code of Civil Procedure, parallels the language of section 16 — 3 of the Criminal Code:

“Any person who, with intent to defraud, shall obtain lodging, food, money, property or other accommodations at a hotel, inn, boarding house or lodging house without paying therefor shall be guilty of a Class A misdemeanor. In case of a second conviction of the offense described, the punishment shall be that provided for a Class 4 felony.” 740 ILCS 90/5 (West 2000).

The Innkeeper Protection Act was in effect in Illinois as early as 1889 (1889 Ill. Laws 167). It was amended as recently as 1972 (Pub. Act 77 — 2529, §1, eff. January 1, 1973).

The State responds that sections 16 — 1 and 16 — 3 *339are not mutually exclusive, pointing to the drafters’ comment that:

“ ‘Because of the special characteristics of the stolen commodity, and the practical problems of knowledge and intent involved, the theft of lost or mislaid property, and of labor, services or the use of property, are dealt with separately in sections 16 — 2 and 16 — 3. However it should be noted that these offenses are also Theft.

All other forms of theft are included in section 16 — 1 except the special deceptive practices proscribed by Article 17.’ ” McCarty, 94 Ill. 2d at 34, quoting Ill. Ann. Stat., ch. 38, art. 16, Committee Comments — 1961, at 18 (Smith-Hurd 1977).

Thus, the State argues, if it can prove the elements of a section 16 — 1 theft, it may prosecute under that section, even if the property is available for hire and the defendant’s conduct might otherwise meet the elements of section 16 — 3.

We conclude, for several reasons, that the State has the better argument. First, although the Innkeeper Protection Act and the forerunners of section 16 — 3 have been the law in Illinois for many decades, the legislature has not expressed any intent that these statutes are intended to be the exclusive basis for the prosecution of theft by deception of the use of a hotel room.

Second, the prosecutor has broad discretion in determining whether to charge an individual with a criminal offense and the nature of the offense to be charged. Lyons v. Ryan, 201 Ill. 2d 529, 539 (2002). Both this court and the United States Supreme Court have held that the prosecutor has the discretion to decide which of two offenses to charge where two different statutes prohibit the same criminal conduct but prescribe different punishments. People v. McCollough, 57 Ill. 2d 440, 443-44 (1974) (same set of facts may constitute separate offenses under different statutes); United States v. Batchelder, 442 U.S. 114, 123-24, 60 L. Ed. 2d 755, 764, 99 S. Ct. 2198, 2204 (1979) (“when an act violates *340more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants”).

Where, as here, proof of theft under section 16 — 1 requires proof of elements not required under section 16 — 3, it is clear that the prosecutor has the exclusive discretion to decide which charge to bring. People v. Jamison, 197 Ill. 2d 135, 161-62 (2001); see also People v. Barlow, 58 Ill. 2d 41, 44 (1974) (when conduct violates more than one statute and the statutes require different proof or provide different defenses, a defendant is not denied equal protection of the law if he is prosecuted under the statute that provides the greater penalty).

Third, the structure of section 16 — 1 evinces a clear legislative intent that the theft of property of greater value is deserving of greater punishment than the theft of less valuable property. Thus, the person who, through deception, steals one night’s occupancy at a discount motel is less culpable than the person who steals one night’s occupancy in a penthouse suite at a four-star hotel. The person who, through deception, steals one night’s stay at a hotel is less culpable than the person who stays for three months.

We note that under section 16 — 1(b)(1), “[tjheft of property not from the person and not exceeding $300 in value is a Class A misdemeanor.” 720 ILCS 5/16 — 1(b)(1) (West 2000). Similarly, any section 16 — 3 theft is a Class A misdemeanor. If the value of the hotel stay is under $300, both statutes yield the same result and the State may choose, as a matter of prosecutorial discretion, to proceed under 16 — 3 because this charge is more easily proven. On the other hand, if the value of the hotel stay is greater than $300, and if the State can prove the additional elements, it may choose to proceed under section 16 — 1.

Defendant’s Request for Cross-relief

In a portion of the appellate court opinion unpub*341lished under Supreme Court Rule 23 (No. 2 — 04—0398 (unpublished under Supreme Court Rule 23)), the appellate court considered and rejected defendant’s claim of ineffective assistance of counsel at trial. He renews his arguments before this court.

We note that defendant filed pro se posttrial motions raising claims of ineffective assistance of counsel and, after dismissing both the privately retained attorney who represented him at trial and the public defender appointed to represent him in posttrial proceedings, represented himself at the hearing on the matter. On more than one occasion, the trial court warned defendant of the risk of procedural default. Thus, any failure to preserve a specific claim of ineffective assistance in a posttrial motion must be attributed to defendant himself, not to counsel. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (to preserve an issue for appellate review, a defendant must both make a contemporaneous objection and raise the matter in a posttrial motion). His failure to preserve an issue in one of his posttrial motions is not corrected by the efforts of the appellate defender to raise the issue before the appellate court or in a brief to this court. As we observe below, some of the issues raised in defendant’s brief are arguably procedurally defaulted. We, nevertheless, choose to address those issues because the State has not argued default.

With this background in mind, we turn to defendant’s allegations of ineffective assistance of counsel. To prevail on a claim of ineffective assistance of counsel, a defendant must show both that: (1) counsel’s representation was so deficient as to fall below an objective standard of reasonableness under prevailing professional norms, and (2) the deficient performance so prejudiced defendant as to deny him a fair trial. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed. 2d 674, 693, 104 S. Ct. 2052, 2064 (1984). To establish deficient performance, the *342defendant must overcome the strong presumption that counsel’s action or inaction was the result of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999). This means the defendant must show that counsel’s errors were so serious, and his performance so deficient, that he did not function as the “counsel” guaranteed by the sixth amendment. In addition, defendant must prove there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. People v. Johnson, 218 Ill. 2d 125, 143-44 (2005). If either prong of the Strickland test is not met, defendant’s claim must fail. Thus, a reviewing court need not consider whether counsel’s performance was deficient before determining whether the defendant was so prejudiced by the alleged deficiencies that he is entitled to a new trial. People v. Alvine, 173 Ill. 2d 273, 293 (1996).

Hearsay Statements

In one of his posttrial motions, defendant stated: “The Court erred in allowing hearsay testimony in.” The motion asserted that the State’s Attorney made a hearsay statement regarding statements of the Lombard police officer who investigated the hotel’s complaint, but it does not quote the alleged hearsay statement or describe when or under what circumstances the statement was made by the officer or referred to by the prosecutor. No other specific instances of hearsay testimony were identified. During his cross-examination of attorney Wolfe, defendant did not question him about his decisions regarding objections to any alleged hearsay statements. Defendant did not make any argument on this issue to the trial court during the posttrial proceedings.

With the assistance of the appellate defender, defendant now argues that defense counsel failed to object to certain hearsay statements in the testimony of the hotel’s general manager and assistant general manger and that he compounded the error by eliciting further details of *343the hearsay on cross-examination. The two managers testified regarding telephone conversations with the vendors listed by defendant as trade references and with the individual defendant had identified as the contact person for Prolific. They testified that the vendors gave negative reports about defendant and that the purported contact at Prolific denied any connection to defendant or his company. Defendant asserts that these statements were hearsay because they were out-of-court statements offered for the truth of the matters asserted and that these statements would have been excluded had counsel objected. In addition, defendant argues that testimony that the words “Address Unknown” appeared on the envelope returned by the post office also constituted inadmissible hearsay.

These claims could be deemed procedurally defaulted by defendant because he failed to raise them in his post-trial motion and in his argument to the trial court during the hearing that was held for the purpose of considering his claim of ineffective assistance of counsel.

The State overlooks default and argues that these statements were not hearsay because they were not offered for the truth of the matters asserted. The State was not attempting to prove that defendant owed money to one of this trade references, or that he did not have a valid account with the other. The State was not trying to prove that the purported contact person was not affiliated with Prolific, or that the address provided by the defendant was inaccurate. Rather, each of these statements was offered as evidence of defendant’s intent to deceive. The State further asserts that even if these statements were hearsay, defense counsel’s decision not to object was a matter of trial strategy.

The appellate court reasoned that the out-of-court statements would not serve as evidence of intent to deceive unless they were true. The appellate court thus *344concluded that the challenged statements were, indeed, hearsay, but that counsel’s choice not to object was a matter of trial strategy because an objection might have prompted the State to call the individuals who made the statements and their testimony might have proven even more damaging to defendant than the hearsay statements themselves.

Defendant responds that “the record provides no indication that the State was prepared” to offer the testimony of a postal official, representatives of the purported trade references, or the individual who denied being defendant’s business associate. Thus, he claims, it cannot have been a matter of trial strategy to forgo objecting to the hearsay testimony.

This court has noted on several occasions that decisions regarding “what matters to object to and when to object” are matters of trial strategy. People v. Pecoraro, 175 Ill. 2d 294, 327 (1997); People v. Graham, 206 Ill. 2d 465, 478-79 (2003). We have also made it clear that a reviewing court will be highly deferential to trial counsel on matters of trial strategy, making every effort to evaluate counsel’s performance from his perspective at the time, rather than through the lens of hindsight. People v. Madej, 177 Ill. 2d 116, 157 (1997).

Thus, in Graham, this court rejected a claim of ineffective assistance of counsel based on counsel’s failure to object to the admission of a witness’ prior consistent statement to bolster his trial testimony. We noted that counsel’s decision not to object was a “strategic choice” that did not fall below an objective standard of reasonableness. Graham, 206 Ill. 2d at 478-79.

In People v. Evans, 209 Ill. 2d 194, 220-21 (2004), the assistant State’s Attorney read portions of the defendant’s court-reported statement to the jury. In his statement, the defendant mentioned having been involved in “other incidents.” He argued on appeal that the mention *345of “other incidents” was inadmissible evidence of other crimes and that defense counsel was ineffective for failing to object. We observed that it was “highly possible that defense counsel allowed the statement to pass without objecting to diffuse its importance, rather than object and draw further attention to the statement.” Evans, 209 Ill. 2d at 221. We further noted that defense counsel’s failure to object to testimony “may be a matter of sound trial strategy, and does not necessarily establish deficient performance.” Evans, 209 Ill. 2d at 221.

We agree with the appellate court that it is entirely likely counsel chose to let these statements pass rather than object and run the risk of the declarants themselves being called to testify. If these individuals had been put on the stand, they may have offered even more damaging evidence. In fact, the transcript of the posttrial hearing testimony of defense counsel clearly demonstrates that he declined to call several of the witnesses defendant wished to call because they would have given testimony damaging to the defense. People v. Patterson, 217 Ill. 2d 407, 442 (2005) (whether to call a particular witness is a matter of trial strategy and such decisions generally will not support a claim of ineffective assistance of counsel). In addition, we reject defendant’s argument that the record must reflect that the State was “prepared to present” these other potential witnesses because he offers no authority for this proposition.

We conclude, therefore, that defendant has not demonstrated that defense counsel’s decision not to object to these statements constitutes deficient performance under the objective test of Strickland.

Prosecutor’s Closing Argument

Defendant’s pro se posttrial motions cited several cases addressing the issue of improper comment by prosecutors, but did not apply these cases to the facts of his own case. The motions contained conclusory state*346ments such as: “The State’s closing arguments were false, misleading, and deliberately prejudicial.” He also alleged that defense counsel “failed to object to several improper comments by the prosecutor in closing argument.” A thorough review of defendant’s pro se filings and his argument at the motion hearing reveals that he did identify several specific statements that, in his opinion, defense counsel should have objected to during closing argument. These statements are the prosecutor’s assertions that: (1) he is not a “businessman”; (2) he had no income or prospect for income when he registered at the hotel; (3) he is a “conman,” a “fraud,” and a “fake”; (4) he provided credit card information to the hotel that was not valid; and (5) all charges made to the credit card were reversed when, in fact, approximately $500 in charges were accepted.

Before this court, defendant argues that he was “unfairly disparaged” by the prosecutor, who also “portrayed the State’s evidence as being stronger than was actually the case,” and that defense counsel’s failure to object constituted deficient performance. He identifies four such statements. First, the prosecutor stated that defendant had no income or real prospect for income at the time he registered as a guest at the hotel. Second, the prosecutor stated that defendant left the hotel in the middle of the night without settling his bill and was never seen again. Third, at the beginning of his rebuttal, the prosecutor called defendant a “conman,” a “fraud,” and a “fake.” Finally, the prosecutor concluded her rebuttal with the statement: “Don’t let Michael Perry deceive you.”

Defendant objects to the statements regarding his financial status and his nighttime departure from the hotel on the basis that they lack evidentiary support. Defendant asserts that defense counsel should have objected to the first statement because there had been no *347testimony about his “overall financial status” and that he had, in fact, been able to pay for the initial part of his stay using credit cards. As for the second statement, he argues that defense counsel should have objected because the “record simply does not support any inference of a surreptitious mass departure by dark of night.” The third statement is, he claims, improper disparagement. The fourth statement is described as an improper accusation that defendant was attempting to deceive the jury to obtain an acquittal to which counsel should have “vehemently objected.”

Although the specific statements to which defendant is now objecting are not precisely the same statements that he mentioned in his posttrial motions, we conclude that he has adequately preserved this issue and, as a result, our analysis will be guided by the Strickland factors.

The appellate court concluded that the statements were not improper, so the lack of an objection by defense counsel was not deficient performance.

In general, prosecutors have wide latitude in the content of their closing arguments. Evans, 209 Ill. 2d at 225. The prosecutor may comment during closing argument on the evidence and on any fair and reasonable inference the evidence may yield, even if the suggested inference reflects negatively on the defendant. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). Reviewing courts will consider the closing argument as a whole, rather than focusing on selected phrases or remarks. Evans, 209 Ill. 2d at 225. A reviewing court will find reversible error only if the defendant demonstrates that the improper remarks were so prejudicial that real justice was denied or that the verdict resulted from the error. Johnson, 218 Ill. 2d at 141. Thus, in order to meet the prejudice prong of the Strickland test, defendant must make the same showing — that real justice was denied or that the verdict resulted from counsel’s failure to object.

*348We note that prior to closing arguments, the trial court instructed the jury that “[ljike opening statements, closing arguments are not evidence and any statement or argument that is made by the attorneys which is not based on the evidence or reasonable inferences to be drawn from the evidence should be disregarded.” See Nicholas, 218 Ill. 2d at 122-23 (brief reference to defendant as “pure evil” did not require new trial where the comment was not repeated and where the trial court preemptively cautioned the jury to disregard argument not based on the evidence); People v. Ceja, 204 Ill. 2d 332, 357-58 (2003) (comments overstating the evidence did not deny defendant a fair trial where the comments were brief and where the trial court instructed the jury to ignore statements made in closing argument that were not based on the evidence).

During his closing argument, defense counsel repeatedly referred to defendant as a “businessman” who, during his stay at the hotel, was working on a real estate deal. Counsel summarized the testimony describing the details of the deal and why the deal collapsed, leaving defendant unable to pay his hotel bill. Counsel called the jury’s attention to evidence of defendant’s having notified the hotel as early as May 7 that he intended to check out on May 13, which, he argued, countered the suggestion that defendant left the hotel surreptitiously during the night.

Our review of the record reveals that there was sufficient evidentiary support for the prosecutor’s characterization of defendant’s business prospects and the circumstances under which he left the hotel. Defense counsel’s decision to address these comments by counterargument rather than by objection was, thus, a matter of sound trial strategy. Given the trial court’s admonition to the jury and defense counsel’s counterargument, we conclude that the lack of objection to these statements was not deficient performance by defense counsel.

*349Defendant also argues that in her rebuttal argument, the prosecutor engaged in name-calling in an effort to prejudice the jury and that defense counsel’s failure to object was another example of deficient performance. Specifically, the prosecutor opened her rebuttal argument with the statement: “Conman. Fraud. Fake. It’s Michael Perry.” Defendant cites People v. Johnson, 119 Ill. 2d 119, 139 (1987), for the proposition that a prosecutor should not engage in inflammatory name-calling to arouse the passions of a jury against a defendant.

In Johnson, the prosecutor described the defendant, who was accused of a brutal murder, as an “animal” who “butchered” four persons. This court observed that calling a defendant an “animal” is improper “even where that characterization is based on the evidence” (Johnson, 119 Ill. 2d at 139), because the term is inflammatory and prejudicial. Nevertheless, this court did not find reversible error. The trial court had specifically instructed the jury to disregard any statements made during closing arguments that were not based on the evidence. In addition, the remark was “isolated” and “not dwelled upon further by the prosecutor.” Johnson, 119 Ill. 2d at 140.

Defendant also attacks the prosecutor’s “name-calling” on the grounds that it suggested to the jury that he had engaged in deceptive behavior in the past. He argues that it is improper for the State to suggest that a defendant has engaged in similar conduct on other occasions, relying on this court’s decision in People v. Whitlow, 89 Ill. 2d 322 (1982). In Whitlow, the prosecutor made references to background of one of the defendants in violation of an order in limine, including a comment that “ ‘[mjaybe this time he will get caught.’ ” Whitlow, 89 Ill. 2d at 340. The prosecutor also asked the jury the rhetorical question, “ ‘How many other corporations was he using? How many other shareholders? How much more money was he taking ***?’ ” Whitlow, 89 Ill. 2d at *350340. Based on the cumulative effect of these and other comments, this court found reversible error. Whitlow, 89 Ill. 2d at 343.

In the present case, the prosecutor described defendant as a “conman,” “fraud,” and “fake” only in the opening sentence of her rebuttal. This was an isolated remark that introduced the argument that the evidence showed defendant had deliberately deceived the hotel. See Nicholas, 218 Ill. 2d at 122 (prosecutor’s calling defendant “pure evil” merely prefaced his argument that the facts proved defendant guilty; these facts included defendant’s getting a gun, hunting his mother in the street, shooting her four times, hiding the gun, going back to bed, and displaying little concern about her death).

In addition, as in Johnson, the jury was properly instructed to disregard any statement made during closing argument that was not supported by the evidence. The prosecutor did not suggest to the jury that defendant had a history of engaging in theft or fraud. Describing a defendant who is charged with theft by deception as a con man, fraud, or fake is similar to describing a defendant who is charged with murder as a killer or a murderer. The label does not necessarily imply a pattern of similar behavior. We, therefore, conclude that defendant would not have been entitled to a new trial based on the prosecutor’s comment and that, therefore, counsel’s failure to object cannot have caused the type of prejudice necessary under Strickland.

The last comment that defendant challenges was made by the prosecutor at the close of her rebuttal argument. She said: “Don’t let Michael Perry deceive you. Find him guilty of theft by deception.” Defendant characterizes this comment as a suggestion to the jury that he or his counsel was attempting to deceive, trick, or confuse the jury to obtain an acquittal. He cites People *351 v. Emerson, 97 Ill. 2d 487 (1983), in which a new trial was granted in a capital murder case on the basis of multiple instances of prosecutorial misconduct. In Emerson, this court found reversible error where, among other things, the prosecutor suggested that defense counsel laid down a smokescreen “ ‘composed of lies and misrepresentations and innuendoes,’ ” and that he, like all defense attorneys, tried to “dirty up the victim.” Emerson, 97 Ill. 2d at 497.

The statement in the present case, even if improper, is readily distinguishable from the pattern of inflammatory and prejudicial statements that resulted in a new trial for the defendants in Emerson.

In any event, defendant confines his argument on the issue of prosecutorial comments to the first prong of the Strickland test. He argues that “by failing to object when the prosecutor disparaged Mr. Perry before the jury, trial counsel failed to provide proper representation,” but he makes no colorable argument that there is a reasonable probability that, but for counsel’s alleged error, the result of the proceeding would have been different. We conclude that, with respect to each of the asserted instances of improper comment by the prosecutor, counsel’s performance was either not deficient or, even if deficient, did not result in prejudice to defendant that would require a new trial.

Trial Court’s Answer to Jury Question

The jury was initially instructed on the meaning of the phrase “permanent deprivation” according to Illinois Pattern Jury Instruction, Criminal, No. 13.33B (4th ed. 2000), which is virtually identical to the statutory definition of the term (720 ILCS 5/15 — 3 (West 2000)). During deliberations, the jury sent out a note asking, “In this case, what exactly does ‘deprive the owner permanently’ mean?” Defense counsel did not object when the trial court indicated its intent to utilize the dictionary definí*352tion of “permanently” to fashion its response: “The intent to deprive the owner permanently means the intent to not pay back or the intent not to return.” However, the trial court’s written response that was actually given to the jury did not contain the definition to which defense counsel had agreed. Instead, the trial court’s written response said only: “The intent to ‘deprive the owner permanently’ means the intent to deprive.”

Defendant’s pro se motion alleged that the trial court “erred in rendering a definition of the meaning of ‘permanently deprive’ in response to a jury question.” Defendant did not claim that defense counsel was ineffective with regard to the court’s response to the jury question. This issue could be deemed procedurally defaulted for failure to preserve it in a posttrial motion.

Defendant now argues that defense counsel was “responsible for and comphcit in” the trial court’s giving a “meaningless incomplete response” to the jury’s question.

We conclude that defendant cannot prevail on this claim because, even if the trial court’s written response to this jury question introduced error, the error is attributable to the trial court, not to ineffective assistance by defense counsel. Similarly, even if the response that defense counsel agreed to would have been improper, his agreement to the court’s proposed answer cannot have prejudiced defendant because that answer was never given to the jury.

Defense Theory of the Case

In his pro se posttrial motions, defendant claimed that defense counsel “failed to develop a coherent theory of defense.” In support of this claim, defendant listed numerous questions that he thought should have been put to various witnesses. He named several individuals who, in his opinion, should have been subpoenaed to *353testify for the defense and asserted that he had given these names to counsel prior to trial. These included members of the hotel staff who would testify that he was a generous tipper and that he and his wife treated them with “generous benevolence.” He accused counsel of failing to subpoena the personnel files of hotel employees to discover any instances of disciplinary action and of failing to subpoena records from other hotels that he and his family had stayed at in the past. He also claimed that counsel was ineffective for failing to investigate the Lombard police department. Finally, defendant stated that counsel was ineffective for failing to file various motions that defendant requested “and gave the case numbers for reference.” The requested motions included a motion to dismiss a frivolous complaint, a motion to dismiss indictment, and a motion to dismiss for malicious prosecution.

The appellate court resolved this issue by noting that defendant “failed to show that any mitigating evidence was indeed available” and, thus, he had “no evidence to support his claim” that counsel failed to investigate or present favorable evidence.” Although the trial court and the appellate court both found these claims to lack merit, he has properly preserved these issues for review under Strickland.

Before this court, defendant claims that the dispute between himself and the hotel was entirely a civil matter involving breach of contract and an unpaid debt. Defendant argues further that defense counsel was ineffective for failing to present available evidence that would have bolstered his theory of the case and countered the State’s evidence against him. The “available evidence” that defendant refers to is a brochure from HG Global Workplaces, which describes “flexible turn-key officing solutions” available at the address defendant provided to the hotel for his company, Prolific Development Corpora*354tion. The brochure states that HG Global provides a mailing address and other facilities to small or virtual businesses. According to defendant, “defense counsel could have subpoenaed records and a representative of HQ Global to authenticate the existence of a business address for Prolific Development Corporation and explain its office status.” He asserts that the address he provided to the hotel was not fraudulent, but was “a legitimate business mailing address, at least at some point.” Further, counsel “could have shown the defendant’s claim to hotel personnel that he was having trouble with mail delivery to be more plausible, rather than leaving it for the jury to believe that the address did not exist.” This is the only specific example offered in defendant’s brief of defense counsel’s alleged failure to make reasonable efforts to counter the State’s case.

The State responds that defense counsel’s decisions regarding what documentary evidence to subpoena and which witnesses to present are matters of trial strategy and that these decisions ultimately rest with defense counsel, citing People v. West, 187 Ill. 2d 418, 432 (1999) (decisions concerning which witnesses to call and what evidence to present are matters of trial strategy and are generally immune from claims of ineffective assistance of counsel).

The trial court heard the lengthy testimony of defense counsel at the posttrial hearing and clearly found his testimony to be credible. Defense counsel testified that he based his decision on what witnesses to call on whether the defense “would get nothing but positive response from those witnesses, relative to the theory of our defense.” He stated that his conversations with several of the witnesses suggested by defendant revealed that “it would not have been beneficial to [defendant] to subpoena certain witnesses on that list.” He concluded that the risk of having those witnesses testify about their dealings with defendant “outweighed the probative value.”

*355Defense counsel also testified that he called the only two witnesses whose testimony he expected to be useful in establishing the defense theory. These two individuals testified that they were in business with defendant and that he reasonably anticipated that the deal he was working on during the time he was staying at the hotel would be profitable and would enable him to pay the hotel what he owed. Counsel also stated that he declined to call other suggested witnesses, such as the hotel’s van driver, because their testimony would be “peripheral to the theory of the defense.” He decided not to subpoena information from other hotels at which defendant had stayed because he had learned from defendant’s prior attorney that “there had been a bill left outstanding when Mr. Perry vacated” one of those hotels and that he would be opening a “Pandora’s box” if he made an issue of defendant’s previous lengthy hotel stays. He did not subpoena documents regarding the mailing address for Prolific because he did not think that the defense needed to establish the status of the company in order to raise the defense that defendant did not engage in deceit because he intended to pay the hotel, but was simply unable to do so because of a business deal that fell through.

Based on our review of the trial transcript and of the transcript of the hearing on defendant’s posttrial motions, we conclude that he has failed to meet his burden of demonstrating that defense counsel’s decisions regarding witnesses and documentary evidence were not within the realm of trial strategy. People v. Enis, 194 Ill. 2d 361, 378 (2000).

Further, even if defense counsel makes a mistake in trial strategy or tactics or an error in judgment, this will not render representation constitutionally defective. West, 187 Ill. 2d at 432-33. Only if counsel’s trial strategy is so unsound that he entirely fails to conduct meaningful adversarial testing of the State’s case will ineffective as*356sistance of counsel be found. West, 187 Ill. 2d at 432-33. This is not such a case.

Cumulative Error

Defendant briefly alludes to People v. Vera, 277 Ill. App. 3d 130, 141 (1995), for the proposition that the errors made by defense counsel should be “viewed cumulatively” to determine whether a defendant is entitled to a new trial as a result.

We have rejected defendant’s claims of ineffective assistance of counsel, concluding that counsel’s performance was not deficient or, even if deficient, did not result in prejudice under Strickland. Because we have rejected every claim of error, cumulative-error analysis is not necessary.

CONCLUSION

In sum, we hold that the occupancy of a hotel room is “property” within the meaning of section 15 — 1 of the Criminal Code and that the taking of such property by deception can result in the owner’s being permanently deprived of its use or benefit. We further hold that the offenses defined in sections 16 — 1 and 16 — 3 are not mutually exclusive and that, in the present case, the State properly charged the defendant with theft under section 16 — 1. Because these questions of law are resolved against the defendant and because a rational trier of fact could have found that defendant intended to permanently deprive the hotel of the use or benefit of a suite of rooms (Collins, 106 Ill. 2d at 261), we reverse the judgment of the appellate court as to defendant’s conviction of theft.

We further hold that defendant is not entitled to a new trial on the basis of ineffective assistance of counsel.

The judgment of the appellate court is reversed and the judgment of the circuit court is affirmed.

Appellate court judgment reversed; circuit court judgment affirmed.

*357JUSTICE FITZGERALD,

dissenting:

I respectfully dissent because I believe the legislature was careful to exclude the mere “use” of property from the definition of “property” in section 15 — 1. 720 ILCS 5/15 — 1 (West 2000). That section defines “property” to mean “anything of value.” It includes: money, food and drink, real estate, fixtures, telecommunications services, electricity, gas, water, tickets, documents, photographs, computer programs, drawings, models, commercial instruments, and “written instruments representing or embodying rights concerning anything of value, labor, or services, or otherwise of value to the owner.” 720 ILCS 5/15 — 1 (West 2000). Notably, the statutory definition of property does not cover labor or services themselves, only written instruments embodying the rights to such services. This definition also does not include the right to temporarily use property. Therefore, the defendant cannot be found guilty of theft by deception of the use of a hotel room under section 16 — 1 (720 ILCS 5/16 — 1 (West 2000)).

I further disagree with several points in the majority’s reasoning. In support of its holding, the majority states,

“The phrase ‘anything of value’ is unambiguous. Clearly, the legislature intended to expand the definition of property to include not only items of tangible personal property but also other things of value such as real estate, electricity, and telecommunications services. The hospitality industry provides lodging to the public for profit. The market for hotel and motel rooms is vast. The use of a hotel room does have value. See Moline Water Power, 252 Ill. at 357 [1911] (stating that waterpower is property because it ‘is bought and sold in the market as freely as the products of the farm’). We conclude that the use of a hotel room is a thing of value as that phrase is used in the first sentence of section 15 — 1.” 224 111. 2d at 328.

I first disagree that the phrase “anything of value” unambiguously supports the majority’s holding. I believe my interpretation above at least renders the phrase *358“anything of value” ambiguous. The majority opinion ignores the underlying premise of the sole citation for this proposition. The premise of this statement in Moline Water Power was that one buys and sells the ownership of the electricity in the market, not the right to temporarily use that electricity. In other words, it is not the rental of these things which is “bought and sold on the market”; it is the thing itself.

The majority further emphasizes that it is a night of occupancy that was the “use” of the room which was permanently lost, explaining,

“The property at issue here is the use of a hotel room. The hotel’s complement of rooms can he analogized to a store’s inventory of goods. The hotel has a finite number of rooms, which it can rent to members of the public 365 nights a year. One night in one room is a thing of value. When this thing of value is taken by deception, the owner has permanently lost the benefit of one night’s income. We, therefore, hold that each night of occupancy that is obtained by deception permanently deprives the owner of the beneficial use of the hotel room within the meaning of section 15 — 3(b) (720 ILCS 5/15 — 3(b) (West 2000)).” 224 Ill. 2d at 335-36.

By continuing to equate the mere “use” of a hotel room with a “store’s inventory of goods” the majority continues to ignore the distinction between rental, in which the owner allows another temporarily to possess a thing, and the sale of a thing, where ownership of the thing itself changes hands. The leap of logic in the majority’s analogy is that a store is not in the habit of renting its inventory of goods for temporary use. Because the failure to recognize this distinction, I believe the majority has made an unwarranted expansion of section 15 — 1 of the statute beyond the legislature’s intention.

Moreover, it is unclear that the Embassy Suites would have otherwise obtained the money for the night’s lodging used by defendant. The majority cites no specific evidence that defendant denied the hotel the opportunity *359to rent the room to another customer. Further, there is no basis to conclude that there were any nights when the hotel was full and another party would have taken the suite. In this context, the mere opportunity that the hotel might have had to take in other money for the suite cannot be found to constitute “property” for purposes of the general theft statute.

The majority’s expansive interpretation is problematic for several other reasons. First, tenants and landlords could potentially apply the court’s reasoning concerning “use” to criminalize breaches of leases. Commentators have criticized similar approaches because of “the possibility of theft prosecutions in cases of holdover or eviction in a landlord-tenant relationship” and the “problem *** of distinguishing between theft and criminal trespass.” Model Penal Code §223.2, Comment, at 173-74 (1980). Commentators also state that obstacles to theft prosecution in these situations makes sense, for “the immobility and virtual indestructibility of real estate makes unlawful occupancy of land a relatively minor harm for which civil remedies supplemented by mild criminal sanctions for trespass should be adequate.” Model Penal Code §223.2, Comment, at 172 (1980). Furthermore, “Relations between a landlord and a tenant are so minutely regulated and constitute such a delicate socio-political problem that it would be wrong to introduce the possibility of a theft prosecution for unauthorized occupancy by a tenant or improper eviction by a landlord.” Model Penal Code §223.2, Comment, at 172 (1980).

These criticisms may explain the lack of even one prior appellate court decision which has found that the mere “use” of property for a period of time constitutes “property” under section 15 — 1. Previous cases have only implicitly found that leaseholds constituted property under section 15 — 1 and have not provided an iota of analysis on the issue. See People v. Hagan, 199 Ill. App. *3603d 267 (1990) (where the appellate court overturned a conviction of attempted theft by deception of a commercial lease, but did not address whether a lease was property under section 15 — 1); People v. Veasey, 251 Ill. App. 3d 589 (1993) (where the appellate court upheld a conviction of theft by deception of a car lease, but similarly did not specifically address whether the right to temporarily use the car constituted “property” under the statute). Therefore, this court will be the first to hold that this type of “use” is “property” under section 15 — 1, and thus the first to apply the theft-by-deception concepts to landlord-tenant law.

My research has revealed only one case that has, albeit implicitly, supported my interpretation over the majority holding. In People v. Mattingly, 106 Ill. App. 2d 74 (1969), a tenant signed a lease and paid a security deposit to the landlord. Upon arriving on the first day of his tenancy, the tenant found that other persons were already occupying the premises. The landlord was subsequently convicted of theft by deception of the security deposit. In reversing the conviction, the court found that the failure of the landlord to deliver possession would not terminate the lease and the tenant would have the right to gain possession from the occupants by suit in forcible detainer. Accordingly, the landlord had a right to control the security deposit until the termination of the lease. The fact that others occupied the premises when the tenant was to take possession did not entitle the tenant to demand a portion of the security deposit which he had paid. Thus, the landlord’s refusal to return that portion of the security deposit did not constitute theft by deception. Therefore, the court reversed the landlord’s conviction.

Significantly, the Mattingly court focused only on the money that remained in the hands of the landlord as being the “property” subject to theft, rather than focusing *361on the use of the premises which the landlord denied the tenant. This is because the court found that the lease was still in effect until the tenant had gained the right to possession by a suit in forcible detainer. Yet, the majority is overturning Mattingly, sub silentio, making the deceptive taking of the tenant’s contractual right to the “use” of the premises illegal, and subjecting the landlord to a theft conviction. The implications of the majority’s reasoning are therefore squarely applicable to typical landlord-tenant situations. Consider three common, hypothetical cases.

The first situation is the typical failure of a landlord to provide habitable rental property, even for a short period of time. For instance, a landlord may lack the money or desire to sufficiently winterize the building. Nevertheless, the landlord accepts rent from various tenants in the building, knowing full well that the facilities to provide the building’s heat and hot water are inadequate. But he decides to wait until the facilities actually break down in the dead of winter before he fixes the problem. Consequently, the landlord has denied the tenants the benefit of their bargain. The tenants have lost their contractual right to “use” of the apartment, and also the opportunity to rent another apartment before the onset of winter. Some tenants may even have lost sub-rental income. Under normal circumstances, the landlord would be subject to civil remedies such as a suit by the municipality seeking an injunction to repair the property, and for fines for ordinance violations, or a tenant’s suit directly against the landlord for whatever value that the property has been diminished. Following the majority’s reasoning, however, the landlord has committed a theft because he consciously deprived the tenants of their rightful “use” of the property to which the tenants were entitled under the lease. Depending on the number of apartments in the building, the number of *362days deprived, and the degree to which the building was without heat, the landlord could also be liable for theft by deception and a Class 2 felony (720 ILCS 5/16 — 1(a)(2) (West 2000)). The tenant’s right to “use” of the property is clearly a “thing of value” to them, making the landlord guilty of theft by deception.

Perhaps clearer is a typical “self-help” eviction. A tenant has not paid rent for three months. Instead of initiating a proceeding for forcible entry and detainer, the landlord deliberately changes the locks on the tenant’s apartment, permanently barring the tenant from the property. Because the tenant still retains the right to the “use” of the property for the remainder of the lease, a landlord would be guilty of theft of the tenant’s right to “use” the property under the lease.

The third case is one of a holdover tenant. The family’s breadwinner has lost his job and is unable to pay rent. The family knows that it is unlikely or unwilling to pay the arrears on the rent and holds out in the apartment until the landlord institutes civil proceedings for forcible entry and detainer. The family avoids the landlord and deprives the landlord of his ability to rent the property to another tenant. Under all normal circumstances, the legislature has given the tenant the benefit of civil legal processes of forcible entry and detainer, which begins with a five-day notice, service of process, and, eventually, a day in court. Thus, the tenant has the legal right to “use” the premises until a court finds that the landlord has the right of possession. This opinion theoretically entitles the landlord to submit a complaint for prosecution upon the tenants for a felony offense punishable by six years in prison in lieu of or in addition to the normal course of civil proceedings. I do not know what the deleterious effects of this additional remedy may be, but I believe that it is best considered by the legislature.

*363Next, this decision implicates the legislative judgment not to criminalize ordinary cases sounding in contract. I believe the legislature should act with caution in imposing criminal penalties on a hotel guest, landlord, tenant, or any party which has the right to “use” property where contractual remedies remain available. As Judge Posner has stated,

“[U]nder the common law (including the common law of Illinois ***), a breach of contract is not considered wrongful activity in the sense that a tort or a crime is wrongful. When we delve for reasons, we encounter Holmes’s argument that practically speaking the duty created by a contract is just to perform or pay damages, for only if damages are inadequate relief in the particular circumstances of the case will specific performance be ordered. In other words, and subject to the qualification just mentioned, the entire practical effect of signing a contract is that by doing so one obtains an option to break it. The damages one must pay for breaking the contract are simply the price if the option is exercised. See Oliver Wendell Holmes, Jr., The Common Law 300-02 (1881); Holmes, ‘The Path of the Law,’ 10 Harv. L. Rev. 457, 462 (1897).

Why such lenity? Perhaps because breach of contract is a form of strict liability. Many breaches are involuntary and so inapt occasions for punishment. Even deliberate breaches are not necessarily culpable, as they may enable an improvement in efficiency ***. *** The option of which Holmes spoke was the option not to perform because performance was impossible or because some more valuable use of the resources required for performance arose after the contract was signed.” Zapata Hermanos Sucesores, S.A. v. Hearthside Baking Co., 313 E3d 385, 389-90 (7th Cir. 2002).

Here, the hotel seeks criminal punishment because of the inability, at least initially, to screen out defendant as a customer and thereafter to be made whole through adequate contractual remedies. Further, defendant’s theft of the “use” of the hotel property could also simply be characterized as a breach of his duty to pay under the *364contract. The holding today calls into question whether a person who deliberately breaches a contract may also be subject to significant criminal penalties.

Lastly, the legislature has already addressed the concerns in other statutes. In these provisions, the legislature has specifically outlawed the act of unlawfully using a hotel by employing words such as “use,” “lodging,” or “accommodations.” The legislature has prohibited defendant’s behavior in section 16 — 3(a) (720 ILCS 5/16 — 3(a) (West 2000)), which is a Class A misdemeanor. This provision states, “(a) A person commits theft when he obtains the temporary use of property, labor or services of another which are available only for hire, by means of threat or deception or knowing that such use is without the consent of the person providing the property, labor or services.” 720 ILCS 5/16 — 3(a) (West 2000). Second, the Innkeeper Protection Act (740 ILCS 90/5 (West 2000)) also specifically prohibits this action, and also is a Class A misdemeanor for the first offense. This provision states, “Any person who, with intent to defraud, shall obtain lodging, food, money, property or other accommodation at a hotel, inn, boarding house or lodging house without paying therefor shall be guilty of a Class A misdemeanor. In case of a second conviction of the offense described, the punishment shall be that provided for a Class 4 felony.”'740 ILCS 90/5 (West 2000). I deduce from these examples that the legislature could have explicitly employed words such as “accommodation,” “lodging,” or “use” of property in its definition of “property” in section 15 — 1. This demonstrates that the legislature has explicitly intended that defendant’s behavior receive punishment as a Class A misdemeanor. Therefore, defendant’s behavior will not go unpunished had the court ruled that the “use” of a hotel room is not “property” within section 15 — 1 (720 ILCS 5/15 — 1 (West 2000).

*365Because of the foregoing reasons, I respectfully dissent.

JUSTICE KILBRIDE joins in this dissent.

KEARSE, Circuit Judge:

Defendants Autumn Jackson, Jose Medina, and Boris Sabas appeal from judgments of conviction entered in the United States District Court for the Southern District of New York following a jury trial before Barbara S. Jones, Judge. Jackson and Medina were convicted of threatening to injure another person’s reputation with the intent to extort money, in violation of 18 U.S.C. §§ 875(d) and 2 (1994); all three defendants were convicted of traveling across state lines to promote extortion, in violation of the Travel Act, 18 U.S.C. §§ 1952(a)(3) and 2 (1994), and conspiring to commit extortion, in violation of 18 U.S.C. § 371 (1994). Sabas was found not guilty of making extortionate threats. Jackson, Medina, and Sabas were sentenced principally to 26, 63, and 3 months’ *59imprisonment, respectively, with each defendant’s term of imprisonment to be followed by a three-year period of supervised release. On appeal, defendants contend chiefly that the district court failed to give proper jury instructions as to the nature of extortion. For the reasons that follow, we agree, and we accordingly vacate the judgments and remand for a new trial.

I. BACKGROUND

The present prosecution arises out of defendants’ attempts to obtain up to $40 million from William H. (“Bill”) Cosby, Jr., a well-known actor and entertainer, by threatening to cause tabloid newspapers to publish Jackson’s claim to be Cosby’s daughter out-of-wedlock. The witnesses at trial included Cosby, Jackson’s grandmother, persons who had conversations with Jackson in which she demanded money from Cosby and threatened to injure his reputation if he did not pay, and a cooperating witness who had attended meetings during which defendants formulated and executed parts of their plan. The government also introduced, inter alia, recordings of messages left by Jackson, recordings of conversations in which Jackson demanded money from Cosby and threatened to injure his reputation if she were not paid, and documents found in the possession of Medina and Sabas. Taken in the light most favorable to the government, the evidence showed the following.

A. Jackson’s Relationship With Cosby

In the early 1970s, Cosby had a brief extramarital affair with Jackson’s mother, Shawn Thompson. After Jackson was born in 1974, Thompson told Cosby that he was the father. Cosby disputed that assertion, and according to Jackson’s birth certificate, her father was one Gerald Jackson. Jackson’s grandmother testified, however, that she and Thompson told Jackson, as Jackson was growing up, that Cosby was her biological father. The grandmother told Jackson that Cosby had said that, so long as they “didn’t tell anyone about it, that he would take care of her mother and her, and take care of his responsibility.” (Trial Transcript (“Tr.”), 1459.)

For more than 20 years after Jackson’s birth, Cosby provided Thompson with substantial sums of money, provided her with a car, and paid for her admission to substance-abuse treatment programs. Thompson repeatedly telephoned him saying that she needed money, and in the course of the conversations she would usually reiterate her claim that Cosby was Jackson’s father and state that she did not want to embarrass Cosby’s wife. Between 1974 and mid-1994, Cosby gave Thompson a total of more than $100,000, typically having traveler’s checks or cashier’s checks issued in the name of an employee rather than his own name. In 1994, Cosby established a trust fund for Thompson, which was administered by John P. Schmitt, a partner in the New York City law firm that represented Cosby. The trust fund provided Thompson with $750 a week for as long as Cosby chose to fund the trust. Thompson received approximately $100,000 in payments from this fund from mid-1994 until the fund was exhausted, and not replenished, in early 1997.

In addition, Cosby, who had funded college educations for some 300 persons outside of his own immediate family, and had spoken with Jackson by telephone at least once during her childhood, had offered to pay for the education of Jackson and of Thompson’s other two children. In about 1990, after a telephone conversation with Jackson’s grandmother, Cosby became concerned that Jackson’s education was being hampered by conditions at her California home, and he arranged to have Jackson finish high school at a preparatory school in Florida associated with a Florida college. Cosby thereafter also created a trust to pay for Jackson’s college tuition and for certain personal expenses such as food, rent, utilities, and medical costs while Jackson was attending college. This trust *60was administered by Schmitt’s law partner Susan F. Bloom. Jackson subsequently enrolled in a community college in Florida. While Jackson was in school, Cosby spoke with her by telephone approximately 15 times to encourage her to pursue her education, telling her that although he was not her father, he “loved her very, very much” and would be a “father figure” for her. In these conversations, she addressed him as “Mr. Cosby.”

In April 1995, Bloom learned that Jackson had dropped out of college, and Bloom therefore ceased making payments to Jackson from the college education trust. From the spring of 1995 until December 1996, Jackson had no contact with Cosby or any of his attorneys.

B. The Events of December 1996 and early January 1997

In the fall of 1996, Jackson and her then-fíancé Antonay Williams were living in California and working for a production company in Burbank, California, headed by Medina. Medina’s company, which operated out of his hotel suite, was attempting to produce a children’s television show. Jackson, Williams, and Sabas had acting roles in the show; along with cooperating witness Placido Macaraeg, they also had administrative positions. Jackson worked without pay, but she expected to receive a commission when the television show was sold.

In December 1996, Jackson reinitiated contact with Cosby. Within a four-day period, she telephoned him seven times and left urgent messages asking him to return her calls. In one instance, Jackson identified herself as “Autumn Cosby,” a message that Cosby perceived as “some sort of threat.” (Tr. 850.) WTien he returned Jackson’s call, he reproached her for using his name. Jackson described the project on which she was working, told Cosby that she was homeless, and asked him to lend her $2100. Cosby initially refused and suggested that she instead get an advance from the person for whom she was working. After further reflection, Cosby called Jackson back and agreed to send her the $2100 she had requested, plus an additional $900; he urged her to return to school, and he renewed his offer to pay for her education. Cosby directed his attorneys to tell Jackson that he would pay for her education and related expenses if she returned to school, maintained a B average, and got a part-time job. Bloom sent Jackson a letter dated December 13, 1996, setting out the conditions and requesting, if Jackson agreed to the conditions, that Jackson sign and return a copy of the letter to Bloom. Jackson did not comply.

On January 2 and 3, 1997, Jackson spoke with Bloom and Schmitt by telephone and asked that she be sent money for food, lodging, and tuition. Bloom responded that Jackson had not shown that she was enrolled in school. Bloom and Schmitt reiterated that Cosby would not pay for Jackson’s support until she enrolled in school and secured employment for eight hours a week; they advised her that her unpaid work at Medina’s production company did not satisfy the condition that she get a part-time job.

Following this rejection of her request for money, Jackson made a series of calls to business associates of Cosby, threatening to publicize her claim to be his daughter and thereby harm his reputation. For example, on January 6, she left a voice-mail message for an administrator at Eastman Kodak Company, whose products Cosby has endorsed. The administrator testified that the caller “said that she was Autumn Jackson, she was the daughter of Dr. William J. [sic] Cosby, Jr., that she knew that Mr. Cosby had a contract with Kodak, and that it was very important that I call her, she was calling in regards to their relationship and his actions or non-actions, and that she was prepared to go to [a] tabloid.” (Tr. 121.)

Also on January 6, Jackson left a voice-mail message for Peter Lund, president *61and chief executive officer of CBS, whose ■television network currently carried Cosby’s prime-time program. Stating that her name was Autumn Jackson, Jackson said:

I am the daughter of Doctor William Cosby, Jr. I need to speak with you, um, regarding, regarding [sic] this relationship, um, that he and I have, and how this will affect CBS if I go to any tabloids .... This is of the ... utmost importance to CBS and his, uh, welfare, so I would, I would [sic ], uh, guess that you would need to call me back as soon as possible.

(Government Exhibit 1R1T.) On January 7, Jackson called Lund’s office at CBS again, leaving a second message identifying herself as Cosby’s daughter and stating that if she were not called back promptly “she would go to the tabloids.” (Tr. 93.)

Later on January 7, Jackson telephoned Schmitt and asked if there was any chance that Cosby “would send her money to live on.” (Tr. 482.) When Schmitt responded in the negative, Jackson said that if she did not receive money from Cosby, she would have to go to the news media. Schmitt testified that he replied that if Jackson meant that “she was planning to go to the news media with what she believed was damaging information and would refrain from doing so only if Mr. Cosby paid her money, that that was extortion, that was both illegal and disgraceful.” (Id.) He also told her that “extortion is a crime in every state.” (Tr. 483.) Jackson stated that she had “checked [it] out and she knew what she was doing.” (Tr. 482-83.)

During the week of January 6, Jackson and Medina discussed ways to intensify the pressure on Cosby and his corporate sponsors. These discussions took place at the evening meetings of Medina’s production staff in the presence of Sabas, Williams, and Macaraeg. Macaraeg testified that the discussions resulted in, inter alia, the mailing on January 10 and 11 of company solicitation letters that, without mentioning Cosby by name, included a paragraph referring to Jackson as the daughter of a “CBS megastar” who was “CBS’s most prized property,” and stating that, contrary to the star’s public image as an advocate of parenting, the star had left Jackson “cold, penniless, and homeless.” (Tr. 968.) Letters containing this paragraph were sent to the President and Vice President of the United States, the Governor of California, the Mayor of New York City, CBS, Eastman Kodak, Philip Morris Company, which was another Cosby sponsor, two publishing companies that had published Cosby’s books, and many other companies. Medina explained that the paragraph would affect Cosby’s sponsors, “put pressure on Bill Cosby,” and “help Autumn out.” (Tr. 956.)

C. The Events of January 15-18, 1997

On January 15, 1997, after the telephone calls and letters of the week before had failed to produce the desired results, Medina and Jackson contacted Christopher Do-herty, a reporter for The Globe tabloid newspaper. Medina and Jackson told Do-herty that Cosby was Jackson’s father and asked what her story would be worth. To support the story, Medina described for Doherty an affidavit in which Jackson had stated (falsely) that Cosby admitted his paternity. Medina faxed Doherty a copy of Bloom’s December 13, 1996 letter to Jackson setting out the terms under which Cosby offered to pay Jackson’s tuition. After some negotiation of terms, Doherty agreed that The Globe would purchase the rights to Jackson’s story of her relationship to Cosby for $25,000.

That evening, Doherty brought to Medina’s hotel a “source agreement,” for the signatures of both Jackson and Medina, setting forth the terms under which The Globe would buy the rights to Jackson’s story. Doherty did not get to meet with Jackson or Medina but dealt instead with Williams, who relayed a number of requests for modifications of the contract. *62Doherty agreed to accommodate all of their requests, but Jackson and Medina refused to sign the source agreement, saying they would deal with it the next day.

The agreement with The Globe was never signed. Instead, on the following morning, January 16, Jackson faxed a copy of the agreement, after obliterating the $25,-000 price, to Schmitt. In addition, Jackson faxed Schmitt a letter stating, “I need monies and I need monies now.” Jackson’s letter stated that it was “urgent” that Schmitt contact her and “make certain arrangements” and asked Schmitt to have Cosby call her that day. The letter concluded:

If I don’t hear from you by today for a discussion about my father and my affairs, then I will have to have someone else in CBS to contact my father for me. I want to talk to my father because I need money and I don’t want to do anything to harm my father in any way, if at all possible to avoid.

Enclosed you will find a copy of a contract that someone is offering monies for my story, which is the only property I have to sell in order to survive.

(Government Exhibit 33.) The fax cover letter directed Schmitt to “R.S.V.P.” to Jackson in Medina’s hotel suite.

Schmitt called Jackson later that morning. Medina, Jackson, Williams, Sabas, and Macaraeg were present when Schmitt called. With Medina mouthing words and passing notes to Jackson, Jackson and Schmitt had the following conversation, in which Jackson asked for $40 million:

SCHMITT: I, I received your letter, Autumn.

JACKSON: Okay.

SCHMITT: [Clears throat] How, how much money are you asking for, Autumn?

JACKSON: I’m wanting to settle, once and finally.

SCHMITT: What, what are you asking for?

JACKSON: I’m asking for 40 million, to settle it completely [pause].

SCHMITT: And if our answer to that is no?

JACKSON: Well, like I said, I have offers, and I will go through with those offers.

SCHMITT: And those offers are to sell your story to the Globe? [Pause]. Autumn, are you there?

JACKSON: Yes I am.

SCHMITT: Is that what you’re referring to, the contract that you sent me, that, for sale to the Globe of your story?

JACKSON: Them, as well as any others. [Pause].

SCHMITT: Well, I’m, I’m sure you know the answer to that is no, Autumn. Thank you very much.

(Government Exhibit 22E8T, at 1.) Jackson asked to have her “father” call her; Schmitt responded that Jackson’s father was “Mr. Jackson,” and that she should “not expect a call from Mr. Cosby.” (Id. at 1-2.) Macaraeg testified that when the conversation ended, Jackson looked frustrated and told the group that Schmitt “doesn’t understand the meaning of the term settlement,” and Medina said, “if [Cosby] doesn’t want this to get out, he’s going to have to pay a lot of money.” (Tr. 995.) Jackson nodded.

Some hours later, Jackson and Medina faxed a letter to CBS president Lund. They attached a copy of the unsigned source agreement with The Globe, again with the price redacted. In the letter, which was signed “Autumn J. Jackson-Cosby” and bore the heading “ATTENTION: PLEASE FORWARD THIS LETTER TO MY FATHER, WILLIAM H. COSBY, JR.,” Jackson said that Cosby’s failure to acknowledge her as his daughter had left her mentally anguished and financially impoverished. Jackson said that because of her “unconditional love ... for [her] father” she did not wish to harm Cosby, his sponsors or publishers, or CBS “[i]n any way, if at all possible to avoid.” *63(Government Exhibit 4.) However, she made reference to the contract with The Globe, saying “if you and my father cannot help me, [it] may possibly be my only means of survival.” (Id.) Jackson’s letter to Lund concluded:

I am willing to decline this offer and all others upon a fair settlement. If my father, CBS, and you are not interested in this settlement, then I am quite sure that NBC, ABC, and other networks will have an interest in hearing my story of desperation reaching out for my father’s love.... [Cosby’s] show and his private life just happens [sic ] to be one of your best properties and this disclosure ... could undoubtedly effect [sic ] your ratings negatively.

(Id.)

When Schmitt informed Cosby of Jackson’s demand for $40 million dollars, Cosby responded that he would not pay, and he directed Schmitt to tell Thompson, Jackson’s mother, of her daughter’s conduct. The next morning, January 17, Schmitt telephoned Thompson and told her that Jackson “was attempting to extort money from Mr. Cosby, and she was threatening to go to the Globe with her story unless she were paid a lot of money.” (Tr. 509.) Thompson then attempted to call Jackson at Medina’s hotel suite, but reached only Medina. In a conversation tape-recorded by Medina, Thompson stated that Jackson was committing a crime by attempting to “blackmail” Cosby:

Autumn for some reason has painted herself into a corner. Instead of doing what ... he asked her to do, which is go to school, enroll, ... [s]he has tried to blackmail him.... I think they used your fax machine.... Um, and said if they don’t give her an exorbitant amount of money, that she’s going to go to the tabloids with her story, and the talk shows.... [S]he’s also told them that she has an unsigned ... contract with Globe magazine to tell her story. Now, that’s extortion when you do it like that. If she was just going to tell her story, that’s what she should have done. But by calling him, calling the attorneys, and talking with the attorney saying “if you don’t give me this money, then I’m going to do that” it’s called extortion, it’s a federal offense.

(Government Exhibit 24E2R2.) That afternoon, Cosby instructed Schmitt to report Jackson’s threats to the Federal Bureau of Investigation (“FBI”).

At the direction of the FBI agents, Schmitt telephoned Jackson for the purpose of allowing the agents to hear and record her demands. In that conversation, Schmitt told Jackson that Cosby had changed his mind and now wanted to come to an arrangement with her. Schmitt asked Jackson how much money she needed, saying her $40 million demand was unreasonable. Schmitt and Jackson negotiated and eventually arrived at the figure of $24 million. Schmitt told Jackson that she and Medina would have to come to New York to pick up a check. Jackson said that Medina was to receive 25 percent of the money and asked Schmitt to make out one check for $18 million and the other for $6 million. Schmitt made flight arrangements for Jackson, Medina, and Williams to travel from Los Angeles to New York that night, and asked Jackson to meet him in his office the next morning to execute a written agreement and pick up the cheeks.

That evening, Sabas drove Jackson, Medina, and Williams to the airport. Only Jackson and Medina flew to New York; Williams remained in Los Angeles, and Sabas allowed him to use Sabas’s credit card to pay for tickets for Jackson’s and Medina’s return flight to California.

On the morning of January 18, 1997, Jackson and Medina met Schmitt at the offices of his law firm in Manhattan. Jackson and Medina reviewed a draft agreement, prepared by Schmitt under the direction of the FBI, which provided that, in consideration for $24 million, Jackson and Medina would “refrain from providing *64any information whatsoever about Mr. Cosby to any third party,” would “terminate any and all discussion with ... The Globe,” and would “not initiate any further discussions with The Globe or any other media outlet, with respect to Ms. Jackson’s story that she is the daughter of Mr. Cosby.” (Government Exhibit 37A.) When Jackson and Medina had signed, Schmitt left the room on the pretense of getting the checks, and FBI agents entered and arrested Jackson and Medina.

D. Evidence Seized in Postarrest Searches

After the arrests, FBI agents searched Medina’s hotel suite and safe deposit box in California. In the safe deposit box, they found cassette tapes with recordings of many of defendants’ telephone calls. In the hotel suite, they found drafts of Jackson’s letters to Schmitt and Lund, notes of research into Cosby’s sponsors and publishers, and lists of “talking points” for a proposed conversation to be held with Lund, all in Jackson’s handwriting. The agents also found a hand-written plan detailing the steps defendants intended to take to exploit The Globe source agreement and obtain money from Cosby or his sponsors, including such steps such as “Make Copy of Contract^] White-Out Prices” and “Fax Letters to Jack Schmidt [sic] and Peter Lund.” (Government Exhibit 69A3.) The agents also found a note that Jackson had drafted, apparently for Cosby, but never sent. It read in part: “Now, here is my deal. Either I go to the tabloids and/or CBS or we can settle now. That’s what I am willing to do.” (Tr. 1254.)

Thereafter, agents obtained additional tapes and documents that were in the possession of Sabas. They included the original Globe source agreement with the price whited out, letters faxed to Lund and Schmitt, and a tape of the January 16 conversation with Schmitt in which Jackson had demanded the payment of $40 million.

E. The Present Prosecution

The present prosecution was commenced in February 1997. The superseding indictment alleged three counts against each defendant: (1) conspiracy to violate 18 U.S.C. § 875(d) and the Travel Act, 18 U.S.C. § 1952(a)(3), in violation of 18 U.S.C. § 371; (2) interstate transmission of threats to injure another person’s reputation with the intent to extort money, in violation of 18 U.S.C. §§ 875(d) and 2; and (3) interstate travel in order to promote extortion, as prohibited by § 875(d) and the New York State extortion statute, N.Y. Penal Law § 155.05(2)(e)(v) (McKinney 1988), in violation of the Travel Act, 18 U.S.C. §§ 1952(a)(3) and 2. Following a jury trial, Jackson and Medina were convicted on all three counts. Sabas was convicted of conspiracy and violating the Travel Act but was acquitted on the § 875(d) extortion count.

In a posttrial motion defendants moved for dismissal of their convictions on the ground that § 875(d) and the New York State extortion statute, as interpreted in the district court’s jury instructions, see Part II.A. below, are unconstitutionally overbroad or vague. In an opinion published at 986 F.Supp. 829 (S.D.N.Y.1997), the district court denied the motion, ruling that the statutes are not overbroad because they target only extortionate threats, not expressions of ideas or advocacy that typically implicate First Amendment protections, see 986 F.Supp. at 833-35, and because they proscribe only unequivocal and specific “true threats,” see id. at 832-33. The court also found that the statutes in question are not impermis-sibly vague. See id. at 835-37. Judgments of conviction were entered, defendants were sentenced as indicated above, and these appeals followed.

II. DISCUSSION

On appeal, Jackson and Medina contend principally that the district court gave an erroneous jury charge on the elements of *65extortion as prohibited by § 875(d) because it omitted any instruction that, in order to convict, the jury must find that the threat to injure Cosby’s reputation was “wrongful.” Alternatively, they argue that if that section does not include an element of wrongfulness, it is unconstitutionally overbroad and vague. In addition, Medina contends that the district court improperly excluded from evidence portions of the tape recording of his January 17, 1997 conversation with Jackson’s mother; and Sabas contends that the evidence was insufficient to support his conspiracy conviction and that he should have been tried separately from his codefendants. Finding merit in the challenge to the district court’s instructions, we vacate and remand for a new trial.

A. Extortion in Violation of 18 U.S.C. § 875(d)

Section 875(d), the extortion statute under which Jackson and Medina were convicted, provides as follows:

(d) Whoever, with intent to extort from any person ... any money or other thing of value, transmits in interstate or foreign commerce any communication containing any threat to injure the property or reputation of the addressee or of another ... shall be fined under this title or impiisoned not more than two years, or both.

18 U.S.C. § 875(d). This statute does not define the terms “extort” or “intent to extort.” At trial, Jackson asked the court to instruct the jury that

[t]o act with intent to “extort” means to act with the intent to obtain money or something of value from someone else, with that person’s consent, but caused or induced by the wrongful use of fear,

and to explain that

[t]he term “wrongful” in this regard means that the government must prove beyond a reasonable doubt, first, that the defendant had no lawful claim or right to the money or property he or she sought or attempted to obtain, and, second, that the defendant knew that he or she had no lawful claim or right to the money or property he or she sought or attempted to obtain.

If you have a reasonable doubt as to whether a defendant’s object or purpose was to obtain money or other thing of value to which he or she was lawfully entitled, or believed he or she was lawfully entitled, then the defendant would not be acting in a “wrongful” manner and you must find him or her not guilty.

(Jackson’s Requests To Charge Nos. 18, 19 (emphasis in original)).

The court informed the parties that it would not give these requested instructions, stating its view that “threatening someone’s reputation for money or a thing of value is inherently wrongful.” (Tr. 1481.) Consistent with that view, after instructing the jury that a § 875(d) offense has four elements, to wit, (1) an interstate communication, (2) containing a threat to reputation, (3) with intent to communicate such a threat, (4) with intent to extort, the court described the “intent to extort” element as follows, without mentioning any ingredient of wrongfulness:

The fourth element, intent to extort. The final element that the government must prove beyond a reasonable doubt is that the defendant you are considering acted with the intent to extort money or a thing of value from Bill Cosby. You should use your common sense to determine whether the defendant you are considering had the requisite intent to extort. In this connection, to extort means to obtain money or a thing of value from another by use of threats to reputation.

... [I]t is not a defense that the alleged threats to another’s reputation are based on true facts. In other words, it is irrelevant whether Bill Cosby in fact is the father of Autumn Jackson. Rather, you must determine whether the defendant you are considering communi*66cated a threat to injure Bill Cosby’s reputation, and whether that defendant did so with intent to extort money from Bill Cosby.

In addition, if you find that the government has proved beyond a reasonable doubt a particular defendant threatened to injure Bill Cosby’s reputation in order to obtain money from him, it maíces no difference whether the defendant was actually owed any money by Bill Cosby or thought he or she ivas. That is because the law does not permit someone to obtain money or a thing of value by threatening to injure another person’s reputation.

(Tr. 1778-80 (emphases added).)

Although in connection with the counts charging conspiracy and violations of the Travel Act the court instructed the jury that the government was required to proved that the defendant acted with the intent to engage in “unlawful” activity, see Part II.B. below, the court did not use the words “unlawful” or “wrongful” or any equivalent term in its instructions as to the scope of § 875(d).

The government contends that § 875(d) contains no “wrongfulness” requirement, and that even if such a requirement is inferred, threats to injure another person’s reputation are inherently wrongful. These arguments are not without some support. The subsection itself contains no explicit wrongfulness requirement, and it parallels a subsection that prohibits, with intent to extort, a “threat to kidnap” a person, 18 U.S.C. § 875(b), and a “threat to injure the person of another,” id. Given the inherent wrongfulness of kidnaping and assault, the parallelism of subsection (b)’s prohibitions with § 875(d)’s prohibition against threats to injure reputation or property may support an inference that Congress considered threats to injure reputation to be inherently wrongful methods of obtaining money. Such an inference would be consistent with the established principle that, when a threat is made to injure the reputation of another, the truth of the damaging allegations underlying the threat is not a defense to a charge of extortion under § 875(d). See, e.g., United States v. Von der Linden, 561 F.2d 1340, 1341 (9th Cir.1977) (per curiam), cert. denied, 435 U.S. 974, 98 S.Ct. 1621, 56 L.Ed.2d 68 (1978); Keys v. United States, 126 F.2d 181, 185 (8th Cir.), cert. denied, 316 U.S. 694, 62 S.Ct. 1296, 86 L.Ed. 1764 (1942); cf. United States v. Pascucci, 943 F.2d 1032, 1033-34, 1036-37 (9th Cir.1991) (§ 875(d) conviction upheld where defendant threatened to send genuine tape of extramarital sexual encounter to victim’s employer).

Further, the government’s suggested interpretation of § 875(d) finds support in United States v. Pignatelli, 125 F.2d 643, 646 (2d Cir.), cert. denied, 316 U.S. 680, 62 S.Ct. 1269, 86 L.Ed. 1754 (1942), in which we interpreted a section paralleling a predecessor of § 875(d), which prohibited a person, “with intent to extort from any person any money or other thing of value,” from mailing a “communication ... containing any threat to injure the property or reputation of the addressee or of another,” 18 U.S.C. § 338a(c) (1940). Pignatelli, who had threatened by mail that unless he were paid $500,000 he would state in a book that a relative was falsely using the title of “Prince,” contended on appeal that the trial court improperly excluded evidence showing that Pignatelli himself “had sole right to the title of Prince.” 125 F.2d at 646. He argued that that evidence was relevant because it tended to show that his demands for money were made “in good faith and only in order to adjust pending disputes.” Id. We rejected Pignatelli’s claim, stating as follows:

The book describing the victims as ... swindlers ... was a threat to injure their reputation, pure and simple. It is true that [Pignatelli] was free to publish the facts at the risk of liability in a libel suit, but he was not free to threaten to injure their reputations and to use the mails for that purpose in order to settle his claim. Threats to damage another’s *67 reputation are no proper means for determining a controversy. It may be adjusted either by suit or by compromise but settlement must not be effected by using defamation as a club. The threat to publish the book for such a purpose was unlawful and it made no difference whether [Pignatelli] had the sole right to be called Prince or not.

Id. (emphasis added).

Despite the categorical language of Pignatelli, and despite Congress’s failure either to provide a definition of “extort” for purposes of § 875(d) or to include in § 875(d) the word “wrongful,” we are troubled that § 875(d) should be interpreted to contain no element of wrongfulness, for plainly not all threats to engage in speech that will have the effect of damaging another person’s reputation, even if a forbearance from speaking is conditioned on the payment of money, are wrongful. For example, the purchaser of an allegedly defective product may threaten to complain to a consumer protection agency or to bring suit in a public forum if the manufacturer does not make good on its warranty. Or she may threaten to enlist the aid of a television “on-the-side-of-the-consumer” program. Or a private club may threaten to post a list of the club members who have not yet paid their dues. We doubt that Congress intended § 875(d) to criminalize acts such as these.

Further, we cannot view the absence of an extortion definition in § 875, or the absence of the word “wrongful,” as particularly meaningful, for an overview of the Criminal Code reveals that, in enacting provisions dealing with extortion, Congress has simply been inconsistent as to the inclusion of such a word and as to the inclusion of an extortion definition. The inconsistency in format does not appear to bespeak different legislative intentions as to the meaning of extortion, for where a definition has been included, the concept of wrongfulness is made explicit; and in most sections where there is no definition and no use of adjectives such as “wrongful” or “unlawful,” such a concept seems nonetheless implicit. For example, in Chapter 42 of the Code, which encompasses 18 U.S.C. §§ 891-896 and is entitled “Extortionate Credit Transactions,” the use of any “extortionate means” to collect an extension of credit is forbidden, see, e.g., id. § 894(a), and “extortionate means” is defined: It encompasses “any means which involves the use, or an express or implicit threat of use, of violence or other criminal means to cause harm to the person, reputation, or property of any person,” id. § 891(7) (emphasis added). Section 875, on the other hand, is in Chapter 41 of the Code, which encompasses 18 U.S.C. §§ 871-880 and is entitled “Extortion and Threats.” In Chapter 41, the words “extort,” “extortion,” and “extortionate” are used in several sections, but all are undefined. Nonetheless, most of the acts prohibited in those sections must have been viewed as inherently wrongful. For example, §§ 875(a), (b), and (c) and the first three paragraphs of § 876 deal with extortionate threats to kidnap or to injure a person, conduct that plainly is inherently wrongful. In § 872, the conduct that is prohibited is simply the commission or attempted commission, by, inter alios, a federal employee, of “an act of extortion.” 18 U.S.C. § 872. Since § 872 contains no pertinent qualifying language, it seems plain that Congress views “extortion” as wrongful.

A similar juxtaposition of the presence and absence of definitions of extortion can be seen in the Hobbs Act, 18 U.S.C. § 1951, and the Travel Act, 18 U.S.C. § 1952. The Hobbs Act prohibits, inter alia, obstructing, delaying, or affecting commerce “by robbery or extortion,” id. § 1951(a), and it defines extortion as follows:

The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right,

id. § 1951(b)(2) (emphasis added). The Travel Act refers to “extortion” without *68defining it. That Act has nonetheless been interpreted as using the term in its “generic” sense, a sense that inherently signifies wrongfulness. Thus, in determining whether the term “extortion” as used in § 1952 was meant to encompass acts that at common law were classified as blackmail but not as extortion (because not committed by a public official), the Supreme Court accepted the

Government's] .. •. suggestion] that Congress intended that extortion should refer to those acts prohibited by state law which would be generically classified as extortionate, i.e., obtaining something of value from another with his consent induced by the wrongful use of force, fear, or threats.

United States v. Nardello, 393 U.S. 286, 290, 89 S.Ct. 534, 21 L.Ed.2d 487 (1969) (emphasis added).

In sum, in sections of the Criminal Code other than § 875(d), the words “extort,” “extortionate,” and “extortion” either are defined to have a wrongfulness component or implicitly contain such a component. If Congress had meant the word “extort” in § 875(d) to have a different connotation, we doubt that it would have chosen to convey that intention by means of silence. Given its silence and given the plain connotation of extortion in other sections, we decline to infer that “extort” as used in § 875(d) lacks a component of wrongfulness.

The legislative history of § 875(d) also supports our view that the phrase “intent to extort” was meant to reach only demands that are wrongful, for the predecessor to that section was enacted contemporaneously with the Anti-Racketeering Act of 1934, 18 U.S.C. § 420a-420e (1934) (“1934 Act”), which is the predecessor to the Hobbs Act, 18 U.S.C. § 1951. The Hobbs Act’s definition of extortion (“the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right”) dates back to the 1934 Act, which provided penalties for any person who

(b) Obtains property of another, with his consent, induced by wrongful use of force or fear, or under color of official right,

or who

(c) Commits or threatens to commit an act of physical violence or physical injury to a person or property in furtherance of a plan or purpose to violate subsection[ ] ... (b).

18 U.S.C. § 420a(b) and (c) (1934). Ah though the structure of the 1934 Act differs from that of Hobbs Act, the substance of their prohibitions is the same. Accord Bianchi v. United States, 219 F.2d 182, 188-89 (8th Cir.) (prohibition of extortion in the Hobbs Act is substantially the same as in the 1934 Act, both of which contain wrongfulness element), cert. denied, 349 U.S. 915, 75 S.Ct. 604, 99 L.Ed. 1249 (1955). And although the word “extortion” itself is not used in the 1934 Act, it is quite clear that Congress meant the statutory language to describe what it viewed as the essence of extortion, for the report of the Senate Judiciary Committee discussing the bill that would become the 1934 Act stated that the bill was aimed at “persons who commit acts of violence, intimidation and extortion.” S.Rep. No. 73-532, at 1 (1934); see id. (“The proposed statute ... makes it a felony to do any act ‘affecting’ or ‘burdening’ ... commerce if accompanied by extortion....”).

The 1945 debates on the bill that was eventually to become the Hobbs Act, see 91 Cong. Rec. 11,839-48, 11,899-922 (1945), showed both that the legislators believed that the 1934 Congress viewed extortion as having an element of wrongfulness, and that the Hobbs Act Congress—which retained the substance of the 1934 Act’s prohibition—held the same view. See id. at 11,901-02, 11,906, 11,908, 11,920. The discussion leading to the express use of the word “extortion” in the Hobbs Act, and of the definition of that term, centered on the generally accepted *69meaning of the term, which traditionally included a component of wrongfulness. The Hobbs Act proponents pointed out that the 1934 Act was fashioned in no small measure after the then-current definition of extortion used in the New York Penal Code. See, e.g., 91 Cong. Rec. 11,843, 11,900, 11,906; see also United States v. Zappola, 677 F.2d 264, 268 (2d Cir.), cert. denied, 459 U.S. 866, 103 S.Ct. 145, 74 L.Ed.2d 122 (1982); United States v. Nedley, 255 F.2d 350, 355 (3rd Cir.1958). That definition expressly included a “wrongfulness” element, see N.Y. Penal Law § 850 (Consol.1930) (extortion is the “obtaining of property from another ... with [his] consent, induced by a ivrongful use of force or fear, or under color of official right” (emphasis added)), and the Hobbs Act proponents viewed that definition as representative of the extortion laws of every state, see 91 Cong. Rec. at 11,906. Thus, the definition of extortion included in the Hobbs Act reflected what its proponents believed to be the generally accepted definition. See id. at 11,900, 11,906, 11,910, 11,914; see generally Black’s Laiv Dictionary 696 (4th ed.1957) (“extort”: “To gain by wrongful methods, to obtain in an unlawful manner, to compel payments by means of threats of injury to person, property, or reputation .... to exact something unlawfully by threats or putting in fear.”). Accordingly, Representative Hobbs stated that the terms extortion and robbery “have been construed a thousand times by the courts. Everybody knows what they mean.” 91 Cong. Rec. 11,912.

[WJhere Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed. In such case, absence of contrary direction may be taken as satisfaction with widely accepted definitions, not as a departure from them.

Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952). In enacting the Hobbs Act, Congress made express what we would ordinarily presume with respect to the meaning of extortion.

At the same time that Congress was fashioning the 1934 Act to prohibit extortion it was considering the bill that would become 18 U.S.C. § 408d (1934), the predecessor of § 875. In terms virtually identical to those of § 875(d), the first numbered clause of § 408d prohibited

with intent to extort from any person ... any money or thing of value, [the] transmission] in interstate commerce by any means whatsoever, [of] any threat (1) to injure the person, property, or reputation of any person.

18 U.S.C. § 408d (1934). Although the passage of § 408d preceded the passage of the 1934 Act by a month, it is plain that the two statutes were considered by Congress contemporaneously. The Senate Report on the bill that would become the 1934 Act, emphasizing that that bill targeted “extortion,” S.Rep. No. 73-532, at 1 (1934), was issued in March 1934; the 1934 Act was passed in June, prohibiting what Congress viewed as extortionate conduct; and during the period between the issuance of the Report and the passage of the 1934 Act, Congress passed § 408d, prohibiting threats to injure reputation “with intent to extort.” The simultaneous consideration of the two enactments focusing on extortion gives rise to a strong inference that Congress intended to give the same meaning to extortion in both statutes.

Under the Hobbs Act definition of extortion, which includes obtaining property from another through a wrongful threat of force or fear, the use of a threat can be wrongful because it causes the victim to fear a harm that is itself wrongful, such as physical injury, or because the means is wrongful, such as violence. See, e.g., United States v. Zappola, 677 F.2d at 269. However, the Hobbs Act may also be violated by a threat that causes the victim to *70fear only an economic loss. See, e.g., United States v. Margiotta, 688 F.2d 108, 134 (2d Cir.1982), cert. denied, 461 U.S. 913, 103 S.Ct. 1891, 77 L.Ed.2d 282 (1983). Yet as we discussed in United States v. Clemente, 640 F.2d 1069, 1077 (2d Cir.), cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91 (1981), a threat to cause economic loss is not inherently wrongful; it becomes wrongful only when it is used to obtain property to which the threatener is not entitled.

In Clemente, we considered challenges to Hobbs Act convictions on the ground that the trial court’s instructions permitted the jury to “convict[ Clemente] solely upon finding that he used fear of economic loss to obtain money,” and that as a matter of law “the use of fear of economic loss is not inherently wrongful.” 640 F.2d at 1077. We rejected the challenge because Clem-ente’s factual premise was erroneous. The trial court had in fact informed the jury, inter alia, that “extortion” means obtaining property from another, with his consent, induced by the “wrongful” use of actual or threatened force or fear, id. at 1076 (internal quotation marks omitted), and had instructed that “[wjrongful” meant that the defendant in question had instilled in his victim the fear of economic loss of property to which the defendant “had no lawful right,” id. at 1077 (internal quotation marks omitted). In upholding the convictions, we stated as follows:

We are satisfied that the charge correctly instructed the jury on the wrongfulness element of the crime of extortion. The thrust of the district court’s charge when read as a- whole, see Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 ... (1973), was that the use of fear of economic loss to obtain property to which one is not entitled is wrongful. It is obvious that the use of fear of financial injury is not inherently wrongful. And precisely because of this fact, the “objective” of the party employing fear of economic loss will have a bearing on the lawfulness of its use. In this regard, Judge Sand instructed the jury that the wrongfulness element of the crime would be satisfied upon finding that fear of economic loss was employed by the defendants to obtain money to which they were not lawfully entitled.

Id. at 1077 (emphasis added).

We are persuaded that a similar interpretation of § 875(d) is appropriate. Given Congress’s contemporaneous consideration of the predecessors of § 875(d) and the Hobbs Act, both of which focused on extortion, we infer that Congress’s concept of extortion was the same with respect to both statutes. The congressional discussions make clear that Congress meant to adopt the traditional concept of extortion, which includes an element of wrongfulness. And since, like threats of economic harm, not every threat to make a disclosure that would harm another person’s reputation is wrongful, we adopt an interpretation of § 875(d) similar to Clemente’s interpretation of the Hobbs Act. We conclude that not all threats to reputation are within the scope of § 875(d), that the objective of the party employing fear of economic loss or damage to reputation will have a bearing on the lawfulness of its use, and that it is material whether the defendant had a claim of right to the money demanded.

We do, however, view as inherently wrongful the type of threat to reputation that has no nexus to a claim of right. There are significant differences between, on the one hand, threatened disclosures of such matters as consumer complaints and nonpayment of dues, as to which the threatener has a plausible claim of right, and, on the other hand, threatened disclosures of such matters as sexual indiscretions that have no nexus with any plausible claim of right. In the former category of threats, the disclosures themselves—not only the threats—have the potential for causing payment of the money demanded; in the latter category, it is only the threat that has that potential, and actual disclosure would frustrate the prospect of pay*71ment. Thus, if the club posts a list of members with unpaid dues and its list is accurate, the dues generally will be paid; if the consumer lodges her complaint and is right, she is likely to receive her refund; and both matters are thereby concluded. In contrast, if a threatener having no claim of right discloses the victim’s secret, regardless of whether her information is correct she normally gets nothing from the target of her threats. And if the victim makes the demanded payment, thereby avoiding disclosure, there is nothing to prevent the threatener from repeatedly demanding money even after prior demands have been fully met.

Where there is no plausible claim of right and the only leverage to force the payment of money resides in the threat, where actual disclosure would be counterproductive, and where compliance with the threatener’s demands provides no assurance against additional demands based on renewed threats of disclosure, we regard a threat to reputation as inherently wrongful. We conclude that where a threat of harm to a person’s reputation seeks money or property to which the threatener does not have, and cannot reasonably believe she has, a claim of right, or where the threat has no nexus to a plausible claim of right, the threat is inherently wrongful and its transmission in interstate commerce is prohibited by § 875(d).

Within this framework, we conclude that the district court’s instruction to the jury on the meaning of “extort” as that term is used in § 875(d) was erroneous. The court instructed simply that “to extort means to obtain money or a thing of value from another by use of threats to reputation.” The court gave no other explanation of the term “extort” and did not limit the scope of that term to the obtaining of property to which the defendant had no actual, or reasonable belief of, entitlement. Rather, the court added that “it makes no difference whether the defendant was actually owed any money by” the victim of the threats. While it would have been correct to instruct that it makes no difference whether the defendant was actually owed money by the threat victim if the threat has no nexus to the defendant’s claim, the instruction as given lacked this essential component. Issues of whether a defendant has a plausible claim of right and whether there is a nexus between the threat and the defendant’s claim are questions of fact for the factfinder, and we conclude that the jury was not properly instructed as to the elements of a § 875(d) offense.

The evidence at trial was plainly sufficient to support verdicts of guilty had the jury been properly instructed. Even if Jackson were Cosby’s child, a rational jury could find that her demand, given her age (22) and the amount ($40 million), did not reflect a plausible claim for support. The evidence supported an inference that Jackson had no right to demand money from Cosby pursuant to a contract or promise and no right to insist that she be included in his will. The jury thus could have found that her threat to disclose was the only leverage she had to extract money from him; that if she sold her story to The Globe, she would lose that leverage; and that if Cosby had capitulated and paid her in order to prevent disclosure, there was no logical guarantee that there would not be a similar threat and demand in the future. Thus, had the jury been instructed that the “with intent to extort” element meant that defendants could be found guilty of violating § 875(d) only if Jackson’s threat to disclose was issued in connection with a claim for money to which she was not entitled or which had no nexus to a plausible claim of right, the jury could permissibly have returned verdicts of guilty on that count.

We conclude, however, that the court’s failure to inform the jury of the proper scope of the intent-to-extort element of § 875(d) erroneously allowed the jury to find defendants guilty of violating that section on the premise that any and every threat to reputation in order to obtain *72money is inherently wrongful. Accordingly, Jackson and Medina are entitled to a new trial on the § 875(d) count.

B. The Conspiracy and Travel Act Counts

We conclude that defendants’ convictions of conspiracy and Travel Act violations must also be set aside. In its instructions on the conspiracy count, the district court made clear that a defendant could not be found guilty on that count unless he or she was aware of the unlawful nature of the agreement. Thus, it informed the jury, inter alia, that in order to convict a given defendant on that count, it must find that that defendant entered into the alleged conspiracy with criminal intent, i.e., with “aware[ness] of the generally unlawful nature of his or her acts” (Tr. 1769), i.e., that the defendants acted “with an understanding of the unlawful character of the conspiracy, intentionally engaged, advised, or assisted in it for the purpose of furthering one or both of its unlawful objects” (Tr. 1771). However, in elaborating on the allegedly unlawful acts and objects of the conspiracy, the court stated:

The indictment charges two distinct unlawful objects or goals. Thé first charges that it was an object of the conspiracy that the defendants, with the intent to extort money and things of value from Bill Cosby, would and did transmit in interstate commerce communications containing threats to injure the reputation of Bill Cosby, in violation of Section 875(d) and, as I have told you, in addition the indictment alleges a second object of this conspiracy, to violate Section 1952(a)(3) of Title 18 of the United States Code, which makes it unlawful to cross state lines or use interstate facilities to facilitate extortion.

... [I]t is not necessary for the government to prove the success of the conspiracy. It is also not necessary for you to find that the conspiracy embodied both of these unlawful objectives. It is sufficient if you find beyond a reasonable doubt the conspirators agreed, implicitly or impliedly [sic ], on either of these two objectives. When a conspiracy has more than one objective, the government need prove only that the defendant you are considering agreed to accomplish at least one of the criminal objectives.

(Tr. 1767-68.) Thus, the instruction on conspiracy incorporated the error in the court’s instruction on § 875(d), thereby erroneously allowing the jury to find defendants guilty of a conspiracy to engage in conduct that, under the court’s definition, could have been lawful. Defendants are entitled to a new trial on the conspiracy count with the jury properly instructed as to the nature of the conduct prohibited by § 875(d).

The court’s instructions on the Travel Act count likewise incorporated the erroneous instruction on the § 875(d) count. As to the objectives of the interstate travel, the court stated as follows:

The indictment alleges that the defendant traveled or caused someone else to travel interstate and used or caused someone else to use interstate facilities to facilitate two forms of unlawful activity, extortion in violation of 875(d), and extortion in violation of Section 155 of the New York Penal Law. The government must prove to you beyond a reasonable doubt that the activities the defendant intended to facilitate were in fact unlawful under either federal law or New York State law.

It is sufficient if you find beyond a reasonable doubt that the conduct was unlawful under either of these statutes. Of course, to conclude that the government has met its burden of proof in this case, you must unanimously agree on whichever statute you may find that the conduct violated.

I have already instructed you on elements of extortion under the federal law under 875(d) in connection with my *73charge to you on Count 2. Those instructions apply here as well.

(Tr. 1785-86.) Accordingly, defendants are entitled to a new trial on the Travel Act count as well.

C. Other Contentions

Medina and Sabas advance additional contentions that we discuss briefly in light of our order for a remand.

1. Admission of the Medinar-Thomp-son Conversation Excerpt

Medina contends that the district court erred in refusing to allow him to introduce parts of the tape of his January 16, 1997 conversation with Thompson. The conversation was roughly 42 minutes long; the government offered in evidence only a 90-second portion of the tape near the beginning of the conversation, in which Thompson warned that the scheme in which Jackson was engaged constituted the federal crime of extortion. The excerpt was admitted as evidence of Medina’s awareness of the unlawfulness of the extortion scheme. The court denied Medina’s request that the remainder of the tape be admitted pursuant to the “rule of completeness.” We see no error in that denial.

Rule 106 of the Federal Rules of Evidence provides that

[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it.

Fed.R.Evid. 106. Under this principle, an “omitted portion of a statement must be placed in evidence if necessary to explain the admitted portion, to place the admitted portion in context, to avoid misleading the jury, or to ensure fair and impartial understanding of the admitted portion.” United States v. Castro, 813 F.2d 571, 575-76 (2d Cir.), cert. denied, 484 U.S. 844, 108 S.Ct. 137, 98 L.Ed.2d 94 (1987); see, e.g., Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172-73, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988); Phoenix Associates III v. Stone, 60 F.3d 95, 102 (2d Cir.1995). The completeness doctrine does not, however, require the admission of portions of a statement that are neither explanatory of nor relevant to the admitted passages. See United States v. Marin, 669 F.2d 73, 84 (2d Cir.1982). The trial court’s application of the rule of completeness is reviewed only for abuse of discretion. See, e.g., United States v. Castro, 813 F.2d at 576.

Medina argues that a jury hearing the tone and substance of Thompson’s statements in later portions of the conversation would perceive Thompson to be exaggerating, overly emotional, or “out of control,” and would conclude that Medina had reason to discount her warning that Jackson’s conduct was unlawful. The trial court, after listening to the tape, saw little probative value in the parts of the tape proffered by Medina, noting, inter alia, that the substance of Thompson’s remarks in the remainder of the conversation was neither incredible nor bizarre, and that Thompson’s “tone was pretty calm and reasoned.” (Tr. 1342-43.) The court also noted that the portions of the tape proffered by Medina consisted largely of Medina’s own self-serving statements, which, as offered by him, are inadmissible hearsay. We see no abuse of discretion in the exclusion of the tape.

2. Sabas’s Sufficiency Challenges

Focusing principally on the conspiracy count, Sabas contends that he is entitled to reversal on the ground that the evidence was insufficient to support his conviction. If this contention had merit, Sabas would be entitled to dismissal of the conspiracy count, rather than being retried on that count. See, e.g., Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). We conclude that his contention is without merit.

*74In challenging the sufficiency of the evidence to support his conviction, a defendant bears a heavy burden, for the reviewing court must view the evidence in the light most favorable to the government, drawing all inferences in the government’s favor and deferring to the jury’s assessments of the witnesses’ credibility. See, e.g., United States v. Allah, 130 F.3d 33, 45 (2d Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 2347, 141 L.Ed.2d 718 (1998); United States v. Giraldo, 80 F.3d 667, 673 (2d Cir.), cert. denied, 519 U.S. 847, 117 S.Ct. 135, 136 L.Ed.2d 83 (1996). We must affirm the conviction so long as any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. See, e.g., Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994).

In order to prove a conspiracy, the government must present evidence from which it can reasonably be inferred that the person charged with conspiracy knew of the existence of the scheme and knowingly joined and participated in it. See, e.g., United States v. Giraldo, 80 F.3d at 673; United States v. Sanchez Solis, 882 F.2d 693, 696 (2d Cir.1989). Mere presence at the scene or association with conspirators does not constitute participation in the conspiracy, even if the defendant has knowledge of the conspiracy. See, e.g., United States v. Jones, 30 F.3d 276, 282 (2d Cir.), cert. denied, 513 U.S. 1028, 115 S.Ct. 602, 130 L.Ed.2d 513 (1994); United States v. Scarpa, 913 F.2d 993, 1005 (2d Cir.1990); United States v. Torres, 901 F.2d 205, 220 (2d Cir.), cert. denied, 498 U.S. 906, 111 S.Ct. 273, 112 L.Ed.2d 229 (1990). However, “[o]nce a conspiracy is shown to exist, the evidence sufficient to link another defendant to it need not be overwhelming.” United States v. Amato, 15 F.3d at 235 (internal quotation marks omitted); see, e.g., United States v. Rivera, 971 F.2d 876, 891 (2d Cir.1992); United States v. Scarpa, 913 F.2d at 1005. The elements of conspiracy, like the elements of substantive offenses, may be established through circumstantial evidence. See, e.g., United States v. Amato, 15 F.3d at 235; United States v. Rivera, 971 F.2d at 890.

The evidence in the present case was sufficient under these standards. First, there was ample evidence that Sabas was present for many of the key conspiratorial conversations, which could have left no doubt in his mind as to the nature of the discussions. For example, Macaraeg 'testified that Sabas was present at the discussions during the week of January 6, in which Jackson and Medina discussed ways to threaten Cosby’s reputation and pressure sponsors in order to force Cosby to give Jackson money; Sabas was present when Medina and Jackson were formulating a draft press release designed to increase that pressure; Sabas was present when Medina announced that Cosby would “have to pay a lot of money” if he did not want Jackson’s story to come out; and Sabas was present on January 16 when Jackson spoke with Schmitt by telephone and stated that she would sell her story to a tabloid unless she received $40 million.

Second, there was evidence that Sabas acted to further the objectives of the conspiracy. After the January 17 negotiations between Jackson and Schmitt culminated in an agreed figure of $24 million, which Jackson and Medina were to collect in New York, Sabas drove Jackson and Medina to the airport. At Medina’s instruction, Sabas provided Williams with a place to stay that night. In addition, Sa-bas allowed the use of his credit card for the purchase of return tickets for Jackson and Medina.

Finally, while Jackson and Medina were in New York, Sabas had possession of several documents and tapes that were integral to the scheme, including the source agreement with The Globe, the letters faxed to Lund and Schmitt in which Jackson threatened to take her story to the media, and a tape of the conversation in which Jackson demanded $40 million. Sabas concealed some of these materials in *75his parents’ house rather than his own. When asked for these items by FBI agents after Jackson and Medina were arrested, he sought to conceal them. He first responded that they were at the house of a Mend, whom he refused to identify; he told the agents he would lead them to the Mend’s house, but he then engaged in evasive driving, and the agents lost track of him. The agents were unable to find Sabas at his home again for two days. When they did find him and served him with a subpoena, he gave them only some of the materials they requested, stating that he was giving them everything. It was only after a third visit by the agents, along with a threatened charge of obstruction of justice, that Sabas took the agents to his parents’ home and produced all of the remaining evidence.

In sum, the evidence as to Sabas’s awareness and involvement was sufficient to permit a rational juror to find beyond a reasonable doubt that Sabas knew of the conspiracy, intended to join it, and did participate in it.

To the extent that Sabas also contends that the evidence was insufficient to support his conviction of interstate travel to promote extortion, that contention too lacks merit. The evidence that Sabas, with knowledge of the scheme, drove Jackson and Medina to the airport for their trip from California to New York and provided them with tickets for their intended return, was ample to permit his conviction of a Travel Act violation on an aiding and abetting theory. See, e.g., United States v. Gordon, 987 F.2d 902, 907 (2d Cir.1993) (“[a] defendant may be found guilty of a substantive crime on an aiding and abetting theory if he joined the criminal venture, shared in it, and contributed to its success”).

3. Severance

Sabas also contends that he should have been tried separately from Jackson and Medina because the evidence was so much stronger against them than against him and because his defense was “diametrically opposite from [theirs].” (Sabas brief on appeal at 9). We conclude that his motions for severance were properly denied.

In the federal system, multiple defendants may be charged in the same indictment “if they are alleged to have participated in the same act or transaction or in the same series of acts or transactions,” Fed.R.Crim.P. 8(b), and there is a clear preference that defendants who are indicted together be tried jointly, see, e.g., Zafiro v. United States, 506 U.S. 534, 537, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993); United States v. Miller, 116 F.3d 641, 679 (2d Cir.1997), cert. denied, - U.S. -, 118 S.Ct. 2063, 141 L.Ed.2d 140 (1998). If defendants have been properly joined under Rule 8(b), a severance motion should be granted “only if there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.” Zafiro v. United States, 506 U.S. at 539, 113 S.Ct. 933; see, e.g., United States v. Aulicino, 44 F.3d 1102, 1116 (2d Cir.1995).

The denial of a motion for severance will not be overturned absent an abuse of discretion of the district court, see, e.g., United States v. Rosa, 11 F.3d 315, 341 (2d Cir.1993), cert. denied, 511 U.S. 1042, 114 S.Ct. 1565, 128 L.Ed.2d 211 (1994); United States v. Benitez, 920 F.2d 1080, 1085 (2d Cir.1990), resulting in prejudice so severe that the defendant’s conviction constituted “a miscarriage of justice,” United States v. Aulicino, 44 F.3d at 1117; United States v. Rosa, 11 F.3d at 341. A jury’s acquittal of a defendant on one or more counts is persuasive evidence that joinder did not result in prejudice. See, e.g., United States v. Aulicino, 44 F.3d at 1117.

We see no abuse of discretion or unfair prejudice in requiring that Sabas, Jackson, and Medina be tried together. First, we see no inconsistency in the defendants’ *76respective defenses. Sabas’s defense was that he lacked knowledge of any conspiracy; the defense of Jackson and Medina was that they lacked the necessary criminal intent because they believed they had certain legal rights to money from Cosby. The two stances are not necessarily inconsistent. Second, since Sabas is charged with participating in a conspiracy with Jackson and Medina, nearly all of the evidence admitted at a trial of Jackson and Medina would also be admissible in a separate trial of Sabas. Third, as discussed above, there is ample evidence to support Sabas’s convictions of conspiracy to commit extortion and of aiding and abetting violation of the Travel Act. Finally, we have little doubt that a jury is capable of discerningly assessing the weight of the evidence in order' to differentiate among these three defendants. The original jury did precisely that, finding Jackson and Medina guilty on the § 875(d) count while acquitting Sabas on that count.

Accordingly, on remand, all three defendants may be retried together.

CONCLUSION

For the foregoing reasons, we vacate the convictions and remand for a new trial.