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People v. Killings

OPINION FILED FEBRUARY 25, 1982.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

BETTY ANN KILLINGS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding.

PRESIDING JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 15, 1982.

Following a jury trial on April 29, 1981, in the circuit court of Macon County, defendant, Betty Ann Killings, was convicted of the offense of retail theft. She previously had been convicted of theft so her conviction in this matter constituted a felony. She was sentenced to a 2-year term of imprisonment. Defendant appeals her conviction. We affirm.

Section 16A-3 of the Criminal Code of 1961 defines the offense of retail theft as follows:

"Offense of retail theft. A person commits the offense of retail theft when he or she knowingly:

(a) Takes possession of, carries away, transfers or causes to be carried away or transferred, any merchandise displayed, held, stored or offered for sale in a retail mercantile establishment with the intention of retaining such merchandise or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise without paying the full retail value of such merchandise." Ill. Rev. Stat. 1979, ch. 38, par. 16A-3.

On appeal, defendant claims the trial court erred in giving, over her objection, the following instruction:

"If you find that the defendant concealed upon her person or among her belongings unpurchased merchandise offered for sale in a retail mercantile establishment and removed that merchandise beyond the last known station for receiving payments for that merchandise, you may presume that the defendant possessed or carried away the merchandise with the intention of depriving the merchant permanently of the possession, use, or benefit of the merchandise without paying the full retail value of the merchandise."

We consider defendant's claim in light of the very strong evidence of her guilt. Mathew Doris, a part-time security guard at the Eisner's Food Store where defendant was arrested, testified that on December 19, 1980, he observed defendant remove a bottle of nail polish remover from a shelf in the store and after looking around, place it into a brown paper bag in a shopping cart. He stated she closed the bag up, walked to the end of the aisle, picked up all of the items that were in the bottom of the cart, and concealed them inside the paper bag. Doris further testified that he observed defendant pick up and close the paper bag and attempt to exit the store without going to any of the checkout lanes. Doris stated he stopped defendant when she was standing directly in front of the open exit door of the store.

Defendant testified that she had gone into the store for the purpose of taking some items, but when she arrived at the door to leave the store, she changed her mind because she was pregnant. She stated she was going to leave the bag in a shopping cart and had turned away from the door to do so, when she was stopped.

Defendant maintains that the only possible basis for the disputed instruction was section 16A-4 of the Criminal Code of 1961, which states:

"Presumptions. If any person:

(a) conceals upon his or her person or among his or her belongings, unpurchased merchandise displayed, held, stored or offered for sale in a retail mercantile establishment; and

(b) removes that merchandise beyond the last known station for receiving payments for that merchandise in that retail mercantile establishment such person shall be presumed to have possessed, carried away or transferred such merchandise with the intention of retaining it or with the intention of depriving the merchant permanently of the possession, use or benefit of such merchandise ...


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