Appeal from the Circuit Court of Champaign County; the Hon.
John G. Townsend, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
Did the jury instruction require a mandatory presumption of intent?
We must reverse and remand.
Retail theft. The sufficiency of the evidence is not challenged on appeal and, therefore, we shall recite only the elementary facts.
Eric Meyer, the night manager of Richard's Marketplace Convenience Center, testified that he observed defendant stuff two cartons of cigarettes down his pants, walk past the cash registers and toward the front doors. Meyer confronted defendant, a struggle ensued, and four cartons of cigarettes fell to the floor. Meyer subdued defendant and held him in an office until the police arrived. Defendant introduced no evidence at trial.
The trial court gave the jury People's Instruction No. 10 which stated:
"If any person conceals upon his person or among his belongings unpurchased merchandise displayed for sale or in a retail mercantile establishment and 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 such merchandise with the intention of retaining it without paying the full retail value of such merchandise."
This instruction was patterned after section 16A-4 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, par. 16A-4), which provides:
(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 without paying the full retail value of such merchandise."
The only issue on appeal is whether the trial court erred in giving People's Instruction No. 10. Defendant argues that he was denied due process because the instruction contained a mandatory presumption establishing the element of intent and, therefore, alleviated the State's burden of proving every element of the offense beyond a reasonable doubt.
• 1-3 The due process clause of the fourteenth amendment prohibits the State from using evidentiary presumptions in a jury charge that have the effect of relieving the State of its burden of persuasion beyond a reasonable doubt of every essential element of a crime. (Francis v. Franklin (1985), 471 U.S. ___, 85 L.Ed.2d 344, 105 S.Ct. 1965; Sandstrom v. Montana (1979), 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450.) The initial inquiry in ascertaining the validity of a presumption is to determine whether it constitutes a mandatory or permissive presumption. When the presumption is mandatory that is, when the jury must infer the presumed fact if the State proves the predicate facts the presumed fact must flow beyond a reasonable doubt from the predicate facts. (Sandstrom v. Montana (1979), 442 U.S. 510, 61 L.Ed.2d 39, 99 S.Ct. 2450; People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151.) When the presumption is permissive that is, when the jury is given the option of ignoring or relying on the presumption the due ...