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06/10/87 the People of the State of v. Mark A. Steele

June 10, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MARK A. STEELE, DEFENDANT-APPELLANT

DEFENDANT, MARK STEELE, APPEALS HIS CONVICTION OF RETAIL THEFT. (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 16A-3.) HE CLAIMS HE WAS NOT PROVED GUILTY BEYOND A REASONABLE DOUBT BECAUSE HE VOLUNTARILY ABANDONED THE CRIMINAL ENTERPRISE.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

509 N.E.2d 719, 156 Ill. App. 3d 508, 109 Ill. Dec. 58 1987.IL.794

Appeal from the Circuit Court of Kane County; the Hon. Joseph M. McCarthy, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. WOODWARD and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Judith Wetterman was working as a security guard at the Zayre Department Store in Elgin on January 5, 1986. She observed two black men in the brand-name electronics area. She subsequently identified one of these men as defendant. She observed defendant detach a videocassette recorder from a display and place it in a cart. Defendant's companion returned from the record department with an album which was also placed in the cart. A package of cardboard filing boxes was also added. Wetterman "backed off" somewhat as defendant and his companion continued to push the cart around the store. Defendant eventually pushed the cart to the "front rail" area of the store, near the entrance. The two men then went to a register and made a small purchase. Defendant's companion walked outside, while defendant walked over to the cart and began pushing it forward. He pushed it through the first of two sets of double doors, leaving it in the vestibule between the two. Defendant then left the store, and he and his companion began walking across the parking lot.

Wetterman obtained the assistance of several store employees and called to defendant to stop. Defendant refused to return to the store with Wetterman and discuss the incident. The Kane County State's Attorney filed an information charging defendant with retail theft, and the matter proceeded to a bench trial on May 13, 1986.

Michael Jones testified for defendant. He stated he was with defendant on the day in question. Both Jones and defendant testified that they were in the store for only a few minutes. Each made a small purchase and left the store. They did not push a cart around the store, except to move a cart which was blocking the door. They did not enter the area of the store where VCR's are displayed.

During closing arguments, defense counsel argued that where defendant did not conceal the merchandise and the items never left the store, the offense of retail theft was not complete; only an attempted theft occurred. The court queried, "When is the offense of retail theft completed?" Since the matter was to be continued anyway, the court permitted the parties to research the question further. At the continued hearing, neither party was able to produce any cases similar to the present one. The court found the defendant guilty of retail theft. At a subsequent hearing, the court sentenced defendant to 30 months' probation, including 180 days in the county jail.

On appeal, defendant argues that he abandoned his intention to steal the merchandise before completing the offense and that this constitutes a valid defense. Defendant concedes that Illinois has not previously provided for an abandonment defense where a defendant has been charged with attempt (People v. Davis (1979), 70 Ill. App. 3d 454, 456, 388 N.E.2d 887), but urges us to follow the lead of a number of jurisdictions which have done so, either by statute or court decision (see State v. Cox (Minn. 1979), 278 N.W.2d 62, 66-67 (defense established by statute); People v. Johnson (1978), 41 Colo. App. 220, 222, 585 P.2d 306, 308 (statute); Barnes v. State (1978), 269 Ind. 76, 81-82, 378 N.E.2d 839, 843; see also W. LaFave & A. Scott, Criminal Law sec. 60, at 450 (1972)).

As defendant recognizes, the general rule is that abandonment of the criminal purpose is not a defense to the charge of attempt. (Annot., 76 A.L.R.3d 842, 860 (1977).) Defendant, however, cites People v. Brown (1980), 90 Ill. App. 3d 742, 414 N.E.2d 475, in which the Appellate Court for the Third District was tempted to permit such a defense. The court stated, however, that such an action was properly left to the legislature. (90 Ill. App. 3d 742, 749, 414 N.E.2d 475.) In more than six years since Brown was decided, the legislature has not seen fit to follow the court's suggestion and provide an abandonment defense. The year after Brown, our supreme court reaffirmed the unavailability of the defense to a charge of attempted murder. People v. Myers (1981), 85 Ill. 2d 281, 290, 426 N.E.2d 535; see also People v. Hiller (1955), 7 Ill. 2d 465, 470, 131 N.E.2d 25.

We have no authority to override the judgment of the legislature and the supreme court and provide for the defense of which defendant seeks to avail himself. As the Indiana Supreme Court stated, "in order for a defendant to validly assert the defense of abandonment it must be shown that his renunciation of the criminal plan occurred both voluntarily and prior to the time when the crime was completed." (Barnes v. State (1978), 269 Ind. 76, 82, 378 N.E.2d 839, 843.) Once a crime has been completed, a defendant cannot attempt to undo what he has just done and escape punishment. For example, in the case of theft, subsequent payment is at best a factor in mitigation of sentence. (See Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-3.1(6).) Defendant, of course, was convicted of the completed offense. He appears to argue that pushing the cart into the vestibule did not complete the offense and that taking the cart through the final set of double doors was the final act needed to complete the crime. Thus, the issue would be the same one posited by the trial court: "When is the offense of retail theft completed?" After carefully examining the statute defining the offense, we agree with the trial court that defendant completed the offense of retail theft.

The Criminal Code of 1961 defines the offense of retail ...


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