Appeal from the Circuit Court of Cook County. Honorable Rodolfo Garcia, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Hoffman
The defendant, Andrew Taylor, was charged with aggravated battery of a merchant, retail theft of merchandise valued at less than $150, and retail theft of merchandise valued in excess of $150. Following a bench trial, the defendant was convicted of aggravated battery of a merchant and retail theft of merchandise valued at less than $150, and was sentenced to concurrent prison terms of five years for aggravated battery and three years for retail theft. On appeal, the defendant contends that: (1) section 16A-4 of the retail theft statute (720 ILCS 5/16A-4 (West 2000)) is unconstitutional because it contains a mandatory presumption that relieves the State of its burden to prove the element of intent beyond a reasonable doubt; (2) the State failed to prove him guilty of aggravated battery beyond a reasonable doubt; and (3) he received ineffective assistance of counsel. For the reasons which follow, we affirm.
The evidence at trial showed that on November 1, 2001, Justin Ermlich and Oscar Galarza, two security personnel employed by the Filene's Basement store, and Derrick Moore, a sales associate, were working at the store. Ermlich testified that, at approximately 6:25 p.m., he and Galarza were monitoring the surveillance cameras in the security office when they observed an individual whom they had seen in the store on three prior occasions that day. Ermlich stated that he and Galarza followed the individual on the security camera as he approached the defendant. According to Ermlich, the two men engaged in a brief conversation, and then the defendant handed the individual a shopping bag from Filene's Basement. The individual held the bag open while the defendant removed six sweaters from a clothing rack, rolled them up, and placed them inside the bag. The individual returned the bag to the defendant and then exited the store. Ermlich stated that, as the defendant began walking away, he left the security office and followed the defendant toward the escalator leading to the store's exit. Ermlich also remained in radio contact with Galarza, who continued to monitor the security camera during this time. According to Ermlich, the defendant ascended the escalator, without stopping at any point, and exited the store without paying for the items in the bag.
Ermlich testified that he stopped the defendant at the escalator landing and identified himself as a security officer working for Filene's Basement. Ermlich recovered the bag from the defendant and requested that the defendant accompany him back inside the store, but the defendant refused. Ermlich stated that Galarza arrived at the scene shortly thereafter and ran in pursuit of the other individual who was with the defendant. According to Ermlich, the defendant then attempted to run down the escalator, but Ermlich, assisted by Moore, subsequently apprehended him. Ermlich testified that, as he reached for his handcuffs, the defendant appeared to be reaching for something behind his back. Ermlich grabbed the defendant's arm, and the defendant attempted to run away. Ermlich stated that he again grabbed the defendant, who then turned around and sprayed Ermlich's face with pepper spray. Ermlich hit the defendant, and then he and Moore held him down while Galarza returned to the scene and placed the defendant in handcuffs. Moore also testified at trial and essentially corroborated Ermlich's testimony.
Galarza testified that, after watching the incident on the security camera, he recovered the bag from Ermlich and then left to pursue the defendant's accomplice. When he returned to the store, he assisted Ermlich and Moore and handcuffed the defendant. Thereafter, Galarza took the bag recovered from the defendant to the security office and examined the merchandise contained inside, which he found still had the price tags from the store on them.
The State introduced into evidence, inter alia, the surveillance video which depicted the incident from the time the individual approached the defendant in the store until the time the defendant ascended the escalator. After the State rested, defense counsel made a motion for a directed finding on all three counts. The court found that the State failed to prove the value of the merchandise, and, therefore, granted the motion as to the charge of retail theft of merchandise valued in excess of $150. The trial court denied the motion as to the remaining two counts. Defense counsel then rested without calling any witnesses.
The trial court found the defendant guilty of aggravated battery of a merchant and retail theft of merchandise valued at less than $150. The defendant was subsequently sentenced to concurrent prison terms of five years for aggravated battery and three years for retail theft. He now appeals.
The defendant first contends that section 16A-4 of the retail theft statute (720 ILCS 5/16A-4 (West 2000)) is unconstitutional and violates the due process clause of the fourteenth amendment to the United States Constitution (U.S. Const., amend. XIV) because it contains a mandatory presumption that relieves the State of its burden to prove the element of intent beyond a reasonable doubt. Although the defendant failed to raise this issue at trial or in his post-trial motion, we will address the merits of his argument, as a challenge to the constitutionality of a statute may be raised at any time. People v. Wagener, 196 Ill. 2d 269, 279, 752 N.E.2d 430 (2001).
Statutes carry a strong presumption of constitutionality and the challenging party has the burden of rebutting that presumption. People v. Maness, 191 Ill. 2d 478, 483, 732 N.E.2d 545 (2000). This court has a duty to interpret a statute in a manner that upholds its validity if it can reasonably be done. See People v. Fisher, 184 Ill. 2d 441, 448, 705 N.E.2d 67 (1998). The constitutionality of a statute is subject to de novo review. People v. Malchow, 193 Ill. 2d 413, 418, 739 N.E.2d 433 (2000).
The due process clause of the fourteenth amendment of the United States Constitution requires the State to prove a criminal defendant guilty of every element of an offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 316, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979). In establishing a defendant's guilt, the State may be entitled to rely upon presumptions and inferences. County Court of Ulster County v. Allen, 442 U.S. 140, 156, 60 L. Ed. 2d 777, 99 S. Ct. 2213 (1979); People v. Hester, 131 Ill. 2d 91, 98, 544 N.E.2d 797 (1989).
Presumptions may be either permissive or mandatory. A permissive presumption allows, but does not require, the fact finder to infer the existence of the ultimate or presumed fact upon proof of the predicate fact. In contrast, a mandatory presumption requires the fact finder to accept the presumption. People v. Pomykala, 203 Ill. 2d 198, 203, 784 N.E.2d 784 (2003). Mandatory presumptions may be further classified as conclusive or rebuttable. Pomykala, 203 Ill. 2d at 203. The United States Supreme Court has held that mandatory conclusive presumptions are unconstitutional because they conflict with the presumption of innocence. Sandstrom v. Montana, 442 U.S. 510, 523, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). The Supreme Court has further held that mandatory rebuttable presumptions that shift the burden of persuasion to the defendant are per se unconstitutional because they relieve the State of its burden of proving every element of the offense beyond a reasonable doubt. Sandstrom, 442 U.S. at 524. Our supreme court has subsequently held that mandatory rebuttable presumptions that shift the burden of production to the defendant are also unconstitutional. People v. Watts, 181 Ill. 2d 133, 147, 692 N.E.2d 315 (1998). Accordingly, as stated recently by our supreme court in People v. Pomykala, 203 Ill. 2d 198, 204, 784 N.E.2d 784 (2003), under Illinois law, all mandatory presumptions are now considered to be per se unconstitutional.
The defendant argues that section 16A-4 of the retail theft statute contains a mandatory presumption which is unconstitutional under our supreme ...