Appeal from Circuit Court of Adams County No. 05CF2 Honorable Scott H. Walden, Judge Presiding.
The opinion of the court was delivered by: Justice Knecht
Following a jury trial, defendant, Antonio D. Pierce, was convicted of theft from the person (720 ILCS 5/16-1 (West 2004)) and sentenced to six years' imprisonment. On appeal from his conviction, defendant argues the court erred by modifying the Illinois pattern jury instruction (IPI) for theft from the person to include theft of property "from the person or presence of another." We affirm.
On September 13, 2004, Robert Gallaher went to the Silver Moon Tavern in Quincy, Illinois. Gallaher sat at the bar and purchased beer from the bartender, Linda Sheehan. To pay Sheehan for his beer, Gallaher placed $50 on the bar directly in front of him. Gallaher testified he had his hand on the money while the money was on the bar. After he paid for his drinks, several twenties were in front of him.
Defendant entered the bar and approached Gallaher. Defendant offered to sell Gallaher cigarettes. Gallaher declined. Gallaher then removed his hand from the money to light a cigarette. A surveillance tape from the bar shows the victim intermittently placing his left hand on his money while holding a cigarette in his right hand. Defendant grabbed the money and ran from the bar. The surveillance tape confirmed the victim's and the bartender's testimony.
At the jury conference, the State offered modified versions of Illinois Pattern Jury Instructions, Criminal, Nos. 13.09 and 13.10 (4th ed. 2000) (hereinafter IPI Criminal 4th). The State's proposed instruction added the phrase "or presence" to the IPI. For example, the modified version of IPI Criminal 4th No. 13.09 read as follows:
"A person commits the offense of theft from the person when he knowingly obtains unauthorized control over the property by taking said property from the person or presence of another and intends to deprive the owner permanently of the use or benefit of the property." (Emphasis added.)
Defendant objected to the proposed modifications. Defendant argued the committee had not added "or presence" to the IPI and no decision from this court supported the modification. The court, citing People v. Jackson, 158 Ill. App. 3d 394, 511 N.E.2d 923 (1987), and People v. Harrell, 342 Ill. App. 3d 904, 795 N.E.2d 1022 (2003), agreed with the State and ordered the modified instructions given.
The jury found defendant guilty of theft from the person. The court sentenced defendant as stated. This appeal followed.
Defendant argues the trial court erred by not using the pattern instructions to describe the theft-from-the-person statute. Defendant contends the trial court's addition of "or presence" was erroneous because it was an inaccurate statement of the law. Defendant contends the language in the theft-from-the-person statute is plain and unambiguous: theft "from the person" simply means theft of property attached to the person. By adding the words "or presence," defendant contends the court improperly expanded the theft-from-the-person offense to include conduct not contemplated by the legislature.
The State argues the instruction was proper because theft from the person is properly interpreted as including theft from the person's presence.
Generally, trial courts must use pattern instructions when "an appropriate IPI instruction exists on a subject upon which the trial court has determined the jury should be instructed." People v. Pollock, 202 Ill. 2d 189, 212, 780 N.E.2d 669, 682 (2002). The instructions "were 'painstakingly drafted with the use of simple, brief[,] and unslanted language so as to clearly and concisely state the law,' and, for that reason, 'the use of additional instructions on a subject already covered by IPI would defeat the goal that all instructions be simple, brief, impartial[,] and ...