Appeal from the Circuit Court of St. Clair County. No. 10-CF-139 Honorable Milton S. Wharton, Judge, presiding.
The opinion of the court was delivered by: Justice Goldenhersh
Rule 23 order filed September 7, 2012; Motion to publish granted
JUSTICE GOLDENHERSH delivered the judgment of the court, with opinion. Justices Welch and Wexstten concurred in the judgment and opinion.
¶ 1 Defendant, Robert McDaniel, was charged with two counts of burglary (720 ILCS 5/19-1 (West 2010)) and one count of retail theft (over $150) (720 ILCS 5/16A-3 (West 2010) (repealed by Pub. Act 97-597, § 6 (eff. Jan. 1, 2012))). Defense counsel, in opening statement, conceded the theft charge and tried the case to the jury defending against the two counts of burglary. The first count alleged that defendant entered the store with intent to commit a theft; the second burglary count alleged defendant remained within the store with intent to commit a theft. After deliberation, the jury returned a verdict of not guilty on the first charge of burglary, entering the store with intent to commit a theft, and found defendant guilty of the second count, remaining within the store with intent to commit a theft. Defendant appeals only his burglary conviction, not the jury's verdict of guilty of retail theft. For the reasons stated below, we reverse.
¶ 3 Defendant entered a Walmart store in Cahokia and immediately raised the suspicion of Joseph Agles, the store's loss prevention agent. What ignited Agles' suspicion was that defendant entered the store wearing sunglasses, a heavy coat, and a ski cap, according to Agles' testimony. Because his entry to the store was at 8:30 at night and, per Agles' testimony, it was not very cold outside, Agles became suspicious. Agles also testified that shoplifters often wear sunglasses and bulky clothing.
¶ 4 Agles tracked defendant through the store and also initiated the store's video surveillance system to watch him. He saw defendant pick up three fishing reels, remove them from their packages, put the empty packages back on the shelf, and place the three reels inside his coat. Defendant then headed for the store's exit, walking past cash registers without paying for the fishing reels. He was stopped by Agles and another manager, and fishing reels with a total retail value of $181 were recovered from defendant.
¶ 5 The surveillance video of defendant was placed on a DVD and the DVD was shown to the jury. It is uncontested that defendant was in the store about six minutes.
¶ 6 In closing arguments, the State asserted that the jury should find defendant guilty of the count charging "remaining within" on the basis that the intent to commit a theft arose after defendant entered the store and defendant remained in the store in order to commit the offense. The State also argued, as to the unauthorized entry charge, the first burglary charge, that defendant must have had an intent to commit a theft inside the store because he remained for only about six minutes. The State argued that by opening the fishing reel packages and then attempting to exit the store, defendant remained within the building.
¶ 7 After deliberation, the jury acquitted defendant of count I, charging burglary by unlawful entry with the intent to commit a theft, and found defendant guilty of count II, unlawfully remaining within the store with intent to commit a theft.
¶ 8 Defendant timely filed a posttrial motion alleging insufficient proof of burglary and that the State had been allowed to argue and submit to the jury an improper configuration of the "remaining within" charge. After briefing, the circuit court granted defendant's motion to vacate the conviction of burglary. The State filed a motion to reconsider, which was subsequently granted by the circuit court. The burglary conviction was reinstated and defendant was sentenced to two years of TASC probation with drug treatment. Defendant timely appeals.
¶ 9 Defendant did not appeal the theft charge, and the jury acquitted him of the first count of burglary, unlawful entry. This appeal concerns the second burglary ...