Appeal from the Circuit Court of Lake County. No. 11-CF-1925. Honorable Daniel B. Shanes, Judge, Presiding.
JUSTICE SPENCE delivered the judgment of the court, with opinion. Justices Zenoff and Jorgensen concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant, Miguel A. Carbajal, was found guilty of burglary (720 ILCS 5/19-1 (West 2010)). The trial court sentenced defendant to 24 months' probation and ordered him to pay restitution. In this direct appeal, defendant argues that the State's improper remarks during closing argument amounted to plain error under Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967). We agree and therefore reverse and remand.
[¶2] I. BACKGROUND
[¶3] On July 13, 2011, defendant and codefendant LaDerrion Preacely were charged by indictment with burglary. The single count alleged that on June 15, 2011, the two entered, without authority, Webster Middle School (the school) with the intent to commit a theft.
[¶4] Defendant's individual trial commenced on August 25, 2011. During the State's opening argument, the prosecutor argued that defendant, his friend Preacely, and a third, undisclosed individual formulated a plan to enter the school at night to perform a theft. After Preacely shattered a window to the school, the three entered the building to find money to buy late-night snacks. Unable to find any money, they decided to leave but encountered the police.
[¶5] Defense counsel challenged the State's theory by arguing that defendant was innocent of burglary. According to defense counsel, defendant made a " dumb decision" by entering a school " when he wasn't supposed to." While they were in the school, Preacely told defendant that he wanted to look for money so he could buy snacks at a gas station. However, defendant did not take anything or intend to take anything.
[¶6] Officer Thomas Donnan testified first on behalf of the State. On June 15, around 10 p.m., Officer Donnan was dispatched to the school after the alarm was activated. Shortly afterward, Officers Paulsen and Shepherd also arrived and notified Officer Donnan that there was a broken window on one side of the school. Officer Donnan then stood near the main entrance of the school and saw two individuals running inside. One of the individuals, later identified as Preacely, exited the building, and Officer Donnan took him into custody. No money was found on Preacely. The other individual, later identified as defendant, did not exit the school but stopped and ran in another direction. With the assistance of a canine unit, defendant was found inside the school a while later.
[¶7] Sergeant Scott Thomas testified that he interviewed Preacely, who said he was with two other individuals during the incident. Sergeant Thomas searched the school from top to bottom, which took about 90 minutes. The last room to be checked was the boiler room, where defendant was found lying on some pipes in the ceiling. Defendant was told to come down, and he did. Defendant was taken into custody, where he spent the night.
[¶8] Detective Michael Taylor testified that he interviewed defendant the next day, on June 16. Defendant admitted that he went inside the school with his friend Preacely, who had kicked in the window. He also admitted that he was found hiding in the boiler room. Initially, defendant said that he entered the school to play basketball. Defendant's story subsequently changed, and he said that Preacely had the " munchies" and was looking for change in different rooms to buy a snack. Defendant also said that a third individual was with them, but he did not know his name. The third person was a friend of Preacely's.
[¶9] Defendant gave a written statement to Detective Taylor. The written statement, which was read to the jury, stated as follows:
" We were coming from my house on the way to [Preacely's] house when we seen [ sic ] [the school] and decided to go in. He kicked the window and we went inside. He was talking about him being hungry and maybe find a dollar or maybe some change so we can go to the store and buy snacks. We couldn't find any change so we decided to leave. I was suggesting going to the gym, maybe play some ball or some stupid stuff, but that was dumb so we just left. As we were leaving, we seen [sic] police lights and got scared so we decided to run. I separated from [Preacely] and went downstairs to the boiler room and decided to sit in there."
[¶10] James Gahagan, a school employee, testified that the incident occurred during summer break when only certain individuals with keys were allowed to enter the school. A brick or some type of stone was used to break the window.
[¶11] The State rested, and defendant moved for a directed verdict on the basis that the State had not shown that defendant entered the school with the intent to commit a theft. The trial court denied defendant's motion.
[¶12] Defendant testified on his own behalf as follows. He was 19 years old and lived at home with his parents and siblings. On June 15, he and Preacely decided to leave his house and walk to Preacely's house. On the way, a friend of Preacely's, whom defendant had never met, joined them. Preacely lived a couple of blocks from the school. As they walked through the school parking lot, Preacely kicked in one of the school's windows. Prior to that, the three had not discussed anything about breaking a window.
[¶13] Preacely went inside the school through the broken window, and defendant " stood around for a few seconds," not knowing whether to follow Preacely or " just run and leave." Defendant decided to follow Preacely. Once inside the school, Preacely said he was hungry and wanted to look for some loose change. This idea did not come up until they were in the school. Preacely opened the door to the school hallway and tried to open some classroom doors, but they were locked. Defendant suggested checking out the gym and playing " some basketball or something." After that, defendant said " maybe [they] should just get out" of there. Defendant talked about the gym to divert Preacely and " get his attention off of what he was trying to do." Immediately after that, they decided to leave.
[¶14] As they were leaving, the police arrived, shining their flashlights. The police apprehended Preacely, who had exited the school, and defendant got scared. Instead of exiting the school, defendant ran and hid in the boiler room. Later, he was taken into custody and placed in a holding cell. The next morning, a detective questioned defendant, and defendant gave him a written statement.
[¶15] Defendant was questioned about his written statement. Though he wrote that they " decided" to go in the school, there was no discussion before entering the school; Preacely was the one who first decided to go in. In his statement, defendant wrote they could not find change, so they decided to leave. However, defendant did not look for any change, did not touch anything, did not move anything, and did not take anything.
[¶16] Defendant denied planning to take anything before entering the school. In addition, before entering the school, he did not know that Preacely was going to look for change. Once inside the school, he did not look for anything or help Preacely find anything.
[¶17] On cross-examination, defendant was questioned further about his written statement. Defendant admitted that he wrote in his statement that " we" could go to the store and buy snacks. He used the word " we" because he would have accompanied Preacely to the store even though he would not have purchased any snacks. Although defendant wrote that " we" could not find any change, he denied looking for change in the school. According to defendant, Preacely's other friend was not looking for change either. Defendant wrote in his statement that playing basketball was " stupid" because they were not supposed to be in the school in the first place. Defendant told the detective that he went ...