In a prosecution for retail theft arising from the discovery of items from eight different stores in the trunk of defendant’s car, defendant’s conviction under sections 16-1(a)(4)(A) and (b)(4) of the Criminal Code was reduced to a conviction under sections 16-1(a)(1)(A) and (b)(4), since the charging instrument had to cite to the joinder statute or allege that defendant’s separate acts of retail theft were in furtherance of a single intention and design in order to charge a crime under subsection (a)(4), but the allegations made did charge a crime under subsection (a)(1).
Appeal from the Circuit Court of Rock Island County, No. 11-CF-72; the Hon. Walter D. Braud, Judge, presiding
Larry R. Wells, of State Appellate Defender’s Office, of Mt. Vernon, for appellant.
Mark Senko, State’s Attorney, of Rock Island (Terry A. Mertel and Gary F. Gnidovec, both of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.
Justice Lytton concurred in the judgment and opinion.
¶ 1 Following a stipulated bench trial, defendant, Dawn R. Walton, was convicted of theft (720 ILCS 5/16-1(a)(4)(A) (West 2010)), charged as a Class 3 felony (720 ILCS 5/16-1(b)(4) (West 2010)). The State relied on evidence recovered from a search of the trunk of defendant's vehicle. Defendant appeals, arguing that the trial court erred when it denied defendant's motion to suppress the evidence recovered from the trunk. Defendant also challenges the sufficiency of the charging instrument, arguing that the theft was improperly charged as a felony. We modify and affirm.
¶ 2 FACTS
¶ 3 On November 5, 2010, Officer Todd Engstrom received a report that a retail theft had occurred at Sears in SouthPark Mall. As Engstrom arrived at the mall, he observed a vehicle leaving the mall parking lot that matched a description given to him of the suspected thieves' vehicle. Engstrom stopped the vehicle, which was occupied by two adult females. The passenger, Teresa Rapp, told Engstrom that she had taken a sweatshirt from Sears but had given it back when confronted by a Sears loss prevention officer. Engstrom, having not yet spoken to the loss prevention officer, instructed the driver of the vehicle, defendant, to drive back to Sears so that Engstrom could further investigate the situation. Defendant drove her vehicle to Sears while Engstrom followed.
¶ 4 At Sears, Engstrom spoke with the loss prevention officer. The officer told Engstrom that earlier that day in Sears he had seen Rapp conceal a hooded sweatshirt in a bag she was carrying, while defendant attempted to act as a shield to block onlookers from witnessing the theft. Rapp and defendant then exited Sears without paying for the sweatshirt. The officer followed them into the parking lot, where he saw Rapp closing the trunk of a vehicle that the women were standing near. The officer confronted the women about the sweatshirt. Rapp reached into a bag in the vehicle's backseat, removed the sweatshirt, and returned it to the officer. The women got in the vehicle and drove away. The officer called police, reported the theft, and gave a description of the vehicle.
¶ 5 After receiving this information from the loss prevention officer, Engstrom arrested Rapp for theft and requested defendant's consent to search the trunk of defendant's vehicle. Defendant responded that she was unsure how to open the trunk. Engstrom informed defendant that if she did not allow him to look in the trunk, she would be arrested for theft, and the vehicle would be impounded. Defendant opened the trunk and allowed Engstrom to search it. Inside, Engstrom found 54 pieces of property from eight different stores in SouthPark Mall, which defendant later admitted were stolen. The total value of the items was approximately $1, 300. Engstrom arrested defendant for theft.
¶ 6 Defendant was charged with one count of felony theft under sections 16-1(a)(4)(A) and (b)(4) of the Criminal Code of 1961, which declare that a person commits theft when she knowingly "[o]btains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him [or her] to believe that the property was stolen and (A) [i]ntends to deprive the owner permanently of the use or benefit of the property." 720 ILCS 5/16-1(a)(4)(A), (b)(4) (West 2010). The information alleged:
"[O]n the 5th day of November in the year of our Lord Two Thousand Ten at and within said County of Rock Island in the State of Illinois aforesaid, in that said defendant committed the offense of THEFT, in that said defendant, knowingly obtained control over certain stolen property of Victoria's Secret, Express, Journeys, Bath and Body Works, Spencers, Maurices, Abercrombie and Fitch and Kid's Gap, being miscellaneous items, having a total value exceeding $300.00 and not exceeding $10, 000.00, under such circumstances as would reasonably induce said defendant to believe the property was stolen and with the intent to deprive permanently of the use and benefit of said property, (MPD# 1014020) in violation of 720 ILCS 5/16-1(a)(4)(A)
CLASS 3 FELONY"
The theft was charged as a Class 3 felony under section 16-1(b)(4), which states that the "theft of property exceeding $500 and not exceeding $10, 000 in value, is a Class 3 felony." 720 ILCS 5/16-1(b)(4) (West 2010).
¶ 7 Defendant filed a motion to suppress, arguing that she was unreasonably seized when Engstrom instructed her to drive back to Sears and that defendant's consent to search was involuntary because defendant was detained when she gave the consent and the consent was improperly induced by threats. As a result of these alleged improprieties, defendant argued, the evidence recovered from the trunk and any statements made by defendant during the unreasonable seizure or after her arrest should be suppressed.
¶ 8 At a hearing on the motion to suppress, defendant and Engstrom testified. The court denied defendant's motion, finding that the search of the vehicle's trunk was supported by probable cause to believe that defendant had committed further thefts beyond the theft at Sears and that evidence of those thefts was inside the trunk.
¶ 9 The cause proceeded to a stipulated bench trial. Defendant stipulated that all evidence admitted at the hearing on the motion to suppress would be admitted at the bench trial. The parties also filed a written ...