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People v. Johnson

Supreme Court of Illinois

August 1, 2019

THE PEOPLE OF THE STATE OF ILLINOIS, Appellant,
v.
DARREN JOHNSON, Appellee.

          THOMAS JUSTICE delivered the judgment of the court, with opinion, Chief Justice Karmeier and Justices Kilbride, Garman, and Burke concurred in the judgment and opinion.

          OPINION

          THOMAS JUSTICE

         ¶ 1 Following a November 2014 jury trial in the Whiteside County circuit court, the defendant, Darren Johnson, was convicted of burglary and sentenced to eight years in prison. The appellate court reversed defendant's conviction on appeal. As a matter of law, it held that the facts did not support the conviction because defendant entered the premises of the store where the alleged crime occurred during business hours and therefore his entry was not "without authority" within the meaning of the burglary statute. We allowed the State's petition for leave to appeal. For the reasons that follow, we reverse the judgment of the appellate court and remand the cause to that court for consideration of the remaining issues that were not reached.

         ¶ 2 BACKGROUND

         ¶ 3 Defendant was charged by information with one count of burglary (720 ILCS 5/19-1(a) (West 2014)) and one count of retail theft (id. § 16-25(a)(1)). The burglary count alleged that on July 22, 2014, defendant, "without authority, knowingly entered a building of Wal-Mart, located at 19011st Avenue, Rock Falls, Whiteside County, Illinois, with the intent to commit therein a theft." The retail theft count alleged that defendant stole from Walmart various items of merchandise with a total value of less than $300.

         ¶ 4 The evidence presented at trial, including eyewitness testimony and video surveillance footage, showed that defendant and an accomplice entered the Walmart's vestibule area, placed two backpacks on top of a coin-exchange machine, and then entered the store. Inside, a customer observed the two men walking around with what looked like clothes in their hands and "veer[ing] off" when approached. Eventually, the two men returned to the vestibule area separately, each retrieving one of the backpacks from the top of the coin-exchange machine. They then met near some vending machines outside the building. The customer, who was by this time in the parking lot, saw defendant keeping a lookout as the other man removed items from his shirt and pants and stuffed them into one of the backpacks.

         ¶ 5 As the customer called the police, defendant and the other man returned to the vestibule, again placed their backpacks on top of the coin-exchange machine, and then reentered the store. Defendant later returned to the vestibule area alone, retrieved one of the backpacks from the coin-exchange machine, and exited the store. By this time, three police officers had arrived. Two of the officers observed defendant exit the store after retrieving the backpack, and they followed him on foot. The third officer pulled his car alongside defendant and got out to talk to him. The officer asked defendant if he had stolen items from Walmart, and defendant admitted that he had. The officers then escorted defendant to the store manager's office, where defendant removed from his backpack or person 14 purchasable items of girl's clothing with a total retail value of $76.91. Defendant stated that he had taken the items to give to his daughter.

         ¶ 6 The trial judge instructed the jury on the elements of burglary and retail theft. Those instructions included an explanation that a person "commits the offense of burglary when he, without authority, knowingly enters a building with the intent to commit therein the offense of theft." The jury was also given Illinois Pattern Jury Instruction, Criminal, No. 14.07A (4th ed. 2000), which states as follows with respect to the limited authority a person has to enter a building:

"The defendant's entry into a building is 'without authority' if, at the time of entry, the defendant has an intent to commit a criminal act within the building regardless of whether the defendant was initially invited in or received consent to enter.
However, the defendant's entry into the building is 'with authority' if the defendant enters without criminal intent and was initially invited in or received consent to enter, regardless of what the defendant does after he enters."

         The instruction is consistent with this court's holding in People v. Weaver, 41 Ill.2d 434 (1968), which set forth the limited authority a person has to enter a business building or other building open to the public. In Weaver, this court held, in the context of a charge brought under the same version of the burglary statute at issue in the present case, that "authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open." Id. at 439. The court further stated that "[a]n entry with intent to commit a theft cannot be said to be within the authority granted patrons." Id.

         ¶ 7 The jury returned verdicts finding defendant guilty of burglary and not guilty of retail theft. At sentencing, it was determined that burglary is generally a Class 2 felony with a sentencing range of 3 to 7 years (720 ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), but defendant was subject to a Class X sentencing range of 6 to 30 years due to his criminal history (730 ILCS 5/5-4.5-95(b) (West 2014); id. § 5-4.5-25(a)). Defendant's lengthy criminal history included three separate convictions for robbery in 1987, burglary in 1992, separate theft and burglary convictions in 1994, resisting a peace officer in 1998, residential burglary in 1999, possession of cannabis in 2006, a conviction in 2007 for altering a lottery ticket for which he was sentenced to five years in prison in Iowa, convictions for assault and resisting a peace officer in 2009, and another resisting a peace officer conviction in 2012. The prosecutor noted that by his calculations defendant had been sentenced to 36 years in prison in all since 1987, yet he was only 44 years old at the time of sentencing in the present case. The prosecutor argued that defendant had never led a law-abiding life and that he continually commits offenses when he is released from the Department of Corrections. The State therefore recommended a 15-year, extended-term sentence. The trial court considered defendant's lengthy criminal history and the conduct involved in the instant offense, including its nonviolent nature, and sentenced defendant to eight years in prison.

         ¶ 8 On appeal, defendant raised four issues. First, he argued that the evidence presented on the "without authority" element of the burglary count was insufficient to convict. Second, he maintained that the evidence was also insufficient to convict with respect to the element of burglary that requires that the defendant intend to commit a theft or a felony upon entry. Third, defendant sought a new trial because the trial judge prohibited jurors from taking notes during trial, contrary to section 115-4(n) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-4(n) (West 2014)). And finally, defendant sought to reduce the amounts assessed against him as part of his sentence from $557 to $490, contending that the trial court failed to grant the mandatory $5 per day credit against three of his assessments.

         ¶ 9 The appellate court reversed defendant's conviction outright based on the first issue noted above and found it unnecessary to reach the remaining issues as a result, although in dicta, it briefly addressed the fourth issue regarding jury note taking. 2018 IL App (3d) 150352, ¶¶ 38-41. With respect to its reversal based on the first issue, the appellate court refused to apply the "limited authority" doctrine of Weaver to the facts of this case because it felt that (1) Weaver was distinguishable on the facts (id. ¶ 23), (2) the passage of the retail theft statute seven years after Weaver evinced a legislative intent to "occup[y] the field of shoplifting crimes" (id. ¶ 31), and (3) this court's decision in People v. Bradford, 2016 IL 118674, ¶¶ 24-25 (holding that there are two kinds of burglary-(a) entering a building without authority and (b) remaining in a building without authority-and Weaver's definition of "without authority" for purposes of burglary by entering did not apply to burglary by remaining), "changes the law and effectively overrules" application of Weaver to the facts of the present case (2018 IL 150352, ¶ 28).

         ¶ 10 As noted above, we granted the State's petition for leave to appeal.

         ¶ 11 ANALYSIS

         ¶ 12 Before this court, the State argues that Weaver cannot be distinguished from the present case and that Bradford clearly did not overrule application of Weaver to cases where the burglary charge is based on an entry into a store with the intent to commit a retail theft inside. Moreover, the State maintains that there is absolutely no basis for the appellate court's conclusion that by passage of the retail theft statute seven years after Weaver, the legislature somehow intended to change the long-standing application of the limited authority doctrine in burglary cases where a defendant entered a store with the intent to shoplift some item of merchandise.

         ¶ 13 Defendant in response argues that he never exceeded the scope of his physical authority to be in the store given that he entered during normal business hours and at all times stayed in areas open to the public. He further contends that the Weaver rule is inconsistent with the retail theft statute and that Bradford should be extended to exonerate him in the present situation. He contends that the State therefore failed to prove the "without authority" element of the burglary statute.

         ¶ 14 The parties agree that the question presented is one of statutory construction, which involves an issue of law that is subject to de novo review by this court. Bradford, 2016 IL 118674, ¶ 15. The primary objective in statutory interpretation is to ascertain and give effect to the legislature's intent, and the best indication of that intent is the statutory language itself, giving it its plain and ordinary meaning. People v. Giraud, 2012 IL 113116, ¶ 6. When the legislature chooses not to amend a statute following judicial construction, it is presumed that the legislature has acquiesced in the court's construction of the statute and the declaration of legislative intent. People v. Espinoza, 2015 IL 118218, ¶ 27.

         ¶ 15 Section 19-1(a) of the Criminal Code of 2012 provides, in part, as follows: "A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft." 720 ILCS 5/19-1(a) (West 2014). As this court explained in Bradford, the burglary statute provides for two possible ways to commit the crime of burglary: (1) by entering without authority and with the intent to commit a felony or theft or (2) by remaining without authority and with the intent to commit a felony or theft. Bradford, 2016 IL 118674, ¶ 13.

         ¶ 16 In the present case, defendant was charged with and convicted of the first type of burglary-burglary by unauthorized entry. For over 100 years, Illinois case law has recognized that entering a retail store with the intent to commit a theft amounts to the crime of burglary. See People v. Kelley, 274 Ill. 556, 558 (1916) (reversing the conviction for burglary only because there was no evidence that the defendant intended to commit the theft at the time he entered the store); see also People v. Brown, 397 Ill. 529, 530 (1947) (defendant's burglary conviction upheld where he entered the building of a gasoline filling station open 24 hours to the public with the intent to steal); see also People v. Moore, 2018 IL App (2d) 160277, ¶¶ 18, 30 (noting that for over a century the rule in Illinois has been that entering a retail store with intent to commit a theft constitutes burglary).

         ¶ 17 In Weaver, 41 Ill.2d at 439, this court definitively interpreted the portion of the current burglary statute criminalizing burglary by entering. Bradford, 2016 IL 118674, ¶ 21. There, the defendant was convicted of burglary after police observed him standing near a vending machine in a laundromat open to the public and found in his possession $50 worth of coins and keys that could open the vending machine. This court rejected the defendant's contention that the evidence was insufficient to establish that he entered the laundromat without authority where it was open to the public at the time in question and he therefore could have entered as a business invitee. Weaver, 41 Ill.2d at 438-39. This court held that the "authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open." Id. at 439. And "[a]n entry with intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat." Id. Although the defendant testified that he had entered the laundromat because his companion wanted to use the telephone, other evidence-including the fact that there was an available telephone outside, that neither defendant nor his companion had laundry, and that they were in possession of keys that opened the laundromat's vending machine-sufficed to establish that the defendant entered the laundromat with the intent to steal and thus entered "without authority." Id.

         ¶ 18 In the case at bar, the appellate court found that the limited authority doctrine set forth in Weaver did not apply because the defendant in Weaver "used burglary tools to access nonpublic areas" and, according to the appellate court, this fact "distinguish[ed]" Weaver from the case before it. 2018 IL App (3d) 150352, ¶ 23. We find that the appellate court's attempt to distinguish Weaver demonstrates a profound misunderstanding of Weaver's holding. Weaver's holding that the evidence supported a burglary conviction did not rest on the defendant's use of keys to access the vending machine but rather on his possession of the keys, which (in addition to other circumstantial evidence) established that he had "entered [the building] with an intent to commit a theft." Weaver, 41 Ill.2d at 439. And that intent, Weaver held, vitiated any authority that he otherwise had to enter the open business, because "authority to enter a business building, or other building open to the public, extends only to those who enter with a purpose consistent with the reason the building is open" and not to those who enter with the intent to commit a theft inside. Id.

         ¶ 19 The same principle applies here. Just as the evidence in Weaver established that the defendant entered the laundromat with the intent to commit a theft, the evidence here-which showed that defendant and an accomplice placed two backpacks on a coin-exchange machine in the Walmart vestibule, entered the store proper, and a short time later returned to retrieve the backpacks in order to stuff merchandise into them-was arguably sufficient to prove that defendant entered the store with the intent to commit a theft.[1] And, if it is in fact the case that defendant had the intent to commit a theft when he entered the Walmart, then, under Weaver, it must necessarily follow that his entry was "without authority" within the meaning of section 19-1(a) of the burglary statute.

         ¶ 20 In the 50-plus years since Weaver was decided, numerous Illinois decisions have applied Weaver's holding to cases of burglary involving the unauthorized entry of a retail establishment. Moore, 2018 IL App (2d) 160277, ¶ 19 (collecting cases); see also People v. Burlington, 2018 IL App (4th) 150642, ¶ 21 (citing People v. Gharrett, 2016 IL App (4th) 140315, ¶ 53, as collecting cases that have applied Weaver's holding). The instant appellate court decision acknowledged this long line of appellate court case law that follows Weaver and holds that one who enters a retail store with the intent to commit a theft enters "without authority." The appellate court concluded, however, that this court's decision in Bradford amounted to a change in the law and "effectively overrules" application of Weaver when the situation involves a person who enters a shop intending to commit retail theft. 2018 IL App (3d) 150352, ¶ 28.

         ¶ 21 We find that the appellate court has misread Bradford. Nothing in Bradford prevents application of Weaver's holding to the type of burglary that involves unauthorized entry, even if that entry is with the intent to commit a retail theft. The question before this court in Bradford was whether the analysis of Weaver should be extended to cover the second type of burglary, burglary by remaining. Bradford did not question Weaver's holding with respect to burglary by unauthorized entry. Instead, it cited it with approval, without the least bit of suggestion that it would not apply to burglary by unauthorized entry based on the intent to commit a retail theft. Bradford, 2016 IL 118674, ¶¶ 21-23.

         ¶ 22 In Bradford, the defendant was charged with and convicted of burglary for remaining in an open retail store without authority and with the intent to commit a theft. The appellate court in that case agreed with the State that Weaver's definition of without authority, for purposes of burglary by entering, extended to burglary by remaining. Id. ¶ 24. Citing Weaver, the appellate court held that" 'just as a defendant's entry is "without authority" if it is accompanied by a contemporaneous intent to steal, so too must a defendant's remaining be "without authority" if it also is accompanied by an intent to steal.'" (Emphases in original.) Id. (quoting People v. Bradford, 2014 IL App (4th) 130288, ¶ 28). The appellate court never identified the precise moment that the defendant began to unlawfully remain in the store. Id. ¶ 9. On appeal to this court, the defendant in Bradford argued that he never exceeded the scope of his authority to be in the store and that burglary by remaining was never intended to apply to such a situation, which amounted to no more than ordinary shoplifting. The State in turn relied upon the holding of the appellate court and argued that the burglary statute could also apply where a defendant entered the store lawfully (as opposed to unlawfully where he had formed the intent to steal upon entry), then subsequently formed the intent to commit a theft, but then remained in the store longer than necessary to steal the items. Id. ¶¶ 20-21.

         ¶ 23 This court in Bradford rejected the State's approach and agreed that the defendant's interpretation was the only reasonable reading of the statute. Id. ¶ 25. This court rejected the State's rendering because it "[was] unworkable, [had] the potential to lead to absurdity, and [was] inconsistent with both the retail theft statute and the historical development of the burglary statute." Id.

         ¶ 24 We find that none of the concerns expressed in Bradford apply to burglary involving an unauthorized entry based on the intent to commit retail theft. First, Bradford concluded it would be "unworkable" to apply the limited authority doctrine in situations in which a defendant enters an open store with no intent to commit a theft (thus entering with authority) but subsequently develops the intent to commit a theft while in the store. Id. ¶¶ 25-26. Bradford explained that, in such cases, "it is not clear what evidence would be sufficient to establish that a defendant 'remain[ed]' within a public place in order to commit a theft" and thereby transform his authorized entry into an unauthorized remaining. Id. ¶ 26. As the court noted, there is simply no way to define "what a defendant must do, or what duration of time he must spend in a place, to remain there without authority." Id.

         ¶ 25 By contrast, the question of whether a person entered a store with intent to commit a theft presents no such difficulties. Unlike the amorphous concept of an "act of remaining" (id. ¶ 9), an entry is a discrete event in time. Assessing a person's intent at the time of entry is a task that is well within a trier of fact's competency, even if intent must often be proven by circumstantial evidence. People v. Richardson, 104 Ill.2d 8, 13 (1984); compare Weaver, 41 Ill.2d at 439 (concluding that circumstantial evidence established that the defendant entered an open business with the intent to commit a theft), People v. Rudd, 2012 IL App (5th) 100528, ¶¶ 14-16 (circumstantial evidence proved that the defendant and another man had a carefully orchestrated plan to commit retail theft from Walmart and were thus properly convicted of burglary by unauthorized entry), and People v. Smith, 264 Ill.App.3d 82, 87-88 (1994) (circumstantial evidence of possession of items used to ...


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