People v. Durham

Page 1010

623 N.E.2d 1010

252 Ill.App.3d 88, 191 Ill.Dec. 420

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert L. DURHAM, Defendant-Appellant.

No. 3-92-0386.

Appellate Court of Illinois Third District.

Nov. 19, 1993.

Joseph N. Ehmann, Office of the State Appellate Defender, argued, Ottawa and Gary L. Morris, Peoria, for Robert L. Durham.

John X. Breslin, Deputy Director, Robert M. Hansen, argued, State's Attys. Appellate Prosecutors, Ottawa, and Erik I. Blanc, State's Atty., Pekin, for the People.

Justice LYTTON delivered the opinion of the court:

Defendant Robert Durham was found guilty of burglary and retail theft following a jury trial in the circuit court of Tazewell County and was given an enhanced sentence of 25 years in the penitentiary. On appeal, he asks that both convictions be reversed or, in the alternative, that the cause be remanded for a new trial or a new sentencing hearing. We reverse the burglary conviction, affirm the retail theft conviction, and remand for a resentencing.

On December 12, 1991, at about 1:30 p.m., defendant, who was black, and another black man entered the front door of Witzig's, Inc., a department store in Morton, Illinois. Defendant went to the men's sportswear section where he began to browse through the clothing displayed there while the other man went directly to the men's suit department.

A few minutes later, a customer, Barbara Stinson, parked behind the store, and as she approached the back door, she saw a black man come out the door carrying several men's suits across his arm on hangers with the tags attached. Stinson entered the store, saw a black man looking at clothing, and told a clerk what she had seen in the alley. She was not able to identify defendant as either of the men she had seen in Witzig's.

When the clerk went to the back door to see if someone in the receiving department was moving merchandise, she saw an older model white car with a dark green top stop in the alley for a short time and then drive away. She was not able to describe the driver. By then defendant had moved into the suit department near the back door, but when the clerk came back into the store, defendant began to go toward the front of the store. The clerk told Harold Witzig, one of the store owners, that some suits had been taken.

Harold Witzig saw defendant exit through the front door of the store, look both ways, and then begin to walk south on Main Street. Gene Witzig, president of the store, followed defendant to the corner of Adams and Main where both men stopped, and defendant asked him, "What are you doing?" Gene answered, "I believe we're waiting for the same car." At that, defendant began to run. Gene's nephew Phil Witzig, who had just arrived at the same corner, ran after defendant. During the chase, which covered several blocks, defendant tripped and fell into a shallow creek, but he got up and continued to run into a residential neighborhood. After defendant ran around a house occupied by Marilyn Tiller, Phil caught up with him. Defendant had taken off his belt and was swinging the end with a large buckle at Phil. A short time later the police took defendant into custody.

All of the witnesses who saw defendant in the store and after he left the store testified that he was not carrying anything. However, he was wearing a loose fitting waist-length denim jacket which could have concealed something. Nonetheless, those who followed defendant saw no bulges under his jacket. When arrested, defendant's jacket was wet and muddy, and he had no wallet, no cash, no checks, and no credit cards.

The day after the incident, Marilyn Tiller discovered a man's grey suit in the yard of her house. She described the suit as damp and wrinkled and bearing tags from Witzig's store. The suit was identified as a size 42 regular, athletic cut, with a price of $325. After defendant left the store, Harold Witzig checked the suit rack and saw an empty section which had contained size 42 regular athletic cut suits priced between $275 to $475. He estimated that as many as 12 suits were missing.

Another witness for the State was a garbage collector who saw an old white LTD automobile with a black top at the corner of Main and Jefferson in Morton between 1:30 and 2:00 p.m. He said the car had two black male occupants, one driving and one riding in the back seat.

Defendant was charged by indictment with both burglary and retail theft. After he was found guilty by the jury, the court concluded that defendant's ten previous felony convictions required imposition of a Class X sentence for the burglary conviction and imposed a 25 year prison term.

First we consider whether the evidence was sufficient to convict defendant of burglary and retail theft. When a defendant challenges the sufficiency of the evidence that resulted in his conviction, the reviewing court will uphold the conviction only if, upon viewing the evidence in a light most favorable to the prosecution, the court finds that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 920, 478 N.E.2d 267, 277.

The burglary indictment alleged that defendant "knowingly and without authority, entered a building of Witzig's Inc., with the intent to commit a theft therein * * *." Section 19-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1991, ch. 38, par. 19-1), defines burglary as follows:

"(a) A person commits a burglary when without authority he knowingly enters or without authority remains within a building * * *, or any part thereof, with intent to commit therein a felony or theft."

By charging defendant with burglary by illegal entry, the State had the burden of proving that defendant entered Witzig's store without authority and that at the time of entry, he intended to steal. People v. Boose (1985), 139 Ill.App.3d 471, 473, 94 Ill.Dec. 211, 213, 487 N.E.2d 1088, 1090.

At common law, burglary was defined as breaking and entering the dwelling of another in the nighttime with the intent to commit a felony. The current statutory definition has eliminated "breaking," "dwelling" and "nighttime" as elements of the crime. (See Ill.Ann.Stat. ch. 38, par. 19-1, Committee Comments, at 569 (Smith-Hurd 1977).) Illinois law is well settled that a building open to the public can be the subject of a burglary. Examples include a laundromat (People v. Weaver (1968), 41 Ill.2d 434, 243 N.E.2d 245); museum (People v. Schneller (1966), 69 Ill.App.2d 50, 216 N.E.2d 510); supermarket (People v. Drake (1988), 172 Ill.App.3d 1026, 123 Ill.Dec. 56, 527 N.E.2d 519; People v. Stager (1988), 168 Ill.App.3d 457, 119 Ill.Dec. 150, 522 N.E.2d 812; People ex rel. McLain v. Housewright (1973), 9 Ill.App.3d 803, 293 N.E.2d 911); car wash (People v. Blair (1971), 1 Ill.App.3d 6, 272 N.E.2d 404); and a discount store (People v. Owens (1987), 151 Ill.App.3d 1043, 105 Ill.Dec. 317, 504 N.E.2d 186).

As all of the "public building" burglary cases make clear, the statute requires an entry which is both without authority and with intent to commit a felony or theft. In the leading case of People v. Weaver, the court stated:

"A criminal intent formulated after a lawful entry will not satisfy the statute. But 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. [Citation.] An entry with intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat." 41 Ill.2d at 439, 243 N.E.2d at 248.

In Weaver the defendant had no laundry when he entered the laundromat, but he did have burglary tools and a key that would open the vending machine which was standing open when police arrived. The evidence was held sufficient to establish entry with intent to steal.

Other cases have also found evidence of intent to steal from the fact that the accused carried burglary tools when entering the building while it was open to the public. (People v. Blair; People v. Schneller.) In People v. Drake the defendant entered a grocery store with some stolen checks, one of which he presented to pay for approximately $10 worth of groceries. The check was made out for $310.37. He was convicted of burglary based on his unauthorized entry into the store with the intent to commit a forgery, and the appellate court affirmed. Thus, the fact that the defendant brought the stolen checks with him into the store was sufficient evidence of entry with intent to commit a felony.

In the case before us, defendant carried nothing into the store that would indicate an intent to commit a theft. His conduct in the store, according to the witnesses who saw him, was that of a shopper browsing through various racks and displays of men's clothing. He did not communicate with the man he entered with, and he did nothing to create a diversion which might distract those in charge while his alleged companion took away the suits. There was no evidence of a scheme or plan to steal formulated prior to entry.

Evidence of intent to commit a felony was held to be insufficient in People v. Boose (1985), 139 Ill.App.3d 471, 94 Ill.Dec. 211, 487 N.E.2d 1088, where the defendant entered Marshall Field's State Street store during the morning while intoxicated. He spent several hours walking around in the store looking at the Christmas sights and patronizing some restaurants. He remained in the store overnight and was found the next morning sleeping in the store wearing a sweater and jacket on which were attached Marshall Field price tags and sensomatic tags. Boose was charged with burglary by illegal entry and was convicted, but his conviction was reversed for failure of the State to prove that he entered the building with the intent to steal. Quoting an early Illinois case, People v. Kelley (1916), 274 Ill. 556, 558, 113 N.E. 926, the court ...