People v. Moore
People v. Moore
Opinion
¶ 1 Following a jury trial, defendant, Jamison L. Moore, was convicted of burglary ( 720 ILCS 5/19-1(a) (West 2014) ) and retail theft ( id. § 16-25(a)(1) ). The trial court sentenced him to concurrent prison terms of 10 years for burglary and *404 a 6-year extended term for retail theft. He appeals, contending that (1) he was not proved guilty beyond a reasonable doubt of burglary where he entered a Walmart store during regular business hours and remained in publicly accessible areas of the store; (2) the State failed to prove that he intended to commit a theft when he entered the store or that he was accountable for the conduct of his cousin, Adrian Moore, who stole merchandise from the store; and (3) if we affirm both convictions, we must vacate the extended-term sentence for retail theft. We agree only with defendant's final contention. Thus, we vacate the extended-term portion of the retail-theft sentence but affirm in all other respects.
¶ 2 I. BACKGROUND
¶ 3 On August 7, 2015, Michael Eby took a break from his job as a manager at the Belvidere Walmart to go outside for a cigarette. As he left the store, two men, later identified as Adrian and defendant, caught his attention. Adrian was carrying a diaper bag although neither man had a baby with him. Eby watched the men enter the store. He went to check on them and found them in the liquor department. Adrian left the store alone, carrying the diaper bag with liquor bottles in it. He walked past the cash registers without paying for the liquor.
¶ 4 Eby followed Adrian to the parking lot, where he got in a black sport-utility vehicle (SUV) being driven by a black woman. Eby yelled at two employees in the parking lot to get the vehicle's license number while he called 911. The SUV backed up and left the parking lot rapidly. Eby saw defendant leave the store a short time later. Defendant walked by Eby, then headed back toward the store before running to the road and out of sight.
¶ 5 Eby went back to the store to pull up the surveillance video. He saw that four bottles of liquor had been taken.
¶ 6 According to Eby, the video showed that Adrian followed defendant into the liquor department. Defendant then returned to the department's entrance and remained there for a few seconds. When another couple approached the department, defendant walked away. He walked past the self-check registers and remained on the sales floor for about 30 seconds.
¶ 7 Eby later viewed other portions of the video. One such portion showed defendant and Adrian being dropped off just outside the store entrance, then entering the store together. Once they entered the liquor department, the two men made eye contact but, as the video had no sound, Eby could not tell what if anything was said. The video showed Adrian immediately take four bottles of vodka from the top shelf, put them in the bag, and leave. Defendant, meanwhile, walked toward the service desk, turned a corner, looked at an ATM, then turned and left the store by the same door through which they entered.
¶ 8 Belvidere police officer Richard Zapf apprehended defendant at the corner of Genoa Road and Chrysler Drive, near the Walmart, at around 7 p.m. Defendant was sweating, breathing heavily, and nervous. He said that he had walked to the Walmart to do some shopping.
¶ 9 Officer Michele Bogdanas arrived. She handcuffed defendant and returned him to the front of the Walmart. Defendant's wallet contained a few cards, but no cash. According to Bogdanas, the license number of the SUV that drove away from the store was registered to Tannah Moore, defendant's wife.
¶ 10 Officer Todd Moore also responded to the scene. Defendant told Officer Moore that he walked to the store to get some *405 snacks but forgot his wallet at home. He initially said that he went to the store alone. When asked who the "other guy" was, he said that his name was James.
¶ 11 Defendant later told police that he went to the store with a cousin but did not want to give the cousin's name. The next day, after receiving a call from defendant's wife, Officer Moore spoke with defendant at the county jail. Defendant said that his cousin's name was Adrian Moore. He showed Adrian where the liquor section was because Adrian had never been in that Walmart before. Defendant said that he then went to buy snacks and did not know what Adrian was doing.
¶ 12 The jury found defendant guilty of burglary and retail theft. The trial court sentenced him to 10 years' imprisonment for burglary with a concurrent 6-year, extended-term sentence for retail theft. The court denied defendant's posttrial motion and motion to reconsider the sentence. Defendant timely appeals.
¶ 13 II. ANALYSIS
¶ 14 A. Without Authority
¶ 15 Defendant argues first that the State failed to prove beyond a reasonable doubt that he entered the Walmart store "without authority." 720 ILCS 5/19-1(a) (West 2014). He maintains that he never exceeded the scope of his authority to be in the store, given that he entered during regular business hours, never entered an area of the store that was off-limits to the public, and left while the store was still open. For the following reasons, we follow longstanding authority and reject defendant's argument.
¶ 16 Although defendant frames the issue as a challenge to the sufficiency of the evidence, he acknowledges that the real question is the construction of the burglary statute. The construction of a statute is an issue of law, which we review
de novo
.
Hall v. Henn
,
¶ 17 Section 19-1(a) of the Criminal Code of 2012 provides, in part, that "[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). Thus, under the statute, one can commit a burglary in one of two ways: (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.
¶ 18 For more than 100 years, the supreme court has recognized that entering a retail establishment with the intention of committing a theft constitutes burglary. See
People v. Kelley
,
¶ 19 Subsequently, numerous decisions have applied
Weaver
to cases of burglary involving the unauthorized entry of a retail establishment. See,
e.g.
,
People v. Rudd
,
¶ 20 Defendant relies on
People v. Bradford
,
¶ 21 The supreme court, however, agreed that the defendant's was the "only reasonable reading of the burglary statute." Id. ¶ 25. The court held that the State's proposed test (1) was unworkable (due to the difficulty of proving precisely when the defendant's authority to be in the store was revoked and whether he "remained" in the store for some period of time after completing the theft), (2) could lead to absurd results (by arbitrarily distinguishing between a defendant who steals one item and leaves immediately thereafter and one who steals more than one item or lingers in the store before leaving), and (3) was not consistent with the retail-theft statute (which was enacted 14 years after the burglary statute's "remaining within" provision and would be effectively negated by the State's reading) and the historical development of the burglary statute (which reflected that the addition of the "remaining within" provision incorporated the former crime of "burglar found in building" and where the term "found" necessarily refers to an area closed to the defendant or the public). Id. ¶¶ 25-30. In sum, the court held that a defendant "commits burglary by remaining in a public place only where he exceeds his physical authority to be on the premises." Id. ¶ 31. This includes situations where the defendant "enters a public building lawfully but, in order to commit a theft or felony, (1) hides and waits for the building to close," "(2) enters unauthorized areas within the building," "or (3) continues to remain on the premises after his authority is explicitly revoked." Id. However, the court clarified that a person who lawfully enters a building, shoplifts within areas open to the public, and then leaves during business hours is guilty of retail theft. Id.
*407
¶ 22 Defendant contends that
Bradford
's rationale should also apply to cases of burglary by unauthorized entry. We disagree.
Bradford
addressed only the second type of burglary: burglary by remaining. The supreme court's concerns about establishing when authority is revoked and when a defendant has remained in the store longer than necessary to complete the theft are simply not present in a case like this one. Further, as noted, the historical development of the crime of burglary by remaining, the court emphasized, includes only scenarios where the defendant is discovered in a place where he or she is not authorized to be.
Id.
¶ 30. Finally, nothing in
Bradford
purports to overrule
Weaver
, where the court held that the burglary statute applied to the entry of an establishment otherwise open to the public (
Weaver
,
¶ 23 We find support for our conclusion in the Fourth District's decision in
People v. Burlington
,
¶ 24 We agree with
Burlington
that the history and nature of the burglary-by-remaining provision distinguish it from burglary by unauthorized entry such that
Bradford
's rationale cannot be mechanically applied to the latter provision. The distinction is further justified by the fact that one who enters a store with a preconceived plan to steal merchandise is at least arguably more culpable than one who, once inside a store, impulsively takes merchandise. See
Durham
,
¶ 25 In
People v. Johnson
,
¶ 26 We disagree with and do not follow Johnson . The court's primary concern there appears to have been that allowing the same act to be charged as either burglary or retail theft (or both) gives prosecutors "unbridled discretion."
*408
Id.
¶ 30. We, however, do not find that limiting a prosecutor's discretion to charge a defendant when his or her conduct falls under one or more provisions is a basis to depart from more than 100 years of precedent. The state's attorney has the responsibility of evaluating evidence and other pertinent factors and determining what, if any, offense should be charged.
People v. Williams
,
¶ 27
Johnson
also seemed to express concern that allowing shoplifting to be charged as unauthorized-entry burglary would effectively nullify the retail-theft statute: "We suspect that it is a miniscule percentage of shoplifters who form the intent to steal only after entering a store."
Johnson
,
¶ 28 B. Intent and Accountability
¶ 29 Defendant next contends that the evidence was insufficient to prove that he entered the store intending to commit a theft or that he was accountable for Adrian's conduct after they entered the store. Defendant discusses this issue primarily as it relates to his burglary conviction, but he also asks us to reverse his retail-theft conviction. Entering without authority is not an element of retail theft. See 720 ILCS 5/16-25(a) (West 2014). However, to establish guilt of retail theft, the State had to prove that defendant was accountable for Adrian's conduct (because there was no evidence that defendant personally stole anything from the Walmart). For the following reasons, we conclude that the evidence was sufficient to prove that defendant entered the store intending to commit a theft and that he was accountable for Adrian's conduct after they entered the premises.
¶ 30 When reviewing the sufficiency of the evidence, we ask only whether any rational trier of fact could have found the elements of the offense, when viewing the evidence in the light most favorable to the prosecution.
People v. Ortiz
,
¶ 31 Here, Eby observed defendant and Adrian enter the store together. Video confirms that they were dropped off together and entered the store almost simultaneously. Video shows that Adrian, who was inexplicably carrying a diaper bag, entered the liquor department. Defendant entered seconds later, and the two briefly conversed or at least made eye contact. Defendant then left the area and embarked on a circuitous journey around the front of the store. At no time was he seen examining merchandise as if shopping, and except for a brief foray through the women's-wear department, he never entered another area of the store containing merchandise. From this, the jury could reasonably infer that defendant served as a lookout while Adrian stuffed the diaper bag with liquor. Defendant's conduct was not "that of a shopper browsing through various racks and displays."
Durham
,
¶ 32 Moreover, defendant ran after leaving the store. When apprehended a short time later, he appeared sweaty, out of breath, and nervous. He gave the investigating officers conflicting stories. His flight and false exculpatory stories could both be viewed as evidence of consciousness of guilt. See
People v. Harris
,
¶ 33 Thus, the evidence was sufficient to prove that defendant and Adrian entered the store intending to commit a theft and, moreover, that defendant was accountable for Adrian's conduct after they entered the premises. We affirm defendant's convictions.
¶ 34 C. Extended-Term Sentence
¶ 35 Defendant's final contention is that his extended-term sentence for retail theft is unauthorized. The State confesses error.
¶ 36 Extended-term sentences may be imposed only for offenses within the most serious class of offense of which a defendant is convicted. 730 ILCS 5/5-8-2(a) (West 2014);
People v. Jordan
,
¶ 37 III. CONCLUSION
¶ 38 The judgment of the circuit court of Boone County is affirmed as modified. As part of our judgment, we grant the State's request that defendant be assessed $50 as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also
People v. Nicholls
,
¶ 39 Affirmed as modified.
Presiding Justice Hudson and Justice Birkett concurred in the judgment and opinion.
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jamison L. MOORE, Defendant-Appellant.
- Cited By
- 2 cases
- Status
- Unpublished