Criminal Law - Chapter 8

The following case is associated with the crime of Burglary which is addressed on page 325.

Burglary--insufficient proof of mens rea.

John D. Williams, the defendant in the following case, appealed his burglary conviction because the trial judge refused to instruct the jury on the lesser included offense of theft.

People v. John David Williams
Appellate Court of Illinois
No. 3-01-0906
May 16, 2003

Justice Barry:

John David Williams ("Williams") was charged by indictment with the offense of burglary after allegedly entering Smoking Pleasure, a tobacco shop, and stealing money from a safe located within a closet in the store. Following a jury trial, Williams was convicted of the crime of burglary and was sentenced to a term of fourteen years imprisonment. Williams appeals his conviction arguing that (1) the evidence was insufficient to sustain a conviction for burglary; (2) the court erred in refusing to give Williams's proposed jury instructions; and (3) the indictment failed to adequately apprise Williams of the charge against him....

FACTS

On July 19, 2000, Williams was indicted on the charge of burglary. A jury trial commenced on August 6, 2000.... The State's witnesses testified to the following facts. Mary Work ("Work"), along with her husband, owns Smoking Pleasure, a tobacco shop located in Peoria, Illinois. Smoking Pleasure is a long, narrow shop. When customers enter, they initially pass three showcases. At the end of these showcases is a cash register. After passing the cash register, customers reach a Western Union counter, next to which is Work's desk. On the opposite side of Work's desk is a humidor room, a storage area for cigars that is kept at a certain percentage of humidity and a set temperature. Behind Work's desk is a closet. The closet is a storage area containing a safe, extra humidors, cleaning supplies, and a stepladder.

On June 15, 2000, at approximately 5 p.m., Work was preparing to close Smoking Pleasure. She took cash out of the register, placing it in a cigar box in the safe located in the closet. Work then walked into the store's humidor to straighten some cigars. Work came out of the humidor room to find an African-American male in the closet squatted in front of the safe. After Work spotted him, the man ran out the door. Work recognized the man as having purchased cigarettes on prior occasions at Smoking Pleasure. Work looked in the safe and realized that the money was missing from the cigar box. She then called 911. The following day the police showed Work six photographs. From this photographic lineup, Work identified Williams as the man she had seen in front of her safe. Officer Ken Snow testified that he lifted a fingerprint from the cigar box and identified the fingerprint as being that of Williams. The defense did not present any evidence.

At the conclusion of the evidence, defense counsel submitted a jury instruction which would have given the jury the option of finding the defendant guilty of theft, which defense counsel argued was a lesser included offense. The trial court refused the instruction finding that there was no evidence that would permit the jury to find Williams guilty of theft but not guilty of burglary based upon the testimony presented at trial. The jury found Williams guilty of burglary, and he was later sentenced to a term of fourteen years imprisonment.

ANALYSIS

Williams first argues that the evidence was insufficient at trial to sustain a conviction for burglary because there was no evidence he intended to commit a theft when he entered Smoking Pleasure. According to Williams, this court should conclude that Williams may have entered the store for the purpose of purchasing merchandise and only then formed the intent to steal money from the safe. In reviewing the sufficiency of the evidence for a conviction, this court must determine whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt....

The Illinois Criminal Code states that, "[a] person commits burglary when without authority he knowingly enters or without authority remains within a building ... or any part thereof, with the intent to commit therein a felony or theft." 720 ILCS 5/19-1(a). Burglaries can occur during business hours in a building open to the public. People v. Smith, ... 637 N.E.2d 1128, ... (1994). However, authority to enter a place of business open to the public extends only to those who enter with a purpose consistent with the reason the business is open to the public. People v. Weaver, ... 243 N.E.2d 245 ... (1968). Therefore, for a conviction to stand in public building burglary cases, there must be sufficient evidence to demonstrate an intent to commit a felony or theft at the time of entry into the business.... The State is permitted to prove intent by inferences drawn from the defendant's conduct and from surrounding circumstances.... "Relevant considerations are the time, place, and manner of entry of the premises, the defendant's activity within the premises, and any alternative explanations which may explain his presence."....

In People v. O'Banion, ... 625 N.E.2d 451, ... (1993), this court found that the State failed to present sufficient evidence that the defendant intended to commit a theft when he entered a store where there was no testimony as to when the defendant entered the store, how long he was in the store, and what his actions were before being noticed by the store's loss control manager. Likewise, in People v. Durham, ... 623 N.E.2d 1010, ... (1993), this court found insufficient evidence of intent where the defendant carried nothing into the store evidencing an intent to commit theft and acted as a shopper once in the store.

In the instant case, the State presented no evidence that Williams intended to commit theft at the time he entered Smoking Pleasure. There was no testimony concerning what his actions were before being noticed by Work nor was there evidence that Williams carried burglary tools or other items into the store, which would indicate an intent to commit a theft. The store was open at the time of the theft, and Work testified that Williams had previously purchased cigarettes at the store. While Williams ran after being spotted by Work, this behavior is no more consistent with burglary than with theft. Considering all of the evidence before the jury, Williams's presence in the store is as consistent with his innocence as with his guilt of criminal intent at the time of his entry at Smoking Pleasure. ...

The State argues that the relevant question is not whether Williams had the requisite intent when he entered Smoking Pleasure, but whether he had the requisite intent when he entered the storage closet. The State argues that the storage closet constitutes an enclosure within the store, which was not open to the public, and Williams could have formed the requisite intent after entering the store and prior to removing the cash from the closet. The State cites People v. Davis, ... 369 N.E.2d 1376, ... (1977) in support of its argument. However, Davis is factually distinguishable from the instant case. In Davis, two businesses occupied one large room with an outside entrance which was accessible to the public. The business from which the defendant stole a typewriter was located in the back of the room, while a second business was located in the front. The two businesses were separated by walls and a doorway, although there was no actual door. The court found that while the defendant had made an authorized entry into the front door, the defendant made an unauthorized entry through the doorway to the business located in the back of the room.

The instant case more closely parallels People v. Perruquet, ... 527 N.E.2d 1334, ... (1988). In Perruquet, the State argued that the defendant possessed the requisite intent for burglary prior to entering an area behind a counter from which the defendant stole money from the store cash drawer and from a clerk's purse. The court found that an area within a business segregated by a counter could not be considered a part of a building under the burglary statute. The closet area located behind Work's desk is no more a part of a building than the area behind the counter in Perruquet. If a closet area were to be considered a part of a building under the burglary statute, it would lead to unreasonable results. For instance, Williams could have faced a second charge for burglary if he had decided to steal some cigars from the humidor before or after he took the cash from the safe. Accordingly, we hold that the closet area was not a part of the building as defined by the burglary statute.

Moreover, the State failed to prove beyond a reasonable doubt that Williams entered the store without authority or formed the intent to steal prior to entering Smoking Pleasure. Because we are reversing Williams's conviction based upon the sufficiency of the evidence, we need not consider the second and third issues raised on appeal as a reversal of the conviction based upon these issues would simply result in a remand for a new trial. As Justice Underwood explained in People v. Taylor, ... 391 N.E.2d 366, ... (1979), when an appellate court reverses a criminal conviction and remands the case for a new trial without deciding the defendant's contention that the evidence at trial was insufficient, the court risks subjecting the defendant to double jeopardy. Accordingly, we reverse Williams's conviction for burglary with prejudice.

Reversed.

Justice Holdridge, specially concurring:

The United States Constitution (U.S. Const., amend. V), the Illinois Constitution (Ill. Const. 1970, art. I, § 10), and the Criminal Code of 1961... all prevent the State from twice placing a defendant in jeopardy for the same offense. These provisions obviously protect a vital liberty interest. A by-product of such protection is the possibility that a perpetrator may go unpunished if the State's prosecution is handled improvidently. Unfortunately, the instant case involves this scenario.

"A person commits burglary when without authority he knowingly enters a building ... or any part thereof, with intent to commit therein a ... theft." ... The Smoking Pleasure store is located inside a building known as the Twin Towers Plaza. The State's indictment against Williams alleged that he "entered within a portion of a building being Smoking Pleasure located at 456 Fulton, Suite 128, Peoria, Illinois with the intent to commit a theft therein." Accordingly, the State accused Williams of entering the Smoking Pleasure store (a portion of the Twin Towers Plaza) with the requisite criminal intent. The indictment did not cover an entry into the closet inside the store.

As the majority aptly notes, the State offered insufficient evidence to prove its charge beyond a reasonable doubt. The State apparently sensed this insufficiency during the trial. When defense counsel tendered an instruction on the lesser included offense of theft, the State opposed the instruction by arguing that the alleged theft would still involve a burglary. The State supported this argument with a new theory that entering the closet with intent to commit a theft would constitute burglary, even if Williams lacked such intent when he entered the store. The trial judge accepted this theory and, surprisingly, interpreted the wording of the indictment to accommodate it. Thus, the judge refused defense counsel's instruction on the lesser included offense of theft. Then, with the judge's sanction, the State argued to the jury that Williams could be convicted of burglary for entering either the store or the closet with intent to commit a theft.

I agree with the majority's reasoning in reversing Williams' conviction on the charged offense (entering the store with intent to commit a theft). However, there is no need to address whether a separate burglary offense could arise from entering the closet with intent to commit a theft. Williams was never charged with such conduct, and he cannot be re-charged with it because the State has already used the underlying theory to place him in jeopardy.

He also cannot be re-charged with theft. When a defendant is acquitted of a greater offense, the acquittal operates as a bar to subsequent prosecution for all lesser included offenses.... A core purpose of the double jeopardy prohibition is to keep the State from "honing its trial strategies and perfecting its evidence through successive attempts at conviction." ... Such attempts "would unfairly burden the defendant and create a risk of conviction through sheer governmental perseverance." ... At trial the State fought against the theft option and won. Williams' right against double jeopardy would be violated if we remanded allowing the State to change its mind and re-charge him with theft.

Thus, we have an unfortunate situation where a man stole money from a store but cannot be punished. The liberty secured by the Constitution is worth such risks, but the State and the trial judge should have known better. The present quandary exists because the State, with the trial judge's sanction, twisted the charging language to avoid the possibility of a conviction on a lesser offense.

Since no alternative exists, I concur in the result of the majority's order.