Was the burglary definition rewritten by this court decision? A Creative charging decision by the prosecution brings to focus exactly what it means to commit a burglary.
See People v. Murphy, 2015 IL App (4th) 130265.
Cut To The Chase
Let me cut to the chase to lay our foundation in this case.
The majority in this case, overturned a burglary conviction. The reviewing court held that the facts described in this bench trial simply did not add up to a burglary.
Defendant was charged with burglarizing a pawn shop. This was not a “breaking and entering at night” type of thing when the store was closed.
No, he simply walked into the store to sell stolen items.
Specifically the facts at trial were that
- Two homeowner returned to their homes
- Discovered house had been ransacked
- Xbox and controllers were missing
- Digital camera gone
- Defendant entered Pawn King
- Defendant pawned the items
- Defendant tells cops he bought these things on the street
- Defendant agreed items probably stolen
This appellate decision said, that ain’t a burglary.
The Dissenting Opinion
Before we really get into it, I want to look at the dissent first.
The dissent paints a really logical, clean picture of things.
At a first reading, it is hard to argue with the dissent. They seem to get it right. The dissenting judge said that majority was wrong because they have misapplied the theft statute.
Ok, so now the fun can begin.
The exact charge here is that the…
“defendant committed the offense of burglary when he knowingly entered the building of Pawn King with the intent to commit therein a theft. In count IV, the State alleged he committed the offense of burglary when he knowingly entered the building of Pawn King a second time with the intent to commit therein a theft.” ¶ 5.
See the Illinois Criminal Code section 720 ILCS 5/19-1(a).
So, we can see that a “theft” is built into the burglary statute.
What Is A Theft?
There are different kinds of theft and different ways to prove a theft. We are going to specifically compare just two kinds of theft.
A “theft” actually consists of two things. It has an action part and a mental part. Action part is usually the taking of a thing. This must be combined with the a mental state of intending to permanently deprive the owner of the use of the thing taken.
So a theft can be thought of as –
- Taking an item
- With a permanent intent to deprive the owner of the item
The actual relevant portions of the theft statute in the Illinois Criminal Code says this:
“A person commits theft when he knowingly:
(1) Obtains or exerts unauthorized control over property of the owner; or…
(4) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen; … and
(A) Intends to deprive the owner permanently of the use or benefit of the property; or …
(B) Knowingly uses, conceals or abandons the property in such manner as to deprive the owner permanently of such use or benefit.”
The Dissent Gets This Right
The dissent is correct in explaining that the subsection (A) element of the theft statute is fundamentally different fromt the subsection (B) because the subsection (A) element is a mental state that is present at the moment the defendant obtains control over the stolen property. The subsection (B), on the other hand, is an action that the defendant completes after he obtains control over the stolen property. See ¶ 31.
Now, I know I just said that a theft involves an action and a mental state.
This is still true.
When the dissent talks about subsection (B) as an action completed after control is taking, this is still really just defining a mental state. Its an action that that is done in such a way that clearly demonstrates the intent to permanently deprive the owner of the use of the item in question.
Stay with me.
The Dissenting Judge Believes…
This is how the dissent described the mistake by the majority.
The dissenting judge explained that “the majority appears to be viewing this case as if it involved the charge of theft under section 16-1(a)(4)(A) … which requires proof of the defendant's intent at the time he obtains control over the stolen property. This case, however, involves section 16-1(a)(4)(B) … which requires proof that the defendant used, concealed, or abandoned the stolen property after he obtained control over it.” ¶ 29.
The dissent is basically saying that the defendant committed a theft inside the pawn shop because he went in there and demonstrated his intent to permanently deprive the owners of the property the use and benefit of that property.
How did he do that?
He sold their crap to the pawn shop!
The dissent is saying that this defendant committed a 16-1(a)(4)(B) inside the pawn shop. The dissent thought the majority incorrectly limited their view of theft as a 16-1(a)(4)(A) theft, which requires proof of the defendant's intent at the time he obtains control over the stolen property.
See what I mean? It is kind of hard to argue with the dissent.
The Dissent’s “To Hold Otherwise”
What is the dissent worried about?
Well, the judge said that to hold otherwise means that a fence would be insulted from their criminal conduct.
“A fence who receives valuable stolen property (which is the definition of what fences do) and keeps the property for three years (the theft statute of limitations) before trying to sell it may now do so with impunity.” ¶ 42.
The Majority Opinion
Let's hit the refresh button and go at this from majorities’ point of view.
The majority, indeed, concluded that “defendant committed the theft when he obtained control over the stolen property on the street.” ¶ 14.
The majority noted that:
“The State's theory was that defendant committed theft by obtaining control over stolen property and then pawning the property at Pawn King. The State claims defendant entered Pawn King with the intent to pawn the property and thereby committed the permanent deprivation element of theft. However, a person “obtains” control over property through an act occurring at a specific point in time by “bring[ing] about a transfer of interest or possession.” 720 ILCS 5/15-7. Here, the permanent-deprivation element had already been completed when defendant entered the pawnshop.” ¶ 15.
The majority is saying that a theft is only shown when a proscribed act of “taking” or “obtaining control” is proven.
These acts constitute a theft if it is established that they are performed with the mental states requisite for conviction. Subsections (A) and (B) describe these mental states or describe conduct from which we can infer the required mental state.
At all times, the important mental state is the mental state at the time of the taking or obtaining control.
Some later action may demonstrate the mental state at the time of the taking or obtaining control but that does not mean the the theft was completed later. The later action just shows clearly what the mental state was at the time of the taking or obtaining control.
The theft occurred before Defendant entered Pawn King.
The Majority Holding
“Accordingly, defendant did not enter Pawn King with the intent to commit therein a theft, as required under the burglary statute. In short, the pawnshop was not burglarized.” ¶ 17.
The majority had its own concerns. They had their own “to hold otherwise.” They thought that:
“To hold otherwise under similar facts would lead to bizarre results. For example, defendant could knowingly obtain stolen property on the street and stop by his neighbor's house with the intent to sell the property to that neighbor. See People v. Bailey, 188 Ill. App. 3d 278, 284-85, 543 N.E.2d 1338, 1342 (1989) … Under the State's theory, upon entry into his neighbor's house, defendant would have committed a residential burglary, a nonprobationable Class 1 felony (720 ILCS 5/19-3(b)).” ¶ 17.
Therefore, the majority had not problem in holding that…
“ by obtaining control over stolen property on the street, defendant acted with the intent to permanently deprive the owners of the use and benefit of their property. Thus, defendant had already committed the theft when he entered Pawn King. As he could not have entered Pawn King with the intent to commit therein a theft, since it already occurred, he could not be found guilty of burglary. Accordingly, defendant's convictions for burglary must be vacated.” ¶ 23.
Who Gets The Burglary Definition Correct?
Who was right? Did the majority just make up a new burglary definition or is it the dissent who is inventing a crime where the there is not one?
How you feel about who is right and who is wrong may largely depend on who you feel had the more serious “to hold otherwise.” I mean, who had the more serious concerns.
Dissent Is Worrying About a Non-Worry
The dissenting opinion’s concerns just don’t hold up.
The dissent is worried about diluting the theft charge. But you know, this was not really a theft charge. It was a burglary. The state could have charged Defendant with theft and won that charge. But they didn't.
Nothing in this decision prevents the State from going after fences and charging them with the 16-1(a)(4)(B) form of the charge.
If the State has the evidence to make these cases they are free to do so and bring the charges.
The Majority Has a Valid Concern
The majority has the more valid concern. They are more worried about the State being allowed to overcharge a defendant and get away with it.
Let there be no question about the fact, that this was another example of the State overcharging.
The state actually originally charged Defendant with a residential burglary! The amendment to the burglary of the pawn shop came late in the game as the case moved closer to trial and the State realized they couldn’t prove a residential burglary.
Rather than charge the Defendant appropriately they choose a bogus charge to begin with. In the end, they got caught and called-on bringing the wrong charges. To hold otherwise in this case means the court system would make it easier for the state to get away with this.
So how ‘bout them nuggets!