People v. Burlington, 2018 IL App (4th) 150642 (March). Episode 472 (Duration 7:42)
Fourth district goes the other way on retail theft burglaries.
Defendant entered a Menards, went directly to a digital camera recording system, removed the system from the shelf, walked through the cash register area, and attempted to leave the store.
After being stopped by a cashier, defendant attempted to return the item at the service desk for cash.
Langlois was watching the attempted return in real time and could hear the conversation between defendant and the employee at the service desk through the microphone located on the service desk. Defendant denied stealing the item.
Deputy Dowdy interviewed defendant in the loss prevention room. Defendant told Deputy Dowdy he had entered the store to take an item and return it for United States currency because he owed a man named Tony money for drugs. If he did not pay Tony, he would be physically harmed.
Defendant also indicated he had bought a screwdriver while in Menards but that was not the reason why he went there.
Section 19-1(a) of the Criminal Code of 2012 (720 ILCS 5/19-1(a) (West 2014)) provides, in part, the following:
“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.”
As our supreme court has explained, the burglary statute provides for two ways to commit the offense 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 (citing 720 ILCS 5/19-1(a) (West 2012)).
First Type of Burglary
In this case, defendant was convicted of the first type of burglary, in that he, without authority, knowingly entered Menards with the intent to commit a theft therein.
However, defendant’s argument relies heavily on our supreme court’s decision in Bradford, where it addressed what it meant “to remain without authority in a public place of business,” which is the second type of burglary. Bradford, 2016 IL 118674, ¶ 14.
The Case Law: Weaver
Fifty years ago, in People v. Weaver, 41 Ill. 2d 434, 243 N.E.2d 245 (1968), our supreme court addressed the “without authority” language of the first type of burglary. There, the police had observed the defendant in a self-service laundromat standing near a vending machine, of which the door was open.
It explained the statute required an entry that is
(1) without authority and
(2) with the intent to commit a felony or theft.
Weaver, 41 Ill. 2d at 439.
A criminal intent formulated after a lawful entry does not satisfy the statute. Weaver, 41 Ill. 2d at 439. However, 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.” Weaver, 41 Ill. 2d at 439.
On the facts of that case, the supreme court found the “entry with intent to commit a theft cannot be said to be within the authority granted patrons of a laundromat.” Weaver, 41 Ill. 2d at 439. The evidence defendant and his codefendant had no laundry, could have used a telephone outside the building, and had keys to the vending machine inside vehicles belonging to defendant and his codefendant was sufficient for a jury to find, beyond a reasonable doubt, defendant entered the laundromat with the intent to commit a theft. Weaver, 41 Ill. 2d at 439.
Our supreme court followed its holding in Weaver in the case of People v. Blair, 52 Ill. 2d 371, 374, 288 N.E.2d 443, 445 (1972), where it rejected the two defendants’ argument a car wash was a public place and, thus their entry was not “without authority.” Numerous appellate court cases have also followed Weaver’s holding that entry of a public building with the intent to commit theft constitutes an entry “without authority.” See People v. Gharrett, 2016 IL App (4th) 140315, ¶ 53, 53 N.E.3d 332 (collecting cases).
One such case with facts similar to those before us is People v. Rudd, 2012 IL App (5th) 100528, ¶ 13, 970 N.E.2d 580.
People v. Bradford
As stated, defendant’s argument relies on our supreme court’s decision in Bradford. There, the court held “an individual commits burglary by remaining in a public place only where he exceeds his physical authority to be on the premises.” Bradford, 2016 IL 118674, ¶ 31.
Under that definition, burglary by remaining includes situations in which an individual enters a public building lawfully but, in order to commit a theft or felony, the individual does one of the following:
“(1) hides and waits for the building to close [citation],
(2) enters unauthorized areas within the building [citations], or
(3) continues to remain on the premises after his authority is explicitly revoked.”
Bradford, 2016 IL 118674, ¶ 31.
The court further explained “an individual who enters a building lawfully, shoplifts merchandise within areas which are open to the public, then leaves during business hours, is guilty of ordinary retail theft.” Bradford, 2016 IL 118674, ¶ 31.
We find the supreme court’s decision in Bradford does not affect the holding of Weaver and its progeny. While it rejected the State’s interpretation of the second type of burglary based on Weaver’s holding, the decision in no way indicated Weaver was no longer good law for the first type of burglary. The supreme court specifically only addressed the second type of burglary.
The Bradford decision did not state an entry into a public building with a criminal intent is now a lawful entry.
Legislature Has Done Nothing
Additionally, unlike the second type of burglary, the “burglary found in building” provision’s development over time does not impact the first type of burglary. Additionally, if the legislature did not agree with the supreme court’s interpretation of the “without authority” language as to the first type of burglary and the Illinois courts’ application of that language to incidents where the person entered a business with the intent to commit a retail theft, it could have amended the burglary statute to eliminate that application.
It has not done so.
Illinois courts have applied Weaver’s interpretation of the first type of burglary repeatedly and consistently for 50 years, and thus the legislature has had ample time to contravene that interpretation. This consistent judicial interpretation of the “without authority” language in the first type of burglary is considered a part of the statute until the legislature amends it contrary to that interpretation. See People v. Woodard, 175 Ill. 2d 435, 444, 677 N.E.2d 935, 940 (1997).
Accordingly, we reject defendant’s argument and continue to follow Weaver’s holding that entry of a public building with the intent to commit theft constitutes an entry “without authority.”
Decline To Follow Third District
We recognize our holding is inconsistent with the Third District’s holding in People v. Johnson, 2018 IL App (3d) 150352, ¶ 35, in which it concluded Bradford’s physical authority test applied to all retail theft cases, regardless of when the defendant formed the intent to shoplift.
Moreover, the Johnson decision appears to find the legislature’s enactment of the retail theft statute in 1975 implicitly removes retail theft from the “intent to commit therein a felony or theft” language of the burglary statute. See Johnson, 2018 IL App (3d) 150352, ¶ 33.
However, the burglary statute and the Weaver decision existed before the enactment of the retail theft statute, and the legislature has yet to amend the burglary statute to state the exception found in Johnson. In construing a statute, courts cannot read words into the statute that are not there. People v. Sedlacek, 2013 IL App (5th) 120106, ¶ 28, 986 N.E.2d 1281.
Additionally, we disagree with Johnson’s focus on prosecutorial discretion.
“Generally, prosecutorial discretion is a valuable aspect of the criminal justice system.” People v. Christy, 139 Ill. 2d 172, 180, 564 N.E.2d 770, 774 (1990). The fact that more than one offense covers a defendant’s course of conduct has never been a valid reason for removing the discretion of the prosecutor to decide which offense, if any, to charge.
Thus, we disagree with Johnson’s statement “[c]ourts should not interpret criminal statutes to provide prosecutors unbridled discretion to arbitrarily charge some shoplifters with Class 2 felony burglary and others with Class A misdemeanor retail theft under similar circumstances.” Johnson, 2018 IL App (3d) 150352, ¶ 30.
Concerns over the exercise of prosecutorial discretion cannot alter the plain language of a statute.