People v. Moore, 2018 IL App (2d) 160277 (June). Episode 505 (Duration 4:40)
Second District goes with the Fourth District on burglary or retail store cases.
Defendant was convicted of burglary after he and another man entered a Wal-Mart intentions to commit a theft therein.
The other man grabbed 4 bottles of liquor and put them in a diaper bag and left without paying. Defendant ran out the store shortly thereafter. He had no money on him and did not buy anything.
He was sentenced to 6 years and challenged the conviction for burglary.
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.”
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.
Defendant was charged with, and convicted of, the first type of burglary—burglary by unauthorized entry.
The Case Law
For more than 100 years, the supreme court has recognized that entering a retail establishment with the intention of committing a theft constitutes burglary. 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.
Thus, patrons of a business lack the authority to enter if they intend to commit a theft inside the establishment.
People v. Bradford
Defendant relies on People v. Bradford, 2016 IL 118674, ¶¶ 25, 31, where the supreme court declined to extend People v. Weaver, 41 Ill. 2d 434, 435 (1968) to a case of burglary by unlawfully remaining.
There, the defendant was convicted of burglary by unlawfully remaining in a Walmart store with the intent to commit a theft.
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.
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, 41 Ill. 2d at 438-39).
We agree with the Fourth District 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.
We follow Burlington. Affirmed.
Decline To Follow Johnson
In People v. Johnson, 2018 IL App (3d) 150352, ¶ 35, a case upon which defendant relies, the Third District came to a different conclusion than the Fourth District in Burlington. In Johnson, the Third District held that Bradford changed longstanding law and applies to cases of burglary by unauthorized entry. The court concluded that “Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift.”
We disagree with and do not follow Johnson.
Not The Court’s Job To Limit Prosecutorial Discretion
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.”
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. Further, as the Burlington court noted, “concerns over the exercise of prosecutorial discretion cannot alter the plain language of a statute.” Burlington, 2018 IL App (4th) 150642, ¶ 32.