People v. Holt, 2019 IL App (3d) 160504 (March). Episode 607 (Duration 7:12)
The split deepens between the Second, Fourth and Third Districts on these burglary/retail theft convictions.Subscribe: Apple | Google | Spotify | Android | RSS | Direct Download
Women sees two men grab a bag from behind a vending machine and enter the Walmart in Rock Falls.
She saw them reach behind the soda machines, pull out backpacks, take items out of their clothes, and place the items in the backpacks. She testified that she observed Holt take “something long and orange, like a fabric of some sort” out of his pants and place it in a red and black backpack.
Peppers further stated that the two males walked back into the vestibule by the Coinstar machine, but she could not see what they were doing.
Then, the males walked back into the store.
She stated that the males carried the backpacks into the vestibule by the Coinstar machine, but when they reentered the store, they were no longer carrying the backpacks.
They were arrested when they came out.
Police Get Involved
A backpack sitting on top of a Coinstar machine had contained three packs of socks, a dress, a pair of pants, and a two-piece shirt set.
An officer also noticed a large bulge in the front of Holt’s pants.
When asked about it, Holt stated that he had clothing in his pants. Because Holt had been arrested and Mirandized by that point, the officer performed a pat-down of Holt, felt soft material in his pants, and removed the items, which were three packs of socks and a dress. Holt did not offer any explanation as to why the items were in his pants; he “just kept denying it even though that is not how he carries things around.”
Guilty of Burglary
In this case, Holt was charged with entering Walmart without authority. The jury returned guilty verdicts on burglary and retail theft.
Holt was sentenced as a Class X offender on his burglary conviction. He received eight years of imprisonment for burglary, to be served concurrent to a three-year sentence for retail theft.
The Burglary Statute
Notably, there are two ways in which one can commit the offense of burglary:
by either knowingly entering or without authority remaining within “a building, housetrailer, watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a) (West 2014).
- Episode 155 – People v. Bradford, 2016 IL 118674 (March) (this is also a burglary to a Walmart, except he was charged differently)
- Episode 456 – People v. Johnson, 2018 IL App (3d) 150352 (January) (this is the codefendant in this case, 3rd district expands the Bradford rule to the second more common type of burglary)
- Episode 472 – People v. Burlington, 2018 IL App (4th) 150642 (March) (4th district declines to follow the 3rd and says Bradford is limited to the type of burglary charged in that case)
- Episode 505 – People v. Moore, 2018 IL App (2d) 160277 (June) (3rd joins the 4th in saying Bradford is limited to the charges in that case)
Despite Bradford addressing only “burglary by remaining” cases, the Johnson court found its rationale applicable to “burglary by entering” cases: “Under either manifestation of burglary, the offender must lack ‘authority.’ If forming the intent to shoplift does not revoke one’s authority to remain in a store, then it cannot logically revoke one’s authority to enter either.” Id. ¶ 33.
Accordingly, the Johnson court extended Bradford to “burglary by entering” cases and held that Johnson never exceeded the authority granted to him to enter Walmart.
In this case, it was clear that Holt entered Walmart, a business open to the public, during normal business hours. Applying Johnson to this case, we hold as a matter of law that Holt did not enter Walmart without authority. Accordingly, we reverse his burglary conviction but affirm his retail theft conviction.
The Dissent Says…
I find that Johnson was wrongly decided and that the majority erred in relying on it.
In reaching our decision in Johnson, we relied on the supreme court’s decision in People v. Bradford, 2016 IL 118674. In Bradford, the supreme court ruled that a defendant commits “burglary by remaining” in a public place only if he (1) hides and waits for the building to close, (2) enters unauthorized areas of the building, or (3) remains on the premises after his authority has been revoked.
A defendant who enters a store during regular business hours, never enters areas of the store that are off-limits to the public, shoplifts items, and leaves while the store is open is not guilty of “burglary by remaining.” Id. ¶ 32.
In Johnson, we found that “Bradford changes the law and effectively overrules the law” set forth in “a long line of cases” holding that “one who intends to commit retail theft lacks authority to enter a store.” Johnson, 2018 IL App (3d) 150352, ¶ 28. I disagree.
The supreme court in Bradford made clear that its holding applied only to “burglary by remaining” cases.
First, the court repeatedly used the phrase “burglary by remaining” in its legal conclusions. See Bradford, 2016 IL 118674, ¶ 31. Additionally, the court in Bradford discussed Weaver and cited with approval its holding that “evidence that a defendant enters a place of business in order to commit a theft is sufficient to satisfy the ‘without authority’ element of burglary by entering.” Bradford, 2016 IL 118674, ¶ 23 (citing Weaver, 41 Ill. 2d at 439).
I find nothing in the supreme court’s decision in Bradford suggesting that it changed the law with respect to “burglary by entering” cases, like Johnson or this case. I agree that Bradford did not overrule Weaver, a case that has been repeatedly and universally followed in this state for over 50 years.
I find that Weaver controls this case and does not support reversal of defendant’s burglary conviction.