                               ILLINOIS OFFICIAL REPORTS
                                            Appellate Court




                             People v. Richardson, 2011 IL App (5th) 090663




Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
                        LEON RICHARDSON, Defendant-Appellant.



District & No.                  Fifth District
                                Docket No. 5-09-0663


Filed                           August 17, 2011


Held                            The testimony of three officers describing the course of their
(Note: This syllabus            investigation, which led to defendant’s arrest for burglary, was properly
constitutes no part of the      admitted over defendant’s hearsay objection where the trial court
opinion of the court but        instructed the jury that it could consider the testimony for that limited
has been prepared by the        purpose and not for the truth of the matters asserted.
Reporter of Decisions
for the convenience of
the reader.)


Decision Under                  Appeal from the Circuit Court of St. Clair County, No. 09-CF-195; the
Review                          Hon. John Baricevic, Judge, presiding.



Judgment                        Affirmed; mittimus amended.
Counsel on                  Michael J. Pelletier, Johannah B. Weber, Dan W. Evers, all of State
Appeal                      Appellate Defender’s Office, of Mt. Vernon, for appellant.

                            Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,
                            Stephen E. Norris, Timothy James Ting, all of State’s Attorneys
                            Appellate Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE WEXSTTEN delivered the judgment of the court, with
                            opinion.
                            Presiding Justice Chapman and Justice Goldenhersh concurred in the
                            judgment and opinion.




                                              OPINION

¶1          A St. Clair County jury found the defendant, Leon Richardson, guilty of burglary (720
        ILCS 5/19-1(a) (West 2008)), and he was subsequently sentenced to serve a seven-year term
        of imprisonment. On appeal, the defendant argues that the State’s evidence was insufficient
        to support his conviction, that the erroneous admission of hearsay testimony denied him a
        fair trial, and that he is entitled to an additional day of credit against his sentence. For the
        reasons that follow, we affirm the defendant’s conviction and grant him the additional day
        of credit that he seeks.

¶2                                         BACKGROUND
¶3          In No. 09-CF-195, the defendant was charged by information with two counts of burglary
        (counts I and II). Count I alleged that, without authority, the defendant knowingly entered
        Route 3 Liquors in Sauget with the intent to commit a theft therein. Count II alleged that,
        without authority, the defendant remained within Route 3 Liquors with the intent to commit
        a theft therein. In October 2009, the cause proceeded to a jury trial, where the evidence
        established the following.
¶4          Route 3 Liquors in Sauget has a large common “floor area” that is open to the public.
        Beyond the floor area, there is an office area in the back where cash and change are stored
        in a large brown safe and books of instant lottery tickets are stored in a large blue safe. On
        the double doors leading into the office area, there are three signs reading, “EMPLOYEES
        ONLY.”
¶5          On February 18, 2009, shortly before 5 p.m., the defendant, who was not an employee
        of Route 3 Liquors, was observed walking out of the office area with “something in the front
        of his coat.” He then exited the store through the front doors and drove away in a white Ford

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       Contour. Moments later, Route 3 Liquors was advised by its security service that the silent
       alarm on one of the large safes in the office area had been activated. An ensuing inventory
       of the safes revealed that instant lottery tickets with a face value of $900 were missing from
       the blue one and that cash and coins in the amount of $693 were missing from the brown
       one. The coins, which were in a change bag in the brown safe, were rolled in clear plastic
       wrappings and consisted of $130 in quarters, $14 in nickels, and $2 in pennies. Most of the
       missing cash came from a tan cash box in the brown safe. Soon after the defendant exited
       Route 3 Liquors, the police arrived at the scene, and the store’s general manager called the
       Illinois State Lottery’s hotline and “reported the book numbers and ticket numbers that were
       stolen.”
¶6          On February 19, 2009, the defendant tried to cash an instant lottery ticket at the Crown
       Food Mart in Washington Park but was denied payment. The ticket had a payout amount of
       $2, and after it was rejected, the defendant reclaimed it and left the store. The cashier who
       was on duty at the time testified that when she “scanned the ticket[,] *** the machine said
       contact the retailer.” She further suggested that the ticket was stolen because the lottery
       machine displays “contact the retailer” only in cases of stolen tickets and payout amounts in
       excess of $600. The cashier knew the defendant because he “was a regular at the store,” and
       she testified that she later spoke with a detective from the Sauget police department about
       what had occurred.
¶7          On February 20, 2009, the defendant was arrested at the Crown Food Mart in Washington
       Park after attempting to exchange rolled coins for cash. The rolled coins consisted of
       quarters, nickels, and pennies and were in clear plastic wrappings. The defendant’s white
       Ford Contour was towed from the scene.
¶8          A security camera positioned near the entrance of Route 3 Liquors videoed the defendant
       entering the store shortly before 5 p.m. on February 18, 2009, and leaving approximately four
       minutes later. Additionally, a security camera in the back room area videoed the defendant
       entering the area and looking around before approaching and opening the two large safes,
       neither of which was locked. While keeping a lookout, the defendant is seen removing items
       from both safes and putting the items in the front of his coat. The defendant’s fingerprints
       were later found on the cash box from the brown safe and on one of the doors of the blue
       safe. The defendant’s attempt to cash the lottery ticket in Washington Park was also caught
       on camera.
¶9          At the conclusion of the State’s case in chief, defense counsel moved for a directed
       verdict arguing, inter alia, that the State had failed to prove that the defendant entered Route
       3 Liquors with the intent to commit a theft. Counsel further suggested that if the State did not
       elect to proceed on only one of its counts against the defendant, the jury could possibly return
       a legally inconsistent verdict. In response, to “make it easier,” the State withdrew count I and
       elected to proceed on count II only. The defendant presented no evidence in his defense.
¶ 10        In its closing argument to the jury, the State maintained that while the defendant’s initial
       entry into Route 3 Liquors might have been authorized, he was not authorized to enter the
       employees-only office area of the store, where he remained with the obvious intent to commit
       a theft. Defense counsel countered that the defendant was a victim of mistaken identity and


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       that, even assuming that he did commit a theft at Route 3 Liquors, he “never remained within
       that building,” as the State alleged in count II of its information. Referring to count II,
       counsel maintained as follows:
            “This type of burglary is designed for situations where the person goes in during business
            hours, hides himself away, waits till the store closes, they know they no longer have
            permission to be there, and they wait and they wait until afterwards and then they come
            out and burglarize the building. That’s not what you have here. That’s not the situation
            that you have here.”
¶ 11        The jury was subsequently instructed that to establish the defendant’s guilt on count II,
       the State had to prove the following propositions: “the defendant knowingly entered a
       building,” “the defendant did so with authority,” “the defendant thereafter, without authority,
       knowingly remained within that building,” and “the defendant remained within the building
       with the intent to commit therein the offense of theft.” See Illinois Pattern Jury Instructions,
       Criminal, No. 14.10 (4th ed. 2000). After the jury found the defendant guilty on count II, the
       trial court sentenced him to serve a seven-year term of imprisonment in light of his extensive
       criminal history. The present appeal followed.

¶ 12                                         ANALYSIS
¶ 13                                      Reasonable Doubt
¶ 14       Echoing his trial attorney’s closing argument to the jury, i.e., that he never “remained
       within” Route 3 Liquors, the defendant’s first contention on appeal is that the State failed to
       prove his guilt beyond a reasonable doubt. Noting that the State failed to establish that he hid
       inside Route 3 Liquors and waited for the store to close with the intent to commit a theft, the
       defendant asserts that the State failed to prove that he “remained” inside Route 3 Liquors for
       purposes of the statute defining the offense of burglary. We disagree.
¶ 15       “A person commits burglary when without authority he knowingly enters or without
       authority remains within a building, *** or any part thereof, with intent to commit therein
       a felony or theft.” 720 ILCS 5/19-1(a) (West 2008). The statute defining the offense thus
       “provides two alternative ways to commit burglary (by unlawful entry or by unlawfully
       remaining following lawful entry).” People v. Green, 83 Ill. App. 3d 982, 986 (1980). “A
       criminal intent formed after a lawful entry will satisfy the offense of burglary by unlawfully
       remaining” (People v. Boone, 217 Ill. App. 3d 532, 533 (1991)), and a burglary by remaining
       can be proven by evidence that a defendant lawfully entered a store during business hours
       and “then secreted himself in the store until it had closed with the intent to steal” (People v.
       Vallero, 61 Ill. App. 3d 413, 415 (1978)). Contrary to the defendant’s contentions, however,
       evidence of “hiding or secreting” until a store closes is not required to sustain a conviction
       for burglary by remaining.
¶ 16       In People v. Glover, 276 Ill. App. 3d 934, 935 (1995), claiming that they had car trouble,
       the defendant and an associate entered a church on a Sunday morning and asked a member
       who was present if they could use a telephone. The church member “told the men there was
       no telephone in the area but that she would get the pastor if they would wait there.” Id. When
       she returned after summoning the pastor, the men were gone, and while following her, the

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       pastor saw them “leaving the building with vacuum cleaners in their arms.” Id. The vacuum
       cleaners came from “a storage area under the stairs by the back door of the church.” Id. The
       defendant was later convicted on a burglary charge alleging that, without authority, he had
       knowingly remained within the church with the intent to commit therein a theft. Id. at 934.
       On appeal from his conviction, the defendant argued that the State failed to prove beyond a
       reasonable doubt that he remained within the church without authority. Id. at 937. The
       appellate court disagreed and held that although the defendant was authorized to enter the
       church and wait where he had entered, he “no longer had the authority to remain in the
       church when he decided not to remain at the door as instructed and decided to go to another
       part of the church to steal the vacuum cleaners.” Id. at 938. Noting that the trier of fact
       “could have reasonably viewed defendant’s conduct in moving, without authority, to another
       part of the building to constitute the act of unlawfully remaining within a building he had
       previously been permitted to enter,” the court concluded as follows:
           “The evidence supported a finding that any original authority to enter the building was
           legally terminated by defendant’s unauthorized movements therein. His then-continued
           presence at another location in the church for the purpose of committing a theft would
           constitute the act of ‘remaining.’ After considering all the evidence in the light most
           favorable to the prosecution, we cannot conclude that no rational trier of fact could have
           found defendant guilty beyond a reasonable doubt.” Id. at 939.
¶ 17       Here, we find Glover analogous and controlling. Because the State conceded that the
       defendant entered Route 3 Liquors with authority, it was required to prove that he
       subsequently remained there without authority and with the intent to commit a theft. To that
       end, the evidence that the defendant entered the clearly marked employees-only office area
       where he stole the lottery tickets and money was more than sufficient to prove that, with the
       intent to commit a theft, he moved to a part of the store where he was not authorized to be.
       As the State notes on appeal, the implied authority to be in a store during business hours does
       not extend to areas designated as private or employees only. See, e.g., State v. Noel, 2008-
       0961, at 3 (La. App. 1 Cor. 11/14/08);997 So. 2d 879. We also note that the defendant made
       a stealthful entry into the office area and was essentially hiding while he was back there.
¶ 18       “When considering the sufficiency of the evidence, it is not the function of a reviewing
       court to retry the defendant. Rather, the relevant question is whether, after reviewing all of
       the evidence in the light most favorable to the prosecution, any rational fact finder could have
       found beyond a reasonable doubt the essential elements of the crime.” People v. Maggette,
       195 Ill. 2d 336, 353 (2001). Here, the State’s evidence established that the defendant
       unlawfully remained in Route 3 Liquors with the intent to commit therein a theft, and we
       accordingly affirm his conviction for burglary.

¶ 19                                    Alleged Hearsay
¶ 20       The defendant next argues that he was denied a fair trial by the erroneous admission of
       hearsay testimony elicited from three of the State’s witnesses. In response, the State
       maintains that the testimony in question was properly admitted and that, even assuming
       otherwise, any resulting error was harmless.


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¶ 21        At the trial, Officer Randy Lee of the Sauget police department testified that after an
       employee of Route 3 Liquors advised him that “someone had attempted to cash in one of the
       stolen tickets at a convenience store in Washington Park,” he relayed that information to
       Detective John Parisi of the Sauget police department. When overruling defense counsel’s
       objection to this testimony, the trial court ruled that the testimony was being admitted for the
       “limited purpose” of explaining the course of the police investigation and not “for the truth
       of the matter asserted.” The same occurred when Detective Parisi testified that he had been
       “informed by Officer Lee that a subject had tried to redeem one of the stolen lottery tickets
       at the Crown Food Store” and when Officer Jeffrey Waters of the Washington Park police
       department testified that he had assisted the Sauget police department with the arrest of “an
       alleged armed robber” at the store. On appeal, the defendant contends that the objected-to
       testimony of Lee, Parisi, and Waters was inadmissible hearsay that denied him a fair trial.
       We disagree.
¶ 22        “To qualify as hearsay, an out-of-court statement must be offered to establish the truth
       of the matter asserted.” People v. Simms, 143 Ill. 2d 154, 173 (1991). “Testimony about an
       out-of-court statement which is used for a purpose other than to prove the truth of the matter
       asserted in the statement is not ‘hearsay.’ ” Id. The supreme court has held that law
       enforcement officers “may recount the steps taken in the investigation of a crime, and may
       describe the events leading up to the defendant’s arrest, where such testimony is necessary
       and important to fully explain the State’s case to the trier of fact.” Id. at 174. Additionally,
       a law enforcement officer “may testify about his conversations with others, such as victims
       or witnesses, when such testimony is not offered to prove the truth of the matter asserted by
       the other, but is used to show the investigative steps taken by the officer.” Id. “Testimony
       describing the progress of the investigation is admissible even if it suggests that a
       nontestifying witness implicated the defendant.” Id. “The admissibility of evidence is within
       the sound discretion of the trial court, and its ruling will not be reversed unless there has been
       an abuse of that discretion.” People v. Williams, 181 Ill. 2d 297, 313 (1998). “An abuse of
       discretion occurs where the trial court’s decision is arbitrary, fanciful or unreasonable
       [citation] or where no reasonable person would agree with the position adopted by the trial
       court [citations].” People v. Becker, 239 Ill. 2d 215, 234 (2010).
¶ 23        Here, applying these principles to the testimony at issue, we conclude that the testimony
       was not hearsay, and the trial court did not abuse its discretion in admitting it for the limited
       purpose of describing the course of the investigation that led to the defendant’s arrest. Simms,
       143 Ill. 2d at 174. When overruling defense counsel’s objections, the trial court specifically
       instructed the jury that it could only consider the testimony for that limited purpose and was
       not to consider it for the truth of the matters asserted. “We must presume, absent a showing
       to the contrary, that the jury followed the trial judge’s instructions in reaching a verdict.” Id.
       Moreover, even assuming, arguendo, that the jury disregarded the trial court’s instructions
       and considered the testimony as evidence that the defendant was in possession of a stolen
       lottery ticket and was an “alleged armed robber,” any resulting error was harmless in light
       of the overwhelming evidence of the defendant’s guilt. See People v. McKown, 236 Ill. 2d
       278, 311 (2010).


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¶ 24                                      Sentence Credit
¶ 25       The defendant lastly argues that although he was arrested and taken into custody on
       February 20, 2009, when calculating the credit that he was entitled to receive for time spent
       in custody prior to sentencing, the trial court mistakenly used February 21, 2009, as the start
       date. The State concedes that the defendant is correct, and we accordingly order that his
       mittimus be amended to reflect a start date of February 20, 2009.

¶ 26                                      CONCLUSION
¶ 27       The State proved the defendant’s guilt beyond a reasonable doubt, and he was not denied
       a fair trial by the admission of the testimony that he complains of on appeal. Accordingly,
       we hereby affirm the defendant’s conviction. We further order that the defendant’s mittimus
       be amended as directed. See People v. Starnes, 374 Ill. App. 3d 132, 144-45 (2007).

¶ 28      Affirmed; mittimus amended.




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