                           ILLINOIS OFFICIAL REPORTS
                                          Appellate Court




                           People v. Rudd, 2012 IL App (5th) 100528




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



District & No.             Fifth District
                           Docket No. 5-10-0528


Filed                      June 6, 2012


Held                       Defendant’s conviction for burglary based on the theft of two vacuum
(Note: This syllabus       cleaners from a retail store was upheld on appeal over defendant’s
constitutes no part of     contention that the State failed to prove that he entered the store with the
the opinion of the court   intent to commit a theft, since the evidence showed that shortly after
but has been prepared      defendant and a companion entered the store, his companion purchased
by the Reporter of         two vacuums identical to the vacuums defendant took, the companion left
Decisions for the          the store with the vacuums he purchased, he then returned and gave
convenience of the         defendant the receipt he had obtained, and then defendant attempted to
reader.)
                           leave the store without paying for the vacuums in his cart, and that
                           evidence was sufficient to allow a rational jury to reasonably infer that
                           defendant intended to commit the theft when he entered the store.


Decision Under             Appeal from the Circuit Court of Madison County, No. 09-CF-377; the
Review                     Hon. Janet Heflin, Judge, presiding.



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

                            Thomas D. Gibbons, State’s Attorney, of Edwardsville (Patrick Delfino,
                            Stephen E. Norris, and Patrick D. Daly, all of State’s Attorneys Appellate
                            Prosecutor’s Office, of counsel), for the People.


Panel                       JUSTICE CHAPMAN delivered the judgment of the court, with opinion.
                            Presiding Justice Donovan and Justice Spomer concurred in the judgment
                            and opinion.




                                              OPINION

¶1          The defendant, Melvin Rudd, appeals his conviction for burglary. The charges stemmed
        from the theft of two vacuum cleaners from a Walmart store. The defendant argues that (1)
        the evidence was insufficient to prove that he entered the store with the intent to commit a
        theft because the only evidence of his intent was evidence of the theft itself and (2) he was
        entitled to four additional days of sentence credit for time spent in pretrial detention. We
        affirm the defendant’s conviction but modify the order to reflect four days of additional
        sentence credit.
¶2          The defendant was arrested at a Walmart store in Collinsville, Illinois, after stealing two
        vacuum cleaners. He was charged with retail theft (merchandise with a value in excess of
        $150) (720 ILCS 5/16A-3(a) (West 2008)) and burglary (720 ILCS 5/19-1(a) (West 2008)).
¶3          At the defendant’s trial, store loss prevention officer Michael Reitz testified that he first
        noticed the defendant when he saw the defendant and another individual pushing carts in the
        vacuum cleaner aisle. Reitz did not see the defendant or the other suspect enter the store. He
        saw both men put two identical items into their carts. Those items were a Hoover vacuum
        cleaner and a Bissell steam cleaner, which were two of the most expensive vacuum cleaners
        in the store. Reitz continued to observe the two suspects. They remained in the vacuum
        cleaner aisle for approximately five minutes. During this time, Reitz did not hear or observe
        any conversation between them.
¶4          Reitz testified that after five minutes, one of the suspects headed toward the cash
        registers. At this point, Reitz was the only loss prevention officer in the store. Although his
        supervisor was working that day, she had left the store for her lunch break. Thus, Reitz
        explained, he was unable to follow both suspects. He decided to follow the defendant, the
        suspect who did not head toward the cash registers. Reitz explained that he made this choice
        because he believed that the defendant was not going to pay for the merchandise in his cart.
        He testified that he wanted to be sure to catch at least one of the two suspects.

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¶5          Reitz testified that after the other suspect left, the defendant went to the lawn and garden
       section of the store and continued to look at merchandise, but he did not put any other items
       in his cart. A few minutes later, the other suspect came into the lawn and garden section and
       handed the defendant a receipt. The two suspects were together for approximately two to
       three minutes. When they separated, Reitz again followed the defendant.
¶6          Reitz saw the defendant take an indirect route to the front of the store and then head
       toward the exit. Reitz went ahead to the vestibule so he could apprehend the defendant when
       he attempted to leave the store with the vacuum cleaners. He testified that a store greeter
       asked the defendant to show her his receipt as he left the store. The greeter allowed the
       defendant to leave after he showed her the receipt. Reitz then approached the defendant and
       asked to see his receipt. He asked the defendant to accompany him to the loss prevention
       office. The defendant began to walk with Reitz toward the office, but halfway to the back of
       the store, he turned around and ran toward the exit. Reitz was able to apprehend the
       defendant with the assistance of two other store employees. Reitz then called the Collinsville
       police department to report the theft.
¶7          Reitz testified that although the other suspect paid for the vacuum cleaners with a debit
       card, no effort was made to find out who he was and charge him in the theft. The receipt
       from the two vacuum cleaners was entered into evidence. It showed that the total value of
       the two items was $513.72.
¶8          The State played a video recording from the store’s security cameras. Although the
       recording itself was not admitted into evidence and is not part of the record on appeal, Reitz
       described for jurors what they were seeing. In relevant part, Reitz noted that the recording
       shows the defendant and the other suspect getting out of the same car and entering the store
       together. It also shows the other suspect leaving the store with the vacuum cleaners in a cart.
       Reitz then noted that the recording shows the other suspect pulling his car alongside the
       entrance to the lawn and garden section, getting out of the car, and entering the store through
       the lawn and garden entrance.
¶9          Officer Steven Pyrdeck also testified at the defendant’s trial. He was the officer who
       responded to Reitz’s call, placed the defendant under arrest, and booked him into the county
       jail. Officer Pyrdeck explained that the standard booking procedure includes preparing an
       inventory of all the personal belongings in a defendant’s possession at the time of arrest. He
       testified that the inventory of the defendant’s possessions here did not include cash or any
       credit cards. The inventory was entered into evidence. The inventory list also did not include
       a debit card.
¶ 10        The jury found the defendant guilty of both charges. The court initially sentenced the
       defendant to seven years on each charge; however, the court subsequently granted, in part,
       a motion to reduce sentence filed by the defendant. In its amended order, the court sentenced
       the defendant to three years on the charge of retail theft, to be served concurrently with the
       seven-year sentence for burglary. This appeal followed.
¶ 11        The defendant argues that the evidence was insufficient to support his burglary
       conviction. We review challenges to the sufficiency of the evidence in the light most
       favorable to the State. We will reverse a conviction on the basis of insufficient evidence only


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       where the evidence is so insubstantial that no rational trier of fact could find each element
       of the charged offense beyond a reasonable doubt. People v. Smith, 185 Ill. 2d 532, 541, 708
       N.E.2d 365, 369 (1999).
¶ 12        In Illinois, there are two different ways the State may charge burglary. The State may
       allege that the defendant knowingly entered a building unlawfully with the intent to commit
       a felony or theft. Alternatively, the State may allege that the defendant entered the building
       lawfully, but then knowingly remained unlawfully with the intent to commit a felony or theft.
       People v. Boone, 217 Ill. App. 3d 532, 533, 577 N.E.2d 788, 789 (1991).
¶ 13        Under either theory, the State must generally show both that the defendant entered or
       remained unlawfully and that he did so with the requisite intent. People v. Bailey, 188 Ill.
       App. 3d 278, 284, 543 N.E.2d 1338, 1341 (1989) (citing People v. Weaver, 41 Ill. 2d 434,
       439, 243 N.E.2d 245, 248 (1968)). However, in the context of a building open to the public,
       such as a retail store, the permission to enter does not extend to people who enter for
       purposes that are inconsistent with the purpose for which the building is open to the public.
       People v. Blair, 52 Ill. 2d 371, 374, 288 N.E.2d 443, 445 (1972); Weaver, 41 Ill. 2d at 439,
       243 N.E.2d at 248. Thus, in a public building case, the State need not prove unlawful
       presence apart from proof of the defendant’s intent. Bailey, 188 Ill. App. 3d at 285, 543
       N.E.2d at 1342.
¶ 14        Here, the State charged the defendant with burglary by unlawfully entering the
       Collinsville Walmart. Thus, the State was required to prove that he intended to commit the
       theft when he entered. See People v. Perruquet, 173 Ill. App. 3d 1054, 1060, 527 N.E.2d
       1334, 1338 (1988) (citing Weaver, 41 Ill. 2d at 439, 243 N.E.2d at 248). Although intent, like
       every other element of the offense, must be proven beyond a reasonable doubt, the defendant
       acknowledges that it may be proven through circumstantial evidence. People v. Obrochta,
       149 Ill. App. 3d 944, 949, 500 N.E.2d 1059, 1062 (1986). Indeed, circumstantial evidence
       is most often the only way to prove a defendant’s intent to commit a theft or other crime.
       People v. Richardson, 104 Ill. 2d 8, 13, 470 N.E.2d 1024, 1027 (1984). We emphasize that
       the question is not whether any possible innocent explanation exists, but rather, the question
       is whether the evidence was sufficient to allow a rational jury to reasonably infer that the
       defendant intended to commit the theft when he entered the store. See Richardson, 104 Ill.
       2d at 13, 470 N.E.2d at 1027. We find that it was.
¶ 15        Here, the defendant and his cohort acted in an orchestrated plan to steal the two vacuum
       cleaners. Time stamps on the security recording showed that the defendant was only in the
       store for a total of 10 minutes. During this brief time, several steps had to take place for the
       defendant and his accomplice to commit the theft. First, they went to the vacuum cleaner
       aisle and put identical vacuum cleaners in their carts. Then the accomplice paid for the
       vacuum cleaners, left the store, and returned through the separate entrance to the lawn and
       garden section. Meanwhile, the defendant went to the lawn and garden section, where the
       other man found him and handed him the receipt. The defendant then attempted to leave the
       store with the vacuum cleaners and the receipt for identical merchandise. The idea that the
       two men decided on this carefully orchestrated plan spontaneously after entering the store
       is simply not plausible. Our conclusion is bolstered by Reitz’s testimony that the two men
       did not appear to be conversing with each other at any point.

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¶ 16       The defendant contends that his entry into the store was “unremarkable” and “similar to
       that of millions of others.” However, he offers no argument to support this conclusion. At
       oral argument, the defendant pointed out–correctly–that the issue in this case is whether the
       State proved that he and the other suspect came up with their plan to steal the vacuum
       cleaners before entering the store. As we have already found, this is the most rational
       inference to be drawn from the evidence of their actions once inside the store. See
       Richardson, 104 Ill. 2d at 12-13, 470 N.E.2d at 1026-27 (explaining that jurors may rely on
       reasonable inferences drawn from the evidence presented, and finding the evidence sufficient
       where intent to commit a theft was the most plausible explanation for the defendant’s
       actions). We find that the evidence was sufficient to prove beyond a reasonable doubt that
       the defendant entered the store with the intent to commit the theft.
¶ 17       The defendant next contends that he is entitled to four additional days of credit against
       his sentence for time spent in custody prior to trial. After his arrest, the defendant spent four
       days in custody before being released on a recognizance bond. He was later arrested again
       and spent 20 days in custody before being released on bond. The sentencing order gives the
       defendant credit for only 20 days in custody. The State concedes that the defendant is entitled
       to 24 days of sentence credit, and we agree. See 730 ILCS 5/5-8-7(b) (West 2008).
       Therefore, pursuant to this court’s authority under Illinois Supreme Court Rule 366(a) (eff.
       Feb. 1, 1994), we amend the order to reflect 24 days of sentence credit for time spent in
       pretrial custody.
¶ 18       For the foregoing reasons, we affirm the defendant’s conviction and amend the
       sentencing order to reflect 24 days of sentence credit.

¶ 19       Affirmed as modified.




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