                                         2018 IL App (3d) 150352

                               Opinion filed January 29, 2018
     _____________________________________________________________________________

                                                  IN THE

                                   APPELLATE COURT OF ILLINOIS

                                            THIRD DISTRICT

                                                   2018

     THE PEOPLE OF THE STATE OF             )     Appeal from the Circuit Court
     ILLINOIS,                              )     of the 14th Judicial Circuit,
                                            )     Whiteside County, Illinois.
           Plaintiff-Appellee,              )
                                            )
           v. 	                             )     Appeal No. 3-15-0352

                                            )     Circuit No. 14-CF-254

     DARREN JOHNSON,                        )

                                            )     Honorable John L. Hauptman,
           Defendant-Appellant.             )     Judge, Presiding.
     _____________________________________________________________________________

            JUSTICE SCHMIDT delivered the judgment of the court, with opinion. 

            Presiding Justice Carter and Justice Holdridge concurred in the judgment and opinion.


                                                OPINION

¶1          On July 22, 2014, Rock Falls police arrested defendant, Darren Johnson, for shoplifting

     $76.91 worth of clothing from a local Wal-Mart. The State charged defendant with retail theft

     and burglary. After his first trial resulted in a hung jury, a second jury acquitted defendant of

     retail theft but convicted him of burglary. The Whiteside County circuit court sentenced

     defendant to eight years in prison. We reverse.

¶2                                           BACKGROUND

¶3          The State charged defendant by information with burglary and retail theft on July 23,

     2014. Defendant waived his right to counsel on August 26. His first trial resulted in a hung jury
     on October 22. His second trial began on November 18. Before opening statements, the trial

     court prohibited the jury from taking notes. The judge told the jury: “I do not allow note taking

     ***. I am a firm believer *** in the collective memory of the jury. *** [A]nd I do not want you

     to be distracted by note taking.”

¶4          During the State’s case, Amanda Peppers testified that she saw defendant and another

     man inside the Rock Falls Wal-Mart on July 22, 2014, while she was shopping with her nephew.

     The two men “were kind of walking around with a bunch of stuff in their hands,” and “they

     would kind of veer off in other directions” when Peppers approached them. As she left the store

     and walked to her car, Peppers saw the two men retrieve backpacks from behind vending

     machines outside the store’s entrance. The men removed stolen items that they concealed in their

     clothes and placed them in the backpacks. Peppers called the police.

¶5          Before police arrived, Peppers saw the men walk toward a Coinstar machine in the

     store’s vestibule. After the men briefly reentered the store without their backpacks, Peppers saw

     defendant exit the store, retrieve his backpack, and walk toward the parking lot.

¶6          Officer James Hollaway of the Rock Falls Police Department testified that he responded

     to Peppers’s call with Sergeant John Worcester and Officer Jarrett Ludwig at 7:16 p.m. While

     Worcester and Ludwig walked toward the store’s entrance, Hollaway sat in the parking lot and

     observed defendant retrieve his backpack from atop the Coinstar machine before he walked

     toward the parking lot. Hollaway stopped defendant to ask him if he took items from the store

     without paying for them; defendant lowered his head and answered “yes.”

¶7          Ludwig testified that he escorted defendant to the manager’s office inside the store. He

     read defendant his Miranda rights with Worcester and Donna Courtney, the Wal-Mart manager,




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       present. Ludwig searched defendant and found 14 items of girls’ clothing in his backpack and on

       his person.

¶8            Courtney testified that defendant told her he took the clothes because his ex-girlfriend

       prohibited him from seeing their daughter unless he bought her school clothes. Courtney

       described defendant as “very distraught.” He offered to clean the windows, clean the floor, or

       provide whatever labor necessary to repay the store for the stolen clothes. Courtney processed a

       receipt showing the stolen items’ retail value totaled $76.91.

¶9            She also copied footage from six surveillance cameras onto a digital versatile disc

       (DVD). None of the cameras covered the girls’ clothing section. The State played portions of the

       DVD that contained footage from four of the six cameras. In relevant part, the video showed

       defendant entering the vestibule area, placing a backpack on the Coinstar machine, and retrieving

       his backpack when he left the store. Defendant elected not to testify on his own behalf.

¶ 10          During the first day of deliberations, the jury sent the court four notes. The first note

       requested to see Peppers’s written police statement (which the State did not admit into evidence)

       and to review Courtney’s DVD. With the parties’ consent, the court declined the jury’s requests.

       The second note requested Ludwig’s police report. The court declined the jury’s request without

       objection. The third note reported that the jury reached a verdict on one charge but remained split

       on the other.

¶ 11          The jury’s final note reported that the jury reached an impasse; the jury again requested

       to review Courtney’s DVD to help resolve the deadlock. Without objection, the court again

       declined the jury’s request to review the DVD. The court also issued a Prim instruction (see

       People v. Prim, 53 Ill. 2d 62, 71-76 (1972)). At 10:20 p.m. on November 19, the court sent the

       jury home.



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¶ 12          Proceedings resumed at 9 a.m. the following morning. At 10:30 a.m., the jury returned its

       verdict. It found defendant not guilty of retail theft but guilty of burglary. The court appointed

       posttrial counsel pursuant to defendant’s request.

¶ 13          The court denied defendant’s posttrial motion before his sentencing hearing on March 27,

       2015. Although burglary is a Class 2 felony with a three-to-seven-year sentencing range (720

       ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), the court sentenced

       defendant as a Class X offender because his criminal record contained prior theft and burglary

       felony convictions within 20 years. 730 ILCS 5/5-4.5-95(b) (West 2014). The court sentenced

       defendant to eight years in prison. It denied defendant’s motion to reconsider his sentence on

       May 13, 2015.

¶ 14          On appeal, defendant raises four challenges. The first two challenges attack the

       sufficiency of the State’s evidence on both burglary elements—entering the store without

       authority and intending to commit theft therein (720 ILCS 5/19-1 (West 2014)). Defendant also

       seeks a new trial because the court violated section 115-4(n) of the Code of Criminal Procedure

       of 1963 (Code) (725 ILCS 5/115-4(n) (West 2014)) when it prohibited jurors from taking notes

       during trial. Finally, he seeks to reduce his monetary assessments from $557 to $490 because the

       trial court “failed to grant the mandatory $5-per-day credit against three [assessments].” We

       address the relevant issues below.

¶ 15                                              ANALYSIS

¶ 16                                     I. Sufficiency of the Evidence

¶ 17          Defendant does not dispute the facts underlying his conviction. Instead, he claims that

       they cannot support a burglary conviction as a matter of law. The crux of his argument is that he

       could not enter Wal-Mart “without authority” because he entered and exited the store during



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       business hours and remained in designated public areas. This argument presents a question of

       statutory construction that we review de novo. People v. Bradford, 2016 IL 118674, ¶¶ 14-15.

¶ 18          The burglary statute identifies two ways in which a person commits the offense: “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.” 720 ILCS 5/19-1(a) (West 2014). To commit either manifestation of burglary, the

       offender must lack authority to be present within the building.

¶ 19          Defendant relies on Bradford, 2016 IL 118674, where our supreme court held that an

       offender commits “burglary by remaining” only if “he exceeds his physical authority to be on the

       premises.” Id. ¶ 31. Defendant claims Bradford applies to either manifestation of burglary: “[A]n

       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.” Id.

¶ 20          The State argues that defendant never entered the building lawfully; therefore, Bradford

       does not require reversal. The State relies on the “limited-authority doctrine,” which states that

       “one’s otherwise valid authority to be in certain premises is vitiated when that individual acts in

       a manner inconsistent with the authority originally granted.” People v. Wilson, 155 Ill. 2d 374,

       378 (1993). According to the State, shoplifters who form the intent to steal before entering a

       store lack authority to enter. They commit burglary the instant they cross the building’s

       threshold.

¶ 21                                    A. The Limited Authority Doctrine

¶ 22          The limited authority doctrine, relied upon by the State, took shape before Illinois passed

       its retail theft statute in 1975 (720 ILCS 5/16-25 (West 2014)). In People v. Schneller, 69 Ill.

       App. 2d 50 (1966), the State charged defendant with burglary after he stole antique guns from a



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       public museum’s showcase. Police responded to an alarm at the museum. They found a

       screwdriver, long-nosed pliers, sunglasses, a handkerchief, a flashlight, an automatic pistol, and

       the previously displayed antique guns in a duffle bag on the floor. A museum employee testified

       that he encountered the defendant after working hours two days prior—in a restricted area where

       the museum stored “prized possessions.” Although defendant attempted the heist during working

       hours, the court held that “it would be contrary to reason and ordinary human understanding” to

       conclude the defendant possessed authority to enter the museum for “unlawful or criminal”

       purposes. Id. at 54. For clarity’s sake, we make clear that we are not questioning the holding in

       Schneller, as there the court addressed materially different facts.

¶ 23          Two years later, our supreme court applied the doctrine in People v. Weaver, 41 Ill. 2d

       434 (1968). In Weaver, police discovered the defendant standing near an open laundromat

       vending machine. Police found keys to the vending machine inside the defendant’s vehicle and

       $50 worth of coins in his pockets. The court held that “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.” Id. at 439. Notably, the defendants in Schneller and Weaver

       both used burglary tools to access nonpublic areas—a locked museum display and a vending

       machine. These facts distinguish those cases from the one before us.

¶ 24                                      B. Bradford and Retail Theft

¶ 25          The supreme court recently held that the limited authority doctrine does not apply in

       “burglary by remaining” shoplifting cases. Bradford, 2016 IL 118674. In Bradford, the

       defendant walked into a Wal-Mart with another man and immediately stole two DVDs from a

       display near the cash registers. He took these DVDs to the customer service desk and

       “exchanged” them for a Wal-Mart gift card. Next, he walked to the men’s clothing department



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       where he selected a hat, removed the price tag, and wore it. He then retrieved a pair of shoes

       from the shoe department and placed them in a Wal-Mart bag that he concealed in his pocket—

       presumably to represent that he already purchased the shoes. He wore the hat and carried the

       shoes to the cash registers, where he rejoined the other man. He paid for the man’s merchandise

       with the gift card he received in exchange for the DVDs and exited the store without paying for

       the hat or shoes.

¶ 26          The appellate court, citing Weaver, applied the limited authority doctrine and held that

       the defendant remained in the store without authority once he formed the intent to shoplift.

       People v. Bradford, 2014 IL App (4th) 130288, ¶¶ 31, 33-34. The supreme court reversed the

       appellate court’s decision.

¶ 27          The court emphasized that the legislature enacted the retail theft statute in 1975, 14 years

       after enacting the burglary statute and 7 years after Weaver. Based on this timeline, “it strains

       logic to presume that the legislature intended most incidents of retail theft to be prosecuted as

       burglaries.” Bradford, 2016 IL 118674, ¶ 28. The court reasoned that charging every shoplifter

       with burglary by remaining would “effectively negat[e] the retail theft statute.” Id. ¶ 27. Because

       stores are often “building[s]” or trailers (720 ILCS 5/19-1(a) (West 2014)), virtually every retail

       theft would also constitute a burglary if one’s “authority” hinged on whether he or she intended

       to shoplift merchandise.

¶ 28          To be fair, a long line of cases supports the State’s position that one who intends to

       commit retail theft lacks authority to enter a store. See, e.g. People v. Rudd, 2012 IL App (5th)

       100528, ¶ 13; People v. Bridgewater, 388 Ill. App. 3d 787, 801 (2009); People v. Szydloski, 283

       Ill. App. 3d 274, 278 (1996); People v. Smith, 264 Ill. App. 3d 82, 87 (1994); People v. Hopkins,

       229 Ill. App. 3d 665, 670-71 (1992); People v. Stager, 168 Ill. App. 3d 457, 459 (1988); People



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        v. Boose, 139 Ill. App. 3d 471, 473 (1985). As explained below, we feel that Bradford changes

        the law and effectively overrules the law upon which the State relies.

¶ 29           The retail theft statute’s punishments range from a Class A misdemeanor to a Class 2

        felony. 720 ILCS 5/16-25 (West 2014). The statute considers several factors, including the value

        and nature of the stolen merchandise, the defendant’s criminal history, and how the defendant

        stole the property. Id.; Bradford, 2016 IL 118674, ¶ 27. A first-time minor shoplifting offense

        under the retail theft statute could warrant up to 364 days in jail.

¶ 30           On the other hand, the burglary statute “does not consider any of these proportionality

        factors.” Bradford, 2016 IL 118674, ¶ 27. Thus, the limited authority doctrine provides a

        prosecutor discretion to charge and convict a first time offender who enters a store with intent to

        steal a candy bar with burglary, a felony, or retail theft, a misdeameanor. Courts 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; “ ‘prosecutorial discretion is not a reason for courts to give improbable

        breadth to criminal statutes.’ ” Freeman v. Quicken Loans, Inc., 566 U.S. 624, 633 (2012)

        (quoting Abuelhawa v. United States, 556 U.S. 816, 823 n. 3 (2009)).

¶ 31	          Another reason not to “give improbable breadth” to our burglary statute in retail theft

        cases is that the retail theft statute occupies the field of shoplifting crimes. Particularly relevant

        to this case, the statute covers situations where shoplifters knowingly transfer merchandise “to

        any other container with the intention of depriving the merchant of the full retail value.” 720

        ILCS 5/16-25(a)(3) (West 2014). It also covers situations where shoplifters knowingly use a

        “theft detection shielding device,” which is “any laminated or coated bag or device designed and

        intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.”



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       Id. § 16-25(a)(7), (e). Obviously, persons who enter a store with any of these items formed the

       intent to commit theft before entering. The statute contemplates all manifestations of retail theft,

       regardless of whether shoplifters form the requisite intent before or after entering the store.

¶ 32                              C. Bradford’s Application to the Instant Case

¶ 33           The State claims that this case is distinguishable from Bradford because the State charged

       defendant with “burglary by entering,” whereas Bradford addressed “burglary by remaining.”

       This attempt to distinguish Bradford does not logically follow the supreme court’s rationale.

       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. We suspect that it is a miniscule percentage of shoplifters who

       form the intent to steal only after entering a store.

¶ 34           The State’s position also ignores the purpose for criminalizing burglary. The “crime of

       burglary reflects a considered judgment that especially severe sanctions are appropriate for

       criminal invasion of premises under circumstances likely to terrorize occupants.” Model Penal

       Code § 221.1 (Explanatory Note). In other words, burglary aims to punish circumstances where a

       trespass and unwelcomed criminal intent combine to harm the victim more than either individual

       crime; the whole is greater than the sum of its parts.

¶ 35           Applying the limited authority doctrine to shoplifting cases disregards the purpose of

       criminalizing burglary, negates the retail theft statute, and conflicts with Bradford. We hold that

       Bradford’s physical authority test applies to all retail theft cases, regardless of when the

       defendant forms the intent to shoplift.

¶ 36           In this case, the State alleged that defendant stole $76.91 worth of merchandise from

       Wal-Mart. Defendant entered the store during its business hours, remained in public areas while



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       inside, and left the store before it closed. He never exceeded his physical authority. We reverse

       his burglary conviction.

¶ 37                                           II. Juror Note Taking

¶ 38           Although we need not decide the other issues presented, we feel compelled to briefly

       address defendant’s claim regarding juror note taking. Before opening statements, the trial court

       told the jury:

                             “I, I do not allow note taking and I have a, I have a reason for

                        this. I am a firm believer in the ability of jurors to remember the

                        testimony and I, I am a firm believer in the collective memory of the

                        jury. That’s why we have 12 people, I mean it’s, it’s meant to be give

                        and take and that sort of thing, and my concern about taking notes is

                        that sometimes people are so busy concentrating on taking, on writing

                        down what was said that they may miss something else that was said.

                        Or, somebody might be worried that, well, this lady or this man took

                        better notes than me. Well that’s what the whole process is about, is to

                        work through these things collectively, and I do not want you to be

                        distracted by note taking.”

¶ 39           Section 115-4(n) of the Code states, inter alia: “The members of the jury shall be entitled

       to take notes during the trial, and the sheriff *** shall provide them with writing materials for

       this purpose.” (Emphasis added.) 725 ILCS 5/115-4(n) (West 2014). This statutory provision is

       mandatory. People v. Strong, 274 Ill. App. 3d 130, 135-37 (1995). It is a measure to protect

       defendants’ constitutional rights to fair trials. It is also the jurors’ right. See People v. Layhew,

       139 Ill. 2d 476, 492-93 (1990). Trial courts lack discretion to ignore this direct mandate.



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¶ 40                                       CONCLUSION

¶ 41         For the foregoing reasons, we reverse the judgment of the circuit court of Whiteside

       County.

¶ 42         Reversed.




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