                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




                           People v. Dillavou, 2011 IL App (2d) 091194




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    JEFFREY R DILLAVOU, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-09-1194


Rule 23 Order filed        July 27, 2011
Rule 23 Order
withdrawn                  September 28, 2011
Opinion filed              September 28, 2011


Held                       The evidence was sufficient to sustain defendant’s conviction for
(Note: This syllabus       residential burglary based on his conduct in remaining, without authority,
constitutes no part of     inside a residence in which he was performing painting work for a
the opinion of the court   general contractor and taking a pouch containing a camera that belonged
but has been prepared      to a resident, and the appellate court rejected defendant’s arguments that
by the Reporter of         his authority to enter the house was never withdrawn and that there was
Decisions for the          no evidence he intended to take the camera before he entered or that he
convenience of the         stayed in the house after forming the intent to take the camera.
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 09-CF-1551; the
Review                     Hon. Peter J. Dockery, Judge, presiding.



Judgment                   Affirmed.
Counsel on                   Alan D. Goldberg and Emily E. Filpi, both of State Appellate Defender’s
Appeal                       Office, of Chicago, for appellant.

                             Robert B. Berlin, State’s Attorney, of Wheaton (Lawrence M. Bauer and
                             Adam D. Young, both of State’s Attorneys Appellate Prosecutor’s Office,
                             of counsel), and Constance Augsburger, of Mt. Morris, for the People.


Panel                        PRESIDING JUSTICE JORGENSEN delivered the judgment of the
                             court, with opinion.
                             Justices McLaren and Bowman concurred in the judgment and
                             opinion.




                                             OPINION
¶1          Following a bench trial, defendant, Jeffrey R. Dillavou, was convicted of residential
        burglary (720 ILCS 5/19-3(a) (West 2008))1, and he was sentenced to four years’
        imprisonment. On appeal, defendant contends that he was not proved guilty beyond a
        reasonable doubt. We affirm.
¶2          The facts relevant to resolving this appeal are as follows. In June 2009, defendant was
        hired by a general contractor to do work on the Naperville home of Joseph and Sandra
        Phelan. According to Sandra, work on the home was limited to replacing windows in the
        master bedroom. Defendant’s job included priming and painting the trim on those
        windows. Defendant testified that, in addition to the master bedroom windows, his boss,
        Matthew Newman, was installing a window sill for a window in the bathroom next to the
        Phelans’ kitchen. Sandra allowed defendant in her home and outside of it in order to
        complete the work related to replacing the master bedroom windows. She did not give
        defendant permission to be in her home for any other purpose.
¶3          On June 18, 2009, at around 4 p.m., defendant finished painting the window trim in
        the Phelans’ master bedroom. In the process of cleaning up his supplies for the day,
        which included washing the paint brushes he had used and closing paint cans, defendant
        noticed a red pouch sitting on the kitchen counter. Defendant believed that the red pouch
        contained a tape measure or “something along those lines.” Although no other tools were
        on the kitchen counter, in the bathroom next to the kitchen, approximately 10 feet from

                1
                 Defendant was charged with knowingly and without authority entering the dwelling place
        of another with the intent to commit a theft therein and knowingly and without authority remaining
        in the dwelling place of another with the intent to commit a theft therein. The trial court ultimately
        found defendant not guilty of entering with the intent to commit a theft therein but guilty of
        remaining with the intent to commit a theft therein.

                                                     -2-
     the red pouch, were a hammer and other tools that Newman had been using to install the
     window sill. Defendant grabbed the hammer and other tools in the bathroom, in addition
     to the red pouch sitting on the kitchen counter, and brought them out to the attached
     garage. Defendant left the paint in the garage and put the tools, but not the red pouch, in
     Newman’s truck. Defendant took the red pouch with him. After leaving the Phelans’
     home, defendant discovered that the red pouch contained a camera.
¶4        At around 8 p.m. that night, defendant was involved in a traffic-related offense.
     Officers who responded to the scene found the camera in the car. When defendant was
     asked who owned the camera, he gave four conflicting statements. These statements
     included that he owned the camera, that the camera belonged to his boss, that defendant
     found the camera, and that defendant stole the camera.
¶5        Around June 19, 2009, the police showed Joseph the camera they recovered from
     defendant. Joseph told the police that the camera belonged to Sandra, and photographs
     saved on the camera depicted Joseph with his family. After receiving the camera, Joseph
     informed Sandra that the police recovered her camera from defendant. Sandra indicated
     that she kept the camera in plain view in a red pouch on the counter in the Phelans’
     kitchen. The counter was located approximately 15 feet from the door that led from the
     house to the garage. This was the door that defendant and the other workmen used to
     enter and exit the Phelans’ home.
¶6        Relying on the limited-authority doctrine, the trial court found defendant guilty of
     residential burglary. In doing so, the trial court found defendant incredible, commenting
     specifically that it believed that defendant lied when he said he thought that the red pouch
     contained a tape measure.
¶7        Soon thereafter, defendant moved for a new trial, arguing, among other things, that
     the State failed to prove him guilty beyond a reasonable doubt of residential burglary,
     because the evidence did not establish that he lacked the authority to be in the Phelans’
     home and that he remained in the home after taking the camera. The trial court denied the
     motion. Defendant subsequently was sentenced, and this timely appeal followed.
¶8        On appeal, defendant argues that he was not proved guilty of residential burglary
     beyond a reasonable doubt. When assessing the sufficiency of the evidence, we ask
     whether, when viewing all the evidence in the light most favorable to the prosecution, any
     rational trier of fact could have found the defendant guilty beyond a reasonable doubt.
     People v. Anderson, 188 Ill. 2d 384, 392 (1999). The trier of fact is responsible for
     determining the witnesses’ credibility, weighing their testimony, and deciding what
     reasonable inferences to draw from the evidence. People v. Lamon, 346 Ill. App. 3d 1082,
     1089 (2004). A reviewing court will not substitute its judgment for that of the trier of fact
     on questions concerning the sufficiency of the evidence, unless the evidence is so
     unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of guilt.
     People v. Ranstrom, 304 Ill. App. 3d 664, 678 (1999).
¶9        A person commits residential burglary in one of two ways. See People v. Boone, 217
     Ill. App. 3d 532, 533 (1991); People v. Peace, 88 Ill. App. 3d 1090, 1093 (1980).
     Specifically, the residential burglary statute provides:


                                              -3-
           “A person commits residential burglary who knowingly and without authority enters
           or knowingly and without authority remains within the dwelling place of another, or
           any part thereof, with the intent to commit therein a felony or theft.” 720 ILCS 5/19-
           3(a) (West 2008).
¶ 10       Here, defendant was not convicted under the first part of the residential burglary
       statute. That is, defendant was not found guilty of “knowingly and without authority
       enter[ing]” the Phelans’ home “with the intent to commit therein a *** theft.” 720 ILCS
       5/19-3(a) (West 2008); see Peace, 88 Ill. App. 3d at 1093. Rather, defendant was
       convicted under the second part of the residential burglary statute. Specifically, defendant
       was convicted of “knowingly and without authority remain[ing] within” the Phelans’
       home “with the intent to commit therein a *** theft.” 720 ILCS 5/19-3(a) (West 2008);
       see Peace, 88 Ill. App. 3d at 1093.
¶ 11       Resolving whether defendant was proved guilty beyond a reasonable doubt of
       residential burglary requires us to interpret the portion of the residential burglary statute
       under which defendant was convicted. When interpreting a statute, we must ascertain and
       give effect to the legislature’s intent. People v. Jones, 214 Ill. 2d 187, 193 (2005). The
       best indication of the legislature’s intent is the language of the statute itself. People v.
       Belk, 203 Ill. 2d 187, 192 (2003). When the statutory language is clear and unambiguous,
       we must apply it as written, without resorting to any extrinsic aids of statutory
       construction. People v. Williams, 239 Ill. 2d 503, 506 (2011). Moreover, we cannot read
       into a statute exceptions, limitations, or conditions for which the legislature did not
       provide. Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d 433, 441 (2010).
¶ 12       The residential burglary statute’s clear and unambiguous language at issue here
       indicates that a defendant is guilty of residential burglary if he remains in the home of
       another with the intent to steal. That is, a defendant is guilty of residential burglary if,
       while inside a house in which he has the authority to be, he forms the intent to commit a
       theft therein. The facts here support the conclusion that defendant did just that.
¶ 13       Specifically, defendant testified that he was in the Phelans’ kitchen, a place in which
       he was authorized to be, when he picked up the red pouch. Although defendant indicated
       that he thought that the red pouch contained a tape measure, the trial court found
       defendant incredible on this point, and the evidence supported this conclusion. That is,
       defendant did not indicate to whom he thought the tape measure belonged, and the
       evidence clearly established that it did not belong to him, as he did not know exactly what
       the red pouch contained. Instead of leaving the red pouch where he found it, opening the
       red pouch to see what it contained, or asking the Phelans, Newman, or any other
       coworker about it, defendant took the red pouch from the Phelans’ kitchen counter and
       carried it away.
¶ 14       Added to these facts is the inference that defendant intended to steal the red pouch.
       The evidence established that no other tools that belonged to defendant or Newman were
       anywhere near the red pouch. Rather, the nearest tools were located in a separate room, a
       bathroom, which was 10 feet from the red pouch. In the process of gathering up
       Newman’s tools from that bathroom, defendant grabbed the red pouch, went out to the


                                                -4-
       garage, and dropped off the supplies that were to be kept at the Phelans’ home until the
       work on the master bedroom windows was complete. The red pouch was not one of the
       items that defendant left behind in the Phelans’ garage. After dropping off materials in the
       Phelans’ garage, defendant proceeded to Newman’s truck, where he deposited Newman’s
       tools. The red pouch was not one of the items that defendant left in Newman’s truck.
       Rather, defendant took the red pouch with him when he left the Phelans’ home that day.
       At some later point, defendant discovered that the red pouch contained a camera. When
       defendant made this discovery, he did nothing to ensure that the camera would be
       returned to the Phelans. That is, instead of returning the camera to the Phelans or calling
       them or Newman, defendant kept the camera. Approximately four hours later, when
       defendant was stopped for a traffic offense, the police recovered the camera and asked
       defendant to whom the camera belonged. Defendant gave four conflicting statements.
       None of those statements was consistent with the testimony that defendant gave at trial.
       From all of this evidence, a rational trier of fact most certainly could infer that defendant,
       who was allowed to be in the Phelans’ home, formed the intent to take Sandra’s camera
       while he was in the Phelans’ kitchen. Thus, a rational trier of fact could find defendant
       guilty of residential burglary beyond a reasonable doubt.
¶ 15       Defendant argues that he could not be found guilty of residential burglary by
       remaining without authority, because (1) his authority to enter the Phelans’ house was
       never revoked or withdrawn; (2) the evidence failed to indicate that he stayed for any
       period of time in the Phelans’ house after forming the intent to take the camera; and (3)
       the evidence did not indicate that he had the intent to take the camera before he entered
       the Phelans’ home. We find none of these arguments persuasive.
¶ 16       First, defendant suggests that a defendant’s authority to be in the home of another
       person must be expressly withdrawn before he may be convicted of residential burglary
       by unlawfully remaining. Nothing in the residential burglary statute requires this. Indeed,
       in People v. Racanelli, 132 Ill. App. 3d 124, 134 (1985), which is one of the cases on
       which defendant relies, the court recognized that a defendant’s authority to be in the
       home of another person is implicitly withdrawn when the defendant forms the intent to
       commit a crime. Here, as indicated above, a rational trier of fact could infer from the
       evidence that defendant formed the intent to take the camera when he was in the Phelans’
       home.
¶ 17       Second, even assuming that remaining requires some specific duration, which we do
       not necessarily accept, the evidence here indicated that defendant did not, as he suggests,
       grab the camera as he was running out of the back door of the Phelans’ house. Rather, the
       evidence revealed that defendant was in the process of picking up Newman’s tools, which
       were not in the kitchen, when he saw the red pouch sitting on the kitchen counter and
       took it. Defendant then deposited in the proper places all of the supplies he had gathered,
       except for the red pouch, and left the Phelans’ home.
¶ 18       Third, in contrast to defendant’s view, “[a] criminal intent formed after a lawful entry
       will satisfy the offense of burglary by unlawfully remaining.” Boone, 217 Ill. App. 3d at
       533. If, as defendant argues, the State had to prove that he had the intent to commit a theft
       before he entered the Phelans’ home, the second part of the residential burglary statute,

                                                -5-
       i.e., remaining without authority, would be rendered completely meaningless, as all
       defendants charged with residential burglary would fall under the first part of the
       residential burglary statute regardless of whether those defendants’ entries were
       authorized or not. See People v. Peeples, 155 Ill. 2d 422, 487-88 (1993) (noting that a
       defendant who intends to commit a crime in the dwelling place of another and is allowed
       to enter that home enters without authorization, as a defendant’s criminal actions vitiate
       the consent given to the defendant).
¶ 19        Given our resolution of this appeal, we find it unnecessary to decide whether the trial
       court was correct in finding that the limited-authority doctrine applies to defendants
       charged with residential burglary by remaining without authority. See People v. Nash,
       173 Ill. 2d 423, 432 (1996) (court may affirm on any basis the record supports).
¶ 20        For these reasons, the judgment of the circuit court of Du Page County is affirmed.

¶ 21      Affirmed.




                                                -6-
