                                  Illinois Official Reports

                                          Appellate Court



                             People v. Burnley, 2014 IL App (5th) 120486



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


District & No.               Fifth District
                             Docket No. 5-12-0486


Filed                        February 19, 2014


Held                         The appellate court rejected defendant’s contention that his residential
(Note: This syllabus         burglary conviction should be reduced to simple burglary because no
constitutes no part of the   one resided in the house he burglarized or intended to reside there
opinion of the court but     within a reasonable period of time and, therefore, it was not a dwelling
has been prepared by the     for purposes of the residential burglary statute, since the house was not
Reporter of Decisions        abandoned, vacant, or unoccupied, and although the victim owned
for the convenience of       another house where she primarily resided, the utilities at the
the reader.)                 burglarized house were on, it contained the victim’s personal property,
                             including a bed, a washer and dryer, and business documents, she
                             visited the house frequently, she kept it neat and secure, and she was
                             outraged when defendant violated the “privacy and sanctity” the
                             residential burglary statute was designed to protect, and a rational jury
                             could have found that the burglarized house was a dwelling within the
                             meaning of the residential burglary statute.


Decision Under               Appeal from the Circuit Court of St. Clair County, No. 11-CF-1404;
Review                       the Hon. John Baricevic, Judge, presiding.



Judgment                     Affirmed.
     Counsel on                Michael J. Pelletier, Alan D. Goldberg, and Robert N. Markfield, all of
     Appeal                    State Appellate Defender’s Office, of Chicago, for appellant.

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


     Panel                     PRESIDING JUSTICE WELCH delivered the judgment of the court,
                               with opinion.
                               Justices Goldenhersh and Cates concurred in the judgment and
                               opinion.


                                                OPINION

¶1         At the conclusion of a jury trial held in the circuit court of St. Clair County, the defendant,
       Terrell Burnley, was convicted of residential burglary. On May 15, 2012, the defendant was
       sentenced to prison for a term of eight years. The defendant appeals, arguing that he was not
       proved guilty beyond a reasonable doubt because the evidence is insufficient to show that the
       home which he was found guilty of burglarizing was a “dwelling place” as defined in the
       Criminal Code of 1961 (the Code) (720 ILCS 5/19-3(a), 2-6(b) (West 2010)). He asks that we
       reduce his conviction to one for simple burglary and remand the cause for resentencing.
¶2         Section 19-3(a) of the Code defines the offense of residential burglary, of which the
       defendant was convicted, as follows: “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.”
       (Emphasis added.) 720 ILCS 5/19-3(a) (West 2010). Section 2-6(b) of the Code defines the
       term dwelling for purposes of section 19-3(a) as “a house, apartment, mobile home, trailer, or
       other living quarters in which at the time of the alleged offense the owners or occupants
       actually reside or in their absence intend within a reasonable period of time to reside.” 720
       ILCS 5/2-6(b) (West 2010). The defendant argues on appeal that the house which he was found
       guilty of burglarizing was not a dwelling within the meaning of the residential burglary statute
       because no one actually resided in it or had any intention within a reasonable period of time to
       reside in it.
¶3         We note that the defendant did not attack the charge prior to or at trial as being insufficient
       as a matter of law to charge him with residential burglary. On appeal he argues only that the
       evidence is insufficient to prove him guilty beyond a reasonable doubt. When a defendant
       challenges the sufficiency of the evidence, it is not the function of the reviewing court to retry
       the defendant. People v. Evans, 209 Ill. 2d 194, 209 (2004). A reviewing court must determine
       whether, after viewing all the evidence in the light most favorable to the prosecution, any
       rational trier of fact could have found the essential elements of the crime beyond a reasonable
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       doubt. Id. We will not reverse a conviction unless the evidence is so unreasonable, improbable,
       or unsatisfactory that it raises a reasonable doubt of the defendant’s guilt. Id. Accordingly, the
       question presented to us on review is whether, viewing all the evidence in the light most
       favorable to the prosecution, a rational jury could have found that the house which the
       defendant burglarized is a “dwelling” within the meaning of the residential burglary statute.
       We answer that question in the affirmative.
¶4         At the defendant’s jury trial the following pertinent evidence was adduced. The victim,
       Lorena Riley, testified that she owned the house in Cahokia which the defendant burglarized.
       She also owned a house in Shiloh in which she primarily lived. She had purchased the Shiloh
       house for her parents. She stated that she had lived at the Shiloh house “[m]aybe about on and
       off for a year.”
¶5         Although she lived primarily at the Shiloh house, the victim kept a lot of personal property
       in the Cahokia house including clothing, a bed, a television, a table and chairs, a brand-new
       stackable washer and dryer which she was planning to install in the house, and a lot of business
       paperwork. The victim owned rental properties as well as a Blimpie restaurant franchise. Much
       of this personal property she was planning to move to the Shiloh house. Although the victim
       agreed that the Cahokia house was “more or less a kind of holding place for some of [her]
       stuff,” she refused to compare it to a storage unit.
¶6         On occasion the victim visited the Cahokia house to check on it. She had visited the
       Cahokia house four days prior to the burglary and at that time had changed the light bulbs in
       the outside lights. She kept these outside lights on all the time. She always left the house
       locked. The house did have a security system installed, but it was not active at the time of the
       burglary because the victim was in the process of moving things from the house. The gates to
       the yard were kept locked.
¶7         The victim described herself as “extremely angry” and indeed even vengeful upon
       discovering the burglary and ransacking of her house. The house had always been kept neat
       and tidy. Upon discovering the break-in of the house, the victim went immediately to get
       materials to board up the broken window.
¶8         While the defendant moved for directed verdict at the close of the State’s case and the close
       of all the evidence, the motion was based on the general insufficiency of the evidence and not
       specifically on the issue of whether the Cahokia house constituted a “dwelling” within the
       meaning of the residential burglary statute. Both motions were denied.
¶9         In closing argument, the State argued that the Cahokia house was indeed the dwelling place
       of the victim. It was her “second home.” She kept there a bed, a television, clothing, a kitchen
       table, business papers, and a brand-new washer and dryer. The utilities were kept on, and the
       home was maintained and kept neat and tidy. She visited the home often and locked it when
       she left. She denied that the house was akin to a storage locker or unit. She was emotionally
       upset when the home was burglarized.
¶ 10       The defense argued that the house was not a dwelling because the victim had not lived
       there for a year and was planning on selling the house. She did not actually reside there, and


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       she did not intend to reside there in a reasonable period of time. Accordingly, the house was
       not a dwelling within the meaning of the residential burglary statute.
¶ 11       The jury was properly instructed that the State must prove that the defendant illegally
       entered the “dwelling place” of another and that the term “dwelling place” means “a house in
       which at the time of the alleged offense the owners actually reside, or in their absence, intend
       within a reasonable period of time to reside.” Nevertheless, during its deliberations, the jury
       sent a note to the judge asking, “What evidence do we need to say or conclude this was one of
       her residence[s]?” After conferring with counsel, the judge returned a note stating: “You have
       an instruction that defines dwelling place. Use the testimony you heard and your common
       sense to decide that issue.” The jury returned with a guilty verdict.
¶ 12       The defendant filed a posttrial motion in which he generally attacked the sufficiency of the
       evidence but again did not specifically raise the issue of whether the Cahokia house was a
       dwelling place. This motion was denied.
¶ 13       On appeal, the defendant asks that we reduce his conviction to one for simple burglary
       because the house he was found guilty of burglarizing was not a dwelling within the meaning
       of the residential burglary statute. No one actually resided in the house or intended to reside in
       the house within a reasonable period of time. He contends that no reasonable jury could have
       found otherwise. The defendant relies on People v. Roberts, 2013 IL App (2d) 110524.
¶ 14       In Roberts, the burglarized house was vacant. The owners had moved out of state with no
       plans to return to the house. They had placed the house for sale but had secured no purchaser.
       The appellate court reduced the defendant’s residential burglary conviction to one for simple
       burglary, finding that the vacant house was not a dwelling within the meaning of the residential
       burglary statute. The court found that the house was unoccupied and that no specific individual
       intended to reside there at any time in the future. Id. ¶ 7 Because at the time of the burglary no
       one actually resided in the house and no one intended to reside there in the future, it did not
       constitute a dwelling. The court pointed out that the residential burglary statute is aimed
       specifically at protecting the privacy and sanctity of homes, and there can be no violation of
       that sanctity where there is no one who considers the premises to be his or her home or future
       home. Id.
¶ 15       What makes Roberts distinguishable from the case at bar is that in Roberts, there clearly
       was no one who actually resided in the house, nor was there anyone who intended to reside in
       the house in the future. In the case at bar the jury just as clearly found that the victim, Lorena
       Riley, did actually reside in the Cahokia house at the time of the burglary. This was a
       reasonable conclusion based on the evidence. The victim’s house was not abandoned, vacant,
       or unoccupied. The utilities remained on. She kept personal property in the house, including a
       bed, as well as important business documents. She visited the house frequently, did her best to
       keep it secure, maintained it, and kept it neat and tidy. She experienced outrage when the
       “privacy and sanctity” of her home were violated by the defendant, the very privacy and
       sanctity which the residential burglary statute was designed to protect.
¶ 16       A reasonable jury could have found that the victim had two residences, a primary one in
       Shiloh and a secondary one in Cahokia, both of which she was using at the same time, although
       perhaps for different purposes. Even if the victim was in the process of moving from one house
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       to the other, a reasonable jury could have concluded that she had not completely moved to
       Shiloh. The unique protections afforded by the residential burglary statute are not lost at some
       point during the moving process, well before the home is completely vacated. To hold that
       simply because the victim was in the process of moving, no reasonable jury could have found
       that the Cahokia house was one of the victim’s dwellings would do violence to the residential
       burglary statute, which is designed to protect the privacy and sanctity of the home and to avoid
       the greater danger and potential for serious harm from burglary of a home as opposed to a
       business. See People v. Edgeston, 243 Ill. App. 3d 1, 10 (1993).
¶ 17       While the owners in Roberts had permanently abandoned the burglarized home in favor of
       a home in a different state, the victim in the case at bar had not permanently abandoned the
       Cahokia house in favor of the Shiloh house. She continued to use both houses as her dwellings.
       Unlike the house in Roberts, the victim’s Cahokia house was not vacant; many of her
       belongings remained there. The victim frequently visited the Cahokia house, subjecting herself
       to the very danger against which the residential burglary statute was designed to protect.
¶ 18       Finally, the house did not appear to be abandoned, vacant, or unoccupied. To the contrary,
       the house was well maintained and well ordered and contained personal belongings indicative
       of occupancy including clothing, a bed, a kitchen table, and a television. There was no sign that
       the house was dilapidated, had suffered a fire, or was under major reconstruction or renovation.
¶ 19       After viewing all the evidence in the light most favorable to the prosecution, we conclude
       that a rational jury could have found that the Cahokia house was a dwelling within the meaning
       of the residential burglary statute. Accordingly, we affirm the judgment of the circuit court of
       St. Clair County.
¶ 20       For the foregoing reasons, the judgment of the circuit court of St. Clair County is hereby
       affirmed.

¶ 21      Affirmed.




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