                                                                                  FILED
                                     2015 IL App (4th) 130265                      March 18, 2015
                                                                                    Carla Bender
                                           NO. 4-13-0265                        th
                                                                               4 District Appellate
                                                                                     Court, IL
                                  IN THE APPELLATE COURT

                                           OF ILLINOIS

                                       FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,                          )     Appeal from
            Plaintiff-Appellee,                               )     Circuit Court of
           v.                                                 )     Macon County
CORTEZ D. MURPHY,                                             )     No. 12CF1150
           Defendant-Appellant.                               )
                                                              )     Honorable
                                                              )     Thomas E. Griffith, Jr.,
                                                              )     Judge Presiding.


               JUSTICE TURNER delivered the judgment of the court, with opinion.
               Justice Knecht concurred in the judgment and opinion.
               Justice Steigmann dissented, with opinion.

                                             OPINION

¶1             In January 2013, a jury found defendant, Cortez D. Murphy, guilty of two counts

of burglary. In March 2013, the trial court sentenced defendant to six years in prison.

¶2             On appeal, defendant argues (1) the State failed to prove him guilty beyond a

reasonable doubt, (2) the jury instructions denied him a fair trial, and (3) he was denied the

effective assistance of counsel. We vacate defendant's burglary convictions.

¶3                                      I. BACKGROUND

¶4             In August 2012, the State charged defendant by information with two counts of

residential burglary (720 ILCS 5/19-3 (West 2010)), alleging defendant knowingly and without

authority entered into the dwelling places of Lyndsi Constant (count I) and Ashley Benton (count

II) with the intent to commit therein a theft.
¶5             In January 2013, the State filed an amended information, charging defendant with

two counts of burglary (720 ILCS 5/19-1(a) (West 2010)). In count III, the State alleged

defendant committed the offense of burglary when he knowingly entered the building of Pawn

King with the intent to commit therein a theft. In count IV, the State alleged he committed the

offense of burglary when he knowingly entered the building of Pawn King a second time with

the intent to commit therein a theft.

¶6             In January 2013, defendant's jury trial commenced. The State dismissed counts I

and II and proceeded on the two burglary counts. Lyndsi Constant testified she arrived home on

the night of June 14, 2012, to find her house had been ransacked and several items were missing,

including an Xbox game console and controllers. Ashley Benton testified she returned home on

the night of June 14, 2012, and found her house had been burglarized and several items were

missing, including her gray digital camera.

¶7             Phil Worthy, general manager at the Pawn King pawnshop, testified that on June

16, 2012, defendant pawned the camera for $35. Approximately 40 minutes later, defendant

returned to Pawn King and pawned the Xbox, controllers, and two games for $90. Worthy

testified he would typically sell the camera for $59.99 and the game system for $180 to $190.

Worthy stated no one had the authority to enter his pawnshop for the purpose of committing a

theft.

¶8             Decatur police detective Troy Kretsinger testified he investigated a string of

residential burglaries and learned defendant had pawned several items at Pawn King. Kretsinger

interviewed defendant, who admitted buying merchandise "on the street" but denied going into a

home and stealing items. Defendant agreed it was "reasonable for him to know or at least

strongly suspect the property he was purchasing was stolen." Defendant also admitted pawning



                                               -2-
the Xbox and the camera. He never admitted knowing the items were stolen.

¶9             Defendant exercised his constitutional right not to testify. Following closing

arguments, the jury found defendant guilty. In February 2013, defendant filed a posttrial motion

for a new trial, claiming the State's evidence was insufficient to prove him guilty beyond a

reasonable doubt. In March 2013, the trial court denied the posttrial motion and sentenced

defendant to six years in prison. Defendant filed a motion to reconsider his sentence, which the

court denied. This appeal followed.

¶ 10                                     II. ANALYSIS

¶ 11           Defendant argues his burglary convictions should be reversed because the State

failed to prove he entered Pawn King with the intent to commit therein a theft of stolen property.

We agree.

¶ 12           " 'When reviewing a challenge to the sufficiency of the evidence in a criminal

case, the relevant inquiry is whether, when viewing 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 doubt.' " People v. Ngo, 388 Ill. App. 3d 1048, 1052, 904 N.E.2d 98, 102

(2008) (quoting People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331 (2006)).

¶ 13           A person commits burglary when he, without authority, knowingly enters a

building "with intent to commit therein a felony or theft." 720 ILCS 5/19-1(a) (West 2010).

Section 16-1(a) of the Criminal Code of 1961 (720 ILCS 5/16-1(a) (West 2010)) sets forth the

offense of theft as follows:

               "A person commits theft when he knowingly:

                               (1) Obtains or exerts unauthorized control

                       over property of the owner; or



                                               -3-
       (2) Obtains by deception control over

property of the owner; or

       (3) Obtains by threat control over property

of the owner; or

       (4) Obtains control over stolen property

knowing the property to have been stolen or under

such circumstances as would reasonably induce him

to believe that the property was stolen; or

       (5) Obtains or exerts control over property

in the custody of any law enforcement agency

which any law enforcement officer or any

individual acting in behalf of a law enforcement

agency explicitly represents to the person as being

stolen or represents to the person such

circumstances as would reasonably induce the

person to believe that the property was stolen, and

               (A) Intends to deprive the

       owner permanently of the use or

       benefit of the property; or

               (B) Knowingly uses,

       conceals or abandons the property in

       such manner as to deprive the owner




                         -4-
                               permanently of such use or benefit;

                               or

                                       (C) Uses, conceals, or

                               abandons the property knowing such

                               use, concealment or abandonment

                               probably will deprive the owner

                               permanently of such use or benefit."

¶ 14           In the case sub judice, the State charged defendant with two counts of burglary,

alleging he twice entered Pawn King with the intent to commit therein a theft. Generally, the

" 'intent to permanently deprive the owner of his property may ordinarily be inferred when a

person takes the property of another.' " People v. Haissig, 2012 IL App (2d) 110726, ¶ 31, 976

N.E.2d 1121 (quoting People v. Veasey, 251 Ill. App. 3d 589, 592, 622 N.E.2d 1246, 1248

(1993)); see also People v. Adams, 161 Ill. 2d 333, 343, 641 N.E.2d 514, 519 (1994) (stating "the

intent to deprive an owner of his property may be inferred simply from the act of taking another's

property"). Here, Officer Kretsinger testified that defendant agreed it was "reasonable for him to

know or at least strongly suspect the property that he was purchasing was stolen." Thus,

defendant committed the theft when he obtained control over the stolen property on the street.

¶ 15           The State's theory was that defendant committed theft by obtaining control over

stolen property and then pawning the property at Pawn King. The State claims defendant entered

Pawn King with the intent to pawn the property and thereby committed the permanent-

deprivation element of theft. However, a person "obtains" control over property through an act

occurring at a specific point in time by "bring[ing] about a transfer of interest or possession."

720 ILCS 5/15-7 (West 2010). Here, the permanent-deprivation element had already been



                                                -5-
completed when defendant entered the pawnshop.

¶ 16           Our dissenting colleague asserts "defendant's intent when he obtained control over

the stolen property was not an element of the alleged theft in this case because the State did not

allege that defendant intended to complete a section 16-1(a)(4)(A) theft." Infra ¶ 37. However,

regardless of whether the State purports to rely on subsection (A), (B), or (C), the State must first

prove one of the enumerated elements under subsection (a). The enumerated subsections under

(a) "describe the proscribed acts any one of which constitutes the crime of theft if performed

with the mental states requisite for conviction; and *** subsections [(A), (B), and (C)] describe

such mental states or conduct from which they will be presumed." People v. Nunn, 63 Ill. App.

2d 465, 474, 212 N.E.2d 342, 346 (1965).

¶ 17           Here, the State was required to prove defendant knowingly obtained control over

stolen property knowing the property to have been stolen or under such circumstances as would

reasonably induce defendant to believe the property was stolen. Even under the dissent's theory,

this element of the theft occurred prior to defendant's entry into Pawn King and incontrovertibly

not inside or upon entry into the pawnshop. Accordingly, defendant did not enter Pawn King

with the intent to commit therein a theft, as required under the burglary statute. In short, the

pawnshop was not burglarized. (We do not analyze whether the exchange of stolen property at

the pawnshop for cash was a theft against the pawnshop because this was not the State's theory

for the theft that supported the burglary charge.) To hold otherwise under similar facts would

lead to bizarre results. For example, defendant could knowingly obtain stolen property on the

street and stop by his neighbor's house with the intent to sell the property to that neighbor. See

People v. Bailey, 188 Ill. App. 3d 278, 284-85, 543 N.E.2d 1338, 1342 (1989) (stating a

defendant's entry into "a building with intent to commit a theft cannot be said to be within the



                                                -6-
authority granted those who might enter"). Under the State's theory, upon entry into his

neighbor's house, defendant would have committed a residential burglary, a nonprobationable

Class 1 felony (720 ILCS 5/19-3(b) (West 2010)).

¶ 18           The dissent also notes defendant's proposed instruction that he knowingly

obtained control over stolen property and he intended to deprive the owner permanently of the

use of the property was rejected by the trial court. See infra ¶ 39. However, it cannot reasonably

be argued the evidence in this case could not have supported such a finding by the jury. Thus,

rather than supporting the dissent's position, the trial court's refusal of defendant's instruction

actually deprived defendant of a defense he was entitled to have the jury consider. See People v.

Hari, 218 Ill. 2d 275, 296, 843 N.E.2d 349, 361 (2006) (stating "[v]ery slight evidence upon a

given theory of a case will justify the giving of an instruction").

¶ 19           In People v. Kimbro, 182 Ill. App. 3d 572, 538 N.E.2d 826 (1989), the defendant

was charged with the theft of a tractor stolen from the victim in the fall of 1975. The defendant's

ex-wife recollected she heard the defendant park a tractor next to their bedroom in the fall of

1975. In the fall of 1986, the defendant moved the tractor to a friend's farm, and the tractor was

finally discovered by an investigator in 1988. Kimbro, 182 Ill. App. 3d at 572-73, 538 N.E.2d at

827. The defendant was charged with theft, and the trial court dismissed the charge, finding the

theft had occurred in 1975, the statute of limitations had expired, and the theft did not constitute

a continuing offense. Kimbro, 182 Ill. App. 3d at 573, 538 N.E.2d at 827.

¶ 20           On appeal, the State relied upon People v. Alexander, 93 Ill. 2d 73, 442 N.E.2d

887 (1982), arguing the defendant's unauthorized possession of the tractor in 1988 constituted a

separate theft offense not barred by the statute of limitations. Kimbro, 182 Ill. App. 3d at 573,

538 N.E.2d at 827. The appellate court disagreed and found, under the State's theory, the statute



                                                 -7-
of limitations for theft would never run. Kimbro, 182 Ill. App. 3d at 573-74, 538 N.E.2d at 828.

The court distinguished Alexander on the basis Alexander did not implicate the statute of

limitations and because the particular time the theft occurred was not an essential element in that

case. Kimbro, 182 Ill. App. 3d at 573-74, 538 N.E.2d at 828. Here, as in Alexander, the statute

of limitations is not an issue. However, the time the theft offense occurred is critical to the

State's case. Thus, like the court in Kimbro, we do not find Alexander controlling.

¶ 21           The appellate court further rejected the State's second argument that the

defendant's actions to conceal the tractor in 1986 commenced a new statutory period. The court

concluded the theft occurred only once, in 1975. Kimbro, 182 Ill. App. 3d at 574, 538 N.E.2d at

828. Accordingly, the subsequent concealment or use of the tractor neither completed the initial

theft nor formed the basis for a new theft charge. Similarly, here, defendant's pawning of the

stolen property neither completed the initial theft nor formed the basis for charging a new theft of

that same stolen property.

¶ 22           We note the dissent neither disputes Kimbro nor even acknowledges it but,

instead, states our opinion today "will have the unintended effect of insulating fences from their

criminal conduct" if the fence does not attempt to sell the property until the statute of limitations

has expired. Infra ¶ 42. However, as previously stated, we have not opined the exchange of

stolen property for cash is not a theft, nor that it can be done with "impunity," as suggested by

the dissent. Infra ¶ 42. Moreover, even if we questioned Kimbro's rejection of the State's second

argument regarding the 1986 concealment of the tractor, it would not change the outcome of our

disposition here. The State did not assert defendant was merely exerting unauthorized control

over the property before selling it at the pawnshop, which arguably could have been the first

point in time where defendant's action of exerting unauthorized control of the property coincided



                                                -8-
with his criminal mental state. Instead, the State proved defendant knowingly obtained stolen

property prior to his entry into Pawn King, from which the jury, if given the opportunity, could

have inferred and found defendant's intent to permanently deprive the owners of the use and

benefit of their property.

¶ 23           In conclusion, by obtaining control over stolen property on the street, defendant

acted with the intent to permanently deprive the owners of the use and benefit of their property.

Thus, defendant had already committed the theft when he entered Pawn King. As he could not

have entered Pawn King with the intent to commit therein a theft, since it already occurred, he

could not be found guilty of burglary. Accordingly, defendant's convictions for burglary must be

vacated.

¶ 24                                  III. CONCLUSION

¶ 25           For the reasons stated, we vacate defendant's burglary convictions.

¶ 26           Judgment vacated.




                                               -9-
¶ 27           JUSTICE STEIGMANN, dissenting.

¶ 28           The majority reverses defendant's burglary convictions because it concludes that

defendant could not have entered Pawn King with the intent to commit therein a theft, "since it

already occurred." Supra ¶ 23. However, in my judgment, the majority has misapplied the theft

statute. Accordingly, I respectfully dissent.

¶ 29           Throughout its opinion, the majority appears to be viewing this case as if it

involved the charge of theft under section 16-1(a)(4)(A) of the Criminal Code of 1961 (720 ILCS

5/16-1(a)(4)(A) (West 2010)), which requires proof of the defendant's intent at the time he

obtains control over the stolen property. This case, however, involves section 16-1(a)(4)(B) of

the Code (720 ILCS 5/16-1(a)(4)(B) (West 2010)), which requires proof that the defendant used,

concealed, or abandoned the stolen property after he obtained control over it. Unlike a theft

under section 16-1(a)(4)(A) of the Code, a theft under section 16-1(a)(4)(B) of the Code is not

completed at the moment the defendant obtains control over the stolen property. Thus, although

the majority is correct when it writes that the section 16-1(a)(4) element of the crime of theft

occurred prior to defendant's entry into Pawn King, it does not follow (contrary to the majority)

that "defendant did not enter Pawn King with the intent to commit therein a theft, as required

under the burglary statute." (Emphasis in original.) Supra ¶ 17. That is because the section 16-

1(a)(4) element to which the majority refers is not enough by itself to constitute the crime of

theft.

¶ 30           The theft statute provides, in pertinent part, as follows:

                       " (a) A person commits theft when he knowingly:

                                        ***

                               (4) Obtains control over stolen property knowing



                                                - 10 -
                       the property to have been stolen or under such

                       circumstances as would reasonably induce him to believe

                       that the property was stolen; [and]

                              ***

                                      (A) Intends to deprive the owner

                              permanently of the use or benefit of the

                              property; or

                                      (B) Knowingly uses, conceals or

                              abandons the property in such manner as to

                              deprive the owner permanently of such use

                              or benefit; or

                                      (C) Uses, conceals, or abandons the

                              property knowing such use, concealment or

                              abandonment probably will deprive the

                              owner permanently of such use or benefit."

                              720 ILCS 5/16-1(a) (West 2010).

¶ 31           In this case, the jury was instructed on the elements of theft under section 16-

1(a)(4)(B) of the Code. The subsection (A) element of the theft statute is fundamentally different

from the subsection (B) or (C) element because the subsection (A) element is a mental state that

is present at the moment the defendant obtains control over the stolen property. The subsection

(B) and (C) elements, on the other hand, are actions that the defendant completes after he obtains

control over the stolen property.

¶ 32           Under the State's theory in this case, defendant entered Pawn King intending to



                                               - 11 -
use the property (i.e., pawn it) in such manner as to deprive the owner permanently thereof. This

was a section 16-1(a)(4)(B) theft. The jury instructions were expressly written to fit this theory.

The majority writes about this case as if it involved a section 16-1(a)(4)(A) theft, but it does not.

¶ 33           Because the charge in this case was for burglary, the elements of theft were set

out in the jury instructions. They were not set forth in the charges against defendant. The jury

was instructed in accordance with the section 16-1(a)(4)(B) elements of theft, as follows:

                         "A person commits the offense of theft when he knowingly

               obtains control over stolen property under such circumstances as

               would reasonably induce him to believe the property was stolen,

               and he knowingly uses the property in such manner as to deprive

               the owner permanently of its use or benefit." (Emphasis added.)

               Illinois Pattern Jury Instructions, Criminal, No. 13.23 (4th ed.

               Supp. 2009) (hereinafter, IPI Criminal 4th No. 13.23 (Supp.

               2009)).

¶ 34           Defendant's "proposition" instructions for theft—which the trial court gave as

lesser-included-offense instructions—also tracked the language of section 16-1(a)(4)(B), as

follows:

                         "To sustain the charge of theft, the State must prove the

               following propositions:

                                                    ***

                         Fourth Proposition: That the Defendant used the FUJITSU

               T210 Camera in such manner as to deprive Ashley Benton

               permanently of the use or benefit." (Emphasis added.)



                                                 - 12 -
See Illinois Pattern Jury Instructions, Criminal No. 13.24 (4th ed. Supp. 2009). (The court gave

the same instruction as to Lyndsi Constant's Xbox system.)

¶ 35           I note that defendant's brief contains an incorrect definition of theft by obtaining

control over stolen property. (See page 17 of defendant's brief.) Defendant defines that offense

by referring only to section 16-1(a)(4) of the Code, omitting entirely any reference to subsections

(A), (B), and (C), one of which must be included with section 16-1(a)(4) in order to define that

offense. Perhaps this erroneous definition (and defendant's argument based thereon) contributed

to what I believe is the majority's erroneous application of the theft statute.

¶ 36           To hold that a violation of section 16-1(a)(4)(B) of the Code is complete at the

transfer of possession would be to ignore the subsection (B) element of using, concealing, or

abandoning the property. Certainly, that element cannot be satisfied before or at the exact

moment the defendant obtains control over the stolen property.

¶ 37           The majority concludes that "by obtaining control over stolen property on the

street, defendant acted with the intent to permanently deprive the owners of the use and benefit

of their property. Thus, defendant had already committed the theft when he entered Pawn King."

(Emphasis added.) Supra ¶ 23. However, defendant's intent when he obtained control over the

stolen property was not an element of the alleged theft in this case because the State did not

allege that defendant intended to commit a section 16-1(a)(4)(A) theft. Theft is a single offense

that may be performed in different ways, and the different methods of performance may require

proof of different elements. People v. Graves, 207 Ill. 2d 478, 484-85, 800 N.E.2d 790, 793

(2003). The majority's conclusion that the theft in this case was completed when defendant

obtained control over the property on the street assumes that section 16-1(a)(4)(A) of the Code

applied. However, the jury in this case was instructed under section 16-1(a)(4)(B) of the Code,



                                                - 13 -
which required proof not of defendant's "intent," but of what defendant did with the property

after he obtained control over it. Simply put, section 16-1(a)(4)(B) of the Code requires proof of

a different element than section 16-1(a)(4)(A) of the Code.

¶ 38           In this case, the jury instructions and the State's opening and closing arguments

clearly set forth the theory that defendant went into Pawn King intending to satisfy the

subsection (B) element of theft under section 16-1(a)(4)(B) of the Code by using the stolen

property in such a manner as to deprive the owner permanently of such use or benefit. The State

submitted—and the trial court gave—pattern jury instructions that were consistent with this

theory. The State's theory clearly fell within the definition of theft under section 16-1(a)(4)(B)

of the Code. A rational trier of fact could conclude that by pawning the stolen property in

exchange for cash, defendant used the property in such a manner as to deprive the owners

permanently of such use or benefit (or, at least, that was defendant's intent when he entered Pawn

King).

¶ 39           Notably, defendant proposed the following instruction on the definition of theft,

which tracked the language of section 16-1(a)(4)(A) of the Code:

               "A person commits the offense of theft when he knowingly obtains

               control over stolen property under such circumstances as would

               reasonably induce him to believe the property was stolen, and he

               intends to deprive the owner permanently of the use or benefit of

               the property." (Emphasis added.)

See IPI Criminal 4th No. 13.23 (Supp. 2009). The State objected to this instruction because it

did not include the "use" element of section 16-1(a)(4)(B) of the Code. The State argued that

"the [']use['] would, obviously, be the pawning of the item and getting money for that." The trial



                                               - 14 -
court sustained the State's objection, stating, "I think in terms of the facts of this particular case,

[the State's] instruction would be more appropriate."

¶ 40            In its closing argument, the State discussed how defendant completed the "use"

element of section 16-1(a)(4)(B) of the Code inside Pawn King:

                "He has entered the building with the intent to commit the theft.

                He's walked in, he's got the items. He knows or reasonably should

                know that it's stolen. He does not have the right to do anything

                with it. *** That day he intended to sell it and he did. He got cash

                for a loan and he never came back to pay off the loan. *** He

                pocketed that ill gotten money intending that those people, Ashley

                and Lyndsi, would never get their property back. That's what's

                going to happen. He's taken it and sold it and that business is

                going to take it and they're going to sell it and if all goes right for

                the defendant, Ashley and Lyndsi will never see their property

                again."

¶ 41            The jury instructions on theft in this case required the jury to find that defendant

not only obtained control over the stolen property but also "used" the property in such a manner

as to deprive the owners permanently of such use or benefit. That element was satisfied when

defendant pawned the property. Because defendant went into Pawn King intending to pawn the

property—i.e., to "use" the property under section 16-1(a)(4)(B) of the Code—defendant

committed burglary.

¶ 42            The majority opinion will have the unintended effect of insulating fences from

their criminal conduct. A fence who receives valuable stolen property (which is the definition of



                                                 - 15 -
what fences do) and keeps the property for three years (the theft statute of limitations) before

trying to sell it may now do so with impunity. The public will be surprised by this result, and I'm

confident it is one the legislature never intended. Nor is it a result required by the theft statute

the legislature wrote.

¶ 43           Because defendant clearly entered Pawn King with the intent to commit theft (as

defined in the jury instructions in accordance with section 16-1(a)(4)(B) of the Code), this court

should affirm his burglary convictions.




                                                - 16 -
