                             2018 IL App (2d) 160277 

                                  No. 2-16-0277

                            Opinion filed June 6, 2018 

______________________________________________________________________________

                                             IN THE


                             APPELLATE COURT OF ILLINOIS


                              SECOND DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE                ) Appeal from the Circuit Court
OF ILLINOIS,                           ) of Boone County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 15-CF-173
                                       )
JAMISON L. MOORE,                      ) Honorable
                                       ) C. Robert Tobin III,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE JORGENSEN delivered the judgment of the court, with opinion.
       Presiding Justice Hudson and Justice Birkett concurred in the judgment and opinion.

                                           OPINION


¶1     Following a jury trial, defendant, Jamison L. Moore, was convicted of burglary (720 ILCS


5/19-1(a) (West 2014)) and retail theft (id. § 16-25(a)(1)). The trial court sentenced him to 


concurrent prison terms of 10 years for burglary and a 6-year extended term for retail theft. He


appeals, contending that (1) he was not proved guilty beyond a reasonable doubt of burglary where


he entered a Walmart store during regular business hours and remained in publicly accessible areas


of the store; (2) the State failed to prove that he intended to commit a theft when he entered the


store or that he was accountable for the conduct of his cousin, Adrian Moore, who stole


merchandise from the store; and (3) if we affirm both convictions, we must vacate the

2018 IL App (2d) 160277


extended-term sentence for retail theft. We agree only with defendant’s final contention. Thus,

we vacate the extended-term portion of the retail-theft sentence but affirm in all other respects.

¶2                                      I. BACKGROUND

¶3     On August 7, 2015, Michael Eby took a break from his job as a manager at the Belvidere

Walmart to go outside for a cigarette. As he left the store, two men, later identified as Adrian and

defendant, caught his attention. Adrian was carrying a diaper bag although neither man had a

baby with him. Eby watched the men enter the store. He went to check on them and found them

in the liquor department. Adrian left the store alone, carrying the diaper bag with liquor bottles in

it. He walked past the cash registers without paying for the liquor.

¶4     Eby followed Adrian to the parking lot, where he got in a black sport-utility vehicle (SUV)

being driven by a black woman. Eby yelled at two employees in the parking lot to get the

vehicle’s license number while he called 911. The SUV backed up and left the parking lot

rapidly. Eby saw defendant leave the store a short time later. Defendant walked by Eby, then

headed back toward the store before running to the road and out of sight.

¶5     Eby went back to the store to pull up the surveillance video. He saw that four bottles of

liquor had been taken.

¶6     According to Eby, the video showed that Adrian followed defendant into the liquor

department. Defendant then returned to the department’s entrance and remained there for a few

seconds. When another couple approached the department, defendant walked away. He walked

past the self-check registers and remained on the sales floor for about 30 seconds.

¶7     Eby later viewed other portions of the video. One such portion showed defendant and

Adrian being dropped off just outside the store entrance, then entering the store together. Once

they entered the liquor department, the two men made eye contact but, as the video had no sound,



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Eby could not tell what if anything was said. The video showed Adrian immediately take four

bottles of vodka from the top shelf, put them in the bag, and leave. Defendant, meanwhile,

walked toward the service desk, turned a corner, looked at an ATM, then turned and left the store

by the same door through which they entered.

¶8     Belvidere police officer Richard Zapf apprehended defendant at the corner of Genoa Road

and Chrysler Drive, near the Walmart, at around 7 p.m. Defendant was sweating, breathing

heavily, and nervous. He said that he had walked to the Walmart to do some shopping.

¶9     Officer Michele Bogdanas arrived. She handcuffed defendant and returned him to the

front of the Walmart. Defendant’s wallet contained a few cards, but no cash. According to

Bogdanas, the license number of the SUV that drove away from the store was registered to Tannah

Moore, defendant’s wife.

¶ 10   Officer Todd Moore also responded to the scene. Defendant told Officer Moore that he

walked to the store to get some snacks but forgot his wallet at home. He initially said that he went

to the store alone. When asked who the “other guy” was, he said that his name was James.

¶ 11   Defendant later told police that he went to the store with a cousin but did not want to give

the cousin’s name. The next day, after receiving a call from defendant’s wife, Officer Moore

spoke with defendant at the county jail. Defendant said that his cousin’s name was Adrian

Moore. He showed Adrian where the liquor section was because Adrian had never been in that

Walmart before. Defendant said that he then went to buy snacks and did not know what Adrian

was doing.

¶ 12   The jury found defendant guilty of burglary and retail theft. The trial court sentenced him

to 10 years’ imprisonment for burglary with a concurrent 6-year, extended-term sentence for retail




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theft. The court denied defendant’s posttrial motion and motion to reconsider the sentence.

Defendant timely appeals.

¶ 13                                       II. ANALYSIS

¶ 14                                    A. Without Authority

¶ 15      Defendant argues first that the State failed to prove beyond a reasonable doubt that he

entered the Walmart store “without authority.” 720 ILCS 5/19-1(a) (West 2014). He maintains

that he never exceeded the scope of his authority to be in the store, given that he entered during

regular business hours, never entered an area of the store that was off-limits to the public, and left

while the store was still open. For the following reasons, we follow longstanding authority and

reject defendant’s argument.

¶ 16      Although defendant frames the issue as a challenge to the sufficiency of the evidence, he

acknowledges that the real question is the construction of the burglary statute. The construction

of a statute is an issue of law, which we review de novo. Hall v. Henn, 208 Ill. 2d 325, 330

(2003).

¶ 17      Section 19-1(a) of the Criminal Code of 2012 provides, in part, that “[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). Thus, under the statute, one can commit a burglary in one of two ways:

(1) by entering without authority and with the intent to commit a felony or theft or (2) by

remaining without authority and with the intent to commit a felony or theft. Id. Defendant was

charged with, and convicted of, the first type of burglary—burglary by unauthorized entry.

¶ 18      For more than 100 years, the supreme court has recognized that entering a retail

establishment with the intention of committing a theft constitutes burglary. See People v. Kelley,



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274 Ill. 556, 558 (1916) (reversing burglary conviction only because there was no evidence of the

defendant’s intent when he entered the store). In People v. Weaver, 41 Ill. 2d 434, 435 (1968), the

defendant was spotted inside a laundromat, standing near a vending machine, the door of which

was open. Police found keys to the vending machine inside vehicles belonging to the defendant

and his codefendant, as well as more than $50 in coins in the defendant’s pocket. Id. at 435-36.

The defendant was convicted of burglary, possession of burglary tools, and theft. Id. at 435. The

defendant appealed to the supreme court, arguing that he was not proved guilty of burglary, given

that the laundromat was open to the public. The court rejected the defendant’s argument, holding

that evidence that the defendant entered a place of business in order to commit a theft is sufficient

to satisfy the “without authority” element of burglary by unauthorized entry. Id. at 438-39. The

court explained that the “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. Thus, patrons of a business lack the authority to enter if they intend to commit

a theft inside the establishment. Id. Consequently, evidence that the defendant entered the

building intending to steal from the vending machine was sufficient to convict him of burglary by

unauthorized entry. Id.

¶ 19   Subsequently, numerous decisions have applied Weaver to cases of burglary involving the

unauthorized entry of a retail establishment. See, e.g., People v. Rudd, 2012 IL App (5th)

100528, ¶¶ 13-14; People v. Durham, 252 Ill. App. 3d 88, 91 (1993); People v. Stager, 168 Ill.

App. 3d 457, 459 (1988); People v. Patterson, 1 Ill. App. 3d 724, 726 (1971).

¶ 20   Defendant relies on People v. Bradford, 2016 IL 118674, ¶¶ 25, 31, where the supreme

court declined to extend Weaver to a case of burglary by unlawfully remaining. There, the

defendant was convicted of burglary by unlawfully remaining in a Walmart store with the intent to



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commit a theft. In the supreme court, the defendant argued that he never exceeded the scope of

his authority to be in the store and that burglary by remaining was never intended to apply to such

a situation, which amounted to no more than ordinary shoplifting. The State contended that the

burglary statute could also apply where a defendant entered a store lawfully, then subsequently

formed the intent to commit a theft, but remained in the store longer than necessary to steal the

items.

¶ 21     The supreme court, however, agreed that the defendant’s was the “only reasonable reading

of the burglary statute.”    Id. ¶ 25.   The court held that the State’s proposed test (1) was

unworkable (due to the difficulty of proving precisely when the defendant’s authority to be in the

store was revoked and whether he “remained” in the store for some period of time after completing

the theft), (2) could lead to absurd results (by arbitrarily distinguishing between a defendant who

steals one item and leaves immediately thereafter and one who steals more than one item or lingers

in the store before leaving), and (3) was not consistent with the retail-theft statute (which was

enacted 14 years after the burglary statute’s “remaining within” provision and would be effectively

negated by the State’s reading) and the historical development of the burglary statute (which

reflected that the addition of the “remaining within” provision incorporated the former crime of

“burglar found in building” and where the term “found” necessarily refers to an area closed to the

defendant or the public). Id. ¶¶ 25-30. In sum, the court held that a defendant “commits

burglary by remaining in a public place only where he exceeds his physical authority to be on the

premises.” Id. ¶ 31. This includes situations where the defendant “enters a public building

lawfully but, in order to commit a theft or felony, (1) hides and waits for the building to close,”

“(2) enters unauthorized areas within the building,” “or (3) continues to remain on the premises

after his authority is explicitly revoked.” Id. However, the court clarified that a person who



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lawfully enters a building, shoplifts within areas open to the public, and then leaves during

business hours is guilty of retail theft. Id.

¶ 22   Defendant contends that Bradford’s rationale should also apply to cases of burglary by

unauthorized entry.     We disagree.     Bradford addressed only the second type of burglary:

burglary by remaining. The supreme court’s concerns about establishing when authority is

revoked and when a defendant has remained in the store longer than necessary to complete the

theft are simply not present in a case like this one. Further, as noted, the historical development of

the crime of burglary by remaining, the court emphasized, includes only scenarios where the

defendant is discovered in a place where he or she is not authorized to be. Id. ¶ 30. Finally,

nothing in Bradford purports to overrule Weaver, where the court held that the burglary statute

applied to the entry of an establishment otherwise open to the public (Weaver, 41 Ill. 2d at 438-39).

¶ 23   We find support for our conclusion in the Fourth District’s decision in People v.

Burlington, 2018 IL App (4th) 150642, which the State urges us to follow. There, the court

followed longstanding precedent (most significantly, Weaver) and affirmed the defendant’s

burglary conviction after he entered a Menard’s store with the intent to commit a theft. Id. ¶ 31.

Burlington observed that Bradford did not affect the holding of Weaver and its progeny. Id. ¶ 27.

The court further noted that, even after the passage of the retail-theft statute, the supreme court had

held that burglary and retail theft constituted separate offenses (id. ¶ 28 (citing People v. Miller,

238 Ill. 2d 161, 176 (2010))), thus “undermining the assertion the first type of burglary eviscerates

the retail theft statute.” Id. The Fourth District noted that the defendant’s assertion that the

intent to commit a theft does not remove one’s authority to enter a retail establishment would

eliminate other types of burglary, such as when one enters an establishment intending to commit

forgery. Id. ¶ 29 (citing People v. Drake, 172 Ill. App. 3d 1026, 1028 (1988)). Finally, the court



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noted that, in the 50 years since Weaver was announced, the legislature has never amended the

burglary statute to eliminate its application to cases of that type. Id. ¶ 30.

¶ 24   We agree with Burlington that the history and nature of the burglary-by-remaining

provision distinguish it from burglary by unauthorized entry such that Bradford’s rationale cannot

be mechanically applied to the latter provision. The distinction is further justified by the fact that

one who enters a store with a preconceived plan to steal merchandise is at least arguably more

culpable than one who, once inside a store, impulsively takes merchandise. See Durham, 252 Ill.

App. 3d at 93 (no evidence that the defendant “was carrying out some previously devised plan

rather than taking advantage of an opportunity presented by the circumstances”).

¶ 25   In People v. Johnson, 2018 IL App (3d) 150352, ¶ 35, a case upon which defendant relies,

the Third District came to a different conclusion than the Fourth District in Burlington. In

Johnson, the Third District held that Bradford changed longstanding law and applies to cases of

burglary by unauthorized entry. Id. The court concluded that “Bradford’s physical authority test

applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift.” Id.

¶ 26   We disagree with and do not follow Johnson. The court’s primary concern there appears

to have been that allowing the same act to be charged as either burglary or retail theft (or both)

gives prosecutors “unbridled discretion.” Id. ¶ 30. We, however, do not find that limiting a

prosecutor’s discretion to charge a defendant when his or her conduct falls under one or more

provisions is a basis to depart from more than 100 years of precedent. The state’s attorney has the

responsibility of evaluating evidence and other pertinent factors and determining what, if any,

offense should be charged. People v. Williams, 147 Ill. 2d 173, 256 (1991) (citing People v.

Rhodes, 38 Ill. 2d 389, 396 (1967)). Thus, the prosecutor is vested with wide discretion in

enforcing the criminal laws. Id. (citing Marcisz v. Marcisz, 65 Ill. 2d 206, 210 (1976)). Further,



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as the Burlington court noted, “[c]oncerns over the exercise of prosecutorial discretion cannot alter

the plain language of a statute.” Burlington, 2018 IL App (4th) 150642, ¶ 32.

¶ 27   Johnson also seemed to express concern that allowing shoplifting to be charged as

unauthorized-entry burglary would effectively nullify the retail-theft statute: “We suspect that it is

a miniscule percentage of shoplifters who form the intent to steal only after entering a store.”

Johnson, 2018 IL App (3d) 150352, ¶ 33. The court cited no authority for its “suspicion.”

Further, it missed the point: unlawful-entry burglary requires the concurrent intent to commit a

theft or felony. Given the difficulty of proving a defendant’s intent at the moment he or she enters

a store, it is more probable that the vast majority of cases are charged as retail theft (because the

State has insufficient evidence of intent at entry). See Kelley, 274 Ill. at 558; Durham, 252 Ill.

App. 3d at 93; People v. Boose, 139 Ill. App. 3d 471, 474 (1985) (burglary convictions reversed

due to lack of evidence of the defendants’ intent upon entering). In any event, these are policy

arguments best directed to the legislature. Thus, we follow Burlington.

¶ 28                                B. Intent and Accountability

¶ 29   Defendant next contends that the evidence was insufficient to prove that he entered the

store intending to commit a theft or that he was accountable for Adrian’s conduct after they entered

the store. Defendant discusses this issue primarily as it relates to his burglary conviction, but he

also asks us to reverse his retail-theft conviction. Entering without authority is not an element of

retail theft. See 720 ILCS 5/16-25(a) (West 2014). However, to establish guilt of retail theft, the

State had to prove that defendant was accountable for Adrian’s conduct (because there was no

evidence that defendant personally stole anything from the Walmart). For the following reasons,

we conclude that the evidence was sufficient to prove that defendant entered the store intending to

commit a theft and that he was accountable for Adrian’s conduct after they entered the premises.



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¶ 30   When reviewing the sufficiency of the evidence, we ask only whether any rational trier of

fact could have found the elements of the offense, when viewing the evidence in the light most

favorable to the prosecution. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). It is the trier of fact’s

function to judge the witnesses’ credibility, resolve conflicts in the evidence, and draw conclusions

based on all the evidence. People v. Titone, 115 Ill. 2d 413, 422 (1986). To prove that a

defendant was accountable for another’s criminal conduct, the State must establish that the

defendant (1) solicited, ordered, abetted, or agreed or attempted to aid another in the planning or

commission of the offense; (2) participated before or during the commission of the offense; and

(3) had the concurrent, specific intent to promote or facilitate the commission of the offense. 720

ILCS 5/5-2(c) (West 2014); People v. Jaimes, 2014 IL App (2d) 121368, ¶ 37. “To prove intent,

the State must present evidence that the defendant shared the criminal intent of the principal or that

there was a common criminal design.” Jaimes, 2014 IL App (2d) 121368, ¶ 37.

¶ 31   Here, Eby observed defendant and Adrian enter the store together. Video confirms that

they were dropped off together and entered the store almost simultaneously. Video shows that

Adrian, who was inexplicably carrying a diaper bag, entered the liquor department. Defendant

entered seconds later, and the two briefly conversed or at least made eye contact. Defendant then

left the area and embarked on a circuitous journey around the front of the store. At no time was he

seen examining merchandise as if shopping, and except for a brief foray through the

women’s-wear department, he never entered another area of the store containing merchandise.

From this, the jury could reasonably infer that defendant served as a lookout while Adrian stuffed

the diaper bag with liquor. Defendant’s conduct was not “that of a shopper browsing through

various racks and displays.” Durham, 252 Ill. App. 3d at 92.




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¶ 32       Moreover, defendant ran after leaving the store. When apprehended a short time later, he

appeared sweaty, out of breath, and nervous. He gave the investigating officers conflicting

stories.     His flight and false exculpatory stories could both be viewed as evidence of

consciousness of guilt. See People v. Harris, 52 Ill. 2d 558, 561 (1972) (evidence of flight

admissible as tending to show consciousness of guilt); People v. McQueen, 115 Ill. App. 3d 833,

837 (1983) (false exculpatory statement admissible to establish consciousness of guilt).

¶ 33       Thus, the evidence was sufficient to prove that defendant and Adrian entered the store

intending to commit a theft and, moreover, that defendant was accountable for Adrian’s conduct

after they entered the premises. We affirm defendant’s convictions.

¶ 34                                 C. Extended-Term Sentence

¶ 35       Defendant’s final contention is that his extended-term sentence for retail theft is

unauthorized. The State confesses error.

¶ 36       Extended-term sentences may be imposed only for offenses within the most serious class

of offense of which a defendant is convicted. 730 ILCS 5/5-8-2(a) (West 2014); People v.

Jordan, 103 Ill. 2d 192, 207 (1984). Defendant was convicted of burglary, a Class 2 felony (720

ILCS 5/19-1(b) (West 2014)), and retail theft, a Class 4 felony as charged here (id. § 16-25(f)(1)).

Thus, as the State concedes, defendant could not receive an extended-term sentence for retail theft.

Accordingly, we reduce defendant’s sentence for retail theft to three years’ imprisonment, the

maximum nonextended term for a Class 4 felony. 730 ILCS 5/5-4.5-45(a) (West 2014).

¶ 37                                     III. CONCLUSION

¶ 38       The judgment of the circuit court of Boone County is affirmed as modified. As part of our

judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal. 55

ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978).



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¶ 39   Affirmed as modified.





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