                            ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. McDaniel, 2012 IL App (5th) 100575




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



District & No.              Fifth District
                            Docket No. 5-10-0575


Rule 23 Order filed         September 7, 2012
Motion to publish
granted                     October 12, 2012


Held                        Defendant’s conviction for burglary based on remaining within a retail
(Note: This syllabus        store with the intent to commit a theft was reversed, since defendant did
constitutes no part of      not “remain within” the store to commit a theft, he entered the store with
the opinion of the court    authority, he did not exceed that authority, he left immediately after
but has been prepared       stealing fishing reels, he was properly convicted of retail theft, and the
by the Reporter of          prosecution should not be allowed to convert retail theft into burglary
Decisions for the           under the circumstances.
convenience of the
reader.)


Decision Under              Appeal from the Circuit Court of St. Clair County, No. 10-CF-139; the
Review                      Hon. Milton S. Wharton, Judge, presiding.



Judgment                    Reversed.
Counsel on                  Michael J. Pelletier, Johannah B. Weber, and Edwin J. Anderson, all of
Appeal                      State Appellate Defender’s Office, of Mt. Vernon, for appellant.

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


Panel                       JUSTICE GOLDENHERSH delivered the judgment of the court, with
                            opinion.
                            Justices Welch and Wexstten concurred in the judgment and opinion.



                                              OPINION

¶1           Defendant, Robert McDaniel, was charged with two counts of burglary (720 ILCS 5/19-1
        (West 2010)) and one count of retail theft (over $150) (720 ILCS 5/16A-3 (West 2010)
        (repealed by Pub. Act 97-597, § 6 (eff. Jan. 1, 2012))). Defense counsel, in opening
        statement, conceded the theft charge and tried the case to the jury defending against the two
        counts of burglary. The first count alleged that defendant entered the store with intent to
        commit a theft; the second burglary count alleged defendant remained within the store with
        intent to commit a theft. After deliberation, the jury returned a verdict of not guilty on the
        first charge of burglary, entering the store with intent to commit a theft, and found defendant
        guilty of the second count, remaining within the store with intent to commit a theft.
        Defendant appeals only his burglary conviction, not the jury’s verdict of guilty of retail theft.
        For the reasons stated below, we reverse.

¶ 2                                           FACTS
¶ 3         Defendant entered a Walmart store in Cahokia and immediately raised the suspicion of
        Joseph Agles, the store’s loss prevention agent. What ignited Agles’ suspicion was that
        defendant entered the store wearing sunglasses, a heavy coat, and a ski cap, according to
        Agles’ testimony. Because his entry to the store was at 8:30 at night and, per Agles’
        testimony, it was not very cold outside, Agles became suspicious. Agles also testified that
        shoplifters often wear sunglasses and bulky clothing.
¶4          Agles tracked defendant through the store and also initiated the store’s video surveillance
        system to watch him. He saw defendant pick up three fishing reels, remove them from their
        packages, put the empty packages back on the shelf, and place the three reels inside his coat.
        Defendant then headed for the store’s exit, walking past cash registers without paying for the
        fishing reels. He was stopped by Agles and another manager, and fishing reels with a total
        retail value of $181 were recovered from defendant.


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¶ 5        The surveillance video of defendant was placed on a DVD and the DVD was shown to
       the jury. It is uncontested that defendant was in the store about six minutes.
¶ 6        In closing arguments, the State asserted that the jury should find defendant guilty of the
       count charging “remaining within” on the basis that the intent to commit a theft arose after
       defendant entered the store and defendant remained in the store in order to commit the
       offense. The State also argued, as to the unauthorized entry charge, the first burglary charge,
       that defendant must have had an intent to commit a theft inside the store because he remained
       for only about six minutes. The State argued that by opening the fishing reel packages and
       then attempting to exit the store, defendant remained within the building.
¶7         After deliberation, the jury acquitted defendant of count I, charging burglary by unlawful
       entry with the intent to commit a theft, and found defendant guilty of count II, unlawfully
       remaining within the store with intent to commit a theft.
¶ 8        Defendant timely filed a posttrial motion alleging insufficient proof of burglary and that
       the State had been allowed to argue and submit to the jury an improper configuration of the
       “remaining within” charge. After briefing, the circuit court granted defendant’s motion to
       vacate the conviction of burglary. The State filed a motion to reconsider, which was
       subsequently granted by the circuit court. The burglary conviction was reinstated and
       defendant was sentenced to two years of TASC probation with drug treatment. Defendant
       timely appeals.
¶ 9        Defendant did not appeal the theft charge, and the jury acquitted him of the first count
       of burglary, unlawful entry. This appeal concerns the second burglary count. For the reasons
       stated below, we reverse.

¶ 10                                         ANALYSIS
¶ 11        The jury’s verdict acquitting defendant of count I, unlawful entry, reflects the recognition
       by the jury that the area entered by defendant is not a home or an employee-only area, but
       rather the general customer area of a retail store which permits and, in fact, encourages
       members of the public in general to enter with the hope and expectation that they will
       examine merchandise and decide to purchase the store’s wares. The facts indicate, and the
       jury so determined, that defendant had authority to be within the building. The question
       before us is whether, having authority to enter the building and apparently not exceeding the
       physical scope of that authority, defendant’s formation of an intent to commit a theft and
       acting upon that intent constituted the offense of burglary. The State urges that based on
       People v. Boose, 139 Ill. App. 3d 471, 487 N.E.2d 1088 (1985), and People v. Boone, 217
       Ill. App. 3d 532, 577 N.E.2d 788 (1991), the conviction should be upheld. Defendant
       essentially hinges his argument on People v. Vallero, 61 Ill. App. 3d 413, 378 N.E.2d 549
       (1978). The key question formed by the parties’ arguments is the question of “remaining
       within.” We conclude that the essentially uncontested evidence before us underlies a factual
       situation closer to Vallero than to Boose or Boone.
¶ 12        The State argues from People v. Boose the general proposition that a criminal intent
       formed after lawful entry can satisfy either retail theft or burglary by remaining within the
       building. Boose, however, is distinguished from the instant fact pattern in that, as the court

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       noted, the State charged Boose with burglary by illegal entry. The Boose court determined
       that the State had not met its burden in that the State failed to prove beyond a reasonable
       doubt that Boose possessed an intent to steal at the time he entered a department store open
       to the public during regular business hours. In People v. Boone, the defendant was similarly
       charged, but the State went to the jury on the “remaining within” theory. In Boone, the
       defendant, without authority, entered a vacant building and, accordingly, the Boone court
       reversed the defendant’s conviction.
¶ 13       The State also argues People v. Poe, 385 Ill. App. 3d 763, 896 N.E.2d 453 (2008), in
       which the defendant was convicted of both burglary and theft. Poe drove into a lumber yard,
       told an employee that he was supposed to pick up an order for a home improvement
       customer, and upon receiving the appropriate “pick ticket,” entered the warehouse where the
       materials, siding, were loaded into his truck. Poe was convicted of knowingly and unlawfully
       entering the lumber supply with intent to commit a theft and on appeal argued that his
       conviction violated the one-act, one-crime principle as the theft, in his argument, was a
       lesser-included offense of burglary. The court ruled otherwise. We note that the one-act, one-
       crime principle is not the basis for defendant’s argument in the instant case.
¶ 14       Our recent opinion in People v. Richardson, 2011 IL App (5th) 090663, 956 N.E.2d 979,
       and People v. Glover, 276 Ill. App. 3d 934, 659 N.E.2d 78 (1995), cited in Richardson, better
       form the issue in this appeal.
¶ 15       In Glover, the defendant and his companion entered a church and asked a parishioner if
       they could use the telephone, indicating they had car trouble. The parishioner indicated she
       would get the pastor and they should wait where they were. The pastor, upon being
       summoned, saw that the men were gone and further observed them leaving the church
       carrying vacuum cleaners which came from a storage area. In Richardson, the defendant
       entered the retail floor of a liquor store but subsequently entered an office area in which cash
       and inventory were stored. The doors leading into this area read, “Employees Only.” After
       Richardson left the building, an inventory indicated that lottery tickets and cash were
       missing.
¶ 16       In both Richardson and Glover, the defendants, while initially entering lawfully, had
       exceeded the scope of the authority granted to them in that lawful entry and, after exceeding
       the scope of authority, committed a theft. In the instant case, there is no allegation and the
       record does not reflect that defendant exceeded the scope of his authority to enter the general
       retail area of the store.
¶ 17       The instant case is much closer to People v. Vallero, 61 Ill. App. 3d 413, 378 N.E.2d 549
       (1978). In Vallero, the defendant entered a dairy and, upon requesting an employment
       application, was directed to be seated at a desk at which payroll checks were being prepared.
       The defendant asked to use the restroom, which permission was granted. Upon returning, he
       submitted a blank job application and left the dairy. Shortly after his exit, an employee of the
       dairy realized that some of the payroll checks were missing, and the defendant subsequently
       forged and cashed some of the missing checks. The defendant was charged with burglary.
¶ 18       On appeal, the Vallero court found that the State failed to prove he either entered with
       intent to commit a theft or remained in the dairy with the intent to commit a theft, noting that


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       Vallero took the checks and then left. The Vallero court distinguished its fact situation with
       People v. Manning, 46 Ill. App. 3d 877, 361 N.E.2d 370 (1977), in which an individual hid
       in a store until it closed with the intent to commit a theft. In the instant case, defendant was
       found by the jury not to have entered the building with intent to commit a theft, and the
       record before us further shows that defendant did not exceed the scope of his authority to be
       within the building in that he remained in the general retail area open to the public. There is
       no issue in this case as to whether defendant committed a theft. Defendant raised no defense
       and the jury convicted him of that charge.
¶ 19       Our analysis of the essentially uncontested facts in the instant case and the authorities
       cited above indicates that defendant did not “remain within” in order to commit a theft. He
       entered with authority and did not exceed the physical scope of his authority and left
       immediately after stealing the fishing reels. Defendant was properly convicted of that theft.
       We agree with the argument made by defendant in his brief:
           “The State knows that [defendant] was truly ‘stealing’, rather than committing a burglary.
           The defense acknowledged at trial that shoplifting was what [defendant] was doing. ***
           In reality, the approach taken by the State in this prosecution, and in this appeal, will
           serve to convert every retail theft into a burglary.
               Ordinary burglary is a Class 2 felony punishable by three to seven years in prison.
           720 ILCS 5/19-1 (West 2012) [sic]; 730 ILCS 5/5-4.5-35(a) (West 2012) [sic]. Standard
           retail theft of the type occurring in this case (theft not from the person, under $500) is a
           Class A misdemeanor punishable by up to 364 days in jail. 720 ILCS 5/16-1(b)(1) (West
           2012) [sic]; 730 ILCS 5/5-4.5-55(a) (West 2012) [sic]. The difference in potential
           penalties is severe. Whether or not it is good public policy to convert potentially all retail
           theft prosecutions into more serious ones for burglary is a matter of speculation. Whether
           good or bad though, that decision does not rest with the police, prosecutors, or even the
           courts of this state. The legislature defines what actions constitute a crime and how the
           crime should be punished. People v. Lee, 167 Ill. 2d 140, 145 (1995). If the police and
           prosecutors of Illinois believe that harsher penalties should be available to punish retail
           theft, they should put the issue before the legislature and seek change in the laws through
           legislative amendment. This [c]ourt should not assist the prosecution in creating a de
           facto amendment to the criminal law by reading ‘remaining within’ so broadly that
           common shoplifting becomes burglary.”
¶ 20       For the reasons stated above, we reverse the conviction of burglary.

¶ 21       Reversed.




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