                           ILLINOIS OFFICIAL REPORTS
                                         Appellate Court




                           People v. Davis, 2012 IL App (2d) 100934




Appellate Court            THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                    MARKIEL L. DAVIS, Defendant-Appellant.



District & No.             Second District
                           Docket No. 2-10-0934


Filed                      March 29, 2012


Held                       The statute creating the offense of criminal trespass to a residence does
(Note: This syllabus       not require the State to prove that defendant knew he lacked authority to
constitutes no part of     enter the residence; therefore, defendant’s conviction for criminal trespass
the opinion of the court   to a residence arising from his entry into a residence while others were
but has been prepared      present was affirmed, despite the State’s failure to prove that he knew he
by the Reporter of         lacked authority to enter the residence.
Decisions for the
convenience of the
reader.)


Decision Under             Appeal from the Circuit Court of Lake County, No. 09-CF-3656; the
Review                     Hon. Daniel B. Shanes, Judge, presiding.



Judgment                   Affirmed.
Counsel on                Thomas A. Lilien and Paul Alexander Rogers, both of State Appellate
Appeal                    Defender’s Office, of Elgin, for appellant.

                          Michael J. Waller, State’s Attorney, of Waukegan (Lawrence M. Bauer
                          and Victoria E. Jozef, both of State’s Attorneys Appellate Prosecutor’s
                          Office, of counsel), for the People.


Panel                     JUSTICE HUDSON delivered the judgment of the court, with opinion.
                          Presiding Justice Jorgensen and Justice Zenoff concurred in the judgment
                          and opinion.




                                            OPINION

¶1          Following a jury trial, defendant, Markiel L. Davis, was convicted of criminal trespass
        to a residence (720 ILCS 5/19-4(a)(2) (West 2008)) and sentenced to 32 months’
        imprisonment. Defendant appeals, arguing that the State failed to prove beyond a reasonable
        doubt that he knew that he lacked authority to enter the residence. For the reasons that
        follow, we affirm.

¶2                                         BACKGROUND
¶3           At the jury trial, Xiomera Hernandez Martinez gave the following testimony. She had
        worked as a housekeeper in the home of Robert Semrad for three years. Around 11 a.m. on
        September 10, 2009, she was cleaning the kitchen of the Semrad home when defendant
        entered the house through the kitchen door. Martinez had never seen defendant before. After
        entering the house, defendant took off his shoes. Martinez asked defendant who he was, and
        defendant responded, “What’s up?” Defendant then proceeded to the second floor of the
        house, after which he went to the basement. He continued to walk around the house for
        approximately 20 to 30 minutes. Martinez did not see defendant take anything from the
        house.
¶4           James Krause testified as follows. On September 10, 2009, he was working as a drapery
        installer at the Semrad residence. While in the dining room taking measurements, Krause
        observed a man “walking very exaggeratedly, slowly and looking around as though he were
        in a museum or something, but walking really slow.” After Krause finished measuring in the
        dining room, he located Daniel Rangelov, an employee of Semrad, to show him the other
        rooms that needed to be measured. While heading to the master bedroom with Rangelov,
        Krause observed the same man walking slowly up the stairs from the lower level of the
        house. Krause did not see the man attempting to hide, carrying anything, or doing anything


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       other than walking very slowly around the house.
¶5          Semrad gave the following testimony. He lived in a large house in Highland Park,
       Illinois. The house was located on a street with approximately 25 houses, but his house was
       rather secluded, as it was on a cul-de-sac and backed up to a ravine. His house was one of
       the largest houses on the street. On the morning of September 10, 2009, he and his wife
       accompanied their daughter to the nearby elementary school. When they arrived home at
       approximately 11:30 a.m., they were met by their nanny, who told them that there was a
       strange, unknown man in the house. Semrad ran into the house to make sure everyone was
       okay. The man was no longer there. Semrad spoke to Rangelov about what happened and
       then called the police. Semrad did not know defendant and never gave defendant permission
       to be in the residence.
¶6          Rangelov testified as follows. He had worked for Semrad since April 2009. His office
       was located in the Semrad residence. On the morning of September 10, 2009, he let Krause
       into the house to take measurements for draperies. After Krause completed the dining room
       measurements, he asked Rangelov to show him the master bedroom. As Rangelov was taking
       Krause to the master bedroom, he saw defendant in the hallway by the stairs. He did not
       know defendant and did not believe that he belonged in the house. Rangelov had not given
       defendant permission to be in the house. After showing Krause the master bedroom,
       Rangelov ran downstairs to ask defendant what he was doing in the house. As he got
       downstairs, Rangelov heard the door by the garage slam. Rangelov opened the door and saw
       defendant walking down the driveway. Rangelov asked defendant who he was looking for,
       and defendant turned around and took two steps back toward the house. Defendant did not
       say anything and then turned around again and got into his car. Rangelov then had a
       conversation with Martinez about defendant. After talking to Martinez, Rangelov ran to his
       office to get his camera. He then ran to the laundry room and videotaped defendant’s vehicle
       from the window, after which he called Semrad to report what happened.
¶7          Detective Scott Fishman of the Highland Park police department gave the following
       testimony. On September 10, 2009, he was called to investigate the presence of an unknown
       man at the Semrad residence. Fishman ran the license plate of the vehicle in Rangelov’s
       video and learned that the vehicle was registered to defendant. Fishman prepared a photo
       lineup that included a picture of defendant. Martinez and Rangelov both identified defendant
       in the lineup as the man whom they saw in the Semrad residence.
¶8          The jury found defendant guilty, and the trial court sentenced defendant to 32 months’
       imprisonment. Defendant then filed this timely appeal.

¶9                                           ANALYSIS
¶ 10       On appeal, defendant contends that the State failed to prove him guilty beyond a
       reasonable doubt, because it failed to prove that he knew he lacked authority to enter the
       Semrad residence. We conclude that it was unnecessary for the State to prove that defendant
       had knowledge of his lack of authority to enter the residence.
¶ 11       A defendant’s conviction will not be set aside unless the evidence is so improbable or
       unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Collins,

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       106 Ill. 2d 237, 261 (1985). It is not the function of this court to retry the defendant. Collins,
       106 Ill. 2d at 261. Rather, “ ‘the relevant question is whether, after 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.’ ” (Emphasis in original.) Collins,
       106 Ill. 2d at 261 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). The trier of fact
       must assess the credibility of the witnesses and the weight of their testimony, resolve
       conflicts in the evidence, and draw reasonable inferences from that evidence, and this court
       will not substitute its judgment for that of the trier of fact on these matters. People v. Ortiz,
       196 Ill. 2d 236, 259 (2001).
¶ 12       Section 19-4(a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/19-4(a)(2) (West
       2008)) provides:
           “A person commits the offense of criminal trespass to a residence when, without
           authority, he or she knowingly enters the residence of another and knows or has reason
           to know that one or more persons is present or he or she knowingly enters the residence
           of another and remains after he or she knows or has reason to know that one or more
           persons is present.”
       Although defendant acknowledges that the statute does not expressly provide that a
       defendant must know that he or she lacked authority to enter the residence, he nevertheless
       argues that the State was required to prove such knowledge. No court of review in Illinois
       has had reason to decide this issue, as every time it has been raised, the court has found that,
       even assuming that the statute requires the State to prove that the defendant knew he lacked
       authority to enter the residence, sufficient evidence was presented that the defendant knew
       he lacked authority to enter. See People v. Long, 283 Ill. App. 3d 224, 226-27 (1996); People
       v. Brown, 150 Ill. App. 3d 535, 541 (1986).
¶ 13       We are compelled to decide the issue, however, because there was insufficient evidence
       to prove beyond a reasonable doubt that defendant knew he lacked authority to enter the
       Semrad residence. The evidence presented demonstrated that defendant entered the Semrad
       residence in the middle of the day with other people present, took off his shoes, spoke with
       Martinez, and then proceeded to walk freely around the house for a significant period of
       time. No evidence was presented that defendant forced his way into the residence or that he
       tried to conceal his presence once inside. He did, however, refuse to speak with Rangelov,
       when his presence was questioned. Even viewing the evidence in the light most favorable to
       the State, there was not sufficient evidence presented to conclude that defendant knew he
       lacked authority to enter the residence. The State’s argument that it presented sufficient
       evidence that defendant knew he lacked authority to enter focuses on the evidence
       demonstrating that defendant lacked authority and offers insufficient support for the
       contention that defendant knew he lacked authority.
¶ 14       As we cannot conclude that the State provided sufficient evidence to prove that defendant
       knew he lacked authority to enter the residence, we must decide whether the State was
       required to do so in the first place. The primary goal in statutory construction is to ascertain
       and give effect to the intent of the legislature. People v. Pullen, 192 Ill. 2d 36, 42 (2000). In
       doing so, we must assume that the legislature did not intend an absurd or unjust result.


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       Pullen, 192 Ill. 2d at 42. The first step is to examine the language of the statute–“the surest
       and most reliable indicator of legislative intent.” Pullen, 192 Ill. 2d at 42. If the statute does
       not provide a definition indicating a contrary legislative intent, words in a statute are given
       their ordinary and commonly understood meanings. People v. Liberman, 228 Ill. App. 3d
       639, 648 (1992). Where the language is clear, the statute may not be revised to include
       exceptions, limitations, or conditions that the legislature did not express. People v. Goins,
       119 Ill. 2d 259, 265 (1988).
¶ 15       The language of section 19-4(a)(2) is exceptionally clear. By using the word “knowingly”
       directly before “enters the residence of another,” the legislature made apparent its intent to
       require the entry to be knowing. Similarly, the legislature specified that the State must prove
       that the defendant “knows or has reason to know that one or more persons is present.” The
       legislature did not, however, place any words before or around “without authority” that
       would indicate that the legislature intended that the defendant’s lack of authority be knowing.
       “When the legislature uses certain language in one part of a statute and different language
       in another, we may assume different meanings were intended.” People v. Hudson, 228 Ill.
       2d 181, 193 (2008). By not specifically requiring that a defendant knew that he or she lacked
       authority, when it had specifically required a defendant’s knowledge of two other elements,
       the legislature made clear its intent that the “without authority” element need not be
       knowing. See Hudson, 228 Ill. 2d at 193 (concluding that where the legislature had used
       “bodily harm” in other portions of the statute, its use of “any injury” in another portion of the
       statute indicated the legislature’s intent to encompass injuries beyond the physical).
¶ 16       Defendant contends that we should infer that a mental state–specifically,
       knowledge–applies to the “without authority” element pursuant to sections 4-3(b) and 4-9
       of the Code (720 ILCS 5/4-3(b), 4-9 (West 2008)). Section 4-3(b) provides in relevant part
       that “[i]f the statute does not prescribe a particular mental state applicable to an element of
       an offense (other than an offense which involves absolute liability), any mental state defined
       in Sections 4-4 [intent], 4-5 [knowledge] or 4-6 [recklessness] is applicable.” 720 ILCS 5/4-
       3(b) (West 2008). Section 4-9 provides:
           “A person may be guilty of an offense without having, as to each element thereof, one
           of the mental states described in Sections 4-4 through 4-7 if the offense is a misdemeanor
           which is not punishable by incarceration or by a fine exceeding $500, or the statute
           defining the offense clearly indicates a legislative purpose to impose absolute liability for
           the conduct described.” 720 ILCS 5/4-9 (West 2008).
       According to defendant, these provisions, when read together, require us to infer that a
       defendant must have known that he or she lacked authority, because not doing so would be
       to impose absolute liability for the “without authority” element when the legislature did not
       clearly indicate that it intended to impose absolute liability for that element.
¶ 17       We conclude that the legislature did clearly indicate that it intended to impose absolute
       liability with respect to the “without authority” element and, thus, it is unnecessary for us to
       infer that a mental state applies to that element. As discussed above, it is apparent that the
       legislature chose not to include a mental state for the “without authority” element, evidenced
       by the fact that the legislature specifically included the mental state of knowledge for the


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       other two elements. Had the legislature intended to apply a mental state to the “without
       authority” element, it certainly had the know-how and ability to do so. Yet, no such mental
       state was included. See People v. Christopherson, 377 Ill. App. 3d 752, 755 (2007). Short
       of including an explicit statement that no mental state applied to the “without authority”
       element, we can think of no other way that the legislature could have made it more clear that
       it intended absolute liability for the “without authority” element.
¶ 18        In sum, the language of the statute is clear in that it did not require the State to prove that
       defendant knew he lacked authority to enter the residence. Accordingly, the State’s failure
       to prove that defendant knew he lacked authority does not warrant reversal.

¶ 19                                     CONCLUSION
¶ 20       For the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.

¶ 21       Affirmed.




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