People v. Mullinex

• Decision Date: 20 June 1984
• Docket Number: No. 2-83-0645,2-83-0645
• Citation: 465 N.E.2d 135,125 Ill.App.3d 87,80 Ill.Dec. 344
• Parties: , 80 Ill.Dec. 344 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael Laverne MULLINEX, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 135

465 N.E.2d 135

125 Ill.App.3d 87, 80 Ill.Dec. 344

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael Laverne MULLINEX, Defendant-Appellant.

No. 2-83-0645.

Appellate Court of Illinois,

Second District.

June 20, 1984.

G. Joseph Weller, Deputy State Appellate Defender, Paul J. Glaser, Asst. State Appellate Defender, Nicholas J. Kritikos, Elgin, for defendant-appellant.

J. Michael Fitzsimmons, State's Atty., Barbara A. Preiner, Asst. State's Atty., Wheaton, Phyllis J. Perko, Raymond L. Beck, State's Attys. Appellate Service Com'n, Elgin, for plaintiff-appellee.

SEIDENFELD, Presiding Justice:

Following a bench trial, Michael Laverne Mullinex, the defendant, was convicted of the offenses of burglary, theft in excess of $300, and possession of burglary tools. He was sentenced to terms of 5 years for burglary, 3 years for theft and 2 years for possession of burglary tools, to be served concurrently. He appeals, contending (1) that his conduct was not burglary under section 19-1(a) of the Criminal Code (Ill.Rev.Stat.1981, ch. 38, par. 19-1(a)); (2) that his conviction of theft must be reduced to attempted theft, because the evidence failed to prove beyond a reasonable doubt that he exerted the requisite degree of control over the automobile; and (3) that the sentences were excessive.

A police officer observed defendant standing at the driver's side of the victim's Pinto in a parking lot. His hands were moving in an up and down motion near the driver's window and he had a tool in his hands. Later, he was seen seated in the car near the steering column. He was bent over the steering wheel, his hands working on the ignition. He looked up, saw the police officer, exited the automobile and began running away. He was apprehended in the parking lot, where a slender piece of metal, characterized by the officers as a "Slim Jim", fell from his clothing. The tool is used to unlock cars by inserting it between the door and the glass, hooking onto the door linkage and thereby forcing the lock to pop up.

The officer looked inside the passenger compartment and noticed that the "butterfly stem" of the ignition mechanism was off and was lying on the floor. On the front seat of the car a screwdriver and a "slam hammer", described as commonly used to remove ignitions, were found. A portion of the ignition stem was still attached to the "slam hammer." The officer also observed that the portion of the ignition system that fits into the butterfly stem appeared to have screw marks on it. The officer stated on cross-examination that he could not recollect whether the ignition mechanism was still in the steering column when he viewed the car.

1.

Defendant first argues that proof of his entering the automobile with intent to steal the vehicle did not constitute the offense of burglary. He argues that the legislature did not intend that entry into an automobile, with the intent to steal the vehicle itself, should be punished as burglary.

The statutory definition of burglary, as relevant here, provides:

"A person commits burglary when without authority he knowingly enters * * * a motor vehicle as defined in The Illinois Vehicle Code * * * or any part thereof, with intent to commit therein a felony or theft." (Footnote omitted.) (Ill.Rev.Stat.1981, ch. 38, par. 19-1(a).)

The material element of burglary is the unlawful entry with the intent to commit a felony or theft. (People v. Clark (1964), 30 Ill.2d 216, 219, 195 N.E.2d 631; People v. Sansone (1981), 94 Ill.App.3d 271, 273, 49 Ill.Dec. 842, 418 N.E.2d 862; People v. Bailey (1980), 80 Ill.App.3d 242, 244, 35 Ill.Dec. 658, 399 N.E.2d 724.) Thus, the crime of burglary is complete when a person unlawfully enters a vehicle with the intent to steal (People v. Ruckholdt (1984), 122 Ill.App.3d 7, 11, 77 Ill.Dec. 543, 460 N.E.2d 847), and it is not necessary to prove that anything is stolen. People v. Richardson (1983), 118 Ill.App.3d 175, 177, 73 Ill.Dec. 645, 454 N.E.2d 742; People v. Sansone, 94 Ill.App.3d 271, 273-74, 49 Ill.Dec. 842, 418 N.E.2d 862.

The primary or cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. (People v. Robinson (1982), 89 Ill.2d 469, 475, 60 Ill.Dec. 632, 433 N.E.2d 674; People v. Bratcher (1976), 63 Ill.2d 534, 543, 349 N.E.2d 31; People v. Gibson (1981), 99 Ill.App.3d 616, 619, 55 Ill.Dec. 24, 425 N.E.2d 1197, rev'd on other grounds (1982), 91 Ill.2d 562, 62 Ill.Dec. 181, 435 N.E.2d 1153.) The statutory language itself is the best indication of the intent of the drafters, and where that intent can be gleaned from the plain language of the statutory enactment, the courts will give it effect without resorting to other aids for construction. (People v. Robinson, 89 Ill.2d 469, 475-76, 60 Ill.Dec. 632, 433 N.E.2d 674.) Although the legislative intent is sought primarily from the language employed in the statute, the judiciary may look also to the statutory objective and the evils sought to be remedied and then arrive at a common-sense construction. (People v. Gibson, 99 Ill.App.3d 616, 619, 55 Ill.Dec. 24, 425 N.E.2d 1197.) Where several constructions may be placed upon a statute, the court should select that interpretation that leads to a logical result and avoid that which would be absurd, for the presumption exists that the legislature in passing a statute did not intend absurdity, inconvenience, or injustice. People v. Sansone (1981), 94 Ill.App.3d 271, 273, 49 Ill.Dec. 842, 418 N.E.2d 862; People v. Bournes (1977), 55 Ill.App.3d 237, 240, 13 Ill.Dec. 203, 370 N.E.2d 1230.

Based upon the plain language of section 19-1(a) of the Criminal Code of 1961, it is manifest that the defendant committed a burglary when he entered the victim's automobile with the intent to steal it. There is nothing in the statutory language itself that restricts the scope of section 19-1(a) to situations in which the defendant steals or intends to steal something from the interior of the automobile, as opposed to attempting to steal or actually stealing the vehicle itself. Furthermore, the court in Sansone concluded that the defendant, who entered an automobile with the intent to steal the vehicle itself, was properly convicted of the offense of burglary as delineated in section 19-1(a). (People v. Sansone, 94 Ill.App.3d 271, 273, 274, 49 Ill.Dec. 842, 418 N.E.2d 862.) The Sansone court rejected defendant's argument that the word "therein" contained in the burglary statute refers only to property taken from within the vehicle, not the vehicle itself. Cf. People v. Patton (1983), 112 Ill.App.3d 1, 67 Ill.Dec. 689, 444 N.E.2d 1372 (where, in the context of a prosecution for the offense of possession of burglary tools (Ill.Rev.Stat.1981, ch. 38, par. 19-2(a)), the court construed the phrase "to commit therein a felony or theft" to encompass a situation where the defendant possessed burglary tools with the intent to steal the automobile itself).

Because the public convenience and necessity require continued and broad use of the automobile "as an adjunct of modern living," the legislature may reasonably protect such vehicles "by more stringent penalties than apply to personal property lying in the open." (People v. Jennings (1976), 42 Ill.App.3d 168, 171, 1 Ill.Dec. 160, 356 N.E.2d 160.) In light of the plain language of the statute and the legislative intent impliedly expressed therein to protect motor vehicles, adoption of the defendant's position in this case would not be in harmony with the legislative enactment and intent, for his interpretation of the statute would create an absurd or illogical result. For example, under the defendant's view of the statute, a person who enters an automobile without authority and with the intent to steal an item from within the vehicle could be punished as a burglar, whereas an individual who enters a car unlawfully with the intent to steal the entire vehicle could be convicted only of the less serious offense of theft or attempted theft.

People v. Bournes (1977), 55 Ill.App.3d 237, 13 Ill.Dec. 203, 370 N.E.2d 1230 and People v. Jennings (1976), 42 Ill.App.3d 168, 1 Ill.Dec. 160, 356 N.E.2d 160, upon which the defendant places primary reliance, are not applicable on their facts and do not stand for the proposition that a defendant cannot be convicted of burglary when he...