People v. Poe

• Decision Date: 07 October 2008
• Docket Number: No. 3-06-0461.,3-06-0461.
• Citation: 385 Ill. App. 3d 763,896 N.E.2d 453
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven R. POE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

896 N.E.2d 453

385 Ill. App. 3d 763

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Steven R. POE, Defendant-Appellant.

No. 3-06-0461.

Appellate Court of Illinois, Third District.

October 7, 2008.

Stephen Omolecki (Court-appointed), Office of the State Appellate Defender, Ottawa, for Steven R. Poe.

Terry A. Mertel, Deputy Director, Judith Z. Kelly, State's Attorneys Appellate Prosecutor, Ottawa, Stewart Umholtz, State's Attorney, Pekin, for the People.

Justice SCHMIDT delivered the opinion of the court:

Defendant, Steven Poe, was convicted of burglary (720 ILCS 5/19-1(a) (West 2004)) and theft (720 ILCS 5/16-1(a)(1) (West 2004)) in the circuit court of Tazewell County. He was sentenced to 4 ½ years' incarceration on the burglary conviction and 3 years' incarceration for the theft. This timely appeal followed defendant's convictions. Defendant claims, on appeal, that his theft conviction must be vacated as theft is a lesser-included offense of the burglary for which he was charged.

BACKGROUND

On September 21, 2005, defendant was charged by information with theft. The information stated that defendant committed a theft when he "knowingly exerted unauthorized control over property of Heartland Home Improvement, being siding and materials * * * with the intent to permanently deprive the owner of the use or benefit of said property" in violation of section 5/16-1(a)(1) of the Criminal Code of 1961 (the Code) (720 ILCS 5/16-1(a)(1) (West 2004)). Then, on October 6, 2005, a grand jury returned a two-count indictment in the matter. Count I was worded exactly the same as the theft count in the original information.

Count II of the grand jury indictment accused defendant of burglary, claiming he "knowingly and without authority entered a building of Lumberyard Suppliers with the intent to commit therein a theft" in violation of section 19-1(a) of the Code. 720 ILCS 5/19-1(a) (West 2004). After bonding out of jail, defendant failed to appear for a number of court hearings and a warrant for his arrest was issued. Ultimately, defendant was tried in absentia.

Testimony at trial showed that on September 13, 2005, defendant went to Lumberyard Suppliers in East Peoria, Illinois, and told an employee, James Holloway, that he was supposed to pick up an order for a Heartland Home Improvement customer who was having work done on his house. Holloway printed a "pick ticket" and gave it to defendant to take to the warehouse. Defendant entered the warehouse where Jason Lykins loaded the order, which primarily consisted of siding valued at $1,601.69, onto defendant's truck.

An employee of Heartland Home Improvement, Shayne Diebel, testified that he had hired the defendant. Diebel had called Lumberyard Suppliers and requested a delivery date for a particular job and he was told that the order had already been picked up. Diebel stated that defendant had not been authorized to pick up that order or any other order. The prosecution also presented additional evidence that defendant had committed similar crimes in the past wherein he obtained siding material under false pretenses. A jury found defendant guilty of both burglary and theft.

Defendant was arrested following his convictions and a sentencing hearing was conducted on June 13, 2006. A postsentencing motion was denied on June 19, 2006, and this timely appeal followed. Defendant's sole contention on appeal is that his theft conviction should be vacated.

ANALYSIS

Defendant claims that his conviction for theft must be vacated as it is a lesser-included offense of the burglary for which he was convicted. He acknowledges that his trial counsel failed to raise the issue below and that the first time he has raised the issue is on appeal. He argues, however, that "a one-act-one, crime violation should be deemed plain error" under Supreme Court Rule 615(a). 134 Ill.2d R. 615(a). "Before plain error can be considered as a means of circumventing the general waiver rule, it must be plainly apparent from the record that an error affecting substantial rights was committed." People v. Precup, 73 Ill.2d 7, 17, 21 Ill.Dec. 863, 382 N.E.2d 227, 231 (1978). Therefore, if no such error was committed below, "the waiver rule precludes us from considering" a question raised by defendant for the first time on appeal. Precup, 73 Ill.2d at 19, 21 Ill.Dec. 863, 382 N.E.2d 227. We find no error was committed below.

Defendant's convictions do not violate one-act, one-crime principles. Defendant was charged with and convicted of burglary in violation of section 19-1(a) of the Code. 720 ILCS 5/19-1(a) (West 2004). Section 19-1(a) of the Code states as follows, "A person commits burglary when without authority he knowingly enters or without authority remains within a building, housetrailer, watercraft, aircraft, motor vehicle as defined in The Illinois Vehicle Code, railroad car, or any part thereof, with intent to commit therein a felony or theft." 720 ILCS 5/19-1(a) (West 2004). The indictment filed on October 6, 2005, alleges defendant committed burglary "in that said defendant knowingly and without authority entered a building of Lumberyard Suppliers with the intent to commit therein a theft."

Defendant was also charged with theft in violation of section 16-1(a)(1) of the Code. Under this section, one commits a theft when he knowingly "obtains or exerts unauthorized control over property of the owner * * * and [i]ntends to deprive the owner permanently of the use or benefit of the property." 720 ILCS 5/16-1(a)(1)(A) (West 2004). Using the statutory wording, the indictment returned by the grand jury alleged defendant "knowingly exerted unauthorized control over property of Heartland Home Improvement, being siding and materials having a total value in excess of $300.00 but less than $10,000, with the intent to permanently deprive the owner of the use or benefit of said property."

Again, defendant argues that since his burglary indictment identifies the crime of theft, he cannot also be charged and convicted of theft under "one-act, one-crime" principles as it is a lesser-included offense of burglary. We disagree.

"Theft is not an included offense of burglary, and each has elements not included in the others so that multiple convictions of theft and burglary are not contrary to the [one-act, one-crime] doctrine of King." People v. McCreary, 123 Ill.App.3d 880, 884, 79 Ill.Dec. 114, 463 N.E.2d 455, 458-459 (1984). "[I]t is well recognized that theft is not an included offense of burglary by definition. Burglary does not require a taking and theft does not require an entry." People v. Johnson, 103 Ill.App.3d 564, 567, 59 Ill.Dec. 624, 431 N.E.2d 1381, 1383 (1982). "Multiple convictions and concurrent sentences should be permitted * * * where a defendant has committed several acts, despite the inter-relationship of those acts." People v. King, 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838, 844 (1977).

Our legislature has defined an included offense as one that is "established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged." 720 ILCS 5/2-9(a) (West 2004). Again, as the Johnson court succinctly and correctly noted, "Burglary does not require a taking and theft does not require an entry." Johnson, 103 Ill.App.3d at 567, 59 Ill.Dec. 624, 431 N.E.2d 1381. Therefore, neither "the same" nor "less than all of the facts" of either crime are sufficient to obtain a conviction for the other offense.

Burglary, in general and as charged in this case, is a fait accompli the moment defendant makes an unauthorized entry with the requisite intent regardless of whether a subsequent felony or theft is ever committed. It is the entry coupled with the intent to commit the theft or felony that completes the burglary. Once the burglary was complete, defendant then committed the theft. A separate act; a separate offense.

Theft is simply not an included offense of burglary in a one-act, one-crime analysis. To the extent that People v. Bussan, 306 Ill.App.3d 836, 240 Ill.Dec. 133, 715 N.E.2d 820 (1999), holds otherwise, we disagree with the holding of Bussan. The appellate court cited the supreme court's decisions in People v. Hamilton, 179 Ill.2d 319, 228 Ill.Dec. 189, 688 N.E.2d 1166 (1997), and People v. McLaurin, 184 Ill.2d 58, 234 Ill.Dec. 399, 703 N.E.2d 11 (1998), in support of its holding that convictions of both theft and burglary violated the one-act, one-crime principle. Again, theft and burglary are simply not one act. Whether defendant goes on to commit another act and, therefore, another crime is simply irrelevant to the burglary prosecution and conviction.

There is no doubt that the law of lesser-included offenses in this state has been muddied to the point where it is almost unintelligible. However, it is important to note that the supreme court has never said that one cannot be convicted of both burglary and theft where one commits a burglary by entering a building with the intent to commit a theft and, once inside, actually commits a theft. Common sense and common experience tell us that people are often convicted of burglary where no theft occurs. It is routine that burglars are either apprehended by police while in the building before a theft could be committed or scared away either by an alarm, a police siren or the unexpected presence of a person or vicious dog. Although no theft has occurred, the perpetrator is still guilty of burglary, notwithstanding the fact that he was charged with burglary on the basis that he entered a place where he had no right to be with the intent to commit a theft.

The supreme court in People v. Schmidt, 126 Ill.2d 179, 127 Ill.Dec. 816, 533 N.E.2d 898 (1988), found that theft was not a lesser-included offense of burglary. It is important to note that Schmidt involved a defendant charged only with residential burglary and yet...