People v. Roberts

• Decision Date: 14 January 2013
• Docket Number: Docket No. 2–11–0524.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Brett A. ROBERTS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (2d) 110524
983 N.E.2d 539
368 Ill.Dec. 126

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Brett A. ROBERTS, Defendant–Appellant.

Docket No. 2–11–0524.

Appellate Court of Illinois,
Second District.

Jan. 14, 2013.

[983 N.E.2d 540]

Brett A. Roberts, of Vienna, appellant pro se.

Louis A. Bianchi, State's Attorney, of Woodstock (Lawrence M. Bauer and Jay Paul Hoffmann, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION
Justice SPENCE delivered the judgment of the court, with opinion.

[368 Ill.Dec. 127]¶ 1 Following a jury trial in the circuit court of McHenry County, defendant, Brett A. Roberts, was found guilty of residential burglary (720 ILCS 5/19–3(a) (West 2010)) and was sentenced to a 10–year prison term. Defendant argues on appeal that he is guilty only of burglary, not residential burglary. At issue is whether a vacant house is a “dwelling” within the meaning of the residential burglary statute, where the owners had placed the property for sale but had secured no purchaser and had moved out of the state with no plans to return to the house. We hold that such a house is not a dwelling in the pertinent sense and we therefore reduce defendant's conviction to burglary.

¶ 2 The vacant house in question is located in Woodstock. At trial, Tom Krebsbach, a realtor, testified that, on May 11, 2010, he went to check on the house. The owners, John and Inara Howard, had moved to North Carolina and did not plan to resume occupancy of the house. When Krebsbach arrived, he encountered two men and a woman who indicated that they were waiting for their realtor to show them the house. Krebsbach entered the house and discovered a pile of copper pipe and a hacksaw that had not been there when he last visited the property. When Krebsbach walked out of the house, the three people he had encountered were gone. The State presented evidence that the piping had apparently been removed from the ceiling and detached from the home's well, the water heater, and the water softener. Defendant's fingerprints were found on pipes. The State also presented evidence that, a week later, defendant sold copper tubing to a scrap metal recycler.

¶ 3 Section 19–3(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/19–3(a) (West 2010)) provides, in pertinent part, that “[a] person commits residential burglary who knowingly and without authority enters or knowingly and without authority remains within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft.” There is no dispute that the State proved that defendant knowingly entered the Howards' house in Woodstock and that he did so with the intent to commit a theft. As noted, the issue on appeal is whether the house was a “dwelling” when defendant [368 Ill.Dec. 128]

[983 N.E.2d 541]

entered it. Section 2–6 of the Code (720 ILCS 5/2–6 (West 2010)) provides:

“(a) Except as otherwise provided in subsection (b) of this Section, ‘dwelling’ means a building or portion thereof, a tent, a vehicle, or other enclosed space which is used or intended for use as a human habitation, home or residence.

(b) For the purposes of Section 19–3 of this Code, ‘dwelling’ means a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.”

¶ 4 The question presented is one of statutory interpretation, requiring us to ascertain and give effect to the legislature's intent. People v. Diggins, 235 Ill.2d 48, 54, 335 Ill.Dec. 608, 919 N.E.2d 327 (2009). “The best indicator of the legislature's intent is the language of the statute, which must be accorded its plain and ordinary meaning,” and “[w]here the language of the statute is clear and unambiguous, this court will apply the statute as written without resort to aids of statutory construction.” Id. at 54–55, 335 Ill.Dec. 608, 919 N.E.2d 327. Our review is de novo. Id. at 54, 335 Ill.Dec. 608, 919 N.E.2d 327.

¶ 5 Because defendant was prosecuted under section 19–3 of the Code (720 ILCS 5/19–3 (West 2010)), subsection (b) of section 2–6 of the Code provides the applicable definition of “dwelling.” A house is a “dwelling” if it is one “in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside.” 720 ILCS 5/2–6(b) (West 2010). This language is clear and unambiguous. For a house to qualify as a dwelling, the owners or occupants must reside in the house at the time of the offense or must intend to do so within a reasonable time. Here, it is undisputed that the owners of the house neither resided there nor intended to do so in the future. The house was unoccupied and no specific individuals intended to reside there. The State's position, in essence, is that, because the house was for sale, the owners intended that an eventual purchaser would reside there. That does not make the...