People v. Rowell

Citation229 Ill.2d 82,890 N.E.2d 487
Decision Date22 May 2008
Docket NumberNo. 104279.,104279.
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Howard L. ROWELL, Appellant.
CourtSupreme Court of Illinois

Daniel D. Yuhas, Deputy Defender, Martin J. Ryan, Assistant Defender, Office of the State Appellate Defender, Springfield, for appellant.

Lisa Madigan, Attorney General, Springfield, William A. Yoder, State's Attorney, Bloomington (Michael A. Scodro, Solicitor General, Michael M. Glick and Eric M. Levin, Assistant Attorneys General, Chicago, of counsel), for the People.

OPINION

Chief Justice THOMAS delivered the judgment of the court, with opinion:

Defendant, Howard L. Rowell, was convicted in the circuit court of McLean County of retail theft of property having a retail value exceeding $150 (720 ILCS 5/16A-3(a) (West 2004)). Defendant thereafter filed a motion for judgment of acquittal or, in the alternative, a motion in arrest of judgment. The circuit court denied defendant's motion and sentenced defendant to 120 days in jail, with 90 days stayed pending review, and 30 months' probation. The circuit court also ordered defendant to pay restitution, as well as other fines, fees and costs. The appellate court, with one justice specially concurring, affirmed in part, vacated in part, and remanded with directions. 375 Ill.App.3d 421, 314 Ill.Dec. 457, 874 N.E.2d 553. This court then allowed defendant's petition for leave to appeal. 210 Ill.2d R. 315(a).

BACKGROUND

Defendant was arrested on August 25, 2003, while he was working at the Electronics Boutique in Bloomington, Illinois. Defendant originally was charged with theft by deception (720 ILCS 5/16-1(a)(2) (West 2004)), a misdemeanor. The original information alleged that defendant knowingly obtained control, by deception, over the property of Electronics Boutique, United States currency, by selling product belonging to Electronics Boutique and keeping the money for himself. The State nol-prossed that charge on September 22, 2003.

On September 25, 2003, defendant was charged by information with retail theft over $150 (720 ILCS 5/16A-3 (West 2004)), a Class 3 felony. That information alleged that between July 15, 2003, and August 25, 2003, defendant "knowingly took possession of merchandise, 15 electronic computer games, valued over $150, offered for sale at the Electronic[s] Boutique, a retail mercantile establishment[,] with the intent to permanently deprive the merchant of the use or benefit of the property without paying the full retail value, in violation of 720 ILCS 5/16A-3(c)."

On December 3, 2003, the State filed an information labeled "Count II." Count II also charged defendant with felony retail theft over $150 and alleged that on or about July 15, 2003, and August 25, 2003:

"[D]uring a continuing course of conduct, he [defendant] knowingly took possession of fifteen xbox [sic] brand video games, which were items of merchandise offered for sale at Electronic[s] Boutique, a retail mercantile establishment, with the intent to permanently deprive said merchant of the possession, use or benefit of said merchandise, without paying the full retail value of said merchandise, said merchandise having a value exceeding $150, in violation of 720 ILCS 5/16A-3(a)."

Defendant waived his right to a jury trial, so the case proceeded to bench trial on March 10, 2004. At trial, defense counsel agreed to stipulate to the State's evidence. The stipulated evidence included three police reports, defendant's written statement to Electronics Boutique, the Electronics Boutique manager's summary of the cost of the stolen games, defendant's videotaped statement to police, and the fact that Electronics Boutique is a retail mercantile establishment.

The police reports were prepared by Officers Shawn Albert and Brent Smallwood. Albert's report stated that on August 25, 2003, he was dispatched to investigate a burglary complaint at Electronics Boutique. When Officer Albert arrived, manager Ken McDonough told him that store management suspected defendant was stealing video games from the store and also suspected defendant was selling games to friends and pocketing the money. Consequently, a loss-prevention officer for Electronics Boutique made purchases from defendant, and defendant pocketed the money from those purchases. The loss-prevention officer and McDonough confronted defendant. Defendant immediately confessed to stealing from the store. Defendant admitted that he sold games to friends at a reduced rate and pocketed the money. Defendant also admitted to stealing video games for himself. When Officers Albert and Smallwood spoke with defendant, defendant again confessed to stealing from the store.

Officer Smallwood's supplemental report indicated that, after Albert secured the scene, Smallwood spoke with McDonough. McDonough told Smallwood that an employee from another Electronics Boutique store, Jaguneruku Rimes, went to the store and asked defendant about purchasing a Madden football game. Defendant offered the game and a handbook to Rimes at a reduced cost.

Officer Smallwood then spoke with Rimes about the incident. Rimes said that he went to the Electronics Boutique while defendant was working and asked defendant about purchasing a preowned Madden game at a reduced cost. Defendant told Rimes that defendant would sell him a new Madden game and handbook for $35. Rimes purchased the game and handbook and left the store. Rimes told Officer Smallwood that the Madden game should have cost $50, and the handbook should have cost $14.99.

In his written statement to Electronics Boutique, defendant admitted that he had stolen a total of $1,242.95 from the store. The statement said that defendant stole $367.95 in preowned Xbox software that he kept for himself, as well as $100 in new software. Defendant said he also stole $400 by selling new software to customers for $40 cash and keeping the money. In addition, defendant stole $375 by charging customers $20 cash for preowned software and keeping the cash. Defendant explained that he did these things because he had money problems and did not think about the consequences. Defendant also made a list of the stolen games that he had at his home.

Ken McDonough submitted a typed list of the 15 video games that defendant admitted stealing from the store. The list also included the retail values for those games. The prices ranged from $17.99 to $49.99, for a total of $430.85.

In defendant's taped interview at the police station, defendant stated that he had worked for Electronics Boutique for almost two months. Defendant said he had been selling the games and pocketing the money for three weeks. With regard to the games that he brought home, defendant said that he would just take a game that he wanted, although he did pay for a few games.

Defendant did not present any evidence. In closing argument, defense counsel argued that the information in count II, which used the "during a continuing course of conduct" language, was flawed.1 Defense counsel stated that he could find no authority allowing a charge with a continuing course of conduct allegation. Defense counsel then stated that although there was no dispute as to what had happened, there was a dispute as to whether the evidence showed a number of misdemeanors or a felony. Defense counsel argued that the evidence showed a "bunch of misdemeanors, not a felony." Defense counsel noted that the evidence indicated that the Xbox games were taken over a series of dates, not all at once, so that a felony charge was not justified.

On March 24, 2004, the trial court entered an order finding defendant guilty on count II, retail theft over $150. On April 15, 2004, defendant filed a motion for judgment of acquittal or, in the alternative, a motion in arrest of judgment (725 ILCS 5/116-2 (West 2004)). Defendant's motion for judgment of acquittal cited People v. Brenizer, 111 Ill.2d 220, 95 Ill.Dec. 300, 489 N.E.2d 862 (1986), and argued that although Brenizer held that a series of misdemeanor acts may be charged as a felony, Brenizer also held that the State must allege that the acts were in furtherance of a single intention and design. Defendant claimed that the attempt to aggregate his multiple acts with the phrase "continuing course of conduct" did not satisfy Brenizer. Defendant argued that the evidence did not prove a single intention and design and, at most, showed only that there were multiple intents to take property worth less than $150. Consequently, defendant should be acquitted of the felony charge.

Defendant's motion in arrest of judgment claimed that the language in the charging instrument did not sufficiently specify that defendant's conduct was in furtherance of a single intention and design to deprive Electronics Boutique of property over $150. Thus, the charge did not specifically identify a felony mental state of retail theft over $150. For that reason, the charge did not state an offense, so that the court should enter an order in arrest of judgment.

At the hearing on defendant's posttrial motion, defendant stood on his motion, noting that it was "essentially the same argument that I made for purposes of the guilty phase." The trial court denied the motion, stating, "the Court looked at that issue, and I believe there is some case law that directly supports the Court's ruling on that, and the motion will be denied." As noted, the trial court sentenced defendant to 120 days in jail, with 90 days stayed pending review, and 30 months' probation. The trial court also ordered defendant to pay $430.85 in restitution to Electronics Boutique, as well as other fines, fees and costs.

The appellate court, with one justice specially concurring, affirmed defendant's conviction and sentence. 375 Ill.App.3d 421, 314 Ill.Dec. 457, 874 N.E.2d 553. The appellate court first agreed with the State's concessions that defendant was entitled to two days' sentencing credit and a $10 credit for time served to be applied...

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