People v. Silva

• Court: Appellate Court of Illinois
• Writing for the Court: DiVITO
• Citation: People v. Silva, 628 N.E.2d 948, 256 Ill.App.3d 414, 195 Ill.Dec. 484 (Ill. App. 1993)
• Decision Date: 28 December 1993
• Docket Number: No. 1-92-2620,1-92-2620
• Parties: , 195 Ill.Dec. 484 The PEOPLE of the State of Illinois, Plaintiff-Appellee v. Miguel SILVA, Defendant-Appellant.

Page 948

628 N.E.2d 948

256 Ill.App.3d 414, 195 Ill.Dec. 484

The PEOPLE of the State of Illinois, Plaintiff-Appellee v. Miguel SILVA, Defendant-Appellant.

No. 1-92-2620.

Appellate Court of Illinois First District, Second Division.

Dec. 28, 1993.

Rita A. Fry, Public Defender, Chicago (Robert T. Fox, Jeffrey M. Howard, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty., Chicago (Renee G. Goldfarb, William D. Carroll, Scott V. Bruner, of counsel), for plaintiff-appellee.

Justice DiVITO delivered the opinion of the court:

Following a bench trial, defendant Miguel Silva was convicted of residential burglary and sentenced to a prison term of 10 years. On appeal, he contends that his conviction should be reduced from residential burglary to burglary and the cause remanded for resentencing, because the unoccupied first floor and basement apartments of the building in question did not constitute a dwelling within the meaning of the residential burglary statute. We disagree.

Mark Beard-Witherup (hereinafter complainant) has owned a two-flat apartment building in Chicago since 1982. In October 1991, he and his wife were living in the second-floor apartment. No one lived in the first-floor apartment, and no one lived in the basement, which was a garden apartment. Complainant and his wife were remodeling, redecorating, and finishing the garden apartment. They were also working slowly on the first-floor apartment. Complainant stored tools, stereo equipment, and "personal things" in the first-floor apartment. He left his power tools wherever he was working with them, and he left a power drill in the garden apartment.

A front stairwell led from the second-floor apartment to the first floor, and there was a locked door in the stairwell. The location of the locked door in the stairwell is not clear from the record.

At about 10 a.m. on October 14, 1991, complainant left the building. When he returned at about 2:30 p.m., the door to the enclosed back porch was ajar. That door was three steps up from the garden apartment. In addition, the door to the garden apartment, and the back door leading from the enclosed back porch to the kitchen of the first-floor apartment, were ajar. The window next to the garden apartment door was slightly open.

Complainant noticed that his tools and his stereo equipment were missing from the first-floor apartment, and he noticed further that the power drill which he had left in the garden apartment was missing. There was no evidence that the intruder had entered the second-floor apartment.

Chicago police found defendant's fingerprint on the outside doorknob of the door leading from the back porch to the kitchen of the first-floor apartment. When they arrested defendant on November 29, 1991, he told them that he had gained entry through a back window and a back door, that he had taken stereo equipment and tools, and that he had sold the items on the street to buy drugs. At the time of trial in May 1992, complainant was still working on the first-floor apartment, and no one was living in it. There was no evidence indicating whether the garden apartment was occupied at the time of trial.

In denying defendant's motion for a finding of acquittal at the close of the evidence, the circuit court observed that the definition of "dwelling" for the purpose of residential burglary was amended as of January 1, 1987, to require in section 2-6(b) of the Criminal Code " '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 * * *.' " The circuit court observed further that complainant owned the entire building, which contained separate and distinct apartments; that no one lived on the first floor or in the basement; and that complainant stored some of his personal property there, including stereo equipment, which the circuit court presumed was not hooked up. Defense counsel then pointed out that the first-floor apartment remained unoccupied seven months after the crime, and the circuit court replied that that circumstance concerned the question of whether the first-floor apartment was intended within a reasonable period of time to be a residence. The circuit court analogized the unoccupied space to a "large cluttered closet within [complainant's] home," because complainant owned the entire building and used the space for storage. The circuit court observed that complainant easily could have moved into the space, because he owned it, he was "rehabbing" it, and he intended it to be "used as human habitation within [a] reasonable period of time." The circuit court then denied defendant's motion for a finding of not guilty, and, at the conclusion of all the evidence, found him guilty of residential burglary.

Defendant subsequently filed a motion for a new trial in which he contended, inter alia, that the circuit court erred in ruling that the unoccupied space was a dwelling. In denying defendant's motion, the circuit court observed that the definition of "dwelling" was the key issue. The court then reaffirmed that the space was part of the dwelling because complainant owned the building, was living in one apartment, and was rehabbing the other apartment and using it to store personal property at the time of the crime. The circuit court stated that complainant was using the space as part of his home, and as an extension of his home. Finally, the court stated further that "part of the home that they actually lived in was accessible by this apartment."

On appeal, defendant contends that the unoccupied first-floor and garden apartments were not a dwelling within the meaning of the residential burglary statute because they were neither an actual nor an intended residence. Defendant asserts that the space was not an actual residence because it was not used for cooking, eating, watching television, or sleeping, but was used solely for storage like a garage. According to defendant, the residential burglary statute is not applicable to garages and therefore is not applicable to the garage-like storage space in this case. Defendant asserts further that the space was not an intended residence because the State never established the reason the space was being rehabbed, and it remained unoccupied at the time of the trial, which was seven months after the crime. According to defendant, it was as reasonable to infer that the purpose of rehabbing the space was to meet building code requirements for plumbing or electricity, or to improve the storage capability of the space, as it was to infer that the purpose of rehabbing the space was to prepare it for residential use. Defendant also contends that the circuit court wrongly applied the definition of "dwelling" set forth in section 2-6(a), instead of section 2-6(b), of the Criminal Code of 1961. Defendant concludes that his conviction must be reduced from residential burglary to burglary, and that the cause must be remanded for resentencing.

Burglary is defined 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. This offense shall not include * * * the offense of residential burglary as defined in Section 19-3 hereof." Ill.Rev.Stat.1991, ch. 38, par. 19-1(a); now codified as 720 ILCS 5/19-1(a) (West 1992).

Residential burglary is defined as follows:

"A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." Ill.Rev.Stat.1991, ch. 38, par. 19-3(a); now codified as 720 ILCS 5/19-3(a) (West 1992).

Section 2-6 of the Criminal Code of 1961 sets forth two separate definitions of "dwelling":

"(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 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." Ill.Rev.Stat.1991, ch. 38, par. 2-6; now codified as 720 ILCS 5/2-6 (West 1992).

Section 2-6(b), which defines "dwelling" for the purpose of residential burglary, was enacted effective January 1, 1987. (See Pub. Act 84-1289, eff. January 1, 1987 (amending Ill.Rev.Stat. 1985, ch. 38, par. 2-6); see also People v. Donoho (1993), 245 Ill.App.3d 938, 186 Ill.Dec. 1, 615 N.E.2d 805 (residential burglary conviction was reversed due to improper definitional instruction on "dwelling"); People v. Edgeston (1993), 243 Ill.App.3d 1, 9, 611 N.E.2d 49).)

During legislative debates, Senator Sangmeister explained the intent of the amendment as follows:

"Yes, it was even brought to our attention by the Illinois Supreme Court in a number of cases that * * * there should be a better definition to the dwelling house. We are having people prosecuted for residential burglary for breaking into * * * unoccupied buildings such as garages. Therefore, very simply, we have redefined dwelling to mean 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 in or * * * in their absence intend within a reasonable period of time to reside. So that still covers, in my opinion, the vacation home; you intend to reside in that and if you burglarize that, you would still be committing residential burglary, but it tightens up some of these cases where we got old abandoned buildings around our garages and stuff...