Retail Theft Statute Countermands This Class Of Burglaries

People v. Johnson, 2018 IL App (3d) 150352 (January). Episode 456 (Duration 11:30)

Stealing from a Walmart was not a burglary.

Sad Facts

Defendant is caught takign $76.91 in girl’s clothing from a Walmart.

He was pro se and got a hung jury the first time. In the second trial was aquitted of retail therfet but convicted of burglary.

Although burglary is a Class 2 felony with a three-to-seven-year sentencing range (720 ILCS 5/19-1(b) (West 2014); 730 ILCS 5/5-4.5-35(a) (West 2014)), the court sentenced defendant as a Class X offender because his criminal record contained prior theft and burglary felony convictions within 20 years. 730 ILCS 5/5-4.5-95(b) (West 2014).

The court sentenced defendant to eight years in prison.

Burglary

The burglary statute identifies two ways in which a person commits the offense:

“A person commits burglary when without authority he or she knowingly enters or without authority remains within a building, *** or any part thereof, with intent to commit therein a felony or theft.” 720 ILCS 5/19-1(a) (West 2014).

To commit either manifestation of burglary, the offender must lack authority to be present within the building.

Issue

The crux of his argument is that he could not enter Wal-Mart “without authority” because he entered and exited the store during business hours and remained in designated public areas.

See Also

Episode 155 - People v. Bradford, 2016 IL 118674 (March).

Defendant relies on Bradford, where our supreme court held that an offender commits “burglary by remaining” only if “he exceeds his physical authority to be on the premises.” Id. ¶ 31.

Defendant claims Bradford applies to either manifestation of burglary. The State argues that defendant never entered the building lawfully; therefore, Bradford does not require reversal.

More On Bradford

The supreme court recently held that the limited authority doctrine does not apply in “burglary by remaining” shoplifting cases. Bradford, 2016 IL 118674. In Bradford, the defendant walked into a Wal-Mart with another man and immediately stole two DVDs from a display near the cash registers. He took these DVDs to the customer service desk and “exchanged” them for a Wal-Mart gift card.

Next, he walked to the men’s clothing department where he selected a hat, removed the price tag, and wore it.

He then retrieved a pair of shoes from the shoe department and placed them in a Wal-Mart bag that he concealed in his pocket— presumably to represent that he already purchased the shoes. He wore the hat and carried the shoes to the cash registers, where he rejoined the other man.

He paid for the man’s merchandise with the gift card he received in exchange for the DVDs and exited the store without paying for the hat or shoes.

The appellate court, citing Weaver, applied the limited authority doctrine and held that the defendant remained in the store without authority once he formed the intent to shoplift. People v. Bradford, 2014 IL App (4th) 130288, ¶¶ 31, 33-34.

Limited Authority Doctrine

The State relies on the “limited-authority doctrine,” which states that “one’s otherwise valid authority to be in certain premises is vitiated when that individual acts in a manner inconsistent with the authority originally granted.” People v. Wilson, 155 Ill. 2d 374, 378 (1993).

According to the State, shoplifters who form the intent to steal before entering a store lack authority to enter.  They commit burglary the instant they cross the building’s threshold.

Bradford Was Charged Differently

The State claims that this case is distinguishable from Bradford because the State charged defendant with “burglary by entering,” whereas Bradford addressed “burglary by remaining.”

Statutory Construction

The limited authority doctrine, relied upon by the State, took shape before Illinois passed its retail theft statute in 1975 (720 ILCS 5/16-25 (West 2014)). 

In Bradford, the supreme court reversed the appellate court’s decision. The court emphasized that the legislature enacted the retail theft statute in 1975, 14 years after enacting the burglary statute and 7 years after Weaver. Based on this timeline, “it strains logic to presume that the legislature intended most incidents of retail theft to be prosecuted as burglaries.” Bradford, 2016 IL 118674, ¶ 28.

The court reasoned that charging every shoplifter with burglary by remaining would “effectively negat[e] the retail theft statute.” Id. ¶ 27. Because stores are often “building[s]” or trailers (720 ILCS 5/19-1(a) (West 2014)), virtually every retail theft would also constitute a burglary if one’s “authority” hinged on whether he or she intended to shoplift merchandise.

Bradford Changes The Law

To be fair, a long line of cases supports the State’s position that one who intends to commit retail theft lacks authority to enter a store. This limited authority doctrine would allow a prosecutor to charge and convict a first time offender who enters a store with intent to steal a candy bar with burglary rather than with the misdemeanor charge of retail theft.

As explained below, we feel that Bradford changes the law and effectively overrules the law upon which the State relies.

Analysis

Courts should not interpret criminal statutes to provide prosecutors unbridled discretion to arbitrarily charge some shoplifters with Class 2 felony burglary and others with Class A misdemeanor retail theft under similar circumstances.

Another reason not to “give improbable breadth” to our burglary statute in retail theft cases is that the retail theft statute occupies the field of shoplifting crimes. Particularly relevant to this case, the statute covers situations where shoplifters knowingly transfer merchandise “to any other container with the intention of depriving the merchant of the full retail value.” 720 ILCS 5/16-25(a)(3) (West 2014). It also covers situations where shoplifters knowingly use a “theft detection shielding device,” which is “any laminated or coated bag or device designed and intended to shield merchandise from detection by an electronic or magnetic theft alarm sensor.” Id. § 16-25(a)(7), (e).

The Statute Contemplates These Facts

Obviously, persons who enter a store with any of these items formed the intent to commit theft before entering.

The statute contemplates all manifestations of retail theft, regardless of whether shoplifters form the requisite intent before or after entering the store. 

The state's attempt to distinguish Bradford does not logically follow the supreme court’s rationale. Under either manifestation of burglary, the offender must lack “authority.” If forming the intent to shoplift does not revoke one’s authority to remain in a store, then it cannot logically revoke one’s authority to enter either.

We suspect that it is a miniscule percentage of shoplifters who form the intent to steal only after entering a store.

Burglary Is Different Than Retail Theft

The State’s position also ignores the purpose for criminalizing burglary. The “crime of burglary reflects a considered judgment that especially severe sanctions are appropriate for criminal invasion of premises under circumstances likely to terrorize occupants.” Model Penal Code § 221.1 (Explanatory Note). In other words, burglary aims to punish circumstances where a trespass and unwelcomed criminal intent combine to harm the victim more than either individual crime; the whole is greater than the sum of its parts. Applying the limited authority doctrine to shoplifting cases disregards the purpose of criminalizing burglary, negates the retail theft statute, and conflicts with Bradford.

Holding

We hold that Bradford’s physical authority test applies to all retail theft cases, regardless of when the defendant forms the intent to shoplift. In this case, the State alleged that defendant stole $76.91 worth of merchandise from Wal-Mart. Defendant entered the store during its business hours, remained in public areas while inside, and left the store before it closed.

He never exceeded his physical authority. We reverse his burglary conviction.