People v. Richardson

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Richardson, 2011 IL App (5th) 090663

Appellate Court Caption THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

LEON RICHARDSON, Defendant-Appellant.

District & No. Fifth District

Docket No. 5-09-0663

Filed August 17, 2011

Held The testimony of three officers describing the course of their

(Note: This syllabus investigation, which led to defendant’s arrest for burglary, was properly

constitutes no part of the admitted over defendant’s hearsay objection where the trial court

opinion of the court but instructed the jury that it could consider the testimony for that limited

has been prepared by the purpose and not for the truth of the matters asserted.

Reporter of Decisions

for the convenience of

the reader.)

Decision Under Appeal from the Circuit Court of St. Clair County, No. 09-CF-195; the

Review Hon. John Baricevic, Judge, presiding.

Judgment Affirmed; mittimus amended.

Counsel on Michael J. Pelletier, Johannah B. Weber, Dan W. Evers, all of State

Appeal Appellate Defender’s Office, of Mt. Vernon, for appellant.

Brendan F. Kelly, State’s Attorney, of Belleville (Patrick Delfino,

Stephen E. Norris, Timothy James Ting, all of State’s Attorneys

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE WEXSTTEN delivered the judgment of the court, with

opinion.

Presiding Justice Chapman and Justice Goldenhersh concurred in the

judgment and opinion.

OPINION

¶1 A St. Clair County jury found the defendant, Leon Richardson, guilty of burglary (720

ILCS 5/19-1(a) (West 2008)), and he was subsequently sentenced to serve a seven-year term

of imprisonment. On appeal, the defendant argues that the State’s evidence was insufficient

to support his conviction, that the erroneous admission of hearsay testimony denied him a

fair trial, and that he is entitled to an additional day of credit against his sentence. For the

reasons that follow, we affirm the defendant’s conviction and grant him the additional day

of credit that he seeks.

¶2 BACKGROUND

¶3 In No. 09-CF-195, the defendant was charged by information with two counts of burglary

(counts I and II). Count I alleged that, without authority, the defendant knowingly entered

Route 3 Liquors in Sauget with the intent to commit a theft therein. Count II alleged that,

without authority, the defendant remained within Route 3 Liquors with the intent to commit

a theft therein. In October 2009, the cause proceeded to a jury trial, where the evidence

established the following.

¶4 Route 3 Liquors in Sauget has a large common “floor area” that is open to the public.

Beyond the floor area, there is an office area in the back where cash and change are stored

in a large brown safe and books of instant lottery tickets are stored in a large blue safe. On

the double doors leading into the office area, there are three signs reading, “EMPLOYEES

ONLY.”

¶5 On February 18, 2009, shortly before 5 p.m., the defendant, who was not an employee

of Route 3 Liquors, was observed walking out of the office area with “something in the front

of his coat.” He then exited the store through the front doors and drove away in a white Ford

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Contour. Moments later, Route 3 Liquors was advised by its security service that the silent

alarm on one of the large safes in the office area had been activated. An ensuing inventory

of the safes revealed that instant lottery tickets with a face value of $900 were missing from

the blue one and that cash and coins in the amount of $693 were missing from the brown

one. The coins, which were in a change bag in the brown safe, were rolled in clear plastic

wrappings and consisted of $130 in quarters, $14 in nickels, and $2 in pennies. Most of the

missing cash came from a tan cash box in the brown safe. Soon after the defendant exited

Route 3 Liquors, the police arrived at the scene, and the store’s general manager called the

Illinois State Lottery’s hotline and “reported the book numbers and ticket numbers that were

stolen.”

¶6 On February 19, 2009, the defendant tried to cash an instant lottery ticket at the Crown

Food Mart in Washington Park but was denied payment. The ticket had a payout amount of

$2, and after it was rejected, the defendant reclaimed it and left the store. The cashier who

was on duty at the time testified that when she “scanned the ticket[,] *** the machine said

contact the retailer.” She further suggested that the ticket was stolen because the lottery

machine displays “contact the retailer” only in cases of stolen tickets and payout amounts in

excess of $600. The cashier knew the defendant because he “was a regular at the store,” and

she testified that she later spoke with a detective from the Sauget police department about

what had occurred.

¶7 On February 20, 2009, the defendant was arrested at the Crown Food Mart in Washington

Park after attempting to exchange rolled coins for cash. The rolled coins consisted of

quarters, nickels, and pennies and were in clear plastic wrappings. The defendant’s white

Ford Contour was towed from the scene.

¶8 A security camera positioned near the entrance of Route 3 Liquors videoed the defendant

entering the store shortly before 5 p.m. on February 18, 2009, and leaving approximately four

minutes later. Additionally, a security camera in the back room area videoed the defendant

entering the area and looking around before approaching and opening the two large safes,

neither of which was locked. While keeping a lookout, the defendant is seen removing items

from both safes and putting the items in the front of his coat. The defendant’s fingerprints

were later found on the cash box from the brown safe and on one of the doors of the blue

safe. The defendant’s attempt to cash the lottery ticket in Washington Park was also caught

on camera.

¶9 At the conclusion of the State’s case in chief, defense counsel moved for a directed

verdict arguing, inter alia, that the State had failed to prove that the defendant entered Route

3 Liquors with the intent to commit a theft. Counsel further suggested that if the State did not

elect to proceed on only one of its counts against the defendant, the jury could possibly return

a legally inconsistent verdict. In response, to “make it easier,” the State withdrew count I and

elected to proceed on count II only. The defendant presented no evidence in his defense.

¶ 10 In its closing argument to the jury, the State maintained that while the defendant’s initial

entry into Route 3 Liquors might have been authorized, he was not authorized to enter the

employees-only office area of the store, where he remained with the obvious intent to commit

a theft. Defense counsel countered that the defendant was a victim of mistaken identity and

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that, even assuming that he did commit a theft at Route 3 Liquors, he “never remained within

that building,” as the State alleged in count II of its information. Referring to count II,

counsel maintained as follows:

“This type of burglary is designed for situations where the person goes in during business

hours, hides himself away, waits till the store closes, they know they no longer have

permission to be there, and they wait and they wait until afterwards and then they come

out and burglarize the building. That’s not what you have here. That’s not the situation

that you have here.”

¶ 11 The jury was subsequently instructed that to establish the defendant’s guilt on count II,

the State had to prove the following propositions: “the defendant knowingly entered a

building,” “the defendant did so with authority,” “the defendant thereafter, without authority,

knowingly remained within that building,” and “the defendant remained within the building

with the intent to commit therein the offense of theft.” See Illinois Pattern Jury Instructions,

Criminal, No. 14.10 (4th ed. 2000). After the jury found the defendant guilty on count II, the

trial court sentenced him to serve a seven-year term of imprisonment in light of his extensive

criminal history. The present appeal followed.

¶ 12 ANALYSIS

¶ 13 Reasonable Doubt

¶ 14 Echoing his trial attorney’s closing argument to the jury, i.e., that he never “remained

within” Route 3 Liquors, the defendant’s first contention on appeal is that the State failed to

prove his guilt beyond a reasonable doubt. Noting that the State failed to establish that he hid

inside Route 3 Liquors and waited for the store to close with the intent to commit a theft, the

defendant asserts that the State failed to prove that he “remained” inside Route 3 Liquors for

purposes of the statute defining the offense of burglary. We disagree.

¶ 15 “A person commits burglary when without authority he 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 2008). The statute defining the offense thus

“provides two alternative ways to commit burglary (by unlawful entry or by unlawfully

remaining following lawful entry).” People v. Green, 83 Ill. App. 3d 982, 986 (1980). “A

criminal intent formed after a lawful entry will satisfy the offense of burglary by unlawfully

remaining” (People v. Boone, 217 Ill. App. 3d 532, 533 (1991)), and a burglary by remaining

can be proven by evidence that a defendant lawfully entered a store during business hours

and “then secreted himself in the store until it had closed with the intent to steal” (People v.

Vallero, 61 Ill. App. 3d 413, 415 (1978)). Contrary to the defendant’s contentions, however,

evidence of “hiding or secreting” until a store closes is not required to sustain a conviction

for burglary by remaining.

¶ 16 In People v. Glover, 276 Ill. App. 3d 934, 935 (1995), claiming that they had car trouble,

the defendant and an associate entered a church on a Sunday morning and asked a member

who was present if they could use a telephone. The church member “told the men there was

no telephone in the area but that she would get the pastor if they would wait there.” Id. When

she returned after summoning the pastor, the men were gone, and while following her, the

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pastor saw them “leaving the building with vacuum cleaners in their arms.” Id. The vacuum

cleaners came from “a storage area under the stairs by the back door of the church.” Id. The

defendant was later convicted on a burglary charge alleging that, without authority, he had

knowingly remained within the church with the intent to commit therein a theft. Id. at 934.

On appeal from his conviction, the defendant argued that the State failed to prove beyond a

reasonable doubt that he remained within the church without authority. Id. at 937. The

appellate court disagreed and held that although the defendant was authorized to enter the

church and wait where he had entered, he “no longer had the authority to remain in the

church when he decided not to remain at the door as instructed and decided to go to another

part of the church to steal the vacuum cleaners.” Id. at 938. Noting that the trier of fact

“could have reasonably viewed defendant’s conduct in moving, without authority, to another

part of the building to constitute the act of unlawfully remaining within a building he had

previously been permitted to enter,” the court concluded as follows:

“The evidence supported a finding that any original authority to enter the building was

legally terminated by defendant’s unauthorized movements therein. His then-continued

presence at another location in the church for the purpose of committing a theft would

constitute the act of ‘remaining.’ After considering all the evidence in the light most

favorable to the prosecution, we cannot conclude that no rational trier of fact could have

found defendant guilty beyond a reasonable doubt.” Id. at 939.

¶ 17 Here, we find Glover analogous and controlling. Because the State conceded that the

defendant entered Route 3 Liquors with authority, it was required to prove that he

subsequently remained there without authority and with the intent to commit a theft. To that

end, the evidence that the defendant entered the clearly marked employees-only office area

where he stole the lottery tickets and money was more than sufficient to prove that, with the

intent to commit a theft, he moved to a part of the store where he was not authorized to be.

As the State notes on appeal, the implied authority to be in a store during business hours does

not extend to areas designated as private or employees only. See, e.g., State v. Noel, 2008-

0961, at 3 (La. App. 1 Cor. 11/14/08);997 So. 2d 879. We also note that the defendant made

a stealthful entry into the office area and was essentially hiding while he was back there.

¶ 18 “When considering the sufficiency of the evidence, it is not the function of a reviewing

court to retry the defendant. Rather, the relevant question is whether, after reviewing all of

the evidence in the light most favorable to the prosecution, any rational fact finder could have

found beyond a reasonable doubt the essential elements of the crime.” People v. Maggette,

195 Ill. 2d 336, 353 (2001). Here, the State’s evidence established that the defendant

unlawfully remained in Route 3 Liquors with the intent to commit therein a theft, and we

accordingly affirm his conviction for burglary.

¶ 19 Alleged Hearsay

¶ 20 The defendant next argues that he was denied a fair trial by the erroneous admission of

hearsay testimony elicited from three of the State’s witnesses. In response, the State

maintains that the testimony in question was properly admitted and that, even assuming

otherwise, any resulting error was harmless.

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¶ 21 At the trial, Officer Randy Lee of the Sauget police department testified that after an

employee of Route 3 Liquors advised him that “someone had attempted to cash in one of the

stolen tickets at a convenience store in Washington Park,” he relayed that information to

Detective John Parisi of the Sauget police department. When overruling defense counsel’s

objection to this testimony, the trial court ruled that the testimony was being admitted for the

“limited purpose” of explaining the course of the police investigation and not “for the truth

of the matter asserted.” The same occurred when Detective Parisi testified that he had been

“informed by Officer Lee that a subject had tried to redeem one of the stolen lottery tickets

at the Crown Food Store” and when Officer Jeffrey Waters of the Washington Park police

department testified that he had assisted the Sauget police department with the arrest of “an

alleged armed robber” at the store. On appeal, the defendant contends that the objected-to

testimony of Lee, Parisi, and Waters was inadmissible hearsay that denied him a fair trial.

We disagree.

¶ 22 “To qualify as hearsay, an out-of-court statement must be offered to establish the truth

of the matter asserted.” People v. Simms, 143 Ill. 2d 154, 173 (1991). “Testimony about an

out-of-court statement which is used for a purpose other than to prove the truth of the matter

asserted in the statement is not ‘hearsay.’ ” Id. The supreme court has held that law

enforcement officers “may recount the steps taken in the investigation of a crime, and may

describe the events leading up to the defendant’s arrest, where such testimony is necessary

and important to fully explain the State’s case to the trier of fact.” Id. at 174. Additionally,

a law enforcement officer “may testify about his conversations with others, such as victims

or witnesses, when such testimony is not offered to prove the truth of the matter asserted by

the other, but is used to show the investigative steps taken by the officer.” Id. “Testimony

describing the progress of the investigation is admissible even if it suggests that a

nontestifying witness implicated the defendant.” Id. “The admissibility of evidence is within

the sound discretion of the trial court, and its ruling will not be reversed unless there has been

an abuse of that discretion.” People v. Williams, 181 Ill. 2d 297, 313 (1998). “An abuse of

discretion occurs where the trial court’s decision is arbitrary, fanciful or unreasonable

[citation] or where no reasonable person would agree with the position adopted by the trial

court [citations].” People v. Becker, 239 Ill. 2d 215, 234 (2010).

¶ 23 Here, applying these principles to the testimony at issue, we conclude that the testimony

was not hearsay, and the trial court did not abuse its discretion in admitting it for the limited

purpose of describing the course of the investigation that led to the defendant’s arrest. Simms,

143 Ill. 2d at 174. When overruling defense counsel’s objections, the trial court specifically

instructed the jury that it could only consider the testimony for that limited purpose and was

not to consider it for the truth of the matters asserted. “We must presume, absent a showing

to the contrary, that the jury followed the trial judge’s instructions in reaching a verdict.” Id.

Moreover, even assuming, arguendo, that the jury disregarded the trial court’s instructions

and considered the testimony as evidence that the defendant was in possession of a stolen

lottery ticket and was an “alleged armed robber,” any resulting error was harmless in light

of the overwhelming evidence of the defendant’s guilt. See People v. McKown, 236 Ill. 2d

278, 311 (2010).

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¶ 24 Sentence Credit

¶ 25 The defendant lastly argues that although he was arrested and taken into custody on

February 20, 2009, when calculating the credit that he was entitled to receive for time spent

in custody prior to sentencing, the trial court mistakenly used February 21, 2009, as the start

date. The State concedes that the defendant is correct, and we accordingly order that his

mittimus be amended to reflect a start date of February 20, 2009.

¶ 26 CONCLUSION

¶ 27 The State proved the defendant’s guilt beyond a reasonable doubt, and he was not denied

a fair trial by the admission of the testimony that he complains of on appeal. Accordingly,

we hereby affirm the defendant’s conviction. We further order that the defendant’s mittimus

be amended as directed. See People v. Starnes, 374 Ill. App. 3d 132, 144-45 (2007).

¶ 28 Affirmed; mittimus amended.

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