The Illinois Supreme Court, in a 5-2 decision, held for the first time that most “run of the mill” retail thefts are actually the offense of burglary under the law, completely changing the landscape of these cases given the much more serious nature of a burglary offense.
In this case, the defendant and an accomplice entered a Walmart and took some items by stuffing the items down his pants. A customer observed the defendant outside of the store and called the police.
The prosecutors pursued a burglary charge under the theory that the entry into the store was without authority because the store would not have permitted entry into the store to steal from them.
The jury was so instructed and the defendant was found guilty. The jury instruction on this issue centered around the idea that entry into the building is ‘with authority’ if the enters without criminal intent and was initially invited in or received
consent to enter, regardless of what the defendant does after he enters.
After the appellate court reversed the conviction, the Illinois Supreme Court reversed the appellate court, finding that this instruction is consistent with the Illinois Supreme Court’s holding in People v. Weaver, 41 Ill. 2d 434 (1968), which set forth the limited authority a person has to enter a business building or other building open to the public.
The problem the appellate court had with applying the “limited authority” doctrine of Weaver was because the passage of the retail theft statute seven years later indicated a legislative intent to overrule this meaning of Weaver. The Illinois Supreme Court majority rejected this rationale because the legislature could have changed the language of the burglary statute, but didn’t. The Court also disagreed with the Appellate Court that Weaver was distinguishable to the facts of this case.
Justices Theis and Neville dissented, agreeing with the appellate court, and finding it hard to reconcile the majority’s rationale with the Illinois Legislature’s creation of the retail theft statute.
The case is People v. Johnson, 2019 IL 123318 (August 1, 2019).