In re Thomas T.

2016 IL App (1st) 161501, 2016 WL 5371730

• Court: Appellate Court of Illinois
• Decided: September 23, 2016
• Docket: 1-16-1501
• Status: Unpublished

Opinion

2016 IL App (1st) 161501 SIXTH DIVISION September 23, 2016

No. 1-16-1501

In re THOMAS T., a Minor ) Appeal from the ) Circuit Court of (The People of the State of Illinois, ) Cook County. ) Petitioner-Appellee, ) ) v. ) No. 16 JD 597 ) Thomas T., ) Honorable ) Stuart P. Katz, Respondent-Appellant). ) Judge Presiding.

JUSTICE ROCHFORD delivered the judgment of the court, with opinion. Presiding Justice Hoffman and Justice Delort concurred in the judgment and opinion.

OPINION

¶1 Following a bench trial, the trial court adjudicated respondent, Thomas T., a delinquent

minor, pursuant to the Juvenile Court Act of 1987 (705 ILCS 405/1-1 et seq. (West 2012)), on

the grounds that he committed the offenses of vehicular invasion, burglary, and theft, and

committed respondent to the Illinois Department of Juvenile Justice to an indeterminate term to

not exceed his 21st birthday or 15 years, whichever came first. Respondent challenges only the

finding of delinquency as to the vehicular invasion offense on the ground that the evidence did

not establish that he entered the vehicle “by force.” We agree with respondent and reverse the

finding of delinquency as to the vehicular invasion offense only and remand this matter for a new

dispositional hearing.

¶2 On March 11, 2016, the State filed a petition for adjudication of wardship that alleged

that respondent, on March 7, 2016, had committed the offenses of vehicular invasion, in

violation of section 18-6(a) of the Criminal Code of 2012 (720 ILCS 5/18-6(a) (West 2012)); No. 1-15-2958

burglary, in violation of section 19-1(a) of the Criminal Code (720 ILCS 5/19-1(a) (West 2012));

and theft, in violation of section 16-1(a)(1) of the Criminal Code (720 ILCS 5/16-1(a)(1) (West

2012)). The petition asserted that respondent “by force,” reached into the interior of a 2014

Toyota Prius, occupied by Chad Smalls, with the intent to commit a theft, and obtained currency

belonging to Mr. Smalls.

¶3 At trial, Chad Smalls, a taxi driver, testified that on March 7, 2016, at approximately 2

p.m., he was sitting in his taxi, a Toyota Prius, at a stop light located at 46 West Wacker Drive in

Chicago. The doors of the taxi were not locked. Mr. Smalls’ pouch, which held his money and

daily taxi receipts, was on the front passenger’s seat. Respondent approached the taxi on the

front passenger’s side, placed a flyer on the window of the passenger’s side door, and pressed his

face against the window. Respondent’s face was not covered and nothing obstructed Mr. Smalls’

view of respondent.

¶4 Mr. Smalls told respondent to get away from the window and respondent moved toward

the rear of the taxi. At that point, a second person approached the driver’s side door of the taxi.

As Mr. Smalls was looking at the second person standing at the driver’s side door, he heard the

front passenger’s side door open. He immediately looked toward the front passenger’s side door

and saw respondent had opened the door and was removing the pouch from the passenger’s seat.

Respondent then closed the taxi door and fled with the pouch. The second person also fled. Mr.

Smalls turned from Wacker Drive and parked his taxi on Dearborn Street. He exited his taxi and

chased respondent down a flight of stairs west of the Chicago River. When he was unable to

catch respondent, Mr. Smalls dialed 9-1-1 and reported the incident. When the police arrived,

Mr. Smalls toured the nearby area with the police, but they were unable to locate respondent.

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¶5 On March 10, 2016, at approximately 12:40 p.m., Mr. Smalls was driving his taxi on

Michigan Avenue in the vicinity of Madison Street in Chicago, when he observed two young

men crossing the intersection; one of the young men was carrying flyers. When police officers

stopped the young men, Mr. Smalls was able to fully observe them. He immediately recognized

respondent as one of the two men. Mr. Smalls informed the police that respondent was involved

in the incident on March 7, 2016, and respondent was placed under arrest.

¶6 Officer Upchurch testified that on March 10, 2016, at 12:40 p.m., at the intersection of

Michigan Avenue and Madison Street, he stopped respondent and another individual for a field

interview. While speaking with respondent, Mr. Smalls approached the squad car and spoke with

the officer’s partner. Respondent was then placed under arrest.

¶7 Respondent testified that on March 7, 2016, he was not in the downtown Chicago area

and did not take a pouch from a taxi.

¶8 The trial court found respondent had committed the offenses of vehicular invasion,

burglary, and theft. The court committed respondent to the Illinois Department of Juvenile

Justice to an indeterminate term not to exceed his 21st birthday, or 15 years, whichever came

first. In sentencing respondent, the trial court found that he had an extensive criminal

background, had been charged in three criminal cases while on electronic monitoring in this case,

and had refused services and to attend school. Respondent now appeals.

¶9 On appeal, respondent argues that his adjudication of delinquency for committing the

offense of vehicular invasion was not supported by the evidence because it was not shown that

he entered the taxi by “force.” The State responds that the evidence, when viewed most

favorably to the State, was sufficient to prove respondent guilty beyond a reasonable doubt.

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¶ 10 When reviewing a challenge to the sufficiency of the evidence, “ ‘the relevant question is

whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”

(Emphasis omitted.) People v. Collins, 106 Ill. 2d 237, 261 (1985) (quoting Jackson v. Virginia,

443 U.S. 307, 319 (1979)). A reviewing court may not substitute its judgment for that of the trier

of fact on questions involving the weight of the evidence or the credibility of the witnesses

(People v. Siguenza-Brito, 235 Ill. 2d 213, 224-25 (2009)) and will not set aside a criminal

conviction unless the evidence is so improbable or unsatisfactory that it creates a reasonable

doubt of a defendant’s guilt. Collins, 106 Ill. 2d at 261.

¶ 11 The vehicular invasion statute requires the State to show a respondent “knowingly, by

force and without lawful justification, enter[ed] or reache[d] into the interior of a motor vehicle

while the motor vehicle [was] occupied by another person or persons, with the intent to commit

therein a theft or felony.” 720 ILCS 5/18-6(a) (West 2012). The statute does not define “force.”

¶ 12 Respondent’s challenge to the sufficiency of the evidence requires this court to construe

the meaning of the term “force” in the vehicular invasion statute. Where there are undefined

terms in a statute the “well-settled principle of statutory interpretation” requires us to give those

terms “their ordinary and popularly understood meanings.” People v. Ward, 215 Ill. 2d 317, 325

(2005). Further, “[w]hen the statue contains undefined terms, it is entirely appropriate to employ

a dictionary to ascertain the plain and ordinary meaning of those terms.” People v Davison, 233

Ill. 2d 30, 40 (2009). Our overall guiding rule for statutory construction “is to ascertain and give

effect to the legislature’s intent.” Id. Our review is de novo. Id.

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¶ 13 Both respondent and the State have cited People v. Isunza, 396 Ill. App. 3d 127 (2009), in

support of their positions and we find the case instructive.

¶ 14 In that case, the defendant and Nicholas Brower approached a vehicle and Mr. Brower

reached into the open window and twice punched the driver in the head. Id. at 129. The

defendant was convicted of aggravated battery and vehicular invasion against the driver on the

basis of accountability. Id. The defendant challenged his conviction for vehicular invasion by

arguing that the evidence did not show that Mr. Brower, for whose conduct the defendant was

found accountable, entered the vehicle with force as the window was open. Id. at 129-30. The

appellate court affirmed the conviction after construing the meaning of the term “force” in the

statute. In its interpretation of force, the court stated as follows:

“The term ‘force’ is not defined by the vehicular-invasion statute. However,

section 12-12 of the Criminal Code of 1961 (720 ILCS 5/12-12 (West 2006)), which

pertains to sexual-assault offenses, defines force as ‘the use of force or violence.’ This is

consistent with the definition provided in Black’s Law Dictionary, defining force as

‘[p]ower, violence, compulsion, or constraint exerted upon or against a person or thing.’

Black’s Law Dictionary 644 (6th ed. 1990).” Isunza, 396 Ill. App. 3d at 130-31.

¶ 15 The court then found based on the evidence that “Brower’s actions indicate that, in

reaching into the vehicle, he used his strength directed to a specific end, that being to punch [the

driver] in the head.” Id. at 131; see also People v. Reese, 2015 IL App (1st) 120654, ¶ 86, appeal

allowed, No. 120011 (Ill. Mar. 30, 2006) (where court, relying on holding in Isunza, found the

force element of vehicular invasion statute was met when defendant engaged in a struggle with

occupant of bus after his entry through an open door). In reaching its conclusion that the

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evidence was sufficient to sustain the conviction, the Isunza court cited our decision in People v.

Jones, 289 Ill. App. 3d 1 (1997). In Jones we affirmed the defendant’s conviction for vehicular

invasion where he thrust a knife through an open car window at the occupant who avoided

injury. Id. at 3.

¶ 16 The court in Isunza, however, found the fact that the window of the vehicle was opened,

was not dispositive of whether Mr. Brower used force to reach into the vehicle. Isunza, 396 Ill.

App. 3d at 131. The court also rejected the defendant’s argument that Mr. Brower’s reaching into

the vehicle’s open window did not fall within the vehicular invasion statute because the

legislative intent in enacting the statute was to deter crimes related to “smash and grab.” Id. at

133. The court explained that the vehicular invasion statute did not include an expressed

requirement that a “smash” of the vehicle occur. Id. Instead, the force element in Isunza was

satisfied by Mr. Brower’s act of punching the victim who was inside the vehicle. Id.

¶ 17 Similarly, we find the facts, that the door was unlocked when respondent entered the taxi

and respondent did not physically damage the taxi, are not dispositive here regarding whether

respondent used force when reaching into the taxi. Further, we recognize that respondent did

exert some authority over the taxi in order to open its unlocked door. However, respondent’s

authority was exercised without a showing of strength, power, or violence and without a threat to

do so. Respondent did not seek to injure or physically struggle with Mr. Smalls as did the

defendants in Isunza, Reese, and Jones. In opening the unlocked taxi door, respondent did not

exercise constraint or compulsion over Mr. Smalls or his taxi. Therefore, we find the State did

not meet its burden of showing that force was used by respondent in his entry into the taxi.

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¶ 18 The State cites State v. Harris, No. 90699, 2008 WL 4885049 (Ohio Ct. App. Nov. 13,

2008), and State v. Lane, 361 N.E.2d 535 (Ohio Ct. App. 1976), and argues that respondent’s act

of opening the unlocked door of the taxi was an act of force. We find the cases have no

relevance.

¶ 19 Both cases relate to the Ohio aggravated burglary statute (see Harris, 2008 WL 4885049,

at *3, and Lane, 361 N.E.2d 535) which includes an element that a defendant commits a trespass

“by force, stealth or deception.” (Internal quotation marks omitted.) Harris, 2008 WL 4885049,

at *3. Force is expressly defined by Ohio statute as “any violence, compulsion, or constraint

physically exerted by any means upon or against a person or thing.” (Internal quotation marks

omitted.) Id. at *4. Based on this statutory definition, which does not provide for any measure of

physical exertion that might constitute force (State v. Austin, No. 20445, 2005 WL 567305, at *2

(Ohio Ct. App. Mar. 11, 2005)), Ohio courts have long recognized that “ ‘the force element of an

aggravated burglary charge can be accomplished through the opening of a closed but unlocked

door.’ ” Harris, 2008 WL 4885049, at *4 (quoting Austin, 2005 WL 567305, at *2).

¶ 20 The relevant statue here is not aggravated burglary but vehicular invasion. Additionally,

in this state, there is no statutory or well established common law that defines force as found in

the vehicular invasion statute to include any measure of physical exertion by any means against a

thing. The Ohio cases are not persuasive. We reject the State’s contention that the mere act of

opening an unlocked door without more constitutes force as contemplated by the vehicular

invasion statute.

¶ 21 The State also argues that, because respondent was found to have committed burglary, a

“forcible felony” (720 ILCS 5/2-8 (West 2012)), and does not challenge that finding, the force

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element of the vehicular invasion statute has been met. The State maintains that the offenses of

burglary and vehicular invasion have similar elements and the “only essential difference between

the vehicular invasion statute and the burglary statute is that the vehicle be occupied.” We

disagree with the State.

¶ 22 The burglary statute provides that “[a] person commits burglary when without authority

he or she knowingly enters or without authority remains within a building, housetrailer,

watercraft, aircraft, motor vehicle, railroad car, or any part thereof, with intent to commit therein

a felony or theft.” 720 ILCS 5/19-1(a) (West 2012). The burglary statute does not include the

term “force,” and therefore, the burglary charge did not require the State to establish

respondent’s entry into the taxi was done by force. In contrast, the vehicular invasion statute

required both that respondent’s entry into the taxi be done without lawful justification and by the

use of force. 720 ILCS 5/18-6(a) (West 2012). The fact that respondent was found to have

committed burglary does not establish that he used force when entering the taxi.

¶ 23 For the above reasons, we reverse only the finding of the trial court that respondent was

delinquent on the ground that he committed the offense of vehicular invasion, affirm the findings

that he was delinquent on the grounds that he committed the offenses of burglary and theft, and

remand this matter for a new dispositional hearing.

¶ 24 Affirmed in part and reversed in part; cause remanded.

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