People v. Gharrett

2016 IL App (4th) 140315, 53 N.E.3d 332

• Court: Appellate Court of Illinois
• Decided: April 27, 2016
• Docket: 4-14-0315
• Status: Unpublished

Opinion

NOTICE This order was filed under Supreme 2016 IL App (4th) 140315 FILED April 27, 2016 Court Rule 23 and may not be cited NO. 4-14-0315 Carla Bender as precedent by any party except in 4th District Appellate the limited circumstances allowed under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) DeWitt County LUCAS N. GHARRETT, ) No. 13CF57 Defendant-Appellant. ) ) Honorable ) William Hugh Finson, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Holder White and Appleton concurred in the judgment, and opinion.

OPINION

¶1 In October 2013, the State charged defendant with burglary and contributing to

the criminal delinquency of a minor after defendant allegedly enlisted the help of his wife's two-

year-old daughter to steal cash and checks from an office within the Secretary of State (SOS)

building in Clinton. After a February 2014 trial, the jury found defendant guilty of both counts.

The court later sentenced defendant to 12 years in prison for contributing to the criminal delin-

quency of a minor and an extended-term sentence of 12 years for burglary.

¶2 Defendant appeals, arguing that (1) the evidence was insufficient to prove him

guilty beyond a reasonable doubt of contributing to the criminal delinquency of a minor, (2) the

evidence was sufficient to prove him guilty beyond a reasonable doubt of burglary, (3) the trial

court erred by allowing witness testimony narrating a surveillance video, and (4) the court erred

by imposing an extended-term sentence on the burglary conviction. Because we agree only with defendant's first argument, we (1) reverse defendant's conviction for contributing to the criminal

delinquency of a minor and (2) affirm his conviction and sentence for burglary.

¶3 I. BACKGROUND

¶4 A. The Charges Against Defendant

¶5 In October 2013, the State charged defendant with contributing to the criminal

delinquency of a minor (720 ILCS 5/12C-30(b) (West 2012)) and burglary (720 ILCS 5/19-1

(West 2012)). The burglary count alleged that defendant did the following:

"[Defendant] knowingly without authority entered or remained

within a building or any part thereof, specifically a private office

within the Illinois Secretary of State Driver's Facility in Clinton,

with the intent to commit therein a felony or theft."

Before trial, the State amended the charge to remove the "or remained within" language.

¶6 B. Defendant's Jury Trial

¶7 The following evidence was presented at defendant's February 2014 jury trial.

¶8 Kim Gharrett was newly married to defendant. On September 17, 2013, Kim, de-

fendant (who was 25 years old at the time), and Kim's two-year-old daughter, N.J., went to the

SOS facility in Clinton to change Kim's last name.

¶9 The State introduced a compact disc containing video recorded by several surveil-

lance cameras within the SOS building. The video was shown to the jury, and multiple witnesses

testified about what the video depicted.

¶ 10 The video from the various camera angles showed the layout of the SOS building.

The main door of the building opened into a large waiting room. The back wall was lined with

chairs, which faced forward toward a long front counter. Employees stood behind the counter

-2- and assisted patrons. On one side of the counter was a room where driver's license pictures were

taken. On the other side of the counter was a short hallway that led to restrooms and an office.

Video from a camera in the office showed a desk with a computer, along with tables on which

sat various pieces of office equipment. The camera's view of the desk was partially obscured by

a potted plant. The door to the office was open.

¶ 11 The video showed defendant, Kim, and N.J. enter the SOS building and sit in the

waiting room. N.J. began wandering around the waiting room. She eventually walked toward

the hallway containing the restrooms and the office. When defendant followed her, N.J. ran

down the hallway and into the office. Defendant followed her and retrieved her from the office.

As N.J. walked out of the office, defendant leaned over and reached toward the desk with his

right hand. The potted plant obscured the view of what defendant was doing with his hand. De-

fendant and N.J. then returned to the waiting room.

¶ 12 Shortly thereafter, defendant, N.J., and Kim were standing at the counter, when

defendant bent over toward N.J. for a few seconds. When defendant stood upright, N.J. immedi-

ately ran down the hallway. She stopped at the restroom door and tried to open it. Defendant

followed N.J., grabbed her hand, and led her into the office. As defendant entered the office, he

had nothing in his right hand. The camera in the office showed defendant reach with his right

hand toward the desk. Because the potted plant obscured the view, the video does not show what

defendant did with his hand at the desk. As defendant left the office, he was holding something

in his right hand. Defendant and N.J. returned to the counter in the waiting room.

¶ 13 Amy Sessions testified that she was working behind the counter on September 17,

2013, when defendant, Kim, and N.J. entered. Sessions handled the name-changing process for

Kim. Sessions noted that N.J. was "very rambunctious, running around through the office, be-

-3- hind the counter. Loud." Sessions explained that the office near the restrooms was not open to

the public. She stated further that the door to the office was generally left open, and there was no

sign explicitly identifying that the office was not open to the public. In the 10 years that Ses-

sions had worked at the facility, she was unaware of any member of the public entering the of-

fice.

¶ 14 Paula Maddox testified that she worked at the SOS building and was responsible

for removing and counting cash and checks from the registers at various times throughout the

day, a process known as a "recap." On September 17, 2013, Maddox conducted a recap and

bundled $303 in cash with some checks. She placed the cash on top of the checks, wrapped a

rubber band around the bundle, and placed it in a desk drawer in the office. Later that day, she

noticed that the bundle was missing.

¶ 15 The State showed Maddox some snippets of the surveillance video and asked her

to describe what the video depicted. Maddox identified herself in the office, counting cash for

the recap. She then identified herself placing the bundle from the recap in a desk drawer, the

video of which was obscured by the potted plant. The State then showed Maddox the video of

defendant entering and leaving the office. When the video showed defendant leaving the office

for the second time, Maddox identified the object in defendant's right hand as the bundle of cash

and checks from the recap. Maddox testified further that the office was not open to the public

but that there was no sign so stating.

¶ 16 SOS investigator Joseph Foster testified that on September 20, 2013, he was dis-

patched to investigate the missing cash and checks from the SOS facility in Clinton. The State

showed Foster part of the video. Foster identified defendant in the video and testified that the

video showed defendant entering the office without anything in his right hand but exiting with

-4- "something in his right hand." Foster testified further that the office was "not a room for civil-

ians or the general population to go into."

¶ 17 The jury found defendant guilty on both counts. After an April 2014 sentencing

hearing, the trial court sentenced defendant to 12 years in prison for contributing to the criminal

delinquency of a minor. In addition, the court imposed a concurrent, extended-term sentence of

12 years in prison for burglary because defendant had been convicted of another Class 2 felony

within the previous 10 years.

¶ 18 This appeal followed.

¶ 19 II. ANALYSIS

¶ 20 Defendant argues that (1) the evidence was insufficient to prove him guilty be-

yond a reasonable doubt of contributing to the criminal delinquency of a minor, (2) the evidence

was insufficient to prove him guilty beyond a reasonable doubt of burglary, (3) the trial court

erred by allowing witness testimony narrating the surveillance video, and (4) the court erred by

imposing an extended-term sentence on the burglary conviction. We address defendant's claims

in turn.

¶ 21 A. The Evidence Was Insufficient To Prove Defendant Guilty of Contributing to the Delinquency of a Minor

¶ 22 Defendant argues that the evidence was insufficient to prove him guilty beyond a

reasonable doubt of contributing to the criminal delinquency of a minor. We agree.

¶ 23 1. Statutory Language and Standard of Review

¶ 24 A person 21 years of age or older commits the offense of contributing to the crim-

inal delinquency of a minor when he does the following:

"with the intent to promote or facilitate the commission of an of-

fense solicits, compels or directs a minor in the commission of the

-5- offense that is *** a felony when the minor is under the age of 17

years ***." 720 ILCS 5/12C-30(b)(i) (West 2012).

¶ 25 When reviewing a challenge to the sufficiency of the evidence, this court asks

whether, considering the evidence in a light most favorable to the State, any rational trier of fact

could have found the essential elements of the crime beyond a reasonable doubt. People v.

Wheeler, 226 Ill. 2d 92, 114, 871 N.E.2d 728, 740 (2007). We will not retry a defendant on ap-

peal. Id. The trier of fact is in the best position to judge the credibility of witnesses, "and due

consideration must be given to the fact that it was the trial court and jury that saw and heard the

witnesses." Id. at 114-15, 871 N.E.2d at 740. A reviewing court must allow all reasonable infer-

ences from the record in favor of the prosecution. People v. Cunningham, 212 Ill. 2d 274, 280,

818 N.E.2d 304, 308 (2004). A conviction will be reversed only when the evidence is "so unrea-

sonable, improbable, or unsatisfactory that it justifies a reasonable doubt of defendant's guilt."

Wheeler, 226 Ill. 2d at 115, 871 N.E.2d at 740.

¶ 26 2. The Evidence in This Case

¶ 27 We agree with defendant's contention that the evidence in this case was insuffi-

cient to prove beyond a reasonable doubt that defendant "solicit[ed], compel[led] or direct[ed]"

N.J. to run toward the office. 720 ILCS 5/12C-30(b)(i) (West 2012). The State presented the

following evidence to support that element of the offense: (1) defendant retrieved N.J. from the

office, where he allegedly noticed the bundle of cash and checks; (2) later, in the waiting room,

defendant leaned his head down toward N.J.; (3) N.J. immediately thereafter ran to the restroom

door near the office; (4) defendant followed N.J. to the restroom door, grabbed her hand, and led

her into the office; and (5) defendant then allegedly grabbed the bundle of cash and checks from

the desk in the office. The State argues that the aforementioned evidence was sufficient to prove

-6- beyond a reasonable doubt that when defendant leaned down, he told N.J. to run toward the of-

fice, which allowed defendant to enter the office and commit a theft without raising the suspi-

cions of the SOS employees.

¶ 28 We conclude that the video evidence showing defendant leaning down toward

N.J. was insufficient to prove beyond a reasonable doubt that defendant told N.J. to run to the

office area. The video does not establish that defendant said anything to N.J. when he leaned

down. N.J.'s subsequent running to the office area does not establish beyond a reasonable doubt

that defendant told her to do so. N.J. had previously wandered all over the SOS building and, in

particular, into the office without any prompting from defendant. In fact, she seemed to defy any

commands to stay near Kim and defendant. Given that context, the evidence was insufficient to

prove beyond a reasonable doubt that N.J.'s running to the office area was the result of defend-

ant's directing her to do so. Without proof beyond a reasonable doubt that defendant told N.J. to

run to the office area, the State's evidence was insufficient to prove defendant guilty beyond a

reasonable doubt of contributing to the criminal delinquency of a minor.

¶ 29 Although we must allow all reasonable inferences in favor of the prosecution, the

State's theory relied not on inference but on mere speculation. See People v. Dye, 2015 IL App

(4th) 130799, ¶ 12, 37 N.E.3d 465, 468 ("We should draw only reasonable inferences in favor of

the prosecution; we should not make random speculations in favor of the prosecution." (Empha-

sis in original.)). We conclude that the evidence was so unsatisfactory that it justifies a reasona-

ble doubt of defendant's guilt. We therefore reverse outright defendant's conviction for contrib-

uting to the criminal delinquency of a minor.

¶ 30 B. The Evidence Was Sufficient To Prove Defendant Guilty Beyond a Reasonable Doubt of Burglary

¶ 31 Defendant claims that the evidence was insufficient to prove him guilty beyond a

-7- reasonable doubt of burglary. He raises two theories in support of that claim. First, he argues

that the burglary statute does not proscribe the conduct with which he was charged in this case.

That is, defendant argues that a person does not commit burglary by entering a building with au-

thority (here, the SOS building), and then later entering without authority a part inside that build-

ing (here, the office). Second, defendant argues that even if the burglary statute does proscribe

the aforementioned conduct, the evidence in this case did not prove beyond a reasonable doubt

that defendant knew that he lacked authority to enter the office. We address and reject defend-

ant's arguments in turn.

¶ 32 1. Statutory Language

¶ 33 A person commits burglary when that person does the following:

"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).

¶ 34 2. Whether the Burglary Statute Proscribes Entering Without Authority a Part of a Building

¶ 35 Defendant argues that the burglary statute does not proscribe the following situa-

tion: when a person enters a building with authority but then later enters a particular part of that

building without authority. Defendant asserts that because he entered the SOS building with au-

thority, he cannot be guilty of burglary by entering the office with the intent to commit theft.

¶ 36 a. Rules of Statutory Interpretation

¶ 37 Defendant's claim requires us to interpret the burglary statute. Our primary goal

in statutory interpretation is to give effect to the intent of the drafters. In re Michael D., 2015 IL

119178, ¶ 9. The most reliable indicator of the drafters' intent is the language of the statute, giv-

-8- en its plain and ordinary meaning. Id. "When the statutory language is clear, it must be given

effect without resort to other tools of interpretation. It is never proper to depart from plain lan-

guage by reading into a statute exceptions, limitations, or conditions which conflict with the

clearly expressed legislative intent." Id. Questions of statutory interpretation are reviewed de

novo. People v. Giraud, 2012 IL 113116, ¶ 6, 980 N.E.2d 1107.

¶ 38 b. The Plain and Ordinary Meaning of the Burglary Statute

¶ 39 The plain language of the burglary statute states, in pertinent part, that a person

commits burglary if he or she without authority knowingly enters a building "or any part thereof"

with the intent to commit a felony or theft. 720 ILCS 5/19-1(a) (West 2012). Thus, the statute

creates two ways in which a person with the intent to commit a felony or theft can commit bur-

glary-by-entering: (1) by entering a building without authority or (2) by entering any part of a

building without authority. We conclude that the plain language of the statute proscribes the fol-

lowing act: when a person with authority to be in part of a building leaves that part and enters a

different "part thereof" that the person does not have authority to enter.

¶ 40 c. Defendant's Arguments to the Contrary

¶ 41 In arguing that the burglary statute does not forbid a person to enter a part of a

building without authority, defendant does not analyze the plain language of the burglary statute.

Instead, he cites two appellate court decisions—People v. Richardson, 2011 IL App (5th)

090663, 956 N.E.2d 979, and People v. Vallero, 61 Ill. App. 3d 413, 378 N.E.2d 549 (1978)—

which he claims support his contentions. We disagree, finding Richardson and Vallero distin-

guishable.

¶ 42 Richardson is distinguishable because it involved the sufficiency of the evidence

to prove the defendant guilty of burglary by remaining within a building or part thereof. Rich-

-9- ardson, 2011 IL App (5th) 090663, ¶ 14, 956 N.E.2d 979. In Richardson, the defendant moved

from the public " 'floor area' " of a liquor store, through the double doors marked "

'EMPLOYEES ONLY' ," and into a back-office area, where he took lottery tickets, cash, and

change from safes that were left open. Id. ¶¶ 4-8. The State initially charged the defendant with

two counts of burglary, claiming that the defendant (1) "entered Route 3 Liquors *** with the

intent to commit a theft"; and (2) "remained within Route 3 Liquors with the intent to commit a

theft." Id. ¶ 3. After the close of the State's evidence, the defendant moved for a directed verdict

on count I, arguing that the State failed to prove that he entered Route 3 Liquors with the intent

to commit a theft. Id. ¶ 9. The State agreed to withdraw count I. Id. In its closing argument, the

State argued that while defendant may have had authority to enter Route 3 Liquors, he lacked

authority to enter the back-office area. Id. ¶ 10. The jury found defendant guilty on count II. Id.

¶ 11.

¶ 43 On appeal, the defendant argued that to prove him guilty of burglary-by-

remaining, the State needed to show that he hid inside Route 3 Liquors until it closed. Id. ¶ 14.

The appellate court disagreed, holding that "evidence of 'hiding or secreting' until a store closes

is not required to sustain a conviction for burglary by remaining." Id. ¶ 15. The court cited fa-

vorably the holding of People v. Glover, 276 Ill. App. 3d 934, 939, 659 N.E.2d 78, 81 (1995),

that authority to enter a building can be terminated by a defendant's unauthorized movements

therein. Richardson, 2011 IL App (5th) 090663, ¶¶ 16-17, 956 N.E.2d 979. The court conclud-

ed that:

"[T]he evidence that the defendant entered the clearly marked em-

ployees-only office area where he stole the lottery tickets and

money was more than sufficient to prove that, with the intent to

- 10 - commit a theft, he moved to a part of the store where he was not

authorized to be." Id. ¶ 17.

The court relied on that conclusion to determine that defendant was proven guilty of burglary-by-

remaining.

¶ 44 In this case, defendant latches onto the Richardson court's statement that

"[b]ecause 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." Id. Defendant argues that the aforementioned statement stands for a universally

applicable rule that when a defendant initially enters a building with authority, he can be found

guilty of burglary only under a theory of burglary-by-remaining, and not under a theory of bur-

glary by entering another part of the building without authority.

¶ 45 We conclude that defendant's reading of Richardson is strained and incorrect.

The Richardson court's aforementioned statement was made within the context of the charges at

issue in that case. In Richardson, the State was "required to prove that [the defendant] subse-

quently remained *** without authority" (id.) because that was the only theory of burglary that

the State put to the jury. The cherry-picked language from Richardson was describing the par-

ticular evidentiary context of the facts of that case, not setting forth a generally applicable rule of

law. If anything, the underlying logic of Richardson supports the theory that a defendant can be

found guilty of burglary by initially entering a building with authority and then "mov[ing] to a

part of the store where he was not authorized to be." Id.

¶ 46 Similarly, in Vallero, 61 Ill. App. 3d at 415, 387 N.E.2d at 550, the issue was

whether the defendant had remained within a building with the intent to commit theft. In that

case, the defendant entered the office area of a dairy and requested a job application. He was

- 11 - given an application and told to fill it out at a desk where the dairy's payroll checks were being

processed. The defendant then used the restroom before returning the blank application form

and leaving the building. A dairy employee later determined that some payroll checks were

missing, and the defendant was caught forging and cashing the missing checks. A jury later

found the defendant guilty of burglary. Id. at 414, 387 N.E.2d at 549-50.

¶ 47 On appeal, the court held that the evidence was insufficient to prove the defendant

guilty of burglary because (1) he entered the dairy without an intent to commit theft; and (2)

there was no evidence that the defendant remained in the dairy after formulating an intent to

commit theft. Id. at 415, 387 N.E.2d at 550. In reaching that decision, the appellate court distin-

guished the situation in which a defendant enters a building with authority but then remains hid-

den away in the building until it has closed. Id. Vallero involved no allegation by the State that

the defendant had committed burglary by entering the dairy or a part thereof. We therefore con-

clude that Vallero is inapposite to this case. (We note that in People v. Bradford, 2016 IL

118674, the supreme court recently clarified the doctrine of burglary-by-remaining in an opinion

that cited favorably both Richardson and Vallero. We have read Bradford and conclude that it

has no bearing on this case because, as with Richardson and Vallero, it addressed only the of-

fense of burglary-by-remaining, not burglary-by-entering.)

¶ 48 Far more helpful to our decision in this case is the decision of this court in People

v. Davis, 54 Ill. App. 3d 517, 369 N.E.2d 1376 (1977). In Davis, the defendant entered an office

building through an unlocked front door that was sometimes used by members of the public.

The front part of the office contained the Community Action Depot (CAD). A doorway between

5 and 15 feet wide and without a door led into the back part of the office building, which con-

tained Consolidated Construction Company (Consolidated). The defendant moved from the

- 12 - CAD offices through the doorway into Consolidated's office, where he took a typewriter. A jury

found defendant guilty of burglary.

¶ 49 On appeal, the Davis defendant argued that the State failed to prove him guilty of

burglary. Id. at 521, 369 N.E.2d at 1380. The language of the charging instrument was not ad-

dressed in the appellate court's opinion. However, the court stated the following about the de-

fendant's burglary conviction:

"[T]he 'entry' occurred by passing through the doorway inside the

building into [Consolidated's] office area. Historically, Illinois

courts have recognized that entry into certain separate areas of a

building with the requisite intent could support a burglary charge.

(See [Kincaid v. People, 139 Ill. 213, 28 N.E. 1060 (1891)].) The

statute implements this logic by providing entry into certain struc-

tures 'or any part thereof' as an element of burglary. The charge

and the State's arguments at trial in this case were directed to proof

of burglary into a part of the building, namely [Consolidated's] of-

fice area. Any discussion by the State or the defense regarding the

front door is therefore immaterial to proof of burglary. ***

The fact that the doorway contained no door is likewise

immaterial. *** The key to the crime is entry into the prohibited

space, not whether entry was made by turning a handle, cracking a

lock, or walking through an open portal. In light of [People v.

Blair, 52 Ill. 2d 371, 288 N.E.2d 443 (1972),] and [People v.

Shannon, 28 Ill. App. 3d 873, 329 N.E.2d 399 (1975)], logic de-

- 13 - mands that entry into a 'part' of a building through an open door-

way with the requisite intent is a prohibited act under our burglary

statute." Id. at 522, 369 N.E.2d at 1381-82.

The appellate court affirmed the defendant's burglary conviction.

¶ 50 In keeping with the plain language of the burglary statute and the holding of Da-

vis, we confirm that a person commits burglary when that person enters without authority a part

of a building with the intent to commit a felony or theft, even if the person had authority to enter

the building as a whole.

¶ 51 3. Whether the Evidence in This Case Was Sufficient To Prove That Defendant Entered the Office Without Authority

¶ 52 Defendant next argues that the evidence was insufficient to prove beyond a rea-

sonable doubt that he entered the office without authority. Specifically, defendant argues that the

evidence was insufficient because he did not know that he lacked authority to enter the office.

We disagree.

¶ 53 In People v. Weaver, 41 Ill. 2d 434, 439, 243 N.E.2d 425, 248 (1968), our su-

preme court held that "authority to enter a business building, or other building open to the public,

extends only to those who enter with a purpose consistent with the reason the building is open.

[Citation.] An entry with intent to commit a theft cannot be said to be within the authority grant-

ed patrons of a laundromat." Later cases have followed Weaver's holding that entry of a public

building with the intent to commit theft constitutes an entry without authority. See, e.g, People

v. Blair, 52 Ill. 2d 371, 288 N.E.2d 443 (1972) (entry of public car wash with intent to commit

theft was without authority); People v. Rudd, 2012 IL App (5th) 100528, ¶ 13, 970 N.E.2d 580

(entry of Walmart with intent to commit theft); People v. Durham, 252 Ill. App. 3d 88, 91-92,

623 N.E.2d 1010, 1013 (1993) (collecting cases); People v. Drake, 172 Ill. App. 3d 1026, 527

- 14 - N.E.2d 519 (1988) (entry of grocery store to cash stolen checks was without authority). A bur-

glary charged in such a manner is sometimes referred to as a "Jones burglary" throughout central

Illinois. People v. Hopkins, 229 Ill. App. 3d 665, 671, 593 N.E.2d 1028, 1032 (1992).

¶ 54 Although the cases cited above addressed the entry of a building and not a part

thereof, we conclude that the holding of those cases applies in equal force to the entry of a part of

a building. That is, when a person enters a part of a building with the intent to commit a theft or

felony, that person enters that part without authority, regardless of whether that part of the build-

ing is normally held open to the public and regardless of whether that person entered the building

as a whole with authority.

¶ 55 Turning our focus to this case, we conclude that the evidence was sufficient to

prove beyond a reasonable doubt that defendant entered the office without authority because the

evidence showed that he entered the office with the intent to commit a theft. Intent may be prov-

en by circumstantial evidence. Rudd, 2012 IL App (5th) 100528, ¶ 14, 970 N.E.2d 580. Indeed,

circumstantial evidence is often the only way to establish intent. Id. The question in this case is

whether the evidence was sufficient to allow a rational jury to reasonably infer that defendant

intended to commit theft when he entered the office. Id. We conclude that it was.

¶ 56 Defendant twice entered the office on September 17, 2013. During the first entry,

defendant reached toward the desk and did something with his right hand. On his second entry

into the office, defendant followed N.J. into the hallway and then grabbed her hand and led her

into the office. He stayed in the office only long enough to reach toward the desk and then leave.

As he left, he carried something in his right hand. That evidence was sufficient for a rational ju-

ry to infer that defendant noticed the bundle of cash and checks during his first entry into the of-

fice. A jury could further infer that defendant entered the office the second time with the intent

- 15 - to commit a theft of the bundle and that he did commit a theft of the bundle when he reached his

hand toward the desk. As the evidence established no other reason why defendant entered the

office the second time other than to commit a theft, a rational jury could infer that defendant en-

tered the office with the intent to commit a theft. The evidence was therefore sufficient to prove

that defendant entered the office without authority.

¶ 57 C. Whether the Trial Court Erred by Admitting Testimony Narrating the Surveillance Video

¶ 58 Defendant argues that the trial court erred by admitting witness testimony narrat-

ing the surveillance video. We disagree.

¶ 59 Defendant argues that the trial court erred by allowing the State to introduce lay-

witness opinion testimony as to what the surveillance video showed. Specifically, defendant

claims it was error to admit (1) Maddox's testimony that the video showed defendant carrying an

object in his right hand that was "consistent with the pile or wad of cash and checks" that Mad-

dox had earlier put in the office desk; (2) Foster's testimony that the video showed defendant car-

rying something out of the office; and (3) Foster's testimony that the office was "not a room for

civilians or the general population to go into."

¶ 60 1. People v. Thompson

¶ 61 The Illinois Supreme Court recently addressed the issue of lay-witness identifica-

tion testimony in People v. Thompson, 2016 IL 118667. At issue was testimony by several wit-

nesses identifying defendant as the person portrayed in surveillance video shown to the jury.

Thompson held that a witness's identification of a person in a surveillance video is properly con-

sidered a lay-witness opinion, governed by Illinois Rule of Evidence 701 (eff. Jan. 1, 2011).

Thompson, 2016 IL 118667, ¶ 39. Rule 701 provides:

"If the witness is not testifying as an expert, the witness'

- 16 - testimony in the form of opinions or inferences is limited to those

opinions or inferences which are (a) rationally based on the percep-

tion of the witness, and (b) helpful to a clear understanding of the

witness' testimony or the determination of a fact in issue, and (c)

not based on scientific, technical, or other specialized knowledge

within the scope of Rule 702." Ill. R. Evid. 701 (eff. Jan. 1, 2011).

Relying on Rule 701, the court concluded that lay-witness identification testimony is admissible

if "(a) the testimony was rationally based on the perception of the witness and (b) the testimony

is helpful to a clear understanding of the witness's testimony or a determination of a fact in is-

sue." Thompson, 2016 IL 118667, ¶ 50.

¶ 62 The Thompson court went on to hold the following about when lay opinion identi-

fication testimony is helpful:

"Lay opinion identification testimony is helpful where there is

some basis for concluding the witness is more likely to correctly

identify the defendant from the surveillance recording than the ju-

ry. A showing of sustained contact, intimate familiarity, or special

knowledge of the defendant is not required. Rather, the witness

must only have had contact with the defendant, that the jury would

not possess, to achieve a level of familiarity that renders the opin-

ion helpful." Id.

¶ 63 The court then held that the following factors should be considered when deter-

mining whether there is "some basis for concluding the witness is more likely to correctly identi-

fy the defendant," i.e., whether the testimony is helpful:

- 17 - "[(1)] the witness's general familiarity with the defendant; [(2)] the

witness's familiarity with the defendant at the time the recording

was made or where the witness observed the defendant dressed in a

manner similar to the individual depicted in the recording; [(3)]

whether the defendant was disguised in the recording or changed

his/her appearance between the time of the recording and trial; and

[(4)] the clarity of the recording and extent to which the individual

is depicted." Id. ¶ 51.

The court clarified that "the absence of any particular factor does not render the testimony inad-

missible." Id. In addition, "the extent of a witness's opportunity to observe the defendant goes to

the weight of the testimony, not its admissibility." Id. ¶ 53. We interpret the latter statement to

mean that as long as the witness had a prior opportunity to observe the defendant, the witness's

lay identification testimony is admissible.

¶ 64 The Thompson court concluded its discussion with a reminder that evidence ad-

missible under Rule 701 must still meet the general requirements of Illinois Rule of Evidence

403 (eff. Jan. 1, 2011). Thompson, 2016 IL 118667, ¶ 54. Rule 403 provides the following:

"Although relevant, evidence may be excluded if its proba-

tive value is substantially outweighed by the danger of unfair prej-

udice, confusion of the issues, or misleading the jury, or by consid-

erations of undue delay, waste of time, or needless presentation of

cumulative evidence." Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 65 A trial court's decision to admit lay opinion identification testimony is reviewed

for an abuse of discretion. Thompson, 2016 IL 118667, ¶ 54.

- 18 - ¶ 66 2. The Present Case

¶ 67 In this case, the following testimony was at issue: (1) Maddox's testimony that the

video showed defendant carrying an object in his right hand that was "consistent with the pile or

wad of cash and checks" that Maddox had earlier put in the office desk; (2) Foster's testimony

that the video showed defendant carrying "something" in his right hand as he exited the office;

and (3) Foster's testimony that the office was "[o]bviously *** not a room for civilians or the

general population to go into." We address those pieces of evidence in turn.

¶ 68 a. Maddox's Identification of the Object in Defendant's Hand

¶ 69 Maddox testified that on September 17, 2013, she concluded her recap by bun-

dling $303 cash on top of some checks and placing the bundle in a desk drawer in the office.

The State then showed to Maddox and the jury video of defendant leaving the office with some-

thing in his hand. After viewing the video, Maddox testified that the object in defendant's hand

shown by the video was "consistent with the pile or wad of cash and checks" that Maddox had

placed in the desk drawer.

¶ 70 Maddox's testimony that the object depicted in defendant's hand in the video was

the bundle of cash and checks from the recap was a lay opinion as to the object's identity. As

such, its admissibility was governed by Rule 701. To reiterate, Rule 701 requires that lay-

witness opinion testimony be (1) rationally based on the perception of the witness and (2) helpful

to a clear understanding of the witness's testimony or a determination of a fact in issue. We ad-

dress those requirements in turn.

¶ 71 i. Was Maddox's Testimony Rationally Based on Her Perception?

¶ 72 We conclude that Maddox's testimony was rationally based on her perception. An

opinion is rationally based on a witness's perception if the opinion is "one that a layperson could

- 19 - normally form from observed facts." Michael H. Graham, Graham's Handbook of Illinois Evi-

dence § 701.1, at 618 (10th ed. 2010). An opinion as to what a video depicts is an opinion that a

layperson could normally form from observing the video.

¶ 73 We note that the perception in question here was Maddox's perception of the vid-

eo and not any potential prior perception of the objects, persons, or actions depicted by the video.

Whether Maddox's testimony was rationally based on her perception does not depend on whether

Maddox had personal knowledge of the actual objects or actions depicted by the video. For this

prong of the analysis, all that is relevant is whether Maddox's opinion—that the video depicted a

particular object—was the kind of opinion that a layperson could normally draw. We conclude

that it was.

¶ 74 ii. Was Maddox's Testimony Helpful to the Jury's Determination of a Fact at Issue?

¶ 75 To aid in our analysis, we draw heavily upon the supreme court's decision in

Thompson. Although Thompson involved a lay-witness's opinion testimony as to the identity of

a person depicted in a surveillance video, most of Thompson's analysis is relevant to this case,

which involves a lay-witness's opinion testimony as to the identity of an object depicted in a sur-

veillance video.

¶ 76 We adapt the Thompson court's definition of helpfulness and hold that lay-opinion

identification testimony is helpful when some basis exists to conclude that the witness is more

likely to correctly identify the object from the surveillance recording than the jury. See Thomp-

son, 2016 IL 118667, ¶ 50 ("Lay opinion identification testimony is helpful where there is some

basis for concluding the witness is more likely to correctly identify the defendant from the sur-

veillance recording than the jury." (Emphasis added.)).

¶ 77 In determining whether a witness's opinion as to the identity of an object is help-

- 20 - ful, we apply a totality of the circumstances approach. Id. ¶ 51. We also conclude that the fol-

lowing factors from Thompson are relevant to this case: (1) the witness's general familiarity with

the object; and (2) the clarity of the recording and the extent to which the object is depicted. See

id.

¶ 78 In this case, Maddox's testimony was helpful because (1) Maddox had familiarity

with the object in defendant's hand and (2) the video contained a limited depiction of the object.

Maddox had familiarity with the bundle because she was the one who made it during the recap.

She was therefore knowledgeable of its particular size and shape, while the jury was not. In ad-

dition, the object in the video appears very briefly and is partially obscured by defendant's body.

The video is also somewhat grainy. Maddox's testimony was therefore helpful because she was

more likely to correctly identify the object than was the jury.

¶ 79 Because Maddox's lay-witness opinion testimony was both (1) rationally based on

her perception and (2) helpful to a clear understanding of a fact in issue—namely, whether de-

fendant was carrying the bundle of cash and checks—the trial court did not abuse its discretion

by admitting Maddox's testimony.

¶ 80 b. Foster's Testimony

¶ 81 Foster testified that (1) the video showed defendant carrying something out of the

office; and (2) the office was "not a room for civilians or the general population to go into." The

State concedes that the trial court abused its discretion by admitting both pieces of Foster's testi-

mony because his testimony was not helpful to the jury. We accept the State's concession with-

out comment as to whether that concession is correct.

¶ 82 The State argues that the admission of Foster's testimony is not reversible error

because the error was harmless. We agree that any potential error was harmless.

- 21 - ¶ 83 "An evidentiary issue is harmless when no reasonable probability exists that the

jury would have acquitted the defendant absent the error." People v. Pelo, 404 Ill. App. 3d 839,

865, 942 N.E.2d 463, 486 (2010).

¶ 84 No reasonable probability exists that the jury would have acquitted defendant ab-

sent Foster's testimony. Foster's testimony that the video depicted defendant carrying "some-

thing" out of the office was harmless. The video clearly showed that defendant had something in

his hand as he left the office. Therefore, Foster's testimony did not provide the jury with any

new information. As a result, no reasonable probability existed that the jury would have acquit-

ted defendant absent Foster's testimony on that point.

¶ 85 Nor did a reasonable probability exist that the jury would have acquitted defend-

ant absent Foster's testimony that the office was "not a room for civilians or the general popula-

tion to go into." Foster's testimony on that point was potentially relevant to determining whether

defendant had authority to enter the office. However, as we stated earlier, the State proved that

defendant lacked authority to enter the office by establishing that defendant entered the office

with the intent to commit a theft. Therefore, evidence about the private nature of the office was

not necessary to determining whether defendant had authority to enter the office. Any error in

admitting Foster's testimony about the private nature of the office was therefore harmless.

¶ 86 D. Extended-Term Sentence

¶ 87 Finally, defendant argues that the trial court erred by imposing an extended-term

sentence on the burglary conviction.

¶ 88 Defendant is correct that "when a defendant has been convicted of multiple of-

fenses of differing classes, an extended-term sentence may be imposed only on the conviction

within the most serious class." People v. Thompson, 209 Ill. 2d 19, 23, 805 N.E.2d 1200, 1201

- 22 - (2004). In this case, the trial court improperly imposed an extended-term sentence on defend-

ant's burglary conviction (Class 2 felony) because defendant's conviction for contributing to the

criminal delinquency of a minor was of a more serious class (Class 1 felony). However, because

we have reversed defendant's conviction for contributing to the delinquency of a minor, defend-

ant is no longer convicted of multiple offenses, and his extended-term sentence for burglary

complies with the holding of Thompson.

¶ 89 III. CONCLUSION

¶ 90 For the foregoing reasons we (1) reverse defendant's conviction for contributing

to the criminal delinquency of a minor and (2) affirm defendant's conviction and sentence for

burglary. As part of our judgment, we award the State its $75 statutory assessment against de-

fendant as costs of this appeal. 55 ILCS 5/4-2002 (West 2014).

¶ 91 Affirmed in part and reversed in part.

- 23 -