NO. 4-05-0418 Filed: 8/23/06
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from Plaintiff-Appellee, ) Circuit Court of v. ) Adams County ANTONIO D. PIERCE, ) No. 05CF2 Defendant-Appellant. ) ) Honorable ) Scott H. Walden, ) Judge Presiding. _________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
Following a jury trial, defendant, Antonio D. Pierce,
was convicted of theft from the person (720 ILCS 5/16-1 (West
2004)) and sentenced to six years' imprisonment. On appeal from
his conviction, defendant argues the court erred by modifying the
Illinois pattern jury instruction (IPI) for theft from the person
to include theft of property "from the person or presence of
another." We affirm.
I. BACKGROUND
On September 13, 2004, Robert Gallaher went to the
Silver Moon Tavern in Quincy, Illinois. Gallaher sat at the bar
and purchased beer from the bartender, Linda Sheehan. To pay
Sheehan for his beer, Gallaher placed $50 on the bar directly in
front of him. Gallaher testified he had his hand on the money
while the money was on the bar. After he paid for his drinks,
several twenties were in front of him.
Defendant entered the bar and approached Gallaher.
Defendant offered to sell Gallaher cigarettes. Gallaher de- clined. Gallaher then removed his hand from the money to light a
cigarette. A surveillance tape from the bar shows the victim
intermittently placing his left hand on his money while holding a
cigarette in his right hand. Defendant grabbed the money and ran
from the bar. The surveillance tape confirmed the victim's and
the bartender's testimony.
At the jury conference, the State offered modified
versions of Illinois Pattern Jury Instructions, Criminal, Nos.
13.09 and 13.10 (4th ed. 2000) (hereinafter IPI Criminal 4th). The State's proposed instruction added the phrase "or presence"
to the IPI. For example, the modified version of IPI Criminal
4th No. 13.09 read as follows:
"A person commits the offense of theft
from the person when he knowingly obtains
unauthorized control over the property by
taking said property from the person or pres- ence of another and intends to deprive the
owner permanently of the use or benefit of
the property." (Emphasis added.)
Defendant objected to the proposed modifications.
Defendant argued the committee had not added "or presence" to the
IPI and no decision from this court supported the modification.
The court, citing People v. Jackson, 158 Ill. App. 3d 394, 511 N.E.2d 923 (1987), and People v. Harrell, 342 Ill. App. 3d 904,
795 N.E.2d 1022 (2003), agreed with the State and ordered the
modified instructions given.
The jury found defendant guilty of theft from the
- 2 - person. The court sentenced defendant as stated. This appeal
followed.
II. ANALYSIS
Defendant argues the trial court erred by not using the
pattern instructions to describe the theft-from-the-person
statute. Defendant contends the trial court's addition of "or
presence" was erroneous because it was an inaccurate statement of
the law. Defendant contends the language in the theft-from-the-
person statute is plain and unambiguous: theft "from the person" simply means theft of property attached to the person. By adding
the words "or presence," defendant contends the court improperly
expanded the theft-from-the-person offense to include conduct not
contemplated by the legislature.
The State argues the instruction was proper because
theft from the person is properly interpreted as including theft
from the person's presence.
Generally, trial courts must use pattern instructions
when "an appropriate IPI instruction exists on a subject upon
which the trial court has determined the jury should be in-
structed." People v. Pollock, 202 Ill. 2d 189, 212, 780 N.E.2d 669, 682 (2002). The instructions
"were 'painstakingly drafted with the use of
simple, brief[,] and unslanted language so as
to clearly and concisely state the law,' and,
for that reason, 'the use of additional in-
structions on a subject already covered by
IPI would defeat the goal that all instruc-
- 3 - tions be simple, brief, impartial[,] and free
from argument.'" Pollock, 202 Ill. 2d at
212, 780 N.E.2d at 682, quoting People v.
Haywood, 82 Ill. 2d 540, 545, 413 N.E.2d 410,
413 (1980).
Trial courts have discretion to give a nonpattern jury instruc-
tion. See Pollock, 202 Ill. 2d at 211, 780 N.E.2d at 682. When
courts do so, the nonpattern instruction should be "an accurate,
simple, brief, impartial, and nonargumentative statement of the
law." Pollock, 202 Ill. 2d at 211, 780 N.E.2d at 682. If it is
not, we may find the trial court abused its discretion in giving
the nonpattern instruction. See Pollock, 202 Ill. 2d at 211, 780
N.E.2d at 682.
In this case, the question of whether the jury instruc-
tion was proper hinges on whether the addition of "or presence"
is an accurate statement of the law. This is a matter of statu-
tory construction, a matter we review de novo. See People v.
Whitney, 188 Ill. 2d 91, 98, 720 N.E.2d 225, 229 (1999).
Our goal in construing statutes "is to ascertain and
give effect to the legislature's intent." People v. Dixon, 359 Ill. App. 3d 938, 941, 835 N.E.2d 925, 928 (2005), citing Whit-
ney, 188 Ill. 2d at 97, 720 N.E.2d at 228. The best means for
satisfying this goal is to examine the language of the statute.
When the language of the statute is clear and unambiguous, we
will give effect to its plain meaning. See Dixon, 359 Ill. App.
3d at 941, 835 N.E.2d at 928. When, however, the language is
ambiguous, we "may consider other extrinsic aids for construc-
- 4 - tion, including legislative history, to resolve the ambiguity and
determine legislative intent." Whitney, 188 Ill. 2d at 97-98,
720 N.E.2d at 228. We are also mindful of the general rule to
strictly construe penal statutes in the defendant's favor. See
Whitney, 188 Ill. 2d at 98, 720 N.E.2d at 228.
Section 16-1 of the Criminal Code of 1961 (720 ILCS
5/16-1 (West 2004)) defines theft. One of the definitions,
applicable here, is that one commits theft when he or she know-
ingly "[o]btains or exerts unauthorized control over property of
the owner" and "[i]ntends to deprive the owner permanently of the
use or benefit of the property." 720 ILCS 5/16-1(a)(1)(A) (West
2004). "Theft of property from the person" is a sentencing
enhancement. See 720 ILCS 5/16-1(b)(4) (West 2004) ("Theft of
property from the person not exceeding $300 in value *** is a
Class 3 felony"). While "[t]heft of property not from the
person" when the value of the property does not exceed $300 is a
Class A misdemeanor, "[t]heft of property from the person" in the
same amount is a Class 3 felony. See 720 ILCS 5/16-1(b)(1),
(b)(4) (West 2004).
We find the plain language of the theft-from-the-person
statute does not support defendant's view. A reasonable reading
of the statute applies to the situation here. The money was
directly in front of the victim, and the money was snatched just
after the victim removed his hands from it.
Defendant emphasizes the difference between the theft-
from-the-person statute and the robbery statute. The robbery
statute states one "commits robbery when he or she takes property
- 5 - *** from the person or presence of another by the use of force or
by threatening the imminent use of force." (Emphasis added.)
720 ILCS 5/18-1(a) (West 2004). Defendant contends the inclusion
of the "presence" language in the robbery statute, but the
omission of the same language in the theft-from-the-person
statute, shows legislative intent to impose a harsher penalty for
theft from the person's body. Defendant contends this interpre-
tation of the language in the two statutes complies with the
principle that courts construe statutes so no phrase or word is
rendered meaningless. See People v. Parvin, 125 Ill. 2d 519, 525, 533 N.E.2d 813, 815 (1988).
Before the current version of the robbery statute, the
language was limited to "from the person of another." See People
v. Braverman, 340 Ill. 525, 530, 173 N.E. 55, 57 (1930) ("'Rob-
bery,' as defined by the statute, is the felonious and violent
taking of money, goods[,] or other valuable thing, from the
person of another by force or intimidation"). The Supreme Court
of Illinois in Braverman examined common law and concluded "from
the person" included the taking of property in the possession or
control of the person robbed. Braverman, 340 Ill. at 531, 173 N.E. at 57. Because of the Braverman interpretation of the
robbery statute, the statute was changed to incorporate "pres-
ence." See 720 ILCS Ann. 5/18-1, Committee Comments 1961, at 6
(Smith-Hurd 2003).
We do not believe defendant is correct that to construe
the theft-from-the-person statute as the State would have us do
renders the phrase "or presence" in the robbery statute meaning-
- 6 - less. The Committee Comments indicate the addition of "or
presence" to the robbery statute did not change the law:
"This paragraph codifies the law in
Illinois on robbery. No change is intended.
*** '. . . or presence' is added to incorpo-
rate the court's holding in People v.
Braverman ***." (Emphasis added.) 720 ILCS
Ann. 5/18-1, Committee Comments 1961, at 6
The "or presence" language thus clarified the law after a defen- dant's attempt to avoid a robbery conviction when the property
taken was not on the victim, but in the victim's presence and
control (see Braverman, 340 Ill. at 531, 173 N.E. at 57).
Defendant further urges this court to follow People v.
Williams, 42 Ill. App. 3d 134, 355 N.E.2d 597 (1976), which
concluded the theft-from-the-person statute necessitated the
property be taken from the victim's body or clothes. In Wil-
liams, the First District considered the appeal of a defendant
convicted of attempt (robbery). The defendant argued, in part,
his conviction "was improper because there was no evidence that
[he] used force or threatened the imminent use of force."
Williams, 42 Ill. App. 3d at 135, 355 N.E.2d at 598. After the
court found the conviction unsupported because no evidence showed
force, the court considered whether the defendant was guilty of
theft. The court rejected the State's suggestion the defendant
could be guilty of theft from the person:
"The difficulty with this is that the evi-
- 7 - dence does not support this charge. Williams
did not attempt to take money from Bell's
person but did attempt to take it from the
cash register which was in her presence."
Williams, 42 Ill. App. 3d at 138, 355 N.E.2d
at 601.
Three cases since Williams have rejected the proposi-
tion the theft-from-the-person statute does not extend beyond
thefts of property from on the person. See Harrell, 342 Ill.
App. 3d at 909, 795 N.E.2d at 1025; People v. Sims, 245 Ill. App. 3d 221, 224, 614 N.E.2d 893, 896 (1993); Jackson, 158 Ill. App.
3d at 399, 511 N.E.2d at 926. In Jackson, the Fifth District
considered the appeal of a defendant charged with theft from the
person. Jackson, 158 Ill. App. 3d at 394, 511 N.E.2d at 923.
The evidence at trial established the victim, when returning to
his car at a rest stop, was approached by the defendant. The
defendant pushed the victim against the victim's car and asked
for the victim's billfold. After the victim stated he did not
have one, the defendant reached behind the victim to look for a
wallet. The defendant then opened the door and removed the
victim's wallet from under the driver's seat. The defendant
stole cash and credit cards from the wallet. The defendant also
stole other items from the car. See Jackson, 158 Ill. App. 3d at 395-96, 511 N.E.2d at 924.
The Jackson court upheld the defendant's conviction.
The Jackson court concluded the words "from the person" included
"the taking of property not only from the actual person of the
- 8 - victim but also from the presence of the victim." Jackson, 158
Ill. App. 3d at 399, 511 N.E.2d at 926. The court reasoned, in
part, the danger of confrontation was as great in taking it from
under his car seat as it would have been had the defendant taken
the wallet from defendant's pocket. The court further concluded
the victim's person was violated. See Jackson, 158 Ill. App. 3d
at 397, 511 N.E.2d at 925. The Jackson court further found
persuasive a comparison of the theft-from-the-person statute to
the robbery statute. First, the court noted the law permits when
an article is stolen without a threat of violence to the person,
the crime will be held to be theft from the person. See Jackson, 158 Ill. App. 3d at 397, 511 N.E.2d at 925, citing People v.
Patton, 76 Ill. 2d 45, 389 N.E.2d 1174 (1979). Second, the
Jackson court reasoned the "from the person" language in the
robbery statute, before the words "or presence" were added,
included property taken from the person. See Jackson, 158 Ill.
App. 3d at 397-98, 511 N.E.2d at 925, quoting Braverman, 340 Ill.
at 530-31, 173 N.E. at 57.
In Sims, the Third District reversed a theft-from-the- person conviction but did not hold the theft-from-the-person
statute was limited to takings from on the person. The victim
was in a store; her two-year-old son and her purse were in the
child's seat of a shopping cart. While shopping, the victim
turned from her cart to look at merchandise. At that point, she
was approximately 2 1/2 feet from the cart. The victim heard her
son fuss. When she turned around, she saw the defendant leave
the aisle and she noticed her purse was missing. Sims, 245 Ill.
- 9 - App. 3d at 222-23, 614 N.E.2d at 895.
The Sims court expressly agreed with the holding in
Jackson, and thus agreed the theft did not have to come from the
person's body, but refused to apply Jackson's holding to the
facts before it. The court determined "more evidence is required
to support a conviction of theft of property from the person than
the mere taking of property from the presence of a victim who is
unaware of the theft which occurred several feet away from her
person." Sims, 245 Ill. App. 3d at 224, 614 N.E.2d at 896.
In Harrell, the Second District affirmed the defen- dant's conviction for theft from the person when he took the
victim's purse from a shopping cart. Specifically, the victim
and her husband had finished shopping and were returning to their
car. The purse was in the baby seat. As the husband opened the
truck, the defendant approached the victim from behind, reached
around her, and snatched the purse from the cart. Harrell, 342
Ill. App. 3d at 906, 795 N.E.2d at 1023.
The Harrell court agreed with Sims's conclusion that
"from the person" includes "'when the victim has been detained or
searched as in Jackson or when the victim's privacy has been directly invaded at the time the property is taken.'" Harrell,
342 Ill. App. 3d at 909, 795 N.E.2d at 1025, quoting Sims, 245
Ill. App. 3d at 224, 614 N.E.2d at 896. The Harrell court
concluded its facts were more similar to those in Jackson:
"The victim stated that defendant reached
around her to take the purse from the cart.
She must have been standing immediately next
- 10 - to the cart and was obviously aware of the
theft as it occurred. These facts distin-
guish the case from Sims. Clearly, the vic-
tim's privacy was directly invaded."
Harrell, 342 Ill. App. 3d at 909, 795 N.E.2d
at 1025.
The split among the appellate districts in this state
exemplifies the split among state courts across the country.
Compare Terral v. State, 84 Nev. 412, 414, 442 P.2d 465, 466
(1968), and State v. Lucero, 28 Utah 2d 61, 62, 498 P.2d 350, 351 (1972), with In re Welfare of D.D.S., 396 N.W.2d 831, 832-33
(Minn. 1986), and State v. Shepard, 726 A.2d 1138, 1141-42 (R.I.
1999). The Terral court, which held theft from the person
requires a taking from property on the person, reasoned that the
Statute of 8 Elizabeth in the 16th century created the offense of
larceny from the person and was intended to apply to
pickpocketing, requiring proof of an actual taking from the
person. See Terral, 84 Nev. at 413-14, 442 P.2d at 465-66.
On the other hand, some courts that reached a conclu-
sion contrary to the one in Terral also relied on the common law. For example, in D.D.S., the court reasoned under common law,
property taken from the person included property taken from the
presence of the person. See D.D.S., 396 N.W.2d at 832. The
D.D.S. court quoted Coke from the 1600s: "'for that which is
taken in his presence, is in law taken from his person.'"
D.D.S., 396 N.W.2d at 832. We conclude defendant's conduct in taking the money
- 11 - from the bar in front of the victim falls within the language of
"theft of property from the person." We find compelling the fact
the legislature, in drafting the theft-from-the-person statute,
used the same words that were used in describing robbery of-
fenses. See People v. Campbell, 234 Ill. 391, 393, 84 N.E. 1035,
1036 (1908) ("The difference between stealing from the person of
another, and robbery, lies in the force or intimidation used").
These same words, "from the person," as indicated by Braverman,
included property taken from one's presence and control. See
also D.D.S., 396 N.W.2d at 832. That the legislature has not yet
decided to clarify the meaning of the "from the person" language
in the theft-from-the-person statute carries little weight. See
Harrell, 342 Ill. App. 3d at 909, 795 N.E.2d at 1026. In addi-
tion, we find the risk of confrontation that intensifies when a
theft occurs in a victim's presence is the same as when the theft
is from the victim's body. See Jackson, 158 Ill. App. 3d at 397,
511 N.E.2d at 925; D.D.S., 396 N.W.2d at 833 ("Taking property
that is in the immediate presence or control of the victim
carries with it the same special potential for physical violence
or alarm as that associated with a taking of property that is in
the hand of the victim").
We hold the addition of "or presence" was an accurate
statement of the law. The trial court did not abuse its discre-
tion in defining "from the person" for the jury, which was not
done by IPI Criminal 4th No. 13.09 or 13.10. See generally 177
Ill. 2d R. 451(a) ("Whenever IPI Criminal 2d does not contain an
instruction on a subject on which the court determines that the
- 12 - jury should be instructed, the instruction given on that subject
should be simple, brief, impartial, and free from argument").
We note we need not ascertain whether Sims's awareness
standard or whether an "'under the protection'" standard (see
generally D.D.S., 396 N.W.2d at 832, quoting R. Perkins, Perkins
on Criminal Law, 278-79 (2d ed. 1969)) is appropriate for defin-
ing when an item is in a victim's presence. Here, the facts
satisfy either standard.
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment.
Affirmed.
McCULLOUGH and COOK, JJ., concur.
- 13 -