People v. Pierce

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

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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-

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 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-

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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

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*** 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-

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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

(Smith-Hurd 2003).

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-

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 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

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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.

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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

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 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

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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

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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.

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