dissenting:
I concur with the circuit court judge that sufficient evidence was introduced to establish that the defendant made an entry to the motor vehicle by removing the vehicle’s hatchback window, which the victim identified in the defendant’s possession, and was therefore guilty of burglary. That the defendant committed the more serious offense of burglary to a motor vehicle, a Class 2 felony, rather than theft, a Class 3 felony, as the majority holds, is consistent with the burglary statute’s design “to deter unauthorized entry into any part of a motor vehicle.” People v. Parham, 377 Ill. App. 3d 721, 730, 879 N.E.2d 1024 (2007).
The common law provides a test for determining whether an entry has been made. “[A]n unlawful entry may be accomplished by ‘breaking the close,’ defined by the four sides, the bottom, and the imaginary plane extending atop the sides and parallel to the bottom.” Parham, 377 Ill. App. 3d at 730, quoting People v. Frey, 126 Ill. App. 3d 484, 487, 467 N.E.2d 302 (1984). That test was met here.
It is uncontested that the hydraulic arms securing the rear window were broken, with one hydraulic arm on the ground, and one dangling from the window. The hydraulic arms lift the hatchback window and, by necessity, are secured to the inside of the vehicle. Short of suctioning the rear window off the vehicle, it is a physical impossibility to remove the hatchback window without gaining at least minimal access to the protected interior, or the close, of the vehicle. Even if the hatchback window had been left open, the imaginary plane extending from body of the vehicle to the outer edge of the hatchback window would have to have been broken by the fingers of the defendant, or his accomplice, to have removed the window from the vehicle. See People v. Dail, 139 Ill. App. 3d 941, 943, 488 N.E.2d 286 (1985) (the defendant’s arms and hands entered a part of the car in the course of stealing the car’s battery).3 In my judgment, it was a question for the trier of fact to determine whether the hatchback window could be removed without “breaking the close,” an occurrence which I find physically impossible. That an unlawful entry occurred here is also circumstantially supported by the punched lock on the rear door. See People v. Carmona-Olvara, 363 Ill. App. 3d 162, 168, 842 N.E.2d 313 (2005) (while lack of forced entry casts doubt on proof of burglary, evidence was sufficient for retrial).
While unstated, it is clear the majority has a contrary view on whether it is possible to remove the hatchback window without breaking the close. But it was up to the defendant to so persuade the trier of fact. I am unpersuaded that the reasonable inference drawn by the trier of fact that the defendant made an entry into the vehicle in the course of removing the hatchback window is somehow unsupported by the evidence. See People v. Milka, 211 Ill. 2d 150, 178, 810 N.E.2d 33 (2004) (“The weight to be given witnesses’ testimony, the witnesses’ credibility, and the reasonable inferences to be drawn from the evidence, are all the responsibility of the fact finder”).
Finally, I find People v. Davis, 3 Ill. App. 3d 738, 279 N.E.2d 179 (1972), inapposite. In Davis, the court determined that the facts only supported that the defendant committed the inchoate offense of attempted burglary to a commercial building. As the Davis court observed, “Nothing was disturbed or missing from the store.” Davis, 3 Ill. App. 3d at 739. Here, the vehicle was disturbed as the lock on the hatchback was punched out and the vehicle was missing the hatchback window. The Davis court also concluded, “It is not the size of the hole that is determinative but rather, in our opinion, it is whether a hand or instrument was actually inserted into the hole for the purpose of committing the felony.” Davis, 3 Ill. App. 3d at 739. Here, the punched-out lock is persuasive proof that an instrument was inserted into the lock hole for the purpose of gaining entry into the hatchback of the vehicle. I do not find the facts in this case to parallel the facts in Davis.
I dissent.
While it is unnecessary to go this far in this case, it is not inconsistent with common sense or the language of the statute that a burglary is committed whenever a part of a vehicle essential to protect its interior is removed, such as the hatchback window here. The essential language of the statute dealing with burglary to a motor vehicle is “any part thereof.” Certainly, the hatchback window is a part of the vehicle. If the door to a vehicle is left unlocked, opened and the door itself removed by an accused, does the majority really mean to say that no burglary to a vehicle occurred?