The principal issue in this case is whether the State proved that defendants “entered” into the SUV for purposes of the burglary statute (720 ILCS 5/19 — 1(a) (West 2006)). An entry is made when the defendant “breaks the close,” that is, when the defendant crosses one of the imaginary planes that enclose the protected space. People v. Parham, 377 Ill. App. 3d 721, 730 (2007).
The majority concludes that defendants “broke the close” of the SUV when they removed the vehicle’s rear window. The majority states:
“[A] reasonable inference exists that when the rear door lock was punched out, defendants were able to open the rear window by either pressing the button or prying it open. Once open, defendants could grasp the window from both sides. Though touching the inside of the window, where the window opened away from the vehicle, does not constitute an entry, other evidence proved that defendants did, in fact, break the close of the vehicle. We note first the size of the window: 4 feet by 3 to 3V2 feet. Removing a window of this size is not akin to removing a hood ornament. A fair amount of maneuvering and force is necessary to remove it from the vehicle. As the State argued at trial, the window did not simply ‘pop out.’ We note also that during the process of removing the window, not only was the window detached from both hydraulic arms, but one of the arms was completely detached from the vehicle. Under these circumstances, we agree with the dissenting justice that it was ‘a physical impossibility to remove the hatchback window without gaining at least minimal access to the protected interior, or the close, of the vehicle.’ Beauchamp, 389 Ill. App. 3d at 20 (Garcia, J., dissenting).
We hold that the State proved an entry for purposes of the burglary statute.” 241 Ill. 2d at 10.
I disagree. The window in this case is hinged at the roof line and opens out and away from the SUV By grabbing hold of the open window, defendants did not enter the interior of the car. The majority’s statements that the window was of substantial size and that defendants had to use more force to remove the window than is needed to remove a hood ornament does not change this fact. Indeed, it is precisely because the window was of substantial size that defendants needed both hands to support it while wrestling it off the SUV and, if both hands were on the window, they could not have been in the interior of the vehicle. The majority would have the defendants grasping the edge of the open window with both hands and wrenching it off the SUV while simultaneously placing an unspecified portion of their bodies into the interior of the vehicle. This scenario is simply impossible.
The majority also notes that one of the hydraulic arms was completely detached from the SUV. The implication here is that defendants did not remove the window by wrestling it off from the outside. Instead, defendants reached into the interior of the car where the hydraulic arm was attached and, in some manner, removed the arm at its base. Thus, according to the majority, it was a “physical impossibility” to remove the window without gaining access to the interior of the vehicle. Again, the size of the window compels the opposite conclusion.
Because the window was of substantial size, the window itself provided the necessary weight and leverage to rip the hydraulic arm from its base. Moreover, the majority does not explain how, if defendants did not use the window for leverage, they were able to remove the arm. The State failed to introduce any evidence that defendants possessed a tool capable of prying off the base of the hydraulic arm and we clearly cannot presume that defendants removed the base of the arm with their bare hands. Further, the second hydraulic arm was still attached at its base to the interior of the SUV This indicates that defendants’ modus operandi for removing the window was not to carefully pry off the bases of the hydraulics arms, but rather to grab the window and, by using leverage and brute force, wrench it off the vehicle as quickly as they could. Indeed, according to the testimony recounted by the majority, only eight minutes elapsed during the crime, underscoring the fact that the window was not carefully removed.
Finally, even if the State had proven that defendants possessed a tool capable of prying off the base of the first hydraulic arm, this would not satisfy the State’s burden of proof. The rule is long-established that an entry does not occur when an instrument is used solely to create an opening even though the.instrument “breaks the close.” See, e.g., 3 Wayne R. LaFave, Substantive Criminal Law §21.1(b), at 210 (2d ed. 2003) (“there was no entry where an instrument was used to open the building, even though it protruded into the structure”); 3 Charles E. Torcia, Wharton’s Criminal Law §323, at 248-50 (15th ed. 1995). When an instrument is used solely to create an opening, a portion of the defendant’s body must enter the protected space for an entry to occur. Parham, 377 Ill. App. 3d at 730. In this case, there was no evidence as to whether it was possible to reach the base of the hydraulic arm with a tool (assuming one existed) without defendants’ placing a portion of their bodies in the vehicle’s interior. We cannot conclude, therefore, that an entry occurred simply because the base of the first hydraulic arm was detached.
When reviewing the sufficiency of the evidence, we must allow all reasonable inferences in favor of the prosecution. People v. Cunningham, 212 Ill. 2d 274, 280 (2004). We may not, however, engage in speculation and assume conclusions that are not supported by the evidence. See People v. Smith, 185 Ill. 2d 532, 546 (1999). Even viewing the evidence presented in the light most favorable to the State, that evidence showed only that defendants “punched out” the lock of the SUY that the rear window popped open, that defendants grabbed it and that they wrenched it off the car. The evidence did not show beyond a reasonable doubt that defendants committed an entry by crossing into the threshold of the vehicle’s frame, and most assuredly did not show that it was a “physical impossibility” to remove the window without entering the SUV Thus, as the appellate court correctly held, the defendants were proven guilty of theft, not burglary.
For the foregoing reasons, I respectfully dissent.
JUSTICE FREEMAN joins in this dissent.