People v. Pierce ( 2007 )

Docket No. 103272.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
ANTONIO D. PIERCE, Appellant.
Opinion filed October 18, 2007.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Chief Justice Thomas and Justices Freeman, Fitzgerald, Garman,
and Karmeier concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion.
OPINION
In this case, we must determine whether the modified jury
instructions given at defendant’s trial accurately stated the law when
they defined the offense of theft from the person to include a taking
from the “presence” of the person. To make this determination, we
must decide whether one commits the offense of theft “from the
person” in Illinois when he steals property that is not in physical
contact with the person. The appellate court held that one commits the
offense of theft from the person even if the property is not in physical
contact with the person from whom it is taken. 367 Ill. App. 3d 203.
For the reasons that follow, we affirm the judgment of the appellate
court.
Background
On September 13, 2004, Robert Gallaher was sitting at the bar in
the Silver Moon Tavern in Quincy, Illinois, drinking beer. Gallaher
had placed $50 on the bar in front of him and, after he paid for his
drinks, several bills remained on the bar. Gallaher testified he had his
hand on the money while he sat at the bar.
Defendant entered the Silver Moon and walked up to Gallaher, the
only patron in the tavern. Gallaher testified that defendant offered to
sell him cigarettes, but he declined. The two then engaged in
conversation for several minutes. At one point, Gallaher removed his
hand from the money to light a cigarette. Defendant then grabbed the
money and ran out of the tavern. The bartender, Linda Sheehan,
essentially confirmed Gallaher’s testimony. A surveillance tape from
the bar also confirmed the events.
At trial, in the circuit court of Adams County, defendant denied
taking Gallaher’s money. He testified that he had never seen Gallaher
or Sheehan before and that he had never been in the Silver Moon
Tavern. Defendant claimed to have been in Joliet at the time of the
theft.
At the jury instruction conference, the State proffered modified
versions of Illinois Pattern Jury Instructions, Criminal, Nos. 13.09 and
13.10 (4th ed. 2000) (hereinafter IPI Criminal 4th). The State’s
proffered modification added the phrase “or presence” to the two
instructions. The modified version of IPI Criminal 4th No. 13.09 read:
“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 presence of
another and intends to deprive the owner permanently of the
use or benefit of the property.” (Emphasis added.)
The modified version of IPI Criminal 4th No. 13.10 read:
“To sustain the charge of theft from the person, the state must
prove the following propositions: First proposition, that
Robert Gallaher was the owner of the property in question,
and second proposition, that the defendant knowingly
obtained unauthorized control over the property in question,
and third proposition, that the defendant intended to deprive
the owner permanently of the use or benefit of the property in
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question, and fourth proposition, that the defendant took the
property in question from the person or presence of Robert
Gallaher.” (Emphasis added.)
The court gave the modified instructions to the jury over
defendant’s objection. Also, the trial court refused defendant’s request
to instruct the jury on the lesser offense of misdemeanor theft, i.e.,
theft not from the person. The jury found defendant guilty of theft
from the person and he was sentenced to six years’ imprisonment.
The appellate court affirmed. 367 Ill. App. 3d 203. Looking to the
plain language of the statute, the court found that “[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.” 367 Ill. App. 3d at 206.
The appellate court rejected defendant’s argument that, pursuant
to People v. Williams, 42 Ill. App. 3d 134 (1976), property must be
taken from the victim’s body or clothing in order to be theft from the
person. Instead, the court relied on three cases decided after Williams:
People v. Harrell, 342 Ill. App. 3d 904 (2003), People v. Sims, 245
Ill. App. 3d 221 (1993), and People v. Jackson, 158 Ill. App. 3d 394
(1987). 367 Ill. App. 3d at 207-09. Each of these cases held that the
property need not be in contact with the victim to constitute theft
from the person.
The appellate court concluded that theft from the person includes
the taking of property from the person “or presence” of another and,
consequently, the trial court did not abuse its discretion when it
instructed the jury using the modified IPI instructions. We thereafter
granted defendant’s petition for leave to appeal. 210 Ill. 2d R. 315.
Analysis
The function of jury instructions is to provide the jury with
accurate legal principles to apply to the evidence so it can reach a
correct conclusion. People v. Hopp, 209 Ill. 2d 1, 8 (2004). In a
criminal case, fundamental fairness requires that the trial court fully
and properly instruct the jury on the elements of the offense, the
burden of proof, and the presumption of innocence. People v.
Williams, 181 Ill. 2d 297, 318 (1998).
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This case requires us to determine whether the modified jury
instructions defining theft from the person to include a taking from the
“presence” of another accurately stated the law. Although the giving
of jury instructions is generally reviewed for an abuse of discretion,
when the question is whether the jury instructions accurately conveyed
to the jury the law applicable to the case, our review is de novo.
People v. Parker, 223 Ill. 2d 494, 501 (2006).
The fundamental rule of statutory construction is to ascertain and
give effect to the legislature’s intent. People v. Pack, 224 Ill. 2d 144,
147 (2007). The language of the statute is the best indication of
legislative intent, and we give that language its plain and ordinary
meaning. Pack, 224 Ill. 2d at 147. In addition, we must consider the
entire statute and interpret relevant provisions together. People v.
Cordell, 223 Ill. 2d 380, 389 (2006). We should not construe words
and phrases in isolation. Town & Country Utilities, Inc. v. Illinois
Pollution Control Board, 225 Ill. 2d 103, 117 (2007).
The Criminal Code of 1961, under the heading of “Offenses
Directed Against Property,” defines theft as follows:
“(a) A person commits theft when he knowingly:
(1) Obtains or exerts unauthorized control over
property of the owner; [and]
***
(A) intends to deprive the owner permanently of
the use or benefit of the property[.]
***
(b) Sentence.
***
(4) Theft of property from the person not exceeding
$300 in value, or theft of property exceeding $300 and not
exceeding $10,000 in value, is a Class 3 felony.” 720 ILCS
5/16–1 (West 2004).
Initially, defendant contends that the trial court erred in giving the
modified jury instructions, which included the phrase “or presence,”
because theft requires a taking from the actual person of the victim.
According to defendant, because the theft statute does not include the
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phrase “or presence,” it must be construed to exclude takings from a
person’s presence.
There is a split in Illinois, as well as other jurisdictions, as to
whether the phrase “from the person,” when used with respect to the
offense of theft, includes a taking from the “presence” of that person.
One line of cases holds that, with respect to theft or larceny from the
person, the property taken must be in contact with the victim. These
cases rely on the purpose behind the original larceny from the person
statute, Statutes of 8 Elizabeth (8 Eliz. c.4 §2 (1565)),1 which was to
prevent pickpocketing and purse snatching. This meant the property
had to be connected to or in contact with the victim at the time of the
theft. See, e.g., People v. Williams, 42 Ill. App. 3d 134 (1st Dist.
1976); Terral v. State, 84 Nev. 412, 413-14, 442 P.2d 465, 465-66
(1968).
Another line of cases holds that, as long as the property is in the
person’s possession or within the immediate custody and control of
the person, a taking is sufficient to constitute theft from the person.
These cases reason that, at common law, the phrase “from the
person,” when used with respect to robbery, included the presence of
the person from whom the property was taken. In addition, at
common law, theft or larceny was considered a lesser-included offense
of robbery. Thus, because the phrase “from the person” in the context
of robbery included a taking from the presence of another, the phrase
must have had the same meaning in connection with theft. See, e.g.,
People v. Harrell, 342 Ill. App. 3d 904 (2d Dist. 2003); People v.
Sims, 245 Ill. App. 3d 221 (3d Dist. 1993); People v. Jackson, 158 Ill.
App. 3d 394 (5th Dist. 1978); In re D.D.S., 396 N.W.2d 831, 832-33
(Minn. 1986); State v. Shepard, 726 A.2d 1138, 1140-41(R.I. 1999).
In both lines of cases, the courts look to the common law, yet draw
different conclusions from it. See generally J. Pearson, Annotation,
What Constitutes Larceny “From a Person,” 74 A.L.R. 3d 271
(1976).
1
This statute was passed in the sixteenth century and was the first statute
that provided for a greater punishment for larceny from a person. J. Pearson,
Annotation, What Constitutes Larceny “From A Person,” 74 A.L.R. 3d
271, 276 (1976).
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This court has long held the view that, at common law, theft or
larceny was a lesser-included offense of robbery. In Hall v. People,
171 Ill. 540, 542 (1898), we stated: “The only difference between
private stealing from the person of another [larceny or theft] and
robbery lies in the force or intimation used.” We further noted that
“[t]he two crimes approach each other so closely that cases may arise
where it may be doubtful upon which side of the line they should fall.”
Hall, 171 Ill. at 543-44. See also People v. O’Connor, 310 Ill. 403,
407 (1923).
The view that larceny from the person is a lesser-included offense
of robbery finds support among numerous historical scholars. See
William Blackstone, 4 Commentaries *241 (robbery is “[o]pen and
violent larceny from the person”); 5 Tucker, Blackstone’s
Commentaries With Notes *241 (1803) (the only recognized
difference between robbery and theft from the person is the use of
force); 2 E. East, Pleas of the Crown §124, at 707 (1803) (robbery is
a species of “aggravated larceny”); 2 W. Russell & C. Greaves,
Crimes and Misdemeanors (1845) (“robbery is an aggravated species
of larceny”).
More recent authorities have expressed the same view. See 3 W.
LaFave, Substantiative Criminal Law §20.3(a), at 172-73 (2d ed.
2003) (“Robbery, a common-law felony, and today everywhere a
statutory felony regardless of the amount taken, may be thought of as
aggravated larceny”); 3 C. Wright, Federal Practice & Procedure
§515, at 22 (2d ed. 1982) (“Robbery necessarily includes larceny”).
See also Carter v. United States, 530 U.S. 255, 278-79, 147 L. Ed. 2d
203, 222, 120 S. Ct. 2159, 2174 (2000) (Ginsburg, J., dissenting,
joined by Stevens, Souter, and Breyer, JJ.) (“Larceny was therefore
a lesser included offense of robbery at common law”; “The elements
of common-law larceny were also elements of robbery. *** Unlike
larceny, however, robbery included one further essential component:
an element of force, violence, or intimidation. See 4 Blackstone 242
(‘[P]utting in fear is the criterion that distinguishes robbery from other
larcenies.’)”).
Having determined that, at common law, theft from the person
was a lesser-included offense of robbery, the relevant question
becomes, What did the term “from the person” mean at common law?
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We answered this question in People v. Braverman, 340 Ill. 525
(1930). In Braverman, this court held:
“[The terms] ‘taking from the person of another,’ as used in
the common-law definition of robbery, were not restricted in
their application to those cases in which the property stolen
was in actual contact with the person of the one from whom
it was taken, but included within their meaning the taking, by
force or intimidation from the presence of the person
assaulted, of property which either belonged to him or was
under his personal control and protection.” Braverman, 340
Ill. at 530.
This court then interpreted the robbery statute in conformity with the
common law definition, finding that a taking “from the person”
included a taking from the presence of another when the property
either belonged to that person or was under his control and
protection. Braverman, 340 Ill. at 530. See also People v. O’Hara,
332 Ill. 436, 440 (1928) (“But if property was taken feloniously, with
force and violence or by putting in fear, in the presence of the owner,
it was in legal contemplation a taking from his person (1 Hale’s P.C.
532; Rex v. Francis, 2 Strange, 1015.) ‘And so it is whether the taking
be strictly from the person of another or in his presence only, ***.’ (4
Blackstone’s Com. 243.)”); O’Donnell v. People, 224 Ill. 218, 225
(1906) (“But the taking from the person is not understood to mean
that the goods are actually on the person, in a strict sense”; “It is not
necessary that the taking should be immediately from the person”
(emphasis omitted)).
Braverman held that, at common law, the phrase “from the person
of another” included “presence.” As noted, this court has also held
that, at common law, larceny was a lesser-included offense of robbery.
It follows, therefore, that at common law the meaning of the phrase
“from the person” included “presence” with respect to both larceny
and robbery. See also J. May, Law of Crimes §294, at 288 (3d ed.
1905) (discussing the offense of “Larceny from the Person” and
stating, “And a thing is said to be on the person if it is attached *** or
is otherwise so related to the person as to partake of its protection”);
R. Perkins & R. Boyce, Criminal Law, ch. 4, at 342 (3d ed. 1982)
(discussing the offense of “Larceny from the Person” and stating,
“property may be under the protection of the person although not
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actually ‘attached’ to him,” citing 2 Bishop, New Criminal Law §898
(8th ed. 1892) (“The thing taken must be under the protection of the
person, but it need not be attached thereto”)). See also 2 W. Burdick,
Law of Crime §557, at 332 (1946) (“Under the statutes, the larceny
must be ‘from the person’, yet this is construed to include from one’s
presence providing the property is at the time under one’s
protection”).
Defendant contends, however, that because the Criminal Code of
1961 superseded all common law definitions, we can no longer look
to common law to interpret the meaning of “from the person” in the
current theft statute. In support of his position, defendant points to
section 1–3 of the Criminal Code of 1961, which provides: “No
conduct constitutes an offense unless it is described as an offense in
this Code or in another statute of this State.” 720 ILCS 5/1–3 (West
2004). Defendant also points to the committee comments to this
provision, which state: “The purpose of this section is to complete the
process of replacing the common-law definitions of offenses with
statutory definitions ***.” 720 ILCS Ann. 5/1–3, Committee
Comments–1961, at 12 (Smith-Hurd 2002).
We are unpersuaded by defendant’s argument. Defendant ignores
other comments to section 1–3 that specifically state:
“However, the supersession of all common-law definitions
of particular offenses does not mean that the large mass of
interpretative rules developed under the common law is
superseded: these rules are a highly valuable part of our
criminal law, and their effective replacement by statutory law
would be exceedingly difficult.” 720 ILCS Ann. 5/1–3,
Committee Comments–1961, at 13 (Smith-Hurd 2002).
Defendant’s conduct–the taking of another’s property with intent
to deprive the owner of permanent use–constitutes the offense of theft
as described in section 16–1 of our Criminal Code. The question here
is the meaning of a particular phrase in the definition of that statutory
offense, i.e., “from the person.” As the committee comments
acknowledge, the vast array of case law and legal authorities that have
considered the common law need not be discarded when interpreting
the meaning and scope of statutory offenses. As a result, we hold that
the common law definition of “from the person,” whether considered
in connection with the statutory offense of theft or of robbery, is still
relevant. Thus, our discussion in Braverman, defining the phrase
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“from the person” to include the “presence” of the person, remains
viable law and is applicable to the theft statute today.
Defendant next argues that Braverman’s definition of “from the
person” is no longer applicable because the legislature amended the
robbery statute in 1961 to include the phrase “or presence” but did not
similarly amend the theft statute. Defendant contends that, by adding
the phrase “or presence” to the robbery statute, the legislature
intended that the phrase “from the person” no longer have the
meaning described in Braverman. Defendant argues that the phrase
“from the person” must have a narrower meaning, which no longer
includes “or presence.” Otherwise, defendant maintains, there would
have been no reason for the legislature to add “or presence.”
Moreover, defendant contends that, because the legislature did not
similarly amend the theft statute, the phrase “from the person” must
have the narrower meaning. We reject this argument.
The Criminal Code of 1961 provides: “A person commits robbery
when he or she takes property *** from the person or presence of
another by the use of force or by threatening the imminent use of
force.” 720 ILCS 5/18–1 (West 2004). The committee comments to
the 1961 amendment, which added “or presence” to the robbery
statute, noted: “ ‘. . . or presence’ is added to incorporate the court’s
holding in People v. Braverman, 340 Ill. 525, 173 N.E. 55 (1930).”
720 ILCS Ann. 5/18–1, Committee Comments–1961, at 6 (Smith-
Hurd 2003).
As noted by the committee comments, the legislature did not
intend to make any change in the law when it amended the robbery
statute. It was merely incorporating the holding of Braverman. 720
ILCS Ann. 5/18–1, Committee Comments–1961, at 6 (Smith-Hurd
2003) (“No change is intended”). Although it is a canon of statutory
construction to avoid rendering words in a statute superfluous, here
the legislature itself admitted that “or presence” was added to the
robbery statute simply to underscore that the meaning of the phrase
“from the person” included the taking of property that is in the
possession of or under the control and protection of the victim. The
legislature did not change the meaning of the phrase “from the person”
adopted by Braverman.
Discussing a similar situation, the Minnesota Supreme Court held:
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“While the legislature added the phrase ‘or in the presence’ in
the robbery statute in order to make it clear that a robbery was
committed if property was taken by the use or threat of force
from the person of another or in his presence, the legislature’s
failure to use the phrase ‘or in the presence’ in [the theft from
a person statute], does not mean that the legislature intended
to exclude theft of property under the immediate control of
the victim from the offense of theft from the person. There
was simply no need to add the phrase ‘or in his presence’ in
the theft statute because this court had already ruled that theft
‘from the person’ extended ‘to every case of stealing, where
the property stolen is on the person, or in the immediate
charge and custody of the person from whom the theft is
made.’ [Citation.]” In re D.D.S., 396 N.W.2d at 832-33.
We agree with the reasoning of the Minnesota court. While our
legislature could have included the phrase “or presence” in the theft
statute, it was not necessary to do so because, in Illinois, the well-
defined meaning of “from the person” includes a taking from the
presence of another.
Conclusion
We hold that the offense of theft from the person includes the
taking of property that is in the possession of or under the control and
protection of the victim. Thus, the trial court did not err in giving the
modified jury instructions. Accordingly, we affirm the judgment of the
appellate court.
Affirmed.
JUSTICE KILBRIDE, specially concurring:
I specially concur because the majority opinion tacitly overlooks
critical limitations expressed in People v. Sims, 245 Ill. App. 3d 221
(3d Dist. 1993), and People v. Harrell, 342 Ill. App. 3d 904 (2d Dist.
2003). See slip op. at 5. Sims and Harrell narrowly apply the statutory
phrase “from the person” in limited situations. Although ostensibly
agreeing with Sims and Harrell, the majority adopts a broader
interpretation without addressing its implicit expansion of the scope
of that phrase.
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Sims expressly held that, in addition to property taken from the
victim’s person, theft from the person included takings “when the
victim has been detained or searched *** or when the victim’s
privacy has been directly invaded at the time the property is taken
[citation].” (Emphases added.) Sims, 245 Ill. App. 3d at 224. Applying
that rule, the Sims court reversed the defendant’s conviction, finding
that theft from the person did not include the taking of the victim’s
purse from her shopping cart while she was standing a few feet away,
unaware of the theft. In reaching this conclusion, the court factually
distinguished People v. Jackson, 158 Ill. App. 3d 394 (5th Dist.
1987), where the victim was pushed against his car and searched
before the defendant removed a wallet and other property from inside
the car.
Expressly relying on the rationale in Sims, the Harrell court
reached a different result, upholding the defendant’s conviction.
Harrell concluded that the facts were closer to those in Jackson than
to Sims, because “the victim’s privacy was directly invaded” in
Harrell. Harrell, 342 Ill. App. 3d at 909. The court concluded the
victim “was obviously aware of the theft” when defendant reached
around her to take her purse from the shopping cart. Harrell, 342 Ill.
App. 3d at 909.
Accordingly, in both Sims and Harrell, when the taking is not
from the victim’s actual person the key to the analysis is whether the
victim had been detained or searched or suffered an invasion of
privacy. Unfortunately, without discussing these analytical limitations,
the majority adopts a broader interpretation of the victim’s
“presence,” including all takings of property under the victim’s
“control and protection.” Slip op. at 7. Although that interpretation
could presumably produce a different outcome in Sims, the majority
does not broach this possibility nor does it expressly reject the
limitations adopted in Sims and Harrell. Therefore, because I believe
these considerations merit examination by this court, I cannot fully
join the majority opinion.
Nonetheless, I agree with the majority that defendant was properly
convicted of theft from the person even under the analysis in Sims and
Harrell. Defendant directly invaded the victim’s privacy by taking
money from the bar when the seated victim removed his hand to light
a cigarette. Thus, I specially concur in the majority opinion.
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