People v. Barner ( 2008 )

Filed 6/27/08
NO. 4-07-0545
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) McLean County
CHADWICK N. BARNER, ) No. 06CF848
Defendant-Appellant. )
) Honorable
) Kevin P. Fitzgerald,
) Judge Presiding.
_________________________________________________________________
JUSTICE KNECHT delivered the opinion of the court:
In December 2006, a jury convicted defendant, Chadwick
N. Barner, of financial institution robbery (720 ILCS 5/16H-40
(West 2004)), a Class 1 felony. In April 2007, the trial court
sentenced defendant to 12 1/2 years' imprisonment. On appeal,
defendant contends the evidence was insufficient to convict him
of financial institution robbery because, although he concedes
the robbery, the State failed to prove he took the money by
force, threat of force, or intimidation, as required by the
statute. We affirm.
I. BACKGROUND
Defendant acknowledges he committed the robbery but
argues no evidence showed he used intimidation during the
commission of the robbery of the financial institution as
required by statute.
The bill of indictment, filed on August 30, 2006,
alleged defendant committed financial institution robbery "in
that he knowingly and by threat of force or intimidation took
money in the custody, control, care, management[,] or possession
of Illini Bank, a financial institution."
At defendant's December 2006 jury trial, Cynthia Scott
testified she was employed with Illini Bank in Danvers, Illinois,
as a teller on July 19, 2006. Around noon on that date, an
unusual looking person entered the bank. This person was wearing
a black wig, sunglasses, and a dress. The person's face and neck
were painted black, and he had tissue stuffed up his nose. The
person was carrying a large black purse. As stated, defendant
acknowledges he was this person who robbed the bank.
Defendant told Scott to "[g]ive me the money." Scott
was "scared," but gave defendant the money from her drawer.
Defendant, in a calm but firm tone, again stated "[g]ive me the
money." Scott took this to be an "order." Scott opened up
somebody else's drawer, grabbed some money, and put it on the
counter. Defendant put the money in the purse and ran away. The
experience left Scott feeling "traumatized, scared."
Photographs of the incident show that defendant had his
left hand behind the purse while he approached the teller's
counter. The purse was large enough to conceal a weapon.
The jury convicted defendant, and the trial court
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sentenced him as stated.
This appeal followed.
II. ANALYSIS
Defendant contends the facts are undisputed and thus
the appropriate standard of review is de novo. The State argues
the parties dispute what facts can be reasonably inferred from
the trial evidence; and thus the relevant question is whether,
after viewing the evidence in the light most favorable to the
State, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. We agree with
the State. However, insofar as we are a called upon to interpret
the financial-institution-robbery statute, which is a question of
law, we review that issue de novo. See People v. Brooks, 221
Ill. 2d 381, 388, 851 N.E.2d 59, 62 (2006).
As stated, the State charged defendant with financial
institution robbery.
"A person commits the offense of
financial institution robbery when the
person, by force or threat of force, or by
intimidation, takes, or attempts to take,
from the person or presence of another, or
obtains or attempts to obtain by extortion,
any property or money or any other thing of
value belonging to, or in the care, custody,
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control, management, or possession of, a
financial institution." 720 ILCS 5/16H-40
(West 2006).
It is undisputed defendant did not use force or
explicitly threaten the use of force. The issue here is whether
defendant used intimidation.
The financial-institution-robbery statute does not
define "intimidation." Neither do any Illinois decisions address
this issue. As a result, defendant urges this court to construe
the financial-institution-robbery statute with the intimidation
statute (720 ILCS 5/12-6 (West 2004)).
"Under the doctrine of in pari materia,
two statutes dealing with the same subject
will be considered with reference to one
another to give them harmonious effect.
[Citation.] The doctrine is also applicable
to different sections of the same statute,
and is consistent with the fundamental rule
of statutory interpretation that all the
provisions of a statute must be viewed as a
whole. [Citation.]" People v. McCarty, 223
Ill. 2d 109, 133-34, 858 N.E.2d 15, 31
(2006).
We conclude it would not be proper to read the
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financial-institution-robbery statute in para materia with the
intimidation statute as they do not concern the same subject.
"The purpose of the intimidation statute is to prohibit the
making of threats intended to compel a person to act against his
will, and the gist of the offense is the exercise of improper
influence--the making of a threat with the intent to coerce
another." People v. Peterson, 306 Ill. App. 3d 1091, 1099-1100,
715 N.E.2d 1221, 1227 (1999); see also People v. Verkruysse, 261
Ill. App. 3d 972, 975, 639 N.E.2d 881, 883 (1994) ("'gravamen of
the offense [of intimidation] is improper influence on another.'
(People v. Tennin (1987), 162 Ill. App. 3d 520, 525, 515 N.E.2d
1056[, 1059].)"). The legislature has declared the financial-
institution-robbery statute concerns the subject of financial
crime. See 720 ILCS 5/16H-5 (West 2004).
Moreover, "[s]tatutes should be construed, if possible,
so that no term is rendered superfluous or meaningless."
Bonaguro v. County Officers Electoral Board, 158 Ill. 2d 391,
397, 634 N.E.2d 712, 715 (1994). If we read the term
"intimidation," as used in the financial-institution-robbery
statute, to require a threat as defendant urges, it would be
redundant, as the statute states "[a] person commits the offense
of financial institution robbery when the person, by force or
threat of force, or by intimidation." 720 ILCS 5/16H-40 (West
2004). Because the statute talks about force or the threat of
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force in addition to intimidation, the term "intimidation" must
mean something other than force or the threat of force.
Instead, we look elsewhere to help us construe the
financial-institution-robbery statute. The legislative history
shows this statute was "modeled very tightly after existing
federal and State statutes." 93d Ill. Gen. Assem., Senate
Proceedings, April 4, 2003, at 44-45 (statements of Senator
Cullerton). The bill created financial crimes that "have been
traditionally under the purview of the Federal Government." 93d
Ill. Gen. Assem., House Proceedings, May 14, 2003, at 164-65
(statements of Representative O'Brien). The federal bank-robbery
statute (18 U.S.C. §2113 (2000)) is substantially similar to our
state's financial-institution-robbery statute. The federal bank-
robbery statute states one commits bank robbery if:
"[B]y force and violence, or by
intimidation, [one] takes, or attempts to
take, from the person or presence of another,
or obtains or attempts to obtain by extortion
any property or money or any other thing of
value belonging to, or in the care, custody,
control, management, or possession of, any
bank, credit union, or any savings and loan
association." 18 U.S.C. §2113 (2000).
Because the federal bank-robbery statute is so similar to our
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financial-institution-robbery statute, it is appropriate for us
to look to the federal bank-robbery statute and the case law
interpreting it for guidance. See People v. Childress, 338 Ill.
App. 3d 540, 553, 789 N.E.2d 330, 341 (2003) ("Where a state
statute has a federal counterpart, Illinois courts have looked
for guidance to federal cases interpreting the federal law").
Our review of federal case law leads us to conclude
defendant's actions constituted intimidation under the financial-
institution-robbery statute. "Intimidation" in the context of
the federal bank-robbery statute has been defined as "conduct and
words *** calculated to create the impression that any resistance
or defiance by the teller would be met with force" (United States
v. Jones, 932 F.2d 624, 625 (7th Cir. 1991)), or an act by
defendant "reasonably calculated to put another in fear" (United
States v. Graham, 931 F.2d 1442, 1443 (11th Cir. 1991)). Federal
courts determine whether intimidation has occurred in a
particular case by using an objective test: "whether an ordinary
person in the teller's position could reasonably infer a threat
of bodily harm from the defendant's acts." United States v.
Gilmore, 282 F.3d 398, 402 (6th Cir. 2002).
In this case, it is undisputed defendant did not have a
weapon with him when he robbed the bank. "However, the display
of a weapon, a threat to use a weapon, or even a verbal or
nonverbal hint of a weapon is not a necessary ingredient of
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intimidation." Gilmore, 282 F.3d at 402. "Intimidation does not
require proof of express threats of bodily harm, threatening body
motions, or the physical possibility of a concealed weapon."
Gilmore, 282 F.3d at 403.
As stated, in this case, defendant walked into the bank
in disguise, was carrying a black purse large enough to conceal a
weapon, and twice told the teller to give him all of the money.
The photographs of the incident show defendant's left hand was
concealed behind the purse as he approached the teller.
Defendant made no explicit threat of harm.
The case before us is similar to United States v.
Robinson, 527 F.2d 1170 (6th Cir. 1975). In Robinson, the
defendant approached the teller, told her to "'Give me all your
money,'" and then slid a "'black pouch'" across the counter for
the teller to put the money in. Robinson, 527 F.2d at 1171.
When the teller attempted to fill the pouch with bait money, the
defendant said, "'Don't give me that, that's not enough.'"
Robinson, 527 F.2d at 1171. The defendant made no explicit
threat of harm, and both hands were visible to the teller as the
defendant put them on the counter in front of the teller's cage.
Robinson, 527 F.2d at 1171. The defendant wore a black leather
coat. Robinson, 527 F.2d at 1171.
On appeal, the defendant argued that because he did not
display a weapon, hint he had a weapon, tell the teller he had a
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weapon, or explicitly threaten the teller, the evidence of
intimidation was insufficient. Robinson, 527 F.2d at 1171-72.
The court stated "[A]n 'ordinary person' in the teller's position
could reasonably, we think, infer an implicit threat in the
demand, 'Give me all your money,' accompanied by the presentation
of a 'black pouch.'" Robinson, 527 F.2d at 1172.
Moreover, the Gilmore court stated the following:
"A review of the case law reveals that
making a written or verbal demand for money
to a teller is a common means of successfully
robbing banks. Demands for money amount to
intimidation because they carry with them an
implicit threat: if the money is not
produced, harm to the teller or other bank
employee may result. Bank tellers who
receive demand notes are not in a position to
evaluate fully the actual risk they face. As
the Robinson court stated: 'An "ordinary
person" in the teller's position could
reasonably, we think, infer an implicit
threat in the demand, "Give me all your
money," accompanied by the presentation of a
"black pouch".' Robinson, 527 F.2d at 1172.
Several other circuits have also held that a
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demand for money in itself is sufficient to
support a jury's finding of intimidation.
See United States v. Clark, 227 F.3d 771,
774-75 (7th Cir. 2000) (finding intimidation
where note demanded 'all of your twenties,
fifties and hundred dollar bills' and
defendant stated that 'this is a holdup');
[United States v.] Hill, 187 F.3d [698,] 700-
01 [(7th Cir. 1999)] (characterizing actions
as intimidating where defendant stated, 'Give
me all your money,' and 'don't give me any of
the funny money,' and threw a plastic bag on
the counter window); [United States v.]
McCarty, 36 F.3d [1349,] 1357 [(5th Cir.
1994)] (affirming conviction of robbery by
intimidation where typewritten note stated,
'Be calm. This is a robbery.'); United States
v. Hummasti, 986 F.2d 337, 338 (9th Cir.
1993) (concluding that threat was implicit in
a note that read, 'This is a robbery, give me
your money,' and in verbal demands for
money); United States v. Smith, 973 F.2d 603,
603-04 (8th Cir. 1992) (finding intimidation
had been established where defendant stated,
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'I want to make a withdrawal. I want $2,500
in fifties and hundreds,' and where he twice
demanded $5,000, leaned into the window, and
said, 'come on, come on, give me the
money.'); [United States v.] Lucas, 963 F.2d
[243,] 248 [(9th Cir. 1992)] (finding
intimidation where the verbal and written
demand was 'put the money in the bag' and
defendant placed two plastic bags on
counter); [United States v.] Henson, 945 F.2d
[430,] 439 [(1st Cir. 1991)] (finding
intimidation in written demand note that
read, 'put fifties and twenties into an
envelope now!!'); [United States v.] Hopkins,
703 F.2d [1102,] 1103 [(9th Cir. 1983)]
(finding that the threats implicit in [a]
written demand of 'Give me all your hundreds,
fifties and twenties. This is a robbery,' and
verbal demand of 'give me what you got'
provide sufficient evidence of intimidation
to support jury's verdict)." (Emphases
added.) Gilmore, 282 F.3d at 402-03.
Again, we reiterate defendant (1) entered the bank in
disguise, (2) twice demanded the teller give him all the money,
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(3) had a purse large enough to conceal a weapon, and (4)
concealed his left hand behind the purse as he approached the
teller. Under Gilmore, defendant's demands for money amount to
intimidation because they carried with them the implicit threat
that if the money was not produced, harm to Scott or another bank
employee may have resulted. Gilmore, 282 F.3d at 402. Moreover,
under Robinson, an ordinary person in Scott's position could
reasonably have inferred an implicit threat in the demand, "'Give
me the money,'" accompanied by the fact defendant had a large
purse to put the money in. See Robinson, 527 F.2d at 1172.
Accordingly, we conclude the evidence was sufficient to support
the conclusion defendant robbed a financial institution by
"intimidation."
III. CONCLUSION
For the reasons stated, we affirm the trial court's
judgment. As part of our judgment, we grant the State's request
that defendant be assessed $50 as costs for this appeal.
Affirmed.
APPLETON, P.J., and STEIGMANN, J., concur.
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