morning ladies and gentlemen our first case of the morning in this case one one eight six seven four people standing on versus jesse travis  provision burglary by remaining with them and this case comes before this court today for one reason because the state charge an offense that they cannot prove and in order to save this one conviction this court is being asked public while having never entered into an unauthorized or an employee only area mcdaniel did not commit burglary by remaining with them he committed a retail theft but here befor rejected both the lair and mcdaniel and held that were bradford entered wal mart while there was open shoplifted left while it was open having never ventured into an employee only a restricted area he was not guilty of retail theft but of burglary and the state adopts this position and it's brief but both of these positions and chirpy patients banded decades of legal precedence and the legislature is at thirty seven years and one hundred seventy eight people be valero to overrule or change the statute and it has not done so this is the very definition of a legislative acquiescence and look to the statute you can see the will of both the legislature gave considerable thought to help hundred for shoplifters should be dealt out and the statute is here to address the more serious acts of shoplifting it ranges from a class a misdemeanor all the way up to a class two felony and a proportionality considerations take into account several different factors how much property was taken the manner in which it was acquired and how many prior ac that the individual may have committed and it's also important to note that the statute has been amended numerous times most recently in two thousand and twelve where the legislature doubled the threshold amount needed to charge a felony from one hundred fifty dollars to three hundred dollars that means unless someone shoplift a significant sum they will not be charged a felony but here the fourth district and the state they've abandoned these proportion considerations and burglary is now under their interpretation it one size fits all crime and what's more is that this interpretation will lead to burglary charges and numerous  the retail theft statute in favor of the states in the fourth district interpretation of the burgers that you now that is not to say that burglary by remaining with then cannot be char in some situations later found to have entered into a restricted area or employee only here these are certainly more culpable acts and they fit within what has what the courts have interpreted for decades in the legislature has acquiesced following the state in the fourth district's interpretation frustrate the legislatures and time again we are here because the state is trying to maintain a single conviction and in the process is attempting to pervert the burglary statute from here on for common sense should be informing our jurisprudence and common sense dictates that when the legislature has for what the state is attempting to do in this case the decision to convert retail theft burglary does not rest with the police prosecutors or even the courts of the state the legislature defines what actions constitute a crime and how the crime should be punished if the police and prosecutors are eleanor i believe the harsher penalties should be available to punish retail theft they should put the issue before the legislature and sea change in the laws their legislative amendment ambiguous i'm sorry or is it your position that there remains within the language in the statute is ambiguous it seems to be that way and courts have not defined what the remaining within demands that any ambiguity be resolved in the manner which favors the accused and here going back thirty seven years this statute has not been interpreted this way and i just place your broaden building provision from before and all that statute says is the burglar found in a building with the intent to commit several felonies and larceny is guilty of burglary and that has for decades been defined as retail until this case where the state is attempting to save this one conviction intended thank your honor may it please the court i'm assistant attorney general eric levin on behalf of the people the state of illinois the issue in this case is actually i believe quite narrow and i think to see why it's helpful if we take a step back of course in illinois under illinois burglary law there are two distinct ways that a person could be charged with burglary the first way and perhaps the most common way is by entering a two examples which we acknowledge in our brief would be the back patterns in people versus mcdaniel or people versus the lera so for him if for instance in mcdaniel what happened is the defendant entered the store  was in any way distinct from the entry at that it charge of burglary by remaining within was unsustainable because the facts here are markedly distinguishable here we have an instance where the defendant enters store the intent to commit it back although he wasn't charged with that but he entered the store immediately conducted this sort of fraudulent return of merchandise that he had paid for and then rather than leaving the store he he remained in the store and in an in a way that was not simply a continuation of that entry i'm now obviously anybody who enters the store sort of in the very next instant has in a sense remained in the store and th at's probably what like the defendant mcdaniel might have done or the lerato but here you have an instance where the defendant in a break with his prior course of conduct embarked on a new criminal enterprise and in that sense committed some sort of overt affirmative act of remaining that was not simply a continuation of his entry but was distinct from it and gives rise to a charge that he remained in the store without authority mean i think to the extent that we're sort of always left with prosecutors to prosecutorial discretion to determine charges based on backs that is the case and i think here what might have been going on is some confusion i think her with the prosecutor prosecutor's office over whether and entering charge would have been more appropriate here rather than remaining with in charge i think a good case can be made that could be the prosecutor's reasonably thought of remaining within charge was was more appropriate here as the defendant argues in his brief you know he had money on him when he entered the store perhaps it would been harder to to know what his upon entering the store was but once he commits that d v d exchange that and then rather than leaving the store remains within the story and embarks on a new criminal enterprise at that point it's undeniably clear what his intent is and that he had no authority to be in that store and i think this gets us back to people versus weaver this court held nearly fifty years ago would adopt it what's come to be known as the limited authority gawker and in that case the issue it was a charge  burglary by entering without authority and the court held there that a defendant to enters a store that's otherwise open to the public so for instance a wal mart during business hours that person has not entered the store with think all of the defendant's legislative history and policy and certainty arguments really challenging weaver to the extent that the argument here is that the burglary statute has been broadened to encompass in many abide by some milk or fill a prescription or anything like that while he might be liable for burglary on the theory that he entered with intent committed there would be a separate act of remaining that was in company by that intent that would give rise to a separate charge which is a scenario for someone to commit retail theft with without committing burglary why think the the scenario mcdaniel we acknowledge that mcdaniel who based on the jury's verdict entered the store without intent to commit a thousand and then in almost for the moment i think that those are the terms of alarums which is another case where we acknowledge a fact pattern that would not be burglary although it would be retail  moment whereas here we have an instance this these are rather unique facts i mean this was this is not this was not your run of the mill burglary this was a defendant who entered the store immediately made his way to the d v d aisle maybe it was for the moment not intent maybe did enter with the intent to commit them and i think that would be a question of fact for a fact finder had he been charged which he wasn't just as our the formulation we've we've put forth of a distinct act of remaining the question of whether there was any sort of distinct act of remaining that was discrete from the entry evidence did meet did establish those facts what about the concerns that a defendant could be subject to a significant prison sentence for shoplifting on a twenty dollars worth of merchandise i think those are real concerns merchandise or five dollars worth of merkins has entered that store without authority and therefore has committed a murder and in fact is committed a burglary even if he ultimately does not stealing or even attempted stealing in the burglary is complete real issue here is simply whether that limited authority doctrine whether there's any basis in the text of the statute in this court's precedent or in logic to say that the limited authority doctrine should not apply to the act remaining in a store in the same manner that it applies to an entry and so just as weaver held that one who enters a store that's otherwise open to the public with the intent to commit not there and has not entered with the we believe that that it's true of course that the defend it points to what i would say is probably the quintessential example of that of a remaining without authority which is the defendant who enters with authority and then hides away but there's nothing in the statute or in  logic that would dictate that that's the only way that somebody can remain within a store without authority and he has not explained why weaver's limited authority doctrine wouldn't like wise applied here to the extent that weaver itself has brought in the burglary statute this court adopted that holding nearly fifty years ago in the general assembly since that has acquiesced that and i do it in cases like that the the general assembly is the body that's better positioned to weigh the policy interests that state and determine whether or not that is ought to be the what is the standard that that you think this court should not to guide the trial court's decision as to whether it's appropriate well the language we put forth in our brief is and a sense it's semantic and i think the court could choose other like terms to give guidance but essentially the trial court should be directed to look for discrete or distinct acts of remaining some in some sense where the a new course of conduct is an archetypal and i think a good analogy here would be let's say for instance that the defendant here after committing the d v d thouse had actually exited the building got into the parking lot got into his car and then decided you know what i want to go back in and steal the hat and the shoes and then he entered the building with that intent it's i think undisputed under illinois law that that would be a second ac so here obviously he didn't leave the store come back in but by his actions i think he's much closer to that end of the spectrum than to somebody like mcdaniel who simply left the store he in a clear break in his course of conduct he embarked on a new new criminal enterprise and it wasn't simply going from one aisle to the next stealing items there was a clear not only attempt for a break but a qualitative difference in the the  building is otherwise open to the public and anybody has authority to enter unless there is an ultimate or at least an overt attempt that the thought it would be hard to prove that the person entered with that intent it could be proved you can imagine a scenario where he and a friend outside the store were overheard discussing their intentions and in that sense you can imagine that charge so i think accepting those facts is true yes that would be a burglary under weaver and i don't think i not a retailer that it would be a retail theft as well it would be and this court recognized and i believe these people versus miller that retail docked in burglary do not share identical aliments in the retail theft requires a taking of property it does not require any don't think the prosecutors would never charge retail theft i think it's a better practice to charge both just that for instance in justice karmas hypothetical if you have a case where it's difficult to prove intent and so which might make the burglary charge itself difficult the fallback of retail would often be proof the someone goes into a store takes an item is going to just walk out as quickly as you can heads up the aisle sees a security guard and has to then go around the perimeter of the store to get out of feels he has to do so in the first instance walking in straight out would be retail theft were a few he remained in the store to walk around the perimeter to get out that would be a brewery no no i think and this is actually an important point i think and i think it's a i think the defendant sort of makes this point in his reply brief and i think it's a misunderstanding of our argument the issue the issue as we see it is not that the defendant didn't leave the store immediately after committing the d v d exchange if he had stayed in the and you know just to walk around or to go to the bathroom or whatever it wouldn't have given rise to a separate charge of burglary he would have remained in the store no doubt but burglary is not simply remaining within a story it's remaining in a store burglary under weaver if you that remained in the store with no further intent to commit further thoughts there would not be an additional charge of burglary what happened here of course is he didn't simply remain in the store for a legitimate reason he remained in the store with the intent to commit several quite distinct acts of that that differed fairly materially from the initial acts so while he likely could have been charged with burglary for entering you also can be charged with burglary for remaining within not because he simply remained within because but because he remained within with the intent to commit that maybe i'm misunderstanding something but it's that without authority issue i have trouble with  f just an person enters a store and then decide once they get in the store that they're going to take the gloves what is without authority they enter the store with the story yes i would agree in that case that would not support a charge of burglary by entering without authority because weaver says that a charge of entering without authority can only be sustained under the limit of doctrine if the intent to commit if that accompanies the action it might be a more difficult question of whether  charge of remaining with an out authority under the limited authority doctrine would come into play there the question then would be did he do any sort of you do any sort of discrete act of remaining that wasn't simply a continuation of entry and i think under the facts that you put forward there it would be a different call because there it seems more like the scenario in valero where the person entered legitimately and then sort of in a spur of the so in that sense howard the rule we propose is not overly broad it's not going to sweep in the mind run of cases of ordinary retail theft any more than that and weaver itself admittedly swept in a lot of what a layperson might consider ordinary retail theft into burglary but i think that's just a function of the limited authority doctrine itself and as we know in our brief some real states by statute have either abolish or simply refused to adopt the limited authority doctrine but that that issue was not has not been presented in this case the so where locked instead with the far narrower question of simply accepting the limited authority doctrine as the law of illinois is there any basis for applying it to burglaries by entering but not to burglaries by remaining so the defendant comes in takes some d s gives a gift or yes if he had just left is that just rude to with them it would have been retail back and i believe it could have been charged as burglary by an authorized and assuming that people could have the reason that you're saying unlawfully remained with intent to commit the up was because then he goes and gets items that he purchases with the give heard me grabs a few other things yes i would make one correction then i think this is a a misstatement perhaps in the defendant's brief he he did commit further thoughts he didn't simply then take items and pay for them with the gift card he used the gift card i think to pay for some items that a friend had selected but he himself stole additional items he took a hat shoes and i believe a so if that he did not pay for it all so those in that sense he remained in the store after committing the ethos with the intent to commit those for the crime and under the burglary statute as and as augmented by and he comes back a week later than i assume it would be in time to honor for him exactly if he had simply locked the store right after the d v d s got into the parking lot but then turned around and come back again with the intent to commit a thousand people versus weaver would say that that was an entry into the store without authority because he entered with the intent to commit that and so here he didn't quite make it all the way out of the store but he made it to the customer service to us and then embark on a authority to remain with them to complete his shoplifting till he gets out won't people versus weaver would say it i think an application of people versus weaver to the remaining in prong would say that a person who remains within the store with intent to commit if that is remaining in the store without authority and so nat sense they would under the burglary statute burglary is either entering or remaining within a store without authority with intent to com there and so in that sense a person who remains within a store with intent to commit a fuck would be guilty of burglary now obviously the issue there will be is there an act of remaining and i think this is where the problem comes in when you're talking about entering that's easy to determine did the person enter the store and the more difficult issue on the remaining problem is often going to be was there some sort of act of remaining that's not as i said before simply a continuation of the entry itself think the people vs the daniel ultimately got it right because there was no remaining in that case that was different from the entry itself and so we wouldn't want to double count and say that everybody that is guilty of tubercular he's simply upon entering a not honor first of all the retail theft that shoot is not limited to shoplifting one eye and here what we have is no different than common acts of shoplifting that are probably happening every day and one more point the discreet act of remaining the state alluded to this but it created the standard specifically for this case that has no basis in the law it was created to save this one conviction charging convicted as retail but that begs the question if a defendant shoplifts but does not immediately leave when it is when his burglary happened i think the state had trouble explaining this because it's has acquiesced us also that you've made a very forceful argument here both in your opening and now and yet you've yet to use the word weaver which is the main case obviously this is the line please discuss it and explain how  it was up here is that a few sentences after that what we were held was that a criminal intent formulated after a lawful entry will not satisfy the statute and that is exactly what we have here we have an entry that was lawful that any criminal intent formulated after we were does not need to be overruled we were is not need to be addressed in so much as the state is trying is attempting to make this court that