## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Roberts , 2013 IL App (2d) 110524

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. BRETT A . ROBERTS, Def endant- Appellant.

District & N o. Second District Docke t No. 2-11-0524

Filed J anuar y 14, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) Def e n d a nt’ s c o nv ic ti on for residential burg lary based on entering a vaca nt house and cutting out copper pipes was reduc ed to simple burg lary
, since the owner s had listed the house for sale, they had left the state and did not intend to continue to occupy the hou s e, and no one else intended to occupy the house within a re asonable time.

Dec ision Under Review Appea l from the Circuit Court of McHe nry County
, No. 10-CF- 887; the Hon. J oseph P. Condon, J udg e, pre siding.

J udgment J udgment modified; cause rema nded.Counsel on

Appea l Br ett A. Roberts, of Vie nna, appe llant pro se

.

L ouis A. Bianc hi, State’s Attorney
, of W oodstock (L awr ence M. Ba uer and J ay Paul Hoffma

nn, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE SP ENCE delivere d the judg ment of the c ourt, with opinion.
J ustices Z enoff

and Jorge nsen conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial in the circ uit court of McHe nry Co u n t y , d ef en d an t , Brett A. Roberts, was found guilty of residential burg lary (720 I L CS 5/19-3(a) (West 2010)) and was sentenc ed to a 10-year prison term. Def endant argues o n ap p ea l t hat he is guilty only of burg lary
, not residential burg lary

. At issue is whether a vaca nt house is a “dwe lling” within the meaning of the residential burg lary statute, wher e the owner s had place d the proper ty for sale but had secur ed no purcha ser and had moved out of the state with no plans to return to the house. We hold that such a house is not a dwelling in the pertinent sense and we there fore reduc e def

endant’ s conviction to burg lary

. ¶ 2 The vaca

nt house in question is located in Woodst ock. At trial, Tom Kre bsbach, a rea ltor, testified that, on May 11, 2010, he went to chec k on the house. The owner s, J ohn and Inara Howard, had moved to N orth Carolina and did not plan to resume occupa ncy of the house. W h en Kre bsbach arrived, he encounte red two men and a woman who indicated that t h ey

wer e waiting for their rea ltor to show them the house. Kre bsbach enter ed the house and discovere d a pile of copper pipe and a hacksa w that had not been there when he last visited the proper

ty

. When Kre bsbach walked out of the house, the three people he had encounte red

wer e g one. The State prese nted evidenc e that the piping had appar ently been remove d from the ceiling and detac hed from the home’s well, the water h ea t er , and the water softener

. Def endant’ s fing erprints wer e found on pipes. The State also prese nted evidenc e that, a wee k later, de fenda

nt sold copper tubingto a scra p metal re cycler

. ¶ 3 Section 19-3(a) of the Criminal Code of 1961 (Code) (720 I L CS 5/19-3(a) (West 2010)) provides, in pertinent part, that “[a] person commits residential burg lary who knowing ly and without authority enter s or knowin gl y an d wi thout authority rema ins within the dwelling
p l ac e of another
, or any part there of, with the intent to commit there in a felony o r t h ef t

. ” There is n o d i s p u t e that the State proved that defe ndant knowing ly enter ed the Howards’ house in Woodst ock and that he did so with the intent to commit a theft. As noted, the issue

on appea l is whether the house was a “dwe lling” when defe ndant enter ed it. Section 2-6 of the Code (720 IL CS 5/ 2-6 (West 2010)) pr ovides:

-2-“(a) Ex cept as otherwise provided in subse ction (b) of this Section, ‘dwe lling’ means a building or port i o n t here of, a tent, a vehicle, or other enclose d space which is used or intended for

use as a human habitation, home or r esidenc e. (b ) Fo r the purposes of Section 19-3 of this Code, ‘dwe lling’ means a house,
apar tment, mobile home, trailer
, o r other living quarte rs in which at the time of the alleg ed offe nse the owner s or occupa nts actua lly reside or in their absenc e intend within

a re asonable period of time to re side.” ¶ 4 The question prese nted is one o f s t at utory interpre tation, requiring us to asce rtain and
g ive eff ect to the leg islature’s intent. People v. Diggins
, 235 I ll. 2d 48, 54 (2009). “The best indicator of the leg islature’s intent is the languag e of the statute, which must be acc orded its plain and ordinary meaning ,” and “[ w] h er e t he languag e of the statute is clea r and unambiguous, this court will apply the s tatute as written without resor t to aids of statutory construction.” Id. at 54-55. Our revie w is de novo

. Id. at 54. ¶ 5 Be cause defe ndant was prosec uted under section 19-3 of the Code (7 2 0 I L CS 5/ 19-3 (West 2010)), subsection (b) of section 2-6 of the Code provides the applicable definition of “dwe lling.” A house is a “dwe lling” if it is one “in which at the time of the alleg ed offe nse the owner s or occupa

nts actua lly reside or in their absenc e intend within a rea sonable period of time to reside.” 720 I L CS 5/2-6(b) (West 2010). This languag e is clea r and unambiguous. For a house to qualify as a dwelling
, the owner s or occupa nts must reside in the house at the time of the offe nse or must intend to do so within a rea sonable time. Her e, it is undisputed that the owner s of the house neither resided there nor intended to do so in the future. The house was unoccup i ed an d no specific individuals intended to reside there

. The State’s position, in essenc e, is that, b ec ause the house was for sale, the owner s intended that an eventua l pur chase r would reside there

. That does not make the house a dwelling
, howeve r. The plain languag e of the s tatute s peci fi ca lly require s that the owners or occupants intend
to r eside in a house (or apar tment, etc.) for it to be a dwelling

. There is simply no languag e indicating that an owner ’s intent that some unidentified person reside in the premises at some unknown date in the future is sufficie nt to confe r the status of “dwe lling” for purposes of the residential burg lary

statute. ¶ 6 In order to rea ch the result the State advocates, it would be nece ssary to add languag e to the statute, expanding the definition of “dwe lling” to include houses or other buildings that
may have occupa

nts at some unspecified d at e i n t h e future. This we will not do. It is well established that “ ‘[a] court is not fr ee t o rewrite leg islation, or to ignore an express requirement contained in a statute.’ ” People v. W ooddell
, 219 I ll. 2d 166, 173 (2 0 0 6 ) (quoting People v. Palmer
, 148 I ll. 2d 70, 88 (1992))

. Fur thermore
, beca

use the definition of “dwe lling” is part of a penal statute, “it must be strictly construed in favor of the acc used, and nothing should be taken by intendment or implication beyond the obvious or literal meaningof the statute.” People v . Laubscher , 183 I ll. 2d 330, 337 (1998). ¶ 7 Ap p l yi n g the definition of “dwe lling” as writ t en , a fi n d i n g t h at t h e Ho wa rd s ’ house–which was vaca

nt when defe ndant enter ed it–was a dwelling require s an aff irmative

answe r to one of the followingtwo questions: 1. Did the owner s intend within a rea sonable pe riod of time to reside in the house ?

-3-2. Did any occupa nts intend within a reasona ble period of time to reside in the house? The answe r to both questions is no. The testimony establishes that the owner s had moved out of the state and had no plans to return. Moreove r, there wer e no other occupa nts who could form an intent to take up residenc e. That a future purcha ser of the house might form such an intent is of no moment inasmuch as the statutory definition of “dwe l l i n g” focuse s on the intent of the owner s or occupa nts “at the time of the alleg ed offe nse.” 7 20 I L CS 5/2-6(b) (West 2010). It has been observe d that the residential burg lary statute is “aimed specific ally
at protec ting the privac y and sanctity of the home.” People v. Edgeston
, 243 I ll. App. 3d 1, 10 (1993) (citing People v. Bales
, 108 I ll. 2d 182, 193 (1985))

. There can be no violation of the privac y and sanctity of the home when there is no one who considers t h e p remises in question to be his or her home (or f uture home)

. ¶ 8 We rec ognize that the State’s position is not w ithout support in the case law. In People

v. Silva
, 256 I ll. App. 3d 414 (1993), the First Distri ct af fi rm ed the residential burg lary

co nviction of a defe ndant who stole proper ty from a baseme nt apar

tment and first -f

l o o r apar tment–both of which wer e vaca nt–in a two-flat apar

tment building. The owner of the building lived in the second- floor apar tment. The Silva court relied on the fac ts t h at t h e burg larized unit was part of the same building in which the owner resided and that the owner used the space for storag e. In that respe ct, the Silva court rea soned that the burg larized unit was comparable to a closet. Id. at 4 2 0

. Although those fac ts clea rly distinguish Silva from the case befor e us, the Silva court also rea soned that the trial court could find that vaca nt apar tments wer e dwelling s by inferring that the owner “intended either to live in the unoccupie d space or to rent the space to a tenant.” Id. The Silva court appea rs to have relied

on People v. Suane
, 164 I ll. App. 3d 997 (1987), a case that involved a definition of dwelling essentially identical to the one prese ntly set forth in section 2-6(a) of the Code. See I ll. Rev. Stat. 1985, ch. 38, ¶ 2-6. Thus, when Suane was decided
, t h e applicable definition of “dwe lling” me rely

require d proof that the burg larized premises wer e “used or intended f or

use as a *** residenc e.” Id. Unlike section 2-6(b)
, the statute at issue in Suane did not specify that there must be an intent on the part of an owner or occupant to reside in the premises himself or herse lf. In light of the enac tment of section 2-6(b)
, the results in Suane and Silva

can no longe r be justified on the theory that unoccupie d residential proper ty is or will be available to a

n as-of -yet unidentified purcha ser or tenant, and for that rea son we de cline to follow those ca ses. ¶ 9 The State has cited a number of other case s in which an unoccupie d residenc e qualifie d as a dw elling. H oweve r, in all but one the offe nse occurre d when the owner or som e other
person intended to take up residenc e in the future. See People v. McGee , 398 I ll. App. 3d 789 (2010) (house vacated beca use of fire damag e was a dwe l l ing beca use, at the time of the offe nse, the owne r’ s daughter was planning to move back to the hous e); People v. Torres
, 327 I ll. App. 3d 1106 (2002) (mobile home vacated beca use of fire damag e was a dwelling beca use, at the time of the offe nse, owner s believed damag e could be repa ired and intended
to return when that occur

red) ; People v. W

alker
, 212 I ll. App. 3d 410 (1991) (whe re owner of house, who was being car ed for in a nursing home, intended to return to the house, it was

a dwelling even though the owner ’s intent to return may not ha ve been rea listi c); People v. Moore
, 206 I ll. App. 3d 769 (1990) (whe re occupa nt intended to, and did, return to house

-4-that was burg larized while he was in Mississ ippi for about a month, the house was a dwelling

even though it was put up for sale about a m o n t h after the occupa nt’s return) ; People v. Pearson
, 183 I ll. App. 3d 72 (1989) ( renta l house from whic h tenant had be en evic ted one day befor e burg lary was dwelling place of new tenants who wer e schedule d to move in three day s afte r burglar

y ). The rema ining case, People v. Sexton , 118 I ll. App. 3d 998 (1983), is inapposite beca

use, like Suane
, it was decide d befor e the enac tment of the curr ent definition of “dw elling”applicable in residential burg lary prosec utions. ¶ 10 The house defe ndant enter ed was not a “dwe lling,” but it was a building and def endant is there fore guilty of burg lary rathe r than residential burg lary

. See 720 I L CS 5/19-1(a) (West 2010) (“A person commits burg lary when without authority h e kn o wi n g ly enter s *** a building *** or any part there of, with intent to commit there in a felony or theft.”)

. Burg lary is an included offe nse of residential burg lary (720 I L CS 5/19-3(a) (West 2010)). In the exercise o f o ur discretion, we reduc e defe ndant’s conviction from residential burg lary to burg lary

. See People v. Alsup
, 373 I ll. App. 3d 745, 749 (2007) (“I n its discretion, a revie wing court ‘may reduc e the degree of an offe nse to a lesser[-]included offe nse when the evidenc e fails to prove the defe ndant guilty beyond a rea sonable doubt of t h e gre ater offe nse.’ ” (quoting People v. Thomas
, 266 I ll. App. 3d 914, 926 (1994)) ). Be cause we reduc e def

endant’ s conviction, the ca se must be re manded f or re sentenc ing. ¶ 11 For the fore g oing rea sons, we reduc e defe ndant’s conviction of residential burg lary to a conviction of burg lary

and re mand for r esente ncing

.

¶ 12 J udgment modified; cause rema nded.

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