## 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 . Richardson , 2011 IL App (5th) 090663

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Pl ai n t i ff

-A p p el l ee, v. L EON RI CHARDSON, Def endant- Appellant.

District & N o. Fifth District Docke t No. 5-09-0663

Filed August 17, 2011

Held ( N o t e : T hi s s y l l a b u s

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

par ed by the Repo rt er of Deci si ons for the con ven ie nc e of the re ade r. ) T h e testimony of three office rs descr ibing the course of their investigation, which led to defe ndant’s arr est for burg lary
, was proper ly admitted over defe ndant’s hear say objection wher e th e trial court instructed the jury that it could consider the testimony for that limit ed
purpose a nd not for the truth of the matters asse rted.

Dec ision Under
Review Appea l from the Circuit Court of St. Clair County
, No. 09-CF- 195; the Hon. J ohn Ba

rice vic, J udg e, pre siding.

J udg ment Affir med; mitti mus amended.Counsel on

Appea l Michae l J

. Pelletier, J o h an nah B. Weber, Dan W. Evers, all of State Appellate D efe nder’ s Offic e, of Mt. Ve rnon, for appellant.

Br endan F. Kelly
, S t ate’ s Attorney
, of Be lleville (Patrick Delfino, Stephen E. Norris, Timothy J ames Ting
, all of State’s Attorney s Appellate Prose cutor’s O ffice , of counse l), for the People.

Panel J USTI CE WEXSTTEN delivere d the j u d g ment of the court, with opinion. Presiding J ustice Chapman and J u s t i ce Goldenher sh concur red in the judgme nt and opinion.

OP INION

¶ 1 A St. Cl air County jury found t he defenda nt, L eon R ichar dson, guilty of burg lary (720 I L CS 5/19-1(a) (West 2008)), and he was subsequently sentenc ed to serve a seven- y ear term of imprisonment. On appea l, the defe ndant argues that the State’s evidenc e was insufficient
to support his conviction, t hat t he e rr o n eo us admission of hearsay testimony denied him a fair trial, and th at h e i s en titled to an additional day of cre dit ag ainst his sentenc e. For the

rea sons that follow, we a ffirm the de fenda nt’s conviction and grant him the additional day of cr edit that he see ks.

¶ 2 BA CKGROUND ¶ 3 In No. 09-CF- 195, the defe ndant was charg ed by information with two counts of burg lary (counts I and I I ). C ount I alleg ed that, without authority
, the defe ndant knowing ly enter ed Route 3 L iquors in Saug et with the intent to com m i t a t h eft there in. Count I I alleg ed that, without authority
, the defe ndant rema ined within Route 3 L iquors with the intent to commit

a theft there in. In October 2009, the caus e p ro ce ed ed to a jury trial, wher e the evidenc e established the f

ollowing. ¶ 4 Route 3 L iq u o rs i n S au get has a larg e common “floor are a” that is open to the public. Be y ond the floor are a, there i s an off ice a rea in the back where cash a nd chang e ar e st ored in a larg e brown safe and books of instant lott ery tickets are stored in a lar g e blue sa fe. O n the double doors leading into the office are a, there are three signs r eading
, “EMPL OYEES ONLY.” ¶ 5 On Februa

ry 18, 2009, shortly befor e 5 p.m., the defendant, who was not an empl o y ee of Route 3 L iquors, was observe d walking out of the office are a with “something in the front of his coat.” He then exit ed the store throug h the front doors and drove awa y in a white For d

-2-Contour. Moments la ter, Route 3 L iquors was advised by its sec urity service that the silent alar m on one of the larg e saf

es in the off

ice a rea had bee n activate d. An ensuinginventory of the safe s reve aled that instant lottery tickets with a fac e value of $900 wer e missing from the blue one and that cash and coins in the amount of $69 3 wer e missing from the brown

one. The coins, which wer e in a chang e bag in the brown safe
, wer e rolled in clea r plastic

wra ppings and consisted of $130 in quarte rs, $14 in nickels, and $2 in pennies. Most of the missing cash cam e fr o m a tan cash box in the brown safe

. Soon afte r the defenda nt exit ed Route 3 L iquors, the police a rrived at the scene , and the store’s g ener al manag er called the I llinois State L ottery ’s hotline and “re ported the book numbers and ticket numbers that wer e stolen.” ¶ 6 On Fe bruar

y 19, 2009, the defe ndant tried to cash an instant lottery ticket at the Crown Food Mart in Washington Park but was denied pay ment. The ticket had a payout amount of $2, and af ter it was r ejec ted, the def endant r ecla imed it and left the s tore. The cashie r who

was on duty at the time testified that whe n she “sc anned the ticket[,] *** the machine said
contac t the reta iler.” She further sug g ested that the ticket was stolen beca use the l ottery machine display s “conta ct the reta iler” only in case s of stolen tickets and payout amounts in

excess of $600. The cashie r knew the defe ndant beca use he “wa s a regular at the store,” and she t estified that she l ater spoke wit h a detective from the S aug et pol ice d ep artment about what had oc curr ed. ¶ 7 On Fe bruar

y 20, 2009, the defe ndant was arr ested at the Crown Food Mart in Washing ton Park afte r attempting to exchang e rolled coins fo r cash. The rolled coins consisted of quarte rs, nickels, and penn i es an d wer e in clea r plastic wra

ppings. The defe ndant’s white For d Contour was towed f rom the sce ne. ¶ 8 A secur ity came ra positioned near the entra nce of Route 3 L iquors videoed the def endant
enter ing the store shortly befor e 5 p.m. on Fe bruar y 18, 2009, and leaving approximately four minutes later. Additionally
, a secur ity came ra in the back room are a videoe d the defe ndant
enter ing the are a and looking around befor e approa ching and opening t h e t wo larg e safe s, neither of which was locked. Whil e keeping a lookout, the defe ndant is seen removing items fr o m both safe s and putt ing the items in the front of hi s coat. The defe ndant’s finge rprints

wer e later found on the cash box from the brown safe and on one of the d o o rs o f t he blue safe

. The defe ndant’s attempt to cash the lottery ticket in Washington Park was also caught

on came ra. ¶ 9 At the conclusion of the State’s case in chief
, defe nse counsel m o v ed fo r a d i rected verdic t arguing, inter alia
, that the State had failed to prove that the defe ndant enter ed Route 3 L iquors with the intent to commit a theft. Counsel further sug g ested that if the State did not elec t to proce ed on only one of its counts ag ainst the defe ndant, the jury could possibly return

a leg ally inconsistent verdic t. In response , to “make it easie r,” the State withdrew count I and elec ted to proce ed on count I Ionly . The de fenda nt presente d no evidenc e in his defe nse. ¶ 10 In its closing argument to the jury
, the State maintained that while the defe ndant’s initial entry into Route 3 L iquors might have been authorized, he was not authorized to enter the employ ees- only office are a of the store, wher e he rema ined with the obvious intent to commit

a theft. Def

ense counsel counter ed that the defe ndant was a victim of mistaken identity and

-3-that, even assuming that he did commit a theft at Route 3 L iquors, he “neve r rema ined within

that building,” as the State alleg ed in count I I of its information. Refer ri n g t o co u nt I I
, counsel maintaine d as follows: “This ty pe of burg lary is desig ned for situations wher e the person g oes in during business hours, hides himself awa y , wait s till the store closes, they know they no longe r have permission to be there
, and they wait and they wait until afte rwa rds and then they come out a nd burg larize the building. That’s not what y ou have here

. That’s not the situation that y ou have he re.” ¶ 11 The jury was subsequently instructed that to e stablish the defe ndant’s guilt on count I I
, the State had to prove the following propositions: “the defe ndant kno wi n gl y enter ed a building,” “the defe ndant did so with authority ,” “the defe ndant therea fter, without authority
, knowing ly rema ined within that building,” and “the defe ndant rema ined within the building with the intent to commit there in the offe nse of theft.” See I llinois Pattern J ury Instructions, Criminal, No. 14.10 (4th ed. 2000). After the jury found the defe ndant guilty on count I I
, the trial court sentenc ed him to serve a seven- y ear term of imprisonment in light of his extensive criminal history . The pre sent appe al followed.

¶ 12 ANALYSI S ¶ 13 Reasonable Doubt ¶ 14 Echoing his trial attorney ’s cl o s i n g argument to the jury
, i.e.
, that he never “re mained within” Route 3 L iquors, the defe ndant’s first contention on appea l is that the State failed to prove his guilt beyond a rea sonable doubt. Noting that the State failed to establish that he hid inside Route 3 L iquors and waited for the store to close with the intent to commit a theft, the defe ndant asser

ts that the State failed to prove that he “re mained” inside Route 3 L iquors for purposes of the statute definingthe offe nse of bur g lary . We disag ree

. ¶ 15 “A person commits burg lary when wi t h o u t au thority he knowing ly enter s or without authorit y rema ins within a buil ding, *** or any part thereof, with intent to commit there in

a felony or theft.” 720 I L CS 5/19-1(a) (West 2008). The statute defining the offe nse thus “provide s two alterna

tive way s to commit burg lary (by unlawful entry or by unlawfully

rema ining following lawful entry ).” People v. Gree n , 83 I ll. App. 3d 982, 986 (1 9 8 0 ). “A criminal intent formed afte r a lawful entry will satisfy the offe nse of burg lary by unlawfully

rema ining” (

People v. Boone
, 217 I ll. App. 3d 532, 533 (1991))
, and a burg lary by rema ining can be proven by ev i d en ce that a defenda nt lawfully enter ed a store during business hours and “then secr eted himself in the store until it had closed with the intent to steal” ( People v. Vallero
, 61 I ll. App. 3d 413, 415 (1978))

. Contrary to the defe ndant’s contentions, howeve r, evidenc e of “hiding or secr eting ” until a store closes is not require d to sustain a conviction for bur g lary

by rema ining. ¶ 16 In People v. Glover
, 276 I ll. App. 3d 934, 935 (1995), claiming that they had car trouble, the defe ndant and an associate enter ed a churc h on a Sunday morning and asked a member who was prese nt if they could use a telephone. The churc h member “told the men there was

no telephone in the are a but that she would g et the pastor if they would wait there .” Id

. When she returned after summoni ng the pastor, the men wer e g one, and while following her, the

-4-pastor saw them “lea ving the building with vacuum clea ners in their arms.” Id. The vacuum clea ners came from “a storag e are a under the stairs by the back door of the churc h.” Id. The defe ndant was later c onvicted on a bur g lary charg e alleg ing that, without author ity
, he had knowing ly rema ined within the churc h with the intent to commit ther ein a theft. Id. at 934. On appea l from his conviction, the defe ndant argued that the State failed to prove beyond a

rea sonable doubt that he rema ined wi thin the churc h without authority

. Id. at 937. The appellate court disagr eed and held that althoug h the d ef en d an t was authorized to enter the churc h and wai t wh er e h e h ad enter ed, he “no longe r had the authority to rema in in the churc h when he decide d not to rema in at the door as instructed and decide d to g o to another part of the churc h t o s t ea l t he vacuum clea ners.” Id. at 938. Noting that the trier of fac t “could have rea sonably viewed defe ndant’s conduct in moving, without authority
, to another part of the building to constitute the act of unlawfully rema ining withi n a b u i l ding he had previously

been pe rmitted to enter,” the cour t concluded a s follows: “The evidenc e supported a findingthat any

orig inal authority

to enter the building wa s leg ally terminated by defe ndant’s unauthorized movements there in. His then-c ontinued
prese nce at another location i n the church for the purpose of committing a theft would constitute the act of ‘re maining.’ After considering all the evidenc e in the light most favor able to the prosec ution, we cannot conclude that no rational trier of fac t could have found def endant guilty

beyond a re asonable doubt.” Id. at 939. ¶ 17 Her e, we find Glover analog ous and controlling

. Be cause t h e S t at e conce ded that the defe ndant enter ed Route 3 L iquors with authority
, it was require d to prove that he subsequently rema ined there without authority and with the intent to commit a theft. To that end, the evidenc e that the defe ndant enter ed the clea rly marke d employ ees- only office are a wher e he stole the lottery tickets and money was more than sufficie nt to prove that, with the intent to commit a theft, he moved to a part of the store wher e he was not a uthorized to be. As the State notes on appea l, the implied authority to be in a store during business hours does
not ext end to ar eas de signated as private or e mploy ees only . See, e.g. , State v. Noel
, 2008- 0961, at 3 (L a. App. 1 Cor. 11/14/08);997 So. 2d 879. We also note that the defe ndant made
a stea lthful entry

into the office are a and w as esse ntially hiding while he was ba ck ther e. ¶ 18 “When considering the sufficie ncy of the evidenc e, it is not the function of a revie wing
court to r etry the def

endant. Rathe r, the re levant question is whether
, afte r revie wing all of the evidenc e in the light most favor able to the prosec ution, any rational fac t finder could have found beyond a rea sonable doubt the essential elements of the crime.” People v. Maggette
, 195 I ll. 2d 336, 353 (2001). Her e, the State’s evidenc e established that the defe ndant unlawfully rema ined in Route 3 L iquors with t h e intent to commit there in a theft, and we

acc ording ly

aff irm his conviction for burg lary

.

¶ 19 Alleg ed He arsa y ¶ 20 The defe ndant next ar gues that he was denied a fa ir trial by the err oneous admission of hear say testimony elicited from three of the State’s witness es

. I n response , the State maintai n s t h at the testimony in question was proper ly admitted and that, even assuming otherwise, a

ny resultingerr or wa s harmless.

-5-¶ 21 At the trial, Offic er Randy L ee of the Saug et police depar tmen t t es t i fi ed t h at afte r an employ ee of Route 3 L iquors advised him that “someone had attempted to cash in one of the stolen tickets at a convenie nce store in Washington P ar k,” he rela y ed that information to Detec tive J ohn Parisi of the Saug et police de partment. When over rulingdefe nse counse l’s objection to this testimony
, the trial court ruled that the testimony was being admitted for the “limited purpose” of explaining the course of the police investigation and not “for the truth of the matter asser

ted.” The same occur

red when Detec tive Parisi testified that he had been “informe d by Offic er L ee that a subject had tried to rede em one of the stolen lottery tickets at the Crown F ood Store” and when Office r J eff rey Waters of the Washing ton Park police depar tment testified that he had assisted the Saug et police depar tment with the arr est of “an alleg ed armed robber” at the s tore. On appea l, the defendant contends that t h e o b j ec t ed-to testimony of L ee, Parisi, and W ater s was inadmiss ible hear say that denied h i m a fair t rial. We disag ree

. ¶ 22 “To qua lify

as hea rsay , an out-of-court statement must be offere d to establish the truth of the matter asser

ted.” People v. Simms
, 143 I ll. 2d 154, 173 (1991). “Te stimony about an out-of-c ourt statement which is used for a purpose other than to prove the truth of the matter

asser ted in the statement is not ‘hea rsay .’ ” Id

. The supreme court has held that law enfor ceme nt of

fice rs “may rec ount the steps taken in the investigation of a crime, and may descr ibe the events leading up to the defe ndant’s ar rest, whe re suc h testimony is ne cessa ry and important to fully explain the State’s case to the trier of fac t.” Id. at 174. Additionally
, a law enfor ceme nt office r “may testify about his conver sations with others, such as victims

or witnesses, when such testimony is not offe red to prove the truth of the matter asser ted by the ot her, but is used t o show the i nvestig ative st eps t aken by the officer

. ” Id

. “T es timony d es cr i b i ng the prog ress of the investigation is admissible even if it sug g ests that a nontestifying witness implicated the defe ndant.” Id. “The admissibili ty of evidenc e is within the sound discretion of the trial court, and its ruling will not be reve rsed unless there has been an abuse of that discre tion.” People v . W illiams , 181 I ll. 2d 297, 313 (1998). “An abuse of d i s cr eti on occur s wher e the trial court’s decision is arbitra ry , fanc iful or unrea sonabl e [citation] or wher e no rea sonable person would agree with the position adopted by the trial court [citations] .” People v . Bec ker , 239 I ll. 2d 215, 234 (2010). ¶ 23 Her e, applying these principles to the testimony at issue, we conclude that the testimony

was not hear say , and the trial court did not abuse its discretion in admitting it for the limit ed
purpose of descr ibing the course of the investiga tion that led to the defe ndant’s arr est. Simms
, 143 I ll. 2d at 174. When overr uling defe nse counsel’s objections, the trial court specific ally instructed the jury that it could only consider the testimony for that limit ed purpose and was not to consider it for the truth of the matters asser ted. “We must presume, absent a showing
to the contra

ry , that the jury followed the trial judge ’s instructions in rea ching a verdic t.” Id. Moreove r, even assuming, arguendo
, that the jury disreg arde d the trial court’s instructions and considere d the testimony as evidenc e that the defe ndant was in possess i o n of a stolen lottery ticket and was an “alleg ed armed robber,” any resulting err or was harmless in light of the ove rwhe lming evide nce of the defe ndant’s guilt. S ee People v . McKown , 236 I ll. 2d 278, 311 (2010).

-6-¶ 24 Sentence Credit

¶ 25 The defe n d an t l astly argues that althoug h he was arr ested and taken into custody on Fe bruar y 20, 2009, when calc ulating the cre dit that he was entitled to rec eive for time spent in custody prior to sentenc ing, the trial court mistakenly used Fe bruar y 21, 2009, as the start date. The State conce des that the defe ndant i s corr ect, and we acc ording ly order that his mitti mus be amende d to refle ct a star t date of F ebrua

ry 20, 2009.

¶ 26 CONCLUSI ON ¶ 27 The State proved the defe ndant’s guilt beyond a rea sonable doubt, and he was not denied a fair t rial by the a d mission of the testi mony that he complains of on appea l. Acc ording ly
, we here by aff

irm the defe ndant’s conviction. We further order that the defe ndant’s mitti mus be ame nded as dire cted. See People v . Starnes , 374 I ll. App. 3d 132, 144-45 (2007).

¶ 28 Affir

med; mitti mus amended.

-7-