Illinois Official Reports 

Appellate Court

People v. Moore, 2018 IL App (2d) 160277

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

JAMISON L. MOORE, Defendant-Appellant.

District & No. Second District

Docket No. 2-16-0277

Filed June 6, 2018

Decision Under 

Review

Appeal from the Circuit Court of Boone County, No. 15-CF-173; the 

Hon. C. Robert Tobin III, Judge, presiding.

Judgment Affirmed as modified.

Counsel on

Appeal

Michael J. Pelletier, Thomas A. Lilien, and Paul J. Glaser, of State 

Appellate Defender’s Office, of Elgin, for appellant.

Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino, 

Lawrence M. Bauer, and Steven A. Rodgers, of State’s Attorneys 

Appellate Prosecutor’s Office, of counsel), for the People.

Panel JUSTICE JORGENSEN delivered the judgment of the court, with 

opinion.

Presiding Justice Hudson and Justice Birkett concurred in the 

judgment and opinion.
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 OPINION 

¶ 1 Following a jury trial, defendant, Jamison L. Moore, was convicted of burglary (720 ILCS 

5/19-1(a) (West 2014)) and retail theft (id. § 16-25(a)(1)). The trial court sentenced him to 

concurrent prison terms of 10 years for burglary and a 6-year extended term for retail theft. He 

appeals, contending that (1) he was not proved guilty beyond a reasonable doubt of burglary 

where he entered a Walmart store during regular business hours and remained in publicly 

accessible areas of the store; (2) the State failed to prove that he intended to commit a theft 

when he entered the store or that he was accountable for the conduct of his cousin, Adrian 

Moore, who stole merchandise from the store; and (3) if we affirm both convictions, we must 

vacate the extended-term sentence for retail theft. We agree only with defendant’s final 

contention. Thus, we vacate the extended-term portion of the retail-theft sentence but affirm in 

all other respects. 

¶ 2 I. BACKGROUND 

¶ 3 On August 7, 2015, Michael Eby took a break from his job as a manager at the Belvidere 

Walmart to go outside for a cigarette. As he left the store, two men, later identified as Adrian 

and defendant, caught his attention. Adrian was carrying a diaper bag although neither man 

had a baby with him. Eby watched the men enter the store. He went to check on them and 

found them in the liquor department. Adrian left the store alone, carrying the diaper bag with 

liquor bottles in it. He walked past the cash registers without paying for the liquor. 

¶ 4 Eby followed Adrian to the parking lot, where he got in a black sport-utility vehicle (SUV) 

being driven by a black woman. Eby yelled at two employees in the parking lot to get the 

vehicle’s license number while he called 911. The SUV backed up and left the parking lot 

rapidly. Eby saw defendant leave the store a short time later. Defendant walked by Eby, then 

headed back toward the store before running to the road and out of sight. 

¶ 5 Eby went back to the store to pull up the surveillance video. He saw that four bottles of 

liquor had been taken. 

¶ 6 According to Eby, the video showed that Adrian followed defendant into the liquor 

department. Defendant then returned to the department’s entrance and remained there for a few 

seconds. When another couple approached the department, defendant walked away. He walked 

past the self-check registers and remained on the sales floor for about 30 seconds. 

¶ 7 Eby later viewed other portions of the video. One such portion showed defendant and 

Adrian being dropped off just outside the store entrance, then entering the store together. Once 

they entered the liquor department, the two men made eye contact but, as the video had no 

sound, Eby could not tell what if anything was said. The video showed Adrian immediately 

take four bottles of vodka from the top shelf, put them in the bag, and leave. Defendant, 

meanwhile, walked toward the service desk, turned a corner, looked at an ATM, then turned 

and left the store by the same door through which they entered. 

¶ 8 Belvidere police officer Richard Zapf apprehended defendant at the corner of Genoa Road 

and Chrysler Drive, near the Walmart, at around 7 p.m. Defendant was sweating, breathing 

heavily, and nervous. He said that he had walked to the Walmart to do some shopping. 

¶ 9 Officer Michele Bogdanas arrived. She handcuffed defendant and returned him to the front 

of the Walmart. Defendant’s wallet contained a few cards, but no cash. According to 
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Bogdanas, the license number of the SUV that drove away from the store was registered to 

Tannah Moore, defendant’s wife.

¶ 10 Officer Todd Moore also responded to the scene. Defendant told Officer Moore that he 

walked to the store to get some snacks but forgot his wallet at home. He initially said that he 

went to the store alone. When asked who the “other guy” was, he said that his name was James.

¶ 11 Defendant later told police that he went to the store with a cousin but did not want to give 

the cousin’s name. The next day, after receiving a call from defendant’s wife, Officer Moore 

spoke with defendant at the county jail. Defendant said that his cousin’s name was Adrian 

Moore. He showed Adrian where the liquor section was because Adrian had never been in that 

Walmart before. Defendant said that he then went to buy snacks and did not know what Adrian 

was doing. 

¶ 12 The jury found defendant guilty of burglary and retail theft. The trial court sentenced him 

to 10 years’ imprisonment for burglary with a concurrent 6-year, extended-term sentence for 

retail theft. The court denied defendant’s posttrial motion and motion to reconsider the 

sentence. Defendant timely appeals. 

¶ 13 II. ANALYSIS 

¶ 14 A. Without Authority 

¶ 15 Defendant argues first that the State failed to prove beyond a reasonable doubt that he 

entered the Walmart store “without authority.” 720 ILCS 5/19-1(a) (West 2014). He maintains 

that he never exceeded the scope of his authority to be in the store, given that he entered during 

regular business hours, never entered an area of the store that was off-limits to the public, and 

left while the store was still open. For the following reasons, we follow long-standing authority 

and reject defendant’s argument.

¶ 16 Although defendant frames the issue as a challenge to the sufficiency of the evidence, he 

acknowledges that the real question is the construction of the burglary statute. The 

construction of a statute is an issue of law, which we review de novo. Hall v. Henn, 208 Ill. 2d 

325, 330 (2003). 

¶ 17 Section 19-1(a) of the Criminal Code of 2012 provides, in part, that “[a] person commits 

burglary when without authority he or she knowingly enters or without authority remains 

within a building, *** or any part thereof, with intent to commit therein a felony or theft.” 720 

ILCS 5/19-1(a) (West 2014). Thus, under the statute, one can commit a burglary in one of two 

ways: (1) by entering without authority and with the intent to commit a felony or theft or (2) by 

remaining without authority and with the intent to commit a felony or theft. Id. Defendant was 

charged with, and convicted of, the first type of burglary—burglary by unauthorized entry. 

¶ 18 For more than 100 years, the supreme court has recognized that entering a retail 

establishment with the intention of committing a theft constitutes burglary. See People v. 

Kelley, 274 Ill. 556, 558 (1916) (reversing burglary conviction only because there was no 

evidence of the defendant’s intent when he entered the store). In People v. Weaver, 41 Ill. 2d 

434, 435 (1968), the defendant was spotted inside a laundromat, standing near a vending 

machine, the door of which was open. Police found keys to the vending machine inside 

vehicles belonging to the defendant and his codefendant, as well as more than $50 in coins in 

the defendant’s pocket. Id. at 435-36. The defendant was convicted of burglary, possession of 

burglary tools, and theft. Id. at 435. The defendant appealed to the supreme court, arguing that 
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he was not proved guilty of burglary, given that the laundromat was open to the public. The 

court rejected the defendant’s argument, holding that evidence that the defendant entered a 

place of business in order to commit a theft is sufficient to satisfy the “without authority” 

element of burglary by unauthorized entry. Id. at 438-39. The court explained that the 

“authority to enter a business building, or other building open to the public, extends only to 

those who enter with a purpose consistent with the reason the building is open.” Id. at 439. 

Thus, patrons of a business lack the authority to enter if they intend to commit a theft inside the 

establishment. Id. Consequently, evidence that the defendant entered the building intending to 

steal from the vending machine was sufficient to convict him of burglary by unauthorized 

entry. Id.

¶ 19 Subsequently, numerous decisions have applied Weaver to cases of burglary involving the 

unauthorized entry of a retail establishment. See, e.g., People v. Rudd, 2012 IL App (5th) 

100528, ¶¶ 13-14; People v. Durham, 252 Ill. App. 3d 88, 91 (1993); People v. Stager, 168 Ill. 

App. 3d 457, 459 (1988); People v. Patterson, 1 Ill. App. 3d 724, 726 (1971). 

¶ 20 Defendant relies on People v. Bradford, 2016 IL 118674, ¶¶ 25, 31, where the supreme 

court declined to extend Weaver to a case of burglary by unlawfully remaining. There, the 

defendant was convicted of burglary by unlawfully remaining in a Walmart store with the 

intent to commit a theft. In the supreme court, the defendant argued that he never exceeded the 

scope of his authority to be in the store and that burglary by remaining was never intended to 

apply to such a situation, which amounted to no more than ordinary shoplifting. The State 

contended that the burglary statute could also apply where a defendant entered a store lawfully, 

then subsequently formed the intent to commit a theft, but remained in the store longer than 

necessary to steal the items. 

¶ 21 The supreme court, however, agreed that the defendant’s was the “only reasonable reading 

of the burglary statute.” Id. ¶ 25. The court held that the State’s proposed test (1) was 

unworkable (due to the difficulty of proving precisely when the defendant’s authority to be in 

the store was revoked and whether he “remained” in the store for some period of time after 

completing the theft), (2) could lead to absurd results (by arbitrarily distinguishing between a 

defendant who steals one item and leaves immediately thereafter and one who steals more than 

one item or lingers in the store before leaving), and (3) was not consistent with the retail-theft 

statute (which was enacted 14 years after the burglary statute’s “remaining within” provision 

and would be effectively negated by the State’s reading) and the historical development of the 

burglary statute (which reflected that the addition of the “remaining within” provision 

incorporated the former crime of “burglar found in building” and where the term “found” 

necessarily refers to an area closed to the defendant or the public). Id. ¶¶ 25-30. In sum, the 

court held that a defendant “commits burglary by remaining in a public place only where he 

exceeds his physical authority to be on the premises.” Id. ¶ 31. This includes situations where 

the defendant “enters a public building lawfully but, in order to commit a theft or felony, (1) 

hides and waits for the building to close,” “(2) enters unauthorized areas within the building,” 

“or (3) continues to remain on the premises after his authority is explicitly revoked.” Id.

However, the court clarified that a person who lawfully enters a building, shoplifts within areas 

open to the public, and then leaves during business hours is guilty of retail theft. Id.

¶ 22 Defendant contends that Bradford’s rationale should also apply to cases of burglary by 

unauthorized entry. We disagree. Bradford addressed only the second type of burglary: 

burglary by remaining. The supreme court’s concerns about establishing when authority is 
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revoked and when a defendant has remained in the store longer than necessary to complete the 

theft are simply not present in a case like this one. Further, as noted, the historical development 

of the crime of burglary by remaining, the court emphasized, includes only scenarios where the 

defendant is discovered in a place where he or she is not authorized to be. Id. ¶ 30. Finally, 

nothing in Bradford purports to overrule Weaver, where the court held that the burglary statute 

applied to the entry of an establishment otherwise open to the public (Weaver, 41 Ill. 2d at 

438-39). 

¶ 23 We find support for our conclusion in the Fourth District’s decision in People v. 

Burlington, 2018 IL App (4th) 150642, which the State urges us to follow. There, the court 

followed longstanding precedent (most significantly, Weaver) and affirmed the defendant’s

burglary conviction after he entered a Menard’s store with the intent to commit a theft. Id. ¶ 31. 

Burlington observed that Bradford did not affect the holding of Weaver and its progeny. Id.

¶ 27. The court further noted that, even after the passage of the retail-theft statute, the supreme 

court had held that burglary and retail theft constituted separate offenses (id. ¶ 28 (citing 

People v. Miller, 238 Ill. 2d 161, 176 (2010))), thus “undermining the assertion the first type of 

burglary eviscerates the retail theft statute.” Id. The Fourth District noted that the defendant’s 

assertion that the intent to commit a theft does not remove one’s authority to enter a retail 

establishment would eliminate other types of burglary, such as when one enters an 

establishment intending to commit forgery. Id. ¶ 29 (citing People v. Drake, 172 Ill. App. 3d 

1026, 1028 (1988)). Finally, the court noted that, in the 50 years since Weaver was announced, 

the legislature has never amended the burglary statute to eliminate its application to cases of 

that type. Id. ¶ 30. 

¶ 24 We agree with Burlington that the history and nature of the burglary-by-remaining 

provision distinguish it from burglary by unauthorized entry such that Bradford’s rationale 

cannot be mechanically applied to the latter provision. The distinction is further justified by the 

fact that one who enters a store with a preconceived plan to steal merchandise is at least 

arguably more culpable than one who, once inside a store, impulsively takes merchandise. See 

Durham, 252 Ill. App. 3d at 93 (no evidence that the defendant “was carrying out some 

previously devised plan rather than taking advantage of an opportunity presented by the 

circumstances”).

¶ 25 In People v. Johnson, 2018 IL App (3d) 150352, ¶ 35, a case upon which defendant relies, 

the Third District came to a different conclusion than the Fourth District in Burlington. In 

Johnson, the Third District held that Bradford changed longstanding law and applies to cases 

of burglary by unauthorized entry. Id. The court concluded that “Bradford’s physical authority 

test applies to all retail theft cases, regardless of when the defendant forms the intent to 

shoplift.” Id.

¶ 26 We disagree with and do not follow Johnson. The court’s primary concern there appears to 

have been that allowing the same act to be charged as either burglary or retail theft (or both) 

gives prosecutors “unbridled discretion.” Id. ¶ 30. We, however, do not find that limiting a 

prosecutor’s discretion to charge a defendant when his or her conduct falls under one or more 

provisions is a basis to depart from more than 100 years of precedent. The state’s attorney has 

the responsibility of evaluating evidence and other pertinent factors and determining what, if 

any, offense should be charged. People v. Williams, 147 Ill. 2d 173, 256 (1991) (citing People 

v. Rhodes, 38 Ill. 2d 389, 396 (1967)). Thus, the prosecutor is vested with wide discretion in 

enforcing the criminal laws. Id. (citing Marcisz v. Marcisz, 65 Ill. 2d 206, 210 (1976)). Further, 
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as the Burlington court noted, “[c]oncerns over the exercise of prosecutorial discretion cannot 

alter the plain language of a statute.” Burlington, 2018 IL App (4th) 150642, ¶ 32. 

¶ 27 Johnson also seemed to express concern that allowing shoplifting to be charged as 

unauthorized-entry burglary would effectively nullify the retail-theft statute: “We suspect that 

it is a miniscule percentage of shoplifters who form the intent to steal only after entering a 

store.” Johnson, 2018 IL App (3d) 150352, ¶ 33. The court cited no authority for its 

“suspicion.” Further, it missed the point: unlawful-entry burglary requires the concurrent 

intent to commit a theft or felony. Given the difficulty of proving a defendant’s intent at the 

moment he or she enters a store, it is more probable that the vast majority of cases are charged 

as retail theft (because the State has insufficient evidence of intent at entry). See Kelley, 274 Ill. 

at 558; Durham, 252 Ill. App. 3d at 93; People v. Boose, 139 Ill. App. 3d 471, 474 (1985) 

(burglary convictions reversed due to lack of evidence of the defendants’ intent upon entering). 

In any event, these are policy arguments best directed to the legislature. Thus, we follow 

Burlington.

¶ 28 B. Intent and Accountability 

¶ 29 Defendant next contends that the evidence was insufficient to prove that he entered the 

store intending to commit a theft or that he was accountable for Adrian’s conduct after they 

entered the store. Defendant discusses this issue primarily as it relates to his burglary 

conviction, but he also asks us to reverse his retail-theft conviction. Entering without authority 

is not an element of retail theft. See 720 ILCS 5/16-25(a) (West 2014). However, to establish 

guilt of retail theft, the State had to prove that defendant was accountable for Adrian’s conduct 

(because there was no evidence that defendant personally stole anything from the Walmart). 

For the following reasons, we conclude that the evidence was sufficient to prove that defendant 

entered the store intending to commit a theft and that he was accountable for Adrian’s conduct 

after they entered the premises. 

¶ 30 When reviewing the sufficiency of the evidence, we ask only whether any rational trier of 

fact could have found the elements of the offense, when viewing the evidence in the light most 

favorable to the prosecution. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). It is the trier of fact’s 

function to judge the witnesses’ credibility, resolve conflicts in the evidence, and draw 

conclusions based on all the evidence. People v. Titone, 115 Ill. 2d 413, 422 (1986). To prove 

that a defendant was accountable for another’s criminal conduct, the State must establish that 

the defendant (1) solicited, ordered, abetted, or agreed or attempted to aid another in the 

planning or commission of the offense; (2) participated before or during the commission of the 

offense; and (3) had the concurrent, specific intent to promote or facilitate the commission of 

the offense. 720 ILCS 5/5-2(c) (West 2014); People v. Jaimes, 2014 IL App (2d) 121368, ¶ 37. 

“To prove intent, the State must present evidence that the defendant shared the criminal intent 

of the principal or that there was a common criminal design.” Jaimes, 2014 IL App (2d) 

121368, ¶ 37.

¶ 31 Here, Eby observed defendant and Adrian enter the store together. Video confirms that 

they were dropped off together and entered the store almost simultaneously. Video shows that 

Adrian, who was inexplicably carrying a diaper bag, entered the liquor department. Defendant 

entered seconds later, and the two briefly conversed or at least made eye contact. Defendant 

then left the area and embarked on a circuitous journey around the front of the store. At no time 

was he seen examining merchandise as if shopping, and except for a brief foray through the 
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women’s-wear department, he never entered another area of the store containing merchandise. 

From this, the jury could reasonably infer that defendant served as a lookout while Adrian 

stuffed the diaper bag with liquor. Defendant’s conduct was not “that of a shopper browsing 

through various racks and displays.” Durham, 252 Ill. App. 3d at 92. 

¶ 32 Moreover, defendant ran after leaving the store. When apprehended a short time later, he 

appeared sweaty, out of breath, and nervous. He gave the investigating officers conflicting 

stories. His flight and false exculpatory stories could both be viewed as evidence of 

consciousness of guilt. See People v. Harris, 52 Ill. 2d 558, 561 (1972) (evidence of flight 

admissible as tending to show consciousness of guilt); People v. McQueen, 115 Ill. App. 3d 

833, 837 (1983) (false exculpatory statement admissible to establish consciousness of guilt). 

¶ 33 Thus, the evidence was sufficient to prove that defendant and Adrian entered the store 

intending to commit a theft and, moreover, that defendant was accountable for Adrian’s 

conduct after they entered the premises. We affirm defendant’s convictions.

¶ 34 C. Extended-Term Sentence 

¶ 35 Defendant’s final contention is that his extended-term sentence for retail theft is 

unauthorized. The State confesses error. 

¶ 36 Extended-term sentences may be imposed only for offenses within the most serious class 

of offense of which a defendant is convicted. 730 ILCS 5/5-8-2(a) (West 2014); People v. 

Jordan, 103 Ill. 2d 192, 207 (1984). Defendant was convicted of burglary, a Class 2 felony 

(720 ILCS 5/19-1(b) (West 2014)), and retail theft, a Class 4 felony as charged here (id.

§ 16-25(f)(1)). Thus, as the State concedes, defendant could not receive an extended-term 

sentence for retail theft. Accordingly, we reduce defendant’s sentence for retail theft to three 

years’ imprisonment, the maximum nonextended term for a Class 4 felony. 730 ILCS 

5/5-4.5-45(a) (West 2014). 

¶ 37 III. CONCLUSION 

¶ 38 The judgment of the circuit court of Boone County is affirmed as modified. As part of our 

judgment, we grant the State’s request that defendant be assessed $50 as costs for this appeal. 

55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178 (1978). 

¶ 39 Affirmed as modified.