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NO. 5-00-0315

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

PRESIDING JUSTICE MAAG delivered the opinion of the court:

Antonio Torres (defendant) was charged by an amended information on April 6,2000, with residential burglary and burglary. Following a jury trial, he was convicted ofresidential burglary. Defendant was sentenced to six years in the Department of Corrections(Department). Defendant appeals.

William and Kelly Snell and their three children lived in a mobile home at No. 54Richmond Heights in Central City, Illinois. On January 12, 2000, while William wasattempting to light the pilot light on the hot water heater, a fire occurred. The interior of themobile home sustained smoke, water, and heat damage, and the siding on the exterior melteddue to the heat. When the Snells left their home at approximately 7 p.m., the utilities wereturned off due to the fire and they did not take anything with them. They locked the backdoor, and the window was intact. At that time, the Snells planned to return to the mobilehome to live, but they never spent another night at the trailer, due to the extent of thedamage. An insurance claim was filed and the trailer was considered totaled.

Later that same evening, the Snells were told by the police that someone had brokeninto their burned trailer. When the Snells arrived, they noticed that the back door to thetrailer was open and that the back window was broken. The Snells determined that a pairof jeans, a short-sleeved, black shirt, and cologne were missing. The Snells both knewdefendant, but neither of them knew John Vinson. Regardless, neither of the men hadpermission to enter the mobile home and take anything out of it. After the Snells learnedthat their home had been broken into, they removed their VCR and a PlayStation. After theydetermined that the trailer was totaled, they returned several times to retrieve the remainderof their belongings.

Jesse Cummins lived at No. 22 Richmond Heights in Central City, Illinois, on thedate of the fire. On January 12, 2000, Cummins, defendant, and a friend were at JohnVinson's trailer, No. 8 Richmond Heights, in Central City, Illinois. Defendant and Vinsonwere planning to go to Huck's for soda and cigarettes. While Vinson was in the bathroom,defendant told Cummins and his friend that he and Vinson were going to see how badly theSnells' trailer was damaged. Cummins had been to the Snells' trailer earlier in the eveningwhile it was burning.

When Vinson testified, he admitted that he had twice been convicted of theft. Vinsonstated that at the time of the burglary of the Snells' trailer, he was on parole for grand theftauto and theft over $300. Vinson admitted that he had pleaded guilty to the burglary of theburned trailer. He had not been sentenced at the time of the trial in this case, and he did nothave a sentencing agreement. Vinson said that he and defendant had the idea to break intothe Snells' trailer as "an easy way to make money." Vinson claimed that he reached througha broken-out window in the back of the trailer and unlocked the back door. When Vinsonand defendant entered the trailer, there was no electricity. Vinson used a cigarette lighterto see. Vinson claimed that he saw defendant take a black shirt that zipped up the front withlong sleeves. When Vinson and defendant entered the living room, they noticed that somepeople had spotted them in the trailer. They ran out the back door and through the cemetery. When they reached the main road, they split up and met each other approximately 20 to 30minutes later.

Vinson admitted that he made two statements to the police. Defendant's exhibit 7,Vinson's first statement, is in his own handwriting and does not mention that defendant tooka shirt. Approximately eight hours later, Vinson made a second statement, defendant'sexhibit 8. In the second statement, Vinson stated that defendant had taken a shirt. Vinsonclaimed that the second statement was merely a clarification of the first statement and thathe had failed to include everything in the first statement.

Vinson spoke with defense counsel and an investigator, Kevin McClain, on theSaturday prior to the trial. At that time, Vinson stated that he did not see defendant takeanything from the trailer. Vinson told defense counsel and McClain that the only reason thathe said that defendant had taken the shirt was because Officer Berger threatened to putVinson back in prison. At the trial, Vinson admitted that he had lied to defense counsel andMcClain on the Saturday prior to the trial. Vinson testified that he saw defendant take theshirt from the Snells' trailer. Vinson also admitted that Berger had not threatened him. Vinson clarified that a state agent told him that he could get up to five years' imprisonmentif he lied while giving his testimony.

Shawn Richards, a Central City police officer, testified that on January 12, 2000, atapproximately 8:30 p.m., he received a report of a burglary at No. 54 Richmond Heights inCentral City, Illinois. Richards met with the Snells at their trailer that evening. The Snellstold Richards that their trailer had been broken into through the back door. They toldRichards that a black shirt and blue jeans were missing. It was not until Richards' secondmeeting with Vinson that he let Vinson know that clothing was missing from the Snells'trailer. Richards did not give Vinson a description of what was missing. Vinson'sdescription of the shirt was similar to the description given by William Snell.

The jury received guilty and not-guilty verdicts on residential burglary and burglary. The jury returned a verdict of guilty of residential burglary and not guilty of burglary. Defendant was later sentenced to six years' imprisonment. The written sentencing order wasentered on May 18, 2000, and states, inter alia, as follows: "IT IS FURTHER ORDEREDthat the Illinois Department of Corrections is ordered to withhold fifty per[]cent (50%) ofthe inmate's monthly Corrections income and remit that amount to the Marion CountyCircuit Clerk for application to amounts due in this cause, for a total amount due of$123.00." Defendant filed a timely notice of appeal.

Defendant contends that the State failed to prove beyond a reasonable doubt that theburned trailer was a dwelling place, a necessary element of residential burglary. In anutshell, defendant claims that because the Snells' residence could not be repaired, theycould not, within a reasonable period of time, intend to reside there. Hence, defendantclaims that the fire-damaged residence was not a "dwelling" place of another under section19-3 of the residential burglary statute (720 ILCS 5/19-3 (West 1998)) and that he shouldonly have been found guilty of the mutually exclusive offense of burglary. Defendant claimsthat because the evidence supported only a conviction for burglary and because the juryacquitted him of this charge, he should be completely exonerated for his unlawful acts. Wedisagree.

On appeal, a criminal conviction will not be set aside unless the evidence is soimprobable or unsatisfactory that there remains a reasonable doubt of the defendant's guilt.People v. Anderson, 188 Ill. 2d 384, 392, 721 N.E.2d 1121, 1125 (1999). When a court onappeal reviews the sufficiency of the evidence to sustain a verdict, the relevant inquiry is"whether, after viewing the evidence in the light most favorable to the prosecution, anyrational trier of fact could have found the essential elements of the crime beyond areasonable doubt." (Emphasis omitted.) Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed.2d 560, 573, 99 S. Ct. 2781, 2789 (1979). The standard of appellate review in a criminalcase is one of great deference to the trier of fact, since it is not the function of the appellatecourt to retry the defendant. People v. Young, 323 Ill. App. 3d 1078, 1088, 753 N.E.2d1046, 1055 (2001). Additionally, as a court of review, we do not reweigh the evidence orsubstitute our judgment for that of the trier of fact. People v. Penrod, 316 Ill. App. 3d 713,719, 737 N.E.2d 341, 348 (2000).

Pursuant to section 19-3 of the residential burglary statute, "[a] person commitsresidential burglary who knowingly and without authority enters the dwelling place ofanother with the intent to commit therein a felony or theft." 720 ILCS 5/19-3 (West 1998). By statute, the offenses of burglary and residential burglary are mutually exclusive. See 720ILCS 5/19-1 (West 1998). The Illinois Supreme Court has also adopted this view.Peoplev. Childress, 158 Ill. 2d 275, 302, 633 N.E.2d 635, 647 (1994). For purposes of theresidential burglary statute, a "dwelling" is, inter alia, a mobile home or trailer "in which atthe time of the alleged offense the owners or occupants actually reside or in their absenceintend within a reasonable period of time to reside." 720 ILCS 5/2-6(b) (West 1998).

In People v. Walker, 212 Ill. App. 3d 410, 412, 570 N.E.2d 1268, 1269 (1991), thehouse had been unoccupied for one year. Two years prior to the burglary, the owner hadbeen hospitalized as a result of congestive heart failure and the onset of Alzheimer's disease. The owner went home for 11 months and, due to continuing health problems, eventuallymoved to a nursing home. The defendants burglarized the owner's home and were convictedof residential burglary. At the trial, the owner testified that he intended to return home. Thetestimony showed that the doors were kept locked and that the home was secured. Onappeal, the defendants claimed that they could not be convicted of residential burglarybecause the premises in question were not a "dwelling." This court disagreed and held thatif the evidence is sufficient for the finder of fact to determine that an occupant or ownergenuinely possessed the subjective intent to reside on the premises in question within areasonable period of time, the premises are a "dwelling." The statute does not require theintent to be realistic or reasonable. "Reasonable," as used in the statute, applies only to theperiod of time in which the owner-occupier intends to go and reside, not the intent itself.Walker, 212 Ill. App. 3d at 412-13, 570 N.E.2d at 1270. The residential burglary statuteapplies to structures intended to be used as residences, regardless of whether the structurewas actively being used as a residence at the time the burglary was committed. People v.Suane, 164 Ill. App. 3d 997, 1002, 518 N.E.2d 458, 461 (1987); see also People v. Sexton,118 Ill. App. 3d 998, 455 N.E.2d 884 (1983) (the statute applied to the burglary of a housethat was occupied only occasionally by the owner). It was designed to protect the sanctityand the privacy of the home and to avoid the "greater danger and potential for serious harmfrom burglary of a home as opposed to burglary of a business." People v. Edgeston, 243 Ill.App. 3d 1, 10, 611 N.E.2d 49, 56 (1993).

In the instant case, the burned mobile home was the Snells' dwelling place. In fact,their departure from the residence was involuntary and due solely to the fire that occurredon the same evening as the theft. There is no doubt that at the time that the Snells departedthe residence, they intended to return. Neither the trailer nor their personal belongings wereabandoned. They even locked the doors that evening in an effort to secure their personalbelongings. The Snells considered the mobile home to be their "home" and had no reasonto believe that their residence could not be rehabilitated for future occupancy.

Defendant cites People v. Willard, 303 Ill. App. 3d 231, 707 N.E.2d 1249 (1999), insupport of his argument that the jury's verdict was not supported by the evidence. Thedefendant in Willard had been convicted of burglary and contributing to the delinquency ofa minor. The defendant argued on appeal that the evidence at the trial established that heentered a dwelling in violation of the residential burglary statute; therefore, he claimed thathe could not have committed the offense of burglary. The building that the defendantentered had originally been a six-unit motel. The owner had purchased land adjacent to thatbuilding and was planning to rehabilitate the building into four residential units and alaundry room, plus a residence for himself. At the time of the burglary, the owner was notliving in the building. In fact, no one lived in the building. On the date of the burglary,much of the drywall inside had been taken down, and one could see from one end of thebuilding to the other on the inside. The owner stated that the building was "really not aplace to live in yet" on the date of the burglary. Willard, 303 Ill. App. 3d at 323, 707 N.E.2dat 1250-51.

Defendant cites the following language from the Willard decision to support hisargument that the burned trailer was not a dwelling place on the date of the burglary: " 'Intheir absence' implies that the building is habitable, but currently uninhabited, with a returnto habitation planned shortly. An uninhabitable building does not fall within thisdefinition." Willard, 303 Ill. App. 3d 235, 707 N.E.2d at 1251. However, the Willarddecision is distinguishable from the instant case. Unlike Willard, the mobile home in theinstant case was the Snells' residence, and they considered it their home. On the other hand,in Willard, the residence was not yet habitable. The Willard court discussed the problemswith elevating to the status of a "dwelling place" any and all partially built homes that werenot yet habitable. This was a reasonable conclusion, considering the fact that one cannotreside in or be absent from a building that is not yet a residence. The Willard court alsodetermined that the entry into the owner's building did not implicate the concerns forprivacy, the sanctity of a home, and the potential for serious harm that the residentialburglary statute addresses. Willard, 303 Ill. App. 3d at 234, 707 N.E.2d at 1251.

Here, the Snells had just left their residence due to a fire. They left their personalbelongings in the trailer, intending to return. When they left, they had no idea that the trailerhad been totaled. In fact, they locked the doors to secure their personal belongings as if theywere leaving for the evening. Hence, we find defendant's reliance on Willard to bemisplaced.

For the foregoing reasons, the evidence was sufficient for a rational jury to find thatdefendant broke into a "dwelling place" with the intent to commit a theft. Hence,defendant's conviction for residential burglary was proper.

Next, defendant argues that the legislature has created "an unconstitutional statutoryscheme by declaring residential burglary and burglary mutually exclusive offenses."

While it is true that the legislature has determined that burglary and residentialburglary are to be considered mutually exclusive (720 ILCS 5/19-1 (West 1998)), defendantappears to claim that it is a violation of substantive due process and, hence, unconstitutionalfor the legislature to do so. While it may seem curious that the legislature has createdmutually exclusive offenses, it does not mean that the statutes are invalid andunconstitutional as defendant suggests. It is well-established that the legislature, under itspolice power, has broad discretion to define offenses and prescribe penalties and aggravatingfactors for the offenses. People v. LaPointe, 88 Ill. 2d 482, 500, 431 N.E.2d 344, 352(1981). In fact, it is proper for the legislature to define two separate offenses covering thesame conduct. In re P.S., 147 Ill. App. 3d 707, 709, 498 N.E.2d 325, 327 (1986). Thelegislature cannot, however, impose multiple punishments for a greater offense and a lesser-included offense when both involve a single physical act.People v. Davis, 156 Ill. 2d 149,160, 619 N.E.2d 750, 756 (1993). This problem is not implicated when the legislature hascarved out mutually exclusive offenses.

Statutes are presumed constitutional, and the party challenging a statute onconstitutional grounds has the burden of clearly establishing its invalidity. People v. Jung,192 Ill. 2d 1, 4, 733 N.E.2d 1256, 1258 (2000). When legislation does not affect afundamental constitutional right, the test for determining whether it complies withsubstantive due process requirements is the rational basis test. People v. Hamm, 149 Ill. 2d201, 216, 595 N.E.2d 540, 546 (1992). Pursuant to this test, a statute will be upheld "[w]hen[the] statute bears a reasonable relationship to a public interest to be served[] and the meansadopted are a reasonable method of accomplishing the desired objective." People v. Adams,144 Ill. 2d 381, 390, 581 N.E.2d 637, 642 (1991). In People v. Bales, 108 Ill. 2d 182, 193,483 N.E.2d 517, 522 (1985), the Illinois Supreme Court commented on the legislativehistory of the residential burglary statute and stated that it was enacted in order to deter theunlawful entry into dwelling places and, thus, to protect the privacy and sanctity of thehome.

Residential burglary is a serious crime. When a thief invades the privacy of one'shome, a place where the owners (or renters) and their family expect to be relaxed, safe, andsecure, they steal more than the possessions that they carry out the door. There is aconsiderably greater chance of serious injury to persons when the home is violated thanwhen the place violated is not used as a dwelling. For these reasons, the legislaturedetermined that the privacy and sanctity of a family's home are paramount. The legislature,in exercising its police powers, made a determination that when a thief enters a "dwellingplace," the penalties will be higher than when one burglarizes another type of building. Since the State must show beyond a reasonable doubt that a dwelling place was involved inthe crime, defendant suffers no unfair result. This clearly satisfies the reasonablerelationship test. When the legislature defines two separate offenses covering the sameconduct, then multiple punishments for a greater offense and a lesser-included offense areimpermissible if only a single physical act is involved. This problem is not implicated wherethe legislature has carved out mutually exclusive offenses (Davis, 156 Ill. 2d at 160, 619N.E.2d at 756) as it has in the case at hand.

In People v. Bryant, 128 Ill. 2d 448, 539 N.E.2d 1221 (1989), the Illinois SupremeCourt rejected the appellate court's reasoning and vacated the defendant's conviction forpossession of a stolen motor vehicle. The appellate court had opined that becausepossession of a stolen motor vehicle is a lesser-included offense of theft yet is punishedmore severely, the statute was unconstitutional. The Illinois Supreme Court acknowledgedthat possession of a stolen motor vehicle may have, at one time, been considered a lesser-included offense of theft. The court, citing the legislature's police power and the increasein the severity of the penalty for possession of a stolen motor vehicle, held that thelegislature intended to "distinguish possession of a stolen motor vehicle from theft in orderto remedy the increasing frequency of the offense of possession of a stolen motor vehicleand its related activities." Bryant, 128 Ill. 2d at 457-58, 539 N.E.2d at 1226. TheBryantcourt went on to note that the steady increase in the penalty provision for possession of astolen motor vehicle is indicative of the legislature's intent to make possession of a stolenmotor vehicle a separate, more serious offense than theft, rather than a lesser-includedoffense of theft. 128 Ill. 2d at 457, 539 N.E.2d at 1225.

In light of defendant's argument that the legislature is constrained from labelingoffenses as mutually exclusive, the Bryant decision is significant. The Illinois SupremeCourt found no constitutional infirmity in the legislature's creation of the distinct offense ofpossession of a stolen motor vehicle when such offense would logically be a lesser-includedoffense of theft. In fact, the offense that had typically been considered the lesser-includedoffense-possession of a stolen motor vehicle-can carry a higher penalty than the greateroffense of theft. This does not offend the constitution. Hence, the Illinois Supreme Courthas implicitly held that two very similar offenses can be mutually exclusive. Bryant, 128 Ill.2d at 448, 539 N.E.2d at 1221.

For the foregoing reasons, we find that the residential burglary and burglary statutesare constitutional.

Finally, defendant claims that the circuit court lacked the authority to order 50% ofdefendant's wages to be withheld by the Department to pay court costs.

In People v. Watson, 318 Ill. App. 3d 140, 142-43, 743 N.E.2d 147, 149 (2000), thecourt held that no authority exists for the circuit court to direct that the Department withholdwages earned while a defendant is imprisoned. In fact, the Watson decision states that whena court enters an order that it lacks the inherent power to enter, the order is void. TheWatson court then proceeded to vacate the circuit court's order. The court followedWatsonin People v. Williamson, 319 Ill. App. 3d 891, 900, 747 N.E.2d 26, 34 (2001), andPeoplev. Calvert, No. 4-00-0443, slip op. at 35 (4th Dist. December 11, 2001). However, inCalvert and Williamson, the courts determined that it is proper for a court to vacate only thatportion of the circuit court's sentencing order directing the Department to withhold 50% ofa defendant's wages. We agree.

Since no authority exists for the circuit court to withhold 50% of defendant's monthlycorrections income, that portion of the circuit court's order directing the Department to doso is void, and we vacate it. We note, however, that defendant was not fined or required topay any restitution but was ordered to pay $123 in court costs. The judgment also ordereddefendant to pay the court costs within six months of his release from prison. This portionof the order stands. See Williamson, 319 Ill. App. 3d at 900, 747 N.E.2d at 34;Calvert, slipop. at 35.

In light of the foregoing considerations, we find that the evidence was sufficient topermit a rational jury to find that defendant broke into a "dwelling place" with the intent tocommit a theft. Additionally, the Illinois legislature is not prohibited constitutionally fromdeclaring residential burglary and burglary mutually exclusive offenses. Finally, we vacatethat portion of the circuit court's order requiring 50% of defendant's wages to be withheldby the Department to pay court costs, and we remand this cause with directions to modifythe written judgment of sentence as stated.

Affirmed in part and vacated in part; cause remanded with directions.

GOLDENHERSH and HOPKINS, JJ., concur.