APPEAL from the Circuit Court of Sangamon County; the Hon.
GEORGE P. COUTRAKON, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant was convicted after a jury trial of the offense of theft of property over $150 and was sentenced for an indeterminate term of imprisonment of not less than 2 nor more than 6 years, which sentence was to run consecutively to any time served by the defendant for violation of parole on a previous conviction for armed robbery.
The evidence introduced by the prosecution indicated that the defendant was a passenger in an automobile driven by his brother, Glen Agans, and that the car was stopped by a police officer for running a stop sign. Upon approaching the car, the officer detected the odor of alcohol and observed the occupants "squirming around" in the car. The driver of the car stepped outside on the orders of the police officer who then observed a cash register on the floor at the passenger side of the automobile, where the defendant was sitting. The cash register was partially covered by a towel, and Glen Agans told the officers he didn't know much about the cash register but that it was in the possession of the passenger. The defendant stated to the officer that the cash register came from a Red Bird gas station where he worked and that he was taking it home at the request of the manager who did not want to leave it there because of some recent break-ins at the service station. He further told the officer that a towel was placed over the cash register to protect it from getting scratched. The defendant and his brother were taken into custody, and subsequently the police officers were informed that the cash register had been stolen from a Sunoco station.
Glen Agans testified that he had previously entered a guilty plea and stated that he was driving the car, that he and the defendant had stopped at the Sunoco station twice during the evening of the theft, the first time to make a telephone call and the second time for the defendant and himself to buy candy and to use the bathroom. Glen Agans further testified that the defendant carried out the cash register and put it in the car the last time the two of them went to the Sunoco station.
Robert Pasenko testified for the defendant and stated that he was with the defendant and his brother from approximately 8:30 P.M. to about 3 A.M. on the night of the theft and that all of them were drinking beer and driving around in Glen Agans' car. He further testified that they stopped sometime after midnight at the Sunoco station to call a girl friend and that subsequently they went to her house where the defendant was so drunk he could hardly walk. Finally, Pasenko testified that the defendant and his brother left and he stayed at his girl friend's home.
The defendant testified substantially the same as Pasenko and further testified that he and his brother left Pasenko at his girl friend's home because the two of them had gone out there on the mistaken belief that two other girls were visiting in the home. He stated that he was feeling so bad he got in the back seat of the car and laid down with a bottle to listen to the car radio. He further testified that he went to sleep or passed out; that he later awoke and moved to the front seat of the car and either passed out or went to sleep again; and that the next thing he remembers was his brother shaking him and red lights flashing. He testified that he then reached under the seat and got his towel out and tried to cover the cash register, but that he did not know how it happened to be in the car and that he had not removed it from the station.
The defendant further testified that at the time the police officers questioned him he made up the story about obtaining the cash register from the Red Bird service station. He admitted he had previously been arrested for armed robbery. He stated he was free from debt but that his brother owed $2000. He testified that he had made up the story about the cash register because he knew he would be considered an accomplice because he knew his brother had no reason for having a cash register.
The defendant raises three issues on appeal:
1. Whether he was proven guilty beyond a reasonable doubt of the offense of theft, since it was never sufficiently established that he, rather than his brother, took the property in question.
2. Whether the remarks of the prosecutor during his closing argument to the jury were so improper and prejudicial that they denied the defendant a fair trial.
3. Whether a consecutive term of imprisonment of not less than 2 nor more than 6 years for the offense of theft of property having a value exceeding $150 is excessive and should be reduced.
Defendant argues that there must be a reasonable doubt as to his guilt because the only evidence sufficient to convict him was the suspect testimony of his brother, who was an accomplice.
• 1, 2 It is well settled that a conviction of theft can be sustained on circumstantial evidence alone if the character of said evidence convinces the trier of facts of the defendant's guilt beyond a reasonable doubt. (People v. Stevenson, 107 Ill. App.2d 441, 246 N.E.2d 309; People v. Mills, 98 Ill. App.2d 248, 240 N.E.2d 302.) Further, in People v. Huff, 29 Ill.2d 315, 194 N.E.2d 230, it was held that although circumstantial evidence must not give rise to any reasonable hypothesis consistent with the innocence of the accused, this does not mean that the trier of fact must search out potential explanations compatible with innocence and elevate them to the status of reasonable doubt.
In the instant case, the evidence is strongly indicative of the fact that the defendant and his brother committed the theft. An employee of the gas station testified that he discovered the cash register was missing at about 4 A.M. on the night in question. The owner of the station later identified the cash register as being the same as the one recovered by the police officers from the car in which the defendant and his brother were riding, and he further identified the money and the receipts contained in the cash register. When questioned by Officer Schultz when they were first stopped, Glen Agans stated that the cash register was in the possession of the defendant and that he saw his brother take the cash register from the Sunoco station and put it into the car he was driving.
The defendant informed Officer Schultz that the cash register belonged to a Red Bird station where he was employed. Defendant further told the officer that he placed the towel over the cash register to prevent it from being scratched. Defendant, in his brief, attempts to escape liability for the crime on the basis that it is possible that Glen Agans actually took the cash register.
We are of the opinion that there is sufficient evidence to sustain the conviction in this case. The record is barren of any evidence that Glen Agans took the register; however, had it been established that Glen Agans did take the cash register, the defendant is, nevertheless, guilty under the theory of accountability within the scope of section 5-2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 5-2).
• 3 The defendant's contention that the testimony of Glen Agans is suspect because he is an accomplice does not alter our opinion as to the sufficiency of evidence. The uncorroborated testimony of an alleged accomplice is sufficient to convict if it satisfies a jury beyond a reasonable doubt. (People v. Baker, 16 Ill.2d 364, 158 N.E.2d 1; People v. Field, 13 Ill. App.3d 74, 299 N.E.2d 754.) The jury in this case had ample reason to believe the testimony of Glen Agans. His testimony was consistent with the story given to the police, whereas defendant's version varied substantially from the time of arrest to and including the time of the trial. Defendant's testimony that he was taking the cash register home on behalf of his manager to protect it from possible theft varies widely from his courtroom testimony that he didn't know how he came into possession of the cash register. Defendant contended that he was so drunk that he didn't remember the events of the evening, but he was able to tell the officer apprehending them a very specific reason for his being in possession of the cash register, and which story he later repudiated.
• 4 Defendant contends the prosecution's closing argument was prejudical and deprived him of a fair trial and cites the following ...