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People v. Schubert

MAY 27, 1975.




APPEAL from the Circuit Court of Stephenson County; the Hon. WESLEY A. EBERLE, Judge, presiding.


In a jury trial the defendant was convicted of burglary, theft of property not exceeding $150 in value and theft of property exceeding $150 in value. He was sentenced to concurrent terms of 2-6 years imprisonment for burglary, and 1 year imprisonment for the theft not exceeding $150. No sentence was imposed for the theft exceeding $150, based upon the trial judge's conclusion that this was an included offense in the burglary charged.

Defendant appeals, contending that he was not proved guilty of the offense of theft not exceeding $150 beyond a reasonable doubt, and asking that this conviction be reversed without remand. He also asks that all convictions be reversed and the cause remanded for a new trial, claiming that the trial court erroneously permitted evidence of other unrelated offenses in the trial. He further contends that the conviction for theft of property exceeding $150 should be vacated because it is an included offense in the burglary conviction.

The charges arose from various incidents alleged to have occurred on February 16, 1973, in Freeport, Illinois.

Rebecca Petta, a long-time friend of the defendant, was the principal witness against him. Together with the defendant and two juveniles, Ronald Richart and Arnold Wilhelms, she was at a garage east of Freeport where the three males were repairing her car. Following the repairs, she drove all of them in her car to Freeport. She said she was directed by the defendant to go into a parking lot at Walnut and Spring Streets at approximately 7:30 P.M., and that there defendant told her that he was going to break into the cars and steal whatever was in them. According to her testimony, the defendant, Richart, and Wilhelms broke into a vehicle described as a brown van, took a tape deck, speakers, tapes and a box which she assumed was tools, and brought them into her car. She claims that she protested but the defendant told her "she was part of it now" and that if she should turn against him he would get her in the end. Defendant then told her to drive to another parking lot which was located behind the Germania Club. While she stayed in the car, the others got out and entered various cars in the lot. They came back and brought back a tool case, jumper cables, a pair of men's boots, and several cans of oil. They then went to the parking lot of the Star Bowl bowling alley where cars were broken into by the defendant and the two juveniles and military uniforms, coveralls, a brief case, a jacket and a radio were placed in the Petta car.

She said that the four then drove to her apartment where the other three removed the stolen goods from the car and placed them in her apartment. Some of these items were removed the following morning, while the remaining items, except for the uniforms which remained in her closet, were removed in a trunk approximately 1 week later by the defendant and the two juveniles to a barn east of town. She said that the uniforms were still kept in the apartment and that a radio was hidden by the defendant somewhere in her house.

The defendant had a key to her apartment and when she returned after being away for some time on a visit she found the apartment in shambles. She called defendant but could not reach him and then called the police to report the vandalism. When they arrived and upon investigation found some of the stolen goods in the apartment, Ms. Petta then told the police the details of the night of February 16.

During the time the police were in the apartment she testified that defendant drove by with a girl companion but drove away upon seeing the police car. The police followed after them. Ms. Petta was then taken to the Freeport Police Station where she gave the police two statements concerning the events of February 16.

She admitted on cross-examination that she did not tell the police about the two juveniles in her first statement because she thought she would be in more trouble. Some 2 hours or more later, however, she gave her second statement implicating them.

The two juveniles testified for the State. Richart said that when they drove to Freeport there was "not too much" conversation. When they came to the first parking lot he and the other juvenile got out of the car and took the items, bringing them back to the car in which the defendant had remained and that defendant did not say anything. At the Star Bowl parking lot where they went next, defendant got out of the car while he and Wilhelms remained in it and defendant broke into a station wagon and placed army clothes, radios and other items into the trunk of the Petta car. The defendant helped carry the contents of the car trunk into the Petta apartment when they returned there.

Wilhelms gave essentially similar testimony except that he said that he did not see the defendant actually break into the car at the Star Bowl lot but that he did see him put some army clothes and some "stuff" into the trunk of the Petta car. He also testified that he and Richart were dropped off and did not transport the items from the car into the Petta apartment.

Neither juvenile mentioned any incidents at the Germania Club parking lot which Rebecca Petta had referred to in her testimony.

Defendant testified in his own behalf. Essentially, he claimed that he had been drinking when they decided to go to Freeport in Petta's car and that the next thing he could remember was that he passed out in the car and did not leave it until he got back at the Petta apartment that night. He remembered seeing "the stuff" being carried into the apartment by the others while he was in a daze, but he said that he did not have any contact with the stolen items at any time except that he was with Petta when she sold some of the items to one of their friends and she kept the proceeds.

Defendant stated, contrary to Petta's testimony, that the night of his arrest she had called him when she returned to her vandalized apartment and he said that he would come over with a girl companion. He stated that upon arriving at the apartment, he saw the police car, became scared and left. ...

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