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People v. Ems

OPINION FILED MARCH 12, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ROBERT EMS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

Having been found guilty on two counts of theft of firearms and one count of theft of property having a value of less than $150 and having been sentenced to concurrent terms of imprisonment of two years, two years, and 365 days, respectively, the defendant, Robert Ems, instituted this appeal. In essence, the only issue raised is whether the defendant had been proven guilty beyond a reasonable doubt.

Four separate indictments were returned against the defendant. Each of the indictments charged the defendant with theft of property having a value of more than $150, as follows:

"No. 79 CF 200 — That on January 12, 1979, in said Peoria County, State of Illinois ROBERT EMS committed the offense of theft in that he knowingly exerted unauthorized control over property of Ray Langenbach, said property being three shotguns, and a .22 caliber rifle, having a total value of more than $150.00, with the intent to permanently deprive said owner of the use and benefit of said property, in violation of Paragraph 16-1(a)(1), Chapter 38, Illinois Revised Statutes."

"No. 79 CF 465 — That on January 12, 1979, in said Peoria County, State of Illinois ROBERT EMS committed the offense of theft in that he knowingly exerted unauthorized control over property of Harold Connaughton, said property being two shotguns, a revolver and a .22 caliber rifle, having a total value of more than $150.00, with the intent to permanently deprive said owner of the use and benefit of said property, in violation of Paragraph 16-1(a)(1), Chapter 38, Illinois Revised Statutes."

"No. 79 CF 466 — That on January 12, 1979, in said Peoria County, State of Illinois ROBERT EMS committed the offense of theft in that he knowingly exerted unauthorized control over property of Roy Danz, said property being a tool box, assorted tools, and a chain saw, having a total value of more than $150.00, with the intent to permanently deprive said owner of the use and benefit of said property, in violation of Paragraph 16-1(a)(1), Chapter 38, Illinois Revised Statutes."

"No. 79 CF 467 — That on January 12, 1979, in said Peoria County, State of Illinois ROBERT EMS committed the offense of theft in that he knowingly exerted unauthorized control over property of Ira Whitten, being a Browning, lite 12 gauge shotgun, having a total value of more than $150.00, with the intent to permanently deprive said owner of the use and benefit of said property, in violation of Paragraph 16-1(a)(1), Chapter 38, Illinois Revised Statutes."

At the trial, Mr. Ray Langenbach testified that his residence on Hicks Hollow Road was burglarized on December 22, 1978. He further testified that during the burglary seven guns and other items were stolen and identified People's exhibits Nos. 6, 7, 8 and 9 as being his Ithaca 12-gauge shotgun, his Remington 20-gauge shotgun, his J.C. Higgins 12-gauge shotgun and his .22 Mossburg rifle, respectively. David Elmore, special agent with the Department of Law Enforcement, testified that he observed during the execution of a search warrant each of these exhibits on January 12, 1979, in a storage area under a stairwell in the basement of the defendant's residence.

The first witness to testify regarding case number 79 CF 466 was Mr. Roy Danz, who stated that his residence and garage, located on Highview Road in Tazewell County, were burglarized around Christmas of 1978. Mr. Danz further testified that taken in the burglary were a tool box, chain saw, bushel of seed, citizen band radios, jewelry, cash, cameras and a television and that People's exhibits Nos. 10 and 11 were his tool box and chain saw.

Case No. 79 CF 467 involved the burglary of the Ira Whitten residence on Koerner Road in Peoria County. Mr. Ira Whitten testified that his home was entered and a Remington automatic, a Winchester .97 pump shotgun, a Browning 12-gauge shotgun and a .38-caliber pistol were taken on November 27, 1978. Mr. Whitten was shown People's exhibit No. 5, and identified it as being his gun. He further stated that People's exhibit No. 5 was that Winchester model .97, and that he did not give anyone permission to remove it from his residence.

James Carr testified that approximately one month prior to November 1, 1978, he had a conversation with the defendant and that the defendant had stated that he "would like to have certain types of shotguns." Objection was made to this answer and sustained. Carr later testified that during a conversation with the defendant, the defendant stated he "would buy the guns if they were in good condition."

Carr also testified that on December 22, 1978, he was involved in a burglary on Hicks Hollow Road, and described the driveway in such a fashion that it matched the description given by Mr. Langenbach. Mr. Carr was then shown People's exhibit No. 6, which he recognized as having been at the residence on Hicks Hollow Road, and stated that he had sold that item to the defendant and believed that the sale had taken place on the same day as the burglary. He was further shown People's exhibit No. 7, which he stated he sold to Mr. Ems. After being shown People's exhibit No. 8, Carr stated it came from the Hicks Hollow burglary, but he was not sure that this gun had been taken to the defendant, but People's exhibit No. 9 was.

Mr. Carr further testified that he recalled being at a residence on Highview Road in Tazewell County, Illinois, on December 29, 1979, and that while at that location he burglarized the house and the garage, taking assorted tools, a chain saw, a scanner and a base citizen's band radio. He further testified that the chain saw and tools were taken to the defendant and sold to him the following day. Mr. Carr was shown People's exhibits Nos. 10 and 11, and identified each as being an item taken by him from the Highview Road address.

Carr was further questioned regarding an incident of November 22 at a redwood cottage on Koerner Road, and in that regard he testified that on November 22 he did have occasion to be at a redwood cottage on Koerner Road and that, while at that location, he removed certain items, but did not recall what was taken. In this regard, he was shown a gun which was People's exhibit No. 5 and stated that it was taken from a burglary, but he did not know which one. ...


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