APPEAL from the Circuit Court of La Salle County; the Hon.
LEONARD HOFFMAN, Judge, presiding.
MR. JUSTICE STENGEL DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant Robert Housby was convicted of theft of property having a value greater than $150 (Ill. Rev. Stat. 1977, ch. 38, par. 16-1(a)(1)) and burglary and was sentenced to a term of imprisonment of 7 years.
The evidence at trial established that Wilbur Heister left his home near Tonica, Illinois, at about 7 p.m. on May 20, 1977. When he returned around 10:30 p.m., he discovered that his home had been ransacked. Several items were missing from the house and garage, including a John Deere riding lawn mower, a vacuum cleaner, and a digital clock radio. On the same day police had the home of Clifford Evelhoch in Spring Valley, Illinois, under surveillance. At 10:15 p.m. defendant and Raymond King arrived at the Evelhoch residence in King's pickup truck. King removed the vacuum cleaner from the back of the truck and carried it into the home, while defendant did the same with the clock radio.
Clifford Evelhoch, testifying for the State, said that after defendant and King arrived, King asked for help moving a lawnmower. Evelhoch and Douglas Eubanks, who had been at Evelhoch's, agreed to help. King, defendant, Evelhoch, and Eubanks went to defendant's house in Peru, Illinois, in King's pickup truck. After they arrived, defendant got into a panel truck and followed the pickup truck in which the other three were driving to a spot on the side of a gravel road where the John Deere riding mower had been placed. The four men loaded the lawnmower into the panel truck. Defendant in the panel truck and the other three men in King's pickup truck then drove to the farm of Leroy Koch, near Ottawa, Illinois. At the Koch farm three of the men unloaded the lawnmower, and Koch gave King a check. The four men then left the farm with defendant and Evelhoch riding in the panel truck, and King and Eubanks in the pickup.
Koch, testifying for the State under a grant of immunity, said that he had asked Jim Wasilewski, who operated the Green Front Tavern in Peru, Illinois, to get him a lawnmower at a good price. Before the lawnmower was taken to Koch's farm Wasilewski told Koch by telephone that he had procured the lawnmower, and that it would cost $500. Koch said he gave King a check drawn in favor of the Green Front Tavern in payment for the mower. After delivering the lawnmower, King and Eubanks went to the Green Front Tavern where the check was later recovered.
Defendant testified that he was at his home with his wife and brother-in-law from 6 p.m. to 10 p.m. on the evening in question. According to defendant, King arrived about 10 p.m. and asked for help moving a lawnmower which he had purchased from Bob Lewis, and for which King had a receipt. King and defendant then went to Evelhoch's residence to get more help. Defendant's wife and brother-in-law testified, corroborating defendant's story. The receipt was admitted into evidence.
Over objection by the defense, the court gave the jury Illinois Pattern Jury Instructions, Criminal, (1968) No. 13.21 (hereinafter IPI), as follows: "If you find that the defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, you may infer that the defendant obtained possession of the property by burglary."
Defendant was found guilty of burglary and theft. At his sentencing hearing the prosecutor described the possible sentences defendant could receive for a burglary conviction under the sentencing law in effect before February 1, 1978, and the law in effect on that date. Defendant elected to be sentenced under the "new" law, and the trial court imposed a sentence of 7 years' imprisonment for "burglary and theft."
Defendant's first contention on appeal is that the giving of IPI Criminal No. 13.21 violated his right to due process of law in that it relieved the State of the burden of proving every element of burglary beyond a reasonable doubt by shifting to the defense the burden of persuasion. He also contends that the instruction failed to meet the requirements established by the United States Supreme Court for evidentiary presumptions in criminal cases.
This court recently considered a similar challenge to IPI Criminal No. 13.21 in the appeal of Raymond King, defendant's companion on the evening of May 20, 1977. (People v. King (1979), 78 Ill. App.3d 879, 397 N.E.2d 905.) After extensively reviewing United States Supreme Court opinions concerning evidentiary presumptions in criminal cases, the majority in King held that the inference described in the instruction was being used to prove all of the elements of burglary, and that, therefore, the inference had to "satisfy the reasonable-doubt standard" described in Barnes v. United States (1973), 412 U.S. 837, 37 L.Ed.2d 380, 93 S.Ct. 2357. (78 Ill. App.3d 879, 888, 397 N.E.2d 905, 912.) In other words, the giving of the instruction would have deprived King of due process of law unless the evidence of King's possession of recently stolen property was sufficient for a rational juror to find beyond a reasonable doubt that King was guilty of burglary.
Neither the majority nor the dissenting opinion in King, however, discussed the most recent United States Supreme Court decision on this issue, County Court v. Allen (1979), 442 U.S. 140, 60 L.Ed.2d 777, 99 S.Ct. 2213. A New York statute imposing a presumption that a firearm in an automobile is illegally possessed by all persons occupying the vehicle except when the firearm is found on the person of one of the occupants was upheld, where the jury was informed that the presumption was not mandatory and the weapons were found lying across the handbag of one of the occupants in the front section of the automobile. We think that the Allen decision indicates that we should take a different approach from that of the reasoning in King.
1 In Allen a car in which three men and a 16-year-old girl were riding was stopped on the New York Thruway. Two large-caliber handguns were located in an open handbag which was either on the front seat or the front floor of the car on the passenger side where the girl was sitting. All four people were charged with illegal possession of the gun. The jury was instructed that it could, but was not required to, infer that a defendant possessed the guns from proof of his presence in the car in which the guns were located. Stated the court, "Respondents argue * * * that the validity of the New York presumption must be judged by a `reasonable doubt' test * * *. Under [that] test, it is argued that a statutory presumption must be rejected unless the evidence necessary to invoke the inference [proof of defendants' presence in the car in which the guns were located] is sufficient for a rational jury to find the inferred fact [defendant's possession of the guns] beyond a reasonable doubt." (442 U.S. 140, 166, 60 L.Ed.2d 777, 797, 2213, 2229.) The court then indicated that this argument overlooked the difference between a "mandatory presumption which the jury must accept" and a "permissive presumption on which the prosecution is entitled to rely as one not-necessarily-sufficient part of its proof * * *." (442 U.S. 140, 166, 60 L.Ed.2d 777, 798, 2213, 2229.) Since the jury need not accept a permissive presumption, due process does not require the presumed fact to follow from the proved fact beyond a reasonable doubt. It is sufficient if there is a "rational connection" between the two, and the presumed fact is "more likely than not to flow from" the proved fact. (442 U.S. 140, 165, 60 L.Ed.2d 777, 797, 99 S.Ct. 2213, 2228.) The court stated that a "permissive presumption leaves the trier of fact free to credit or reject the inference and does not shift the burden of proof * * *." 442 U.S. 140, 157, 60 L.Ed.2d 777, 792, 2213, 2224.
The challenged jury instruction in the instant case described a permissive presumption. The instruction informed the jury that if it found that defendant had exclusive possession of recently stolen property, and there was no reasonable explanation of his possession, it was permitted to infer that he obtained possession of the property by burglary. The jury was also given IPI Criminal No. 14.05, setting out the elements of burglary as follows: "A person commits the crime of burglary who, without authority, knowingly enters a building or any part thereof with intent to commit theft." The jury was also instructed that the State had the burden of proving each element beyond a reasonable doubt. (IPI Criminal No. 14.06.) Under these circumstances, the permissive instruction did not shift the burden of persuasion.
2 Furthermore, under the circumstances of this case there was a rational connection between the proved facts, that defendant had possession of recently stolen property and that there was no reasonable explanation of his possession, and the presumed fact, that defendant obtained possession of the property by burglary. Moreover, the presumed fact was "more likely than not to flow from" the proved facts. A short time after Heister's home was burglarized, defendant and King were seen carrying two things taken in the burglary into the home of Clifford Evelhoch. Defendant and King, along with Evelhoch and Eubanks, then went to a spot on the side of a gravel road where a riding lawnmower taken in the burglary had been hidden. The four men ...