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People v. White

OPINION FILED MAY 5, 1980.

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

v.

CHARLES WHITE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. CLAUDE E. WHITAKER, Judge, presiding.

MR. JUSTICE O'CONNOR DELIVERED THE OPINION OF THE COURT:

After a bench trial, defendant Charles White was convicted of attempt sale of Federal food stamps and sentenced to 45 days in the House of Correction. Defendant appeals, contending that (1) the State failed to prove beyond a reasonable doubt either that defendant had the specific intent to commit the crime or that defendant's acts constituted a substantial step toward the commission of the crime, (2) defendant's conviction must be reversed because it is based on an overbroad statute, and (3) prosecutorial misconduct deprived defendant of a fair trial.

Complainant, Nabil Tadros, owned the Super Jet Food Store located at 4326 South State Street in Chicago, Illinois. Tadros testified that on February 20, 1979, defendant entered complainant's store. After speaking to one of the cashiers, defendant asked Tadros if he wanted to buy food stamps. Tadros stated that he told defendant that he did not want to buy any food stamps and that to do so would be illegal. Tadros testified that defendant replied that "[I]t has not been unlawful before." Tadros further stated that he responded, "[W]e can't do that," but defendant persisted, saying, "I need the money. I want to sell the food stamps." Tadros had defendant talk to one of the store employees while Tadros went to call the police. Police officers arrived about 15 minutes later.

Officer David Kutz testified that he went to 4326 South State Street in response to a report of a disturbance at the grocery store. He testified that after arriving at the store and having a conversation with Tadros, he then asked defendant if he was attempting to sell food stamps. Defendant replied, "No." Upon a search of defendant, Officer Kutz recovered a quantity of food stamps, an Illinois Department of Public Aid green card and authorization as a recipient of Federal food stamps.

Defendant testified that he entered the grocery store and asked the cashier what the value of $46 worth of food stamps was. The cashier directed defendant to Tadros. Defendant testified he asked Tadros the same question. Tadros told defendant to talk to another man. Defendant testified that when the police arrived they asked him if he was trying to sell food stamps and that he replied, "No." Defendant stated that he was an authorized recipient of food stamps. On cross-examination, defendant admitted he had $46 worth of food stamps on his person at the time he spoke with Tadros.

On cross-examination of defendant, the first question asked was, "Have you ever been convicted of theft before?" After the objection to that question was sustained, the prosecutor asked defense counsel whether or not he would stipulate "to defendant's criminal background." The final question asked of defendant by the prosecutor was:

"Q: Isn't it a fact, that you told this gentleman [Tadros] that you were selling food stamps to other storekeepers in the area?

A: No, I did not."

Defendant first contends that his conviction for attempt sale of food stamps must be reversed because the State failed to prove either that he intended to commit the crime of selling food stamps or that he took a substantial step toward the commission of that crime. The State contends that the evidence overwhelmingly showed that defendant specifically intended to commit that crime and that he took a substantial step in its commission.

• 1 Section 11-24 of the Illinois Public Aid Code (Ill. Rev. Stat. 1977, ch. 23, par. 11-24) makes it a criminal offense to sell or exchange food stamps with "some other person for another article." In order to be convicted of attempt, the State must prove beyond a reasonable doubt that the defendant intended to commit a specific offense and performed an act which constituted a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1977, ch. 38, par. 8-4(a); People v. Davis (1979), 70 Ill. App.3d 454, 388 N.E.2d 887.) Intent may be inferred from the acts of the accused and the surrounding circumstances. People v. Cheatem (1976), 35 Ill. App.3d 414, 342 N.E.2d 410; People v. Davis (1979), 70 Ill. App.3d 454, 388 N.E.2d 887.

We disagree with defendant's argument that the State proved neither that he intended to sell the food stamps nor that he performed an act which constituted a substantial step toward the commission of that offense. The store owner testified that defendant asked him if he wanted to buy food stamps. After being told by the store owner that he did not want to purchase food stamps, defendant persisted in his offer, saying that he needed the money. We find that this testimony, if believed, established defendant's intent to sell food stamps. We also find that defendant's asking Tadros if he wanted to buy food stamps constituted a substantial step toward the commission of the crime of selling food stamps.

• 2 While it is clear that mere preparation to commit an offense does not constitute a "substantial step" (People v. Elmore (1971), 50 Ill.2d 10, 276 N.E.2d 325; People v. Walters (1979), 69 Ill. App.3d 906, 387 N.E.2d 1230; People v. Brown (1979), 75 Ill. App.3d 503, 394 N.E.2d 63), it is not necessary in order to constitute an attempt that the defendant perform the last deed immediately preceding that which would render the substantive crime complete. People v. Paluch (1966), 78 Ill. App.2d 356, 222 N.E.2d 508; People v. Walters (1979), 69 Ill. App.3d 906, 387 N.E.2d 1230; People v. Brown (1979), 75 Ill. App.3d 503, 394 N.E.2d 63.

Although defendant's account of the incident conflicts with that of Tadros, it is well established that the credibility of witnesses is a determination to be made by the trier of fact, and in a bench trial a reviewing court will not substitute its judgment for that of the trial court unless the trial court's determination is palpably erroneous. (People v. Holsey (1975), 30 Ill. App.3d 716, 332 N.E.2d 699.) We cannot say that it is palpably erroneous.

• 3 We find that the State proved beyond a reasonable doubt that defendant intended to commit the crime of selling food stamps and performed an act which constituted a ...


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