APPEAL from the Circuit Court of Randolph County; the Hon.
KENNETH J. JUEN, Judge, presiding.
MR. JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
A jury in the Circuit Court of Randolph County found defendant, Sammy Delp, guilty of attempt burglary and possession of burglary tools. He received a sentence of four years imprisonment for the attempt; however, no sentence was imposed for his conviction for possession of burglary tools.
The following issues are raised on appeal: (1) whether defendant was proved guilty beyond a reasonable doubt; (2) whether the presence of uniformed prison guards at trial denied defendant his right to a fair trial; and (3) whether the conviction for possession of burglary tools should be vacated where it arose out of the same acts constituting attempt burglary.
Officer Wayne Young of the Sparta Police Department testified at trial that while on routine patrol at approximately 10 p.m. on the night of November 27, 1978, he observed defendant standing next to an automobile in a parking lot. Defendant had his back to the officer and was bent over a 1972 Mustang. The officer stated that he noticed a shiny object, apparently a thin piece of steel, protruding from defendant's body. The officer became suspicious and drove into the parking lot to investigate. The officer related that when he saw the patrol car enter the lot, defendant crouched down momentarily and then ran into the shadows of a building abutting the parking lot. The officer trained a spotlight on the area into which defendant fled and discovered defendant standing in a corner formed by the junction of two buildings. The only escape route offered by the corner was the way defendant had entered. Defendant was ordered to the squad car and explained his presence in the corner by saying that he had gone there to relieve himself. The officer was skeptical of this explanation and searched defendant for weapons. He then searched the corner where he found a bent automobile antenna and a screwdriver near the spot where defendant had been standing. Next, the officer examined the Mustang and observed scratch marks on the driver's side window and rubber molding. A comparison was made of the distance between the bend in the antenna and one of its ends and of the distance between the driver's door lock button and the top of the window molding. The distances were approximately equal. Other vehicles in the lot were examined, and the officer was able to match the antenna with a severed antenna shaft on a vehicle parked approximately 50 feet from the Mustang. The officer further testified that from the moment he first observed defendant and until his arrest, no other person was present in or near the parking lot. During cross-examination, the officer stated that he did not see defendant in actual possession of the antenna or screwdriver.
Roberta Walker testified that she was the owner of the Mustang and that she never gave the defendant permission to enter her automobile. She also stated that her vehicle was locked when she went to retrieve it the morning after the incident and that she did not notice any damage to it.
Initially, defendant contends that the evidence at trial failed to prove beyond a reasonable doubt that he committed the crime of attempt burglary.
The crime of attempt is defined by section 8-4(a) of the Criminal Code of 1961 (Ill. Rev. Stat., 1978 Supp., ch. 38, par. 8-4(a)) as follows:
"A person commits an attempt when with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense."
Under section 19-1(a) of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 19-1(a)), a burglary of a motor vehicle is committed when:
"A person * * * without authority * * * knowingly enters or * * * remains within a * * * motor vehicle as defined in The Illinois Vehicle Code * * * with intent to commit therein a felony or theft."
Thus, it is the burden of the State to establish defendant's intent to commit the offense of burglary and that defendant did any act which constituted a substantial step toward the commission of that offense.
Because of the very nature of the offense, proof of the elements of attempt burglary frequently must be made by circumstantial evidence. In considering the limitations the courts> have placed on the proof of an offense by such evidence, our supreme court has stated:
"To justify a conviction, circumstantial evidence must be of such a nature as to produce a reasonable and moral certainty that the accused committed the crime. Where the circumstances can be explained upon a reasonable hypothesis consistent with innocence and leave a serious and grave doubt of guilt, a conviction cannot stand. [Citations.]" People v. Magnafichi (1956), 9 Ill.2d 169, 173, 137 N.E.2d 256, 258; cf. People v. Bean (1970), 121 Ill. App.2d 290, 257 N.E.2d 558.
Defendant asserts that the circumstantial evidence presented by the State does not prove that he had the requisite intent to burglarize or that he performed a substantial step in the commission of a burglary. Support for this assertion centers primarily around the testimony of Officer Young and Ms. Walker. Officer Young stated that he did not see defendant actually in possession of the antenna and screwdriver, and Ms. Walker stated that her automobile was locked and undamaged the morning after the incident. Thus, defendant argues that the State failed to prove that he possessed the antenna and the screwdriver or that he attempted to break into the Mustang. He states that the evidence at best merely places him at the scene of the crime. Since presence at the scene of an ...