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People v. Schultz

OPINION FILED FEBRUARY 25, 1981.

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

v.

SIEGFRIED SCHULTZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD PETRARCA, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

At a bench trial, Siegfried Schultz, the defendant, was convicted of robbery and was sentenced to three years' imprisonment. He contends on appeal that this motion to suppress evidence seized during an inventory search of his automobile was improperly denied and that he was not proved guilty beyond a reasonable doubt.

Patrick Bulow, the complainant, testified that he was at Chet's Melody Lounge in Justice, Illinois, on the evening of January 3, 1979. He had cashed an employment check that afternoon and received $443 in small bills. At approximately 8 p.m., he received a telephone call at the lounge from the defendant. Bulow agreed to drive the defendant to the lounge and to give the defendant's car, which was parked in the lounge's lot, a "jump." During the evening, in the defendant's presence, Bulow paid for several drinks from the money in his wallet.

The defendant left the lounge between 11 and 12 o'clock. When Bulow departed between midnight and 12:30 a.m., the defendant left his parked car, began "wrestling" with Bulow and grabbed Bulow's wallet and threw it. After Bulow recovered the wallet, the defendant took him to a vacant field near the lounge and wrestled him to the ground. The defendant took Bulow's wallet, removed the money from it and returned the wallet to Bulow's pocket. When the defendant tried to force Bulow into his car, Bulow escaped and ran back into the lounge. Bulow testified that the scuffle outside the lounge lasted approximately a half hour.

George Morisette testified that he arrived at Chet's Lounge at approximately five to 10 minutes before midnight on January 3, 1979. He did not see Bulow in the lounge at that time but saw him run into the lounge about 10 or 15 minutes later. Morisette went outside the lounge with several patrons and observed Frank Cundari, another patron, talking to the defendant about money. Cundari asked the defendant if "he had it" and the defendant said, "Yes, I have it." Morisette testified that the defendant also admitted to Cundari that he had hit Bulow.

Betty Valencia testified that she arrived at Chet's Melody Lounge at 12:10 a.m. on January 4, 1979, and observed Bulow and the defendant inside the lounge. She saw them leave the lounge between 12:20 and 12:30 a.m. and saw Bulow return full of blood at 12:45 a.m. Valencia went outside the lounge and heard the defendant say to Cundari "I have got it."

Police officer Patrick McDonald testified that he was employed by the village of Justice on January 4, 1979. Pursuant to an assignment, he arrived at Chet's Melody Lounge at 12:38 a.m. Officer McDonald spoke to Bulow, arrested the defendant and placed him in the squad car. In accordance with police policy he called for a truck to tow the defendant's car, which was parked in the lounge's lot. The car was not towed as part of the investigation nor at the request of the lot's owner.

At the Justice police station McDonald and the defendant discussed the defendant's green parka jacket, which had been recovered from the defendant's car. On the jacket was a wet, reddish-brown substance which appeared to be blood. Inside the pockets was United States currency amounting to $441 in small bills. The wet, reddish-brown substance also appeared on one $5 bill.

The defendant objected to the offer of the currency into evidence and asked that it be suppressed because it was recovered when his automobile was improperly seized and searched. The trial court denied this motion to suppress and the evidence was admitted. The State rested, and the defendant did not present any evidence in his defense.

On appeal the defendant seeks reversal of his conviction because he was not proved guilty of robbery beyond a reasonable doubt, since his conviction was based on evidence that was improbable, unconvincing and contrary to human experience. The defendant relies on discrepancies in testimony as to the times he and Bulow left Chet's Melody Lounge and how long the alleged robbery lasted. The defendant also argues that his alleged actions — returning Bulow's wallet and not fleeing when Bulow ran back into the lounge — were inconsistent with those of a criminal.

Slight testimonial discrepancies do not destroy the credibility of a witness but go to the weight of that testimony. (People v. Villalobos (1979), 78 Ill. App.3d 6, 396 N.E.2d 1081.) In a case tried without a jury it is the function of the trial judge to determine the weight to be afforded conflicting testimony (People v. Clark (1964), 30 Ill.2d 216, 195 N.E.2d 631), and the reviewing court will not substitute its judgment for that of the trial judge unless the evidence is so improbable that it raises a reasonable doubt of the defendant's guilt. People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513; People v. Calderon (1980), 85 Ill. App.3d 1030, 407 N.E.2d 840.

• 1 We believe the inconsistencies in testimony that were cited by the defendant are not so great as to raise a reasonable doubt of the defendant's guilt. The trial judge's resolution of the conflicting testimony in favor of the State was proper since the witnesses' recollections of the time when the robbery occurred were mere estimations and were incidental to the issue of whether the witnesses could place the defendant at the scene of the crime. People v. Lawson (1980), 86 Ill. App.3d 376, 407 N.E.2d 899.

We also reject the defendant's argument that his actions during and after the alleged robbery defied common experience. The defendant contends that it is incredible to believe that a person having the criminal intent to commit a robbery would force the victim into a car after taking money from the victim's wallet, return the empty wallet to the victim during the course of the robbery and then remain at the scene of the crime after the victim has fled. The defendant relies on four cases wherein criminal convictions were reversed due to improbable and unsatisfactory evidence. (People v. Dawson (1961), 22 Ill.2d 260, 174 N.E.2d 817; People v. Sowers (1976), 36 Ill. App.3d 599, 344 N.E.2d 800; People v. Smiley (1975), 32 Ill. App.3d 948, 337 N.E.2d 290; People v. Garner (1974), 19 Ill. App.3d 728, 312 N.E.2d 678.) We find these cases distinguishable because of the existence of such additional factors as the weak credibility of the victims and/or witnesses (Sowers; Smiley; Garner), a strong and uncontradicted alibi by the defendant (Sowers), and improbable testimony concerning the partial return of the stolen proceeds to the victims (Dawson; Sowers).

• 2 The defendant cites the reversals in Dawson and Sowers which were based in part on the failure of the alleged robbers to flee. In Sowers, however, the alleged victim testified that the robber fled the scene but only after he had counted up the proceeds of the robbery. In Dawson the evidence showed that the robber made no attempt to leave the scene, but the additional testimony making the robbery unlikely was the fact that the defendant was a police officer who showed his badge and gun and threatened to call the police. Testimony that an alleged criminal did not flee the scene of the crime merely goes to the weight of the evidence establishing guilt. (People v. Neal (1974), 15 Ill. App.3d 940, 306 N.E.2d 43.) Having ...


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