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People v. Henderson





APPEAL from the Circuit Court of Peoria County; the Hon. JOHN A. GORMAN and the Hon. CALVIN R. STONE, Judges, presiding.


Defendant, Ronald Henderson, was indicted for theft on October 16, 1979, and for robbery and armed robbery on February 12, 1980. After separate jury trials in the circuit court of Peoria County, defendant was convicted of theft and robbery and sentenced to consecutive terms of 3 1/2 and 7 years in the Department of Corrections. In this consolidated appeal, defendant contends (1) that the trial court erred in not granting a directed verdict in his favor as the circumstantial evidence of theft failed to exclude every reasonable hypothesis of innocence; (2) that it was prejudicial error to admit into evidence an adopted statement by his alleged accomplice in the theft; and (3) that in the event the theft conviction is reversed, the robbery cause must be remanded for a new sentencing hearing. In view of defendant's contentions, we shall recite only those facts relating to the theft cause.

Between 9 and 9:30 a.m. on September 29, 1979, Alan Ahl exited from the rear entrance of the Service Center in Peoria, where he was employed, and headed for the rear door of Stein Hardware and Supply Company, which was 20 to 30 feet across a parking lot. As he entered the store, he saw a man carrying a boxed snowblower and a second man getting out of a brown Chevrolet and opening its trunk. When Ahl encountered William Sprenger, a store salesman, and mentioned what he had seen, Sprenger ran out the back door and saw two men in a tan Chevrolet backing out of a parking place in the rear lot. After confirming the vehicle was the one that Ahl had noticed, Sprenger ran to his car and pursued the Chevrolet.

After Sprenger followed the vehicle for a time, it stopped and its passenger exited and walked back to Sprenger's automobile and asked what he wanted. When Sprenger replied that he wanted the snowblower, the passenger waved his hand and returned to the Chevrolet, which continued its journey. Four or five blocks later, the Chevrolet stopped at a hole with barricades around it and the passenger again exited. Sprenger then pulled behind the pursued vehicle to block it and the driver backed the Chevrolet into him, whereupon the passenger opened Sprenger's door and made a vulgar threat in the event the vehicle would be damaged.

Officer Richard Gamble was on patrol that morning and noticed two automobiles in some sort of confrontation. He heard Sprenger honk his horn and blocked the Chevrolet as it again attempted to pull away, whereupon the passenger fled. After hearing Sprenger's explanation of the incident, the driver of the blocked vehicle, Ricky Hurt, was arrested. Ahl subsequently identified both driver and automobile, and Gamble found defendant's wallet on the vehicle's console. A subsequent search revealed two snowblowers in sealed boxes from Stein Hardware, and Officer Craig Ganda took fingerprints from the boxes as well as the Chevrolet. Ganda, who was stipulated as an expert at fingerprint identification, found one of defendant's prints, in his opinion less than one day old, on one of the boxes.

Defendant claimed he occasionally shopped at Stein Hardware and would sometimes enter through the back door and pass through the crowded basement area to get to the stairway. In this manner, he explained that he may have touched a snowblower box when he may have been in the store the previous day. Hurt testified that defendant was not his passenger, and that defendant left his wallet in the subject automobile on the previous Wednesday, when the two men went out together. Gamble was unable to identify defendant as the fleeing passenger, and Ahl and Sprenger were barred from offering any identification testimony at trial.

• 1 Turning to defendant's first contention that an acquittal should have been directed, we note the standard governing such direction is that the evidence be insufficient to support a finding or verdict of guilty. (Ill. Rev. Stat. 1977, ch. 38, par. 115-4(k).) Thus, a directed verdict of not guilty is proper when the evidence adduced by the State, when viewed in a manner most favorable to the State, fails to establish a defendant's guilt beyond a reasonable doubt. (People v. McCord (1977), 46 Ill. App.3d 389, 361 N.E.2d 13, appeal denied (1978), 67 Ill.2d 594; People v. West (1973), 13 Ill. App.3d 550, 300 N.E.2d 808; accord, People v. Tibbs (1978), 57 Ill. App.3d 1007, 373 N.E.2d 624, appeal denied (1978), 71 Ill.2d 605.) In the case at bar, the State's evidence was wholly circumstantial. A conviction may be sustained upon circumstantial as well as direct evidence, it being necessary only that the proof of circumstances be of a conclusive nature and tendency leaning, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. Cf. People v. Williams (1977), 66 Ill.2d 478, 363 N.E.2d 801 (jury verdict).

• 2 Viewing the evidence in a manner most favorable to the State, we first note that defendant's fingerprint was found on one of the boxes conclusively established to have been stolen from Stein Hardware; moreover, the age of the print corresponded with the time of the theft. Defendant's assertion that he may have touched the box when he may have been in the store the day before the crime, when viewed from the mandated perspective, constitutes a rather remote possibility. We also note the presence of defendant's wallet in the subject vehicle as a second implicating factor. The subsequent explanation that defendant had left the wallet in the automobile three days before the crime and had not thereafter retrieved it is, under the same perspective, similarly remote. We therefore find no error in the trial court's denial of defendant's motion for directed verdict.

• 3 Turning to defendant's second contention that he was prejudiced by the admission of the adopted statement, we first note that the State contends that this assignment of error has been waived. The State premises its contention on the fact that defendant's trial and post-trial objections to the admission of the statement were based on hearsay grounds and that no limiting instruction was requested. As a co-defendant's confession is hearsay as to other defendants (cf. People v. Tyner (1964), 30 Ill.2d 101, 195 N.E.2d 675 (no severance)) and the lack of a limiting instruction is not determinative in our view of this cause, we find no waiver and shall address this assignment of error.

While it has long been the rule in Illinois that a co-defendant's or accomplice's confession or admission is generally inadmissible as evidence of another defendant's guilt (e.g., People v. Sullivan (1978), 72 Ill.2d 36, 377 N.E.2d 17), we are not here presented with either a confession or admission which has been admitted into evidence. During the reception of Hurt's guilty plea, the State presented a factual basis of his guilt, which was referred to at defendant's trial in the following colloquy:

"Q. Do you recall that during the plea of guilty that the State gave a factual basis for your plea of guilty?

A. I don't really understand that question.

Q. During the course of your plea of guilty on that date do you recall someone from the State's Attorney's Office giving a synopsis of ...

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