APPEAL from the Circuit Court of Jackson County; the Hon.
RICHARD E. RICHMAN, Judge, presiding.
MR. PRESIDING JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:
Defendant, Kenneth J. Langston, was convicted by a jury in the Circuit Court of Jackson County for the offenses of burglary and felony theft and sentenced to concurrent terms of imprisonment of 4 1/2 years for burglary and three years for theft. Defendant raises the following issues on appeal: 1) whether the trial court erred in restricting defendant's cross-examination; 2) whether the jury was improperly instructed that it could infer defendant's guilt on the burglary charge based upon his possession of items taken in the burglary; and 3) whether the value of the property was proved beyond a reasonable doubt to be in excess of $150. We affirm.
At trial Linda Wallace testified that she left her apartment, located at 417 South Graham in Carbondale, at 11:15 p.m. on the night of June 3, 1979, locking the door behind her. When she returned between 2:15 and 2:30 a.m. on June 4, she noticed that a window to the apartment was open and its screen was on the ground. Seeing this, she summoned the police. Officer William Brandon testified that on June 4 at approximately 2:05 a.m. he was operating a traffic radar device at a position approximately three blocks from the Wallace apartment. At this time defendant approached him, asked directions to 417 South Graham and drove away. Twenty minutes later defendant again passed Officer Brandon's position. This time defendant did not have his automobile headlights on. He was stopped by Officer Brandon and appeared nervous, but he seemed relieved when informed by the officer that the stop was due to a traffic infraction. Defendant was finally permitted to leave. At 2:47 a.m. Officer Brandon received a call concerning the burglary and he investigated the premises alleged to have been burglarized. He interviewed Linda Wallace. The officer described defendant to Ms. Wallace and she stated that she was acquainted with him, referring to him as "Sonny." She explained that she worked with him and that he was a guest in her apartment the previous weekend. Officer Brandon searched for defendant and found him asleep in his automobile parked at the address appearing on his driver's license. The officer testified that defendant explained his presence at 417 South Graham by saying he was looking for a "dude" named Tony. Defendant denied any knowledge of Linda Wallace until confronted by her statement that she knew him and worked with him. Then he responded, "Oh, that Linda Wallace." Officer Brandon then obtained permission to search the trunk of defendant's automobile. He discovered stereo equipment, earphones, a television set, a clock radio, and a placemat. These items were identified by Linda Wallace as belonging to her. On the way to the police station defendant explained that he had purchased these items from a friend in the parking lot behind 417 South Graham.
In his first issue on appeal defendant contends that the trial court erred by restricting cross-examination of Detective Jon Kluge. During direct examination Kluge testified to statements made by defendant while in custody. Kluge testified that defendant claimed that he purchased the items found in his automobile trunk and that he knew they were stolen. During the examination of Kluge, defendant challenged the latter statement attributed to him. Defendant sought to show inconsistencies in Kluge's trial and suppression hearing testimony on this point. During cross-examination, Kluge was asked if it was true that defendant told him that defendant thought that the property was stolen. Kluge stated that such was not the case. Defendant then confronted Kluge with testimony at the pretrial suppression hearing in which Kluge testified that defendant informed him that defendant knew the items were stolen property but that defendant was only guessing about their origin. The State attempted to rehabilitate Kluge by showing that prior to the suppression hearing, Kluge had not reread a report concerning defendant's knowledge of the origin of the items but that he had reread the report before testifying at trial. On re-cross-examination, defendant focused on this report and the fact that it had not surfaced prior to trial through normal discovery channels.
"Q. Do you have any explanation for us at this time as to why the report did not surface until August 3d?
MR. STRONG: Objection, Your Honor.
We agree with defendant that the objection was improperly sustained. (Cf. People v. Monroe (1977), 66 Ill.2d 317, 362 N.E.2d 295; People v. Owens (1976), 65 Ill.2d 83, 357 N.E.2d 465.) However, under the circumstances of the instant case, we find the error to be harmless.
• 1, 2 Where a trial judge commits error by restricting cross-examination of a witness, such error will not warrant reversal unless there remains a reasonable doubt whether defendant has been prejudiced thereby or that the outcome of the trial would have been different had the error not been made. (People v. Scarpelli (1980), 82 Ill. App.3d 689, 402 N.E.2d 915.) Defendant's aborted cross-examination focused on whether defendant knew, rather than suspected, that the items of Ms. Wallace's property found in his possession were stolen at the time he purchased them. This distinction is pertinent, if at all, only in the event that the jury believed defendant purchased the items instead of removing them himself from the Wallace apartment. The jury's finding of guilty as to the burglary belies the relevancy of either assertion attributed to Officer Kluge. Since the trial court's ruling affected only tangentially defendant's cross-examination of Kluge concerning defendant's version as to his manner of acquisition of the property, which the jury did not believe, the ruling could not have contributed to the conviction. Accordingly, the error complained of is harmless.
Next, it is urged that it was error for the trial court to instruct the jury that it could infer that defendant committed the offense of burglary based upon his possession of recently stolen property. The contested instruction, a form of Illinois Pattern Jury Instruction, Criminal, No. 13.21 (1968), reads 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 committing a burglary."
Defendant asserts that his conviction resulted entirely from the presumption embodied in the instruction. It is defendant's contention that the evidence relating to his possession of the stolen property would not be sufficient by itself to sustain a conviction beyond a reasonable doubt. Defendant concludes that an inference of guilt based exclusively upon such evidence likewise would not satisfy the reasonable doubt standard, thereby rendering the instruction violative of due process.
Initially, we find fault with defendant's premise that the presumption served as the only basis for a finding of guilt. Apart from defendant's possession of items seized from the Wallace apartment, there is additional circumstantial evidence in the record probative of defendant's guilt. Defendant was present at the scene of the crime within the time frame the burglary occurred, he appeared nervous and displayed suspicious driving habits within minutes of leaving the parking lot at 417 South Graham, he knew the victim personally, he had an opportunity immediately prior to the burglary to view the contents of the apartment, and his explanation that he purchased the items from a friend in the parking lot behind the burglarized premises could be judged by the jury to be incredible in light of the other evidence. Therefore, we cannot accept defendant's speculation that the jury completely disregarded this additional evidence and focused entirely upon the possession and its attendant presumption of guilt.
In County Court of Ulster County v. Allen (1979), 442 U.S. 140, 60 L.Ed.2d 777, 99 S.Ct. 2213, a permissive presumption in a criminal case is defined as one which enables, but does not require, a trier of fact to infer an ultimate fact, or element of the ...