APPEAL from the Circuit Court of McLean County; the Hon. JAMES
A. KNECHT, Judge, presiding.
MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 17, 1981.
Following a jury trial in the circuit court of McLean County, defendant, Craig Riley, was convicted on July 15, 1980, of burglary and felony theft. The court subsequently sentenced him to respective concurrent sentences of 4 years' and 2 years' imprisonment. Defendant's appeal challenges both his convictions and his sentences. We affirm both.
The major thrust of defendant's claims on appeal centers upon (1) whether the evidence was sufficient to prove him guilty of the offenses either as a principal or an accessory, and (2) the propriety of instructions given to the jury as to (a) accountability, and (b) the inference arising from evidence of the accused's unexplained exclusive possession of property taken in the burglary and theft charged (see People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151). Defendant also complains of (1) improper use by the State of a prior inconsistent statement of one of its witnesses, (2) the cumulative effect of the errors claimed, and (3) failure of the trial judge to give a fuller explanation for the sentences imposed.
Defendant was charged with burglary of an apartment on January 27, 1980, and having stolen certain items found inside. At trial the testimony of the occupant of the apartment fully established that a burglary and theft had taken place. Among the items she described as missing were a stereo, a camera, and certain small objects resembling tie pins which she had won as an award for being a cheerleader. These objects were worn by pinning them on a sweater. She called them "cheerleading bars." Detective Charles Crowe testified to finding objects similar to the above on March 15, 1980, in an apartment where defendant was shown to be living with Michelle Greene. At trial, the victim identified those objects as those which were missing.
Detective Crowe testified that Michelle Greene had let him into the apartment and that when he left she accompanied him and another officer to a bake store where defendant worked. The evidence was undisputed that Greene entered the store first and whispered something to defendant whereupon he left the building and fled.
The testimony of Michelle Greene, called by the State, involves several of the issues on appeal. She stated that she did not know who moved the stereo to their apartment but that it had previously been at the Kim and Terry Anderson residence and before that at Mark Olson's apartment. She testified that defendant had previously, at times, stayed at the Anderson residence, as had Jack Gaylord, a friend of defendant's, and that both men had also stayed in Olson's apartment. Greene then testified that defendant had obtained the stereo and other items, identified as missing from the victim's apartment, one evening when he was riding in an automobile with Gaylord and Lucy Swope, and they stopped in front of an apartment house. She said defendant had told her Gaylord had gone into the building and brought the items out but he had not helped Gaylord. She also stated that defendant had given her differing explanations as to how he obtained the items. We will discuss the balance of Michelle Greene's testimony later.
Defendant testified that while he was riding with Gaylord and Swope one night, Gaylord stopped at his brother's apartment to get some clothes. Defendant and Swope stayed in the car while Gaylord went into the apartment building. A few minutes later, Gaylord returned and put some stereo equipment and a bag into the trunk. Defendant assumed the stereo belonged to either Gaylord or Swope. On the same night Gaylord stopped at two other apartment buildings but did not bring anything back to the car. Defendant stayed in the car. Defendant stated that when he was preparing to move to the apartment with Greene, Gaylord asked him to keep one of Gaylord's stereos until Gaylord found another place to live.
Defendant further testified that he first learned the stereo was stolen when Greene and the police officers came to the bake shop on March 15. He ran because he panicked when Greene told him that the police said the stereo was stolen. He denied entering the victim's apartment and testified that he did not know the stereo was stolen when he agreed to keep it for Gaylord. He did not know if the stereo which he kept for Gaylord was the same which Gaylord had put in the car on the night when he and Swope remained in the car.
Finally, defendant stated that when Greene asked about the stereo equipment, he said it belonged to Gaylord and Swope and he was just holding it for them. He denied ever telling Greene that he knew the stereo was stolen or he had been present when Gaylord and Swope decided to steal the stereo.
The jury was given Illinois Pattern Jury Instruction, Criminal, Nos. 5.03, defining the principles of accountability, and 13.21, permitting the jury to infer defendant's guilt of both offenses from evidence of his unexplained exclusive possession of the stolen property. Defendant objected only to the accountability instruction, claiming then and now that it was without evidentiary support. For the first time on appeal he objects to the giving of the other instruction, maintaining that it, too, was not supported by the evidence and contending that giving it violated his right to due process. He also maintains that even if the inference from the possession of the property was properly raised it cannot be used to support a conviction based on accountability and thus cannot be used to support the giving of the accountability instruction.
In People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151, the supreme court definitively discussed the inference arising from an accused's unexplained exclusive possession of the fruits of a recent burglary or theft. The court examined the constitutional principles involved and held that the inference arises and the jury may be so instructed when: (1) there is a rational connection between a defendant's recent possession of property stolen in the burglary and his participation in the burglary; (2) a defendant's guilt of burglary is more likely than not to flow from his recent, unexplained and exclusive possession of burglary proceeds; and (3) there is evidence corroborating the defendant's guilt.
Defendant's theory that the Housby inference applies only to convictions based upon guilt as a principal finds support in language in People v. Umphers (1971), 133 Ill. App.2d 853, 272 N.E.2d 278. There a substantial portion of the proof of the defendant's guilt of burglary arose from evidence of possession of fruits of the offense giving rise to the inference. The court stated:
"There is no direct evidence in the record in this case on which to base this instruction. Under the evidence the defendant was a principal and not an accessory, and the court should not have given the instruction concerning an accessory. Notwithstanding, we do not regard its giving as error under the circumstances ...