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People v. Edmondson

OPINION FILED MAY 12, 1982.

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

v.

ANDREW N. EDMONDSON, JR., DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Kane County; the Hon. JOSEPH M. McCARTHY, Judge, presiding.

JUSTICE HOPF DELIVERED THE OPINION OF THE COURT:

Defendant Andrew N. Edmondson, Jr., was tried by a jury and convicted of rape (Ill. Rev. Stat. 1979, ch. 38, par. 11-1), aggravated battery (Ill. Rev. Stat. 1979, ch. 38, par. 12-4), and robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-1). He was sentenced to a term of 36 years: 26 years for rape, 5 years for robbery and 5 years for aggravated battery, to be served consecutively.

Defendant raises five issues on appeal: The first is the contention that the evidence of his guilt was entirely circumstantial and thus the trial court erred in refusing to include the second paragraph of Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) (hereinafter cited as IPI Criminal) in the jury instructions; second, that the trial court exceeded its authority in directing a verdict for defendant on a home invasion count of the indictment by implying that defendant was guilty of the remaining charges; third, that the trial court erred in reserving its ruling on defendant's motion in limine regarding previous convictions until the close of the evidence in the defense's case; fourth, that the trial court erred in imposing a sentence of 36 years in that it did not set forth the basis for imposing consecutive sentences, and in that the trial court sentenced the defendant pursuant to personal policy rather than statutory guidelines, and in that the sentence of 36 years was excessive; fifth, that the State's failure to produce an inventory receipt during discovery resulted in surprise and prejudice to the defendant thereby denying him due process.

At trial, Esther Millim, aged 77, testified that at around 2:20 a.m. on July 5, 1980, she was home when she was awakened by shouts from her husband's bedroom in their home at 711 Fifth Avenue in Aurora. She went to her husband's bedroom, and saw a man's form sitting on the bed. Believing it to be her husband, she put her arms around him to quiet him. Just as she realized the person was clothed and not her husband, the person said, "Give me some money." At that point Esther Millim saw her husband lying on the floor in front of his bed. She began gathering money to get the intruder out of her house. She testified that she gave him a coin purse from her husband's dresser, money from her billfold, and bills from her husband's wallet.

At trial, Esther Millim identified, as People's exhibits, her husband's coin purse, its contents: a magnet, a pocket pen, and a key on a chain with the initial "M". These were items her husband kept in the purse. She also identified, as a People's exhibit, her husband's Moose card which he kept in his wallet with his bills. The intruder told Esther Millim that if she turned on a light he would kill her and that he was going to rape her. She was then raped by the intruder.

When Esther Millim opened a side door to let the person out of her house, she saw lights in the driveway and three policemen approaching her house. The intruder fled in the other direction and escaped from the house. Paramedics then took Esther Millim and her husband to Copley Hospital.

A neighbor testified that she had called the police when she heard screaming from the Millim home around 2:20 a.m. She directed the police to the Millim home. She later observed Esther Millim open the side door and cry out. Shortly thereafter she saw a slender black man, with a dark cap or dark hair, a long-sleeved white shirt and dark pants running across the backyard. She did not notice if he wore a jacket or a vest.

At trial, Officers Koenke, Camic, Powell and Kahle testified. Their testimony was similar: They responded to a call made by a neighbor who had heard screams, and were directed to the Millim residence. When they approached the house Esther Millim was standing in the doorway, screaming that the intruder was still in the house.

Officer Camic went into the house and it became apparent that the intruder had left through a porch screen that had been cut. Camic gave chase through the backyards and observed a black male in a blue long-sleeved garment running north. He ordered the man to stop but the man kept running.

Officer Kahle testified that he responded to the call and had seen a tall slender male Negro wearing a brown hat, blue levi jacket and dark gray pants with the right side of his shirt still hanging out. He was wearing a light shirt and black vest, and his belt buckle was undone. Kahle identified himself as a police officer and told the man to freeze. The man did not stop. After again telling him to stop, the officer fired two warning shots. The man went around a garage at 727 Fifth Avenue and the officer lost sight of him. Kahle heard two other officers telling a man to freeze behind the garage. He ran behind the garage and saw defendant lying face down between the garage and a trellis. When Officer Kahle tried to grab him, his gun discharged accidentally into the ground.

The officers testified that the defendant had a coin purse in his pocket. The contents of the purse were identified by Esther Millim at trial. There was also testimony about John Millim's injuries, including a broken collar bone.

At the close of the State's case the trial judge granted defendant's motion for a directed verdict on the charge of home invasion. Over objection by defendant, the court explained that the State had failed to introduce any evidence that defendant was not a police officer acting in the line of duty.

The jury found the defendant guilty of rape, robbery and aggravated battery. On December 4, 1980, defendant Edmondson was sentenced to a total of 36 years: 26 years on the rape charge, and 5 years each for robbery and aggravated battery, to be served consecutively. His appeal was timely filed.

The first contention made by defendant is that because all the evidence against him was circumstantial he was prejudiced by the court's failure to include in the jury instructions the second paragraph of the IPI instruction on circumstantial evidence (IPI Criminal No. 3.02). The instruction provides in its entirety:

"Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [(the) (a)] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.

You should not find the defendant guilty unless the facts or circumstances proved exclude every reasonable theory of innocence."

At the instructions conference the State tendered only the first paragraph and defendant tendered a version with both paragraphs. The court gave the State's instruction to the jury.

• 1 Illinois courts> have held that when proof of guilt is based entirely on circumstantial evidence the second paragraph of IPI 3.02 should be given. (People v. Evans (1981), 87 Ill.2d 77, 429 N.E.2d 520; People v. Garcia (1981), 95 Ill. App.3d 792, 420 N.E.2d 482.) However, courts> of review are reluctant to find reversible error in the trial court's failure to give the second paragraph of IPI Criminal 3.02. (People v. Stokes (1981), 95 Ill. App.3d 62, 419 N.E.2d 1181.) Thus, the failure to do so does not require reversal unless it appears that justice was denied or that the verdict resulted from such error. People v. Garcia; People v. Jones (1980), ...


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