Appeal from the Circuit Court of Jersey County; the Hon.
Howard Lee White, Judge, presiding.
JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:
In short, we affirm the conviction.
But we must also reverse the sentence and remand for resentencing.
Meyer was charged with theft with a prior conviction. As he raises a question of the sufficiency of evidence, a rather exhaustive review of the testimony is mandatory.
In August of 1980, Meyer was employed at the Shop and Save grocery store in Jerseyville, Illinois. He was eventually promoted to assistant manager, the duties of which included opening and closing the store and generally making sure that all of the departments were running in the proper order. He had total access to the store — to the front door, the soda machines, and the safe.
Meyer had only two superiors in the store — Dale Bushor, the store manager, and Carolyn Delp, the front end manager. Delp normally was in charge of the soda machines in the store. Neither she nor Bushor consented to the removal of any money from the soda machines by the defendant. However, neither Bushor nor Delp was working in the store on the evening of June 29, 1981. Under such circumstances the assistant manager was in total charge of the operations of the store.
Bushor testified that around midnight on June 29, he and Officer Ralph Pickett were in Jersey County Motors across the street from the Shop and Save store attempting to observe the person or persons who had been taking money from the soda machines. From his position, Bushor testified he could see the front of the store and observe the heads of persons moving about inside. He could also clearly see the foyer of the store where the soda machines were located. Meyer, as well as several other persons, were working on the night in question. At around 11:30 p.m., everyone but Meyer left.
At that time, Bushor stated that he saw Meyer go to the cigarette rack, to the front office, and to the soda machines. Meyer opened the doors to both machines, removed two cans of soda and the cash boxes, and returned to the office. He then went back to the machines, replaced the cash boxes, locked the machines, walked to the office, and proceeded out the main door of the store carrying a brown grocery bag.
Bushor testified that he and Pickett stopped Meyer on the sidewalk leading to the Shop and Save parking lot. Bushor asked to see the bag Meyer was carrying and Meyer consented — saying it was groceries or merchandise. The bag contained a loaf of bread, two cans of soda, a carton of cigarettes, and a brown bag full of change (nickels, dimes, and quarters), but no receipt. When Bushor asked Meyer about the money, he replied he was taking it home for safekeeping.
Bushor, Pickett, and Meyer then reentered the store through the door Meyer had exited. Once inside, a phone call was placed to the vice-president of the Shop and Save. Upon the order of the vice-president, defendant's employment was terminated and his keys were confiscated. About half an hour later, defendant left the store through the main door. (At no time had he mentioned a note taped to the door.)
Bushor testified that he counted the money in the bag seized from the defendant and found it to contain $108. Less than $40 was found in the soda machines.
Bushor further testified that he returned to the store at approximately 6 o'clock the next morning. He unlocked and entered the main door (the same one used the night before) and proceeded to the office — where he put the money taken from Meyer into another bag and placed that bag beneath the counter. Bushor then went to the back room of the store to have coffee. About the time he got his coffee, he received a phone call from the defendant, who asked if Bushor had seen the note. Bushor replied that he had not, but went to look and found a note where Meyer said it would be — on a metal bar at the bottom of the inside of the "In" door next to the "Out" door Bushor had used to gain entry to the store. The note read, "June 30. Dale, I took change out of soda machine. Will explain in the morning. Paul." Bushor testified that he had entered the store two times and had exited once before defendant's call.
Bushor also testified that when he entered the store on the morning of the 30th, he had to turn off the alarm. On cross-examination, it was established that the alarm is activated by keying in a four-digit number and locking the door. To deactivate the alarm, a person must key in the same four-digit number within a short period of time after entering the store. If the alarm is deactivated after ...