Appeal from the Circuit Court of Macoupin County; the Hon.
John W. Russell, Judge, presiding.
JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction by a jury of the crimes of murder, aggravated arson, and arson, and his sentence of 40 years' imprisonment for murder and 30 years' imprisonment for the crime of aggravated arson.
On appeal he argues that (1) he was not proved guilty beyond a reasonable doubt; (2) certain evidence was improperly admitted; (3) the trial court abused its discretion in denying his motion for continuance made on the day of trial; and (4) the trial court abused its discretion in sentencing him to 40 years for murder and 30 years for aggravated arson. We affirm.
On the night of October 5, 1979, a fire at the residence of Don and Esther Cameron in Virden, Illinois, resulted in the death of their 11-year-old son Mark. Mrs. Cameron testified that she awoke at approximately 10:40 p.m. and saw flames coming in through a window between the kitchen and back porch of her home. Mrs. Cameron called the fire department and managed to escape through a second story bedroom window. Another son, Todd, and his friend, Jamie, also escaped, but Mark perished. He was found several feet from the window through which Mrs. Cameron and Todd fled from the fire. The testimony of the State's expert witnesses was uncontradicted that an accelerant was used to start the blaze and that the fire began on the back porch. Also uncontested was the fact that the victim had died in the fire.
The State produced a substantial amount of circumstantial and testimonial evidence that defendant was the perpetrator of the offenses. This evidence included numerous threats against the lives of the Camerons over a period of several months, including a threat made less than one hour before the fire; defendant's admission of the crime to acquaintances; testimony that the defendant was only a few blocks from the Cameron residence shortly before the fire was reported; and further testimony that when defendant was arrested for speeding a short distance from Virden later that evening the arresting officer noticed the smell of kerosene. We conclude that the evidence overwhelmingly supports the verdict of the jury.
As noted in People v. Bernette (1964), 30 Ill.2d 359, 367, 197 N.E.2d 436, 441, a conviction may be sustained upon circumstantial evidence as well as direct evidence, it being necessary only that the proof of circumstances must be of a conclusive nature and leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilt, but it is sufficient if all the evidence, taken together, satisfied the jury beyond a reasonable doubt of the accused's guilt.
Defendant argues that his conviction must be reversed because he finds several asserted hypotheses of innocence. This contention requires a conclusion that the evidence at trial is entirely circumstantial. In People v Watts (1976), 36 Ill. App.3d 1011, 344 N.E.2d 606, this court, following established precedent, held that where a defendant's conviction rests entirely on circumstantial evidence the proof must not only be consistent with defendant's guilt, but must be inconsistent with any reasonable hypothesis of innocence.
In this record, defendant's conviction is not based entirely on circumstantial evidence. While there is some circumstantial evidence, two witnesses testified to defendant's admissions concerning the fire, and numerous witnesses testified concerning defendant's whereabouts and acts immediately preceding and after the discovery of the fire. See People v. King (1978), 58 Ill. App.3d 199, 373 N.E.2d 1045.
The argument either misapprehends or ignores the function of the relationship between circumstantial evidence and the reasonable hypothesis of innocence stated in the second paragraph of Illinois Pattern Jury Instruction, Criminal, No. 3.02 (1968). As to that part of the instruction, it is accepted case law that the language "circumstances proved exclude every reasonable theory of innocence" is to be given only when the proof of guilt is entirely circumstantial. (People v. French (1978), 59 Ill. App.3d 353, 375 N.E.2d 502.) In People v. Wilson (1948), 400 Ill. 461, 480, 81 N.E.2d 211, 220, decided prior to the time of the Illinois Pattern Jury Instruction, the court stated:
"If the evidence is wholly circumstantial it possibly may prove his guilt beyond a reasonable doubt, but it must be closely scrutinized, and if, when fairly considered, it presents another hypothesis consistent with innocence, the latter must be adopted in preference to guilt."
See also People v. Giangrande (1981), 101 Ill. App.3d 397, 428 N.E.2d 503.
• 1, 2 Thus, the test of a "reasonable hypothesis of innocence" is limited entirely to matters of circumstantial evidence and is not properly extended to testimonial evidence which is also in the record. Thus, when defendant conjectures from fragments of testimony that Mr. and Mrs. Cameron had financial motives to burn their own home, and that the ensuing death of their handicapped son relieved them of a financial burden, it is clear that such argument cannot be brought within the ambit of any circumstantial evidence of defendant's guilt, and the argument will not be accepted as a reasonable hypothesis of innocence.
Defendant's other arguments concern the admission of items of clothing seized from defendant upon his arrest in 1979, and the admission of statements of witnesses which defendant objects to as improper hearsay. We divide these arguments into those properly preserved and those waived on review.
Defendant's contention that certain clothing seized at his initial arrest should have been suppressed because of alleged violations of section 108-2, 108-4, and 108-11 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1981, ch. 38, pars. 108-2, 108-4, 108-11) has not been preserved for review.
• 3 A defendant who objects to the search and seizure of evidence has the burden of presenting both the legal and factual bases for the motion to suppress. (Ill. Rev. Stat. 1981, ch. 38, par. 114-12(b); People v. Berg (1977), 67 Ill.2d 65, 364 N.E.2d 880; People v. Nilsson (1970), 44 Ill.2d 244, 255 N.E.2d 432.) The fact that a warrantless search had occurred was neither established with proof, nor did defendant identify any legal ground upon which such evidence could be excluded. Clearly, defendant has not met his burden to demonstrate that the items should have been suppressed. Moreover, even if we overlook defendant's waiver, the authorities are consistent in holding that a failure to inventory and/or make a return is a technical violation of defendant's rights and harmless in nature, not ...