Appeal from the Circuit Court of Peoria County; the Hon.
Richard E. Eagleton, Judge, presiding.
PRESIDING JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:
Rehearing denied June 7, 1983.
The defendant, Richard Morrison, was convicted of residential burglary, sentenced to a term of incarceration and ordered to pay restitution. The defendant appeals his conviction, alleging that the State failed to prove the requisite intent. He also argues that the court committed error in denying him court appointed counsel and in ordering restitution. We affirm his conviction, but remand for a new sentencing hearing.
The defendant had in his possession property taken from the apartment leased by Jeffrey Loser. The defendant had lived with Loser in this apartment in 1981, but was not living there at the time of the theft. The defendant testified that he stopped by the apartment and saw a note ordering the tenants to vacate the apartment. He called out for Loser but Loser was not at home. The defendant got a van and returned to the apartment to remove clothing he had left there and some furniture belonging to his brother. As he retrieved his clothing and his brother's furniture, he also took the property that belonged to Loser.
The defendant argues that the State failed to prove beyond a reasonable doubt that he possessed the requisite intent. In order to sustain a residential burglary conviction, the State must prove that the defendant possessed the intent to commit a theft at the time of his unauthorized entry into the victim's dwelling. (People v. Vallero (1978), 61 Ill. App.3d 413, 378 N.E.2d 549.) The defendant contends that the facts of the case demonstrate that it was his intent only to retrieve his clothing and the furniture when he entered Loser's apartment.
• 1 "Where burglary with intent to steal is charged, the alleged intent may be shown by proof that a theft did occur on the premises entered." (People v. Kerestes (1976), 38 Ill. App.3d 681, 684, 348 N.E.2d 274, 276.) Whether the requisite intent existed is a question for the trier of fact. (People v. Blair (1971), 1 Ill. App.3d 6, 272 N.E.2d 404, aff'd (1972), 52 Ill.2d 371, 288 N.E.2d 443.) The decision of the fact finder will not be overturned on appeal unless the evidence is palpably contrary to the verdict or so unreasonable, improper or unsatisfactory as to create a reasonable doubt of guilt. People v. Zuniga (1981), 99 Ill. App.3d 396, 425 N.E.2d 1094.
We find sufficient evidence in the instant case to support the defendant's conviction. The defendant stated at trial that his intent in entering the apartment was to recover property belonging to himself and his brother. However, at the time of his arrest the defendant stated that he went to Loser's apartment to collect money Loser owed him. The defendant testified also that he had a van and intended to remove his brother's furniture from the apartment, but at the time of the incident, the defendant was in a body cast as a result of an accident at a railroad crossing. The defendant entered the apartment after determining that Loser was not at home. Finally, the defendant, while wearing articles of Loser's clothing, met Loser shortly after the burglary, but gave no explanation for his possession of Loser's clothing and made no offer to return these items.
The defendant's testimony was implausible and was substantially impeached. It cannot be said that the evidence was so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to create a reasonable doubt of the defendant's guilt. His conviction is therefore affirmed.
• 2 The defendant alleges as his second issue on appeal that the court erred in denying him appointed counsel. We agree. The State argues that the loan the defendant obtained in order to post bail bond was sufficient to find the defendant not indigent. The loan in question was secured by the defendant's only asset, a 1973 Ford Mach I. The defendant also had no income at the time of his hearing to determine indigency and was living with relatives.
Where the defendant has some assets or funds available, the determination of indigency is left to the sound discretion of the court. (People v. Wood (1980), 91 Ill. App.3d 414, 414 N.E.2d 759.) To be considered indigent, a defendant need not be totally devoid of funds, it being sufficient if the defendant lacks the financial resources on a practical basis to retain counsel. (People v. Castile (1979), 71 Ill. App.3d 728, 390 N.E.2d 426.) In People v. Whitney (1974), 24 Ill. App.3d 685, 321 N.E.2d 317, discussed by this court in People v. Valdery (1976), 41 Ill. App.3d 201, 354 N.E.2d 7, the defendant was a student with no source of income and only an old automobile and a small amount of cash as assets. In Whitney this court reversed the defendant's conviction because of failure to appoint counsel based on the defendant's financial status. The defendant in the instant case had no source of income and only a 1973 auto for assets.
• 3 The question of indigency in a case such as this presents a difficult situation for resolution by a trial court. However, the issue of appointment of counsel must be decided with an eye toward protection of the rights of the accused from any impairment. (People v. Cole (1968), 97 Ill. App.2d 22, 239 N.E.2d 455.) We find that because the defendant was indigent, it was error for the trial court to deny him appointed counsel. However, the defendant was ably represented at trial by a private attorney. The error by the trial court is therefore irremedial, and the issue of reimbursement is moot.
• 4 The defendant also asserts error in the failure of the trial court to determine the defendant's ability to pay restitution before ordering him to so pay. Section 5-5-6 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-6), provides:
"If restitution is part of the disposition, the defendant shall make restitution to the victim in accordance with the following:
(a) A pre-sentencing hearing shall be held to assess the financial capacity of the defendant to make restitution as well as to determine the amount and ...