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People v. Heidorn





Appeal from the Circuit Court of Du Page County; the Hon. Carl F.J. Henninger, Judge, presiding.


Defendant, Barbara Heidorn, was charged with theft in that she knowingly exerted unauthorized control over a television set, valued in excess of $150, belonging to Jewel Companies, Inc., d/b/a Osco Drug, with intent to permanently deprive Jewel/Osco of the television set in violation of section 16-1(a)(1) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 16-1(a)(1)). Defendant was also charged with two counts of retail theft arising out of the same incident. (Ill. Rev. Stat. 1981, ch. 38, par. 16A-3(a).) She was convicted of both theft and retail theft in a jury trial and judgment was entered on the jury verdicts for both offenses, but sentence was imposed on defendant only for theft over $150 under section 16-1(a)(1).

On appeal, defendant first contends that her conviction for theft over $150 should be reversed on the grounds that the State failed to prove an essential element of the offense beyond a reasonable doubt, to wit: that she acted with the requisite criminal intent to deprive Jewel/Osco of its property.

• 1, 2 Resolution of this issue depends primarily on the credibility of the witnesses. Questions of credibility of the witnesses and the weight to be given their testimony are matters for the jury's determination. (People v. Falkner (1978), 61 Ill. App.3d 84, 87.) While a reviewing court must review the evidence carefully and reverse a conviction if the evidence is not sufficient to remove all reasonable doubt of the defendant's guilt (61 Ill. App.3d 84, 87), the jury's verdict will not be disturbed unless it is so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of guilt. (People v. Camden (1980), 91 Ill. App.3d 946, 955.) Where an element of the State's case is proved circumstantially, as intent was here, the proof must be of a conclusive nature, producing a reasonable and moral certainty of the defendant's guilt and excluding any reasonable hypothesis of innocence. (People v. Williams (1980), 85 Ill. App.3d 850, 858; People v. Trapps (1974), 22 Ill. App.3d 1029, 1032-33.) Where two equally reasonable hypotheses exist, the one consistent with innocence must be adopted. (People v. Ibom (1962), 25 Ill.2d 585, 594.) However, the jury need not accept the defendant's version of the facts, but may consider its probability in light of the surrounding circumstances. People v. Camden (1980), 91 Ill. App.3d 946, 955; People v. Williams (1980), 85 Ill. App.3d 850, 858.

• 3 Here, despite the evidence presented by the defense, the defendant's intent was sufficiently demonstrated to support the verdict of the jury. Intent to permanently deprive may be inferred simply from the act of taking another's property. (People v. Falkner (1978), 61 Ill. App.3d 84, 87; People v. Gischer (1977), 51 Ill. App.3d 847, 850.) While such an inference may be rebutted by proof of the existence of a state of mind incompatible with intent to steal (People v. Baddeley (1969), 106 Ill. App.2d 154, 158-59; see also People v. Eatherly (1979), 78 Ill. App.3d 777, 782; People v. Falkner (1978), 61 Ill. App.3d 84, 91), in light of the total circumstances shown by the evidence in this case, the jury was not required to accept the defendant's version of the facts.

Wizer, the store security agent, and Cogley, a Jewel employee, both testified that defendant had passed through one set of the store's exit doors when she was apprehended. Defendant, who was under almost continuous observation after Lorentsen, the stock clerk, put the television in her shopping cart, was not seen paying for the set. According to Wizer, the defendant initially, upon being apprehended, claimed to have paid for the set but did not have any receipts. Defendant at trial did not claim to have paid for the television set. The substance of her testimony and that of her neighbor was that defendant intended to purchase the set for her neighbor and was standing in front of the store awaiting her neighbor when she was apprehended. She denied any intent to steal. Based on the evidence in this case, it is not so unreasonable, improbable and unsatisfactory as to raise a reasonable doubt. The jury's verdict must be affirmed.

• 4 The defendant also requests that her conviction be reversed and a new trial granted because of certain trial errors. The first of these is that the trial court erroneously limited the defendant's opportunity to cross-examine the State's key witness, Rick Wizer, concerning his vulnerability to a civil suit for false arrest. In an effort to show bias on the part of the witness, the defense unsuccessfully sought to question the witness whether or not it might be possible he or Jewel could be sued for false arrest.

Defendant's post-trial motion contains no objection to the trial court's limitation of cross-examination of the witness, Wizer, and therefore, this issue has not been preserved for review and has been waived. People v. Edwards (1978), 74 Ill.2d 1, 6-7; People v. Williams (1981), 96 Ill. App.3d 8, 20-21.

Further, People v. Bradford (1979), 78 Ill. App.3d 869, 877, disposes of this issue on its merits. In the present case, at the time of trial, there was no evidence that a civil lawsuit had been filed or even been contemplated against Jewel or the witness. Any testimony concerning such a suit would have been speculative and uncertain. The trial court did permit examination of Wizer as to whether he had any interest in the outcome of the trial and whether he received any additional compensation for making an arrest. We find no abuse of discretion on the part of the trial court in excluding examination of the witness, Wizer, concerning possible civil lawsuits. See People v. Denby (1981), 102 Ill. App.3d 1141, 1150.

• 5 Defendant's next assertion of error is that two comments of the trial court made to defense counsel were so prejudicial as to deny defendant a fair trial.

This issue also could be viewed as waived because of defendant's failure to object at trial or assert the matter in her post-trial motion. (See People v. Tannenbaum (1980), 82 Ill.2d 177, 181; People v. Precup (1978), 73 Ill.2d 7, 16.) However, given the fundamental importance of a fair trial and the practical difficulties involved in objecting to the conduct of the trial judge, the waiver rule is applied less rigidly when the judge's conduct is the basis for the objection. (People v. Sprinkle (1963), 27 Ill.2d 398, 401; People v. Smalley (1973), 10 Ill. App.3d 416, 427; People v. McGrath (1967), 80 Ill. App.2d 229, 236; contra People v. Crosby (1976), 39 Ill. App.3d 1008, 1010.) Therefore, we will consider the merits of this issue.

• 6 Every defendant, regardless of the nature of the proof against him or her, is entitled to a trial that is free from improper and prejudicial comments on the part of the trial judge. (People v. Parker (1976), 40 Ill. App.3d 597, 605.) While the trial judge has wide discretion in the conduct of trial, he must not make comments or insinuations, by word or conduct, indicative of an opinion on the credibility of a witness or the argument of counsel. (People v. Marino (1953), 414 Ill. 445, 450.) Because of the judge's great influence over the jury 414 Ill. 445, 450-51), the trial judge must exercise a high degree of care to avoid influencing the jurors in any way, to remain impartial, and to not display prejudice or favor toward any party. People v. Sprinkle (1963), 27 Ill.2d 398, 403; People v. Wells (1982), 106 Ill. App.3d 1077, 1086.

Defendant objects to two comments made by the judge during trial. In sustaining the State's objection to defendant's inquiry on cross-examination as to Wizer's potential civil liability, the court stated, "let's not create false issues, Mr. Laz." In overruling the prosecutor's objection to defendant's closing argument concerning the effect of an arrest on Wizer's employment, the court commented, "I think that is an argument that is based on the evidence. I don't understand it myself, but go ahead."

• 7 For comments by a trial judge to constitute reversible error, the defendant must show that the remarks were prejudicial and that he or she was harmed by the comments. (People v. Wells (1982), 106 Ill. App.3d 1077, 1086; People v. Nurse (1975), 34 Ill. App.3d 42, 47; see also People v. Parker (1976), 40 Ill. App.3d 597, 605.) This may be shown where the trial court expresses disbelief in the testimony of defense witnesses, confidence in the credibility of prosecution witnesses, or an assumption of the defendant's guilt. (People v. Sprinkle (1963), 27 Ill.2d 398; People v. Marino (1953), 414 Ill. 445.) Similarly, a hostile attitude toward defense counsel, an implication that defense counsel's presentation is unimportant, or a suggestion that defense counsel is ...

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