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People v. Toolate

OPINION FILED MAY 26, 1983.

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

v.

LARRY RAY TOOLATE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Adams County; the Hon. Alfred L. Pezman, Judge, presiding.

JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

After a jury trial, defendant Larry Toolate was convicted of residential burglary with intent to commit rape (Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a)) and upon consideration of his criminal record was sentenced to a term of 12 years' imprisonment. While defendant presented some evidence of alibi, the single issue argued upon appeal is whether or not the evidence sufficiently proved that the entry by defendant was made with the intent to commit rape.

The record discloses the following pertinent facts. Complainant, a single woman with two children, testified that on the night of June 16, 1982, she put her children to bed in her bed sometime after midnight. Before retiring, she lowered the window next to the front door, leaving it open about two inches, and checked the screen lock on the window. She closed the curtains and checked the double locks on both downstairs doors. She fell asleep around 2 a.m.

At about 3 a.m. she was awakened by a hand pulling on her left side. She was sleeping on the side of the bed furthest from the bedroom door. There was a foot and one-half between the bed and the wall on that side. She looked up thinking it was her five-year-old pulling her, but the child was not standing there. She reached across the bed and felt the two-year-old next to her and the five-year-old on the opposite side. There was a lamp on the night stand at her bedside. She had left the bottom portion of the lamp on. This light was off and, thinking the bulb was burned out, she tried the switch. It did not work. She then thought that someone was in the apartment.

She lifted the sleeping two-year-old and slid to the middle of the bed, placing the two-year-old at the head of the bed closest to the door. She picked the five-year-old up, asking her whether she had to go the bathroom and telling her she would take her to the bathroom. She continued talking as she walked and turned on the bedroom light, hall light, and bathroom light. She put the child down behind her in the bathroom and turned to face the bedroom.

She then saw a face looking over the side of the bed. She took several steps toward the bedroom. A man, identified as the defendant, stood up. She said, "I knew somebody else was in here with us." He stood up and responded, "That makes two of us that knows that now, doesn't it?" She said, "You get out of here; you get out of our apartment now." He looked both ways and said, "I'm going. I'm going. I'm gone." He jumped over the bed and ran down the steps, passing within three inches of the complaining witness. She looked to make sure the children were all right and then ran down the steps behind him telling him to get out and leave them alone. He ran out the kitchen door and slammed it.

Police were called to the apartment. The screen on the window next to the front door had been cut. Certain bedroom furnishings had been moved after the complaining witness had gone to bed. A stand from beneath a window and a hope chest from the end of the bed had been moved to close off the foot-and-one-half-wide space between the bed and the wall opposite the bedroom door. The night stand lamp at the head of that space had been unplugged.

The complaining witness was able to give police a positive identification because she had seen the defendant riding a motorcycle around her neighborhood at different times. He had spoken to her five-year-old when the complaining witness and the child were outside at about 3 p.m. that day.

The complaining witness testified that, as the defendant ran from her bedroom, she observed he was wearing a navy blue lightweight baseball-type jacket, zipped closed, white pants and tennis shoes. Police arrested the defendant about one hour after they answered the call, and less than an hour and one-half after the incident. He was arrested at the residence of Kevin Weiss about eight blocks from the apartment of the complaining witness.

When placed under arrest and told to dress, he put on a pair of white pants, which were lying next to him, a shirt and tennis shoes. Weiss testified that when he saw the defendant at about 2 a.m., the defendant was wearing tan or off-white jeans, a blue short-sleeved mesh shirt, tennis shoes, and a blue jogging-type sweat jacket with his nickname "Tool" printed on the back in large white letters.

The State rested its case.

Marilyn Weerts testified on behalf of the defendant. She stated that on the night of June 16, 1982, defendant was with her at her home from sometime after 2 a.m. until she drove him to the Weiss residence at about 3 or 3:15 a.m. The drive took about eight minutes. She saw him open the back door to enter.

• 1 Residential burglary consists of entering, with or without force, any dwelling, during the day or the night, with intent to commit a felony or a theft. The gravamen of the offense is the felonious intent with which the building is entered. (People v. Maffioli (1950), 406 Ill. 315, 94 N.E.2d 191.) In this case the prosecution must prove that defendant entered the home of the complaining witness with the intention of committing rape. The defendant's felonious intent to commit rape may be inferred from his words, actions, violence, and other conduct, and it is within the province of the trier of fact to consider all of the facts and circumstances of the case in determining the question of intent. Maffioli.

• 2, 3 Evidence presented included a cut in the screen next to the door, and unauthorized entry to a locked apartment, and the movement of certain bedroom furnishings so that the area next to the sleeping woman was closed off. The only lamp in her reach was unplugged and, at 3 ...


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