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People v. Richardson

OPINION FILED SEPTEMBER 20, 1983.

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

v.

GAYLORD RICHARDSON, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Warren County; the Hon. William J. Randolph, Judge, presiding.

JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

This is an appeal of a conviction for burglary.

The defendant, Gaylord Richardson, was arrested at the Eagles Club Building in Monmouth, Illinois, on April 16, 1982, at approximately 3 a.m. Richardson had entered the building by knocking in the paneling covering a window in the meeting room area of the building. This activated an alarm which alerted the Monmouth police department and Cecil Albert, a club trustee. Both the officers and Albert arrived at the Eagles Club quickly. The police officers searched the building, and discovered Richardson in a closet in the storage area of the club. He was placed under arrest. At some point, Richardson asked for the beer and cigarettes he had left in the barroom of the club.

Apart from the damage to the window, nothing in the club was disturbed and none of the club's property was missing or discovered on Richardson's person.

The defendant was tried, convicted of burglary and sentenced to 10 years in prison under the extended-term sentencing provisions of section 5-5-3.2 of the Unified Code of Corrections (Ill. Rev. Stat. 1981, ch. 38, par. 1005-5-3.2).

• 1, 2 The defendant raises three issues on appeal. First, the defendant claims his conviction must be reversed because the State failed to prove beyond a reasonable doubt that the defendant entered the Eagles Club with intent to commit a theft. This intent upon entry is an essential element of the crime of burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19-1.) It is not necessary that anything be stolen for a burglary to occur. It is well established that a jury may infer the element of intent in a burglary case from the fact of illegal entry into a premises containing movable property which could be the subject of a theft. People v. Johnson (1963), 28 Ill.2d 441, 192 N.E.2d 864.

• 3 It is a rare case where any direct evidence exists as to a defendant's state of mind at the point of entry. Yet the defendant here argues that the circumstantial evidence against him must be corroborated for the State to meet its burden of proof. This is not required by Johnson. All that is required is that there not be circumstances inconsistent with a reasonable inference of intent to commit theft. 28 Ill.2d 441, 443.

The defendant also claims that the fact that nothing was taken or disturbed on the premises constitutes the "inconsistent circumstances" contemplated in Johnson and cites People v. Hutchinson (1964), 50 Ill. App.2d 238, 200 N.E.2d 416, in support of this assertion. In Hutchinson, the defendant entered and left a home in day-light, disturbing or removing nothing, and was apprehended sometime later. The Appellate Court for the First District of the State of Illinois found this completed sequence of actions without a theft occurring inconsistent with an inference of intent to commit theft upon entry.

• 4 Here Richardson was apprehended on the premises a short time after entering the club. The evidence shows that he had been in the barroom prior to the arrival of the officers and retreated to a closet in the storage area. The fact that no theft had occurred when the police arrived is at best inconclusive. It is not inconsistent with the reasonable inference that Richardson intended to commit a theft and would have done so but for the arrival of the police. See People v. Hayes (1973), 11 Ill. App.3d 359, 296 N.E.2d 649.

This court finds that the State met its burden of proof. The conviction is affirmed.

• 5 The defendant raises two objections to the sentencing procedure in the court below. The first of these is that the court failed to advise him of his right to elect treatment under the Dangerous Drug Abuse Act. Ill. Rev. Stat. 1981, ch. 91 1/2, par. 120.1 et seq.

A presentence report was prepared by the probation office in this case. The report was incorporated in the record of the case at the sentencing hearing and was before the court in pronouncing sentence. It contained the defendant's statement that he was a drug addict.

Section 10 of the Dangerous Abuse Act provides:

"If a court has reason to believe that an individual convicted of a crime is an addict or the individual states that he is an addict and the court finds he is eligible to make the election provided for under Section 8, the court shall advise him that he may be placed on probation if he elects to submit to treatment and is accepted for treatment by a licensed program designated by the Commission. (Emphasis added.) (Ill. Rev. Stat. 1981, ch. 91 1/2, par. 120.10.)

Prior to its amendment in 1979 this statute read "the court may advise him." Advising a defendant of his rights and options under this Act was within the trial court's discretion at that time. The 1979 amendment, substituting "shall" for "may," removed this discretion and required the trial court to advise the defendant of his option to elect treatment if the two conditions of the statute are met. See also People v. Beasley (1982), 109 Ill. App.3d 446, 453, 440 N.E.2d 961, 966.

The first of these conditions is "a court has reason to believe that an individual is an addict or the individual states that he is an addict." The word "or" is a disjunctive. Either the defendant's statement or other evidence which would give the court reason to believe that he is an addict fulfills this condition; both are not required. If an individual states that he is an addict the court must accept that statement, and not make its own determination as to the truth of the statement. When the court said in People v. Beasley (1982), 109 Ill. App.3d 446, 454:

"We note that a mere statement by an eligible defendant that he is an addict entitles him to an advisement of the probation and treatment possibilities under the Act"

they were simply stating the plain English meaning of the statute.

The State, obviously distressed by the fact that the court must accept a defendant's "potentially self-serving statement" attempts to bring back a discretionary finding of ...


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