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In Re L.f.

OPINION FILED NOVEMBER 4, 1983.

IN RE L.F., A MINOR — (THE PEOPLE OF THE STATE OF ILLINOIS, PETITIONER-APPELLEE,

v.

L.F., RESPONDENT-APPELLANT).



Appeal from the Circuit Court of Winnebago County; the Hon. Bradner C. Riggs, Judge, presiding.

JUSTICE LINDBERG DELIVERED THE OPINION OF THE COURT:

Respondent-minor L.F. was charged with committing the offense of residential burglary (Ill. Rev. Stat. 1981, ch. 38, par. 19-3) in a delinquency petition. At the adjudicatory hearing, it was established that Eddie Torrance and a friend arrived at Torrance's Rockford home after work on March 11, 1982, to find that the home had been broken into and that money, jewelry, and whiskey were missing. Torrance also found a hammer in the house which was given to the police and introduced into evidence.

Two Rockford policemen testified regarding their interviews with the minor and statements he gave to them. In both statements the minor admitted that he had watched Torrance leave his house to go to work and then broke into the house and took money, a gun, and some liquor. He also stated in both that the homeowner owed him money. In the second statement, he correctly identified Torrance's place of work, reported his use of a hammer to break in and that he left it behind, stated that he also took jewelry, and described the layout of the house. Although both original statements contained references by the minor to being "on a furlough from Joliet," these were excised when the statements were introduced into evidence. The minor's indication in the second statement that he broke into Torrance's home in 1980 was not removed.

An employee of the Department of Corrections and another Rockford policeman testified regarding the minor's May 21, 1982, escape from custody while on the way to be arraigned on the present charge and his capture the next day. The minor's only evidence was the testimony of the Rockford policemen who responded to the Torrance break-in that Torrance at that time reported that nothing was missing.

The jury found the minor to be delinquent. As the State proved to the court two previous adjudications for felony offenses, the trial court sentenced him to confinement until his 21st birthday, pursuant to the Habitual Juvenile Offender Act (Ill. Rev. Stat. 1981, ch. 37, par. 705-12). He appeals.

ADMISSION OF EVIDENCE OF OTHER CRIMES

• 1 The minor first contends that prejudicial error occurred when the trial court permitted the admission of evidence of other crimes committed by him. The minor specifically points to testimony regarding the fact that he had escaped from the custody of the Department of Corrections while being returned to Rockford for arraignment on the charge involved in this case (see Ill. Rev. Stat. 1981, ch. 38, par. 36-1) and to that portion of the minor's statement of March 15, 1982, in which he related that he had broken into the same house on a previous occasion (see Ill. Rev. Stat. 1981, ch. 38, par. 19-3).

Regarding the testimony of the minor's escape, evidence of escape or attempted escape from custody by an accused is admissible as a fact raising a presumption of guilt of the crime charged, even if the accused is being held on more than one charge. (People v. Yonder (1969), 44 Ill.2d 376, cert. denied sub nom. Guido v. Illinois (1970), 397 U.S. 975, 25 L.Ed.2d 270, 90 S.Ct. 1094; People v. Robinson (1980), 91 Ill. App.3d 1138, 415 N.E.2d 585.) Therefore, there was no error in the admission of the escape testimony.

• 2 Regarding that portion of the minor's statement indicating a prior break-in, the trial court admitted it because it "not only shows his intent, but impeaches his statement in the earlier statement, his remark in the earlier statement to [Officer] Piccirilli that this was an individual who owed him money." Although it is generally true that evidence of crimes other than the one for which the accused is being tried is not admissible, there are exceptions, including evidence of separate offenses which also tend to prove a fact in issue or which go to show motive, intent, identity, absence of mistake or modus operandi. (People v. McDonald (1975), 62 Ill.2d 448, 455.) In fact, it has been broadly held that evidence of other offenses is admissible if relevant for any purpose other than to show propensity to commit a crime. (62 Ill.2d 448, 455.) On this appeal, the State seeks to justify the admission of the statement regarding the prior break-in as relevant to motive and intent.

The evidence in question is a portion of defendant's March 15, 1982, statement to Officer Hoffman. After describing the manner of the break-in at issue, defendant stated the following:

"As soon as you walk in you turn left and there is a closet. Thats [sic] the first place I went because the last time I broke in there, there was [sic] about $800.00 or $900.00 in there. There was [sic] also two pistols in there at that time. It was 1980 when I broke in that time."

• 3 These remarks tend to show that defendant's intent upon breaking in was to obtain money and possibly goods, such as the pistols, just as he had been able to do in the past. The intent to commit a felony or theft is a necessary element of the offense of residential burglary. (Ill. Rev. Stat. 1981, ch. 38, par. 19-3(a).) Therefore, the remarks were relevant to proof of the charged offense. This is especially true here where the minor, in other parts of his statements, averred that he broke into the victim's home to take money that the victim owed to him. In People v. Henderson (1974), 18 Ill. App.3d 457, 309 N.E.2d 242, evidence of a previous burglary by the defendant of the same premises three days earlier than the charged burglary was admissible to prove intent where statements made by the defendant to police had indicated a motive in the break-in to assist a woman who had cried for help. Similarly, the minor's remarks here tend to make an innocent motive less likely and are therefore probative on the issue of the minor's purpose. Furthermore, the challenged remarks also reveal the reason why defendant was aware of the layout of the burglarized premises, another relevant factor. (See People v. McLain (1975), 32 Ill. App.3d 998, 337 N.E.2d 82.) Thus, there was no error in the admission of the minor's reference to the previous break-in.

Defendant cursorily states that "the State ought to have been required to establish the occurrence of the other crime," citing People v. Gugliotta (1980), 81 Ill. App.3d 362, 401 N.E.2d 262. We find that defendant has waived this argument because, although employing a motion in limine, an oral objection and a post-trial motion to challenge the use of his statement regarding the prior burglary, at no point was this particular reasoning brought before the trial court. See People v. Curry (1973), 56 Ill.2d 162.

In any event, no error was committed. People v. Gugliotta (1980), 81 Ill. App.3d 362, 401 N.E.2d 262, stated the rule that evidence of other crimes cannot be admitted even for a proper purpose until it is shown that a crime actually took place and that the defendant committed it or participated in its commission. (81 Ill. App.3d 362, 365, 401 N.E.2d 262, 264.) The other crimes in Gugliotta were fires which the court held were not shown at trial to have been set by the defendant nor even to be of incendiary origin. Although it must be shown that the other crime occurred and that the accused committed it or participated in its commission, proof of the other crime need not be beyond a reasonable doubt. (People v. Walters (1979), 69 Ill. App.3d 906, 387 N.E.2d 1230.) In Walters, the court held there to be sufficient evidence of the occurrence of the other crimes and the defendant's participation in their commission. The only evidence of the other crimes was a police officer's testimony that he had investigated robberies and murders which occurred on certain dates and the statements of the defendant regarding his participation in those crimes. Here, the only evidence of the other crime is the minor's own statement; ...


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