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People v. Drake

OPINION FILED MARCH 6, 1985.

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

v.

PAUL L. DRAKE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. John L. Nickels, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The defendant, Paul L. Drake, pleaded guilty to burglary in the circuit court of Kane County and was sentenced to 12 months' probation and to pay costs and restitution. He later pleaded guilty to theft at a hearing on a petition to revoke his probation. His probation was extended by six months and he was sentenced to 90 days in the Kane County jail. A second petition to revoke his probation was filed alleging his commission of retail theft under $150 (Ill. Rev. Stat. 1983, ch. 38, par. 16A-3). Specifically, he was charged with the retail theft of 12 steel files of three different types from the Ace Hardware store in Elgin.

After a hearing on the petition, the defendant was found guilty of retail theft in violation of the terms of his probation and was sentenced to 30 months' probation with no credit for time served and to six months in the Kane County jail with credit for time served since March 2, 1984.

The defendant contends in this appeal that he was denied a fair revocation hearing because the court considered improper hearsay evidence, and that the State failed to prove by a preponderance of the evidence that he violated his probation.

Elgin police officer Mike Turner had stopped and was questioning two juvenile suspects on an unrelated incident at about 11 a.m. on October 19, 1983, in Elgin. He observed the defendant walking behind the Helm TV business at 201 National Street, saw him walk over to a window on the west side of the building and continue around to the rear of the building. When the defendant saw squad cars, he put something inside his jacket. Turner radioed Elgin police department Captain Copher to stop the defendant and check what was inside his coat. Turner testified he did not see the defendant bend down or pick anything up off the ground when he was near Helm TV.

Captain Copher testified he approached the defendant, asked him if he had anything in his coat, and that the defendant said no. The defendant opened his coat upon the officer's request, and the officer found 12 files therein. The files were not in a sack or package, and there was no sales receipt with the files, although the officer could not recall whether he asked the defendant if he had a sales receipt. When asked where he got the files, the defendant stated he found them on the ground behind Helm TV. Copher said there was no dirt or mud or snow "or anything" on the files. Copher testified each of the files had an "Ace" sticker on it, and that there are two Ace Hardware stores in Elgin. The one nearest the Helm TV store was the one on the east side of Elgin on North Spring and Kimball. The other store, the Lillian Street store, was located about 1 3/4 to 2 miles from the Helm TV store.

There was conflicting and contradictory testimony as to whether the defendant was "booked" at that time in the manner that term ordinarily implies, i.e., taken to the police station, fingerprinted, photographed, and so forth, or whether he was just asked for pertinent information such as his name, address, phone number and so forth at the scene. In either instance, the testimony was consistent on the point that the defendant was not held that day, but was released.

The manager of the Lillian Street Ace Hardware store on the west side of Elgin, Del Logston, testified Officer Turner arrived at the store on October 19 at about 3 p.m. and showed him some files. Files similar to the ones found on the defendant's person, not the actual files which were allegedly stolen (which had been replaced in the store inventory and subsequently sold), were presented at trial for demonstrative purposes. Over the defendant's hearsay objection, Logston testified he identified the 12 files Turner showed him as ones carried by that store by virtue of "our stock number and our store number and our Ace price tag on the files." He testified the store number was a distinctive one, No. 6319, as opposed to the North Spring and Kimball store, No. 49. Logston testified he proceeded to the file section of the store, and there he found three empty peg hooks. Logston testified there was an inventory conducted of that section of the tool department on Sunday, October 16, 1983. The normal procedure during inventory is to "put in the inventory book the quantity on hand and, if need be [to] order sufficient quantity necessary to restock." Over the defendant's hearsay objection, Logston testified there was nothing in the October 16 inventory book about needing to order the three types of files that were kept on the three pegs found empty on October 19.

A store employee, Sheila Gutierrez, testified she saw the defendant in the store the morning of October 19, 1983, and saw him walk down several aisles, including the tool aisle where she was doing price changes. She could see the cash register from where she was, and could have heard it there, too, if a sale had been rung up. She did not see the defendant buy anything. She testified she also saw the defendant in the store the day before, October 18, in the paint-pet area. He did not buy anything that day either. She identified the defendant two weeks later from a photographic lineup of eight to 10 pictures. The defendant was also identified in court by Gutierrez, Copher, and Turner.

FAIR HEARING/IMPROPER HEARSAY EVIDENCE

• 1 The defendant correctly asserts that one of the elements of the offense of retail theft which the State was required to prove was that the defendant had taken possession of or carried away the subject files from the Ace Hardware store. (See People v. Wynn (1980), 84 Ill. App.3d 591.) Defendant further asserts that the only evidence of this element was derived from the testimony of Del Logston, whose testimony was based on his reading of the store code number found on the price stickers affixed to the files. The defendant contends the manager's testimony and the store stickers were inadmissible hearsay.

The defendant argues the circumstances of the case at bar distinguish it from this court's decision in In re T.D. (1983), 115 Ill. App.3d 872, where it was held that the label on a tube of glue was competent evidence that the glue contained the prohibited substance Toluol, and that the corpus delicti had been proved by the prosecution. The underlying rationale there was that the label was statutorily required, thereby imparting a high degree of trustworthiness. The defendant asserts no such reliability factor is present here and that, but for the code number on the stickers identifying the particular Ace Hardware store, there was no way of identifying the origin of the steel files.

We note that the basis of the defendant's objection as argued at trial was that, unless the files allegedly taken by him were produced at trial, or at least a photograph of files was produced, any testimony by Logston concerning his identification of the files as having originated from his store by reason of the code number on the label was hearsay and inadmissible. As such, the defendant's objection was properly over-ruled.

It has been established that the credible testimony of one witness is sufficient to sustain a defendant's conviction, even though that testimony may be contradicted by the accused. (People v. Hasty (1970), 127 Ill. App.2d 330.) The fact that the item or items allegedly stolen are not produced in court is legally immaterial. People v. Banks (1974), 17 Ill. App.3d 512, 515; People v. Hasty (1970), 127 Ill. App.2d 330, 335; cf. People v. Connell (1980), 91 Ill. App.3d 326, 335 (even though merchandise allegedly not paid for was not in evidence at trial, store ...


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