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People v. Burnside





Appeal from the Circuit Court of Peoria County; the Hon. Donald C. Courson, Judge, presiding.


The defendant, Kevin Burnside, appeals his conviction following a jury trial in the circuit court of Peoria County. Only one issue is presented for review, i.e., whether the evidence sufficiently established defendant's guilt of felony theft or whether defendant's conviction must be reduced to one of misdemeanor theft only.

The trial concerned the theft of four automobile wheels and tires having a total value in excess of $300. It was stipulated that the four wheels were valued at $50 each and four center caps were valued at $10 each. Three of the tires were worth $60 each, while the fourth was worth no more than $25. It was also stipulated that lug nuts cost $1.25 each.

The sole question is whether the evidence established that the defendant is guilty of the theft of only two or all four wheels and tires. If the evidence established that the defendant was guilty of the theft of only two wheels and tires, having a total value of no more than $252.25, then his conviction for felony theft (over $300) must be reversed.

The evidence indicated that during the early evening of February 6, 1984, an automobile belonging to Ronald Schertz was taken from the 2100 block of a street on the south side of Peoria to an alley in the 1400 block of West Millman. Judith May and Myron Owens lived at 1411 West Millman, and each testified concerning their observations on the evening in question.

According to May, she noticed a truck parked in front of her house at approximately 9 p.m. She observed two short black men standing behind the truck placing some tires in the back of the vehicle. After she saw the men load the tires into the back of the truck, May returned her attention to the television set she was watching.

Myron Owens testified that when he drove up to his house after 9 p.m., he noticed a red pickup truck parked in front of his residence. The vehicle had one occupant and the individual wore a stocking cap. Owens started to park the vehicle he was driving but remembered he had to pick up his daughter and continued on down the street. When Owens returned 15 to 20 minutes later, he noticed that the truck was gone. He parked his car in the alley behind his home and noticed that a car was parked across the alley without wheels. He went inside his house and called the police.

Within 10 to 12 minutes, Owens accompanied certain police officers to the intersection of Howett and McArthur, where he saw what appeared to be the same red pickup truck. Of the suspects in custody, Owens identified the defendant as the driver of the truck.

Officer Burnsheuer testified that he searched the area between where the automobile was discovered and the scene of the defendant's arrest. He found the victim's citizen's band radio and tool box in an alley next to a garage at 1015 Howett Street. The residence at the address was the home of Matthew Burnside, the defendant's uncle. The officer also discovered 10 lug nuts at the scene, some four blocks from where the stripped automobile was discovered.

Officer Hoskins testified that he went to the home of Matthew Burnside at approximately 9:45 p.m. on February 6. Hoskins went to the residence because he knew Matthew Burnside owned a red pickup truck and he had previously seen the defendant driving the vehicle. Subsequently he observed the red pickup truck on Howett Street. Hoskins followed the truck until it turned into the Harrison housing complex. When the truck stopped, he observed that it had three occupants. The defendant's brother, Terry Burnside, was sitting in the driver's seat, while the defendant was sitting in the middle and Clarence Jones was sitting on the passenger side of the vehicle. The three individuals were arrested, the truck searched and two lug wrenches recovered from behind the seat. No stolen wheels or tires were recovered from the truck.

When Hoskins later questioned the defendant about his presence near the Owens' residence, the defendant initially said that he knew nothing about the stripped vehicle.

The defendant later told the police that he had gone to see his girlfriend, Bee Bee Armstrong, who lived next door to the Owens' residence. The defendant indicated that Jones had paid him a few dollars to take him to the 1400 block of Millman Street and that his brother, Terry, had gone along for the ride.

The defendant said that they parked the truck in front of the Armstrong residence and that the defendant went up on the porch to visit his girlfriend. However, the defendant said he left when he saw his girlfriend's mother look out the window because he believed she didn't like him.

In the meantime, Jones had asked the defendant to "change a tire" but the defendant refused. When the defendant saw Mrs. Armstrong looking out the window, he ran from the house thinking she would call the police. He told his brother to drive the truck down the street with its lights off. The defendant said Jones then walked up with only two tires and placed them in the truck. They drove away and were arrested shortly thereafter. ...

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