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People v. Allen

OPINION FILED NOVEMBER 1, 1985.

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

v.

NATHANIEL ALLEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County; the Hon. Wilson D. Burnell, Judge, presiding.

PRESIDING JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

After trial by jury defendant, Nathaniel Allen, was convicted of burglary (Ill. Rev. Stat. 1983, ch. 38, par. 19-1) and sentenced to seven years' imprisonment. He appeals, contending (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court committed reversible error in refusing to give both paragraphs of the circumstantial evidence instruction; and (3) he was denied his sixth amendment right to a jury drawn from a fair cross-section of the community.

On the night of September 28, 1983, and the morning of September 29, 1983, Officer James Fancsali of the Aurora police department was on patrol in a paddy wagon. He testified that at about 2 a.m. he noticed that the bottom half of the glass door to J&M Merchandise was broken. He radioed for assistance and took a position outside of the store to see if anyone would emerge. He noticed a trail of blue jeans leading in a westerly direction from the building and, inside the store, the officer saw broken glass, a red brick by the door and several pairs of blue jeans in plastic wrappers. Although Officer Fancsali had passed by the store four times earlier that night he had not noticed anything unusual at those times.

Sergeant Barrett testified that he responded to Fancsali's call of a break-in and drove east towards the store. He noticed no pedestrians at all until he sighted defendant at 2:03 a.m. walking rapidly down the street carrying a large garbage bag from which jeans were falling. Barrett stopped defendant and noted he was bleeding from a cut on his wrist; he then searched defendant and arrested him. This occurred about three city blocks west from the store.

Barrett later photographed the crime scene and stated that he did not notice any blood on the door frame, the broken glass, or the brick. Analysis of 29 glass chips taken from defendant's clothing revealed that three chips from the right boot could have been from the glass door, although that particular type of glass occurred in about one out of every seven glass samples taken.

Officer Reichardt, who had responded to Fancsali's radio call, testified that he had passed the store 10 minutes prior to the call and had noticed nothing unusual. At the time of the call, he was in a squad car and proceeded south toward the store. At 2:01 a.m. he stopped two men one block north of the store and questioned them, but was convinced that they had nothing to do with the break-in.

The owner of the store identified the 26 pairs of jeans recovered as those taken from his store.

After acknowledging two prior convictions, defendant testified that he had been preparing to move into an apartment at 215 West Downer at the time of the incident and had gone there to clean. He stated that he left the apartment at about midnight and went to a bar until 1 a.m. and then to a taco restaurant.

Tina Witkins, with whom defendant had been living, verified defendant's testimony but stated that she did not know where defendant was going when he left at midnight.

Defendant further testified that after leaving the restaurant he went into an alley to relieve himself but before doing so he saw two persons who left when they saw him. He stated that he then saw a bag of jeans near a dumpster, picked it up and left the alley. He proceeded west and was stopped by the police at the next corner. Defendant denied breaking into and entering J&M Merchandise.

Over defense objections, the trial court gave the circumstantial evidence instruction (Illinois Pattern Jury Instruction, Criminal No. 3.02 (2d ed. 1981) (hereinafter cited as IPI Criminal, No. 3.02 (2d ed. 1981) (hereinafter cited as IPI Criminal No. 3.02)), without the second paragraph concerning exclusion of all reasonable theories of innocence. The court also properly instructed the jury on the reasonable doubt standard, according to Illinois Pattern Jury Instruction, Criminal, No. 2.03 (2d ed. 1981).

• 1 Defendant first argues that the State failed to satisfy the three-prong test adopted by the Illinois Supreme Court in People v. Housby (1981), 84 Ill.2d 415, 420 N.E.2d 151, cert. denied (1981), 454 U.S. 845, 70 L.Ed.2d 131, 102 S.Ct. 160 (hereinafter Housby). There the court stated that guilt of a burglary may be inferred from a defendant's exclusive possession of recently stolen property only if (1) there is a rational connection between possession and participation; (2) guilty of burglary more likely than not flows from the unexplained possession; and (3) there is evidence corroborating his guilt. People v. Housby (1981), 84 Ill.2d 415, 424; People v. Akins (1984), 128 Ill. App.3d 1009, 1014, 471 N.E.2d 1003.

• 2 In the instant case, we deem all three Housby requirements to be met. The westerly trail of blue jeans leading in the defendant's direction, the short 13-minute interval between commission of the burglary and defendant's apprehension with the stolen jeans, and the fact that glass fragments from his clothes matched the type of glass from the broken J&M Merchandise door all support the rational connection between possession and participation and the likelihood that the burglary flows from the possession. The same evidence may satisfy more than one prong of the test. People v. Klein (1983), 115 Ill. App.3d 582, 585, 450 N.E.2d 1268.

Unlike Housby, the defendant in this case presented an explanation for his possession of the stolen goods; however, it was within the jury's province to reject this account and it did so. (People v. Winfield (1983), 113 Ill. App.3d 818, 826, 447 N.E.2d 1029, appeal denied (1983), 96 Ill.2d 549; People v. Steffens (1985), 131 Ill. App.3d 141, 147, 475 N.E.2d 606.) Moreover, defendant misconstrues Housby when he contends that the mere fact of his explanation makes Housby inapplicable to this case as the courts have applied the Housby standards despite the existence of a contrary construction of the facts by a defendant. People v. Jones (1985), 105 Ill.2d 342, 475 ...


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