Appeal from the Circuit Court of Winnebago County; the Hon.
Harris H. Agnew, Judge, presiding.
JUSTICE SCHNAKE DELIVERED THE OPINION OF THE COURT:
On January 24, 1985, after a jury trial in the circuit court of Winnebago County, the defendant, Joel Jackson, was found guilty of residential burglary and sentenced to an extended term of 18 years' imprisonment. On appeal defendant argues: (1) that his guilt was not proved beyond a reasonable doubt; (2) that the residential burglary statute is unconstitutional; (3) that he was denied a fair trial by the prosecutor's closing remarks; and (4) that the trial court improperly considered two aggravating factors to impose an extended term sentence and abused its discretion in sentencing him to 18 years' imprisonment.
During the late evening hours of June 1, 1984, the home of Mrs. Ethel Adams, 3543 Robey Avenue in Rockford, was burglarized. Mrs. Adams arrived home at 11 p.m. to find the police already at her home. Mrs. Adams testified that a Kodak 4000 disc camera, a package of SX-70 Time Zero Polaroid film, portable television, police scanner, microwave oven and telephone had been taken. The microwave oven was found that night in her backyard and was returned to her by the police. Mrs. Adams noticed at that time that the oven had small dots all over it. The television, police scanner and telephone were found the following day in a neighbor's yard and were also returned to Mrs. Adams.
Adams' next door neighbor, Judy Allman, testified that she walked her dog at 10:45 p.m. on the night of the burglary and that on her way back to her house she saw several items behind a tree near her back porch, between her house and the Adams house. Allman then returned home and observed a blue car back up from in front of the Adams house to the front of her house. After a few minutes a man got out of the car, approached her house and asked her where Robey Avenue was. Allman told him he was on it and that he knew it. The man then returned to the car, made a U-turn, and left. Allman did not get a good view of the man's face and could describe him only as a black male wearing all-dark clothing. The police arrived several minutes later and found that the items behind the tree were gone.
Mark Webb testified that he was walking on a street called Normandy between 10:45 and 11 p.m. on the night of the burglary. Normandy runs parallel to Robey Avenue and is one block east. While walking, Webb observed two men walking towards him between two apartment buildings between Robey and Normandy. The first man walked "up" Normandy to a car and then drove "down" Normandy with the lights off. The second man walked across Normandy and was then picked up by the first man. Webb could not identify either man and described them only as two black males, both wearing dark clothing. Webb described the car as a blue AMC and said the "biggest" thing he remembered about it was that "it had a double white pinstripe running along the top of the quarter panel, up along the top edge of the car." Webb also saw the car's license number which he later told police.
Officer Kenneth Carner of the Rockford police department was on patrol that night in the area of the burglary. At about 10:45 p.m. he observed two men walking towards Robey on River Bluff between Robey and Normandy. Carner described one man as black, 17 to 20 years of age, 5 feet 10 inches tall, 140 pounds, and wearing a blue T-shirt and dark pants. Carner described the other man as black, 16 to 17 years of age, 5 feet 6 inches to 5 feet 7 inches, 130 pounds, and wearing a black T-shirt and dark pants. At 10:55 p.m. Carner responded to the report of the Adams burglary.
Deputy Donald Hahn of the Winnebago County sheriff's department testified that he stopped two black males in a blue AMC Pacer at 11:50 p.m. that night in response to a radio broadcast about a suspect vehicle in the Adams burglary. The occupants were defendant (driver) and George Huggins (passenger). Hahn described defendant as wearing a black T-shirt with black or dark blue pants, and Huggins as wearing a dark blue T-shirt with dark green pants. Defendant, who did not have a driver's license, gave Hahn his brother's driving permit, which was in the glove box. Hahn requested that both men remain in their car. Approximately 10 to 15 minutes later, a second police car arrived, and Hahn again approached defendant's car and requested that defendant and Huggins walk back to his squad car.
While walking back to the police car, defendant fled into an open field and was not apprehended that night. The police found a Kodak 4000 disc camera and a package of SX-70 Time Zero Polaroid film between the front bucket seats of the AMC Pacer and two pairs of gloves in the glove box.
Officer Paul Muenkel of the Rockford police department testified that he assisted in the burglary investigation at the Adams house. Muenkel stated that he examined an ashtray found on the floor in the Adams house and discovered it had small dots on it. The dots were similar to those that might be made by one of the pairs of gloves found in the glove box of the defendant's car. Mrs. Adams testified that no one in her household had gloves of that type.
After the State rested and defendant's motion for a directed verdict was denied, defendant called his first witness, 14-year-old Michelle Busby, who had known defendant for three or four months. Michelle testified that defendant arrived at her house between 7 and 8 p.m. on the night of the burglary and stayed until 11 or 11:25 p.m. Bernice Busby, Michelle's 15-year-old sister, testified that she saw defendant at her house at 8 p.m. and that he was still there when she left at 10:30 p.m. to baby-sit for a relative. Bernice's testimony as to when she last saw defendant was contradicted, however, by her earlier statement on October 11, 1985, to Ann Marie Davis, an investigator for the public defender's office, that she left for baby-sitting at 10 p.m.
Defendant took the stand on his own behalf and testified that he arrived at Michelle's house at about 8:10 p.m. and left about 11:25. He had arrived on his bike but left walking because Michelle's younger sister, Litisha, had his bike. Defendant stated that while on his way home his brother and George Huggins picked him up in his mother's car, a blue AMC Pacer. After arriving home, defendant's brother got out of the car and defendant drove Huggins home. After arriving at Huggins' residence, Huggins went into the house. Huggins returned five minutes later and asked defendant if he wanted to go get some pizza and defendant said yes. While driving to get pizza, defendant was stopped by the police. Defendant admitted running from the police after the second police car arrived but said he did so because he was afraid his brother's driving permit would not check out. Defendant testified that he did not see any camera or film between the front seats. Defendant turned himself into the police on June 18, 1984.
• 1 Defendant's first argument is that the State failed to prove his guilt beyond a reasonable doubt. Specifically, defendant argues that "assuming arguendo that the permissive inference arising from the unexplained possession of recent stolen property" applies, the State failed to present any corroborating evidence that he committed the burglary and failed to exclude every reasonable hypothesis of innocence.
While exclusive and unexplained possession of recently stolen property is insufficient, standing alone, to prove burglary beyond a reasonable doubt, it may be used with other corroborating evidence of guilt to support a conviction. (People v. Jones (1985), 105 Ill.2d 342; People v. Housby (1981), 84 Ill.2d 415, cert. denied (1981), 454 U.S. 845, 70 L.Ed.2d 131, 102 S.Ct. 160.) Further, when the evidence of defendant's guilt is entirely circumstantial, as in the present case, the facts proved must be consistent with defendant's guilt and inconsistent with any reasonable hypothesis of innocence. People v. Evans (1981), 87 Ill.2d 77, 83.
• 2 In the present case the State did present corroborating evidence. First, Allman, Webb and Carner each observed two black males dressed in dark clothing in the area at the time of the burglary, and Webb saw the two men driving a blue AMC car. While none of the witnesses could positively identify defendant as one of the men they saw, defendant was stopped an hour later with Huggins in a blue AMC Pacer, and both men were wearing dark clothing similar to that described in detail by Carner. Second, the gloves found in defendant's car were of the type that would leave a pattern of dots such as those found on the ashtray and microwave oven. Third, defendant admitted that he fled from the police when stopped by the police just over an hour after the burglary was committed. Defendant's flight tends to show his consciousness of guilt (People v. Terrell (1984), 99 Ill.2d 427, 433; People v. Harris (1972), 52 Ill.2d 558, 561), and is corroborative evidence to support his conviction under Housby (People v. Mallette (1985), 131 Ill. App.3d 67; People v. Moore (1981), 98 Ill. App.3d 507). Fourth, the fact that defendant presented an explanation of possession that the jury reasonably found to be false is also corroborating evidence. People v. Housby (1981), 84 Ill.2d 415, 430.
As to excluding every reasonable hypothesis of innocence, defendant testified at trial that he was at a friend's house at the time of the burglary and that he was picked up by his brother and Huggins in the blue AMC Pacer as he was walking home later. Defendant's story, if believed, would imply that his brother and Huggins committed the burglary and that he was an innocent victim of circumstance when he later got into the car. The fact that defendant fled from the police when he was later stopped, however, tends to show a consciousness of guilt (People v. Terrell (1984), 99 Ill.2d 427, 433; People v. Harris (1972), 52 Ill.2d 558, 561), which contradicts his account of events. Defendant argues that he fled because he did not have a valid driver's license, but the jury was free to disregard his explanation in light of the fact that defendant did not flee immediately, but, instead, attempted to use his brother's driving permit and fled only after a second police car arrived, indicating to him that the police suspected him in a more serious offense.
• 3 Defendant's second argument is that the residential burglary statute (Ill. Rev. Stat. 1983, ch. 38, par. 19-3) and its related sentencing provisions (Ill. Rev. Stat. 1983, ch. 38, pars. 1005-5-3(c)(2), 1005-8-1(a)(4)) are unconstitutional. However, since the time defendant filed his brief, our supreme court has upheld the validity of the residential burglary statute and its related sentencing provisions (People v. Bales ...