Appeal from the Circuit Court of St. Clair County; the Hon.
Richard Hudlin IV, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant, Jesse Hall, Jr., was convicted following a jury trial of the offense of theft (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(a)(1)) and sentenced to a term of two years' imprisonment in the Department of Corrections. The indictment against the defendant alleged that the defendant had committed the theft of Polaroid film, having a value of less than $300, from K-Mart, Inc., and that the defendant had been convicted of a prior theft in Missouri less than four months earlier. Evidence concerning this prior theft was excluded from trial pursuant to the defendant's motion in limine but was later introduced by the State upon sentencing to enhance the theft conviction to a Class 4 felony (See Ill. Rev. Stat. 1985, ch. 38, par. 16-1(e)(1)). On appeal the defendant contends that he was not proved guilty of felony theft because of the State's failure to introduce evidence of the prior theft conviction at trial. In addition, the defendant contends that the State's proof of the prior conviction at the sentencing hearing failed to show beyond a reasonable doubt that he was the same person who had been convicted of the prior offense. The defendant contends finally that the use of a Missouri conviction to enhance his theft conviction to a felony was improper under section 16-1(e)(1). We affirm.
The indictment in the instant case alleged that the defendant, on April 27, 1985, committed the offense of theft in St. Clair County, Illinois, and that the defendant had previously been convicted of theft under the Missouri Revised Statutes on January 8, 1985. Prior to trial the defendant filed a pro se motion complaining that the allegation of the prior conviction in the indictment was prejudicial and should not be presented to the jury. Subsequently, the defense counsel filed a motion in limine seeking "to limit the State from introducing any and all evidence regarding * * *:
1. Any and all prior convictions of the defendant.
2. Any and all alleged acts of criminal conduct that [were] not alleged in the actual indictment * * * being tried.
3. Any mention of any prior criminal activity which, would severely prejudice the defendant in the eyes of the jury."
At hearing on the motion in limine the defendant, by his counsel, argued that all of the defendant's prior convictions should be excluded from trial. The defendant additionally requested that no conviction be used by the State to attack the defendant's credibility "without proof beyond a reasonable doubt that this is the defendant that was convicted." The trial court granted the defendant's motion to exclude evidence of the defendant's prior convictions, with the exception of one conviction that was not theft-related, which the court ruled could be used for impeachment purposes if the defendant chose to testify on his own behalf.
Following trial before a jury, the defendant was found guilty of theft. The defendant filed a post-trial motion in which he argued that the State had failed to prove that he had a prior theft conviction. The trial court noted the defendant's previous argument to exclude such evidence of prior convictions because it would prejudice him before the jury. The court ruled that evidence of the prior convictions would be properly introduced at the sentencing hearing and denied the defendant's motion for a new trial.
At sentencing the State introduced certified copies of the defendant's prior convictions bearing the same name as the defendant. Patrick Watkins, the presentence investigator who had conducted the investigation of the defendant, testified that he had obtained the defendant's fingerprints from the St. Clair County sheriff's department and, after the request to the F.B.I., had received information matching the fingerprints with those of the defendant in the cases described in the certified copies. The State introduced evidence of two prior theft convictions of the defendant in the State of Missouri, and, on the basis of these convictions, the court sentenced the defendant to a term of two years' imprisonment for a Class 4 felony.
On appeal from his conviction and sentence the defendant contends initially that since no evidence of a prior theft conviction was presented to the jury at trial, the State failed to prove him guilty beyond a reasonable doubt. The State counters that the defendant is estopped from making such an argument on appeal because of his pretrial motion to exclude evidence of prior convictions at trial and that, in any event, it was proper to introduce evidence of the defendant's prior conviction at the sentencing hearing.
The issue of whether proof of a prior conviction used to enhance a misdemeanor offense to a felony must be introduced at trial or at the sentencing hearing has been the subject of some confusion following the supreme court's decisions in People v. Hayes (1981), 87 Ill.2d 95, 429 N.E.2d 490, and People v. Palmer (1984), 104 Ill.2d 340, 472 N.E.2d 795. While in People v. Hayes the supreme court ruled that proof of a prior conviction for the purpose of enhancing a misdemeanor retail theft offense to a felony was a matter for the sentencing court, in People v. Palmer the court held, in the context of an unlawful-weapons charge, that it was necessary to allege and prove the prior conviction at trial in order to establish the felony offense of unlawful use of weapons. As stated in People v. Rice (1985), 137 Ill. App.3d 285, 287, 484 N.E.2d 514, 515, a case involving a retail-theft offense,
"Palmer indicates that when a prior conviction changes the nature of an offense from a misdemeanor to a felony, rather than enhances a sentence, proof of the prior conviction is a required element of the State's case and must be proved prior to a finding of guilt or innocence. Therefore, in order to secure a felony conviction for retail theft, the State must prove a prior retail theft conviction prior to a finding of guilt or innocence."
Other appellate court decisions after Palmer, however, have distinguished Palmer as inapplicable to the offense of retail theft, holding under Hayes, that a prior retail-theft conviction was properly introduced at sentencing to enhance misdemeanor retail theft to a felony. (See People v. Vaughn (1985), 136 Ill. App.3d 342, 483 N.E.2d 417; People v. Flatt (1985), 136 Ill. App.3d 881, 483 N.E.2d 1304; see also People v. Davis (1985), 140 Ill. App.3d 265, 488 N.E.2d 554.) Courts upholding convictions for felony retail theft on the basis of a prior conviction proved at sentencing have, additionally, noted the prejudice resulting to the accused if proof of the prior conviction is required at trial. (People v. Roberts (1985), 136 Ill. App.3d 863, 483 N.E.2d 1328; People v. Flatt (1985), 136 Ill. App.3d 881, 483 N.E.2d 1304; People v. Price (1984), 127 Ill. App.3d 1, 468 N.E.2d 412.) Finally, courts have refused to reverse felony-theft convictions for failure to prove a prior theft conviction at trial where the defendant has agreed prior to trial that it would be too prejudicial to present such evidence to the jury but then has sought to overturn his conviction for lack of such proof. People v. Roberts (1985), 136 Ill. App.3d 863, 483 N.E.2d 1328; People v. Flatt (1985), 136 Ill. App.3d 881, 483 N.E.2d 1304; see also People v. Rice (1985), 137 Ill. App.3d 285, 484 N.E.2d 514 (court found waiver of issue of failure to prove prior conviction at trial where defendant did not raise issue in motion for directed verdict and acquiesced in State's procedure of proving the prior conviction at sentencing).
• 1, 2 In the instant case we find likewise, that the defendant has agreed to and, indeed, has invited any error resulting from the State's failure to prove the prior conviction at trial so as to be estopped from raising such an issue on appeal. It is well established that a defendant cannot complain of error which was acquiesced in or invited by him or his counsel. (People v. Davis (1985), 140 Ill. App.3d 265, 488 N.E.2d 554; People v. Benka (1983), 117 Ill. App.3d 221, 453 N.E.2d 71.) The defendant, by his pretrial motion in limine, sought to exclude all evidence regarding "any and all prior convictions of the defendant," arguing in his pro se motion that the allegation of the prior conviction contained in the indictment was prejudicial and should not be presented to the jury. The defendant did not alter his request at the hearing on the motion in limine but merely sought to require further that any convictions used by the State to attack his credibility be proved beyond a reasonable doubt. The defendant should not be ...