Appeal from the Circuit Court of Lake County; the Hon. Charles
F. Scott, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendants, Frank Obrochta and Paul Koroluk, were charged by indictment with the offenses of burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a)), possession of burglary tools (Ill. Rev. Stat. 1985, ch. 38, par. 19-2(a)), and theft exceeding $300 (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(a)(1)). Following a jury trial, Obrochta was found guilty of all three offenses, and Koroluk was found guilty of burglary and possession of burglary tools. The trial court had previously directed a finding of not guilty for Koroluk on the theft charge and had directed findings of not guilty for a co-defendant, Richard Zuniga, on all charges against him. Obrochta was sentenced to a five-year term of imprisonment for burglary, and Koroluk was sentenced to a two-year term of probation for burglary. The record reveals that no sentences were imposed on the judgments entered on the remaining jury verdicts against both defendants as these were dismissed as lesser included offenses.
The defendants bring this consolidated appeal and raise the following issues: (1) that both defendants were not proved guilty beyond a reasonable doubt of burglary; (2) that defendant Obrochta was not proved guilty beyond a reasonable doubt of theft; (3) that defendant Koroluk was not proved guilty beyond a reasonable doubt of possession of burglary tools; and (4) that evidence of a radio scanner being found during the arrest of Obrochta which was not admitted into evidence and was stricken by the trial court was still heard by the jury and denied both defendants a fair trial.
The State's evidence reveals that at 12:30 p.m. on March 11, 1985, Cindy Levy saw a car pull into the driveway of her home, which is located in an isolated cul-de-sac in Bannockburn. A man, whom she later identified as defendant Obrochta, rang the doorbell and asked for directions to Wilmot Road. Being suspicious, Levy called the police to report the occurrence, describing the car to Chief of Police Thomas Potter and providing a partial license-plate description. She testified that there were three or four men in the car.
After receiving Levy's telephone call, Bannockburn police chief Potter looked out his office window and saw a car coming from the direction of Levy's house, which is about two-tenths of a mile from his office, that he believed matched the description. Potter followed the car in his squad car, losing sight of it for only a brief time. He spotted the car again driving toward him on a no-outlet road. He pulled alongside and asked the driver what he was doing. The driver asked for directions to Telegraph Road, and Potter asked him to pull over. Potter testified that he believed there were four men in the car. The car accelerated and fled while Potter was making a radio report and pulling over to the side of the road. He pursued the car into Deerfield. After losing sight of the car for a few seconds, he saw the car pulling away from a curb. Potter proceeded to stop the car. Zuniga, the driver and only occupant of the car at this time, denied that other people had been in the car and stated that he had fled because he did not think he had a driver's license. Potter radioed police departments in other communities, including Deerfield, that three subjects had fled the car.
At approximately 1:30 p.m. that afternoon, In-grid Kube looked out of her family-room patio doors in Deerfield and saw a man, whom she later identified as the defendant Koroluk, standing at the side door of her unattached garage about 10 to 12 feet away. Kube asked Koroluk what he was doing, and through the closed patio doors, it appeared he mouthed the word "nothing." She noticed that he talked into the garage and that the side door of the garage was slightly open. Obrochta, whom she later identified as the second man, stepped out through the garage door, and both men ran away, giving her a chance to observe the side of Obrochta's face. Kube then called the police. She described one white male, Koroluk, as being approximately 200 pounds and wearing a black jacket. She described another white male, Obrochta, as being approximately 145 pounds, wearing a blue jacket and jeans and clutching a blue tote or athletic bag to his chest. Her garage door was closed, and the side door had also been closed but not locked. The garage contained tools and bicycles. Nothing was taken from the garage.
After receiving Kube's call, Deerfield police officer David Ebert went to Kube's home, interviewed Kube, and received a description of the two men. He put out a radio broadcast to other Deerfield police officers to look for the two subjects. He then received a broadcast from Officer Kenneth Anderson that he had seen the two suspects running through the front yard of a home on an adjacent street. Ebert drove there and saw Anderson chasing the two suspects on foot. Ebert then pursued the man in the blue jacket, who was carrying a blue bag and whom Ebert identified as Obrochta. He saw the other person, Koroluk, throw gloves on the roof of a house. Ebert lost sight of Obrochta during this pursuit. When Ebert saw him again, Obrochta was not carrying any bag. He again lost sight of Obrochta. Mr. Blevins, a resident of the neighborhood, then led Ebert to his yard where Ebert found Obrochta in the storage shed behind the home. Later, a scanner radio receiver was found inside the shed which was turned to the Deerfield police department frequency.
Officer Anderson testified that in responding to Ebert's radio call, he saw two subjects running between houses in the area of the Kube home. Both persons were carrying something. He chased the one, later identified by him as Koroluk, and took him into custody. He recovered gloves on a roof immediately adjacent to where he arrested Koroluk. Anderson then retraced the route which Obrochta had run and found a blue gym bag containing, among other things, walkie-talkies, a radio-frequency book, two screwdrivers, several pairs of pliers, several pairs of gloves, spray lubricant, a lock pick, and a lock cylinder drill. The two walkie-talkies were Motorola Model MT-500 portable two-way radios. A forensic scientist for the Northern Illinois Police Crime Laboratory testified that a fingerprint on a page of the radio-frequency book found in the blue gym bag discarded by Obrochta compared with that of the left index finger of Koroluk.
A State witness, Frank W. Hauser, stadium manager of Soldier Field, testified that on June 3, 1984, 10 Motorola two-way radios were discovered to be missing from his office in Soldier Field in Chicago. He identified the two Motorola two-way radios found in the blue gym bag as two of the missing radios. Neither defendant offered any evidence in his defense.
• 1 The defendants' first contention is that the State failed to prove them guilty beyond a reasonable doubt of burglary. Essentially, Koroluk argues that there was no proof that he ever entered the garage, and both the defendants maintain that there is no proof that the entry made by Obrochta was with the intent to commit a burglary. Instead, they point out that it is obvious that Obrochta entered the garage to hide from the police and nothing therein was disturbed or taken. They contend that a case such as this, based upon circumstantial evidence, must be of such a nature as to exclude any reasonable hypothesis of innocence. The State responds by arguing that the intent to commit a theft may be shown by circumstantial evidence and the fact that Koroluk was standing outside the garage in plain view shows that he was a lookout and is inconsistent with the claim that the garage was used as a hiding place. Additionally, the State relies on the proof of the unlawful entry as an inference of guilt sufficient to sustain a conviction for burglary. The State also maintains that the defendants' flight from the garage shows a consciousness of guilt.
The burglary statute requires an entry or a remaining within a building without authority with the intent to commit a felony or theft. (Ill. Rev. Stat. 1985, ch. 38, par. 19-1(a); People v. Weaver (1968), 41 Ill.2d 434, 438-39, 243 N.E.2d 245; People v. Racanelli (1985), 132 Ill. App.3d 124, 134, 476 N.E.2d 1179.) The intent to commit a felony or theft ordinarily may be established circumstantially (People v. Davis (1982), 106 Ill. App.3d 260, 267, 435 N.E.2d 838); however, the felonious intent must still be proved beyond a reasonable doubt (In re Velez (1979), 75 Ill. App.3d 399, 400, 394 N.E.2d 525). In the absence of inconsistent circumstances, proof of unlawful breaking and entering is sufficient to infer the intent to commit theft. People v. Toolate (1984), 101 Ill.2d 301, 308, 461 N.E.2d 987.
• 2 We believe that under the particular facts present here, the State has failed to prove the requisite intent to commit a theft inside the Kube garage as charged. The circumstances preceding Obrochta's entry into the garage and Koroluk's presence outside the garage are inconsistent with an intent to commit theft and are insufficient to infer such an intent. While the evidence may indicate that the defendants may have intended to commit a burglary earlier that afternoon, as shown by their possession of burglary tools and sophisticated communication and detection equipment along with the apparent "casing" of the Levy home in Bannockburn, the State has not shown the requisite intent to commit a burglary of the Kube garage in nearby Deerfield.
It is evident that at approximately 12:30 p.m., once Bannockburn police chief Potter began following the vehicle described to him by Mrs. Levy, who saw Obrochta enter the car after leaving her house, any immediate plans for a burglary went awry. The car sped away after it had been briefly pulled over. A chase began which led to the community of Deerfield. During the chase, the car temporarily eluded Chief Potter, and, once pulled to the curb, the other three occupants had fled, leaving only the driver, Zuniga. A short while later, at approximately 1:30 p.m., Mrs. Kube observed Koroluk standing at the side door of her garage. Once noticed, Koroluk called to Obrochta, who was inside the garage, and both fled. Nothing was taken from the garage, nor did the State offer evidence that anything inside had been disturbed.
As to Obrochta, his mere presence in the garage, in the light of the facts referred to above, is inconsistent with a felonious intent to enter the garage to commit a theft. The evidence shows he is one of those who had fled the vehicle during the chase by the police. Only a short time had elapsed between the time he was seen at the Levy house at 12:30 and when, following the chase, he was observed by Kube at 1:30 p.m. It is unreasonable to infer that he formed an intent to commit a burglary, let alone a garage burglary, while running on foot from the police in a neighboring community. He ...