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People v. Sehr

OPINION FILED DECEMBER 1, 1986.

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

v.

TIMOTHY D. SEHR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County; the Hon. Edward W. Kowal, Judge, presiding.

JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The defendant, Timothy D. Sehr, was charged by information filed in the circuit court of Du Page County on February 11, 1985, with the residential burglary of the dwelling place of Albert Jagiello located at 192 Plum Grove Road, Roselle. Following a bench trial, he was convicted and sentenced to a four-year term in the Department of Corrections. He appeals, contending the State's evidence was insufficient to prove him guilty beyond a reasonable doubt.

The complaining witness, Albert Jagiello, testified that on January 18, 1985, at about 1:15 a.m., he was asleep in the master bedroom of his seven-room ranch-style home when he was awakened by noises. Theorizing that the sounds were caused by his wife's return home from a party, he disregarded them and tried to return to sleep. He then heard someone walking toward his bedroom. Jagiello testified he saw a light in a bedroom across the hall go on and then off. Next, someone walked 8 to 10 feet into his bedroom and flicked on a cigarette lighter. Jagiello yelled, and the person ran from the room with Jagiello in pursuit.

Jagiello testified that he caught up with the person, whom he identified in court as the defendant, near the stairs leading to the basement. Jagiello did not know the defendant. Seizing him, he demanded, "What are you doing here?" to which the defendant replied, "Your daughter let me in and she is standing behind you." Although Jagiello has no daughter, he responded to the defendant's remark by turning around, at which time the defendant broke from his hold and departed down the basement steps. Jagiello then called the police. When the police arrived, Jagiello and the officers walked through the main floor of the single-story residence and the basement. Jagiello stated that nothing had been disturbed or taken from any part of the house, with the exception of a basement window, which had been broken and had a bent metal frame.

Roselle police officer Robert Thomas testified that about 1:15 a.m. on January 18, he reported to 192 Plum Grove Road to investigate a report of a break-in. Outside the house, he found a set of footprints in the snow leading toward a sliding door. The prints came from an open field west of the house. The prints continued from the sliding door to a basement window well. A second set of footprints went from the window well away from the house, in a northwesterly direction.

Thomas followed this second set of prints, which formed a continuous trail, for about 2 1/2 miles until he reached a backyard at 407 Locust Street, Roselle, where he discovered the defendant standing behind a shed. The defendant was arrested and taken to the Roselle police station by Officers Thomas, Dempsey and Briscoe. The defendant was asked to provide only his name, address, and date of birth. Officer Thomas testified that while they were enroute to the police station, the defendant asked why they were following him and why he was being arrested, stating that he had done nothing wrong.

When the defendant was booked, $621 in cash was found on his person. When asked why he was carrying that sum, the defendant explained that he had a court hearing set for that morning and had borrowed the money from his mother to use to pay the fine that had been ordered in a traffic case. An offer of proof was made that the defendant was scheduled to appear in court on January 18, 1985, and owed a $500 fine and court costs in connection with a traffic case.

Officer Thomas testified that the defendant gave his address as 406 White Oak, Roselle. Thomas said that the scene of the defendant's arrest at 407 Locust is about half a mile from the White Oak address. During trial, the defendant explained that his mother owns the house at 406 White Oak but rents the property out to another family. He testified that his mother did not live there in January 1985, and that the house on White Oak was not his destination when he left Jagiello's home.

Roselle police officer Robert Wiesman testified that he interviewed the defendant at about 2 a.m. after his arrest regarding the instant offense. After verbally giving the defendant his Miranda warnings, Officer Wiesman asked the defendant if he wanted to talk to him. The defendant said he did not know what the officer was referring to. Later, at about 4 a.m., the officer gave the defendant his Miranda rights again from a preprinted form which included a waiver of rights provision, which the defendant signed. The defendant related to Officer Wiesman that he did break into the house, but only because he wanted to find a place to sleep. He further told Wiesman that he thought he would check the house to see if anyone had heard him break the window. The defendant subsequently wrote out substantially the same statement and signed it, and it was admitted in evidence during trial.

The defendant testified that in November 1984, his car was broken down and he had no income, having been laid off from his regular employment as a carpenter. He further stated that he had broken up with his fiancee and left the home that they had shared. At the time of the instant offense in January 1985, he was living "all over,'" at no fixed address, spending the night with friends, at Union Station, in hotel or apartment-building lobbies and anywhere else that he could find shelter.

The defendant testified that prior to entering the Jagiello residence, he had been outside for 6 1/2 hours looking for a place to sleep. His testimony that the night in question was very cold and snowy was consistent with that of the police officers. The defendant stated he had traveled to the Roselle area with the hope of finding lodging for the night at a friend's home in Schaumburg. When he arrived at the friend's house, however, no one was home. He proceeded to Roselle to catch a train back to Chicago, but he found that he had missed the last one for the night. He later testified on cross-examination that he did not check to see if the station was open.

He testified he did not know if there was a laundromat or any other place in which to spend the night in Roselle, and that he was not familiar with the area around the Jagiello residence. As a result, at about 1 a.m., he was still walking around outside. He was dressed in a jumpsuit and hat.

The defendant testified his only intention in entering the Jagiello residence was to warm up and sleep. According to the defendant, he pulled on the basement window, and it came out but then accidentally fell in and broke. Fearing that the noise from the window may have awakened someone in the house, he went up the stairs to the main floor to check. Using a cigarette lighter for illumination, he walked through various rooms without touching anything and without turning on any house lights. When he came to the master bedroom, he flicked on his lighter, looked in and then began walking back toward the basement. As he approached the stairs, he stated he was grabbed from behind by Jagiello.

The defendant's account of his brief encounter with Jagiello in the house was essentially the same as Jagiello's. When he broke away from Jagiello, he ran down the stairs, climbed out the broken window and fled from the scene, heading back toward town. When the police officer found him he was standing ...


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