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01/26/87 the People of the State of v. Clifford Wayne Reynolds

January 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

CLIFFORD WAYNE REYNOLDS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

504 N.E.2d 163, 152 Ill. App. 3d 216, 105 Ill. Dec. 294 1987.IL.53

Appeal from the Circuit Court of Menard County; the Hon. Lyle E. Lipe, Judge, presiding.

APPELLATE Judges:

JUSTICE LUND delivered the opinion of the court. McCULLOUGH and KNECHT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND

The defendant, Clifford W. Reynolds, was found guilty at a trial by a Menard County jury of the offense of residential burglary. He was sentenced to six years in the Illinois Department of Corrections, and his bond was ordered applied to court costs and his court-appointed attorney's fees.

Defendant appeals contending: (1) he was not proved guilty beyond a reasonable doubt; (2) the circuit court erred in refusing to instruct the jury on the included offense of attempt (residential burglary); (3) the circuit court erred in refusing to instruct the jury with paragraph two of the circumstantial-evidence instruction; and (4) the circuit court erred in ordering the defendant's bond, posted by his brother, be used to pay attorney fees and the cost of an expert witness.

The alleged offense occurred on August 30, 1985, at the trailer of Vickey and Gary Gerdes located in rural Menard County. On that date, Gary Gerdes had gone to work earlier, and Vickey Gerdes left around 11 a.m., locking the door to the trailer. David Johnson, a neighbor, passed the Gerdes' trailer at approximately 11:30 a.m. He noticed a truck parked in front with the passenger door open. He stopped and wrote down the truck license plate number. Gary Gerdes returned between 4 and 4:30 p.m. finding the truck still parked in front of his trailer. He also discovered the front door of the trailer was open and called the police.

The police found that the front door had been kicked in, breaking the lock. There was a muddy shoeprint on the door. While there was no property missing, the television had been moved from the cabinet to the floor, and the VCR, with a remote control, had been placed on a dishwasher by the backdoor. Footprints were found leading from the backdoor to the woods. The Gerdes testified that they never used the backdoor.

The police found mail addressed to the defendant in the abandoned truck. The truck was registered in the name of the defendant's girlfriend. At approximately 5:45 p.m., the police stopped a vehicle being driven by the defendant's girlfriend in the crime area, and the defendant was a passenger. After being advised of his Miranda rights, the defendant admitted driving the truck, stating that it had overheated. He further admitted he had walked around the trailer but he then walked to town for help through the woods rather than go to a nearby house. His feet were muddy.

At the trial, two fingerprint experts testified that a fingerprint found on the Gerdes' VCR remote control was the right thumb fingerprint of the defendant. The Gerdes testified they did not know the defendant.

Defendant argues that he has not been proved guilty beyond a reasonable doubt because it is possible that the fingerprint found on the remote control might have been impressed at a time unrelated to the offense. Defendant cites People v. Rhodes (1981), 85 Ill. 2d 241, 249, 422 N.E.2d 605, 608, which held "[i]n order to sustain a conviction solely on fingerprint evidence, fingerprints corresponding to the fingerprints of the defendant must have been found in the immediate vicinity of the crime under such circumstances as to establish beyond a reasonable doubt that the fingerprints were impressed at the time the crime was committed."

The present case is not based solely on fingerprint evidence. There is ample other evidence, including the defendant's admissions, placing him at the scene. Even if the case had been based solely on the fingerprints, the prints were found under circumstances justifying a finding that the fingerprints were impressed at the time the crime was committed. The Gerdes testified the remote control had been moved during the time of the burglary, they had possessed the remote control for over three weeks, and they did not know the defendant. No other explanation for the defendant's fingerprint being found on the remote control was given. The evidence was sufficient to justify the guilty verdict.

Defendant next argues that error was committed by the court's refusal to instruct the jury on the lesser included offense of attempt (residential burglary). The principle is well established that a defendant may be entitled to have a jury instructed on a lesser included offense. (People v. Bryant (1986), 113 Ill. 2d 497, 502, 499 N.E.2d 413, 417.) However, to be appropriate, the evidence must permit a jury to rationally find defendant guilty of the lesser offense and acquit him of the greater. People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413; People v. Perez (1985), 108 Ill. 2d 70, 81, 483 N.E.2d 250, 255, cert. denied (1986), 474 U.S. 1110, 88 L. ...


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