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04/10/87 the People of the State of v. Larry Purnell

April 10, 1987





507 N.E.2d 195, 154 Ill. App. 3d 220, 107 Ill. Dec. 531 1987.IL.475

Appeal from the Circuit Court of Cook County; the Hon. Thomas A. Hett, Judge, presiding.


JUSTICE PINCHAM delivered the opinion of the court. SULLIVAN, P.J., and LORENZ, J., concur.


The defendant, Larry Purnell, was charged in a four-count information with having on January 14, 1982, in Cook County, Illinois, committed the offenses of (1) "residential burglary in that he knowingly and without authority, entered the dwelling of Judith Leidolf with the intent to commit therein a theft, in violation of chapter 38, Section 19-3(a) Illinois Revised Statutes"; (2) "aggravated battery in that he intentionally and knowingly without legal justification caused bodily harm to D. De Vogelear, a peace officer . . . in violation of Chapter 38, Section 12-4(a)(6) Illinois Revised Statutes"; (3) "unlawful use of weapons, in that he, knowingly carried concealed on and about his person . . . a gun . . . in violation of Chapter 38, Section 24-1(a-4) Illinois Revised Statutes"; and (4) "armed violence in that he, while armed . . . entered the dwelling place of Judith Leidolf and Richard Leidolf with intent to commit therein a theft in violation of Chapter 38, Section 33A-2 Illinois Revised Statutes." (Emphasis added.) Following a bench trial, the trial court found the defendant not guilty of aggravated battery, unlawful use of weapons, and armed violence and guilty of attempted burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 8-4.) The defendant was sentenced to four years' imprisonment. *fn1 The defendant contends on this appeal that his conviction for attempted burglary must be reversed because the evidence failed to prove beyond a reasonable doubt that he attempted to enter the Leidolf dwelling "with the intent to commit therein a theft."

The testimony of Judith Leidolf and her 17-year-old daughter, Margaret, was substantially similar. Judith testified that on January 14, 1982, the Leidolf family resided at 4613 North Damen in the first-floor apartment of a two-story building that was located behind a store. There were six stairs outside the Leidolf residence which led to the front entrance of the apartment. At 9 a.m. Judith was talking on the telephone to her husband when Margaret opened the front door, entered the apartment, and closed the door. Margaret did not lock the door after she closed it. Margaret proceeded past Judith into the dining room. The front door opened, Judith hollered to Margaret and her husband that "someone [is] coming into the apartment." The Leidolf's dog barked and the door closed. Margaret ran to the front door and opened it while Judith called the police.

After Margaret opened the door in response to her mother's scream, Margaret observed the back of a man dressed in a maroon and gray jacket and dark pants walking down the stairs from their apartment. Margaret then called her brother Richard from his bedroom. Richard, Margaret, and their dog followed the man until Richard stopped a policeman in a squad car.

Richard Leidolf, who was 19 years old, testified that at 9 a.m. on January 14, 1982, he was in his bedroom when he overheard his mother tell his sister "something about the door opening and somebody being there." Margaret Leidolf called Richard from his room, they left their residence with their dog and followed the defendant, who was a half block from their house, until Richard stopped Officer David DeVogelear in a squad car. Richard entered the squad car and the policeman pursued defendant 1 1/2 blocks to Damen and Giddings, where they apprehended him. The officer searched defendant, who had his hands on the roof of the squad car. Defendant struck the policeman in the face and caused him to stumble. Defendant then fled. Richard and the officer chased defendant together, then separated. Subsequently, the officer apprehended defendant and transported him to the station.

Defendant testified that at 9 a.m. on January 14, 1982, he walked from the 4600 block of North Damen to the public aid office located in the 2100 block of Lawrence. A police officer in a squad car stopped defendant and ordered him to place his hands on the vehicle. When defendant complied with the officer's orders, the policeman frisked him. Defendant turned and questioned the policeman, who replied, "Turn around and shutup." The officer grabbed defendant's right arm, bent it behind his back, and reached for his handcuffs. The defendant turned, the officer shoved him and caused him to strike his chin against the squad car. Defendant spun around and the officer fell to the ground. Defendant fled because he feared that a warrant had been issued for his arrest for having failed to report to his parole agent in two months. Defendant denied that he had entered complainant's apartment or had been at 4613 North Damen. He added that at the time of his arrest he wore a maroon and white colored jacket.

At the close of defendant's case, the State presented certified copies of his two convictions for theft in 1980.

In finding the defendant guilty of attempted burglary, the trial court stated:

"s to the residential burglary. First of all, the testimony in connection with the type of building and everything like that leads me to believe that it is not an open and shut matter as to whether or not this is a residential or some other type of a dwelling. On top of that, there is a problem as to whether or not there was an entry made.

The doorway is open, and that it opens all the way does not necessarily mean that there has been some type of entry. . . . So that merely putting your hand on a doorknob would be sufficient to make an entry, but it does appear that there ...

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