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06/26/87 the People of the State of v. Gambino Ybarra

June 26, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GAMBINO YBARRA, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

510 N.E.2d 122, 156 Ill. App. 3d 996, 109 Ill. Dec. 501 1987.IL.904

Appeal from the Circuit Court of Kane County; the Hon. Barry E. Puklin, Judge, presiding.

APPELLATE Judges:

JUSTICE UNVERZAGT delivered the opinion of the court. REINHARD and INGLIS, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE UNVERZAGT

The defendant, Gambino Ybarra, appeals from his conviction for residential burglary by a jury in the circuit court of Kane County. (Ill. Rev. Stat. 1983, ch. 38, par. 19-3.) He was initially found unfit to stand trial, and trial did not commence until he attained fitness, more than a year after the offense. He contends the State failed to prove beyond a reasonable doubt his intent to commit residential burglary.

Nicholas Sabadosh, the burglary victim, testified that he left his rented farmhouse residence on June 29, 1984, at approximately 7:45 a.m. The house is located in Elgin, Kane County, a few hundred feet from Route 72, between Gilberts and Dundee. He related that the doors of the house were locked, and that probably the upstairs windows and a kitchen window, protected by screens, were unlocked. A couple of the double-hung windows in the house were held closed by small nails. His two cats "had the run of the downstairs." He gave no one permission to enter the house in his absence.

When he returned at approximately 6 p.m., he noticed curtains fluttering through a rear window, which was one of the windows that had been held by two nails, and which he never opened. It was the window of a room in which he stored odds and ends. As he walked closer to the rear door, he saw two bags near the door which contained mostly paper refuse, paper cups and food containers. He saw no one in the room, so he entered the house and began a search of that room and the house. He testified the room contained "a disorganized clutter of various [of his] possessions; papers, stacks of magazines; a few boxes of various objects [in a state of disarray he] had been intending to reorganize for quite a while." The closet also contained various possessions of his which were likewise disorganized.

Thinking that the intruder might be in the basement, he opened the door, and the cats came out of the basement. He noticed dusty footprints on the mats at the top of the stairs coming out of the basement that were not his. When he left the house that morning, the basement door was closed, and it was closed when he returned home that evening. In relation to the storage room, the top of the basement stairs was about 30 feet away through the central room to the corner of the kitchen and out onto the enclosed porch. He did not notice any other footprints. Sabadosh identified the defendant in court as the man he saw in custody in the sheriff's police car at the house of his neighbor, Scott Kolbaba. Sabadosh stated that he did not know the defendant. Sabadosh also testified he did not have a crowbar inside his residence when he left home that morning.

On cross-examination, Sabadosh stated that as far as he could tell nothing had been disturbed, and neither the TV, radio, nor jewelry or anything of that nature had been moved, only the cats. None of the items in the bags found near the back door were his. The nails that had been holding the window closed were bent back and covered by the portion of the window which had been slid up. He stated neither the window nor the glass had been damaged. On redirect, he stated there was no way the cats could have opened the basement door. Further, he stated that because of the disarray of the room, it would be very hard for him to ascertain whether anything had been moved. As far as he could see, nothing had been taken, and no item of value had been moved.

Scott Kolbaba, Sabadosh's neighbor, testified he returned from work at approximately 5:30 p.m. on the day in question. Kolbaba noticed a window curtain fluttering in the wind at Sabadosh's house. Kolbaba parked his motorcycle at his own house and proceeded to investigate. At Sabadosh's house, Kolbaba ducked his head in through the open window and observed a man standing in the closet inside the house. The man was "rummaging through some of the items on the shelves in the closet." Kolbaba estimated that he stood approximately eight feet from him. Kolbaba told the man to get out of there; he asked him to step outside and they would go to his house. The defendant was identified in court by Kolbaba as the man he saw in Sabadosh's house.

Kolbaba testified the defendant had a two-foot long metal bar wrapped in paper with a rope attached to it which he carried inside his pants. Kolbaba told him he would hang on to the bar while the defendant stepped outside through the window. When he first stuck his head in through the window, Kolbaba said he noticed something stacked up on the floor inside the window; he could not recall what type of items they were.

The defendant walked with Kolbaba to Kolbaba's house where Kolbaba asked his wife, while the defendant stood approximately 15 feet away, to call the police. The police arrived approximately 15 minutes later. Kolbaba noted that during this time, the defendant did not have to be physically restrained; Kolbaba handed the defendant a pencil and paper and had him draw down the instructions and the location where he would be. Kolbaba turned the metal bar over to police when they arrived. Sabadosh arrived approximately 35 to 45 minutes after the police.

On cross-examination, Kolbaba testified the defendant did not threaten him with the metal bar, and he did not attempt to run as they left Sabadosh's house and walked to Kolbaba's. He did not know who stacked the items near the window. On redirect, Kolbaba stated he was not familiar with the contents of the room, and ...


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