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10/05/87 the People of the State of v. Kelvin Jerome Houston

October 5, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

KELVIN JEROME HOUSTON, APPELLEE



SUPREME COURT OF ILLINOIS

514 N.E.2d 989, 118 Ill. 2d 194, 113 Ill. Dec. 77 1987.IL.1496

Appeal from the Appellate Court for the Fourth District; heard in the court on appeal from the Circuit Court of Macon County, the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE SIMON delivered the opinion of the court. JUSTICE CUNNINGHAM took no part in the consideration or decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SIMON

Defendant Kelvin Jerome Houston was convicted in the circuit court of Macon County of theft over $300 (Ill. Rev. Stat. 1983, ch. 38, par. 16-1) and was originally sentenced to probation for one year. Subsequently, several motions to revoke his probation were filed against him. The motion at issue here charged the defendant with burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-1) and theft by knowingly exerting unauthorized control over property with the intent to permanently deprive the owner (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(a)(1)). The trial Judge decided that the charge was proved, revoked the defendant's probation, and sentenced him to a term of 30 months' imprisonment. The appellate court, with one Justice Dissenting, reversed (146 Ill. App. 3d 982), and we granted the State's petition for leave to appeal (107 Ill. 2d R. 315).

Defendant, accompanied by Keith Box and one or two other men, visited the premises of Sun Control in Decatur on Friday, July 19, 1985, shortly before closing time. Mark Kaylor, an employee of the store, testified that Keith inquired about automobile window tint and sunroofs while the others stood by listening. Kaylor was in the office the entire time the men were present and stated that at no time did any of them handle the two sunroofs that were on display. The office is not large, and Kaylor was able to keep an eye on the roofs while talking to Keith. The defendant was four to five feet from the sunroofs during the Discussion between Kaylor and Keith. Although everything was in order when Sun Control closed that evening, when the store owner arrived at 8 the next morning, a window had been broken out and the two display sunroofs and a box of window tint were missing. Two months after the burglary the store owner observed Keith with what appeared to be some of the stolen tint on his car windows.

James Box, Keith's brother, testified that he saw the sunroofs at another person's house on the Wednesday following the burglary, that the defendant had them wrapped in towels, and that the defendant offered to sell them to him for $50. Keith was also present at the time. James denied telling a police detective that he had never seen the sunroofs or that he saw them only earlier in the week, on Saturday or Sunday.

Keith's girlfriend, Teresa Scheuster, testified under a grant of immunity. She said that on July 19 at around 5:30 p.m., she had driven to Springfield along with the defendant, Keith and another woman and returned the following morning about 2:15. She first dropped the defendant at his apartment, and then let Keith off. Around 5 or 6 o'clock on the afternoon of the 20th, she saw the defendant and Keith at a park. Keith opened the trunk of his car, and the defendant showed her two sunroofs covered with towels. The defendant asked her if she wanted one as a gift, and she declined. On July 26, Scheuster and Keith went to a third person's house, and Keith came out carrying the sunroofs and put them in the trunk of his car. He then took them to his brother James' house. The defendant was present when the roofs were placed in James' house. The following day, July 27, Keith removed them from his brother's home and put them in the trunk of Scheuster's car. Keith and Scheuster then picked up the defendant, and shortly thereafter, the police stopped the car. Although she hid the trunk key on Keith's orders, Scheuster allowed them to search the car, and the sunroofs were discovered.

Following his arrest, the defendant told Detective George Lebo that he did not know anything about the property in the car, but admitted he had looked at some sunroofs at Sun Control a week or so earlier. He denied ever handling or touching the roofs at Sun Control. Lebo, however, matched a thumbprint on the larger sunroof to the defendant. Lebo had also interviewed James Box. James told him that he had never seen the sunroofs, but indicated that on Saturday or Sunday afternoon of the prior week, the defendant had discussed the roofs with him.

Another police officer also interviewed the defendant later on July 27. The defendant told him that he had talked to Keith Box and wanted to revise the statement he gave to Detective Lebo because he recalled that he had handled the sunroofs and that he and Keith had passed them back and forth while they were at Sun Control on July 19. This revised statement was made before the officer confronted him with the thumbprint.

The defendant testified that he had handled the sunroofs when he, Keith and another man went to Sun Control on July 19. He had returned from Springfield at 3 or 4 a.m. on the 20th and went to bed. He denied committing the burglary or attempting to sell or give away the sunroofs. At the Conclusion of the defendant's testimony, the trial Judge found that the charge had been proved by a preponderance of the evidence.

The appellate court believed that this court's decision in People v. Housby (1981), 84 Ill. 2d 415, required reversal of the trial court's finding. Housby formulated a three-part test for determining whether an instruction, which advised the jury in a burglary case that the defendant's guilt could be inferred from his exclusive and unexplained possession of recently stolen property, violated the due process clause of the United States Constitution. The point of the Housby test is to ensure that an instruction does not permit the jury in a criminal case to infer the defendant's guilt of burglary from circumstances which do not warrant such an inference. (People v. Richardson (1984), 104 Ill. 2d 8, 12.) The presumption "must not undermine the factfinder's responsibility at trial, based on the evidence adduced by the State, to find the ultimate facts beyond a reasonable doubt." County Court v. Allen (1979), 442 U.S. 140, 156, 60 L. Ed. 2d 777, 791, 99 S. Ct. 2213, 2224.

Apart from the fact that the standard of proof is lower in a probation revocation proceeding -- making it unlikely that the Housby factors could be imported without change into this context -- nothing in the record here suggests a Housby -type due process concern. There was, of course, no jury instruction in this proceeding tried by a Judge. Nor is there anything to show that the Judge inferred the offenses merely from the defendant's possession of the sunroofs. To the contrary, when the defendant requested a directed verdict on the basis that, under Housby, mere possession of recently ...


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