APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
516 N.E.2d 401, 163 Ill. App. 3d 783, 114 Ill. Dec. 246 1987.IL.1536
Appeal from the Circuit Court of Cook County; the Hon. Fred Suria, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court.1 McNAMARA, P.J., and RIZZI, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
At trial, the only occurrence witness to testify for the State, Lela White, testified to the following: A. D. Smith was 73 years old in July 1983; she met him in 1944 and eventually became his common law wife; she and Smith had operated a candy store at 3515 South Wells in Chicago, Illinois, for 15 to 20 years; she had known defendant for about five or six years; on the morning of July 13, 1983, she let defendant into the store after he "buzzed" the store bell; defendant bought "a can of pop . . . and a bag of chips"; at that time Smith was sitting on a cot behind the heater in the dining room; defendant spoke with White and Smith for about half an hour and told them he was leaving for Minnesota that weekend and was not coming back; after defendant left the store, he came back five minutes later and buzzed the door again; when White let him in, he walked "into the dining room, into [the] living room, across the two beds," put the pistol on [her] and said, "'Give me that money'"; she then ran out the door, heard one shot as she was running and saw defendant run out the door and down the alley next to the building.
Defendant testified to substantially different events on the morning of July 13, 1983. He maintained that after spending about five minutes in the store, he went to his van, "ate [his] skins and drank [his] pop," and then caught the Dan Ryan elevated train to downtown Chicago. He specifically denied having shot Smith.
Defendant first contends his attempted armed robbery conviction should be reversed because the State did not prove he attempted to take any property from Smith as alleged in the indictment.
Defendant was indicted for attempted armed robbery in that he "attempted to take property from the person and presence of Smith by the use of force and by threatening the imminent use of force while armed with . . . a gun" in violation of sections 8-4, 18-1 and 18-2 of the Criminal Code of 1961. (Ill. Rev. Stat. 1981, ch. 38, pars. 8-4, 18-1, 18-2.) A person commits an attempt offense when, with the intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense. (Ill. Rev. Stat. 1981, ch. 38, par. 8-4(a).) Intent to commit the specific offense of attempted armed robbery may be inferred from the acts of the accused and the surrounding circumstances. (People v. Turner (1984), 127 Ill. App. 3d 784, 790, 469 N.E.2d 368.) A person commits armed robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force while he carries on or about his person, or is otherwise armed with, a dangerous weapon. (Ill. Rev. Stat. 1983, ch. 38, pars. 18-1, 18-2.) However, to sustain a robbery conviction on the basis of circumstantial evidence, the evidence must be conclusive and produce a reasonable and moral certainty that the offense charged was actually committed. People v. Ohle (1951), 408 Ill. 238, 242, 96 N.E.2d 476.
The evidence was sufficient to sustain defendant's conviction for the attempted armed robbery of Smith. White testified that Smith sat on a cot in the dining room of the living quarters behind the candy store because he could not see very well and was sick with diabetes. This testimony corroborated that of Officer Principato that Smith was very old, feeble and had a hard time walking. Moreover, she testified the living and dining rooms behind the store were "altogether [ sic ]." She further testified that when defendant returned to the store, she was sitting next to Smith and that when she opened the door for defendant he walked into the dining room, the living room, across two beds, "put" a pistol on her and said, "'Give me that money.'" Finally, White testified that when she ran out of the building Smith was still "sitting" and that she heard a shot as she was running.
White's testimony, as circumstantial evidence, was insufficient to produce a reasonable and moral certainty that defendant attempted to rob Smith after White ran out of the building. However, it was sufficient to produce that certainty of an attempted armed robbery of Smith at the time defendant put the gun on White and demanded money from her. Specifically, White's testimony that: (1) the rooms were all together; (2) Smith was still sitting on the dining room cot when she ran away; and (3) she heard a shot while running out of the building, i.e., almost immediately after defendant pulled a gun on her, established beyond a reasonable doubt that defendant attempted to rob money from White in Smith's presence. The requirement in the robbery statute that the property must be taken from the "presence" of the victim has been construed as a requirement that the victim be in such proximity to or control of the property that he could have prevented the taking if he had not been subjected to force or a threat of force by the robber. (People v. Carpenter (1981), 95 Ill. App. 3d 722, 726, 420 N.E.2d 640.) The evidence here thus reveals that defendant attempted to rob the money from Smith's presence as well as White's. He was therefore proved guilty of the attempted armed robbery of Smith beyond a reasonable doubt.
Even if the rooms behind the candy store were somehow separated and Smith was not in the same room as defendant and White when defendant put the gun on her, defendant was nonetheless guilty of the crime charged. In People v. Kelly (1975), 25 Ill. App. 3d 753, 324 N.E.2d 82, defendant and another entered a store armed with a shotgun. The store owner ran out when he saw the shotgun but before the robbers took or demanded anything from the store or the clerks in it. The store owner stood on the sidewalk outside the store and saw the robbers talking with a clerk. Defendant was indicted and convicted of the armed robbery of the store owner and a clerk in that he took money from their person and presence. He contended that the evidence did not support the convictions because neither the store owner nor clerk had any money taken from them. Rejecting this argument, the court stated with respect to the armed robbery of the store owner: "[When] he saw the shotgun, [he] saved some of his money . . . and, while he was outside, he observed defendant holding the shotgun, talking to a clerk . . .. . . . [The] total proof also established the commission of the robbery in his presence. . . . [The] indictment properly charged the armed robbery of [the store owner]." 25 Ill. App. 3d 753, 760, 324 N.E.2d 82.
In People v. Braverman (1930), 340 Ill. 525, 173 N.E. 55, defendants announced a robbery in a store, forced the manager to open a safe and locked the store occupants in a room. Later, $371 was found missing from the store. Defendants contended there was no proof of the indictment allegation that the money was taken from the person of the store manager. Construing the statutory definition as "the . . . taking of [property] from the person of another," the court noted that at common law it was unnecessary that the property taken be "in the actual or immediate presence of the owner or custodian"; rather, the requirement was that the property be in the possession or under the control of the robbery victim in such a way that violence or fear of violence was the means used to take it. (340 Ill. 525, 530-31, 173 N.E. 55.) The court stated that where the words "taking from the person of another" have been used in a robbery statute, they have received the same construction as at common law. 340 Ill. 525, 531, 173 N.E. 55.
In People v. Carpenter (1981), 95 Ill. App. 3d 722, 420 N.E.2d 640, which defined "presence" as used in the current version of the armed robbery statute, the court rejected a contention that there was no taking from the person or presence of a store clerk who had locked himself in a washroom when the defendants announced a robbery but before the store's cash box was taken. (95 Ill. App. 3d 722, 726-27, 420 N.E.2d 640.) Finally, in People v. Smith (1980), 78 Ill. 2d 298, 399 N.E.2d 1289, the court rejected an argument that the evidence failed to show a taking from the person or presence of another by stating, inter alia : "The requirement that there be a taking 'from the person or presence' is not, however, limited to removal of the property from the victim's person or from the immediate presence of the owner, possessor or custodian." (Emphasis added.) 78 Ill. 2d 298, 302, 399 N.E.2d 1289.
These cases amply support defendant's conviction for the attempted armed robbery of Smith. When defendant pulled the gun on White and demanded money of her, he thereby attempted to take the money from Smith as well. That the money may not have been in Smith's immediate presence does not require a reversal. Smith, as the co-owner of the money, was in such proximity to or had such control of it that he could have prevented its taking if not subjected to ...