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11/25/87 the People of the State of v. Otis Thomas

November 25, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

OTIS THOMAS, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

516 N.E.2d 901, 163 Ill. App. 3d 670, 114 Ill. Dec. 746 1987.IL.1754

Appeal from the Circuit Court of Cook County; the Hon. Philip J. Carey, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McNAMARA delivered the opinion of the court. RIZZI and FREEMAN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCNAMARA

Defendant Otis Thomas was convicted of armed robbery, armed violence, aggravated kidnapping and theft following a bench trial. The trial court sentenced defendant to 30 years for armed robbery, 30 years for armed violence, 15 years for aggravated kidnapping, and five years for theft, the sentences to be served concurrently. Defendant appeals, contending that there was insufficient evidence of "secretive confinement" to find defendant guilty beyond a reasonable doubt of aggravated kidnapping; that the evidence failed to establish the presence of a weapon; that he was not proved guilty beyond a reasonable doubt under an accountability theory; that there was insufficient evidence of armed robbery since nothing was stolen in the presence of the victim; that the theft conviction was invalid because it arose from the same act supporting the armed robbery charge; and that the trial court abused its discretion in sentencing defendant.

Linda Moulton, the victim, testified that on June 10, 1985, she worked for Illinois Bell Telephone Company collecting money from pay telephones. At 3:30 p.m. on that day, Moulton drove the Illinois Bell van to a credit union on Kedzie Avenue in Chicago. She parked in the credit union lot, locked the van, and activated the van's alarm system.

After 10 minutes in the credit union building, Moulton walked back towards the van. Charles Hatch and Ronald Roberts, two codefendants, walked up behind Moulton and told her to keep walking so as not to be killed. Moulton saw that Roberts "had his coat pulled and he had his hand inside the jacket."

Moulton walked to the driver's side, and Roberts stayed with her while Hatch went over to the passenger's side. Moulton deactivated the alarm. As Moulton was placed in the van, Roberts told her to slide over and get in the back. Roberts got in the driver's seat, flipped the lock up for Hatch to get in the passenger's side, and then told Moulton to lie down in the back.

Roberts then "laid the gun down on the floor." Moulton repeated that she then first saw the gun. Roberts put the gun on the area between the two seats in the front of the van. Moulton only saw one gun. On cross-examination Moulton was asked, "When you saw that gun, where was it located when you first saw it?" Moulton replied, "It was on the floor." She did not see the gun when they were outside the van. The police never showed her a gun for identification purposes. Moulton was not familiar with handguns. She described the gun as "big and long" and black. She indicated with her hands how long she thought it was, and the court stated for the record that she was indicating approximately 10 inches.

After Moulton showed Roberts how to start the truck, she was told again to lie down. Moulton hesitated, and Roberts said, "Lie down, bitch, don't let me have to shoot you." Moulton sat down. Roberts told Hatch to sit on Moulton, but Hatch remained in his seat.

Roberts began backing up the van, then he drove southbound on Kedzie. After about half a block, Moulton jumped out of the back passenger panel door, which automatically activated an alarm on the van. Moulton landed on the curb and remained there for about 30 seconds. The van turned right on 92nd and Kedzie. Moulton ran back to the credit union for help.

Jenny Murphy, an eyewitness, testified for the State that on June 10, 1985, she was watering flowers outside of her house on the corner of 92nd and Kedzie when she saw defendant standing across the street near a bus stop. When the bus arrived, defendant "backed up. When it pulled away, he moved back towards the bus stop." He remained there for several minutes.

Murphy also noticed two men in front of the credit union who followed Moulton to the van. Murphy then heard an alarm coming from the van. She saw the van backing up out of the parking lot. Defendant immediately moved over to a burnt orange car parked on the corner and stood next to the car. Murphy saw Moulton jump out of the van and run. The van continued down Kedzie and turned right on 92nd Street.

As the van came further down the street, defendant entered the orange car and started driving in reverse, following the van around the corner. Murphy went into the house, and returned within 30 second with a piece of paper and a pen. Within a minute, she saw the burnt orange car come back to 92nd and Kedzie and turn right. The street is a dead-end street about two blocks from Kedzie. Defendant was still driving, and two men were now in the car with him. Murphy wrote down the license plate number and telephoned the police. Later that day, Murphy identified defendant in a lineup.

Alan Pekarski, an eyewitness and a former Illinois State police officer, testified for the State that on June 10, 1985, he lived in an apartment on the corner of Spaulding and 92nd Street, two blocks from Kedzie. Pekarski heard an alarm sound outside. He looked out the window onto Spaulding, and saw an Illinois Bell van 50 feet away, parked directly beneath his window. The van's alarm continued as the man on the passenger side exited the van. Pekarski originally identified that man as defendant, but corrected his statement, testifying that it was Hatch. Pekarski saw Hatch talk to the driver inside the van and then turn. Pekarski could then ...


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