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12/10/87 the People of the State of v. William Arthur Brown

December 10, 1987





516 N.E.2d 1349, 163 Ill. App. 3d 976, 114 Ill. Dec. 955 1987.IL.1829

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.


JUSTICE KNECHT delivered the opinion of the court. SPITZ and McCULLOUGH, JJ., concur.


After a jury trial, defendant was found guilty of the offenses of theft with a prior burglary conviction, a Class 4 felony, and battery. (See Ill. Rev. Stat. 1985, ch. 38, pars. 16-1, 16-1(e)(1), 12-3(a)(1).) The court sentenced defendant to concurrent terms of three years' imprisonment for the theft conviction and six months' incarceration for the battery; and further ordered the three-year sentence for theft be served consecutive to a five-year sentence imposed for burglary in Macon County case No. 86-CF-288. Defendant appeals from the judgment of the circuit court raising numerous allegations of error. We reverse and remand for a new trial.

We first address defendant's reasonable doubt arguments and the question of the sufficiency of the evidence to sustain his conviction of theft with a prior burglary conviction and of battery. If the evidence is not sufficient to justify a reasonable jury determination that defendant's guilt was proved beyond a reasonable doubt, we must reverse without remandment and need not consider defendant's other assertions. (People v. Collins (1985), 106 Ill. 2d 237, 478 N.E.2d 267.) We conclude the evidence supported the verdicts of guilty on each of the offenses.

Patricia Lord testified that on Saturday, September 27, 1986, about 2:30 p.m., she was going into the Jewel store when a man ran into her and knocked her into the door casing, bruising her on her left side under her arm. She identified defendant as the man who shoved her as she was entering Jewel.

Bill Howell, security officer for Jewel and Osco, testified that on September 27, 1986, at about 2:30 p.m., there was a theft of a stereo system by defendant from the store. Howell identified People's exhibit No. 2 as a photograph he took of the stereo, and said the model taken, a Lloyd's compact stereo, was sold by Osco and carried an Osco price tag for $129.95.

Howell testified he saw a black subject standing around the stereos in aisle 19, moving the boxes around. Howell said when the subject picked up a box and took it toward the checkout, he left the catwalk above aisle 19, went to the front of the store and stood by the checkout lane for Jewel, and observed the person with the stereo box to see what he would do. Howell testified that within two or three minutes the man, whom he identified as defendant, came to the exit. According to Howell, defendant passed the checkout lane (and the clerk working in it) and went to the exit, carrying the box with the stereo in it. Howell said when defendant got to the exit, Howell showed defendant his badge and identification and asked if there was a receipt on the box. Howell said at that point defendant turned around and threw the box at Howell, which deflected off Howell and landed in a cart directly behind him. Howell testified as he turned to grab defendant before he went out the door, two ladies approached on his right, getting between Howell and defendant.

Howell said at that point defendant pushed one of the ladies in front of him so defendant could get out the door. Howell said he thought the woman fell to the right, since he side-stepped and went around her so he would not step or fall on her.

Howell testified defendant ran toward the east entrance of the mall and he yelled at defendant not to run and gave chase. Howell said as defendant ran through the mall, two other Jewel employees saw Howell chasing defendant and joined the chase. Howell said they captured the defendant, who continued to fight, and they handcuffed him to bring him back to the store.

Howell testified he did not observe defendant pay for the stereo. Howell said at first the defendant said he had money and would pay for the item, and later changed his mind and said he did not have any money.

The court received People's exhibit No. 2, the photograph showing the Lloyd's stereo, into evidence. The court also received into evidence the State's exhibit No. 1, an authenticated record of conviction in the case of People v. William Brown, case No. 86 -- CF -- 288, and informed the jury that according to the exhibit, on August 19, 1986, the jury in that case returned a verdict finding defendant William Brown guilty of burglary.

Defendant presented no evidence. The jury returned verdicts finding defendant guilty of both the offense of theft with a prior burglary conviction and the offense of battery.

With respect to his conviction of theft with a prior burglary conviction, defendant acknowledges security officer Howell testified he saw defendant pick up the box containing a compact stereo, bypass the checkout, and approach the west exit of the store without paying for it. Defendant nevertheless argues that since on being questioned about the stereo he "immediately surrendered it," the State's evidence failed to show either that he (1) knowingly exerted unauthorized control over the property, or (2) intended to permanently deprive Osco of it.

Criminal intent to commit an offense must often be proved circumstantially, and whether intent has been proved is a question for the trier of fact. The intent to permanently deprive may be inferred simply from the act of taking another's property. Even when such an inference may be deemed rebutted by proof of the existence of a state of mind incompatible with the intent to steal, the trier of fact is not required to accept the defendant's version of the facts. See People v. Heidorn (1983), 114 Ill. App. 3d 933, 935, 449 N.E.2d 568, 571-72 (and cases cited therein).

Defendant cites People v. Cortez (1975), 26 Ill. App. 3d 829, 832-33, 326 N.E.2d 232, 235, wherein the defendant's theft conviction under section 16 -- 1(a)(1) of the Criminal Code of 1961 was reversed. The reviewing court in Cortez found the defendant's innocent explanation accounted for all circumstances in evidence and was highly persuasive, his credibility was not otherwise impeached, his explanation was substantially corroborated and it was uncontradicted. (26 Ill. App. 3d at 832-33, 326 N.E.2d at 235.) Cortez is distinguishable. Here, the State's evidence was uncontradicted.

In this case, as in Heidorn, defendant was continuously watched after he picked up the merchandise and did not pay for it. The security guard testified defendant passed the checkout lane where a clerk was working without paying for the merchandise, and the guard did not stop defendant until he was near the door to exit the store. Defendant's response when stopped was to throw the 2 1/2-foot square box containing the stereo at the security guard and bolt out the door, knocking an incoming woman customer to the side of the door as he did so. After defendant was apprehended by the security guard and two other Jewel employees, he first offered to pay for the merchandise and said he had the money, and later said he did not have any money.

There was more than sufficient evidence from which the jury could conclude defendant both exercised unauthorized control over the stereo and intended to permanently deprive Osco of it. As pointed out by the State, no evidence of an alternative explanation was presented to the jury by defendant.

Defendant next maintains his flight after being approached by security guard Howell should not be construed to show a guilty mental state since he was a fugitive at the time -- having been sentenced in absentia the day before in case No. 86 -- CF -- 288, with his bond forfeited and a warrant issued for his arrest -- and his flight could reasonably be viewed as connected to the prior burglary conviction, rather than possession of the stereo. The prosecutor did not argue defendant's flight from the store could be considered as evidence in support of his guilt on the theft charge and made no reference in closing argument to defendant's flight.

Defendant next maintains the State failed to prove him guilty beyond a reasonable doubt of battery, arguing the evidence failed to show (1) he acted knowingly when he shoved the victim, and (2) pushing and shoving are insufficient to prove battery (citing People v. Eichelberger (1980), 81 Ill. App. 3d 1012, 401 N.E.2d 1208). Defendant contends in addition to requiring proof of bodily harm, to convict him of battery the State must prove he acted knowingly, citing People v. Jones (1978), 67 Ill. App. 3d 477, 384 N.E.2d 523. The Committee Comments to section 12 -- 3 of the Criminal Code of 1961 state:

"Note that a battery can be committed 'by any means' (see Reg. v. Cotesworth, 6 Mod.Rep. 172 (1705) -- spitting in prosecuting witness' face), which 'causes bodily harm to an individual,' or by making physical contact of an 'insulting or provoking nature.' The intent here is to limit the traditional 'barest touching' which does not cause bodily harm to one of 'an insulting or provoking nature'." (Ill. Ann. Stat., ch. 38, par. 12 -- 3, Committee Comments, at 440 (Smith-Hurd 1979).)

The intent element of battery, i.e., the intentional or knowing conduct, may be inferred from the circumstances of the offense as presented in evidence. No authority cited by defendant requires reversal on the grounds of reasonable doubt, since there was evidence which permitted the trier of fact to conclude defendant committed an act within the meaning of the statute and to draw the inference of intent, and no contradictory evidence was presented. Eichelberger is distinguishable on its facts since there the reviewing court reversed the conviction on finding the testimony of a 14-year-old complaining witness so implausible and contrary to human experience as to cast reasonable doubt on defendant's guilt. The reviewing court was not convinced the 14-year-old sustained a broken nose or a facial injury or was punched in the face by the adult defendant where, when questioned by a police officer, the 14-year-old merely stated he had been pushed or shoved.

Defendant next argues (1) the State failed to prove his guilt of theft with a prior burglary conviction in case No. 86 -- CF -- 288 because the information stated the burglary conviction was on August 9, 1986, whereas the authenticated copy of the burglary conviction showed it was on August 19, 1987; and (2) the State failed to prove his guilt of battery because the information charged he struck the victim with his fist, whereas the evidence only showed he shoved and knocked the victim to the side as he ran past her. These objections are raised for the first time on appeal.

We find these variances between the informations charging defendant and the evidence produced at trial do not require reversal on reasonable doubt grounds. (See People v. Alexander (1982), 93 Ill. 2d 73, 77, 442 N.E.2d 887, 889; People v. Jones (1987), 162 Ill. App. 3d 487; People v. Turner (1976), 36 Ill. App. 3d 77, 80, 343 N.E.2d 267, 270; People v. Price (1971), 132 Ill. App. 2d 733, 270 N.E.2d 565; People v. Bradley (1966), 70 Ill. App. 2d 281, 287-88, 217 N.E.2d 434, 437-38; People v. Coleman (1971), 49 Ill. 2d 565, 569-70, 276 N.E.2d 721, 723-24; People v. Givens (1985), 135 Ill. App. 3d 810, 817, 482 N.E.2d 211, 216-17; People v. Jordan (1981), 102 Ill. App. 3d 1136, 1140, 430 N.E.2d 389, 391; People v. Carter (1978), 57 Ill. App. 3d 84, 88, 372 N.E.2d 1093, 1097.) Since we are reversing the judgment and remanding the cause for a new trial, such variances between the informations and proof may be the subject of a motion for amendment pursuant to section 111-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111-5).

Defendant next argues he was deprived of a fair trial by the trial Judge's remarks regarding his right to a jury of his peers as not including a jury of burglars and felons. Defendant does not complain the court erred by informing the jury he was charged with the offense of theft with a prior burglary conviction, as stated in the information, or in allowing the State to put on proof of the prior burglary conviction as part of its case in chief. Rather, defendant maintains the court's unnecessary and repeated emphasis during voir dire that he was a ...

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