APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
518 N.E.2d 458, 164 Ill. App. 3d 997, 115 Ill. Dec. 933 1987.IL.1901
Appeal from the Circuit Court of Cook County; the Hon. Thomas Fitzgerald, Judge, presiding.
PRESIDING JUSTICE SCARIANO delivered the opinion of the court. STAMOS, J., concurs. JUSTICE HARTMAN, Concurring in part and Dissenting in part.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
Following a jury trial, defendants Suane, Gold and Thomas were convicted of residential burglary and each was subsequently sentenced to a term of years in the Illinois Department of Corrections. Each defendant appeals his conviction; Gold and Thomas appeal their sentences. The following issues are raised on appeal: (1) whether the second floor of an apartment which is undergoing renovation is a "dwelling place" within the meaning of the residential burglary statute; (2) whether defendants were denied a fair trial by the introduction of testimony regarding the value of the stolen property; (3) whether defendants were denied a fair trial in view of the comments made by the assistant State's Attorney during his closing argument; (4) whether Suane's intent in entering the house can be inferred from circumstantial evidence; (5) whether Suane was denied a fair trial by the admission of testimony regarding an alleged crime not charged; (6) whether the trial court erred in failing to give the second paragraph of the Illinois Pattern Jury Instructions circumstantial evidence instruction; (7) whether the trial court erred in sentencing Gold to a term of years in the Illinois Department of Corrections rather than placing him in the Treatment Alternatives to Street Crimes program; and (8) whether the trial court properly advised Thomas of his eligibility for drug abuse treatment.
In January 1985, complainant Christopher Faletto purchased a two-story building, the second story of which Faletto, a carpenter, was "rehabbing" while he and his wife lived in the lower level. An inside staircase leads from the first to the second floor, which consists of one large room. An outside porch also leads to the second-floor room, and the door leading to this porch was propped up and nailed shut from the inside on the date of the occurrence. Faletto kept several of his carpenter's tools, painted a distinctive blue for easy identification, in the building.
On June 4, 1985, Chicago police officers Benvenuti, Shanahan and Perisi were on routine patrol in their unmarked car. At approximately 3 p.m., while patrolling the alley of the 1300 block of Henderson, where the Falettos' property was located, they noticed Suane exiting the second-floor door of the building, carrying a table saw. The officers pulled their car over, walked towards the fence at the rear of the building, and while at the fence they saw two other men come out of the same door: Thomas was carrying an object but Gold did not appear to be carrying anything. Upon seeing the police officers, the two men began to run. The officers gave chase and apprehended them. During a protective search the officers found a wood plane in Gold's pocket; Thomas had a staple gun in his hand. Suane simply walked up to the officers and put down the saw he was carrying. All the tools were a distinctive blue. The officers then ascended the back stairs of the Falettos' home and discovered that the rear door had been kicked in. Faletto later identified his tools at the police station.
At trial, the State presented two witnesses: Officer Benvenuti and Mr. Faletto. At the close of the State's case defendants did not introduce any evidence and their motion for a directed verdict was denied. After deliberating, the jury found all three defendants guilty of residential burglary. On November 5, 1985, after defendants' motion for a new trial was denied, a sentencing hearing was held in which Suane was sentenced to five years' imprisonment. On December 3, 1985, Thomas was sentenced to nine years' imprisonment, and on December 17, 1985, Gold was also sentenced to nine years' imprisonment.
Suane seeks a reversal of his conviction, or, alternatively, asks that his conviction be reversed and remanded for a new trial. Thomas and Gold ask that their convictions be reduced from residential burglary to burglary and that their cases be remanded for resentencing. Alternatively, they ask that their convictions be reversed and their cases remanded for a new trial, or that their sentences be vacated and their cases remanded for resentencing before a new Judge. I
Appellants argue that they cannot properly be convicted of residential burglary because they were not in a "dwelling place" as defined by the residential burglary statute. That statute provides:
"(a) A person commits residential burglary who knowingly and without authority enters the dwelling place of another with the intent to commit therein a felony or theft." Ill. Rev. Stat. 1985, ch. 38, par. 19-3.
A "dwelling place" is defined as:
Appellants argue that the second floor of the Faletto home was not used as a human habitation, home or residence, nor intended for such use in the near future, because it was undergoing renovation and was not inhabitated. They claim that the apartment was under construction and could not be a dwelling "until construction is sufficiently complete to permit habitation." Thus, appellants assert, an element of residential burglary was not proved beyond a reasonable doubt and their convictions must be reduced to the lesser included offense of burglary and their cases remanded for resentencing.
Faletto testified at trial that he and his wife lived in the building while they remodeled it. The remodeling had begun on the first floor and they were gradually working their way up to the second floor. There is an inside staircase which leads from the first floor to the second and there are no walls that divide the second-floor room or that separate it from the stairway.
Illinois courts have held that the residential burglary statute applies to burglaries of structures intended for use as residences, regardless of whether the structure was being actively used as a residence at the time the burglary was being committed. (People v. Sexton (1983), 118 Ill. App. 3d 998, 1000, 455 N.E.2d 884.) Thus, in Sexton the statute was applied to the burglary of a house which was occupied only occasionally by the owner. The statute was also applied to the burglary of a garage which was attached to a house and which had a door leading into the house. (People v. Dawson (1983), 116 Ill. App. 3d 672, 452 N.E.2d 385.) Accordingly, the mere fact that the Falettos were not actually or physically occupying the second floor of their home does not mean that that portion of the building was not a part of their residence.
In addition, there was evidence that defendants had gone down to the first floor, which was occupied by the Falettos. Faletto testified that he left his power saw at the base of the interior staircase on the first floor before leaving his home on the date of the incident. Suane was seen walking out of the second-floor door carrying that power saw. Thus, whatever resonance defendants' argument that they did not burglarize a residence may have had, it was considerably attenuated if not completely negated by this evidence. II
Defendants next argue that the trial court erred in allowing evidence of the value of the tools recovered to be admitted. Defendants claim that such evidence is irrelevant to any element of residential burglary and served only to prejudice defendants in the minds of the jury.
The State argues that such evidence was relevant to the issue of intent because the value of the tools warranted the risk defendants took to steal them. Alternatively, assuming arguendo that the trial court abused its discretion in allowing such evidence, the State argues that this was harmless error.
Evidence is relevant if it tends to prove or disprove a disputed fact, make a point in issue more or less probable or explains a fact in evidence. (People v. Hunter (1984), 124 Ill. App. 3d 516, 533, 464 N.E.2d 659.) The determination of whether evidence is relevant is within the sound discretion of the trial court, and its decision will not be disturbed on review unless it appears that such discretion has been abused. (Hunter, 124 Ill. App. 3d 516, 464 N.E.2d 659.) Defendants have failed to show an abuse of discretion.
But even if we were to assume arguendo that such evidence was irrelevant, its admission was harmless error. In reviewing errors made at the trial level, the test is whether a reviewing court can find beyond a reasonable doubt that the error did not contribute to the accused's conviction. (People v. Bovio (1983), 118 Ill. App. 3d 836, 842, 455 N.E.2d 829.) Given the fact that defendants were seen exiting the Falettos' building carrying Faletto's tools, it seems highly improbable that the jury's verdict would have been different had testimony of the value of the tools not been admitted. III
During closing argument defense counsel referred to the fact that the State had not called two of the three police officers who witnessed defendants exiting the Faletto home, and suggested that "maybe the prosecution did not want to subject them to cross-examination. Maybe on cross-examination they could not get the story straight . . .. They did not have faith in [Officers] Shanahan and ...