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03/03/88 the People of the State of v. Louis Tomasello

March 3, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LOUIS TOMASELLO, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

520 N.E.2d 1134, 166 Ill. App. 3d 684, 117 Ill. Dec. 783 1988.IL.294

Appeal from the Circuit Court of Lake County; the Hon. Bernard E. Drew, Jr., Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE LINDBERG delivered the opinion of the court. NASH and REINHARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINDBERG

Defendant, Louis Tomasello, was charged with unlawful possession of more than 500 grams of a substance containing cannabis, unlawful possession of cannabis with intent to deliver, and unlawful production of the Cannabis sativa plant, in an indictment returned by a Lake County grand jury. After a jury trial, he was found not guilty of unlawful possession of cannabis with intent to deliver but guilty of unlawful possession of more than 500 grams of a substance containing cannabis and unlawful production of the Cannabis sativa plant. The circuit court of Lake County sentenced defendant to serve a 24-month term of probation, to pay a $500 fine and court costs, and to perform 500 hours of public service work unless he was employed full time by his father's business for a period of six months. Defendant appeals from this judgment.

Defendant contends on appeal that the State failed to prove his guilt beyond a reasonable doubt of the offenses of which he was convicted and that his convictions should therefore be reversed. We affirm in part, reverse in part, reduce the degree of one of the offenses of which defendant was convicted, vacate the sentence, and remand for resentencing.

Five witnesses testified at defendant's trial: Theodore G. Joslun, Danny A. Kitterman, Steven Hansen, and Steven Harvey for the State; and defendant for himself. Their testimony and the other evidence admitted at trial tended to establish the following facts.

Defendant, Kitterman and Hansen met at work and decided to live together. Accordingly, defendant and Hansen signed a lease dated August 17, 1985, to rent a three-bedroom house for one year. Joslun, an agent of the house's owners, received the September rent from defendant and Hansen and subsequently (on October 1) received the October rent from Hansen. Each of the three housemates had a bedroom, and they shared the rest of the house. Shortly after moving in together, the housemates began to experience problems getting along with each other, and by November 15, 1985, all either had moved, or were moving, out of the house.

When they moved into the house, the basement contained only a washer, a dryer, and a furnace. Later, it also contained a large amount of marijuana. There were (by October, according to Hansen) several marijuana plants in planters. Two large grow lights, one of which Hansen helped defendant carry into the basement, were installed and connected to timers. In addition to the live plants there was also cut marijuana. Although Kitterman and Hansen pleaded guilty to possession of cannabis pursuant to plea agreements requiring them to testify at defendant's trial, they both testified that they had never tended the plants. Hansen had never seen Kitterman tend the plants and had observed defendant water the plants.

As was noted previously, almost from the start of their occupancy of the house the three housemates had difficulties with each other. Apparently by November 15, none of the three were staying at the house on a regular basis. Kitterman testified that defendant moved out in late October and that he had taken most of his personal belongings. Kitterman was not sleeping in the house in November and had never seen defendant sleep there in November. Hansen was living in the house on and off in November. Hansen testified that defendant moved out of the house in late October or early November, within a couple of days of November 1, and that he did not believe he ever saw defendant in the house at any time in November. According to Hansen, when he moved, defendant took his TV, VCR, bed, dishes, pots and pans, and all of his clothing, but left

behind some books and record albums. Joslun, the agent for the owners of the house, last had personal contact with any of the housemates on October 1 when Hansen had paid the rent. At the end of October or the first part of November Joslun, while driving past the house, had seen defendant's automobile in the driveway. Joslun certainly did not see defendant at any time after November 10 and was not positive he had seen defendant at all during November.

Defendant testified that at no time after November 1 did he ever live in, or even go to, the house. He lived in Kenosha, Wisconsin, after November 1. At first, he lived with his new roommate, James Rzeplinski, at Rzeplinski's mother's house in Kenosha while their new apartment was cleaned and repainted. On November 13, he and Rzeplinski moved into the new apartment, which was also in Kenosha, where he was living on November 15. Defendant signed a lease for the Kenosha apartment, the term of which included the date November 15, 1985, and a copy of this lease was admitted into evidence. Defendant was in the house for the last time on November 1, 1985, when he was there to remove his personal possessions. While he was there, he gave Hansen his key to the house. Defendant, Hansen, and Kitterman were in the kitchen. Hansen had his hands full, so defendant placed the key on a counter for Hansen, and Hansen picked it up later.

On November 15, 1985, evidence technician Steven Harvey and another Waukegan police officer, accompanied by Joslun, entered the house pursuant to a search warrant. In the basement, there were several piles of green leafy plants, loose foliage, and 16 plants on tables near grow lights which were plugged into operating timers. The parties stipulated that, if called, Northern Illinois Crime Lab chemist Lisa Haley would testify that ...


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