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05/19/88 the People of the State of v. Tony R. Wiley

May 19, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

TONY R. WILEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

523 N.E.2d 1344, 169 Ill. App. 3d 140, 120 Ill. Dec. 433 1988.IL.795

Appeal from the Circuit Court of Winnebago County; the Hon. David F. Smith, Judge, presiding.

APPELLATE Judges:

JUSTICE HOPF delivered the opinion of the court. LINDBERG, P.J., and DUNN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HOPF

Defendant, Tony Wiley, appeals the judgment of the circuit court of Winnebago County finding him guilty in a bench trial of residential burglary (Ill. Rev. Stat. 1985, ch. 38, par. 19-3). Defendant contends that he was not proved guilty beyond a reasonable doubt or that, in the alternative, his conviction must be reduced to a lesser included offense such as attempted residential burglary or burglary because the trial court found that defendant did not enter a dwelling.

Robert Berogan testified that he was awakened at approximately 10 p.m. on February 6, 1986, by the sound of breaking glass. He went to the kitchen and found that a window had been broken and the window raised. On the enclosed porch behind the kitchen he discovered a broom handle which did not belong to him.

Rockford police officer Timothy Ferguson responded to a call from Berogan. He testified that the porch was enclosed, had a window looking into the kitchen, and doors leading to the kitchen and the garage. He discovered two sets of footprints in the snow, one leading up to the back porch door and the other going away from it. Ferguson followed the footprints in the snow for about two blocks to a house on Furman Street. Upon being admitted to the house, he discovered a pair of wet snow boots. Defendant was in the house and admitted that they were his. Defendant said the boots were wet because he had been blowing snow at a neighbor's house that evening. Ferguson testified that the size and tread of the boots were similar to the prints he had followed.

Defendant did not testify, but presented the testimony of two neighbors who stated that defendant had in fact been blowing snow for them on the night in question. The second neighbor, Mary Helser, testified that defendant finished at her house at about 9:45 p.m. and last saw him heading north in the direction of the Berogan house. She lived about two blocks from Berogan's home. After hearing this evidence, the trial Judge reserved his ruling because he was unsure whether the evidence proved the defendant guilty of residential burglary or some other offense.

Following a three-day recess, the court found the defendant guilty of residential burglary. The court stated:

"I don't think there's any question that the evidence showed beyond a reasonable doubt that it was Tony Wiley who committed the offense. If the State of the law is that you cannot find a person guilty of burglary when he's charged with residential burglary, I will accept that proposition and find him guilty of residential burglary. However, on appeal, the upper court should know that I would have found him guilty of burglary rather than residential burglary if burglary was a lesser included offense. Seems to me that a porch area was not a dwelling at the time.", Defendant appeals.

We first consider defendant's second issue, that his conviction must be reduced in degree since the trial court implicitly found in his favor as to an essential element of residential burglary. Defendant contends that the trial court found that Berogan's porch was not a "dwelling" place as defined by the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 2-6), and thus negated one of the essential elements of residential burglary. We disagree.

Defendant points to the language quoted above, particularly the court's remark that "a porch area was not a dwelling at the time." The Criminal Code of 1961 defines residential burglary as "knowingly and without authority [entering] the dwelling place of another with the intent to commit therein a felony or theft." (Ill. Rev. Stat. 1985, ch. 38, par. 19-3.) At the time of the offense, the Code defined "dwelling" as "a building or portion thereof, a tent, a vehicle or other enclosed space which is used or intended for use as a human habitation, home or residence." (Ill. Rev. Stat. 1985, ch. 38, par. 2-6.) Defendant thus argues that the trial court's statement constitutes an implied acquittal of at least one element of the offense of residential burglary.

An implied acquittal results from a ruling which resolves in the defendant's favor some or all of the required elements of the offense. (People ex rel. Daley v. Crilley (1985), 108 Ill. 2d 301, 311; People v. Pender (1987), 154 Ill. App. 3d 978, 981.) However, an erroneous ruling of law where the trial court does not rule on the sufficiency of the evidence is ...


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