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07/08/88 the People of the State of v. James T. Lobdell

July 8, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JAMES T. LOBDELL, DEFENDANT-APPELLANT. -- THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ANTHONY



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

LOBDELL, Defendant-Appellant

525 N.E.2d 963, 172 Ill. App. 3d 26, 121 Ill. Dec. 656 1988.IL.1075

Appeal from the Circuit Court of Peoria County; the Hon. Calvin Stone, Judge, presiding.

APPELLATE Judges:

JUSTICE HEIPLE delivered the order of the court. BARRY and SCOTT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HEIPLE

Following a bench trial, the defendants James Lobdell and Anthony Lobdell were convicted of residential burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19-3(a).) The court sentenced James to seven years of imprisonment and Anthony to a four-year term. The defendants contend on appeal that: (1) their guilt was not established beyond a reasonable doubt; and (2) an evidence deposition was erroneously admitted. We affirm.

At approximately 5:30 p.m. on January 6, 1987, Charles Foote noticed nothing unusual at Clifford Johnson's house at 2401 W. Malone in Peoria. Two hours later he discovered a broken front door window there. Peoria police officer David Zachman later found the front doors ajar, and Officer Gary Siebenthal lifted unidentified latent fingerprints from another broken storm door window.

At approximately 9:30 p.m. that night John Whitby saw two black males walk toward a parked vehicle bearing license plate number KK 6642. The car drove away and next stopped at the corner of Malone and Stanley. Whitby then saw two black males run out of the house at 2401 W. Malone and jump into the car.

Approximately three hours later, Peoria police officer Vivian Lobdell stopped the two defendants and Robert Buford in a vehicle bearing the same license plate number KK 6642. Anthony exited the vehicle and exclaimed "I know you want us for some burglaries." Robert Buford later verified that the defendants approached a home near the intersection of Stanley and Malone one January evening but thought they returned empty-handed within five minutes.

Several days after these incidents, Johnson's son found a boarded front door window at Johnson's home. He also found that a cash box was missing from Johnson's bedroom drawer.

Initially we address the defendants' argument that admitting the evidence deposition of Clifford Johnson was reversible error. They suggest that the State failed to establish that Johnson was unavailable for trial. We disagree.

At the hearing on the State's motion to depose Johnson, Johnson testified as follows. He was 72 years of age and retired. One week prior to the May 2 commencement of walleye fishing season, he planned to travel 500 miles to his Wisconsin home and remain there until May 24. He had not planned a trip back to Peoria on the scheduled trial date because it would interfere with both his fishing season preparations and a scheduled furnace repair appointment.

The court allowed the State's motion, and at trial, over the defendant's objection, admitted Johnson's evidence deposition. He therein denied ever permitting the defendants to enter his home at 2401 W. Malone. He further testified that he was in Florida on January 6. When he returned two months later, two of his doors had been repaired and a cash ...


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