APPELLATE COURT OF ILLINOIS, SECOND DISTRICT
531 N.E.2d 134, 176 Ill. App. 3d 358, 126 Ill. Dec. 1 1988.IL.1674
Appeal from the Circuit Court of Stephenson County; the Hon. Lawrence A. Smith, Judge, presiding.
JUSTICE WOODWARD delivered the opinion of the court. NASH and REINHARD, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WOODWARD
After going to trial, defendant was convicted of residential burglary, theft over $300, and theft, and sentenced to concurrent terms of four years, two years, and one year, respectively. On appeal, defendant argues that (1) he was denied his absolute right to be present at trial; (2) he was denied a fair trial when the trial court failed sua sponte to instruct the jury on an essential element of a charge; (3) the prosecutor failed to prove defendant guilty of residential burglary; and (4) his convictions for both theft over $300 and theft (firearms) cannot stand.
At the preliminary hearing held on May 29, 1986, defendant was advised of the charges and penalties and further advised that should he fail to appear for his trial, the trial would be held in absentia.
On December 30, the date his trial was to commence, defendant was not present. Defense counsel stated that a conversation with defendant's mother revealed that defendant had been staying at a friend's house but that she did not know defendant's present whereabouts. The court noted that the court reporter had related to him that she thought she had seen the defendant at the courthouse a day earlier. The prosecutor argued that the defendant had been present on October 31 when the cause was set for trial. When queried by the prosecutor if the court required further evidence, the court found that in light of defendant's experience with the judicial system and his presence at the previous hearings, the defendant knew the consequences of his absence. In granting the prosecution's motion for trial in absentia, the court stated that it knew "of no reasonable explanation for his absence." Thereafter, voir dire was conducted, and the jury trial proceeded without defendant's presence.
John C. Wilson (Wilson), the defendant's father, testified that on the day of the incident, May 25, 1986, he lived at 2248 River Road in Freeport, Illinois. Wilson stated that on the day in question, he had been vacationing in Wisconsin. Wilson related that his marriage to Joyce Wilson had been terminated by dissolution and that he had been given custody of his two sons, Jarrod and the defendant. Wilson testified that while the order of dissolution established joint custody of his sons, the order provided that the "[principal] residence was supposed to be with me."
Wilson testified further that approximately six months after the dissolution in July 1985, defendant decided that he was not going to live in the house with his father and under his father's rules. Wilson stated that defendant would have been able to return to the house "only if he agreed to live under [my] rules." Thereafter, according to the witness, defendant went to live with his grandmother and never attempted to return.
Wilson noted that defendant had left some of his property behind, in particular, clothing and a stereo. Wilson declared that the defendant did not have authority to enter the house and that he had informed defendant several times since he left of his feelings on the matter.
Returning from his vacation, Wilson found that his house had been ransacked. A basement window had been kicked in, and an inspection of the house revealed that many things had been taken, to wit, a video disc player, a safe, $350 in cash, jewelry, and 12 guns, which included rifles, shotguns, and pistols. Wilson opined that the items taken were well in excess of $300. Wilson testified further that he had given his son no permission to exercise control over his property.
Wilson related that on previous occasions defendant would ask permission to enter the house to pick up his personal property, and on those occasions, Wilson would permit his son to do so. Wilson claimed that if his son would have wanted to enter the house without his explicit permission, defendant would not have had the authority.
On cross-examination, Wilson testified that the dissolution order terminating his marriage occurred in February 1985. Wilson confirmed that according to the dissolution order, he was to furnish the basic needs of defendant, including the requirement to provide housing for him. Defendant was born on December 4, 1968, and was 16 years old at the time of the dissolution. Wilson testified further the dissolution order mandated that he was to provide "the primary place of residence" for his children. Wilson related that he had ...