APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
530 N.E.2d 1173, 176 Ill. App. 3d 339, 125 Ill. Dec. 764 1988.IL.1742
Appeal from the Circuit Court of Coles County; the Hon. Paul C. Komada, Judge, presiding.
JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and LUND, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE GREEN
On December 9, 1987, following a jury trial in the circuit court of Coles County, defendant James L. Clodfelder was convicted of two counts of burglary and two counts of theft. The court subsequently vacated the theft convictions, entered judgment on the burglary convictions, and sentenced defendant to an extended term of 12 years' imprisonment. The court ordered the sentence of imprisonment be served consecutively to two sentences it had previously imposed for crimes defendant committed while on pretrial release.
On appeal, defendant maintains: (1) he was not proved guilty beyond a reasonable doubt; (2) there was no probable cause to arrest defendant, and, therefore, the court erred in denying defendant's motion to suppress items seized without a warrant and statements made subsequent to the arrest; (3) defendant was deprived of his right to a fair trial by comments made by the State during closing argument; and (4) the trial court erred in sentencing defendant to consecutive terms of imprisonment. We affirm the convictions, reverse the sentence and remand for resentencing.
Police officer George Beason testified at trial that, on October 15, 1986, at 4:50 a.m., he responded to a call to the home of Brenda Hutton in the 900 block of North 13th Street in Mattoon. He received a description from her of a "tall, slender" person wearing dark clothes, a hat, and gloves, walking through yards and looking into cars near her home. Beason said that he searched the area, and at 5:04 a.m., he saw a man coming up an embankment from some railroad tracks. He said he stopped him near a gas station on Route 45. He said the man produced military identification, and he learned the man was James Clodfelder, who was wearing military coveralls, gloves, and a hat. He said Sergeant Brian Janes, his "back-up" unit, ordered him to detain defendant, and subsequently ordered him to take defendant into custody.
Sergeant Janes testified that, after he spoke with Hutton at approximately 5 a.m., and obtained a description of the person she had seen, he was informed by radio that Officer Beason had detained defendant. Janes then drove to the place where defendant was being detained. He said he recognized defendant as someone he had known for 9 or 10 years. He said he then conducted a search of the area and found a green Army duffel bag, an aluminum suitcase, a green toolbox, and a six pack of beer in a railroad "subway ditch," which was approximately 100 yards from the place where defendant was being detained. Janes testified he then opened the parcels and found tools in the toolbox, papers with defendant's name in the suitcase, and Army clothing and a generator in the duffel bag. He said he then, at 5:15 a.m., instructed Officer Beason to place defendant under arrest and took the items found in the ditch to the Mattoon police station.
Police Captain David O'Dell testified that on October 15, 1986, he arrived at the police station at 5:30 a.m. and began examining the tools which were inside the toolbox taken from defendant. He said that some of the tools were marked "H. Perkins." He said he began interrogating defendant at approximately 6:40 a.m., and defendant told him: (1) he was on leave from the Army; (2) the previous evening, he was returning to Fort Carson, Colorado, missed his bus, and decided to stay out all night; (3) he purchased some beer to drink along the railroad tracks; (4) he was subsequently arrested; and (5) he had purchased the toolbox and tools two or three years prior to that date. According to O'Dell, defendant stated he did not know the individual from whom the toolbox had been purchased and was not able to give any "physical or detailed description" of how the purchase was conducted. O'Dell also testified that defendant gave no explanation of his possession of the generator. Finally, O'Dell explained that defendant signed a receipt for the property which had been seized from the railroad ditch.
Harold Perkins testified that he lived at 905 North 12th Street in Mattoon, and on October 15, 1986, he learned his tools and toolbox had been stolen. He identified the green toolbox found among defendant's possessions as one he had owned for over 20 years, and he identified the tools inside the box as belonging to him. He pointed out the tools which were engraved with his name.
Charles Johnson testified he was the regular driver of a truck belonging to Howell Asphalt Company. He testified that, on October 14, 1986, a control box for an "auto generator" had been fastened to the truck. He indicated that on October 15, 1986, someone had apparently attempted to remove the control box, and he found loose wires in the truck's interior. He identified the generator, found in defendant's duffel bag, as having been removed from that truck.
Defendant did not testify or provide any witnesses on his behalf. Following closing arguments, the jury found defendant guilty of two counts of burglary and two counts of theft over $300.
Defendant argues he was not proved guilty beyond a reasonable doubt, because the State presented no evidence defendant actually entered the two motor vehicles, and his conviction was based solely on an inference arising from ...