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05/24/89 the People of the State of v. Gerald L. Warren

May 24, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GERALD L. WARREN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, THIRD DISTRICT

538 N.E.2d 1380, 183 Ill. App. 3d 197, 131 Ill. Dec. 824 1989.IL.794

Appeal from the Circuit Court of Whiteside County; the Hon. Jeffrey W. O'Connor, Judge, presiding.

APPELLATE Judges:

JUSTICE BARRY delivered the opinion of the court. WOMBACHER, P.J., and SCOTT, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BARRY

Defendant Gerald Warren was charged in two counts with the November 22, 1987, residential burglary of the Rock Falls home of Wennona Bell. The charging instrument alleged that defendant entered Bell's home with the intent to commit a theft (count I) and the intent to commit criminal sexual assault (count II). Prior to trial, defendant moved to dismiss count II. The court ultimately granted that motion after hearing the testimony of the State's occurrence witnesses at trial. A jury found defendant guilty of count I, and defendant was sentenced to serve an extended term of 30 years in the Department of Corrections. The court ordered this sentence to run consecutive to a 25-year term imposed for another residential burglary for which defendant had been released on bail bond at the time he committed the instant offense.

In this appeal, defendant contends that the trial court erred in admitting evidence of his prior residential burglary and that he is entitled to a new sentencing hearing because the court erroneously believed that defendant was eligible for an extended term, and because 30 years is excessive. We allowed defendant to file a pro se brief to supplement that of his appellate counsel. In it, defendant challenges his sentence on the further ground that his sentence should not have been made consecutive to that imposed for the prior residential burglary. Having considered all of these issues, we affirm defendant's conviction and his sentence for reasons that follow.

Prior to trial, defense counsel filed a motion in limine to bar evidence of defendant's earlier residential burglary. The court reserved judgment on the motion until the State's occurrence witnesses had completed their testimony and cautioned the prosecutor not to mention the prior offense in opening statement. The State's evidence as it unfolded at trial established that Wennona Bell and defendant's sister, Cheryl Heidi, had been friends for many years. Through Cheryl, Bell had met defendant and his brother, Greg Warren. On the evening of November 21, 1987, Bell and her boyfriend, David Burgess, went out on a date. Bell's two teenage nieces, Kelly and Trina Williams, stayed at her home that night to baby-sit Bell's three-year-old daughter, Carrie. Bell and Burgess stopped for a drink at the R & R tavern in Rock Falls between 9:30 and 10 p.m. Burgess left Bell at the bar for a few minutes while he went to the restroom. During this period, defendant, who was also at the bar, told the barmaid that he wanted to buy Bell a drink. Bell refused the offer. Defendant left the tavern. Burgess then returned from the restroom and left the tavern with Bell.

The two returned to Bell's home between 10:30 and 10:45 p.m. Bell and Burgess retired to Bell's upstairs bedroom, and Kelly and Trina slept downstairs on a couch and chair. Carrie, whose bedroom was down the hall from Bell's, left her bed to sleep on the floor by her mother's bed. Around 1:30 a.m., Trina was awakened by the sound of the kitchen window being opened. She went upstairs and lay down to sleep on Carrie's bed. Then Trina heard more noises coming from the kitchen. She got up and went into Bell's room, awoke Bell and told her someone was in the apartment. Bell told her to lie down by Carrie. Then a man appeared in the doorway. Bell observed that the man carried no weapon and wore gloves. He stood still for a few seconds and then walked down the hallway toward Carrie's room. A few seconds later, he reappeared at the doorway to Bell's room and opened the door. The light from the bathroom illuminated his face. Bell awoke Burgess and yelled out, "It's Cheryl's brother!"

The man bolted when Burgess lurched out of the bed to give chase. The man awoke Kelly when he fell down the stairs. He got up and fled through the back door. After assuring himself that Kelly was all right, Burgess walked out the front door. Then he saw a car resembling defendant's pull out of a parking space in front of the apartment building with its lights out.

A check of the apartment revealed that the intruder had cut the kitchen window screen to gain entry, but that nothing had been taken. Bell was the only witness who had observed the intruder's face sufficiently to make a positive identification. Burgess, who was acquainted with Greg Warren, but not with defendant, testified that he was certain that the slender build of the man he had chased was not that of Greg, who was heavier set.

The court heard the parties' arguments on defendant's motion in limine at the completion of the foregoing testimony. Defense counsel argued that the prior crime evidence was irrelevant and prejudicial. The prosecutor contended that the two offenses were strikingly similar, and they were committed only three months apart and in similar neighborhoods of Rock Falls. Because defendant was relying on an alibi defense, the prosecutor sought admission of the facts of the earlier crime for purposes of identifying defendant as the perpetrator -- i.e., modus operandi -- and intent to commit theft. The court determined that evidence of the prior offense could be admitted on the question of intent, but not for modus operandi.

At that point, the State introduced three witnesses -- an investigating officer and two occurrence witnesses -- who testified about an August 1987 residential burglary of the Earl Sliger residence in Rock Falls. A video cassette recorder taken from that residence was found in defendant's car, which was parked in front of the home when officer Humberto Perez arrived on the scene. Defendant was subsequently arrested and convicted of the offense.

Defendant's employer, Seymour Lesorgen, and two co-workers at Upholstery Unlimited in De Kalb testified on defendant's behalf. Each testified that they had seen defendant working on a couch or asleep on a table in the shop at various times ...


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