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09/20/89 the People of the State of v. Alex Nolan

September 20, 1989





543 N.E.2d 1384, 188 Ill. App. 3d 251, 135 Ill. Dec. 637 1989.IL.1463

Appeal from the Circuit Court of Clinton County; the Hon. E.C. Eberspacher, Judge, presiding.


JUSTICE CHAPMAN delivered the opinion of the court. RARICK and GOLDENHERSH, JJ., concur.


After a jury trial, defendant was convicted of theft by deception in violation of section 16-1(a)(2) of the Criminal Code of 1961 (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(a)(2)), a Class 4 felony (Ill. Rev. Stat. 1985, ch. 38, par. 16-1(b)(2)). The defendant was sentenced to three years in prison, and he now appeals, arguing: (1) that he was not proved guilty beyond a reasonable doubt because the State failed to offer any evidence of a prior theft conviction at trial; (2) that his conviction for misdemeanor theft was improperly enhanced to felony theft; and (3) that the defendant was denied a fair trial because the trial court erroneously admitted evidence of a subsequent act. In addition, the defendant also contends that his sentence was improper because the trial court failed to comply with the Alcoholism and Substance Abuse Act (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6301 et seq.), and the court improperly considered an invalid prior conviction as an aggravating factor.

The defendant was charged with theft by information filed on June 10, 1986, in Clinton County. Prior to trial the defendant moved to exclude evidence of a 1982 Kankakee County attempted theft conviction because there had been no showing that the defendant had waived counsel prior to entering a plea of guilty. The court granted the defendant's motion.

At the defendant's trial, Tricia Butler, a cashier at the National Food Store in Centralia, Illinois, testified that about 4:30 p.m. on June 9, 1986, the defendant purchased four boxes of corn muffin mix at her checkout lane. As Butler scanned and bagged the purchase, the defendant spoke very rapidly and told Butler that he had just won $600. The defendant handed Butler $1.01 in correct change for his purchase. The defendant then produced some $5 bills from his pocket and told Butler that he wanted "$50 worth -- five tens" for gambling purposes. Butler counted out five $10 bills from her register drawer. Butler then began to count the defendant's money when the defendant grabbed the five $10 bills from Butler's hand and said, "Let me count your money while you count mine." Butler grabbed the five $10 bills back, placed them on top of her register and continued to count defendant's money. Butler found that the defendant had given her nine $5 bills and four $1 bills totalling $49, and informed the defendant that he was $1 short of $50. The defendant insisted that he had given Butler $50 and asked her to recount the money. Butler again counted only $49. The defendant asked that Butler recount his money while he counted her money. Defendant then grabbed the five $10 bills and placed that money, together with the defendant's money that Butler held, in one pile, which the defendant told Butler now totaled $100. Butler counted the money, which totaled $100. The defendant then stated that he wanted five $20 bills. Butler placed all the money in her register drawer, pulled out five $20 bills, and handed the money to the defendant. The defendant then left the store. Butler immediately realized she was $50 short, and instructed the bagger, Gerad Peters, to go outside and find the defendant. Butler then checked the register drawer, which was $50 short.

Gerad Peters testified that he had been bagging groceries for Butler when the defendant came through Butler's check-out line. Peters corroborated the testimony of Butler as to the exchange of money between the defendant and Butler. As the defendant left the store, Peters observed a reading of 58 cents on Butler's register. Peters observed that Butler appeared upset and confused. Peters assumed the defendant had failed to pay Butler 58 cents. Peters went outside and approached the defendant in front of the store. He asked the defendant to return inside the store to pay 58 cents. The defendant replied that he was in a hurry because his wife was waiting in the car, and asked if he could give Peters the 58 cents. Peters agreed, and after handing Peters the 58 cents, the defendant walked away. When Peters returned inside the store, he learned that Butler was short $50 rather than 58 cents. Peters, the store manager, and a police officer went outside but were not able to find the defendant.

Outside the presence of the jury, the defendant moved to bar the testimony of the next witness, Kimberly Michael, on the grounds that she would testify to conduct which occurred subsequent to the incident at the National Store which did not constitute a criminal offense. The State proposed that Michael's testimony established an attempted theft by the defendant and, therefore, would be admissible to show intent. The court denied the defendant's motion, but noted that it would give a limiting instruction to the jury that Michael's testimony was admitted only to show motive, intent, design, absence of mistake, or modus operandi.

Kimberly Michael, a cashier at the Kroger Food Store, located about one block from the National Store, testified that on June 9, 1986, about 4:30 p.m., the defendant purchased a plant. The defendant gave Michael a $20 bill, and Michael handed him a $10 bill and eight $1 bills in change. During the exchange, the defendant spoke rapidly about poker games and asked Michael for different change than she had given him. Michael replied that she did not have any other bills. Michael's register drawer was open and the defendant observed a $100 bill inside. The defendant told Michael that he needed larger bills and, since she did not have any smaller bills, he would give her twenties and tens for the $100 bill. An assistant manager then telephoned Michael and informed her that the National Food Store had just advised Kroger that the defendant was a "quick-change artist." The defendant held a handful of bills and repeated his request for the $100 bill. Michael told the defendant he would have to go to the store's office for change. The defendant accompanied her to the office, but then left the store without waiting for change.

The defendant testified that on June 9 he went to the National Food Store and purchased cornbread mix. The cashier was very friendly and, when the defendant pulled out money to pay for his purchase, asked where he had obtained so much money. The defendant explained that he had won it in a poker game, but that he preferred larger bills, since they would be easier to hide from his wife. Following the exchange of money between the defendant and the cashier, the defendant stated that he did not realize that he had money belonging to the store. A young man followed him and asked him for 58 cents, which the defendant handed to him. The defendant then went to the Kroger Store, made a purchase, left the store and entered his car. The defendant then observed a man waving to him from about a block away. The man was from the National Food Store and told the defendant that their cashier had given the defendant too much money. The defendant explained that he had already returned 58 cents, but the man explained that the missing sum was $50. The defendant stated that he counted his money, concluded that he had $50 too much, and handed the man $50 in $5 bills. The man thanked the defendant and walked away. The police then arrived. The defendant further testified that he had been married five times and that he had last seen his wife in 1979. The defendant denied asking the cashier at Kroger for the $100 bill.

The jury found the defendant guilty. At sentencing on September 2, 1986, the State submitted a certified copy of the 1982 Kankakee County attempted theft conviction in aggravation. The State also offered, for enhancement purposes, a certified copy of a 1967 court record from Pemiscot County, Missouri, showing that a person named Alex Nolin had pleaded guilty to a charge of confidence game. The presentence investigation report indicated that the defendant frequently used heroin and cocaine, spending between $80 and $150 daily on narcotics.

Pattie Huber, a probation officer, testified at the sentencing hearing that the 1967 conviction represented a prior conviction of the defendant. Huber stated that in attempting to compile the defendant's criminal history, she submitted the defendant's name and birth date to the Federal Bureau of Investigation, but had not submitted the defendant's fingerprints. Huber confirmed that the defendant regularly used cocaine and heroin. Over objection, the court found that the defendant's ...

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