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09/28/89 the People of the State of v. Donald Schuld

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DONALD SCHULD, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

548 N.E.2d 336, 191 Ill. App. 3d 809, 138 Ill. Dec. 923 1989.IL.1527

Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JOHNSON and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Following a bench trial, defendant and Wayne Damron were convicted of residential burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19-3.) Defendant was sentenced to five years' imprisonment. Damron was sentenced to four years' imprisonment and his appeal (No. 86-3275) was dismissed for want of prosecution on March 31, 1988. On appeal, defendant contends (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court erred in excluding him from treatment under the Alcoholism and Substance Abuse Act (Act) (Ill. Rev. Stat. 1985, ch. 111 1/2, par. 6301 et seq.).

Barbara Gelardi testified that on Monday, April 21, 1986, she lived at 2512 West 59th Street in an apartment above a tavern. She explained that there were five doors to the building and pointed them out on photographic exhibits admitted into evidence. About 6:45 p.m. she went to dinner and all the doors were locked. When she arrived home about 8:40 p.m., glass from the back door of the apartment was broken, the door was open and the police were present. Boxes of papers belonging to her daughter, who was moving, were upstairs and the papers were scattered. Dogs that were left in the tavern area were upstairs. The door between the apartment and the tavern on the first floor was open. A police officer had a paper bag containing $106 which was missing from the tavern register. She identified defendant and Damron as customers of the tavern for two months.

Chicago police officer Fred Brownfield testified that about 7:45 p.m. he went to the building in question with Officer Shelton. He went to the front door of the building, heard noises and found defendant, who was carrying a paper bag, coming out of the door leading to the apartment. The bag contained $106 in bills and coins. The officer arrested defendant and found a screwdriver when he searched defendant. During cross-examination, he was questioned concerning grand jury testimony in which he had stated that he saw defendant coming from the front door of the tavern. The witness reiterated his trial testimony that he had seen defendant coming from the apartment door which was connected to the tavern.

Chicago police officer Melvin Shelton testified that Officer Brownfield went to the front of the building, and Shelton went into the upstairs apartment from the rear entrance. There he found the doors open and windows broken. He also found Damron huddled in the pantry in a crouched position, handcuffed him and led him downstairs. At that point, there were two doors. One led to the tavern and the other to the street. Both were wide open. He then saw defendant in custody but did not see a brown paper bag.

Wayne Damron testified that since February 1986 he had lived near the tavern and, on the day in question, he and defendant were standing and drinking in an empty lot behind the tavern. About 7:30 p.m. Larry Kalafut offered to sell him a radio which did not have a rear panel or batteries. When defendant paid Kalafut $10, Kalafut said that he could get the rear panel and batteries, and Damron followed Kalafut up the back stairs of the tavern building to an apartment where Damron believed that Kalafut lived. Kalafut told Damron to wait in the kitchen and went to the front, but did not return. Minutes later police officers arrived and arrested him.

James Cruz was a friend of defendant, and he testified that he saw Officer Brownfield arrest defendant, who was standing in front of the vacant lot near the tavern between 7:30 and 7:45 p.m.

Defendant contends that he was not proved guilty beyond a reasonable doubt and his conviction was based solely on the inconsistent and conflicting testimony of the Chicago police officers. For example, defendant emphasizes that Officer Brownfield's trial testimony conflicted with his grand jury testimony and also points out that Cruz said that defendant was standing in a vacant lot next to the tavern when he was arrested. Defendant next points to Officer Shelton's testimony that he did not see a brown paper bag, although Officer Brownfield testified that he seized the bag from defendant. These and other claimed inconsistencies in the State's testimony present matters of credibility for the trial court to resolve. In making its finding, the trial court specifically mentioned that it found the three State witnesses worthy of belief, but did not find Damron or Cruz believable witnesses. The court concluded that it was satisfied that both men entered the building together through the upstairs residence anticipating attempts to steal from all parts of the building.

In a bench trial, once a defendant has been found guilty of the crime charged, all of the evidence should be considered in the light most favorable to the prosecution. (People v. Bedony (1988), 173 Ill. App. 3d 613, 618, 527 N.E.2d 916.) Witnesses' credibility and the weight to be given their testimony are determinations exclusively within the province of the trier of fact. (People v. Collins (1985), 106 Ill. 2d 237, 261-62, 478 N.E.2d 267.) The crime of burglary requires that its elements often be proved by circumstantial evidence. (People v. Suane (1987), 164 Ill. App. 3d 997, 1005, 518 N.E.2d 458.) The trial court here found that defendant and Damron were acting in concert when they entered the building, and this Conclusion is justified by the evidence. The testimony of the two police officers placed both men inside the building at the same time. Defendant was in the possession of proceeds taken from the tavern portion of the premises and was apprehended as he left. The evidence was sufficient to find either that defendant had been in the residential portion of the premises or that he was acting in concert with Damron, who had been there. We find no reasonable doubt of defendant's guilt of residential burglary.

Defendant next contends that the trial court improperly excluded him from treatment under the Alcoholism and Substance Abuse Act. Defendant indicated immediately after the court's finding that he had a "problem with alcohol" and asked to be evaluated by TASC (substance abuse program). A TASC representative subsequently informed the court that defendant was an alcoholic who demonstrated likelihood for rehabilitation, but TASC was under the impression that an alcoholic only qualified for treatment if he qualified for a regular probation sentence. When the court asked the basis for this position, the representative stated that he was told this was the TASC position. The court then said it understood that the TASC position was that the statute that permits TASC treatment applies only to drug addiction as opposed to alcohol abuse, and defendant would not in any event be eligible for treatment because his conviction precluded probation. When defendant suggested a reevaluation for TASC treatment, the TASC representative said that there was some abuse of marijuana in defendant's history, but he would not venture to say that there was an addiction. In aggravation, it was stated that defendant was convicted and imprisoned for ...


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