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10/12/89 the People of the State of v. Russell Lee Roberts

October 12, 1989





544 N.E.2d 1340, 189 Ill. App. 3d 66, 136 Ill. Dec. 565 1989.IL.1624

Appeal from the Circuit Court of Macon County; the Hon. Rodney A. Scott, Judge, presiding.


JUSTICE GREEN delivered the opinion of the court. McCULLOUGH, P.J., and STEIGMANN, J., concur.


In People v. Bryant (1986), 113 Ill. 2d 497, 499 N.E.2d 413, a defendant was charged with and convicted of attempt (burglary). The alleged substantial step toward the commission of burglary was that he had pulled a screen from a window and then broke that window of a building with the intent to enter the building and commit a theft. The supreme court held that defendant was entitled to an instruction on the offense of criminal damage to property (Ill. Rev. Stat. 1983, ch. 38, par. 21-1(a)), the commission of which offense was supported by the evidence. Here, an accused was charged with (1) burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-1); and (2) attempt (burglary) (Ill. Rev. Stat. 1987, ch. 38, par. 8-4), the substantial step toward the commission of which was the breaking of a window of a certain building with the intent to commit theft. The evidence was sufficient to support a conviction of criminal damage to property, but the circuit court refused the instruction. The State was then given leave, over defense objection, to dismiss the attempt (burglary) charge. We conclude the dismissal of the attempt (burglary) charge distinguishes this case from Bryant and cured any error in the refusal of the criminal damage to property instruction.

The defendant here is Russell Lee Roberts, who was charged with the described offenses by an information filed in the circuit court of Macon County on August 16, 1988. After a jury trial, the defendant was convicted of burglary on November 21, 1988. On December 2, 1988, the court sentenced defendant to 22 years' imprisonment. He has appealed, contending the evidence did not support the verdict and the court erred by refusing instructions he tendered as to the offenses of both attempt (burglary) and criminal damage to property. We affirm.

The evidence was neither extensive nor complicated. It showed that Richard McDonald was in the business of selling insurance, and his Decatur office had been intact when closed on Friday, August 12, 1988. Mary Covey testified that, the next day, Saturday, August 13, 1988, at approximately 9:45 p.m. she saw two men outside that building. She said one man threw rocks at the building and then walked to the back of the building while the other man ran away. Two police officers testified that, upon receiving a report from Covey, they drove to the building, arriving at 9:49 p.m., and saw defendant standing outside the building at ground level and near two broken windows. The officers' testimony further indicated that, upon entering the building, they found: (1) two rocks, papers, and broken glass on the floor beneath the broken windows; (2) circular scratches on an interior door of the office; (3) a telephone jack which had been pulled from a wall; and (4) an ashtray and chair had been moved from what other testimony described as their usual positions. Evidence also showed that five sheets of the paper on the floor contained red stains made by blood of the same type as that of the defendant. Testimony also indicated a wire basket which had been on a bookcase approximately four feet off the floor was found on the floor. Fingerprints identified as those of the defendant were found on glass fragments outside the building. Those prints appeared on fragments of both dark exterior window glass and light interior glass. No showing was made that anything of substance had been taken from the building. The evidence was undisputed defendant had no authority to enter the building.

Defendant's evidence consisted entirely of his own testimony. He gave the following explanation of his presence and conduct on the evening of Saturday, August 13, 1988, at the building where McDonald had his office. The previous day he had telephoned the office of the building's owner and talked to a person whom he could not identify. He asked that person about obtaining employment and had been treated rudely. Then, the next night, after he had consumed four or five beers, he walked by the building, and, on impulse, he decided to get revenge. He picked up a large rock and tried to throw it at a window, but the rock did not reach the window, so he pushed it against the window, breaking the window but also cutting his hand on the broken glass. He then picked up a smaller but heavier rock and threw it through the window. He then took a brick from a nearby pile and was about to attempt to break the front door when the police arrived. Defendant stated he did not enter the building and had no intent to do anything other than to damage the building. He stated he was alone at the time.

The question of whether the evidence supported the verdict finding defendant guilty of burglary depends upon the sufficiency of the circumstantial evidence (1) to show defendant entered the building; and (2) to create a sufficiently strong inference that, in doing so, he intended to commit a theft as alleged in the information. The testimony of the defendant was disputed by the testimony of Covey that two men were together at the building and was greatly weakened by his inability to identify who he talked to in seeking work. Even though proof of defendant's guilt depended upon circumstantial evidence, the prerogative of the jury to determine the credibility of witnesses entitled it to reject the testimony of the defendant here. (People v. Locascio (1985), 106 Ill. 2d 529, 537, 478 N.E.2d 1358, 1361.) For reasons we will explain, we hold the circumstantial evidence was sufficient for a reasonable jury to find, beyond a reasonable doubt, that every element of the burglary had been proved. People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277.

The evidence of entry here is shown by the blood on the paper below the broken window, and the damage done to the property inside the building. Defendant maintains the existence of the blood can be reasonably explained upon a theory that defendant cut himself while breaking the window. However, the blood would not have been likely to have fallen inside the window if defendant merely threw a rock through the window or even if he had pushed a rock against the window. Nor would his fingerprints likely have been on glass fragments from both an interior and exterior window. The existence of this blood and these fingerprints can only be explained on a basis that defendant stuck his hand well inside the window. In People v. Palmer (1980), 83 Ill. App. 3d 732, 404 N.E.2d 853, this court held a sufficient entry to support a burglary conviction occurred when an accused punched a hole in a roof of a building and entered parts of his body into that building. See also People v. Songer (1963), 28 Ill. 2d 433, 192 N.E.2d 861; People v. Roldan (1968), 100 Ill. App. 2d 81, 241 N.E.2d 591.

The existence of the blood on the paper was, of itself, enough to prove entry by defendant. The existence of the damage to the property inside the building and fingerprints on the interior glass was further proof of defendant's entry. The time frame between the breaking of the windows and the finding of the damage inside the building by police was such as to negate any theory that defendant broke the window, but one or more other persons, for whom defendant was not accountable, then entered the building and damaged the property. One or more other people could have entered the building after it was closed the previous Friday evening and before defendant broke the window and created the described damage. However, the likelihood of this happening was extremely remote, particularly in light of the fact no other indication of an entry to the building was shown. The jury could properly have disregarded such an hypothesis.

Citing People v. King (1985), 135 Ill. App. 3d 152, 481 N.E.2d 1074, defendant maintains the fact his fingerprints were found outside the building but not inside the building is of great significance. There, an accused was convicted of burglary of both a house and an unattached garage. The appellate court deemed the circumstantial evidence sufficient to support the burglary of the garage, where defendant's prints were found, but not the house, where no prints of the accused were found. In pointing out the lack of proof of the entry of the accused into the house, the King court did mention that a person who left prints in a garage while committing a burglary would also likely leave prints in a house if he committed a burglary of that house. Without passing upon whether we agree with that Conclusion, we note the King court did not deem the lack of prints in the house to be the determinative factor in the case. Rather, the determinative factor there was that no evidence existed of an entry into the house by the accused.

Defendant concedes the general rule that, where, as here, unauthorized entry into a building containing valuable property is shown, the trier of fact may infer the entry was made with intent to commit a theft. However, defendant points out that, in People v. Johnson (1963), 28 Ill. 2d 441, 443, 192 N.E.2d 864, 866, the court stated this rule was applicable only "in the absence of inconsistent circumstances." We do not consider the facts alleged in defendant's testimony to constitute "inconsistent circumstances" within the Johnson concept because the jury could properly disbelieve the explanation given by defendant. Other evidence showed defendant entered a building which contained personal ...

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