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January 21, 1994


Appeal from the Circuit Court of Cook County. Honorable Fred G. Suria, Jr., Judge Presiding.

Mcnulty, Murray, Cousins

The opinion of the court was delivered by: Mcnulty

JUSTICE MCNULTY delivered the opinion of the court:

Defendant Debra Smith was charged by information with arson and aggravated arson. Following a jury trial, she was found guilty of aggravated arson and sentenced to 12 years' imprisonment. In her appeal, defendant alleges that the State failed to prove her guilty of arson, that she received ineffective assistance of counsel, that the jury instructions were internally inconsistent, and that the trial Judge considered inappropriate factors in sentencing her. Additionally, in a post-appeal motion, defendant argues that no rational trier of fact could have found her guilty beyond a reasonable doubt. At present defendant has been released on bond pending appeal in order to receive cancer treatment at the University of Chicago Hospital. For the reasons which follow, we affirm the decision of the trial court.

Prior to the fire which occured on February 19, 1989, defendant was the owner and landlord of the apartment building at 7001 South Perry, Chicago. At trial, her several tenants (Sharon Lee, Benjamin James, Brian Cross, and Ernest Wilcox) testified that defendant had lived in the building with her four children and that for some time before the fire, utilities and heating were sporadic because defendant had trouble paying the bills. The tenants further testified that when they had started withholding rent, defendant had become angry and had threatened to burn the building down. Specifically, Ernest Wilcox (who had lived in the building approximately nine months, and whose apartment had been searched by the police during a drug raid) testified that on February 18, 1989, the day before the fire, he and Brian Cross had had an argument with defendant about rent money which they would not pay because there was no heat and the lights kept going out. According to Wilcox (and confirmed by Cross and James) defendant had said that she was going to "set the f-ing building on fire." Wilcox further testified that he saw defendant moving her belongings out of the house on February 18. On February 19, he saw her in the company of a young man who poured gasoline on the front porch of the home and started the fire. Additionally, Benjamin James testified that defendant phoned Sharon Lee just minutes before the fire and told her to get out of the apartment as new owners were coming.

In defense, Debra Smith denied burning the building or being with anyone who burned it, or making any threats regarding the burning. She testified that the building was her home and her sole source of income. She had no insurance on the building. Defendant further testified that the heated argument which took place the day before the fire was because of the rent owed by her tenants, and because she was upset at the drug dealing out of her building. Defendant alleged that Ernest Wilcox and the men staying in his apartment were dealing the drugs. When she had first become aware of the drug dealing, defendant had reported it to the police who had come out and arrested five men in Wilcox's apartment. Sometime later Wilcox had threatened her about giving him a hard time, and subsequently defendant's van had been blown up. Although defendant reported this incident to the police, she did not sign a complaint as she was afraid for herself and her children. Shortly after the argument with Wilcox on February 18, defendant moved out of the apartment because she was so afraid of "the activities that was taking place and people walking around with pistols bamming on my door [with pistols] several times all through the day."

On appeal, defendant initially argues that she was erroneously convicted of aggravated arson because all of the elements of arson (a lesser included offense) were not proven beyond a reasonable doubt. Applicable statutory authority defines arson and aggravated arson as follows:

"Arson. A person commits arson when, by means of fire or explosive, he knowingly:

(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; or

(b) With intent to defraud an insurer, damages any property or any personal property having a value of $150 or more.

Property 'of another' means a building or other property, whether real or personal, in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property." 720 ILCS 5/20-1 (West 1992).

"Aggravated arson. (a) A person commits aggravated arson when in the course of committing arson he knowingly damages, partially or totally, any building or structure, * * * and (1) he knows or reasonably should know that one or more persons are present therein or (2) any person suffers great bodily harm, or permanent disability or disfigurement as a result of the fire or explosion or (3) a fireman or policeman who is present at the scene acting in the line of duty, is injured as a result of the fire or explosion." 720 ILCS 5/20-1.1 (West 1992).

The two count indictment on which defendant was tried alleged that she had committed the offense of arson in that "she, by means of fire knowingly damaged real property, the building of the Department of Housing and Urban Development of the United States of America without the consent of the Department of Housing and Urban Development * * *." It also alleged that she committed the offense of aggravated arson in that she, "in the course of committing arson, knowingly damaged a building and structure located at or about 7001 South Perry, Chicago, and that she knew or reasonably should have known that one or more persons were present therein * * *."

Defendant contends that the State did not prove an essential element of the offense of arson because she did have the authority to defeat or impair any interest which HUD may have had in the Perry Avenue property at the time of the fire. At trial, the State presented two witnesses who testified to the nature of HUD's interest in the property. Ernest J. Codilis testified that he was a lawyer representing real estate mortgage bankers. On September 1, 1988, he had filed a suit for foreclosure on behalf of West America Mortgage Company on the building at 7001 South Perry in Chicago. On direct examination Mr. Codilis testified that there were three guarantors on the mortgage note: Debra Smith, Desiree Jones, and Patrick Kenny. He stated that mortgage payments on the property were in arrears and that therefore foreclosure procedures had begun. Mr. Codilis further testified that HUD was an insurer or guarantor of the mortgage issued by West America, and that in the event that foreclosure was completed, HUD would be paying the mortgage company their principal, interest, escrow advances and attorney fees, and in return, would be receiving the title to the property. However, Mr. Codilis also testified that at the time of the fire, foreclosure proceedings had not been completed and that defendant possessed the statutory right of redemption which would have allowed her to come in and pay off the loan, thus allowing dismissal of the foreclosure action (and ultimately, the passage of title to HUD). Defendant, however, never exercised this right of redemption and by the time of trial foreclosure proceedings had been completed and title to the property had actually passed to HUE). (On cross-examination, Mr. Codilis admitted that ...

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