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01/27/94 PEOPLE STATE ILLINOIS v. JESUS ESCALANTE

January 27, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JESUS ESCALANTE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 90-CF-450. Honorable Thomas E. Hogan, Judge, Presiding.

Released for Publication March 3, 1994.

Bowman, Inglis, Geiger

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Following a bench trial, defendant, Jesus Escalante, was convicted of burglary to a motor vehicle (Ill. Rev. Stat. 1989, ch. 38, par. 19-1(a) (now 720 ILCS 5/19-1(a) (West 1992))) and was sentenced to 24 months' probation. Defendant raises the following issues on appeal: whether the information failed to state an offense; whether he was proved guilty of the offense beyond a reasonable doubt; and whether the trial court abused its discretion in denying a continuance in the absence of an interpreter.

The information charged that defendant committed burglary by entering the "motor vehicle of Stewart Davies, being a 1985 Pontiac Firebird, which was parked in the area of 215 N. Spring St., Elgin, * * * with the intent to commit a theft therein." After the State was unable to locate Stewart Davies, it moved to amend the information by deleting "of Stewart Davies" from the charge. Defendant objected to the amendment. The State indicated that it intended to call Stewart Davies's wife, Ann Davies, a co-owner of the vehicle. The court noted that the State might have difficulty proving the element of entry without authority, but it allowed the State to amend the information.

The court appointed an interpreter for defendant, who spoke only Spanish. From the record, it appears that defense counsel did not speak Spanish, and he communicated with defendant through an interpreter. The bench trial was held on October 11, 1991. Defendant was not present when the State called the first witness, but he arrived shortly thereafter, and the State repeated the questions that defendant missed. However, the interpreter did not arrive until late in the direct examination of the State's second witness. The court, previously denied defense counsel's request to wait for the interpreter.

The State's first witness, Officer David Buck, of the Elgin police department, testified that on March 10, 1990, around noon, he was called to the Ace Hardware store at 215 Spring Street. He parked his squad car next to a red Pontiac Firebird. "Mr. Davies" and Dale Moorhouse approached Buck. Based on their Discussion, Buck investigated the scene and the red Firebird. He did not see any damage to the vehicle.

Dale Moorhouse testified that around noon on March 10, 1990, he was sitting in his car in the Ace Hardware parking lot. Moorhouse saw a man walk into the parking lot and stop at a car parked in the third space from the store's entrance. The man opened the driver's door, got into the car, and sat behind the wheel briefly. The man reached for something, and then he got out of the car. Moorhouse saw him put an item into his pocket. The man closed the car door and walked out of the parking lot. Moorhouse identified defendant as the man who entered the vehicle in the Ace Hardware parking lot. Moorhouse further testified that he went into the store and informed the manager that a car had been burglarized, and Moorhouse was allowed to use the phone to call the police.

Ann Davies testified that she was married to Stewart Davies, but she did not know his whereabouts. She and Stewart Davies owned a 1984 or 1985 Pontiac Firebird. There was a radar detector in the Firebird on March 10, 1990, when Stewart Davies left with the car. When he returned home a few hours later, the radar detector was gone. The radar detector had been on the dashboard of the Firebird. Ann Davies did not know defendant, and she had not given him permission to enter the Firebird or take the radar detector. She also stated that Stewart Davies would not have allowed anyone to enter the car. Ann Davies admitted that she had no knowledge about what happened to the radar detector. She filed a petition for dissolution of her marriage to Stewart Davies. Ann Davies also stated on cross-examination that, on March 10, Stewart Davies went to the Ace Hardware store. The court then asked the witness about the size of the radar detector. She stated that it was small and would fit into a pocket.

Defendant testified that on March 10, 1990, he was working from 7 a.m. to 5 p.m. at a factory on Route 31 in Elgin. He denied that he was at the Ace Hardware on that date or that he did anything to a Firebird. On cross-examination, defendant admitted that he had a lunch break at noon on March 10, but he stated that he never went out for lunch.

In finding defendant guilty, the court determined that defendant's testimony was not credible, and it found that Ann Davies's description of the radar detector was consistent with Moorhouse's testimony that defendant took a small item from the car and put it in his pocket. The court found that defendant entered the vehicle without authority. In his motion for a new trial, defendant raised issues relating the sufficiency of the evidence. The court denied the motion, and defendant timely appealed.

Defendant first contends that the amended information failed to state an offense because it failed to allege that any person had a possessory interest in the vehicle. Initially, we must determine the proper standard to analyze this claim. Defendant argues that the information must set forth the nature of the offense charged as required by section 111-3(a) of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1989, ch. 38, par. 111-3(a) (now 725 ILCS 5/111-3(a) (West 1992)); People v. Thingvold (1991), 145 Ill. 2d 441, 448, 584 N.E.2d 89.) The State asserts that because defendant did not file a written motion to dismiss the information, the less strict standard of People v. Pujoue (1975), 61 Ill. 2d 335, 335 N.E.2d 437, applies. Under Pujoue, when a charging instrument is challenged for the first time on appeal, the standard is whether the charging document apprised the defendant of the precise offense charged with sufficient specificity so that he could prepare his defense and plead the resulting conviction as a bar to future prosecutions based on the same conduct. Pujoue, 61 Ill. 2d at 339.

We agree with defendant that the stricter standard applies here because defendant challenged the information before trial. ( People v. Wilder (1991), 219 Ill. App. 3d 437, 439, 579 N.E.2d 948; see also People v. Krause (1993), 241 Ill. App. 3d 394, 396, 609 N.E.2d 980.) Defendant objected to the State's proposed amendment deleting the name of the person with a possessory interest in the vehicle. The court considered that the State might not be able to prove the "without authority" element of ...


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