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03/30/94 D.C. v. D.C.

March 30, 1994


Appeal from the Circuit Court of Lake County. Nos. 90-J-395, 92-J-379. Honorable Victoria L. Martin, Judge, Presiding.

Petition for Leave to Appeal Allowed October 6, 1994.

Bowman, Quetsch, Inglis

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Respondent, D.C., was adjudicated delinquent and committed to the Department of Corrections after the trial court found that he committed a burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-1(a) (now 720 ILCS 5/19-1(a) (West 1992))). The sole issue for review is whether the State proved beyond a reasonable doubt that respondent committed the offense.

The three-count petition for adjudication of wardship alleged that respondent burglarized three vehicles. At the hearing, Jasper Lombardo testified that he lived at 431 Filweber Court in Antioch. On May 13, 1992, his vehicle was parked in the southeast corner of his apartment's parking lot. Around 5 a.m., a neighbor informed Lombardo that his vehicle had been broken into. The door to the vehicle was standing open, and Lombardo's graphic equalizer was missing. When Lombardo had last seen his vehicle, at 8:30 the previous evening, the equalizer was in it. Lombardo next saw the equalizer at the police station.

Sergeant Robert Lange, of the Antioch police department, testified that he responded to a dispatch of a burglary to a motor vehicle in progress. Lange saw a station wagon turn off Filweber Court, and he stopped the vehicle there. Officer Somerville arrived and assisted Lange with the stop. Lange recalled that respondent was sitting in the front passenger seat. When respondent exited the car, a flashlight and a black cap fell to the ground. Somerville told Lange that the person who reported the burglary, Patricia Pink, advised him that a cellular telephone had been taken from her vehicle. The officers saw a cellular telephone, an equalizer, and a cassette player on the floor in the backseat of the station wagon.

Officer Greg Somerville testified that he received a call around 3 a.m. of a burglary to a vehicle. He went to speak with Pink, who told him that she heard a noise in the driveway and looked out the window. She saw two people inside of the vehicle. When she turned on the porch light, they fled. She did not see their faces.

Somerville further testified that he went to assist with the stop of the station wagon two blocks from Pink's home. Sergeant Lange had stopped the vehicle a few minutes after Somerville went to Pink's residence, and it took Somerville only 45 seconds to arrive at the scene of the stop. According to Somerville, defendant was seated behind the driver, and at his feet were the cellular telephone, the equalizer, and the cassette player. Somerville also stated that when defendant got out of the car something fell to the ground, although Somerville did not notice what it was. Pink identified the cellular phone found in the station wagon as the one taken from her vehicle.

Officer Ronald Roth testified that he questioned respondent about the burglaries. Respondent told him that he and the three others were "partying" and he decided he wanted to visit his girlfriend who lived in Antioch. One of respondent's friends drove them to Antioch in respondent's grandmother's car. The four went to the Filweber Court apartments. Respondent went to the back window and spoke to his girlfriend. He tried to convince her to come out, but she could not. Respondent returned to the parking lot and found his friends going through the parked cars looking for things to steal. At that point, respondent joined them. From there they walked to a white house a couple blocks away. One of respondent's friends went into a vehicle and stole a car phone. Respondent stated that he did not go inside the car, but stood at the end of the driveway. The friend accidentally hit the car's horn, so the four ran back to respondent's grandmother's car and left. Roth asked respondent about the equalizer and the cassette player in the car. Respondent said that he saw the items sitting in the front seat of the car before the boys went to the white house, but he did not know they were stolen.

Respondent did not testify and presented no evidence. Respondent moved for a directed finding. The court granted it as to two counts of the petition, finding that the State failed to prove the "corpus" of those counts because the owners of the vehicles at issue in those counts did not testify. The court denied the motion as to the count involving Lombardo's vehicle. Following the arguments of counsel, the court stated its findings.

First, the court refused to consider the evidence of the cellular telephone and the cassette player. The court found that respondent's statement to the police was a "critical" piece of evidence. Although the court believed some of the statement, it did not accept all of it because some of respondent statements were refuted by circumstantial evidence. The court explained:

"[Respondent] decided he wanted to go see his girlfriend, * * * and while he was trying to convince her to come out at that hour of the morning, and we don't know how long it was, but at the point that he decided it was fruitless to continue, he returned to where he had left his three friends with his grandmother's car.

And he said he found his three friends looking through, and this is important, parked cars with an 'S', more than one, indicating actively looking at the time he ...

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