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May 2, 1994


Appeal from the Circuit Court of Winnebago County. Nos. 91-CF-2699, 91-CM-11089. Honorable John W. Nielsen, Judge, Presiding.

Released for Publication June 8, 1994.

Colwell, Inglis, Geiger

The opinion of the court was delivered by: Colwell

JUSTICE COLWELL delivered the opinion of the court:

Defendant, Frank Atherton, was convicted of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3(a) (now 720 ILCS 5/19-3(a) (West 1992)) and resisting or obstructing a peace officer (Ill. Rev. Stat. 1991, ch. 38, par. 31-1 (now 720 ILCS 5/31-1 (West 1992)). He was sentenced to 10 years' imprisonment for residential burglary and to a one-year concurrent term of imprisonment for the misdemeanor conviction. On appeal, defendant raises as his sole issue whether his conviction of residential burglary must be reversed because the trial court refused to instruct the jurors regarding the affirmative defense of mistake of fact.

Defendant originally pleaded guilty to residential burglary, but he was allowed to withdraw his guilty plea and the cause proceeded to a jury trial. Lenore Ellison, the State's first witness, testified that on December 23, 1991, she lived in a downstairs apartment at 1440 Fourth Avenue in Rockford. As a result of a telephone call from the police, she left work and returned to her home before noon. She described the interior of her apartment as being in "total shambles," with garbage strewn over the dining room area. Ellison kept her garbage in a container which had been lined with a plastic bag, but the bag had been removed and stuffed with Christmas presents taken from other areas of her apartment. She found her video recorder, jewelry, and some loose coins from her penny collection stuffed inside of a pillow case. Her television set had been unplugged. Contents from the drawers in her bedroom had been dumped onto the dog's bed. Additionally, Ellison noted that the window in the laundry room which led to her apartment from the back door of the building had been broken and a board that she had placed over the door had been moved. The casing around the window had been damaged. Missing from her apartment were a camera and some jewelry. She recovered those two items from the police.

Robert Payne testified that he lived across the street from Ellison and from his window at approximately 11:30 a.m. on December 23, 1991, he noticed two men, one white and one black, standing across the street and throwing snowballs at one another. Payne was familiar with 1440 Fourth Avenue and he noticed the black man, later identified as Donald Hirsch, go into the front door which led to the upstairs. The white male, identified by Payne as defendant, walked up the street to the corner. Hirsch came back downstairs, and defendant returned to the front of the house. Hirsch again went up the front stairs and defendant stayed out front and looked up and down the street. Payne watched for some minutes until defendant also climbed the front stairs, and then Payne called the police.

When the police arrived, Payne told them that he had seen two men enter the upstairs apartment at 1440 Fourth Avenue, an apartment he knew to be vacant. Payne watched as a police officer chased Hirsch over a fence and another officer chased defendant until a third officer caught him. A struggle ensued, with defendant kicking and punching the officer. Payne testified that Hirsch was dressed with a muffler around his face and his hood up, but defendant had nothing concealing his face.

Police officer Patrick Hoey responded to a burglary in progress and upon his arrival at the scene he was advised by Officer Meehan that two men might be in the building. Once the building was surrounded, Officer Hoey approached the front of the building and was met by a black man who was exiting the building. The man appeared startled and slammed the door in Hoey's face, locking the door. Hoey radioed to other officers to inform them that people were inside the building and then he heard Officer Meehan scream from the back of the house. Hoey ran to the back where he saw a black man jump over the fence at the back of the house. He also saw Officer Meehan struggling with a white man. Another officer, Officer Girardi, assisted Meehan so Hoey chased the black man through some yards. Hoey recovered a jacket from the backyard where the black man had been hiding. Upon recovering the jacket, Hoey noticed the pocket had been ripped out. He found the pocket, and inside the pocket, Hoey found a camera and a necklace. Hoey apprehended the black man and returned to the scene where he saw defendant sitting in the back of a squad car.

Michael Meehan, a Rockford police officer, was the first to arrive at the scene after Robert Payne called police. When Officer Hoey and Officer Girardi arrived, he checked the rear of the residence and observed fresh footprints leading to the staircase of the residence. After Meehan returned to the front of the residence, he observed a black man inside of the house and saw the man slam the door. Meehan then went to the back of the house where the black man and defendant were exiting the back staircase. Defendant was in the lead, and Officer Meehan took out his gun and pointed it at him. Meehan ordered defendant to stop, but the men continued down the stairs and defendant then ran around Meehan and ran behind the residence. Meehan chased him and tackled him. Defendant continued to struggle and attempted to grab Meehan's arm which held the gun. At that point, Officer Girardi assisted and placed defendant on the ground, handcuffed him, and took him into custody. At a later date, Meehan talked with Ellison, who told him that she had not given anyone permission to be in her apartment on December 23, 1991.

Dawn Smith testified for the defense that she and her husband had rented a room in their house to defendant approximately six months prior to December 23, 1991. For approximately two weeks prior to that date, Smith's husband had allowed Don Hirsch to live with them because he had been kicked out of his apartment. When Hirsch moved in, he brought just clothing. He indicated he had possessions at other places, but did not specify where. At approximately 11 a.m. on December 23, 1991, Smith heard a conversation between defendant and Hirsch. Hirsch asked defendant to help him move his things from an apartment he had previously lived in to his new place. Defendant agreed to help and he left. Smith stated that Hirsch told her that he used to stay at the Grand Hotel. Despite the fact that Smith knew defendant had been arrested by December 24, 1991, she did not contact the police regarding the conversation she had overheard. Smith admitted that she had a conviction of misdemeanor retail theft; that since December 23, 1991, she had moved into a house for alcohol rehabilitation; and that at the beginning of 1992 she had moved to a shelter because her husband abused her.

Defendant testified that he had pleaded guilty to two counts of armed robbery on January 22, 1985, and he was currently on parole. According to defendant, on the morning of December 23, 1991, Don Hirsch woke him up and asked if he would help him move some of his belongings from a house he used to live in. Defendant agreed to do so. Defendant did not know where to go, so he followed Hirsch. They walked to the front door of a house, went up the steps, and opened the door to an apartment. The apartment appeared to be vacant, and Hirsch told defendant that his things must be downstairs where the landlord lived. Hirsch suggested that defendant wait outside, so defendant did. Defendant waited approximately 10 minutes until Hirsch called him.

At that time, defendant went to the back of the residence, climbed the stairs, and started to enter the lower apartment. Defendant noticed some garbage bags and broken glass. Then, Hirsch came running out and pushed defendant out the door. Defendant saw a police officer with his gun drawn, got scared, and ducked under the staircase. Defendant tried to explain the situation and move the gun from his face, but Officer Meehan hit him in the ribs and the two began to struggle. Defendant testified it was not his intention to steal anything from the apartment at 1440 Fourth Avenue.

On cross-examination, defendant stated that he did not take any boxes, bags, or a cart over to the house to help Hirsch move. Defendant ...

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