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05/04/94 PEOPLE STATE ILLINOIS v. JAMES W. DUNCAN

May 4, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES W. DUNCAN, A/K/A JAMES AUSTIN, A/K/A JAMES WEEK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Putnam County, Illinois. No. 92-CF-11. Honorable Robert A. Barnes, Jr., Judge, Presiding

Released for Publication June 9, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Present - Honorable Kent Slater, Presiding Justice, Honorable Allan L. Stouder, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Slater

PRESIDING JUSTICE SLATER delivered the opinion of the court:

Following a jury trial, the defendant, James W. Duncan, was convicted of arson (Ill. Rev. Stat. 1991, ch. 38, par. 20-1(a)) and two counts of burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-1(a)). He was subsequently sentenced to a term of seven years' imprisonment. The defendant appeals. We vacate one of the two burglary convictions.

The defendant was charged by information with one count of arson and two counts or burglary. One burglary count alleged the defendant had unlawfully entered the Four Corners Tap with the intent to commit a theft and the second alleged he had entered the Four Corners Tap with the intent to commit arson.

The trial record reveals that when the Four Corners Tap, a restaurant and bar located at Magnolia, closed for the night on March 25, 1992, it was left in good condition. However, early the next morning, delivery men arriving at the establishment found the natural gas in the ovens turned on with the pilot lights off. Also, a juke box and poker machines had been pried open and rifled through. An empty money box and bottles of liquor were found lying on the floor. Liquor from the bottles had been splashed over the floor and walls. A milk jug which smelled of gasoline was also on the restaurant floor, and two burned areas were found inside the building. The window in front of the dining room had been broken, and there was a scorched area under and around it.

Robert McLean, Jr., testified that he was with the defendant on the evening of March 25, 1992, and the next morning. McLean stated that he and the defendant had driven by the Four Corners Tap the night of March 25, 1992, and discussed burglarizing the building and burning it down.

After collecting tools, a milk jug full of gasoline, and dark clothes, McLean and the defendant walked to the Four Corners Tap and pried open one of the doors. They went inside, pried open the poker machines and juke box, and took the money from them. McLean stated that he and the defendant then dumped liquor and gasoline on the floor and the walls before lighting a slow starting matchbook fuse. The two men left, returning to McLean's home. However, they went back to the restaurant later because no fire had started in the building. The defendant said they had to go back to "finish in case we left any evidence to incriminate us."

Defendant prepared a Molotov cocktail from a tomato juice bottle filled with gasoline. He told McLean to bring a rock to break the window. They drove to the Four Corners Tap. After McLean threw the rock through a window, the defendant hurled the Molotov cocktail toward the broken window. The device did not detonate inside the building, instead, it detonated on the window frame.

The men again returned to McLean's house and waited to hear the fire alarm. When they heard no alarm, they again returned to the Four Corners Tap. This time, the defendant tossed chameleon flower fireworks into the building through the broken window. The fireworks caused only momentary sparking. The defendant and McLean then went back to McLean's house and did not return to the Four Corners Tap again.

The jury found the defendant guilty of arson and both counts of burglary. On appeal, the defendant contends that one of his burglary convictions should be vacated because both convictions were based upon a single entry into the Four Corners. We agree.

The defendant is correct when he argues that multiple convictions based on the same physical act or acts cannot stand. ( People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, 6 Ill. Dec. 891.) A person commits burglary when "without authority he knowingly enters * * * a building * * * with intent to commit therein a felony or theft." (Ill. Rev. Stat. 1991, ch. 38, par. 19-1(a).) The essence of the crime is unlawful entry, and whether an entry is made depends upon the facts of an individual case. ( People v. Davis (1972), 3 Ill. App. 3d 738, 739, 279 N.E.2d 179.) Here, one of the alleged entries was physically made by the defendant when he entered the premises. The later entry arguably occurred when the defendant threw "sparkler type" fireworks through a broken window. The question before us is whether throwing the fireworks inside the building with the intent of starting a fire in the building was a second "entry" and, therefore, a second burglary. The court in Davis stated:

"One could hardly argue that it would not be burglary for a person to break a very small hole in a jeweler's window through which he inserted his hand, or his fingers or a small hook or other instrument and thereby removed or attempted to remove a piece of jewelry. It is not the size of the hole that is determinative but rather, in our opinion it is whether a hand or instrument was actually inserted into ...


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