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05/06/94 PEOPLE STATE ILLINOIS v. DANA KITTINGER

May 6, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DANA KITTINGER, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Kane County. No. 91-CF-1528. Honorable Melvin E. Dunn, Judge, Presiding.

Released for Publication June 8, 1994.

PECCARELLI, Woodward, McLAREN

The opinion of the court was delivered by: PECCARELLI

JUSTICE PECCARELLI delivered the opinion of the court:

Defendant, Dana Kittinger, was convicted of one count of residential burglary (Ill. Rev. Stat. 1991, ch. 38, par. 19-3(a) (now 720 ILCS 5/19-3(a) (West 1992))) for entering the apartment of a former friend without authority in order to steal a TV and VCR. On appeal, defendant contends that the trial court committed reversible error by failing to answer a jury's question about the meaning of "without authority."

Barbara Powell testified that she had known defendant for four or five years. She and defendant had a relationship and then a friendship. Powell lived on the second floor of an apartment building. In the summer of 1991, defendant was spending a lot of time at her apartment. Defendant would sometimes enter the apartment when she was not there to baby-sit her children. Powell would loan him her key on these occasions. Defendant also stored his TV and VCR in Powell's apartment. Powell testified that early in August 1991 she and defendant ended their friendship. Powell did give defendant permission to enter her apartment prior to the end of their friendship and she told her son not to return defendant's TV and VCR when she was not there. However, defendant went to Powell's apartment the day after the breakup when Powell was not there, and Powell's son let defendant in and gave him his TV and VCR. Powell did not remember the exact date that this occurred, but she estimated that it was between nine days and two weeks before August 19, when she started her paper route. She admitted that she was angry that defendant had taken his TV and VCR from her apartment without her permission.

Powell testified that on September 12, 1991, Powell owned a TV and VCR which she kept in her living room. At this time, the only person other than Powell living in Powell's apartment was her daughter Laura. At 6 a.m. on that morning, Powell left for work and took her daughter with her. Powell locked the door on her way out. Powell had not given anyone permission to enter her apartment or remove any items. Powell returned to her apartment during her break between 9:30 and 10 a.m. so that she could record something on her VCR. She noticed that the TV and VCR were missing, and she called the police.

James Kruger of the Carpentersville police department testified that at 10:06 a.m. on September 12, 1991, he went to Powell's residence to investigate a burglary. Kruger concluded that there was no sign of forced entry to the apartment. In addition, he observed an empty VCR box and a VCR remote control in the apartment.

Sandra Fox testified that on September 12, 1991, she was living in the apartment next door to Powell's with her eight-year-old daughter Terrie. Between 8 a.m. and 8:30 a.m. that morning, as she was leaving the apartment to take her daughter to school, she saw defendant leave Powell's apartment with a TV and put the TV into his car. She thought nothing of this at the time. Fox recognized defendant because she had seen him a few times in the apartment complex with Powell or Powell's children. Later that day she reported to Powell what she had seen that morning. Three days later Fox picked defendant out of a photographic lineup. On cross-examination Fox admitted that she did not remember the exact date that she saw defendant with the TV.

Terrie Fox also testified that on the morning of September 12, 1991, as she was leaving for school with her mother, she saw defendant walk out of Powell's apartment carrying a TV. Terrie also picked defendant out of a photographic lineup.

Dennis Johnson of the Carpentersville police department testified that on September 15, 1991, he presented the photographic lineup containing defendant's picture to Sandra and Terrie Fox and that they identified defendant as the man that they had seen on September 12, 1991, in the apartment building. The trial court instructed the jury as follows on the offense of burglary:

"A person commits the offense of residential burglary when he knowingly and without authority enters the dwelling place of another with the intent to commit therein the offense of theft.

To sustain the charge of residential burglary, the State must prove the ...


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