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May 11, 1994


Appeal from the Circuit Court of Winnebago County. No. 91-CF-1408. Honorable David F. Smith, Judge, Presiding.

Quetsch, Geiger, Bowman

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Following a jury trial in the circuit court of Winnebago County, defendant, Angel M. Rivera, was convicted of aggravated arson (Ill. Rev Stat. 1989, ch. 38, par. 20-1.1(a)(1) (now 720 ILCS 5/20-1.1(a)(1) (West 1992))) and was sentenced to a 30-year term of imprisonment. On appeal defendant raises the following issues: (1) whether the trial court erred in refusing to give the jury a lesser included offense instruction on criminal damage to property; (2) whether improper remarks by the prosecutor during closing argument require a new trial; and (3) whether his sentence was excessive when compared with sentences imposed on two other participants in the offense.

On July 29, 1991, at about 10 p.m., Henry and Lillian Vandenbusch discovered that their house was on fire. Both were able to leave the house safely. An investigation determined that the fire had been intentionally set on the back porch of the Vandenbusch house and that an accelerant had been used. Defendant and two other individuals, James Benjamin and Daniel Weeks, were charged with aggravated arson in connection with the fire. Benjamin and Weeks pleaded guilty to arson and agreed to testify on behalf of the State against defendant.

As developed by the testimony of several members of the Vandenbusch family, the apparent motive for the offense related to defendant's turbulent relationship with Henry and Lillian Vandenbusches' granddaughter, Shari Vandenbusch. Shari testified that she had become involved in a romantic relationship with defendant near the end of 1990. In the following months, problems developed. Shari wanted to end the relationship, but defendant threatened to hurt her family if she left him. Shari testified that on one occasion defendant threatened to burn her grandmother's house down. Defendant was aware of Shari's close relationship with her grandparents who lived near Shari and her parents and sister.

Beginning in June 1991, there were a number of confrontations involving defendant, Shari's father, Mark Vandenbusch, and her uncle, Brian Vandenbusch. Mark testified that defendant would frequently come by their house screaming obscenities and threats. On a few occasions, Mark, Brian, or both had chased defendant and his friends. Shari and defendant finally broke off their relationship early in 1991.

Witnesses for the State testified about two occasions on which defendant directed threats against the Vandenbusch family. On July 11, while gathered with a group of people on the porch of a house across the street from Shari's house, defendant pointed a gun at Shari's house and commented that he wanted revenge and was going to "blow the bitch up." During a cookout on July 21, defendant remarked that he wanted to burn Shari's house down.

Shari's cousin, Michelle Jackson, testified that at about 7:30 p.m. on July 29 she was walking to Shari's house when she encountered defendant standing beside a car in which James Benjamin and others were seated. They were apparently picking up Daniel Weeks. Defendant told Michelle to give her family the message that he was going to burn somebody's house, ruin the pools, and ruin the cars. Shortly after defendant and the others left, Michelle related the incident to Shari's sister, Lori Vandenbusch, who was just arriving home from work. Lori testified that about a half hour to an hour after speaking with Michelle she encountered defendant in a car with another individual. Defendant said he was going to mess up the pool and the cars and was going to hurt someone in Lori's family. Defendant drove off, stopping in front of Daniel Weeks' house to pick Weeks up.

On July 29, defendant was staying at a home that Kevin Mabie shared with Dawn West and Larry Adams. That day, Adams had been involved in an altercation with Eric May, who was dating Shari Vandenbusch's sister, Lori, and was living with Shari, Lori, and their parents. Defendant and James Benjamin were present at Mabie's house on the evening of July 29, when Mabie, Adams, and West arrived accompanied by Daniel Weeks, whom Mabie had picked up on his way home from work. At that time defendant learned of the incident involving Eric May and Larry Adams and became extremely angry. Adams testified that defendant said "he was going to get Eric May." According to Adams, defendant asked for some money in order to "torch grandma's house," and Adams gave defendant $2. Kevin Mabie testified that defendant asked to borrow a gas can, and Mabie provided one. According to Mabie, defendant said he was "going to get them all" and was going to "make them pay." Mabie saw defendant, James Benjamin, and Daniel Weeks drive off in Benjamin's car. Adams and Mabie saw defendant again about 10 to 15 minutes later. Adams heard defendant say, "We torched the house." Mabie overheard James Benjamin tell defendant that he "couldn't believe how fast the house went up."

James Benjamin testified that upon learning of the altercation between Eric May and Larry Adams defendant said that "someone was going to die by 12:00 o'clock" and that he was going to "burn their house down." Defendant told Benjamin and Weeks to get in Benjamin's car. Defendant came out to the car carrying a gas can. On defendant's instructions, they drove to a gas station and defendant filled the gas can. After leaving the gas station, they stopped at a location near the home of Henry and Lillian Vandenbusch. Defendant told Benjamin and Weeks to come with him and threatened them when they were reluctant to do so. Benjamin and Weeks followed defendant to the yard of the Vandenbusch house, which was surrounded by two fences. Defendant climbed over both fences, but Benjamin and Weeks only climbed over the first fence. Defendant doused the porch with gasoline, and Benjamin saw flames. Benjamin denied having been chased by members of the Vandenbusch family, although he acknowledged that he had been involved in a fight with Eric May.

Daniel Weeks gave a similar account of the events on the evening of July 29. Weeks also testified, during cross-examination, that he had seen Michelle Jackson at around 8 p.m. on July 29, when Kevin Mabie, Dawn West, and Larry Adams came to pick him up. Defendant was not present with them at that time. Kevin Mabie and Daniel Weeks both testified that defendant had contacted them before trial and had asked them to testify that James Benjamin had set fire to the home of Henry and Lillian Vandenbusch.

Defendant testified on his own behalf. According to his testimony, on July 29, he and James Benjamin drove to defendant's former place of employment so that defendant could inquire whether a job was available. On the way, they observed Brian Vandenbusch's car. Defendant related that Brian had chased both defendant and Benjamin three days earlier, and Brian or another member or members of the Vandenbusch family had chased them on a prior occasion earlier in July. Seeing Brian's car, Benjamin said, "Come on, let's go get them," but defendant told Benjamin it was "too early." According to defendant, Benjamin had also been involved in an altercation with Eric May.

Defendant related that he became upset that evening when he learned that Eric May had struck Larry Adams. According to defendant, Benjamin said to him, "that's it, I will take care of it for you. What have I got to lose?" Defendant responded that they should go get Eric May. Benjamin told defendant to get a gas can, and defendant got one from Kevin Mabie. Defendant acknowledged that he may have asked Larry Adams for a couple of dollars, but stated during cross-examination that the money was for cigarettes. Benjamin, Weeks, and defendant drove to the gas station, and Benjamin said he was going to torch the house. Defendant thought Benjamin meant Shari's house. When he realized that Benjamin was referring to the house of her grandparents, Henry and Lillian, defendant repeatedly implored Benjamin not to do anything, saying that Henry and Lillian "ha[d] nothing to do with it." Defendant testified that Benjamin poured gasoline on the porch of Henry and Lillian's house, and as he backed away from the porch, he splattered some gasoline on defendant. At that ...

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