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06/29/94 PEOPLE STATE ILLINOIS v. KERWIN SMITH

June 29, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KERWIN SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. No. 92-CF-143. Honorable Robert Manning, Judge Presiding.

Rehearing Denied and Released for Publication August 9, 1994.

Present - Honorable Allan L. Stouder, Justice, Honorable Tom M. Lytton, Justice, Honorable Michael P. Mccuskey, Justice

The opinion of the court was delivered by: Stouder

JUSTICE STOUDER delivered the opinion of the court:

The defendant, Kerwin Smith, was charged by indictment with burglary (720 ILCS 5/19-1 (West 1992)) and retail theft (720 ILCS 5/16A-3(a) (West 1992)). Following a jury trial, the jury found the defendant guilty on both counts. The trial court sentenced the defendant to 10 years in prison on the burglary offense and to a six-year extended-term sentence for the retail theft offense. We affirm as modified.

At defendant's trial, Jodi Babcock testified that on February 5, 1992, she was working as a manager at a Fashion Bug clothing store in Peoria. She testified that during business hours the store is open to the general public.

Sometime after 2:00 p.m. that day, Babcock was near the back of the store assisting a customer. At that time, another employee, Jennifer Adams was near the front of the store. Babcock noticed the defendant and a woman (later identified as Connie Doolittle) near the front of the store. The defendant and Doolittle were standing near a rack of leather coats, with the defendant standing behind Doolittle. The record shows the coats were individually chained to the rack.

Babcock testified she saw the defendant carry a plastic bag into the store. Babcock saw Adams approach the defendant and Doolittle, speak with them, and then walk away. Babcock walked toward thefront of the store, then returned to the back of the store. Shortly thereafter she walked toward the front of the store again, noting that Doolittle and the defendant were leaving the store. She testified she saw the defendant carrying the plastic bag when he left the store.

Immediately thereafter, two women entered the store and spoke with Babcock. Babcock testified she then "hollered" toward the back of the store for someone to call the police. Babcock ran outside in time to see the defendant drive by in a car. Babcock noted the type of car and the license plate number. She recognized the license plate was an out-of-state plate; however, she could not determine which state. Babcock later gave the police this information, along with a description of the defendant and Doolittle.

Babcock testified that after the defendant left the store, a chain which was holding one of leather coats was found to have been cut. At trial, Babcock identified a leather coat which was found in the defendant's car trunk as coming from her store. She further testified the coat was on sale on February 5, 1992, for $229.

On cross-examination, Babcock testified she did not see anyone in possession of wire cutters or bolt cutters. Nor did she see anyone cut the chain.

Jennifer Adams testified she was working as a salesperson at the Fashion Bug on February 5, 1992. Noticing the defendant and Doolittle near a rack of leather coats, and that Doolittle was looking at her, she approached the couple and asked them if she could be of any help. The defendant turned his head quickly toward her, while Doolittle responded that they were just looking. Adams testified she then walked away from the couple and that she saw them leave the store about three minutes later. As they left she noticed the plastic bag "they" were carrying appeared fuller then when "they" entered the store, and contained some type of dark clothing. (Neither the prosecutor nor defense counsel asked Adams whether the defendant or Doolittle was carrying the plastic bag.)

Immediately after the defendant and Doolittle left the store, Adams went over to the rack of leather coats to look for empty hangers - generally an indication that something had been taken. She found no empty hangers. At about the same time two women entered the store and spoke with Babcock. After overhearing what the women said to Babcock, Adams returned to the rack of leather coats to double check. She found that one of the chains appeared to have been cut. She told Babcock about the chain. Babcock "hollered back to the desk" for someone to call the police and ran out of the store. An inventory of the coat rack revealed that one of the leather coats was missing.

Thereafter, the police came to the store and spoke with her and Babcock. Adams testified the police called back about a half hour later requesting that someone from the store come to a local McDonald's. Adams went to the McDonald's and identified the defendant, Doolittle and the leather coat.

Over defense counsel's objection, Adams was allowed to testify that although the Fashion Bug was open to the general public, if she knew someone was entering the store with an intent to steal merchandise, she would not allow them in the store. On cross-examination, Adams admitted it was possible that the defendant and Doolittle entered the store with the intent to look at merchandise and perhaps purchase something. She also testified it was possible they formed the intent to steal the coat while they were in the store. She further testified on cross-examination that she did not see anyone take the coat, nor did she see anyone in possession of chain or wire cutters.

Peoria police officer, William Koenig, testified he was dispatched to the Fashion Bug on February 5, 1992, after a shoplifting report. Koenig spoke with Babcock and Adams, and then left the store to look for the vehicle described by Babcock. Subsequently he saw the car and followed it into the parking lot of a McDonald's. The car had Ohio license plates and the defendant was driving. He approach and asked the occupants for identification and ordered them out of the car. Koenig observed a small pair of wire cutters and a screwdriver on the front passenger seat. Admittedly without asking permission of the defendant, Koenig used the screwdriver to open the trunk. (The lock mechanism was broken.) In the trunk he found a bag and a leather coat. Subsequently, someone from the Fashion Bug came to the McDonald's parking lot and identified the leather coat as coming from the store.

The defendant testified he went to the Fashion Bug to buy a sweater for his mother. He testified he met Doolittle coming out of the store and that she followed him back into the Fashion Bug. He was in the store about five or six minutes. The defendant denied having wire cutters on his person while in the store. He also denied carrying the plastic bag. The defendant denied any intent or plan to steal merchandise while in the Fashion Bug. The defendant testified he did not see Doolittle put anything in the bag. They left the store together and drove to a mall. Doolittle asked the defendant if she could put the bag she was carrying into his trunk. Subsequently, he and Doolittle were stopped by Officer Koenig.

In rebuttal, Jodi Babcock testified she did not see Doolittle in the store prior to her coming in with the defendant.

The jury returned verdicts finding the defendant guilty of burglary and retail theft. The trial court sentenced the defendant to concurrent terms of 10 and 6 years ...


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