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April 17, 1995



Released for Publication May 26, 1995.

The Honorable Justice Wolfson delivered the opinion of the court: Beckley and Braden, JJ., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

The legislature has recognized that owners of stolen property should be able to recover their property without delay. A statute permits the use of photographs in place of the stolen item in a prosecution for certain offenses. This case requires us to examine that statute and the impact it had on this jury trial.

On February 5, 1992, the defendant Thaddeus Mikolajewski (a/k/a Edward Kazmierski) was arrested with Stanley Romanowski and Joseph Nickels for the crime of felony retail theft. The defendant was tried alone. After conviction, he was sentenced to a prison term of three years, to run consecutively to other offenses for which the defendant was on bond at the time of this offense.

At trial, the defendant vigorously opposed the admission of photographs of the stolen property. He specifically challenged the failure of the photographs to reflect the value of the property and the State's reliance on hearsay evidence to prove value. He asked that the jury be instructed on lesser-included offenses. The trial judge refused.

We find the trial court erred in refusing to instruct the jury on the lesser-included offense of misdemeanor retail theft. Using the authority granted us by Supreme Court Rule 366(a), we reduce the offense to misdemeanor retail theft and remand for sentencing on that conviction.


Evidence that the defendant was involved in the theft of property from Kohl's Department Store in Norridge was persuasive and need not be set out in detail.

A store security officer, Ruth Paulsen, saw Romanowski and Nickels remove four comforters from display bins in the Domestics Department. Paulsen and another security officer, Caroline Ewald, watched the two men leave the store without paying for the comforters. The two security officers and a Norridge police officer saw the two men enter the defendant's car, which had made five passes past the front door of Kohl's. The defendant finally parked it about 50 yards from the front entrance.

The police stopped the car just after it left the parking lot. The sealed comforters, bearing the Kohl's labels, were recovered. Later, at the Norridge police station, the defendant admitted he was going to be paid $100 to drive the other two men to Kohl's for the purpose of stealing merchandise.

Later that evening, Cpl. Blachut took a photograph of the comforters. Then Ruth Paulsen came to the police station. She asked for the comforters. Cpl. Blachut called Assistant State's Attorney Catania, who was the felony review State's Attorney on duty that night. Catania gave Cpl. Blachut permission to return the comforters to Kohl's. That permission was oral. There never was a written request from any assistant State's Attorney to return the property. Catania never looked at the comforters or the photograph.

Paulsen took the comforters back to the store, where she photographed them and returned them to inventory. The comforter trail ends there.

The next morning, the defendant was brought before a judge. The judge determined there was no probable cause to detain the defendant, and he was released. At that point, no charge was pending against the defendant.

Nothing of interest happened until February 18, 1992, when a grand jury returned an indictment against the defendant, charging felony retail theft. The indictment was filed February 25, 1992. The defendant was not arrested on the charge until some time in September 1992.

At trial, over objection, the State introduced into evidence the photographs taken by Cpl. Blachut and by Ruth Paulsen.

The photographs showed the comforters, still in their original wrapping, with Kohl's labels attached. But none of the photographs showed the price of any of the items. To prove value, Paulsen testified that she had seen the price tags, which are placed on the merchandise at Kohl's distribution center in Menomonee Falls, Wisconsin. She had nothing to do with that pricing. Added together, the price tags she saw reflected a retail price of $419.96, well above the $150 point that separates the felony from the misdemeanor under the retail theft statute. (See 720 ILCS 5/16A-3, 5/16A-10 (West 1992).) No price tags were produced at trial.

The defendant objected to the value testimony as inadmissible hearsay. In final argument, he talked about the State's failure to show the actual merchandise, with price tags, to the jury. He argued that the State failed to prove the value of the merchandise. The trial judge overruled the State's objection to that lack of value ...

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