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07/09/96 PEOPLE STATE ILLINOIS v. BOYD BORGEN

July 9, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BOYD BORGEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Ogle County. No. 93--CF--98. Honorable John L. Moore, Dennis J. Riley, Judges, Presiding.

Released for Publication August 15, 1996.

The Honorable Justice Bowman delivered the opinion of the court: Thomas, J., concurs. Justice Geiger, specially concurring:

The opinion of the court was delivered by: Bowman

JUSTICE BOWMAN delivered the opinion of the court:

Defendant, Boyd Borgen, was charged with one count of burglary (720 ILCS 5/19--1(a) (West 1994)). A jury found defendant guilty, and the trial court sentenced him to seven years' imprisonment. Defendant now appeals both his conviction and sentence. We reverse his conviction.

The facts relevant to our decision are as follows. On July 14, 1993, defendant was charged by information with one count of burglary (720 ILCS 5/19--1(a) (West 1992)). The information alleged that on July 3, 1993, defendant knowingly and without authority entered the building of Jeff Wilmarth, located at 1028 Crestview Trail, Byron, Illinois, with the intent to commit a theft therein.

The trial commenced on November 1, 1993. Mary Wilmarth and Jeff Wilmarth testified that they live with their five children at 1028 Crestview Trail, Byron, Illinois. At 2:30 a.m. on July 3, 1993, as she was preparing for bed, Mrs. Wilmarth noticed the garage light turn on. Mr. and Mrs. Wilmarth described the garage as follows. The garage has two doors: an inside door and an outside door. The inside door leads directly into the laundry room of the house. The outside door, which is usually locked, serves as the entranceway between the garage and the yard and driveway. The garage holds a tool box, two lawn mowers, and various yard tools. The family's van and station wagon, at least on the night in question, were parked in the garage. According to Mrs. Wilmarth, her children sometimes sleep in the garage.

Upon seeing the garage light turn on, Mrs. Wilmarth woke up her husband. They then noticed the light turn off. Mr. Wilmarth then saw defendant, who had something under his arm, looking into the window of the station wagon. Mr. Wilmarth left the house and entered the garage through the inside door, but found no one there. He then exited the garage from the outside door and saw defendant standing at the edge of the driveway.

According to Mr. Wilmarth, he ordered defendant to stop. Defendant ran instead. Mr. Wilmarth then chased and caught defendant about a block from the Wilmarth home. He punched defendant about six times and asked him why he was in his house. Defendant answered that he was just looking for a place to sleep. Because no cars were stopping to help, Mr. Wilmarth took the item he had seen defendant carrying and let him go. He then returned to his house to call the police. The item he took from defendant was a purse. The purse belonged to a woman who lived several blocks from the Wilmarths.

Defendant, a convicted burglar and forger, testified that he frequented four taverns in Byron from 7:30 p.m. on July 2, 1993, to 2 a.m. on July 3, 1993. At 2 a.m. he started to walk home. While walking home, he noticed a purse lying in a driveway. According to defendant, he guessed that the purse belonged to whomever owned the property. He therefore walked into the garage through the open garage door and knocked loudly on the inside garage door. When no one answered, he turned on the garage light and peered into the station wagon, hoping to find the address or name of the owner of the house (and thus, presumably, of the purse). Not finding an address or name, defendant exited the garage from the outside door and saw the front of the house. While contemplating whether he should knock on the front door, Mr. Wilmarth came running at him with his fists in the air. Defendant ran but was caught by Mr. Wilmarth. Mr. Wilmarth punched him several times and asked him why he was in the Wilmarths' house. Mr. Wilmarth then took the purse and left. At the close of his testimony, defendant rested his case.

After being instructed, the jury returned a verdict of guilty. On February 14, 1994, the trial court, Judge Dennis J. Riley presiding, conducted a sentencing hearing on defendant's case. Judge John L. Moore, who had presided over defendant's trial, had retired. At the conclusion of the evidence, the State asked the trial court to impose a seven-year term of imprisonment, the maximum nonextended term available. Before imposing sentence, the trial court noted that "I didn't have any, any opportunity or ability to observe or here [sic] the details of [the facts of the case] at all." The trial court then sentenced defendant to seven years' imprisonment. In doing so, the trial court stated that defendant had five prior felony and six prior Class A misdemeanor convictions.

On March 15, 1994, defendant filed a motion to reconsider his sentence. At a hearing on the motion, defendant requested that he be allowed to enter the Illinois impact incarceration program. Defendant also asked the trial court to review a transcript of the trial testimony, because that was the only way it could evaluate the various factors in aggravation and mitigation. On April 20, 1994, the trial court ruled that it would not recommend or approve defendant for the impact incarceration program, and it denied defendant's request that it review a transcript of the trial testimony. Defendant then filed this appeal.

Defendant has three contentions on appeal: (1) the evidence was insufficient to prove him guilty beyond a reasonable doubt of burglary; (2) the prosecutor's cross-examination of him, which revealed he was not married to the mother of his child, and which insinuated he had prior convictions for residential burglary, denied him a fair trial; and (3) the trial court abused its discretion when it failed to review a transcript of the trial testimony before sentencing him.

Defendant first contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt of burglary. Defendant argues that the evidence adduced at trial established he entered a dwelling--an attached garage to a single-family home--in violation of the offense of residential burglary. Because the offenses of residential burglary and burglary are mutually exclusive, defendant reasons he could not have been guilty of burglary. As such, he asks that we reverse his conviction outright.

Our standard of review on a challenge to the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Collins, 106 Ill. 2d 237, 261, 87 Ill. Dec. 910, 478 N.E.2d 267 (1985); People v. Charleston, 278 Ill. App. 3d 392, 398, 215 Ill. Dec. 22, 662 N.E.2d 923 (1996). This standard of review does not normally allow the reviewing court to substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses. People v. Childress, 276 Ill. App. 3d 402, 409, 657 N.E.2d 1180, 212 Ill. Dec. 835 (1995). Where the evidence is conflicting, it is the prerogative of the trier of fact to ascertain the truth and resolve minor discrepancies in the testimony of the witnesses. People v. Lovings, 275 Ill. App. 3d 19, 22, 211 Ill. Dec. 769, 655 N.E.2d 1152 (1995). Nevertheless, despite the ...


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