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June 30, 1997


Appeal from Circuit Court of Pike County. No. 95CF123. Honorable M. Carol Pope, Judge Presiding.

Honorable Rita B. Garman, J., Honorable James A. Knecht, J. - Concur, Honorable John T. McCullough, J. - Concur And Dissent. Justice Garman delivered the opinion of the court. Knecht, J., concurs. McCULLOUGH, J., concurs in part and dissents in part.

The opinion of the court was delivered by: Garman

JUSTICE GARMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Pike County, defendant Kenny W. Gwartney was found guilty of burglary (720 ILCS 5/19-1(a) (West 1994)), armed robbery (720 ILCS 5/18-2(a) (West 1994)), and armed violence (720 ILCS 5/33A-2 (West 1994)). Subsequently, the trial court sentenced him to 18 years' imprisonment on the armed violence conviction and granted him 139 days of credit for time spent in jail prior to sentencing. Defendant appeals, arguing (1) the trial court erred in instructing the jury on accountability and (2) he is entitled to 140 days of credit against his sentence. We affirm.

On October 13, 1995, defendant and Robert Baughman were each charged by information with one count of burglary, one count of armed robbery, and one count of armed violence. A consolidated jury trial was held on January 11 and 12, 1996.

Debra Lippincott testified that she is the manager at Lindsay's Tavern in Pittsfield, Illinois. During the evening of October 9, 1995, she was tending bar. At about 12:15 a.m. on October 10, 1995, Lippincott had closed the tavern and was counting her receipts. She heard a noise in the back room and investigated it. When she opened the storeroom door, she was confronted by two men. One of the men wore a baseball cap and the other wore some other type of hat. Both men wore bandannas over their faces. One of the men pointed a shotgun or rifle at her and ordered her to lie down on the floor. The other man had a knife. They went behind the counter, took a green money bag, and left. The bag contained cash and checks from that evening's business. One of the men wore a flannel shirt and the other wore a light-colored sweater or jacket.

On cross-examination, Lippincott estimated that the robbery took approximately five minutes. The back door was not locked, but the screen door was latched. All of the other doors were locked. Lippincott knew almost everyone in the tavern that evening. It was not possible for someone to have gone into the storeroom while the tavern was open and remain there until after closing time; she had been in the storeroom throughout the evening and there was no one back there.

Jackie Taylor testified that she was working as a bartender at the Out of Bounds Tavern in Pittsfield on October 9, 1995. At approximately 11:38 p.m., when she was closing the tavern, two men approached her at the door. One man wore a black stocking cap and the other wore a baseball cap. Both men wore flannel shirts and blue jeans. She identified defendant as one of the men. He asked if he could come in, and Taylor told him the tavern was closed. The men walked away. Taylor gathered her belongings, locked up the tavern, and went out to her car. The men were standing in the alley watching her. When she got into the car and started it, the men had disappeared down the alley. She drove through the alley and saw the men standing near a Dumpster. She could not identify the other man.

Pike County sheriff's deputy John Pennock testified that he was on patrol during the early morning hours of October 10, 1995. At about 1:10 a.m., he stopped a vehicle traveling eastbound on Washington Street in Pittsfield for failing to dim its headlights. The stop was made seven blocks from Lindsay's Tavern. There were two men in the car. Pennock identified defendant as the driver and Baughman as the passenger. Defendant told Pennock he was driving his friend home; they had been out "messing around" that night. Defendant wore a baseball cap, a gray T-shirt, and blue jeans. The traffic stop took no more than two minutes.

Approximately 15 minutes later, Pennock was summoned to Mississippi Street by Deputy Paul Petty. A car was stopped in the road and a man was kicking the front tires. When Pennock arrived, he saw it was the same vehicle he had previously stopped. Both defendant and Baughman were there. Defendant explained he was checking his brakes. This stop occurred approximately four blocks from the previous traffic stop. Defendant had a nice demeanor and did not seem nervous during either traffic stop.

Neil Roberts testified that he was employed by Robert's Automotive and Machine in Mt. Sterling, Illinois. He had done some machinery work for Baughman during April 1995. Baughman did not come back in to pay for the work until October 10, 1995. The total bill was $148. Baughman paid in cash and received a receipt.

Deputy Chris Dolbeare testified that he participated in the robbery investigation. In an alley near Lindsay's Tavern, he recovered a 12-gauge sawed-off shotgun. The gun was loaded with two 12-gauge shells. Dolbeare also participated in a search of defendant's vehicle and recovered a knife, a 12-gauge shotgun shell, a plaid shirt, and a purple sweatshirt.

Master Sergeant Kenneth Yelliott of the Illinois State Police testified that on October 13, 1995, he and Trooper Bradley Lacy conducted a search of Baughman's residence. He recovered a coffee can containing water and pieces of charred paper. The charred pieces of paper were identified as checks that had been written to Lindsay's Tavern.

Trooper Lacy testified that he also participated in the search of Baughman's residence. He recovered a green money bag with the words "Lyndle Lindsay" written on it in large black print. He found the bag under a stack of hand towels in the cabinet beneath the bathroom sink. Lacy also recovered a shoe box that ...

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