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02/25/98 PEOPLE STATE ILLINOIS v. DWIGHT F. WEST

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DWIGHT F. WEST, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Clinton County. No. 92-CF-13 Honorable William R. Todd, Judge, presiding.

The opinion of the court was delivered by: Justice Chapman delivered the opinion of the court:

On August 8, 1990, a fire destroyed the Fash-n-Fab buildings owned by defendant Dwight West. A firefighter was injured while attempting to extinguish the blaze. Following a bench trial, defendant was convicted of five counts of arson and one count of aggravated arson, and he was sentenced to four and six years' imprisonment on the respective charges. Defendant argues that: (1) the court erred in admitting into evidence photographs of the crime scene, (2) the court's findings of fact are not supported by the evidence, and (3) the court improperly conducted deliberations prior to defendant resting his case. We affirm.

Defendant's first argument is that the court erred in admitting crime-scene photographs taken on August 13 and 14, 1990. These photographs, marked as People's Exhibits 12 to 56, primarily depicted the floors of the Fash-n-Fab buildings. Defendant argues that it was improper to admit these photographs because the State failed to lay a proper foundation for their introduction. Defendant argues that no evidence was produced as to the condition of the floors subsequent to the August 8, 1990, fire and that the court therefore erred in allowing them into evidence. The State argues that defendant waived this argument because he failed to object in a timely manner. Before addressing the substance of defendant's argument, we will address the waiver issue.

In general, to preserve an issue for review, a defendant must object at trial and include the issue in a written posttrial motion. People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124 (1988). In this case, defendant did object during trial to the use of the photographs marked as People's Exhibits 12 to 56, and he objected in a posttrial motion. The State argues that defendant's objection at trial was not made the first time the photographs were identified and that therefore it was untimely.

The issue is not whether a party objects to evidence when it is first identified or referred to, but the issue is instead whether an objection is made when the evidence is offered. In this case, defendant did object to the photographs at trial, both while they were being referred to by various witnesses and when they were offered into evidence. In addition, in a timely posttrial motion defendant objected to the use of the photographs. Under these circumstances, we find that defendant did not waive this issue on review.

We now turn to defendant's first argument, that the court erred in admitting People's Exhibits 12 to 56, photographs of the crime-scene floor. Defendant argues that no proper foundation was laid for their admission.

In general, a photograph is admissible into evidence if it is identified by a witness who has personal knowledge of the photographed subject and testifies that the photograph is a fair and accurate representation of the subject at the relevant time. Casson v. Nash, 54 Ill. App. 3d 783, 795, 370 N.E.2d 564, 573 (1977), aff'd, 74 Ill. 2d 164, 384 N.E.2d 365 (1978). A decision to admit photographic evidence is within the trial court's discretion and will not be reversed absent an abuse of discretion. People v. Greer, 79 Ill. 2d 103, 117, 402 N.E.2d 203, 209 (1980).In this case, Kim May, an investigator with State Farm Insurance Company, was called to the scene of the fire on August 10, 1990, two days after the fire. May returned to the site on August 13 and 14, 1990. During his investigation of the fire and the excavation of the Fash-n-Fab building, May took the photographs. May testified that the photographs, taken on August 13, 1990, fairly and accurately depicted the scene as he observed it on August 10, 13, and 14, 1990.

Defendant argues that the State did not show that the unsecured crime scene had not been tampered with prior to May's examination of the site on August 10. In considering this argument after defendant's objection, the court noted:

"May saw the premises on Friday the 10th, for the first time ***. Then he came back on Monday the 13th and was there again on the 14th. Photographs were taken. You have through cross[-]examination elicited the fact from various witnesses that the premises were not secured in any way nor could they have been that there were no guards there except for the suggestion perhaps from one witness that there might have been a yellow tape around the premises. Others have said they were not aware of any. It's true that the testimony has been from *** May that debris was removed from the premises that the washing down was made to determine burn patterns. Now, you are suggesting that an improper foundation has been laid because the State has failed to negate the possibility of any other person other than those who have testified as being upon the premises.

First, with reference to the burn patterns and burned areas of the various structures, it can hardly be suggested, I think, that there has been a change or moving of the structure that remains standing after the fire and the intense heat. It's true that there is a possibility that certain objects burned [and that] objects that might have been in the debris on the floor and remained may have been moved from time to time by walking or posing, but I don't think that there is sufficient basis for this Court to hold that no foundation has been laid for the use of these photographs ***." We hold that the court thoroughly considered this issue and

correctly found that a proper foundation had been laid for the photographs. May testified that they were fair and accurate representations of what he and the fire chief saw as they inspected the building soon after the fire. The fire occurred on August 8, 1990, around 5:30 p.m. Fire Chief Roger Sutherland testified that the fire was brought under control within 45 minutes to one hour but that it took three to four hours to extinguish it completely. The investigation of the building was suspended until August 9, due to darkness. On August 9, Chief Sutherland returned to the scene and attempted to remove debris from the building, but due to the amount of the debris, he elected to suspend operations until August 10, when State Farm Insurance investigators could assist him. There was nothing to contradict May's testimony that the photographs were fair and accurate depictions of the building as he had observed it on August 10, 13, and 14.

The fact that the photographs were taken two days after the fire, rather than immediately after the fire, goes to the weight of the evidence, not its admissibility. Burke v. Toledo, Peoria & Western R.R. Co., 148 Ill. App. 3d 208, 213-14, 498 N.E.2d 682, 686 (1986); see also Illinois State Toll Highway Authority v. Grand Mandarin Restaurant, Inc., 189 Ill. App. 3d 355, 360, 544 N.E.2d 1145, 1148 (1989). In this case, it was explained that due to the extensive damage it was impossible to excavate and take the photos immediately after the fire. The absence of any showing or strong suggestion that there was any tampering to the areas depicted in the photographs leads us to conclude that the court did not err in admitting them. See Burke, 148 Ill. App. 3d 208, 498 N.E.2d 682.In bench trials, Judges are only to consider the proper evidence. People v. Todd, 154 Ill. 2d 57, 69, 607 N.E.2d 1189, 1195 (1992). In this case, during cross-examination, defendant's counsel repeatedly pointed out problems with the photographs, problems which defendant argues rendered the photographs inadmissible. The lack of weight that should have been afforded the photographs, according to defendant, was therefore brought to the court's attention. We, therefore, affirm the court's finding that the State laid a proper foundation for People's Exhibits 12 to 56.

Defendant's second argument is that the court's findings of fact are not supported by the evidence. Defendant argues that the court erred in giving more credibility to the testimony of witness Curt Swartzlander than to that of witnesses Chris Connaway and John Nelson. Defendant also argues that the court erred in accepting at face value the testimony of the State's expert Clyde Goin, because his investigation of the fire occurred more than four years after the fire.

A reviewing court may disturb the trial court's finding as to credibility only when the evidence is so improbable or unsatisfactory as to raise a reasonable doubt of guilt. People v. Bailey, 265 Ill. App. 3d 262, 271, 638 N.E.2d 192, 198 (1994). A reviewing court will not substitute its Judgement for that of the trial court when the evidence is merely conflicting. Bailey, 265 Ill. App. 3d at 271, 638 N.E.2d at 198. In a bench trial, to resolve any conflicts in the evidence, the trial judge must determine the credibility of witnesses, weigh the evidence, and draw reasonable inferences therefrom. Bailey, 265 Ill. App. 3d at 271-72, 638 N.E.2d at 198. In a challenge to the sufficiency of the evidence, the function of the reviewing court is not to retry ...


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