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People v. DePaolo

November 17, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES V. DEPAOLO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Du Page County. No. 98--CF--1311 Honorable Michael J. Burke, Judge, Presiding.

The opinion of the court was delivered by: Justice Colwell

Following a jury trial, defendant, James V. DePaolo, was found guilty of felony retail theft (720 ILCS 5/16A-3(a), 16A-10(3) (West 1998)). Defendant appeals and contends that his conviction must be reversed (1) because the evidence was not sufficient to show that he completed the offense of retail theft and he therefore was guilty, at most, of attempted retail theft; (2) because the trial court erred in admitting evidence regarding the value of the allegedly stolen merchandise; and (3) because the trial court failed to properly admonish him of his right to tender a jury instruction on a lesser included offense. We affirm.

At trial, the State called Claude Achkar as a witness. Achkar testified that on July 8, 1998, he was the store manager at a Home Depot store in Downers Grove, Illinois. Achkar described the store as a retail store for home improvement. Achkar testified that, as the store manager, he was familiar with the prices of the items that were for sale in the store. Achkar was also familiar with the layout of the store, which included an open-air "outside garden" area that is normally enclosed by a roof and a high fence. During the summer months, the outside garden area of the store is expanded to accommodate the increased volume of seasonal products on sale there. The expanded area is not enclosed by the roof or the high fence. Instead, the expanded area is enclosed by a temporary wall constructed of products such as bags of topsoil on pallets. The temporary wall is about six or seven feet high. The expanded area that is enclosed by the temporary wall is approximately 10 feet by 50 feet.

On the morning of July 8, 1998, Achkar was on duty at the Home Depot store. Achkar was walking down an aisle in the store when he noticed a person whom he identified in court as defendant. Defendant was putting a trimmer into a shopping cart. The cart already contained two boxed ceiling fans. Achkar said "hello" to defendant, but defendant did not respond and did not make any eye contact with Achkar. Achkar noticed that defendant was "a little nervous."

Achkar observed defendant push the cart down the aisle toward the outside garden area, which is in the back end of the store. Achkar followed defendant as he entered the outside garden area and the expanded area enclosed by the temporary wall. Achkar then went outside the temporary wall and stood about 6 to 10 feet off to defendant's side. Achkar was able to observe defendant through a lowered section of the temporary wall. Defendant did not notice Achkar. Achkar testified:

"[J]ust as I was standing there, I saw Mr. DePaolo take the trimmer on top of the cart, throw it over the [temporary wall], the stacked product, and land it right in front of me -- about six feet away from me, and took the other product, which was two fans, one after another, and tosses them right over."

Achkar further testified that he immediately jumped over the lowered section of the temporary wall and approached defendant while defendant was still in the outside garden area of the store. Achkar told defendant what he had observed. Defendant at first "denied the whole thing." After Achkar identified himself to defendant, defendant's demeanor changed from defensive to "cordial." Achkar then walked with defendant to Achkar's office.

Achkar further testified that after defendant entered Achkar's office defendant made statements to the effect that he had a seven-year-old daughter he was trying to take care of; that he was willing to pay for the items in question; that he had heard Home Depot was an easy target; and that, if Achkar let him go, defendant would help Achkar catch others who were stealing from Home Depot.

Achkar further testified that he made calls to assistants and directed them to retrieve the items that defendant had thrown over the temporary wall. The assistants went and looked for the items but found only an empty trimmer box. They did not find any trace of the fans. Achkar himself later went and looked for the items but could not find them.

At trial, the State presented exhibits that Achkar identified as ceiling fans that were identical to the two fans he saw defendant throw over the wall. Achkar testified that the price of the ceiling fans was $99 each. The State also presented a trimmer box that Achkar identified as the actual box that defendant threw over the wall. Achkar testified that when he saw defendant throw the box over the wall the box contained a Ryobi trimmer priced at $99.

On cross-examination, Achkar testified that there is no cash register in the outside garden area of the Home Depot store. Achkar also testified that the area outside the temporary wall into which the defendant threw the items consisted of a grassy area and a driveway used by drivers making deliveries to Home Depot.

Mike Earl testified that on July 8, 1998, he was an associate manager at the Home Depot store in Downers Grove. At about 10:30 a.m., Earl was paged by Achkar and instructed to immediately come to Achkar's office. When Earl arrived at Achkar's office, Achkar was there with defendant. Earl's testimony corroborated Achkar's testimony regarding the statements that defendant made while defendant was in Achkar's office. Earl also testified that during a brief period when Achkar left the office, defendant offered to give Earl $1,000 if Earl would let defendant go.

Russell Piszczek, a Downers Grove police officer, testified that he was called to the Home Depot store at about 10:30 a.m. on July 8, 1998. When Piszczek arrived at the store, he was met by the store manager, who escorted him to an office. A person whom Piszczek identified in court as defendant was in the office. Piszczek advised defendant that he had been accused of retail theft. Defendant denied any knowledge of a theft. Piszczek arrested defendant and took him to the police station for booking.

Piszczek further testified that during the booking process defendant stated, "I will be honest, I did it." Piszczek also testified that defendant then stated that he had heard that Home Depot was an easy target "because the outside garden area wasn't fenced"; that he thought the items that he took were worth over $300 each; and that he needed money to pay some workers to finish a job. An inventory ...


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