Appeal from the Circuit Court of the 12th Judicial Circuit, Will County, Illinois No. 97--CF--5552 Honorable Stephen D. White Judge, Presiding
The opinion of the court was delivered by: Presiding Justice Homer
The defendant, Jude Oparah, was convicted of arson and burglary based on intent to commit arson (720 ILCS 5/20--1(a), 19--1(a) (West 1998)) in the Will County circuit court. He now claims that: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the judge admitted irrelevant and prejudicial evidence; and (3) his arson conviction should be vacated because arson is a lesser included offense of burglary based on intent to commit arson. We vacate his arson conviction and otherwise affirm the circuit court's judgment.
The defendant's case proceeded to a jury trial. Edward Mabe, Jr., testified that on October 12, 1997, he was working at a Subway sandwich shop adjacent to a Rentway store in a Joliet strip mall. The defendant, whom Mabe recognized as a Rentway employee, entered the shop and ordered a sandwich at 10:12 p.m. The tape from Subway's security camera confirmed the defendant's presence in the store. He stayed for about 20 minutes.
Phyllis Fowler testified that she was the manager of a Fannie May candy store next to Rentway. When she arrived at work on October 13, 1997, her store had no electricity. She noticed that an electric clock was stopped at 10:55 p.m. She later discovered that the electricity had been shut off at a box on the back of the building. Neither she nor her employees knew the electricity could be shut off at the box.
Allan Butryn, Rentway's regional manager, testified that Rentway is a rent-to-own company dealing in televisions, appliances, and furniture. He went to the Joliet store on October 13, 1997, and discovered that someone had started a fire causing $80,000 worth of damage. Butryn had seen the video from Subway's security camera, and he testified that it showed the defendant wearing dark pants on the night of October 12. Rentway's security camera had also captured video of the perpetrator starting the fire. That video showed the perpetrator wearing dark pants, a jacket Butryn assumed was leather, and a bag over his or her head. Butryn thought the perpetrator's jacket was identical to a leather jacket he had seen the defendant wear regularly. However, on cross-examination, Butryn acknowledged that he could not determine from the video whether the perpetrator's jacket was leather or plastic. He did notice that the top of the perpetrator's head came even with a stripe on a couch in the background. He subsequently measured the distance from the floor to the bottom of the stripe and determined that it was about 5 feet and 6 inches.
Police officer Arthur Vandergrift testified that he was dispatched to the Rentway store at approximately 2:50 a.m. on October 13, 1997. When he arrived, he saw smoke inside the store and noticed that one of the doors was "busted up."
Fire investigator Richard Kurtz testified that he believed the fire was intentionally started on a sofa with an ignitable liquid. He found a glass bottle under the arm of the sofa. The parties stipulated that forensic testing of the bottle produced no fingerprints suitable for comparison.
Brian Naughton, Rentway's store manager, described the defendant's job performance as "average or below." Naughton testified that he spoke with the defendant on September 8, 1997, intending to fire him for poor job performance. The defendant advised that he planned to quit in two weeks, and Naughton consequently did not fire him. However, Naughton did fire the defendant after the two-week period ended because he had not quit as expected.
Naughton further testified that all his employees knew about the store's security camera system. He viewed the Subway video and recognized the defendant. He could not identify the perpetrator in the Rentway video. Naughton also noted that the store's power was supplied through boxes on the rear wall of the strip mall.
Timothy Brown, Rentway's assistant manager, testified that the defendant owned a black leather jacket. When asked about the defendant's demeanor upon being fired, Brown stated: "[H]e didn't seem like he wanted to go ballistic, but kind of subtle. He took it very well to me, if you ask me."
Police detective Alan Horvath testified that he interviewed the defendant while investigating the fire. He estimated the defendant's height at 5 feet and 8 inches, but possibly "an inch or so shorter." According to Horvath, the defendant gave the following account of his whereabouts before the fire: He arrived in Joliet on October 12, 1997, at about 9 p.m. He went to Subway and then visited a woman whose name and address he did not provide to Horvath. The defendant and the unknown woman went to Cub Foods, where the defendant called another woman named Beadenual and arranged to meet her later that evening. He left the unknown woman's residence between 11:30 p.m. and 12 a.m., arriving at Beadenual's residence at about 12:30 a.m. The defendant said he believed he was wearing blue jean pants and a blue jean jacket at that time.
Beadenual Williams testified that she was the defendant's girlfriend. She said the defendant called her on October 12, 1997, between 10 and 11 p.m., and she invited him to her residence. He arrived at a little after 11 p.m. and stayed until about 4:10 a.m. Williams was awake during that time, but the defendant fell asleep.
During a subsequent interview with Detective Horvath, Williams viewed the Subway video and said it depicted the defendant as he was dressed when he came to her residence (black pants and a black and white shirt). She also viewed the Rentway video and said the defendant owned two leather jackets, but neither of them resembled the perpetrator's jacket. She told Horvath the defendant requested a plastic bag before ...