Appeal from the Circuit Court of Du Page County. No. 01-CF-257 Honorable Ann Brackley Jorgensen, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
After a stipulated bench trial, defendant, Jae D. Harrell, was convicted of two counts of theft from the person (720 ILCS 5/16--1(a), (b) (West 2000)), theft (720 ILCS 5/16--1(a) (West 2000)), and possession of drug paraphernalia (720 ILCS 600/3.5 (West 2000)). Defendant appeals, contending that (1) the State failed to prove beyond a reasonable doubt that he took property from a person where the evidence showed that he stole a purse from a shopping cart that was merely near the victim; (2) his three convictions of theft violate the one-act, one-crime rule; and (3) the State did not prove beyond a reasonable doubt that he possessed drug paraphernalia where there was no evidence that the glass pipe he possessed was specifically marketed for use in ingesting drugs. We affirm in part, reverse in part, and vacate in part.
On January 22, 2001, Marie Campbell and her husband, Arthur, were shopping at Dominick's in Elmhurst. After they finished shopping, Marie pushed her cart out to the couple's car. Her purse was in the baby seat. When they reached the car, Arthur opened the trunk. At this time, a white male with dark clothing approached Marie from the rear, reached around her, and grabbed her purse from the cart. She did not see his face. The thief ran to a small, white car, and left.
Officer James Wadycki went to Dominick's and spoke to the Campbells. Marie said that her purse contained a cell phone, wallet, credit cards, $50 in cash, and a bank envelope with five $20 bills. While Wadycki was talking to the victim, an unidentified person handed him a slip of paper with the license number T285901, stating that this was the license number of the offender's car.
While still at Dominick's, Wadycki learned that Sergeant Buenz had pulled over a car with license number T285901. The driver matched the victim's general description of the thief. Marie was driven to the scene of the traffic stop and identified defendant, who had been driving the car, as the offender. The police found $50 in cash in the glove compartment.
Defendant and his passenger, Roger Pokosa, were arrested. Defendant gave a statement in which he admitted stealing the purse. He said that he and Pokosa had driven to Chicago earlier that day to purchase crack cocaine, but had since run out of drugs. They drove to Elmhurst to see a girl whom defendant knew, but she was not at home. They drove to the nearby Dominick's so defendant could buy a screwdriver to retrieve a crack pipe that had become lodged in the center console of the car. In the parking lot, he decided to steal Marie's purse.
Pokosa's statement generally corroborated defendant's. He added that defendant gave him the purse as they were driving away. He removed $50 and threw the purse away on Washington Street.
Police looked for the purse but could not find it, although they found Marie's cell phone. Later, Lawrence Reiger, who lives at 424 North Washington, called the police to report that his son had found a purse in front of their home. Marie identified the purse as hers. After the police impounded defendant's car, a canine unit searched it. In the center console, police found a glass smoking pipe with cocaine residue.
Defendant was charged with two counts of theft from the person, one count of theft, and possession of drug paraphernalia. Defendant agreed to a stipulated bench trial at which the court considered the police reports. Defendant argued that he was not guilty of theft from the person because he did not take the purse from Marie's person, but merely from her presence. The trial court disagreed and found him guilty on all counts. The court later sentenced him to Treatment Alternatives for Safe Communities (TASC) probation.
Twenty-four days after sentencing, defendant filed a posttrial motion. Although defendant now concedes that the motion was untimely, the State argued against the motion without objecting to its late filing. After the court denied the motion, defendant filed a notice of appeal.
Before reaching the merits, we briefly address a potential jurisdictional issue that the parties discuss. Although the posttrial motion was admittedly filed late, the State concedes that appellate jurisdiction is proper because the State participated in the hearing without objection. See People v. Kaeding, 98 Ill. 2d 237, 240-41 (1983) (participating in hearing without objection revests trial court with jurisdiction). However, the State argues that defendant has waived all the issues he seeks to raise because only a timely posttrial motion preserves issues for review.
We need not decide whether an untimely posttrial motion waives the issues it raises. Two of defendant's issues involve the sufficiency of the evidence, which cannot be waived. See People v. Enoch, 122 Ill. 2d 176, 190 (1988); People v. Bartlett, 175 Ill. App. 3d 686, 690 (1988). We choose to review the remaining issue--whether defendant was properly convicted of three counts of theft based on a single act--as plain error. See 134 Ill. 2d R. 615(a).
On appeal, defendant first renews his contention that he was not proved guilty of theft from the person because the purse he stole was in a shopping cart and not on the victim's person. The Criminal Code of 1961 provides that a person commits theft when he knowingly "[o]btains or exerts unauthorized control over property of the owner." 720 ILCS 5/16--1(a)(1) (West 2000). Section 16--1(b) defines different classes of theft offenses based on the presence or absence of certain factors. For example, theft of property not from the person and not exceeding $300 in value is a Class A misdemeanor. 720 ILCS 5/16--1(b)(1) (West 2000). Relevant ...