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The People of the State of Illinois v. Timothy L. Burney

December 27, 2011

THE PEOPLE OF THE STATE OF ILLINOIS,
PLAINTIFF-APPELLEE,
v.
TIMOTHY L. BURNEY,
DEFENDANT-APPELLANT.



Appeal from Circuit Court of Jersey County No. 08CF168 Honorable Eric S. Pistorius, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Turner

PRESIDING JUSTICE TURNER delivered the judgment of the court, with opinion.

Justice Steigmann concurred with the judgment and opinion. Justice Cook specially concurred in the judgment, with opinion.

OPINION

¶ 1 In April 2010, a jury found defendant, Timothy J. Burney, guilty of residential burglary and criminal trespass to a residence. In May 2010, the trial court sentenced him to prison.

¶ 2 On appeal, defendant argues (1) the State failed to prove him guilty beyond a reasonable doubt, (2) he was denied a fair trial, (3) his criminal-trespass-to-a-residence conviction must be vacated under the one-act, one-crime rule, (4) the trial court erred in ordering him to reimburse the public defender, (5) the court failed to award him credit against his fine, and (6) the court improperly assessed various fees. We affirm in part, vacate in part, and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 In August 2008, the State charged defendant by information with one count of residential burglary (count I) (720 ILCS 5/19-3(a) (West 2008)), alleging he knowingly and without authority entered into the dwelling place of Geraldine Krause with the intent to commit a theft therein. The State also charged defendant with one count of criminal trespass to a residence (count II) (720 ILCS 5/19-4(a)(2) (West 2008)), alleging he knowingly and without authority entered Krause's residence at a time when defendant knew that one or more persons were present in the residence. A third charge of criminal trespass to a motor vehicle was later dismissed. Defendant pleaded not guilty.

¶ 5 In July 2009, defendant filed a motion to suppress evidence, claiming the police took him to the victim's home and placed a white towel around his neck to see if the victim recognized him. Defendant argued the show up was improper and extremely prejudicial. At the hearing on the motion, the State agreed the presentation of defendant to the victim was improper. The court granted the motion.

¶ 6 The State, however, sought to introduce evidence that the victim recognized defendant's voice when he said, "You don't know me. I don't know you" at the show up. The trial court suppressed the voice identification, finding the improper show up made the voice identification inadmissible.

¶ 7 Defendant also filed a motion to suppress the evidence of a white towel found near where he was arrested as well as a blue plastic grocery bag found on the victim's property. Defendant argued the State could not lay a proper foundation for entry of the towel and plastic bag into evidence. Further, he argued the plastic bag was not made available to him prior to its spoliation by the State. The trial court denied the motion to suppress.

¶ 8 At defendant's jury trial, Geraldine Krause took the stand and gave her version of the incident. Before she finished testifying, the State asked to call a deputy regarding some evidentiary issues. Defense counsel objected, wanting to cross-examine Krause. The trial court stated defendant would have the opportunity to do so when Krause was recalled. The State indicated it intended to call two witnesses to establish a chain of custody. When it was discovered that one of the previously undisclosed witnesses was a family member of a juror, the court declared a mistrial.

¶ 9 In August 2009, defendant filed a motion to suppress evidence gathered during the use of a police tracking dog. Defendant argued the deputy handling the dog would be unable to lay a proper foundation and testify as to why the dog may or may not track human scent or whose scent was being tracked. The State conceded Illinois law prohibited admission of dog-tracking evidence but submitted testimony as to the dog's ability. The trial court excluded all evidence of the dog tracking. The court did allow the State to introduce evidence of the discovery of defendant, finding officers would have inevitably found him during a search of the area.

¶ 10 The State filed a motion to reconsider the suppression of the show up and the voice identification. The trial court advised the State that if defendant's statement was made prior to the police placing a towel on his shoulders during the show up, the statement would be admissible. Defense counsel contended the police did not mention defendant made a statement at the show up. The State also indicated defendant asked officers what he was being charged with. When an officer stated he was being charged with trespass to property, defendant responded, "Well you can't get me for burglary or home invasion." The court found this statement was not subject to suppression.

¶ 11 At a subsequent hearing, Jersey County sheriff's deputy Kevin Ayres testified he responded to the report of a residential burglary on August 28, 2008. Once defendant was taken into custody, he was brought over to the victim. As the victim approached, defendant said "you don't know me and I don't know you." Ayres said the statement was made prior to a towel being placed on defendant. The trial court allowed the statements to be introduced.

¶ 12 In January 2010, the State filed a motion to have Krause declared unavailable as a witness and to use her prior in-court testimony. The motion indicated Krause was elderly and in poor health, and her doctor was concerned the stress of testifying could exacerbate her condition. The trial court denied the motion, finding defendant did not have a prior opportunity to cross-examine Krause.

¶ 13 In March 2010, the State filed a motion to declare Krause's statements to law enforcement as non-testimonial. The State claimed Krause was able to give a partial description and told Deputy Ayres the suspect fled on foot. The trial court found Krause's statements were non-testimonial because they were made in the course of an ongoing police emergency. The court also found the statements were admissible as excited utterances.

¶ 14 In April 2010, defendant's jury trial commenced. Jackie Huett testified she resided in a mobile home on Bethany Church Road in August 2008. At the time, she was in the process of tearing down the mobile home. Defendant offered to help her for money. Since defendant was going to stay at the mobile home for a day or two, Huett and defendant went to Shop 'n Save for sandwiches, chips, and beer. Huett stated the supplies were placed in plastic bags.

¶ 15 Deputy Ayres testified he responded to a call of a residential burglary at 10:15 p.m. Upon meeting Krause, Ayres found her to be "very upset" and shaking. She told him she heard a noise at the door and then a man forced his way inside. The man had a blue plastic bag over his head and was wearing blue jeans and no shirt. Krause also stated the man smelled of an alcoholic beverage. The man wanted her car keys. She told him to leave or she would call the police. When she attempted to call the police, the man pulled the phone out of her hand and threw it on the floor. Krause then grabbed a broom and advised the man to leave.

¶ 16 Ayres searched the property and eventually found defendant in a trailer with no walls approximately a quarter of a mile away. At the time, defendant was wearing blue jeans and no shirt. Ayres could see cans of opened and unopened alcohol on the floor along with a white towel. Krause had told Ayres the suspect wore a "greyish white sweatshirt" draped over his shoulders. Ayres approached defendant, who appeared intoxicated, and told him to put his hands up. After defendant was taken into custody, Ayres searched outside Krause's residence and found a blue plastic shopping bag. When defendant was brought over for an identification, he said "you don't know me and I don't know you" to Krause. As defendant was being placed back into the squad car, he asked Ayres what he was being charged with. When Ayres stated it was criminal trespass, defendant responded "you can't get residential burglary or home invasion on me."

¶ 17 On cross-examination, Deputy Ayres stated defendant was rolling a cigarette when he approached the trailer. Ayres did not find defendant to be winded or wet, although there was a light mist at the time.

¶ 18 Jersey County sheriff's chief deputy Kevin Klass testified he processed the crime scene for fingerprints and footwear evidence. He identified a white towel and a blue plastic bag that were collected as evidence. Klass stated the bag was ripped on both sides, and it was possible the holes were used for eye cutouts.

¶ 19 Defendant exercised his constitutional right not to testify. Following closing arguments, the jury found defendant guilty of residential burglary and criminal trespass to a residence.

¶ 20 In May 2010, the trial court sentenced defendant to four years in prison on the residential-burglary conviction and two years on the criminal-trespass-to-a-residence conviction with both sentences to run concurrently to each other. This appeal followed.

¶ 21 II. ANALYSIS

¶ 22 A. Sufficiency of the Evidence

¶ 23 Defendant argues the State's evidence was insufficient to convict him beyond a reasonable doubt. We disagree.

¶ 24 "When reviewing a challenge to the sufficiency of the evidence in a criminal case, the relevant inquiry is whether, when viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Singleton, 367 Ill. App. 3d 182, 187, 854 N.E.2d 326, 331 (2006). This standard of review applies when reviewing the sufficiency of evidence in all criminal cases, including cases based on direct or circumstantial evidence. People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d 669, 685 (2002). "Circumstantial evidence alone is sufficient to sustain a conviction where it satisfies proof beyond a reasonable doubt of the elements of the crime charged." Pollock, 202 Ill. 2d at 217, 780 N.E.2d at 685.

¶ 25 The trier of fact has the responsibility to determine the credibility of witnesses and the weight given to their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from that evidence. People v. Jackson, 232 Ill. 2d 246, 281, 903 N.E.2d 388, 406 (2009). "[A] reviewing court will not reverse a criminal conviction unless the evidence is so unreasonable, improbable[,] or unsatisfactory as to create a reasonable doubt of the defendant's guilt." People v. Rowell, 229 Ill. 2d 82, 98, 890 N.E.2d 487, 496-97 (2008).

¶ 26 "The elements of the crime of residential burglary are entry into a building without authority, or remaining after authority to enter has been withdrawn, with the intent to commit a felony or theft." People v. Campbell, 146 Ill. 2d 363, 375, 586 N.E.2d 1261, 1266 (1992). A person commits criminal trespass to a residence when, without authority, he enters or remains within a residence. People v. Austin, 216 Ill. App. 3d 913, 916, 576 N.E.2d 505, 507 (1991).

¶ 27 In this case, Deputy Ayres responded to a call of a residential burglary and found an upset and shaking Krause in her residence. Krause told him the man who forced his way inside was wearing blue jeans and no shirt and had a greyish-white sweatshirt draped over his shoulders, had a blue plastic bag over his head, and smelled of an alcoholic beverage. Ayres searched the property and surrounding area and found defendant in a trailer wearing blue jeans but no shirt. Ayres stated defendant appeared intoxicated. Ayres found a white towel in the trailer, which he believed fit the description of the grey sweatshirt described by Krause.

¶ 28 When Ayres brought defendant back to Krause for a possible identification, defendant stated "you don't know me and I don't know you" upon his approach. Later, as he was being placed in the squad car, he asked Ayres what he was being charged with. When Ayres stated it was criminal trespass, defendant responded, "you can't get residential burglary or home invasion on me."

¶ 29 The evidence in this case, although circumstantial, was of such a character to prove defendant guilty of the crime of residential burglary and criminal trespass to a residence. Defendant was found within minutes of the crime and only a short distance from Krause's residence. He was dressed in a similar fashion as mentioned by the victim, and the white towel could have been mistaken for the sweatshirt draped over his shoulders during the commission of the crimes. Deputy Ayres stated defendant appeared intoxicated. Defendant also made several incriminating statements. The statement he made to Krause can be seen as seeking to influence an eyewitness and victim, an attempt to intimidate her not to identify him as the perpetrator. Further, defendant's statement to Deputy Ayres that he could not "get residential burglary or home invasion" charges on him can be seen as an admission that he had been on Krause's property but believed he had only had committed a lesser crime than residential burglary or home invasion. Viewing the evidence in the light most favorable to the prosecution, we find the jury could reasonably have found defendant guilty of the crimes charged beyond a reasonable doubt.

¶ 30 B. Fair Trial

¶ 31 Defendant argues he was denied his right to a fair trial, claiming (1) the trial court allowed Deputy Ayres to recite hearsay statements of the non-testifying victim, (2) the court improperly found testimony regarding his arrest was admissible as inevitable discovery, (3) the prosecutor made improper remarks during closing arguments, and (4) defense counsel was ineffective. The State argues these issues are forfeited because defendant failed to file a posttrial motion setting forth his allegations of error. Defendant asks this court to review the issues as a matter of plain error.

¶ 32 The plain-error doctrine permits a reviewing court to consider unpreserved error under the following two scenarios:

"(1) a clear or obvious error occurred and the evidence is so closely balanced that the error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness of the error, or

(2) a clear or obvious error occurred and that error is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless of the closeness of the evidence." People v. ...


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