Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 11 CR 11482. Honorable Lawrence E. Flood, Judge Presiding.
Defendant's burglary conviction was reversed, notwithstanding the fact that defendant was in possession of automobile parts near an automobile parts store that had apparently been burglarized, since there was no evidence connecting the parts in defendant's possession to items missing from the store, even though defendant was seen in the alley behind the store, there was no evidence that he was ever inside the store, and there was no corroborating evidence that he entered the store with the intent to commit theft; under those circumstances, no rational trier of fact could have found the elements of burglary were established beyond a reasonable doubt.
For Plaintiff-Appellee: Anita Alvarez, State's Attorney, Alan J. Spellberg, Anne L. Magats, Assistant State's Attorneys, Of Counsel.
For Defendant-Appellant: Maria A. Harrigan, Adjunct Instructor, DePaul Criminal Appeals Clinic, Of Counsel.
JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Palmer concurred in the judgment and opinion.
[¶1] Following a bench trial, defendant Terrence Smith was convicted of burglary and, based on his criminal history, was sentenced to a Class X prison term of six years. On appeal, defendant contends the State failed to prove beyond a reasonable doubt that he entered the building he was charged with burglarizing. For the following reasons, we reverse.
[¶2] At trial, Dario Cannon testified that he lived near 5900 West Rice in Chicago, across the alley from an auto parts store that had been closed for some time. The back of the store was surrounded by a chain link fence that had an opening in it large enough for a person to fit through. At around 5 p.m. on June 20, 2011, Cannon was in the alley and noticed that his garbage can had been moved from its usual place to an area across the alley by the store. He also observed a man in the next alley over, going though garbage cans and putting items into a garbage can that he was pushing.
[¶3] Cannon went into his home, then came back out into the alley about 10 minutes later. At that time, he observed a different man (later identified as defendant), wearing a blue hat and a red handkerchief around his neck, entering the opening in the fence behind the auto parts store. Cannon stated that after the man entered, " I couldn't see him because he went towards the right and it's a garage there that blocks your vision." About 10 minutes later, the man threw some pipes and auto parts over the fence, then came out into the alley and placed them into a city garbage can. He then rolled the garbage can into the next alley and met up with the man who had been removing items from garbage cans in that alley. At that point Cannon called the police, who arrived about 10 minutes later. After speaking with Cannon, the police left and returned shortly with defendant, whom Cannon identified as the man he had seen taking the auto parts.
[¶4] Michael Greene testified that he was the owner of Active Auto Parts, located at 5914 West Chicago Avenue. He described the store as a brick building with two garages in the back, enclosed by a chain link fence for storage. The store was no longer in use, but Greene inspected the premises on a " biweekly, weekly basis," and had inspected it about a week before the June 20 incident. At that time, there was a hole in the fence, and Greene stated that " periodically I had trouble with them cutting holes in my fence." During his inspections of the premises, Greene would go inside the building and look at the shelf " to see whet's there and what's not," but he did not conduct an inventory.
[¶5] Greene received a call from police on June 20, 2011, about a burglary at the store. When he went to the premises, he found that there were items missing, including struts, or shock absorbers, brake pads, and springs. When asked if anything else was missing, Greene responded, " At that particular time, I can't remember, no." Greene did not know defendant and did ...