Court of Appeals of Illinois, First District, First Division
from the Circuit Court of Cook County No. 13 CR 19813
Honorable Colleen Ann Hyland, Judge Presiding.
PRESIDING JUSTICE CONNORS delivered the judgment of the
court, with opinion. Justices Simon and Mikva concurred in
the judgment and opinion.
CONNORS PRESIDING JUSTICE
1 Following a bench trial, defendant Larry Brown was
convicted of burglary and sentenced to nine years in prison.
On appeal, defendant contends (1) the State failed to prove
beyond a reasonable doubt that he intended to commit a theft,
(2) the trial court denied him his right to present a defense
when it excluded certain testimony, (3) his sentence was
excessive, and (4) certain monetary charges should be vacated
and other charges should be offset by his presentence custody
credit. We affirm and correct the order assessing fines,
fees, and costs.
2 I. BACKGROUND
3 According to the charging document, defendant knowingly and
without authority entered or without authority remained at
9532 South Hamlin Avenue in Evergreen Park (the South Hamlin
house), which was owned by the Federal Home Loan Mortgage
Corporation, with intent to commit therein a theft. The
offense was alleged to have occurred from around September 7,
2013, through September 18, 2013. At trial, the key issue was
defendant's intent. The State maintained that defendant
set out to steal the South Hamlin house. Meanwhile, defendant
claimed that he did not intend to commit a theft because he
believed he was legally acquiring the South Hamlin house
through adverse possession.
4 Throughout the trial, various witnesses referred to a
collection of documents that defendant filed with the Cook
County recorder of deeds on September 6, 2013. The documents
consisted of the following: (1) a "Non Abandonment and
Secured Interest of Property, " which indicated that
notice was given to the Cook County sheriff's department,
the Federal Bureau of Investigation (FBI), the Chicago police
department, the Illinois Department of Transportation, all
lending institutions and their agents, and "Legal
Authorities, to be further named" (Defendant signed this
document on September 5, 2013, and the document stated in
part that the South Hamlin house "has not nor will be
abandoned" and that defendant was the "holder in
due course and secured party."); (2) a picture of the
South Hamlin house; (3) a legal description of the South
Hamlin house from the Cook County map department; (4) a
receipt from the map department of the Cook County
clerk's office; (5) an affidavit of adverse possession;
(6) an affidavit of adverse possession that included the
Illinois Department of Transportation logo, and stated in
part that defendant acquired title to the property "from
Adverse Possession by Torrez Moore dated September 5, 2013,
and recorded in the Recorder's Office of Cook
County;" and (7) a notice of claim of title to real
5 For the State, Officer Matthew Lecompte testified that on
September 7, 2013, he encountered defendant in the Evergreen
Park police station lobby. Defendant stated that he had just
bought a home and wanted Officer Lecompte to escort him while
he changed the locks. Officer Lecompte declined, explaining
that defendant did not need police presence if he truly owned
the property. Officer Lecompte did not tell defendant that he
could not move into the house.
6 Robert McDonough, who lived next door to the South Hamlin
house, testified that around 7:30 p.m. on September 8, 2013,
he observed defendant, a woman, and two children moving
mattresses, bed frames, and other items into the back door of
the South Hamlin house. After McDonough and his wife
introduced themselves as defendant's new neighbors,
defendant said his name was Larry and introduced McDonough to
the woman who was with him. McDonough stated that there had
been a realtor sign on the lawn of the South Hamlin house on
September 8, but the sign was gone on September 9.
7 John Collins testified that he lived across the street from
the South Hamlin house, which had been in foreclosure.
Collins could not recall how long the South Hamlin house had
been unoccupied. He stated that around 6 p.m. on September
10, 2013, a car pulled into the driveway of the South Hamlin
house. Defendant and another person exited the car and
removed a crowbar from the trunk, which they used to pry open
the side door of the garage. Collins called 911 and the
police arrived a short time later.
8 Officer James Whelan testified that he went to the South
Hamlin house around 6 p.m. on September 10, 2013, where he
observed defendant and another man in the driveway. Defendant
introduced himself and stated he was the owner of the house
and had bought it for back taxes. Officer Whelan recalled
that defendant gave him some paperwork, presented
identification, and had a key to the side door of the house,
which he opened. According to Officer Whelan, "you got a
key to the house and you got documents saying you own the
house, you own the house." In the meantime, two other
people arrived, Joan and Daniel Kunz, who also presented
documents and stated that they owned the house. Officer
Whelan told the Kunzes to contact their attorney
"because he's got papers, too and I'm not a
9 Detective Michael Kmetty testified that on September 17,
2013, he learned of an ownership dispute relating to the
South Hamlin house. Upon investigation, Detective Kmetty
learned that defendant was staying at the house illegally and
had illegitimate paperwork. Detective Kmetty also learned
that Joan and Daniel Kunz had legitimate paperwork that
showed they were closing on the house. Subsequently,
Detective Kmetty obtained an arrest warrant for defendant. On
September 18, 2013, defendant arrived at the police station,
where he was read Miranda warnings and interviewed.
According to Detective Kmetty, defendant stated that he had
obtained adverse possession paperwork from someone named
Torrez Moore and filed the paperwork with the Cook County
recorder of deeds. Defendant further stated that he planned
to live in the South Hamlin house forever. Defendant recalled
that he changed the locks on the house by prying them off
with a screwdriver and then brought his belongings inside.
Defendant gave Detective Kmetty permission to look through
his iPhone, which contained numerous listings for houses and
10 The parties also presented stipulated testimony. It was
stipulated that Jim Kennedy, a realtor and broker, would
testify that he was contracted by the Federal Home Loan
Mortgage Corporation to list the South Hamlin house. As part
of his responsibilities, he installed a for-sale sign on the
front lawn and placed a lockbox in the building. Kennedy
would further testify that he was never contacted by and did
not know a person named Larry Brown.
11 It was further stipulated that Loris Ryan, a real estate
agent, would testify that Joan and Daniel Kunz made an offer
to buy the South Hamlin house on September 6, 2013, and Joan
Kunz signed a contract that same day. The contract was
ultimately accepted on September 9, 2013, by Brian Tracy, who
acted as the attorney-in-fact for the owner, the Federal Home
Loan Mortgage Corporation.
12 Additionally, the parties stipulated that Brian Tracy
would testify that no one from the Federal Home Loan Mortgage
Corporation was contacted by Larry Brown about the South
Hamlin house. Additionally, no one at the Federal Home Loan
Mortgage Corporation was notified by defendant about his
attempt to establish ownership of the South Hamlin house.
Tracy would also maintain that he had no personal contact
with defendant and did not give defendant permission to take
possession and control of the South Hamlin house.
13 It was further stipulated that Joan Kunz would testify
that after signing the contract, she and her husband went to
view the South Hamlin house on September 10, 2013. When she
arrived, defendant was in possession of the house. Joan Kunz
would also state that before September 10, 2013, she had
never met defendant and did not have any conversations with
him about the South Hamlin house.
14 The parties also presented stipulations about
defendant's documents. Peter Karahalios, the deputy
treasurer and chief legal counsel of the Cook County
treasurer's office, would testify that defendant did not
make any payments for real estate taxes owed on the South
Hamlin house. Additionally, the parties stipulated that
Dweina Turner, a clerk with the Cook County recorder of
deeds, would testify that the recorder of deeds is
responsible for recording documents pertaining to the
transfer of title of real estate, mortgages, and loans, among
other items. Turner would further state that documents that
are presented for recording are not reviewed for their legal
purpose and that any document is recorded as long as it
appears to be related to a real property, contains a property
index number, and a fee is paid. The parties also stipulated
that Liam Reardon, an assistant State's Attorney assigned
to the mortgage fraud task force, would testify that he
reviewed the documents that defendant presented to Officer
Whelan and determined that the documents had no legal
significance as to establishing ownership of the South Hamlin
15 After the State rested, defense counsel moved for a
directed finding, contending that there was no evidence of
wrongful intent. Defense counsel further asserted that all
the evidence showed that defendant was following a path that
he believed to be legal. The court denied the motion.
16 Testifying in his defense, defendant stated that he first
learned about adverse possession when he was previously
incarcerated. According to defendant, adverse possession
required that "you had to take possession of a property.
Stay in it for an amount of time openly and notoriously,
exclusive; and after a period of time, you would gain full
title to the property." Defendant further explained that
to gain full title, he had to stay in the property for 20
years or for 7 years if he paid taxes. Defense counsel and
defendant had the following exchange:
"Q. And after you got out of jail, with regard to
adverse possession, what did you do?
A. Well, a cousin of mine said she had acquired property
through adverse possession. I was introduced to Torrez Moore
who told me.
MR. JAKALSKI [Assistant State's Attorney]: Objection to
what Torrez Moore said.
THE COURT: Sustained.
THE WITNESS: Well, I was introduced to-
MR. JAKALSKI: Objection, no question pending.
THE COURT: Sustained.
MR. GROSSMAN [defense counsel]: Well, he can say I was
introduced to Torrez Moore.
THE COURT: Ask another question."
17 Defendant stated that after he was released from prison,
he was looking for a home, and so he started searching
Realtor.com for foreclosed bank-owned properties.
After defendant saw that the South Hamlin house was listed as
foreclosed and bank-owned, he contacted the number that was
listed on the property. Defendant believed that the South
Hamlin house was abandoned. The following exchange about
defendant's process occurred between defense counsel and
"Q. At that point, had you been told by anyone what to
do to acquire these properties?
MR. JAKALSKI: Objection.
THE COURT: Sustained.
Q. What is it that caused you to do what you just testified
MR. JAKALSKI: Objection, your Honor.
THE COURT: Overruled.
THE WITNESS: I was trying to obtain a property for me and my
family. I was told that I could file-
MR. JAKALSKI: Objection to what he was told.
THE WITNESS: Well, I learned-
THE COURT: Hold on. There's an objection. What is the
basis of your objection?
MR. JAKALSKI: Hearsay. I was told. Don't know by who.
What's the purpose for the statement?
THE COURT: Your response.
MR. GROSSMAN: Yes, your Honor. The answer is not to prove the
ultimate truth or falseness of what he was being told, but
that information flow, not the truth [or] falseness of
what's being told.
THE COURT: You can say he spoke to others, but I don't
want to hear what the information was. So sustained as ...