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People v. Brown

Court of Appeals of Illinois, First District, First Division

March 27, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
LARRY BROWN, Defendant-Appellant.

         Appeal 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.

          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 estate.

         ¶ 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 lawyer."

         ¶ 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 their prices.

         ¶ 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 house.

         ¶ 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 defendant:

"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 to?
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 ...

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