*1 rule, potential juror, individually the amended “ask each she must group, juror accepts” principles in a whether that understands and 431(b) (eff. May guarantees. of certain basic constitutional Ill. S. Ct. R. 2007). out in judge comply obligations When a fails to with her set 431(b) trial right amended Rule to ensure the defendant to a and, I impartial jurors, judicial system before fair and our falls short submit, Herron, integrity judicial process impacted. of the Ill. 2d at 178-79.
Second, to the extent the rule in current places its form burden timely point judge’s on the defense to out a trial failure to rule, abide places prosecu- rule that same burden on the tion. The prosecution should not be heard to claim forfeiture prosecution defendant when the itself failed correct trial judge’s prosecutor, Illinois, omission. The a representative people of the is there subject justice to ensure that our system those criminal justice, receive as reflected in our representative rules laws. As a people, prosecution must know rules and laws and do its part to ensure that the rules and laws are followed. judge When a trial 431(b) falls short on what amended requires, prosecutor Rule can- not sit mute. prosecutor must speak up. have incentive to THE ILLINOIS, PEOPLE OF THE Plaintiff-Appellee, STATE OF
ALBERT Defendant-Appellant. BEAUCHAMP (1st Division) First District No. 1 — 07—2247 Opinion filed March 2009.
GARCIA,J., dissenting. Becker, Appellate Defender’s and Steven W both of State
Patricia Unsinn Office, Chicago, appellant. for (James Alvarez, Attorney, Chicago Fitzgerald and John E.
Anita State’s counsel), People. Nowak, Attorneys, for the State’s E. Assistant delivered JUSTICE ROBERT E. GORDON PRESIDING opinion of court: trial, Beauchamp appeals from defendant Albert
After a bench the ele- prove He the State failed burglary. for contends conviction or, reduce the alternatively, and that we must reverse ment for modify judgment to reflect conviction to theft. We conviction resentencing. theft and remand for her 2004 Chevrolet parked she
Pamela Little testified (SUV) lot on the parking in a Metra utility vehicle sport Trailblazer parking spot her pay January 2007. She went morning of she her SUV When pulled had in behind noticed a white vehicle and control, instead on its remote alarm button pushed her vehicle observed a She then nothing happened. activating lights beeps, screaming her Little started the hood of vehicle. standing man officer police she told a fire station where the street ran across to steal her SUV trying someone was open lock to vehicle, saw that the her she Little returned to
When the hatchback as well as gone, hatchback was cross-examination, On explained Little that with the of a push button on the back of the the window could up be “lifted” SUV “held” up by hydraulic two only open arms. The window could outward, away from the SUV
Police officer Freddy Frazier testified that he was directed to the parking lot, Metra flashing lights where from the caught SUV his at- men, tention. Two Jones, later identified and Michael entering were a vehicle next to the and attempting SUV to start it. Frazier blocked the vehicle police with his vehicle. He saw window in the vehicle’s backseat. Looking at the Frazier noted the back SUV window was missing. One ground, arm was on the and one hydraulic arm was dangling and the door lock was punched. Frazier concluded that the window in defendant’s vehicle was the Later, window from the back of the SUV Little confirmed that belonged to her SUV
At case, the end of the State’s defendant moved for a directed finding, arguing that the State prove failed to an “entry” into the a necessary burglary. element of Defendant contended there was anyone evidence that needed to access interior of the vehicle to remove the window. Defendant specifically argued that the State failed to prove arms were attached to the interior of the window. The State countered that defendant must have reached into *3 the to SUV remove the frame, window from the without elabora- tion why as to that was the case. break,
After a the parties presented argument. additional The State drew the court’s attention to holding authorities reaching under the hood of a vehicle battery to take its constituted an reaching as did open flatbed of a object truck to take an lying in it. The suggested State similar, the instant case in was that defendant and Jones would have to had reach into the vehicle to window, remove the even if the window had already opened out. The argued State this had case, to have been the because Frazier testified that the arms were attached inside the SUV
Defendant responded that Frazier merely testified that a arm dangling, specifying without whether from inside or outside of the argued SUV He further window, fact, in would have been outside of the removal, SUV the time of its because the button on the back of the vehicle away moved the window from the SUV’s frame.
In ruling motion, on appeared defendant’s the court to detect a challenge frontal as to whether the removal of a vehicle’s window would burglary. ever constitute a The court concluded that a vehicle’s generally window must constitute an entry object because the
14 further, removed has “an inside and an outside.” The court both independently, punching determined that of the door lock entry. Finally, ruled that constituted court the evidence showed entry were on the that an arms inside so must have occurred to remove The court then the window. denied defendant’s motion.
Following closing arguments, the court convicted him to years and sentenced three of incarceration. appeal, repeats motion for a arguments On from his finding: directly or allows directed that no evidence demonstrates required entry inference of an into Little’s as for a State, however, may conviction. The that we infer an contends into the SUV the short amount of time between the commission of intervention, by and police possession the offense defendant’s damage argument to We find defendant’s the SUV persuasive. presented
To determine whether sufficient evidence was sustain conviction, a all reviewing a court must consider the evidence light most favorable to the and then determine if rational fact proved trier of could have concluded that the State elements Cox, 195 beyond the crime doubt. v. charged People reasonable (2001). not reviewing retry 2d A court will the defendant. (2001). Green, trial, In a People v. bench fact, determining credibility judge trial serves as the trier given resolving to be to their weight witnesses Slim, presented. People any conflicts the evidence (1989). fact are Although the determinations of trier of deference, conclusive, that a conviction they great are entitled so unreasonable, only be where the evidence “is so will overturned unsatisfactory doubt of justify reasonable improbable, guilt.” Ortiz, 196 Ill. 2d People authority he “A when without know person commits *** *** thereof, with intent enters motor vehicle ingly [a] 1(a) (West 2006). felony or theft.” 720 ILCS to commit therein 5/19— illegal is Thus, "burglary complete when the “[t]he offense of Moore, intent.” requisite made with (2007). Unlawful, (People crime” entry is “the essence (1972)) *4 distinguishes offense the of Davis, 3 Ill. App. 3d Poe, (People v. require an from which does not theft (2008)). 763, 766, 3d App. 385 Ill. ways. First, any insertion of two “entry” may
An occur one statutorily area designated will body part by the offender into any of Palmer, 83 Ill. entry. an See constitute (1980). Second, an into the designated the of instrument insertion only constitute an but if the instrument is inserted space may felony of purpose committing [intended] “for the immediate the merely purpose making not the aiding in its commission and for words, sole opening body, admit the hand or or in other for the “[Wjhether Davis, 740. purpose breaking.” 3d at Davis, the depends upon is made facts of an individual case.” at App. 3d 739. view, In the this the In our facts of case facts of Davis. Davis, police pounding observed the defendant and other men two through at perpetrators hole the wall of a television then store. leave, Davis, tempted stopped but were and arrested. 3 Ill. App. setting analytical at In 739. out our framework for the defendant’s burglary conviction, size of “[i]t [made we stressed is not the the hole *** building in a proving burglary] wall] [in is determinative but hand or actually instrument was into the inserted hole Davis, the purpose committing felony.” the 3d at We 739. vacated the and imposed conviction a conviction for a lesser offense because the evidence showed no insertion of of the body, purpose committing through or an instrument for the a felony, the by any hole in store wall of the three men. bar, 740. In the case at evidence shows the creation which by body part means might pass, any instrument not actual passage. is no direct any
There evidence that part person defendant’s entered the interior of the vehicle while window or by tool wielded defendant entered where objective the SUV Further, was to Little of deprive possession her of the vehicle’s window. what circumstantial evidence there is allows for no reasonable infer- ence of such intrusion body employed or a tool he during interior of the vehicle of the removal window. Neither Little’s nor Frazier’s trial established the window’s fact, arms were attached to the interior vehicle. In testimony suggested opposite. Little’s stated She that the arms “lifted” up, implying hinging, the window an exterior to if opposed “pushed” up. arms the window If the arms were on exterior of the then defendant would not have needed to enter separate from the frame. Defendant could pulled away have manipulating the SUV’s frame Moreover, if arms. defendant could utilize the button on the back lock, then, popping of the SUV after again, would have had to cross threshold of the SUV’s frame to remove
16 finder free to different inferences from
While a fact would be draw reject above, different facts and the inferences discussed State inferences provides allowing contrary no evidence that defendant part body must have a the SUV passed through of frame of presented, any remove the On determina the evidence such could only conjecture, proof beyond tion be based on which is a (1981) 415, reasonable See v. Ill. 2d 421 People Housby, doubt. 84 (“where permissive unsupported by inference stands corroborat circumstances, ing proved presumed fact to the ele leap satisfy beyond ment must a reasonable higher proof standard — doubt”); Associates, Inc., Erdman & Oldenstedt Marshall 1, infer based circumstan (holding negligence 17 on “ evidence, a [must be] tial ‘the circumstances of nature and so related it that be drawn to each other that is the conclusion can therefrom, guess suspicion mere insufficient.’ conjecture, (2007) (“ [Citation.]”); C., Keith ‘The In re 378 260 from which an inference of present State must sufficient evidence made, any upon must knowledge can be inference be based intervening [Cita and not on inferences.’ pyramided established facts tion.]”). respect punching
There with to the proof is a similar failure proof that the door lock. There is neither direct of defendant’s lock body punching went into the interior of the SUV nor while Further, suggest bodily entry. there are there circumstances that a support defendant is neither direct nor circumstantial evidence to that intruding creating when opening utilized an tool for more than punching the lock. factually decisions in
Our determinations are consistent with
close
Jacob,
A.D.
jurisdictions.
example,
55
our sister
For
1977),
York
Court
(App.
Supreme
165
the New
391 N.Y.S.2d
Div.
against
someone
burglary
indictment
where
dismissed
through removing
from a window
a church
louvers
entered
Among other
fingerprints were found on the louvers.
indictment,
the Ja
jury testimony supporting
grand
defects
finger
evidence established whether
cob court observed
Similarly,
inside
outside surfaces of
louvers.
prints were on the
1998),
Mitchell,
(App.
506 S.E.2d
in State
S.C.
conviction for
of South Carolina reversed
Appeals
Court
thumbprint was
its defendant’s
entry
insufficient
where
dur
apparently removed
on
exterior of a window screen
detected
“the
evidence
court stressed that
state’s
ing the
The Mitchell
offense.
removed, i.e. from the inside or
how the
did not disclose
screen
Mitchell,
out.”
332 S.C. at
Finally,
S.E.2d
525.1
Court
State,
of Appeals
of Texas reversed a
conviction in Blevins v.
(Tex.
App. 1999), noting,
S.W.3d
where there was no other
evidence
tying
to a residential
with
window,
through
“[w]ithout
[fingerprints were]
found
on the inside of the
there
placing [the
is no evidence
defendant] inside the habitation.” Accord
252 Ga.
Ruffin
289,
fingerprint evidence, such evidence circumstantially prove is not essential to burglary.
“(i)
possession
there
a rational connection between
recent
was
his
property
in the
and his
in
participation
stolen
(ii)
burglary;
guilt
likely
more
not to
his
is
than
flow
recent, unexplained
possession
from his
and exclusive
(iii)
guilt.”
proceeds;
corroborating [his]
there
was evidence
Housby,
However, Housby progeny and its all address circumstances where indubitably entry there has been with unlawful intent and the evidence, question specifically is whether the available circumstantial surrounding possession goods, of stolen ties the defendant that entry in whether circumstantial evidence establishes (1993) See, Caban, place. e.g., People first (victim door to her broken and items discovered side home down miss Carter, house”); People “[a] after ing search broken; store blood was on the (liquor window; liquor as well as on two cases of possession liquor and had of a had cuts on hands case of store store). In coming attempting argue identified as from his owner here, Housby, State, assumption makes the same of an raised ignores question appeal this effected he ever Little’s
We, therefore, carry failed to burden hold that the State its that, in favor of the there is a drawing presumptions even burglary. defendant committed reasonable doubt as whether We nor holding impose any this creates no new law does it note burglary prosecutions now greater burdens on the State future additional surround With but the smallest amount of exist. arms, likely the State could have obtained valid ing the *7 in example, prosecutor conviction in this case. As an Pen burglary (Tex. 1986), established rice v. 716 S.W.2d vehicle, “T-Top” observed where the defendant was T-Top was latched from inside by presenting inside, T-Top and the latches and could be unlatched pried having no of forced working signs order with been were record, But, role it is not our to distort top after the recovered. conclusions, in order to the scale in the tip unsupported or to draw favor. State’s rear suctioning “[s]hort
The dissent concludes the hatchback vehicle, remove physical impossibility it is a off interior, protected minimal access to gaining at least without case, 3d at 20. If that is close, 389 Ill. vehicle.” (1) owner had evidence that presented have then the State should (2) that it is prior rear incident with her problems no physically impossible grain- the hatchback window without remove The ing at least minimal access to the vehicle. State offered such evidence in this case. can
Having determined that defendant’s conviction for stand, question still remains as to what should be his relief: outright reversal, imposition or the of a conviction for a lesser offense 615(b)(3). pursuant authority to our under Supreme Court Rule 615(b)(3); Ill. 2d (reducing see also 3d at 740 convic attempted burglary tion to burglary, where insufficient remanding resentencing). previously noted, suggests As conviction, theft is the appropriate offense of and the State has made no counter-suggestion, arguing exclusively agree for affirmance. We that, while the State failed to prove guilty burglary, presented evidence it clearly proved guilt trial of theft. See (2008) (elements Echols, of theft (1) are: the intent to obtain unauthorized control property over the another and the intent to permanently deprive the other person the use or benefit of the property). Defendant obtained control over the back and, window of by placing Little’s SUV it in his own vehicle and attempting to away, drive demonstrated an intent to permanently deprive Little of the use and benefit of the Accordingly, we believe defendant should receive a conviction of theft for this offense.
For foregoing reasons, all the modify judgment we to reflect a conviction of theft and remand the cause to the circuit court for resentencing.
Judgment modified and cause resentencing. remanded for WOLFSON, J., concurs.
JUSTICE dissenting: GARCIA
I concur with the circuit
judge
court
that sufficient evidence was
introduced to establish that
the defendant made an
to the motor
vehicle by removing the
vehicle’s hatchback
which the victim
identified
possession,
guilty
was therefore
burglary. That the defendant committed the more serious offense of
to a motor
2 felony,
theft,
Class
rather than
a Class
felony,
majority holds,
as the
is consistent with the
statute’s
design “to deter unauthorized entry
of a motor vehicle.”
People Parham,
721, 730,
Ill. App.
While
break
hatchback window without
to remove the
possible
it is
the trier
persuade
to so
up
But it
to the
ing the close.
by the
inference drawn
the reasonable
unpersuaded
of fact. I am
in the
entry into the vehicle
made an
trier of fact that
the defendant
unsupported
somehow
the hatchback window is
course
Milka,
I dissent. CWIK, Independent DAVID Successor Adm’r of the Estate of Genowefa Bogdanowicz, al., Plaintiffs-Appellees, TOPINKA, et v. JUDY BARR
Treasurer, al., Defendants-Appellants. et (1st Division) 07—2368, First District Nos. 1—07—2786 cons. 1—
Opinion filed March 2009.