*1 107, 111; Redemptorist Glenview Park District v. Fathers M 629. But see W App. Dynamometer, & Gear Co. v. AW Inc. at policy promoted This when costs and fees are to the torney appropriately granted insured mak prevailing the insured whole and in measures from ing financially exacting punitive To to obstreperous interpret apply insurer. section 155 to trial court would to allow an insurer whose financial re proceedings be sources are those insured grossly escape disproportionate protections whittling statute’s the insured by appealing punish and at his away judgment litigation. further Such a result cannot be countenanced under the 155 is policy designed section further. herein,
For the cited trial is af- reasons decision of the court firmed. fees and remand appeal appellee We award costs and taking the cause the trial court for the of evidence for determination of reasonable fees costs. attorney
Affirmed remanded. STROUSE, JJ., concur. UNVERZAGT ILLINOIS, Plaintiff-Appellee, v. THE OF STATEOF PEOPLE al., Defendants-Appellants. et FRANK OBROCHTA 85—0556,0 660 cons. District Nos. Second 85— 18, 1986. Opinion filed November *2 LINDBERG, J., dissenting part. Pinelli, Stillo, DeMeo, Anthony T. & both of Chi-
Joseph Stillo cago, appellants. for Foreman, Attorney, Waukegan (Kenneth Boyle, R.
Fred L. State’s Office, Springfield, Prosecutor’s and William Attorneys Appellate State’s Moltz, Attorneys Appellate of State’s Prose- P. both L. Browers and Martin counsel), People. Office, Elgin, cutor’s *3 the court: REINHARD the of opinion JUSTICE delivered Koroluk, charged Defendants, Frank and Paul were Obrochta 1985, 38, (Ill. the offenses of Rev. Stat. ch. burglary indictment with 1985, 38, (Ill. Rev. Stat. ch. of tools 1(a)),possession burglary par. 19— 1985, 38, Rev. Stat. exceeding theft par. 2(a)), and $300 19— trial, of guilty was found a 1(a)(1)).Following jury and pos of offenses, guilty and Koroluk was found all three a The had directed previously tools. trial court session of on the theft and had directed charge not for Koroluk finding guilty codefendant, all Zuniga, a Richard on for findings not term of him. sentenced to a charges five-year Obrochta was against sentenced to a two-year and Koroluk was imprisonment burglary, for that no sentences for The record reveals burglary. term of probation remaining jury on the ver entered judgments on imposed in as lesser these were dismissed dicts defendants as against both cluded offenses. the fol- appeal and raise consolidated bring
The defendants guilty beyond not proved (1) issues: both defendants lowing not Obrochta was (2) that defendant burglary; a doubt reasonable theft; that defendant (3) a reasonable doubt guilty beyond proved not of posses- a reasonable doubt proved guilty beyond tools; sion (4) and that evidence of a radio scanner during found arrest of Obrochta which was not into evi- admitted dence and was stricken the trial court was still heard jury and denied a both defendants fair trial. State’s evidence p.m. reveals at 12:30 March a Cindy Levy pull driveway home, saw car into the of her which man, located in an isolated cul-de-sac Bannockburn. A whom she
later Obrochta, identified as rang defendant and asked doorbell for directions to Being suspicious, Wilmot Road. called the Levy po- occurrence, lice to report describing car to Chief of Police Thomas providing Potter and a partial license-plate description. She testified that there were three or four men in the car.
After call, receiving Levy’s telephone Bannockburn chief police Potter out looked his office window and saw a car coming from the house, direction of Levy’s which is about two-tenths of mile from his office, that he believed description. matched the Potter followed the car car, in his sight it for squad losing only spotted a brief time. He again car him driving toward on a no-outlet road. pulled He along- side and asked the driver what he was doing. The driver for di- asked rections Road, to Telegraph and Potter asked him to over. Potter pull testified that he believed there were four men in the car car. The ac- celerated and fled making while Potter was a radio report pulling over to the side of the road. He the car pursued into Deerfield. After losing sight of the seconds, car a few he saw car pulling away from a proceeded curb. Potter car. stop Zuniga, driver time, car occupant at this denied that other had people been in the car and stated that he had fled because he did think not he had driver’s license. Potter radioed departments in other communities, Deerfield, including that three subjects had fled the car.
At approximately p.m. afternoon, 1:30 Ingrid Kube looked out of her family-room patio man, doors Deerfield and saw whom she later Koroluk, identified the defendant at standing the side door of her unattached garage about 10 to 12 feet Kube asked away. Koroluk what he doors, it doing, through closed patio ap- peared he mouthed word She “nothing.” noticed that he talked *4 into the garage and that the side door of garage was slightly open. Obrochta, man, whom she later as stepped identified the second door, out through garage her giving and both men ran a away, chance to observe the side Kube then called the Obrochta’s face. male, police. Koroluk, She one described white as approximately 200 and a black pounds wearing She described another white jacket. a wearing blue Obrochta, pounds, being approximately as male, bag athletic to his chest. blue tote or clutching a jeans jacket had also been closed the side door closed, and door was garage Her Nothing bicycles. tools and contained not locked. The but taken from the garage. David Ebert call, Deerfield officer police
After receiving Kube’s description a home, Kube, and received interviewed went to Kube’s Deerfield police a radio to other He out broadcast put the two men. He then a broadcast received subjects. for the two officers to look suspects that he had seen two Anderson from Officer Kenneth street. adjacent home on an front a yard running through suspects the two chasing Anderson saw Ebert drove there and carry- who was jacket, the man in the blue then pursued foot. Ebert He identified as Obrochta. saw Ebert bag a and whom ing blue lost Koroluk, on the roof of a house. Ebert gloves throw person, other again, saw him Ob- When Ebert pursuit. during sight of Obrochta Mr. sight lost of Obrochta. again He any bag. carrying rochta was not yard to his then led Ebert Blevins, neighborhood, a resident home. behind the storage shed where Ebert found Obrochta inside the shed which found Later, radio receiver was a scanner frequency. department turned to the Deerfield call, radio that in Ebert’s responding testified Officer Anderson in the area of Kube houses running between subjects he saw two one, something. He chased were carrying home. Both persons him He re- Koroluk, custody. took into him later identified arrested to where he adjacent immediately on a roof gloves covered run had the route which Obrochta then retraced Koroluk. Anderson walkie- things, other containing, among bag gym and found blue screwdrivers, book, pairs pli- several two talkies, a radio-frequency lubricant, lock and a lock pick, spray ers, gloves, several pairs MT-500 Motorola Model The two walkie-talkies drill. cylinder Illinois the Northern scientist for A forensic radios. portable two-way on a fingerprint page testified that Laboratory Police Crime Ob- discarded gym in the found blue book radio-frequency of Koroluk. finger left index that of the compared rochta of Soldier Hauser, manager stadium witness, Frank W. A State radios two-way Motorola Field, on June testified that in Chi- Field from his office Soldier missing to be were discovered in the blue radios found two-way Motorola the two He identified cago. any offered defendant missing radios. Neither two of the bag as gym in his defense. failed to the State first contention The defendants’
949
prove them guilty beyond
burglary. Essentially,
a reasonable doubt of
Koroluk
that there
argues
proof
ga-
was no
that he ever entered the
rage, and both the defendants maintain that
proof
there
no
that the
entry
made
Obrochta was with the
intent
commit
In-
burglary.
stead,
out
they point
that it is
ga-
obvious
Obrochta entered the
rage to
hide from the
nothing
therein was
or
disturbed
this,
taken.
contend
They
that a case such as
based
circumstan-
upon
evidence,
tial
be of
must
such a nature as to
any
exclude
reasonable
hypothesis of innocence. The
responds
State
by arguing that
the in-
tent to commit a theft
bemay
shown
circumstantial evidence and
the fact that
standing
Koroluk was
outside
garage
plain view
shows that he was a lookout and is inconsistent with the
claim
the garage
used as a
place.
hiding
the State
Additionally,
relies
proof
entry
unlawful
as an
guilt
inference of
sufficient
to sustain
for burglary.
a conviction
The State also maintains that the
flight
defendants’
from the garage shows a consciousness of guilt.
statute
requires an
or a
entry
within a
remaining
building without authority with the intent to commit a
or
felony
theft.
Rev.
Stat.
1(a); People v.
(1968),
Weaver
41
Ill.
434, 438-39,
245;
243 N.E.2d
People v.
(1985),
Racanelli
124, 134,
We that under the particular believe here, facts present State has failed prove the requisite intent to commit a theft inside garage Kube charged; as The circumstances preceding Obrochta’s entry garage into the and Koroluk’s presence outside the garage are inconsistent with an intent to commit theft and are insufficient to in fer such an intent. While the evidence that the may indicate defend ants have may afternoon, intended commit a burglary earlier that shown their tools com sophisticated munication and detection equipment along “casing” with the apparent of the home in Levy Bannockburn, requi State has not shown the site intent to commit a burglary Deer- nearby Kube field.
It is evident at 12:30 approximately p.m., once Bannockburn police chief Potter began following the vehicle to him by described house, her Mrs. who enter the car Levy, leaving saw Obrochta after plans immediate went The car af- any awry. sped away it A led briefly pulled began ter had been over. chase which chase, During temporarily of Deerfield. the car eluded community curb, other three Potter, and, pulled occupants to the Chief once later, driver, A short while at fled, leaving Zuniga. ap- had standing Koroluk at 1:30 Mrs. Kube observed proximately p.m., Obrochta, noticed, her called to garage. side door of Once Nothing who was inside the and both fled. was taken from garage, nor offer had anything did State evidence that inside garage, disturbed. been *6 in in the of Obrochta, garage, light his mere the presence
As to a felonious intent to above, is inconsistent with the facts referred to is he one a theft. The evidence shows enter the to commit garage aOnly by police. the the chase the during those who had fled vehicle Levy time seen at the time had between the he was elapsed short chase, when, the he observed following was house at 12:30 and infer he an intent is to that formed p.m. Kube at 1:30 It unreasonable on burglary, running let a while garage to commit a alone burglary, a was without community. the in a He police neighboring foot from the garage, he have taken from transport anything might vehicle to from the or therein. and, fact, garage in was taken disturbed nothing however, dissent, jury may believe that the The and the State as a look- standing garage outside that Koroluk was have inferred This hiding inference fleeing. was not or out and this shows Obrochta weAs with all the other evidence. is unreasonable and inconsistent vehicle, in been stated, the evidence shows Obrochta had have The other fleeing police persons. that he was it is evident at Kube and both together garage fact he and were that in earlier suggests they together were strongly fled that place together. them blue the car. evidence links Other fin- in which Koroluk’s radio-frequency book was contained carrying Koroluk, Thus, stand- inferring rather than gerprint was found. midafternoon, a “lookout” a sud- was ing plain outside view with the it is far more consistent planned garage burglary, denly and had garage also been inside evidence that Koroluk had A sufficient present. if stepped police outside to determine p.m., after 12:30 time the chase began, shortly had since elapsed them, for Koro- that it reasonable 1:30 saw so p.m., when Kube if around. police to to determine exposed luk have himself no discovered Kube creates inference That two then fled once is con- relating burglary, entirely an intent to commit a but guilt to or else sistent with their effort to from who escape anyone them. might discover
A will the evidence finding guilty only be disturbed where unreasonable, unsatisfactory is so or as leave a reason improbable, able v. Kline 92 Ill. guilt. (People doubt defendant’s 154.) guilty It our where a verdict of duty, N.E.2d is evidence, is returned not consider the but jury, carefully all reverse the if to remove judgment the evidence is not sufficient reasonable doubt of the guilt defendant’s not sufficient cre (Peo ate abiding an conviction he is guilty crime charged. ple v. Bartall 305-06, Based N.E.2d upon the above, facts related to prove State failed that Obrochta’s entry therein, into the with the intent to commit a theft and we must reverse his conviction. Similarly, against Koroluk, which is on based his an accomplice Ob rochta, well, fails as and we must reverse his conviction. though the trial judge only
Even
sentenced the defendants
upon the
verdicts for the
offense of
has
burglary, Obrochta
challenged
theft,
on
his conviction for
appeal
and Koroluk has chal
lenged on
his
appeal
conviction for
of burglary tools. Both
defendants claim they were not
proved guilty beyond
reasonable
doubt. The common law record indicates that no sentences were im
posed
these two convictions and
were dismissed as “lesser in
they
cluded offenses.” As the defendants have sought reversal of these
convictions
the lack
despite
sentences,
imposition
we shall exam
ine the
and,
merits of their contentions
if the convictions are af
*7
firmed, remand the cause for
of sentence.
v.
imposition
People
Scott
85, 89,
(1977),
540;
2d
370 N.E.2d
see People
(1982),
v. Dixon
346, 353-54,
91 Ill. 2d
We address first Koroluk’s contention that his conviction for possession of tools must be burglary reversed because he not was proved guilty beyond a reasonable doubt. More claims specifically, he that there is no evidence that he ever the possessed bag blue which contained the tools. his burglary Although fingerprint was identified as a being on of page a radio-frequency book contained inside the blue bag, circumstantial, contends evidence is only the radio- is not a frequency tool, book and burglary the evidence fingerprint does not prove anything with to the respect burglary tools also found in the The bag. State that Koroluk of responds be found may possession of burglary tools under an for accountability theory who, conduct the State argues, possess bag did the blue containing burglary statement, tools. In a one-sentence without ci- 952
tation of State also asserts Koroluk was constructive authority, possession of the tools. burglary
To a for tools the possession prose sustain conviction for adapted designed the tools are and prove (1) cution must them with knowl that defendant (2) possessed breaking entering, and to use them for character, that he intended (3) and edge their 75, 21 (1960), Ill. 2d Faginkrantz v. breaking (People and entering. 640, 636, 3d Ill. 79, 5; App. 171 81 People N.E.2d v. Ruberto to use intent 1306.) general 401 N.E.2d The intent is a required for the circum may tools a criminal be inferred from purpose 18 v. possession. (People Esposito stances their accompanying us, however, is question Ill. 2d The before 487.) N.E.2d Koroluk, at whether who no time was shown present under facts tools, bag containing burglary to possessed have account legally either was the tools or is possession in constructive for possession able Obrochta’s the tools. theory to any authority support
The State has not cited that, prosecution, in a an accused never possession-of-burglary-tools legally of the tools account may shown to been in be possession have Rev. 5—2 of Criminal Code of pursuant able section 1985, 38, who is shown 2) Stat. conduct another we found tools. Illinois have possess burglary authority factually. justified found to be theory inapposite where such a was nu In Ill. 392 N.E.2d People Taglia (1979), App. v. codefendant, defendant, merous tools found on on a belonging and in the of the Other tools trunk defendant’s vehicle. had been were also re the codefendant which thrown from the vehicle charged defendant was of all the bur covered. The tools, accountability given. an instruction was The narrow glary this, a case as court “in such where holding appellate codefendant, than an account one belong more the items possessed 199, 204, 392 (76 proper.” be ability may instruction the facts under applicable find this case be N.E.2d We do hot of the case at hand. from running Koroluk and Obrochta
All the -witnesses who saw
testified
fleeing
later
from
Mrs. Kube’s
to contain bur-
later determined
carried the blue
only Obrochta
or pos-
have
owned
tools
shown to
been
glary tools. None
identified
Although
fingerprint
sessed
Koroluk.
Koroluk’s
book,
this book is not
radio-frequency
page
*8
fingerprint
tool; nor
there
evidence
to when
any
Thus,
possession
of Koroluk’s
there is no evidence
page.
on the
placed
of the
may
inferentially
tools. While
show
burglary
that the carrying
burglary
knew
Obrochta was
contained
tools,
conduct,
to be
for Obrochta’s
Koroluk must
legally accountable
aid
or abet
in the
or
of the offense
planning
Obrochta
commission
possession of
Al
lacking.
tools. This evidence is
completely
though the State has also
citation of
briefly asserted without
author
tools,
ity that Koroluk was in
of the
possession
constructive
there is
proof
no
Koroluk ever had control over the tools either
home,
vehicle,
his
or other
this
place which he controlled where
doctrine is
v.
usually applied.
People
See
Roundtree
1075,1080-81,
turnWe next to Obrochta’s contention that his conviction theft be must reversed because he proved was not guilty beyond reasonable doubt. The count of the indictment for theft involved allegation that he gained unauthorized control port over two two-way able belonging radios Chicago park district intending deprive it of the use of permanently property violation of 16— section of the 1(a)(1) 38, Criminal Code Rev. Stat. 16— 1(a)(1)). argues Defendant first that the record is of any devoid evi dence radios that the were the property Chicago of the park district. This argument is meritless. Frank Hauser testified that he was the stadium manager radios, Soldier Field in Chicago and that the two which had the radios, name an his employee of on each of the those from his missing office on June 1984. He further testified that the radios were set to assigned the frequency to the Chicago park district and used the district. Absent any the con proof we find trary, evidence sufficiently shows in the ownership Chicago Moreover, district. park arguable any variance between the allegations proof is neither misleading material nor to defendant’s prejudice. See v. Bohm People (1983), 95 448 N.E.2d 175.
Obrochta’s second contention relating to his theft conviction that his year they radios almost a were re after ported “is not missing enough prove theft recent possession” and that a “conclusive inference that Obrochta stole the radios cannot be supportive.” was charged pursuant to section in that on 1(a)(1) *9 1985, ra 11,
March he control” the two “gained unauthorized over 1(a), which charged pro dios. When a defendant is under section 16— the conduct of unauthor accomplishing prescribed vides means of exerts,” or the use of either word is ized control in terms “obtains 128 Ill. (People (1984), the same conduct. v. Soskins descriptive Thus, as contained in the defi 564, 570-71, 643.) 470 N.E.2d 3d App. 1985, Rev. Stat. ch. (Ill. of 1961 Criminal Code nitional article or exerts control” over 38, “obtains par. phrase 15—1 et seq.), not statute, including, is but as used in the theft defined property, *** to, possession property.” “the or taking, carrying away, limited 38, 8; (1984), 128 1985, Rev. Stat. v. Soskins People 564, 570-71, 643.) allega Ill. 3d 470 N.E.2d It is clear under App. being charged tions and the that Obrochta was with unauthor proof 11, 1985, he possession ized of the radios on March the date two was bag containing of the by police possession observed Deerfield in radios.
The raised Obrochta that the theft the radios argument by and cannot Chicago support from district was not recent park here. The applicability that he the radios irrelevant inference stole of re arising possession from an accused’s exclusive of the inference where are not con is not involved here we cently stolen property but rather taking property question, of the in initial cerned possession by of the defendant. subsequent property unauthorized 595; 77 Ill. 3d 396 N.E.2d People (1979), App. v. Mertens 342; 465, 470-71, 212 N.E.2d (1965), 63 Ill. 2d People v. Nunn 84 Ill. 2d N.E.2d 151. (1981), v. People Housby cf. argument sup- other presented any On Obrochta has not appeal not a reasonable guilt beyond that his was proved his contention port conclude, therefore, posses- that Obrochta’s unauthorized doubt. We here is sufficient to the circumstances sion the two radios under the ra- the owner of permanently deprive show Obrochta intended attempted to dis- chased and from the when dios. Obrochta fled tools while containing the radios and pose the circumstances explain at trial to He offered no evidence pursued. theft was be- proved or intentions. The of his radios possession doubt. a reasonable yond they is that both defendants final raised
The contention the defendants maintain regard, fair In this denied a trial. was ar shed where a radio found although scanner into evi was introduced concerning discovery its testimony rested and into evidence. was later denied admission dence, the testimony admon- specifically was though jury that even argue defendants evidence was not admissible and the trial this judge ished verdict, at their arriving they them should not be considered not cure this error. still the instruction did prejudiced of this contention because We need not reach the merits trial, defendants failed to raise this issue in their motions for a new (People Wright the contention is deemed waived. v. properly 128, 153-55, Moreover, 490 N.E.2d we believe the instruction to the error the other jury any considering cured evi against dence the defendants. See v. Bartall 98 Ill. 2d People 294, 317, 456 59. N.E.2d reasons,
For the foregoing we remand Obrochta’s theft conviction sentencing for in accordance with v. Scott People (1977), 69 also remand for sentencing 540. We Obrochta’s conviction 370 N.E.2d sentence tools as no imposed upon of burglary related to and dependent unappealed intimately conviction which *10 reversed, have upon the conviction of which we appealed burglary, within the of Court Ill. 2d R. meaning Supreme 615(b)(2) (87 Rule 346, 353-54, v. 615(b)(2)). (See People Dixon 91 Ill. 2d reversed, N.E.2d Both burglary defendants’ convictions are Koroluk’s conviction is possession-of-burglary-tools reversed.
Reversed in and affirmed in part part remanded.
HOPF, J., concurs. LINDBERG, dissenting part:
JUSTICE I dissent from that part majority’s holding which reversed defendants’ I convictions for believe that the was enti- burglary. jury tled to conclude from the evidence that defendant Obrochta was en- gaged in a burglary just being before observed Mrs. Kube by running from garage her after she had of Koroluk what he inquired was doing outside her garage door. Koroluk’s conviction of burglary would then be on the discussed in the theory accountability majority opinion.
On the in this case the was entitled to jury record consider that: there no knew upon leaving was defendants Zuniga’s car having were outrun Chief Potter they being pursued, having detection; car without departed Zuniga’s apparently defend- innocence, hiding ants’ from the rather than commit- theory of one ting burglary, presence was belied of the defendants definition, since, at Mrs. door view garage standing open Kube’s view; as a persons having do not stand in stand hiding open person being lookout committed is consistent with the burglary while committed; when burglary they conclusion that a jury’s Kube, had not abandoned their Mrs. defendants observed danger in imminent tools, thought as would persons they who tools the satchel of apprehension; discarding and Obrochta’s in imminent of detection and danger apprehension when he knew he was not hid- reinforces the conclusion that defendants were by Officer Ebert but, rather, au- garage, in the Kube entered the without ing they therein. and in tools to commit a theft thority Therefore, finding I affirm the verdict defendants jury’s would burglary. al., al., DYSLIN et Plaintiffs-Appellants,
JAMES et v. ROYCE POPP efendants-Appellees. D Second District No. 84 — 1212 18, 1986. Opinion filed November