People v. Clayborn

• Decision Date: 02 March 1990
• Docket Number: No. 1-87-0381,1-87-0381
• Citation: 141 Ill.Dec. 707,551 N.E.2d 1050,194 Ill.App.3d 1079
• Parties: , 141 Ill.Dec. 707 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James CLAYBORN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1050

551 N.E.2d 1050

194 Ill.App.3d 1079, 141 Ill.Dec. 707

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James CLAYBORN, Defendant-Appellant.

No. 1-87-0381.

Appellate Court of Illinois First District, Fifth Division.

March 2, 1990.

Cecil Partee, State's Atty., Chicago (Inge Fryklund, Joseph G. Howard, Brian T. Sexton, Asst. State's Attys., of counsel), for plaintiff-appellee.

Paul P. Biebel, Jr., Public Defender of Cook County, Chicago (James H. Reddy, Asst. Public Defender, of counsel), for defendant-appellant.

Justice GORDON delivered the opinion of the court:

After a bench trial, defendant, James Clayborn, was convicted of burglary (Ill.Rev.Stat.1985, ch. 38, par. 19-1) on an accountability theory and sentenced to five years in prison. On appeal, he contends that he was not proven guilty of burglary on an accountability theory. We affirm defendant's conviction.

The undisputed facts are that in the early morning hours of July 1, 1986, John O'Donnell parked his 1980 Pontiac automobile at 4848 North Broadway in Chicago. When he parked it there, the passenger side rear window was not smashed and a rebuilt carburetor, air filter, and set of jumper cables were on the back seat of the auto. He had not given anyone permission to enter or damage his auto. At about 2:10 a.m., Kenneth Simmons was sitting in O'Donnell's automobile at 4848 North Broadway and defendant, James Clayborn, was standing on the sidewalk next to the smashed passenger side window of that auto.

There is a dispute in the testimony, however, over what defendant and Simmons were doing at O'Donnell's parked auto. Officer Kotowitz, who was in an unmarked police car being driven by his partner, Officer Szparkowski, testified that as he and his partner were driving past the automobile, at a distance of approximately 35 feet away and at a rate of speed of approximately 20-25 miles per hour, he saw Simmons passing jumper cables, a 10"' by 10"' air filter box and another object to Clayborn through the smashed rear window. Kotowitz and his partner then drove about three quarters of a block past the parked automobile, made a U-turn, parked in a gas station and watched Simmons and Clayborn. They then walked toward the parked auto and when they were within three feet, they saw the front passenger door open, the smashed window and a carburetor and box containing an air filter on the ground close to where Clayborn was standing. Clayborn was holding jumper cables in his hands and Simmons was in the front seat of the Pontiac using a screw-driver on the car radio. When Kotowitz announced that he and his partner were police officers, Clayborn and Simmons attempted to flee but were caught and arrested. Szparkowski's testimony was essentially the same as that of Kotowitz except that he said he never saw Simmons hand the cables to Clayborn and when he announced that he was a police officer, Clayborn turned and attempted to walk away.

Both Clayborn, who had a criminal history including four prior theft convictions and one prior robbery conviction, and Simmons testified that in the early morning hours of July 1, 1986 they were sitting and drinking wine on the steps of the post office building located in the 4800 block of North Broadway when they heard a window break. They went to see what happened and saw some people fleeing from a parked auto with a smashed window. They then walked over to the auto and while Clayborn stood outside the auto, Simmons went in to see if he could find something which would identify the owner of the vehicle. Shortly thereafter, the police arrived and arrested both of them. Clayborn denied ever having jumper cables in his hands and denied moving away when the police arrived.

Defendant argues that he was not proven guilty of burglary because the credible evidence merely established his presence at the scene but did not establish any culpable conduct on his part. He also argues that he could not properly be found guilty of the crime of burglary on an accountability theory because the crime was completed when Simmons entered the parked automobile. The State argues that defendant was proven guilty on evidence that: (1) he had accepted a number of items passed through the broken window by Simmons, (2) he was holding a set of jumper cables and dropped them when the police officers arrived and (3) he attempted to leave the scene when the police arrived. The State further argues that his burglary conviction was proper because the crime was in progress during the time he was present. We find that there was sufficient evidence to properly convict defendant of burglary on an accountability theory.

When there is a dispute in the testimony of witnesses at a trial, the question of whom to believe is for the trier of fact, and we will not reverse a conviction based on the trier of fact's determination of that question unless the evidence is so improbable to raise a reasonable doubt of guilt. (People v. Manion (1977), 67 Ill.2d 564, 578, 10 Ill.Dec. 547, 554, 367 N.E.2d 1313, 1320.) Where defendant presents a credibility issue, we must view all evidence in a light that is most favorable to the prosecution. (People v. Pryor (1988), 170 Ill.App.3d 262, 268, 120 Ill.Dec. 670, 674, 524 N.E.2d 700, 704.) A person is legally accountable for another's action when "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." (Ill.Rev.Stat.1985, ch. 38, par. 5-2(c).) Although mere presence at the scene of a crime is insufficient to establish accountability (In re Whittenburg (1976), 37 Ill.App.3d 793, 795-96, 347 N.E.2d 103, 105), if a person is present at the scene of a crime and does not disapprove of or oppose the crime, his conduct may be considered together with other circumstances in determining whether he has aided or abetted in the commission of the crime. (People v. Cleveland (1986), 140 Ill.App.3d 462, 469, 94 Ill.Dec. 883, 888, 488 N.E.2d 1276, 1281.) One circumstance which courts have considered in determining that a defendant has aided in the commission of a burglary is his receipt of property which he knew did not belong to the person handing it to him. People v. Ruckholdt (1984), 122 Ill.App.3d 7, 12, 77 Ill.Dec. 543, 547, 460 N.E.2d 847, 851.

We have viewed the evidence in this case in a light most favorable to the prosecution and cannot say that it is so improbable to raise a reasonable doubt as to defendant's guilt. The undisputed evidence places defendant at the scene of the crime at 2:10 a.m., on July 1, 1986. Officer Kotowitz's testimony establishes that Simmons passed several items, including jumper cables, from the parked auto to defendant through the smashed window. Officers Kotowitz's and Szparkowski's testimony establishes that defendant was holding the jumper cables when they walked up to him and was standing close to a carburetor...