People v. Dabrowski

• Decision Date: 20 November 1987
• Docket Number: 2-86-0708,Nos. 2-86-0707,s. 2-86-0707
• Citation: 114 Ill.Dec. 74,162 Ill.App.3d 684,515 N.E.2d 1345
• Parties: , 114 Ill.Dec. 74, 72 A.L.R.4th 821 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert K. DABROWSKI et al., Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1345

515 N.E.2d 1345

162 Ill.App.3d 684, 114 Ill.Dec. 74,

72 A.L.R.4th 821

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert K. DABROWSKI et al., Defendants-Appellants.

Nos. 2-86-0707, 2-86-0708.

Appellate Court of Illinois Second District.

Nov. 20, 1987.

Joel Gould (argued), James J. McGraw (argued), Chicago, for Robert dabrowski.

James S. Williams, Carroll County State's Atty., M. Carroll, William L. Browers, Deputy Director, State's Attys. Appellate Prosecutor, Elgin, Barbara J. Slingerland, Springfield, for People.

Justice INGLIS delivered the opinion of the court:

Following a bench trial, defendants, Robert K. Dabrowski and Wojciech A. Sitarski, were convicted of theft pursuant to section 16-1(d)(1) of the Criminal Code of 1961 (Ill.Rev.Stat.1985, ch. 38, par. 16-1(d)(1)). Defendants were each sentenced to two years of probation. In addition, Dabrowski was fined $2,000, and Sitarski was fined $1,500. Defendants appeal. We affirm.

On the evening of October 5, 1985, Joel Ritchie docked his 18-foot boat at the dock in Marquette Park, Carroll County, Illinois. The boat was tied to the dock approximately 10 feet north of the launching ramp. A 1985, 65 horsepower Evinrude motor was attached to the boat. The motor was mounted to the boat by four bolts and was operated by an electrical cord which ran from the motor to a battery contained in an aluminum box upon which the operator sat. The motor was blue and silver, brightly finished, and was valued at approximately $2,386.

Later that evening, Jeff Berg, a passing motorist who was familiar with the Ritchie boat, noticed that the boat was not docked at its usual place, but rather was pulled up on the launching ramp with its motor toward the shore. Berg further observed a second boat, later identified as belonging to Sitarski's wife, located approximately 15 feet from the Ritchie boat. In addition, Berg observed four people in the launching ramp area and a van with a boat trailer in the parking area.

Sometime between 7 and 8 a.m. on October 6, 1985, Ritchie returned to Marquette Park to check his boat. Upon arriving, Ritchie discovered the boat tied to some trees. The motor had been removed from the boat and was missing. Ritchie contacted the Savanna, Illinois, police department and reported the motor stolen.

Later that morning, 15-year-old Ty Kinder and 12-year-old Robert Hochbaum were walking on North Fifth Avenue in Savanna, approximately one-half to three-quarters of a mile from Marquette Park. As they walked down the road, Ty saw something silver in the weeds about 10 or 15 feet ahead on the east side of the road. The boys approached the silver object and discovered it to be a boat motor. The motor was located approximately five feet from the side of the road in weeds about "knee cap," or one to two feet high. The motor was lying on its side and was approximately 18 inches high. It was partially covered with weeds. The boys did not disturb the motor or the weeds surrounding it. The boys proceeded to the Kinder house where they reported their discovery to Ty's father. Ty's father then called the police.

Lieutenant Keith Dauphin of the Savanna police department responded to the Kinder home, and the boys led him to the location of the motor. Dauphin removed some brush from the motor and partially lifted it to locate the serial number. Dauphin established that the serial number on the motor matched the serial number of the motor Ritchie had previously reported stolen. The four mounting bolts had been removed, and the electrical cord had been severed. Before leaving the scene, Dauphin re-covered the motor with brush. Dauphin subsequently obtained permission from the chief of police to conduct a surveillance on the motor at the end of his shift. During the remaining hours of his shift, between 12:30 and 2:30 p.m., Dauphin drove by the location of the motor six times. Dauphin was unable to see the motor on any of his passes.

At approximately 3:30 p.m., Dauphin returned to the scene wearing a camouflage fatigue top and blue jeans. Dauphin secreted himself in the weeds approximately 20 feet from the motor. As darkness set in, Dauphin advanced to a position approximately five to six feet from the motor. During his surveillance, Dauphin observed heavy vehicular traffic and one pedestrian pass the location of the motor.

At approximately 7:20 p.m., a streetlight automatically turned on at the intersection of Water Tower Road and North Fifth Street, approximately 15 to 20 yards from the location of the motor. At the same time, Dauphin observed a van approaching from the south. The van began to slow down as it approached the location of the motor and stopped directly in front of it. The motor and Dauphin were located on the passenger side of the van, with Dauphin crouched down approximately five feet behind the motor. Dauphin observed Dabrowski exit the passenger side of the van. He further observed Sitarski begin to exit the van from the driver's side. Dabrowski then opened the cargo door of the van. As another vehicle approached the van from the south, Dabrowski closed the cargo door and entered the van on the passenger side. Dauphin observed Sitarski, who had not fully exited the van, similarly close the driver's side door. This fact is disputed by Sitarski, who testified that he had fully exited the van and returned to close the driver's side door when he noticed the car approaching the van.

After the car passed, Dabrowski exited the van and again opened the cargo door. Defendants were observed moving items around in the cargo area. Dauphin was able to observe defendants' faces and actions due to the illumination provided by the streetlight and the interior lights of the van. Dauphin observed defendants approach the motor, remove the vegetation, and begin to lift the motor. After defendants had raised the motor two to three feet, Dauphin identified himself and advised them that they were under arrest for possession of stolen property.

Subsequent to arresting defendants, Dauphin examined the cargo area of the van, which contained camping equipment, tools, and a large supply of picked mushrooms. Dauphin observed that the items had been arranged in the cargo area so that an item the size of the motor could be placed inside. Dauphin and another police officer then placed the motor in the van and transported it to the police station. Ritchie was notified about the recovery of the motor and later identified it as belonging to him.

Upon questioning, Sitarski stated that the van was registered to his wife. Sitarski further stated that he, Dabrowski, and two friends had been fishing on the previous evening at Marquette Park. Sitarski stated that he was staying at a motel in Elizabeth, Illinois, and that a boat owned by Sitarski's wife could be found at that location. Sitarski explained that he and Dabrowski stopped along the side of the road because they noticed the motor in the weeds and intended to pick it up and turn it over to the authorities. Sitarski stated that they were on their way back to the motel after purchasing fresh fish from a store in Savanna. North Fifth Street is a through route between Savanna and Elizabeth. Sitarski also stated that they had been picking mushrooms and discovered the motor as they were examining the roadside for an area in which to return to pick mushrooms. Sitarski explained that after stopping on the side of the road, the approaching car made Sitarski realize that he had left the driver's side door open, so he returned to shut it. It was further explained that Dabrowski returned to the van because he had broken off the handle on the cargo door and was looking for tools.

Defendants were tried and convicted of theft on the basis that they obtained possession of stolen property under such circumstances as would reasonably induce defendants to believe the property was stolen and with an intent to permanently deprive the owner of its use. Defendants' post-trial motions were denied, and defendants were each sentenced to two years' probation and fined. This appeal followed.

Defendants contend on appeal that the trial court erred in finding them guilty since (1) the State failed to prove that the motor was stolen "by another"; (2) they did not possess guilty knowledge; (3) they did not intend to permanently deprive the owner of the motor of its use; (4) it was legally impossible to find them guilty of theft since the motor had been recovered by the police; and (5) the police surveillance was a form of entrapment.

We first address defendants' assertion that the State failed to prove that the property received by defendants was stolen "by another." Defendants argue that proof of theft "by another" is a necessary element of a section 16-1(d)(1) prosecution. We disagree.

Section 16-1(d)(1) provides:

"A person commits theft when he knowingly:

* * *

* * *

(d) Obtains control over stolen property knowing the property to have been stolen or under such circumstances as would reasonably induce him to believe that the property was stolen, and

(1) Intends to deprive the owner permanently of the use or benefit of the property." Ill.Rev.Stat.1985, ch. 38, par. 16-1(d)(1).

Defendants cite a long line of cases, the most recent of which include People v. Perkins (1983), 115 Ill.App.3d 423, 71 Ill.Dec. 130, 450 N.E.2d 818, People v. Weiss (1976), 34 Ill.App.3d 840, 341 N.E.2d 79, and People v. Dickerson (1974), 21 Ill.App.3d 977, 316 N.E.2d 519, rev'd on other grounds (1975), 61 Ill.2d 580, 338 N.E.2d 184. Although we agree that in each of these cases the court held that the State was required to prove that the property was stolen "by another" (People v. Perkins (1983), 115 Ill.App.3d 423, 425, 71 Ill.Dec. 130, 450 N.E.2d 818; People v. Weiss (1976), 34 Ill.App.3d 840, 842-43, 341 N.E.2d 79; People v. Dickerson (1974), 21 Ill.App.3d 977, 983, 316 N.E.2d 519), we note that these cases were construing the ...