People v. Kijowski

• Citation: 377 N.E.2d 1324,61 Ill.App.3d 809,18 Ill.Dec. 688
• Decision Date: 06 July 1978
• Docket Number: No. 77-175,77-175
• Parties: , 18 Ill.Dec. 688 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter KIJOWSKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1324

377 N.E.2d 1324

61 Ill.App.3d 809, 18 Ill.Dec. 688

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter KIJOWSKI, Defendant-Appellant.

No. 77-175.

Appellate Court of Illinois, Third District.

July 6, 1978.

Mark W. Burkhalter, Asst. State Appellate Defender, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Edward Petka, State's Atty., Will County, Joliet, Gerry R. Arnold, James E. Hinterlong, State's Attys., Appellate Service Commission, Ottawa, for plaintiff-appellee.

BARRY, Presiding Justice.

Defendant, Walter Kijowski, was convicted of burglary following a jury trial in the Circuit Court of Will County. He was sentenced to a term of imprisonment of not less than three (3) years nor more than nine (9) years. He appeals from that conviction.

On July 7, 1976, the Will County State's Attorney filed an information charging defendant Kijowski and James Garcia with burglary in violation of Ill.Rev.Stat.1975, ch. 38, pars. 5-2(c) and 19-1(a). The defendant and Garcia were charged as parties to a burglary which occurred in the early morning hours of June 7, 1976, at the Hillcrest Sporting Goods store in Crest Hill, Illinois. Fernando Thomas was charged in the same information in another count as the principal burglar.

On appeal defendant presents three issues for review: (1) Whether the evidence failed to establish that the person the defendant was alleged in the information to have assisted in the commission of the burglary entered the store; (2) whether the ownership, possession, or control of the sporting goods store allegedly burglarized by the defendant was sufficiently established where the wife of the owner, who had no legal interest in the business, offered the only evidence on that point; (3) whether the court erroneously instructed the jury on the elements of the offense charged.

At the trial the evidence indicated that the Hillcrest Sporting Goods store was burglarized at approximately 1:00 a. m. on June 7, 1976. Several individuals were allegedly involved in the burglary including the defendant, Walter Kijowski. The alleged principal burglar, Fernando Thomas testified for the State. He admitted that he had previously pleaded guilty to the burglary and testified to the defendant Kijowski's involvement in the crime. He stated that the burglary had been defendant Kijowski's idea, but that one Richard Thomas, rather than himself, had been the one who had actually entered the store. Fernando Thomas was indicated in the information as the one who entered the store. He testified that he and the defendant, and the others involved remained outside the store and he took the rifles and shotguns as they were handed out through the broken door glass. Because the information charged defendant Kijowski as a party to the crime of burglary in which one Fernando Thomas was the principal, in that Fernando entered the store after breaking in with the requisite felonious intent, defendant argues that the State did not prove all the elements of the offense with which he was charged in light of the above testimony related by Fernando Thomas that he did not enter the store.

We would agree with the defendant's argument were it not for other evidence in the record which supports a contra conclusion that Fernando Thomas was the party who actually entered the store. The State produced Steven Gallagher who was an eyewitness to the burglary. Gallagher testified that he drove by the Hillcrest Sporting Goods store on his way home from work as the burglary was occurring and saw the guns being removed through the door. His testimony indicated that the area around the store was very well lighted and that he made his observations while driving slowly past the sporting goods store on Route 30. Gallagher testified that his attention was directed toward the store when he heard an alarm bell ringing. He identified three individuals at the front of the store from the clothing they wore. One of the individuals was allegedly wearing a ball cap backwards, one was wearing an orange T-shirt with blue jeans and the third individual had on a white T-shirt with printing on the front. Gallagher's testimony described in detail the clothing worn by the individual he observed inside the store passing out guns to two others outside. Several police officers also testified that the principal burglar named in the information, Fernando Thomas, was wearing the clothing described by Gallagher as worn by Fernando Thomas, when he was arrested. This evidence is clearly supportive of the jury verdict of guilty as to defendant Kijowski as charged in the information, and there is no fatal variance. The proof adduced at the trial conforms to allegations of the information if the jury believed the testimony of eyewitness Steven Gallagher and the several police officers that the principal burglar who entered the store was Fernando Thomas. Defendant's argument that Fernando Thomas' testimony that he did not enter the store, but instead Richard Thomas did, is not persuasive. Such testimony was suspect given Fernando Thomas' own admission to participation in the crime charged and his willingness to testify against a former compatriot in the crime. Because such testimony was suspect and contradicted by other strong evidence, the jury verdict of guilty is the jury's indication that they believed witness Steven Gallagher and the several police officers. The case of People v. Bueno (1966), 35 Ill.2d 545, 221 N.E.2d 270, relied upon by the defendant to support his argument that the State failed to prove the alleged principal burglar, Fernando Thomas, ever committed the burglary is distinguishable, especially when considering Fernando Thomas' admitted participation. The present case involved one burglary of a single store by several participants. In Bueno the facts involved two separate sales of illegal narcotics. The proof of the crime must conform to the essential allegations of the information, and in the case at bar the proof did essentially conform to the information. (People v. Mosby (1962), 25 Ill.2d 400, 185 N.E.2d 152). Here the charge of burglary in the information against the defendant Kijowski was specific enough to allow him to prepare his defense and to protect him from double jeopardy. (People v. Pujoue (1975), 61 Ill.2d 335, 335 N.E.2d 437.

On the second issue raised the defendant contends that the State failed to prove the ownership, possession or control of the sporting goods store allegedly burglarized. Mrs. Mary Bolte, testified for the prosecution that she and her husband ran the Hillcrest Sporting Goods store, but that the husband, who did not testify, was the actual owner of the business. Defendant cites the case of People v. Darling (4th Dist., 1972), 7 Ill.App.3d 687, 288 N.E.2d 502, for...