People v. Lomas

• Decision Date: 30 January 1981
• Docket Number: No. 80-402,80-402
• Citation: 48 Ill.Dec. 377,416 N.E.2d 408,92 Ill.App.3d 957
• Parties: , 48 Ill.Dec. 377 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rodger Bruce LOMAS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 408

416 N.E.2d 408

92 Ill.App.3d 957, 48 Ill.Dec. 377

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Rodger Bruce LOMAS, Defendant-Appellant.

No. 80-402.

Appellate Court of Illinois, Third District.

Jan. 30, 1981.

Peter Carusona, Asst. State Appellate Defender, Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa, for defendant-appellant.

Gary F. Gnidovec, John X. Breslin, State's Attys. Appellate Service Com'n, Ottawa, James T. Teros, State's Atty., Rock Island, for plaintiff-appellee.

SCOTT, Presiding Justice:

The defendant, Rodger Bruce Lomas, appeals from a revocation of the one year term of probation which had been imposed in October, 1979, following his plea of guilty to a charge of retail theft (over $150). The petition for revocation alleged that the defendant possessed marijuana and hypodermic needles, and that he committed a burglary on March 4, 1980, by knowingly entering a building of Goodyear Tire and Service with the intent to commit a theft. The possession charges were dismissed for insufficient evidence, but the defendant was found guilty of burglary. Based on this conviction, the defendant's probation was revoked, and he was sentenced to a three year term of imprisonment.

The evidence adduced at the probation revocation hearing established that in the late evening hours of March 4, 1980, or the early morning hours of March 5, 1980, the Goodyear Service Store in Rock Island, Illinois, was burglarized. Two five-inch black and white AC/DC television sets were taken.

Murray Hurt, a reporter for the Rock Island Argus, testified that as he was leaving work around midnight on the night in question, he heard a loud noise, as though someone was kicking something. Looking down the street, he saw someone step away from the Goodyear store, then back towards it. Hurt drove around the block and observed that the windows in the front door of the store had been kicked out. He described the person he had seen as a black male, approximately five feet eleven inches tall, wearing a red hat and a blue coat. Hurt thought the coat might have been quilted. As he drove around the block he noticed the same individual he had seen at the Goodyear store standing on a nearby corner.

At the hearing Hurt was unable to identify the defendant as the man he had seen. He did identify the defendant's red stocking cap as the hat he had seen, but he stated that he did not believe the blue denim coat offered into evidence by the State was the same coat as that worn by the man he had seen.

Officer Randall Brown testified that in response to a radio dispatch describing the individual seen by Hurt, he stopped the defendant behind the Happy Corner Tavern sometime between midnight and two a. m. on the morning of March 5, 1980. When he spotted the defendant a second black male was with him, but that individual fled before Officer Brown approached the defendant. The defendant, who was wearing a red stocking cap and a blue denim coat, was questioned by the officer, arrested and taken to the station to be booked.

Officer Brown subsequently found cannabis, two hypodermic syringes, and a full-length black leather coat in the defendant's car. These items and the defendant's hat were seized.

After booking the defendant at the station and asking him to remove his shoes, Officer Brown noticed that the defendant's footsteps were bloody. The defendant was found to have a deep cut on his ankle. He was taken to the hospital where small pieces of glass were removed. One piece of glass about the size of a pencil lead was admitted into evidence, but Officer Brown testified that he had no way of telling if it was the same particle received from the doctor.

Officer Woodburn testified that he and Officer Pauly took the defendant's shoes to the scene of the burglary, where about three inches of snow covered the ground. There Officer Pauly put on the defendant's shoes and made a set of tracks in the snow parallel to those made by the perpetrator. At the hearing defense counsel objected to additional testimony from Officer Woodburn concerning the footprints, since he had not been shown to be an expert. The trial judge overruled this objection, stating that one need not be an expert to give an opinion concerning footprints.

Woodburn there indicated that the original prints and the test prints were generally the same size and shape, with rounded toes and plain soles and heels. He also noted that the right shoe in both sets of prints revealed a round gouge in the sole near the ball of the right foot. An elongated gouge near the ball of the right foot showed up in some of the test prints but not in any of the suspect's prints.

No additional witnesses were called by the State. The defendant next testified in his own behalf. He denied that he had been near the burglarized store on the night in question, and he indicated that he had injured his ankle by hitting it against something while making the rounds of several taverns.

No measurements or photographs of the footprints were made. The two television sets reported stolen were never recovered. A stipulation was entered to the effect that none of the fingerprints found in the Goodyear store belonged to the defendant.

On appeal the defendant first contends that the circumstantial evidence presented by the State failed to prove by a preponderance of the evidence that he committed the burglary. We disagree.

Criminal offenses which serve as a basis for probation revocation need only be proved by a preponderance of the evidence and need not meet the beyond a reasonable doubt standard. The evidence presented need not be clear and convincing. (People v. Pavelich (1979), 76 Ill.App.3d 779, 32 Ill.Dec. 255, 395 N.E.2d 202.) The trial judge's determinations will not be disturbed on appeal unless they are contrary to the manifest weight of the evidence. Furthermore, the fact that a reviewing court might have reached a contrary result than that of the trier of fact is insufficient to serve as the basis for reversal. People v. Cooper (1977), 66 Ill.2d 509, 6 Ill.Dec. 870, 363 N.E.2d 817.

In the case at bar, we cannot say that the trial judge's determination was contrary to the manifest weight of the evidence, nor was...