People v. Lomas, No. 80-402

• Court: United States Appellate Court of Illinois
• Writing for the Court: SCOTT
• 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.
• Decision Date: 30 January 1981
• Docket Number: No. 80-402

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.

Page 409

[92 Ill.App.3d 958] [48 Ill.Dec. 378] 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 Based on this conviction, the defendant's probation was revoked, and he was sentenced to a three year term of imprisonment.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 [92 Ill.App.3d 959] 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

Page 410

[48 Ill.Dec. 379] 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...