People v. McIntosh

• Court: Appellate Court of Illinois
• Writing for the Court: GEORGE J. MORAN
• Citation: People v. McIntosh, 363 N.E.2d 128, 48 Ill.App.3d 694, 6 Ill.Dec. 599 (Ill. App. 1977)
• Decision Date: 06 May 1977
• Docket Number: No. 75--278,75--278
• Parties: , 6 Ill.Dec. 599 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis McINTOSH, Defendant-Appellant.

Page 128

363 N.E.2d 128

48 Ill.App.3d 694, 6 Ill.Dec. 599

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis McINTOSH, Defendant-Appellant.

No. 75--278.

Appellate Court of Illinois, Fifth District.

May 6, 1977.

Stephen P. Hurley, Deputy State Appellate Defender, John H. Reid, Asst. State Appellate Defender, Mount Vernon, for defendant-appellant.

Nicholas G. Byron, State's Atty., Edwardsville (Bruce D. Irish, Principal Atty., George W. Lange, Senior Law Student, Ill. State's Attys. Assn., Statewide Appellate Assistance Service, Mount Vernon, of counsel), for plaintiff-appellee.

GEORGE J. MORAN, Justice.

Defendant Dennis McIntosh appeals from a judgment of the circuit court of Madison County entered after a jury found him guilty of theft of property exceeding $150 in value. He contends in this appeal that the State failed to prove the essential element of venue and that the evidence adduced at trial was insufficient to establish his guilt beyond a reasonable doubt.

On the morning of November 9, 1974 Toni Biondi parked her father's tan 1970 Volkswagen at the Collinsville K-Mart, located in Madison County, Illinois. Upon her return from work at 6:00 p.m. that evening the car was missing.

On November 19, 1974 Mildred Goedan, a secretary for the Riteway Volkswagen dealership in Collinsville, Illinois, received a call in which defendant, giving his name and address, asked for the assistance of a tow truck. Richard Langland, a Riteway mechanic, responded to the call by taking a service car to a location in Collinsville where he found defendant in possession of a tan 1970 Volkswagen. After being advised that the car would not start, and being unable to start it himself, Langland received defendant's permission to tow it to the Riteway dealership for servicing.

The following day Detective Lawrence Dorian of the Illinois State Police was called to Riteway Volkswagen to examine the car. After tracing two different serial numbers he found on the car, he was able to determine that the Volkswagen was owned by Gilbert Biondi and was the same one which had been stolen from the Collinsville K-Mart parking lot on November 9.

In his subsequent investigation Detective Dorian interviewed defendant, who acknowledged having authorized the tow of the Volkswagen. According to Dorian, defendant explained that he had purchased the car from a Caseyville man approximately three weeks earlier for $800. Defendant claimed to have a purchase receipt but was unable to produce it at that time.

Approximately seven weeks later Detective Dorian spoke to the defendant for a second time at his home in Belleville. In this interview defendant named a Bill Krochek as the man from whom he had purchased the car. Although unable to recall the date of sale, defendant indicated the location of the transaction and reaffirmed the purchase price of $800, $400 in cash and $400 upon receipt of the title from Krochek. Dorian was then told that the sale receipt obtained from Krochek was in the possession of defendant's counsel.

One week later Detective Dorian obtained a photostatic copy of the front side of the receipt. He described it at trial as a rent receipt form, denoting a $400 payment for a 1970 Volkswagen, received from and signed by Bill Krochek. No vehicle identification number was noted on the receipt, nor did it contain any reference to the defendant or the date. Dorian testified without objection that his extensive search through statewide and local records failed to locate a Bill or William Krochek. Defendant was subsequently indicted for the theft of the auto.

It should be noted at the outset that a substantial amount of confusion has been generated by the argument and briefs of appellate counsel in this case. The confusion stems from a controversy over the State's theory of the case at trial. Defendant contends that the State sought to establish his guilt of unauthorized control of the car at the Riteway dealership but not of the initial taking of the auto from the K-Mart lot. The uncertainty concerning the State's trial theory is apparently an outgrowth of the original indictment:

'DENNIS McINTOSH on the 9th day of November, 1974 and in the County of Madison, in the State of Illinois, committed the offense of THEFT, in that he did knowingly exert unauthorized control over property, to-wit: a 1970 Tan Volkswagon, VIN: #1102--585752, said property having a value in excess of One Hundred and Fifty ($150.00) Dollars, the property of GILBERT J. BIONDI, located at 9409 Collinsville Road, Collinsville, Illinois, with the intent to permanently deprive the owner of the use and benefit thereof, in violation of Paragraph 16--1, Chapter 38, Illinois Revised Statutes, and against the peace and dignity of the said People of the State of Illinois.'

Clearly an error existed in the language of the indictment, for 9409 Collinsville Road, Collinsville, Illinois is the address of Riteway Volkswagen. This address refers not to the site of the original taking on November 9, 1974, but rather to the location at which defendant possessed the stolen automobile ten days later. With the consent of defense counsel, the State's motion to delete the Riteway address as mere surplusage in the indictment was granted on the first day of trial. There was neither a claim of surprise nor any mention of an alibi defense with respect to the November 9 date. Defendant has made no challenge in this court to the sufficiency of the indictment.

The precise nature of the crime charged in the indictment is highly significant to both the form and quality of the required proof as well as to the question of venue. We recognize that the crime of theft charged under Section 16--1(a)(1) of the Criminal Code (Ill.Rev.Stat.1973, ch. 38, par. 16--1(a)(1)) need not necessarily begin at the time of the original taking, but may exist at the time of the arrest. (People v Quick, 15 Ill.App.3d 300, 304 N.E.2d 143; People v. Petitjean, 7 Ill.App.3d 231, 287 N.E.2d 137; People v. Nunn, 63 Ill.App.2d 465, 212 N.E.2d 342.) Thus, a defendant may be convicted of theft even though his guilt of the initial taking is subject to considerable doubt. (People v. Helm, 10 Ill.App.3d 643, 295 N.E.2d 78; People v. Nunn, 63 Ill.App.2d 465, 212 N.E.2d 342.) Consequently, defendant could properly have been charged and tried for theft merely on the basis of his assertion of control of the auto at Riteway, without reference to the initial taking. However, such was not the nature of the theft charged in the modified indictment. By alleging that the theft occurred on November 9, 1974 the State charged defendant with the initial taking of the auto. His subsequent unauthorized possession of the car at Riteway, while possibly sufficient in and of itself to support a theft conviction, could operate only as evidence of the asportation which occurred on November 9. It could not serve as an independent basis for a theft conviction under this indictment.

The final resolution of the venue question in this case is also dependent upon the nature of the theft charged. Since the element of venue must be established with regard to the locus of the crime, the type of theft charged becomes crucial. The parties agree that the State established that the original taking of the car from the K-Mart lot occurred in Madison County, Illinois. However, in this appeal both defendant and the State approach the issue as though venue must have been established with respect to the location of Riteway Volkswagen rather than the Collinsville K-Mart. Since the location of Riteway was not shown to have been in Madison County, the defendant argues, proper venue was not established. Defendant points out that venue is an element of substance which must be proved at trial beyond a reasonable doubt in order to sustain his conviction. (People v. Pride, 16 Ill.2d 82, 156 N.E.2d 551; People v. Ross, 99 Ill.App.2d 454, 241 N.E.2d 665.) He contends that since the testimony elicited at trial did not meet the standard necessary for proof of venue, his conviction must accordingly be reversed without remand.

After carefully reviewing the record in this case we are convinced that the State's theory in the trial court was directed to the proof of defendant's guilt of the initial theft. Several factors support our conclusion. For example, in response to a question propounded through pre-trial discovery, the State answered that the offense in question took place at the Collinsville K-Mart rather than Riteway. In addition, it appears from the State's evidence and comments in the opening and closing statements that the prosecution clearly sought to prove defendant guilty of the original taking. For example, during his opening and closing statements, the prosecutor made the following remarks:

'Now, as the Court advised you early in these proceedings, the defendant has been indicted with the charge of Theft Over $150.00 and that he did allegedly steal a certain 1970 tan Volkswagen that was the property of Gilbert Biondi * * *.

The Court will instruct you among other things that if you find that the defendnt had exclusive possession of recently stolen property and he has no reasonable explanation for that possession, that you may infer that the defendant obtained possession of that property by theft * * *.

There can be no other reasonable conclusion to be drawn from the evidence but that the defendant stole the car * * *.'

Such comments are not susceptible to a contrary interpretation.

In addition, the jury was instructed, upon the State's tender of Illinois Pattern Jury Instructions, Criminal, No. 13.21, regarding the allowable inference arising from exclusive possession of recently stolen property. However, there was no need for such an inference if defendant was being prosecuted for theft simply by virtue of his conduct at Riteway. By proving the unauthorized control over Gilbert Biondi's auto at Riteway, the State would have...