People v. Mordick, 80-250

• Decision Date: 23 March 1981
• Docket Number: No. 80-250,80-250
• Parties: , 50 Ill.Dec. 63 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MORDICK, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1057

418 N.E.2d 1057

94 Ill.App.3d 497, 50 Ill.Dec. 63

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James MORDICK, Defendant-Appellant.

No. 80-250.

Appellate Court of Illinois, Second District.

March 23, 1981.

James G. Madden, Freeport, for defendant-appellant.

Phyllis J. Perko, Marshall Stevens, State's Attys. Appellate Service Commission, Elgin, William E. Sisler, State's Atty., Stephenson County, Freeport, for plaintiff-appellee.

VAN DEUSEN, Justice:

After a jury trial, the defendant, James Mordick, was convicted of conspiracy to commit theft over $150. (Ill.Rev.Stat.1977, ch. 38, par. 8-2(a).) He received a sentence of probation for one year, and was fined $1,000 and court costs.

One of defendant's contentions on appeal is that the State failed to establish his guilt beyond a reasonable doubt. We agree.

On March 11, 1979, Nicholaos Kolovos discovered that his 1975 Cadillac was missing from its parking place outside his place of employment. At some time between the middle and end of March, William Hill, a friend of the defendant, asked the defendant if he could park a 1975 Cadillac at the defendant's residence. The evidence indicated that the defendant had known Hill for approximately six or seven years. About seven or eight months before the incident in question, the defendant, William Hill, James Jeffrey and Jim Walters purchased a business enterprise, Northern Illinois Auto Parts. The defendant and Jeffrey were to be the silent partners, while Hill and Walters were to manage the enterprise. The defendant and James Jeffrey also owned and managed a salvage, towing and auto parts company, J. & J. Used Auto Parts. Hill was also in the business of buying, reconditioning and selling late model used cars, primarily late model Oldsmobile Toronados and Cadillacs.

The defendant and Jean Jeffrey, a school teacher, resided at 115 Empire Street, Freeport, Illinois. The home was owned by Jean Jeffrey and the defendant paid her rent. While the Jeffrey house shared a common driveway with the neighboring home, owned by George Modica, each house had a separate garage and parking area. The Jeffrey house had a concrete apron in front of the back yard garage. This parking area could accommodate between two and four vehicles.

At trial, the defendant testified that he gave Hill permission to park the 1975 Cadillac on the concrete apron. He further testified that he gave his permission even though Hill gave no reason for the request. Unrebutted evidence indicates that in March of 1979 there had been a considerable amount of snow on the ground and that there was a one lane roadway leading to the farm on which Hill lived.

Shortly after the defendant gave Hill permission, an unidentified person parked the car at the defendant's home. This person then removed the license plates and left the premises in a second car driven by someone other than defendant. Defendant's neighbor, George Modica, witnessed these actions. Modica testified that he did not see the defendant while the vehicle was being parked on the premises.

Thereafter the Freeport police, apparently noting that the automobile lacked license plates, questioned the defendant's neighbor about the 1975 Cadillac. The neighbor told the officers what he had seen when Hill had parked the car on the defendant's premises. The next day, the police obtained the vehicle identification number of the Cadillac. Subsequently, they ran a vehicle check and discovered that Nicholaos Kolovos had reported the automobile as stolen. The police then placed the vehicle under surveillance. The police officer testified that during the time the Cadillac was under surveillance, the defendant did not drive, examine or even approach the Cadillac.

The defendant testified that over the past two winters he had stored his boat and trailer on Hill's farm. The boat had been stored near the river on the farm. The defendant testified that in early April, he decided to move the boat and trailer from the farm due to the thawing snow and the rising river. At that time he contacted Hill and asked him to remove the Cadillac so that he would have a place to park the boat and trailer.

On Sunday morning, April 9, 1979, Hill arrived at the defendant's residence. Before entering the defendant's home, Hill put a set of dealer plates on the Cadillac. He remained in the defendant's home for about an hour. Defendant did not recall much about the conversation he had with Hill at that time. He testified that if anything was said about the Cadillac, it was that Hill had come to remove it. About an hour after Hill arrived, Hill and the defendant were observed leaving the defendant's home. A vehicle owned by the defendant was parked behind the Cadillac. The defendant got into his own vehicle and drove away. Hill got into the Cadillac and drove away. Several police officers tailed the Cadillac for several hours. On cross-examination the police officers acknowledged that even though the Cadillac was followed for several hours and even though it stopped at several places they never again saw either the defendant or his vehicle near the Cadillac. The defendant was arrested and charged with theft and conspiracy to commit theft. At a jury trial, the defendant was found guilty of conspiracy to commit theft.

The requisite elements of conspiracy are (1) an agreement to commit an offense, (2) with an intent that the offense actually be committed, and (3) the commission of an act in furtherance of the agreement by a conspirator. (Ill.Rev.Stat.1977, ch. 38, par. 8-2; People v. Collins (1979), 70 Ill.App.3d 413, 427, 26 Ill.Dec. 165, 387 N.E.2d 995.) Thus, the requisite mens rea elements are satisfied upon a showing of an agreement to commit the offense with the intent that the offense be committed. Further, the prosecutor must also show the actus reas or an act in furtherance of the agreement. People v. Persinger (1977), 49 Ill.App.3d 116, 120-21, 6 Ill.Dec. 950, 363 N.E.2d 897.

To convict the defendant of conspiracy in this case, the State need prove that the defendant, with the intent that the offense of theft be committed, agreed with William Hill to store the stolen auto on his property and that an act was done in furtherance of that agreement.

We emphasize that the heart of conspiracy is the agreement, not the offense that is the object of the agreement. (People v. Ambrose (1975), 28 Ill.App.3d 627, 631, 329 N.E.2d 11.) Because of the clandestine nature of the conspiracy agreement and the foreseeable difficulty of the prosecution's burden of establishing the defendant's conspiratorial intent and agreement, by direct proof, the courts have permitted broad inferences to be drawn from the circumstances, acts and conduct of the parties. People v. Brinn (1965), 32 Ill.2d 232, 239, 204 N.E.2d 724, cert. denied sub nom. Clements v. Illinois (1965), 382 U.S. 827, 86 S.Ct. 62, 15 L.Ed.2d 72; Accord People v. Bailey (1975), 60 Ill.2d 37, 322 N.E.2d 804.

In the instant case, because there is no direct evidence of an agreement between Hill and the defendant to commit an offense, our task is to see if there was sufficient circumstantial evidence to inferentially establish the existence of an "agreement" and not merely raise a suspicion as to its existence. (People v. Persinger (1977), 49 Ill.App.3d 116, 6 Ill.Dec. 950, 363 N.E.2d 897; citing People v. Link (1936), 365 Ill. 266, 6 N.E.2d 201, cert. denied (1937), 302 U.S. 690, 58 S.Ct. 9, 82 L.Ed. 533.) Moreover, "the circumstantial evidence 'must be such that the conclusion drawn from it excludes every other reasonable hypothesis other...