People v. Sherman

• Decision Date: 29 October 1982
• Docket Number: No. 81-622,81-622
• Citation: 65 Ill.Dec. 581,441 N.E.2d 896,110 Ill.App.3d 854
• Parties: , 65 Ill.Dec. 581 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lawrence SHERMAN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 896

441 N.E.2d 896

110 Ill.App.3d 854, 65 Ill.Dec. 581

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lawrence SHERMAN, Defendant-Appellant.

No. 81-622.

Appellate Court of Illinois,

Second District.

Oct. 29, 1982.

Alan D. Blumenthal, Chicago, for defendant-appellant.

J. Michael Fitzsimmons, States Atty., Wheaton, Phyllis J. Perko, Judith M. Pietrucha, State Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

VAN DEUSEN, Justice:

The defendant, Lawrence Sherman, appeals from a verdict entered after a bench trial finding him guilty of theft in violation of section 16-1(a)(1) of the Criminal Code of 1961. (Ill.Rev.Stat.1977, ch. 38, par. 16-1(a)(1).) The defendant was sentenced to twenty months probation and was ordered to pay a fine of $300 and restitution in the amount of $700. On appeal, the defendant contends that the conviction must be reversed in that (1) the information was insufficient and, therefore, violated his due process rights, (2) he was not proven guilty beyond a reasonable doubt, and (3) the State failed to preserve potentially favorable evidence.

On January 15, 1980, at 11:23 p.m., Officer James Christman of the Downers Grove Police Department, while on routine patrol, observed an orange Corvette automobile without license plates parked within the Precision Corvette repair shop located on Main Street in Downers Grove, Illinois. The officer asked an employee of the garage, Michael Hanson, about the auto and also inspected the vehicle. In so doing, he determined that the VIN number on the Corvette reflected a stolen vehicle. After conferring with his commander and the mechanic, Michael Hanson, the officer, left the vehicle in the repair garage with exterior surveillance to begin the next day. Surveillance was maintained across the street from the premises on January 16 and again on January 17. At 3:55 p.m. a brown Buick with two males inside arrived at the scene. The Buick parked near the overhead garage door and both men exited the Buick and entered the garage. Within minutes the orange Corvette exited the garage. The Buick followed the Corvette. At that time, Officer Gron of the Downers Grove Police Department received a radio dispatch from the stake out team requesting that he stop the Buick and Corvette which were traveling in his direction. The officer did so and arrested the driver of the Corvette. The driver of the Corvette was the defendant, Lawrence Sherman. Further investigation revealed that the orange 1976 Corvette was owned by James Budzisz and had been stolen from him on some date in January 1980. Budzisz testified that he subsequently recovered his vehicle from the Downers Grove Police pound lot on January 18, 1980, about eight or nine days after it had been stolen. Budzisz did not know the defendant nor had he ever given the defendant permission to exert control over his vehicle.

The information filed against the defendant charged, in substance, that on January 17, 1980, the defendant exerted unauthorized control over the property of James Budzisz, that property being one 1976 Chevrolet Corvette having a total value in excess of $150, and that the defendant had the intent to permanently deprive James Budzisz of the use and benefit of the vehicle in violation of section 16-1(a)(1) of the Criminal Code of 1961. (Ill.Rev.Stat.1977, ch. 38, par. 16-1(a)(1).)

Section 16-1(a)(1) of the Criminal Code of 1961 states:

"A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over property of the owner * * *

* * *, and

(1) Intends to deprive the owner permanently of the use or benefit of the property * * *." Ill.Rev.Stat.1977, ch. 38, par. 16-1(a)(1).

Initially, the defendant asserts that the information is defective in that while it facially charged the defendant with theft in violation of 16-1(a)(1), it substantially charged the defendant with receiving stolen goods in violation of 16-1(d)(1). In support of this contention the defendant notes that the vehicle was stolen in early January and the defendant was not found in possession of the vehicle until the middle of the month. He concludes that the correct charge should have been receipt of stolen goods under subsection (d) and relies upon People v. Marino (1970), 44 Ill.2d 562, 256 N.E.2d 770 for support. This reliance is misplaced.

While the same assertion was made in People v. Marino, the supreme court's answer was contrary to that which the defendant in this case suggests. In the Marino case, the defendant asserted that because the original asportation of the stolen goods occurred some six months prior to the date of their alleged exertion of control over the stolen goods, they should have been charged with receiving stolen goods under section 16-1(d) and not theft under section 16-1(a). The supreme court disagreed, noting that "section 16-1(a) is not limited to the theft of property in which only the actor who initiates the wrongful asportation is guilty of the offense." 44 Ill.2d 562, 576, 256 N.E.2d 770; People v. Nunn (1965), 63 Ill.App.2d 465, 470, 212 N.E.2d 342.

As was noted in Nunn, subsections (a) through (d) set forth the proscribed acts any one of which would constitute the offense of theft. (People v. Nunn (1965), 63 Ill.App.2d 465, 474, 212 N.E.2d 342.) The act proscribed in subsection (a) is simply the obtaining or exerting of unauthorized control over the property of an owner, whereas subsection (d) has the additional requirement of alleging and proving that the offender received the stolen property from another. (See People v. Beauchemin (1979), 71 Ill.App.3d 102, 106, 27 Ill.Dec. 516, 389 N.E.2d 580.) In Beauchemin the court further stated that subsection (a) can, under certain circumstances, be viewed as a lesser included offense of subsection (d). In light of the supreme court's statements in Marino, the holdings in Nunn and Beauchemin, and the circumstances in this case, the State did not err in charging the defendant with a violation of section 16-1(a) instead of a violation of section 16-1(d).

The defendant next contends that the information failed to set forth all of the elements of the crime of theft, and therefore his due process rights were violated. (See People v. Heard (1970), 47 Ill.2d 501, 501, 266 N.E.2d 340.) In determining whether a charging instrument is sufficient and therefore valid, the reviewing court must keep in mind the purpose of a charging instrument, which is to inform the accused of the nature of the charges against him so as to enable him to prepare a defense and to allow any subsequent judgment flowing therefrom to be used as a bar to further prosecution for the same conduct. (People v. Phelan (1981), 99 Ill.App.3d 925, 929, 55 Ill.Dec. 600, 426 N.E.2d 925.) To bring a proper charge of criminal offense, the State must allege the nature and elements of the crime in the charging instrument. (Ill.Rev.Stat.1979, ch. 38, par. 111-3(3).) This requirement is mandatory and not directory. (People v. Medreno (1981), 99 Ill.App.3d 449, 454, 54 Ill.Dec. 723, 425 N.E.2d 588; People v. Deal (1979), 69 Ill.App.3d 74, 76, 25 Ill.Dec. 564, 387 N.E.2d 21.) If the charging instrument fails to set forth the elements of the offense, then a motion in arrest of judgment, if made, must be granted by the trial court. People v. Lutz (1978), 73 Ill.2d 204, 212, 22 Ill.Dec. 695, 383 N.E.2d 171; People v. Medreno (1981), 99 Ill.App.3d 449, 454, 54 Ill.Dec. 723, 425 N.E.2d 588.

The defendant contends that one of the essential elements of theft is that the defendant "knowingly" exerted unauthorized control over the property of the owner. The defendant concludes that because the word "knowingly" was omitted from the information, the charging instrument fails to allege an essential element and is, therefore, insufficient.

The State, on the other hand, contends that the information sufficiently alleges the requisite mental state. The State asserts that this case is controlled by the holding in People v. Wilson (1973), 10 Ill.App.3d 48, 294 N.E.2d 1. In Wilson, the defendant was also charged with theft in violation of section 16-1(a)(1). As in this case, the word "knowingly" was not contained in the complaint. Citing People v. Shelton (1969), 42 Ill.2d 490, 494-95, 248 N.E.2d 65, the appellate court held in Wilson that "knowledge" could be charged "either in the language of the statute or in other appropriate words." (Emphasis in original.) (10 Ill.App.3d 48, 49, 294 N.E.2d 1.) The court then noted that the complaint did allege that the defendant had the specific intent to permanently deprive the owner of the use and benefit of his property. The court stated that a defendant cannot intend to permanently deprive someone of the use and benefit of his property without acting knowingly. Thus the language which alleged that the defendant had specific intent to permanently deprive the owner of his property was sufficient to allege "knowledge."

Here, the allegations in the information are similar to the allegations in Wilson. While the information does not contain the words "knowledge" or "knowingly", it does allege that the defendant had the specific intent to permanently deprive the owner of the use and benefit of his property. Under Wilson the allegation of the specific intent is sufficient to allege the knowledge element, and we agree. The information filed against the defendant was sufficient, and his rights of due process were not violated.

The defendant next contends that the State has failed to prove him guilty beyond a reasonable doubt. Citing People v. Cortez (1975), 26 Ill.App.3d 829, 833, 326 N.E.2d 232, the defendant argues that because all of the State's evidence was circumstantial, proof beyond a reasonable doubt requires the exclusion of every reasonable hypothesis which can be based on the evidence and which is consistent with innocence.

The initial inquiry, therefore, is whether all of the State's evidence is...