People v. Walker

• Decision Date: 29 April 1991
• Docket Number: No. 5-89-0595,5-89-0595
• Citation: 156 Ill.Dec. 546,570 N.E.2d 1268,212 Ill.App.3d 410
• Parties: , 156 Ill.Dec. 546 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon WALKER and Brian Matthews, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1268

570 N.E.2d 1268

212 Ill.App.3d 410, 156 Ill.Dec. 546

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vernon WALKER and Brian Matthews, Defendants-Appellants.

No. 5-89-0595.

Appellate Court of Illinois,

Fifth District.

April 29, 1991.

Daniel M. Kirwan, Deputy Defender, Lawrence J. O'Neill, Asst. Defender, Office of State Appellate Defender, Mount Vernon, for defendants-appellants.

John Baricevic, State's Atty., Belleville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, Raymond F. Buckey, Jr., Staff Atty., Office of State's Attys. Appellate Prosecutor, Mount Vernon, for plaintiff-appellee.

Presiding Justice RARICK delivered the opinion of the court:

Defendants, Brian Matthews and Vernon Walker, were charged in the circuit court of St. Clair County with burglary and residential burglary. They were found guilty on both counts after a trial by jury, and both were sentenced to four years' imprisonment. The only question raised on appeal is whether the house in question was a dwelling within the meaning of the residential burglary statute.

The evidence at trial revealed that the house had been unoccupied for approximately one year. Two years prior to the burglary, the owner, Orville Kolmeyer, had been hospitalized as a result of congestive heart failure and the onset of Alzheimer's disease. Following his hospital stay, Kolmeyer returned to his home and lived there for eleven months. Because of continuing health problems, he subsequently moved to a nursing home. Kolmeyer testified at trial that he "hoped" to return to his home when and if his health permitted.

Amery Kolmeyer, Orville's brother, testified that he kept the grass cut and periodically checked on the house, that locks had been installed on all the doors, and that the front door had been braced with a two by four. Officer Milton Jones, one of the investigating officers, testified that upon inspecting the house, he found everything in disarray. Appliances and cabinets had been pulled from the walls and some furniture had been thrown outside. The record further discloses that the premises had electrical service at the time of the break-in.

On appeal, the defendants argue that the premises in question do not meet the statutory definition of a dwelling and that they could not, therefore, be convicted of residential burglary. Section 19-3 of the Criminal Code of 1961 defines the offense of residential burglary as knowingly and without authority entering the dwelling of another with the intent to commit a felony or a theft. (Ill.Rev.Stat.1987, ch. 38, par. 19-3.) Section 2-6(b) of the Code defines a dwelling as:

"a house, apartment, mobile home, trailer, or other living quarters in which at the time of the alleged offense the owners or occupants actually reside or in their absence intend within a reasonable period of time to reside." (Emphasis added.) (Ill.Rev.Stat.1987, ch. 38, par. 2-6(b).)

The defendants maintain that Orville Kolmeyer did not intend to return to the premises within a reasonable time. We must determine whether the evidence supports the jury's implicit findings that Kolmeyer intended to return to the house, and that he intended to do so within a reasonable time.

This case presents us with an unusual situation where an absent owner-occupier intends to return to the premises, but does not know when this will be possible, and the duration of his absence is dependent upon circumstances largely beyond his control. Orville Kolmeyer testified that he "hoped" to return to the premises as soon as...