People v. Ybarra
| Decision Date | 26 June 1987 |
| Docket Number | No. 2-85-0891,2-85-0891 |
| Parties | , 109 Ill.Dec. 501 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gambino YBARRA, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
G. Joseph Weller, Manuel S. Serritos, Office of State Appellate Defender, Elgin, for defendant-appellant.
Robert J. Morrow, S.A., Kane County Courthouse, Geneva, William L. Browers, Dale M. Wood, States Attys. Appellate Service Com'n, Elgin, for plaintiff-appellee.
The defendant, Gambino Ybarra, appeals from his conviction for residential burglary by a jury in the circuit court of Kane County. (Ill.Rev.Stat.1983, ch. 38, par. 19-3.) He was initially found unfit to stand trial, and trial did not commence until he attained fitness, more than a year after the offense. He contends the State failed to prove beyond a reasonable doubt his intent to commit residential burglary.
Nicholas Sabadosh, the burglary victim, testified that he left his rented farmhouse residence on June 29, 1984, at approximately 7:45 a.m. The house is located in Elgin, Kane County, a few hundred feet from Route 72, between Gilberts and Dundee. He related that the doors of the house were locked, and that probably the upstairs windows and a kitchen window, protected by screens, were unlocked. A couple of the double-hung windows in the house were held closed by small nails. His two cats "had the run of the downstairs." He gave no one permission to enter the house in his absence.
When he returned at approximately 6 p.m., he noticed curtains fluttering through a rear window, which was one of the windows that had been held by two nails, and which he never opened. It was the window of a room in which he stored odds and ends. As he walked closer to the rear door, he saw two bags near the door which contained mostly paper refuse, paper cups and food containers. He saw no one in the room, so he entered the house and began a search of that room and the house. He testified the room contained "a disorganized clutter of various [of his] possessions; papers, stacks of magazines; a few boxes of various objects [in a state of disarray he] had been intending to reorganize for quite a while." The closet also contained various possessions of his which were likewise disorganized.
Thinking that the intruder might be in the basement, he opened the door, and the cats came out of the basement. He noticed dusty footprints on the mats at the top of the stairs coming out of the basement that were not his. When he left the house that morning, the basement door was closed, and it was closed when he returned home that evening. In relation to the storage room, the top of the basement stairs was about 30 feet away through the central room to the corner of the kitchen and out onto the enclosed porch. He did not notice any other footprints. Sabadosh identified the defendant in court as the man he saw in custody in the sheriff's police car at the house of his neighbor, Scott Kolbaba. Sabadosh stated that he did not know the defendant. Sabadosh also testified he did not have a crow bar inside his residence when he left home that morning.
On cross-examination, Sabadosh stated that as far as he could tell nothing had been disturbed, and neither the TV, radio, nor jewelry or anything of that nature had been moved, only the cats. None of the items in the bags found near the back door were his. The nails that had been holding the window closed were bent back and covered by the portion of the window which had been slid up. He stated neither the window nor the glass had been damaged. On redirect, he stated there was no way the cats could have opened the basement door. Further, he stated that because of the disarray of the room, it would be very hard for him to ascertain whether anything had been moved. As far as he could see, nothing had been taken, and no item of value had been moved.
Scott Kolbaba, Sabadosh's neighbor, testified he returned from work at approximately 5:30 p.m. on the day in question. Kolbaba noticed a window curtain fluttering in the wind at Sabadosh's house. Kolbaba parked his motorcycle at his own house and proceeded to investigate. At Sabadosh's house, Kolbaba ducked his head in through the open window and observed a man standing in the closet inside the house. The man was "rummaging through some of the items on the shelves in the closet." Kolbaba estimated that he stood approximately 8 feet from him. Kolbaba told the man to get out of there; he asked him to step outside and they would go to his house. The defendant was identified in court by Kolbaba as the man he saw in Sabadosh's house.
Kolbaba testified the defendant had a two-foot long metal bar wrapped in paper with a rope attached to it which he carried inside his pants. Kolbaba told him he would hang on to the bar while the defendant stepped outside through the window. When he first stuck his head in through the window, Kolbaba said he noticed something stacked up on the floor inside the window; he could not recall what type of items they were.
The defendant walked with Kolbaba to Kolbaba's house where Kolbaba asked his wife, while the defendant stood approximately 15 feet away, to call the police. The police arrived approximately 15 minutes later. Kolbaba noted that during this time, the defendant did not have to be physically restrained; Kolbaba handed the defendant a pencil and paper and had him draw down the instructions and the location where he would be. Kolbaba turned the metal bar over to police when they arrived. Sabadosh arrived approximately 35 to 45 minutes after the police.
On cross-examination, Kolbaba testified the defendant did not threaten him with the metal bar, and he did not attempt to run as they left Sabadosh's house and walked to Kolbaba's. He did not know who stacked the items near the window. On redirect, Kolbaba stated he was not familiar with the contents of the room, and that he had to ask the defendant a number of times to accompany him to his house.
Officer John Porter of the Kane County sheriff's office substantially corroborated the previous testimony concerning the open window, which had no screen and no handle on the outside, the steel bar, which Porter said was covered with brown paper and had "strings" attached to it, and the two brown paper bags of items outside the rear door of the house. The bags contained various "junk" items: food containers, gloves, miscellaneous jewelry items. Porter estimated that the items were "not worth a lot [in] value." The bags belonged to the defendant. Porter testified they went through the house and checked the interior with Sabadosh.
Porter took the defendant in custody at Kolbaba's house and drove him to the county jail. On the way, the defendant made several statements. The defendant first stated the reason he was in the house was because he felt it was a friend's house, and that he had stopped basically to see the friend. He did not then, nor ever, give Porter the name of the friend. In another statement, the defendant said he was on his way to Rockford, and that he once had a bicycle but had lost it somewhere to the east, possibly the River Forest police department. In another statement, he said he was going to Chicago and, in yet another, that he was going to the hospital. Porter testified it was "just a rambling statement, and none of [the defendant's] comments made any sense to [him]." The reason defendant gave for having the metal bar was for "canning"; he was crushing cans with it. Porter testified he observed no automobile or bicycle transportation for the defendant in the vicinity of the house. The defendant gave an address in Chicago as his residence.
On cross-examination, Porter testified that he found no evidence that the bar had been used to break into the house. Sabadosh informed Porter that none of his personal effects had been moved and that nothing was out of order. Porter testified the defendant did not resist, and he made no attempt to run.
On redirect examination, Porter stated that the defendant was handcuffed when he was taken into custody. On recross-examination, Porter stated he did not recall the defendant gave him any reason for being in the house other than that he thought it was a friend's house.
Following Porter's testimony, the defendant's motion for a directed verdict was denied, and, following deliberations, the jury returned with a verdict of guilty.
Included with the defendant's presentence report was his handwritten "Defendant's Version" of the incident which included criticism of the trial court:
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