People v. Baugh

422 N.E.2d 166, 96 Ill. App. 3d 946, 52 Ill. Dec. 485, 1981 Ill. App. LEXIS 2721
CourtAppellate Court of Illinois
DecidedMay 28, 1981
Docket80-1456
StatusPublished
Cited by9 cases

This text of 422 N.E.2d 166 (People v. Baugh) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Baugh, 422 N.E.2d 166, 96 Ill. App. 3d 946, 52 Ill. Dec. 485, 1981 Ill. App. LEXIS 2721 (Ill. Ct. App. 1981).

Opinion

Mr. JUSTICE LINN

delivered the opinion of the court:

Defendant, Bobbie Baugh, was convicted by a jury in the circuit court of Cook County of 12 counts of theft (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1). She was sentenced to 30 months probation.

On appeal, defendant contends: (1) she was denied a fair trial because a burden of proof instruction submitted to the jury failed to allege that the State had the burden to prove that defendant intended to permanently deprive the owner of the use or benefit of the property; (2) she was denied her right of confrontation by the trial court’s restrictions placed upon cross-examination of three of the State’s witnesses.

We affirm.

Facts

From February 1976 to January 1977, defendant lived with her two children in an apartment located at 539 West 44th Place on the south side of Chicago. From February 1977 to June 1977, defendant lived with her two children in an apartment located at 4700 South Halsted. During both these periods of time, defendant was receiving benefits under the Aid for Dependent Children program (AFDC). She received approximately $260 a month as a monthly entitlement, approximately $1600 in medical entitlements, and approximately $750 in food stamps.

On numerous occasions throughout the Bi-year period, defendant represented to agents of the Illinois Department of Public Aid that she was not receiving any outside support from any other person. She also represented to those agents that her husband had abandoned her; that her husband was, to the best of her knowledge, living somewhere in Alabama, and that her husband was not providing her with any support. However, an abundance of evidence presented at trial showed that, during the entire period of time, defendant’s husband was living with her, was gainfully employed, and was providing support for defendant and her children. Under the rules for AFDC, these facts made defendant ineligible for any benefits. The evidence showed that defendant knew she would be ineligible for AFDC payments if her husband lived with and supported her and the children.

Defendant was charged by indictment with 39 counts of theft. She was convicted of only 12 counts. The counts for which she was convicted were the following: (1) theft of approximately $750 in food stamps during the entire Bi-year period based on obtaining -and exerting unauthorized control over the property (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(a)); (2) theft of the same food stamps based on obtaining by deception control over the property (Ill. Rev. Stat. 1979, ch. 38, par. 16 — 1(b)); (3) five counts of theft, each for theft of approximately $260 in a monthly entitlement for the five-month period from February 1977 to June 1977, based on obtaining and exerting unauthorized control of the five monthly entitlements; (4) five counts of theft for the same monthly entitlements based on obtaining by deception control over the five monthly entitlements.

Defendant was acquitted of the counts relating to the medical payments and the counts for theft of the monthly entitlements specifically relating to the time she was living at 539 West 44th Place from February 1976 to January 1977.

Opinion

I

Improper Instructions

Defendant initially contends that she was denied a fair trial because of the giving to the jury of an improper burden of proof instruction. Four related instructions on theft were given by the court. The first three of these were proper Illinois Pattern Jury Instructions and the fourth was not.

The first instruction defined theft by obtaining or exerting unauthorized control over property of another and included the language that the accused must intend to permanently deprive the owner of the use or benefit of the property. (See 111. Rev. Stat. 1979, ch. 38, par. 16 — 1(d)(1).) The second instruction stated the elements of theft that the State had to prove to convict for theft by obtaining or exerting unauthorized control over property and included the element that the accused must have intended to permanently deprive the owner of the use or benefit of the property.

The third instruction defined theft by obtaining by deception control over another’s property and included the language that the accused must intend to permanently deprive the owner of the use or benefit of the property. The fourth instruction stated the elements the State had to prove to convict for theft by deception but failed to include the element that the accused must have intended to permanently deprive the owner of the use or benefit of the property.

Defendant made no objection at trial to the form of the fourth instruction but argues on appeal that we should recognize the error committed as being a substantial defect that was not waived by failure to make a timely objection, and defendant urges that in the interest of justice we should reverse defendant’s convictions at least to the counts relating to theft by deception. See Supreme Court Rule 451(c) (Ill. Rev. Stat. 1979, ch. 110A, par. 451(c)).

When a defendant fails to object to an instruction, waiver is the rule, and the provisions of Rule 451(c) providing for an exception to waiver should be invoked only to correct grave errors or when a case is close factually and fundamental fairness requires that the jury be properly instructed. (People v. Roberts (1979), 75 Ill. 2d 1, 387 N.E.2d 331.) In the present case, we find no reason to invoke the exception to the waiver rule.

The four instructions, when read as a whole, indicate the jury was made amply aware of the fact that to convict for any count of theft the State had to prove defendant intended to permanently deprive the owner (in this case the State) of the use or benefit of the property. Also, as to the issue of intent to permanently deprive, the case was not close factually. In fact, defendant testified that she had received and spent all the money she was accused of taking under the AFDC program and had received and used the food stamps she was accused of taking under that program. The only actual contested issue was whether her husband had been living with and supporting her and the children when she received the entitlements.

Accordingly, we hold that defendant waived the issue of improper instructions by failing to object at trial.

II

Right of Confrontation

Defendant next contends that her right to confront the witnesses against her (U.S. Const., amend. VI, 111. Const. 1970, art. I, §8) was violated by certain restrictions placed by the trial court on her cross-examination of three of the State’s witnesses. There were two specific restrictions allegedly imposed by the trial court on cross-examination, one relating to two of the witnesses, William Dove and Pennie Eastman, and the other to a third witness, Dorothy Flournoy. We will discuss these two restrictions separately.

A

Cross-examination of Dove and Eastman

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Cite This Page — Counsel Stack

Bluebook (online)
422 N.E.2d 166, 96 Ill. App. 3d 946, 52 Ill. Dec. 485, 1981 Ill. App. LEXIS 2721, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-baugh-illappct-1981.