People v. Shelton

564 N.E.2d 226, 205 Ill. App. 3d 471, 151 Ill. Dec. 249, 1990 Ill. App. LEXIS 1945
CourtAppellate Court of Illinois
DecidedDecember 6, 1990
DocketNo. 4-90-0094
StatusPublished
Cited by2 cases

This text of 564 N.E.2d 226 (People v. Shelton) 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. Shelton, 564 N.E.2d 226, 205 Ill. App. 3d 471, 151 Ill. Dec. 249, 1990 Ill. App. LEXIS 1945 (Ill. Ct. App. 1990).

Opinion

JUSTICE KNECHT

delivered the opinion of the court:

Following a jury trial in McLean County, defendant Gary E. Shelton was convicted of theft by possession over $300 (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16 — 1(a)(4)(C)) and theft by possession-subsequent offense felony (Ill. Rev. Stat., 1988 Supp., ch. 38, par. 16 — 1). The trial court entered judgment on the offense of theft by possession over $300, and defendant was sentenced to an extended six-year term of imprisonment to run consecutively with a four-year term of imprisonment previously imposed in McLean County case No. 89 — CF—10. The charges against defendant alleged he knowingly obtained control over stolen property — furniture of the Fairfield Inn and building equipment of the Triple R Interior Construction Company. Defendant was found not guilty of two separate charges of burglary stemming from the same facts. Ill. Rev. Stat. 1987, ch. 38, par. 19 — 1.

On appeal, defendant raises the following issues: (1) whether he was proved guilty beyond a reasonable doubt; (2) whether he was denied a fair trial when evidence of other crimes was improperly introduced; (3) whether he was denied a fair trial when a statement he gave to the police officers was improperly admitted into evidence; (4) whether he was denied a fair trial when the State, in closing argument, made improper statements to the jury; (5) whether he was improperly sentenced to a consecutive term pursuant to section 5 — 8— 4(h) of the Unified Code of Corrections (111. Rev. Stat. 1987, ch. 38, par. 1005 — 8—4(h)); (6) whether the trial court erred in sentencing by failing to take into account mitigating factors; and (7) whether the cause should be remanded so that a proper mittimus may be issued reflecting judgment was entered only on the offense of theft by possession over $300. We reverse and remand for a new trial, finding defendant was denied a fair trial when evidence of other crimes was improperly admitted. We address only the issues required to assist the trial court on remand.

At trial, Gary Retting testified he was the owner of the Triple R Interior Construction Company and that between May and August 1988, his company was doing drywall work at the First Assembly of God Church in Normal. Sometime during that period, Retting noticed a pair of drywall stilts and a drywall banjo were missing from the site. In January 1989, Retting went to the Bloomington police department, where he identified a pair of stilts and a banjo as being similar to the items missing. Retting stated the fair market value for the pair of drywall stilts was $275, while the fair market value for the banjo was around $150.

Kenneth Tipton testified he was the general manager of the Fair-field Inn in Normal, and that between August and November 1988, the motel was in the process of being constructed. In January 1989, Tipton was contacted by the Bloomington police department concerning furniture which had been recovered. The furniture consisted of a chair, ottoman, two pictures, and two nightstands. Tipton identified the furniture as belonging to Fairfield Inn and estimated the value of the items to be between $400 and $600. The items had just been received from the warehouse at the time they were taken from the hotel, but were in very poor condition when recovered. Tipton further stated that very close to the time he was contacted by the Blooming-ton police department, he received a call from a male identifying himself as Gary Shelton. The male offered to pay for the items or to return them.

Roger Marsh testified he had known the defendant for about five years and characterized him as being a good friend. Marsh acknowledged that he took certain property from the First Assembly of God Church and from the Fairfield Inn, and subsequently took the property to a trailer he shared with defendant and defendant’s girlfriend. Marsh put the drywall stilts underneath the trailer and the furniture in the living room of the residence. Marsh estimated the furniture was inside the trailer for three to four months before it was taken by the police. Everyone in the trailer, including defendant, used the furniture during this time.

Marsh testified defendant was not involved in the burglaries of Fairfield Inn or of the First Assembly of God Church. Marsh acknowledged that he made a statement on January 11, 1989, to Detective McKinley of the Bloomington police department in which he stated he and defendant took the items from the Fairfield Inn. Marsh also acknowledged that in his statement made on January 16, 1989, to Detective Richard Barkes, he also indicated defendant was involved in the church burglary. In his statement made on the same date to Frank Zayas of the Normal police department, Marsh stated defendant was involved in the Fairfield Inn burglary. Marsh identified People's exhibit No. 1 as a photograph of the drywall stilts and the banjo taken from the church, and People’s exhibit Nos. 2 through 5 as photographs of the property taken from the Fairfield Inn. At the time of testifying, Marsh had pleaded guilty to the two burglaries and received a sentence of probation.

On cross-examination, Marsh stated he had been living with defendant in a trailer in Lexington, Illinois, for about 18 months. Marsh considered the trailer his home as well as defendant’s. When Marsh first moved into the trailer, he brought personal belongings and from time to time, as he lived there, brought in other items which were not necessarily obtained from burglaries. Marsh indicated he told the police defendant was involved in the burglaries because he and defendant were fighting at the time, and because he was scared and thought it would be better for his case if he implicated someone else. Marsh chose to pinpoint defendant because the stolen property was in the trailer they shared together. Since the time he made these statements, Marsh had a change of heart because he did not want to see an innocent man go to jail. Marsh had told defendant the furniture had been obtained from yard sales.

Officer Richard Barkes of the Bloomington police department testified that in the course of investigating a burglary of the Fairfield Inn, he went to the trailer at which Marsh was staying in January 1989. Upon observing furniture he suspected had been stolen from the Fairfield Inn, Barkes transported Marsh to the Bloomington police department, where Marsh gave a written statement. In the statement, Marsh indicated defendant was his accomplice in the Fairfield Inn burglary. Based on the information contained in Marsh’s statement, a search warrant was obtained and executed for the trailer. At this time, the property from the Fairfield Inn and the drywall equipment from the Triple R Interior Construction Company were recovered. These items were taken into custody.

On February 12, 1989, Barkes took a written statement from defendant. In this statement, which was introduced at trial as People’s exhibit No. 9, defendant denied involvement in the burglaries of the drywall equipment and the furniture. Defendant stated Marsh and Ron Townscend brought the furniture into his trailer, at which time Marsh indicated he wanted to leave it in the trailer until he obtained a place of his own. Defendant stated he learned from Roy Potter the items were stolen, and that while he let the property stay in his trailer, he was going to dispose of it when he got home from work. Barkes further testified he took a written statement from Roger Marsh on January 16, 1989, concerning the burglary of the church.

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Related

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609 N.E.2d 967 (Appellate Court of Illinois, 1993)
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590 N.E.2d 950 (Appellate Court of Illinois, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
564 N.E.2d 226, 205 Ill. App. 3d 471, 151 Ill. Dec. 249, 1990 Ill. App. LEXIS 1945, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-shelton-illappct-1990.