People v. Cameron ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. Cameron, 2012 IL App (3d) 110020
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption EDGAR CAMERON, Defendant-Appellant.
District & No. Third District
Docket No. 3-11-0020
Filed October 12, 2012
Held The trial court did not shift the burden of proof to defendant or fail to
(Note: This syllabus prove him guilty in convicting him of theft and unlawful possession of
constitutes no part of firearm ammunition by a felon, but the restitution order was remanded for
the opinion of the court a determination of the proper amount of restitution, the sentencing order
but has been prepared was modified to make the sentences concurrent in the absence of
by the Reporter of evidence that consecutive sentences were necessary to protect the public,
Decisions for the and monetary credits against defendant’s fines were warranted based on
convenience of the his presentence custody
reader.)
Decision Under Appeal from the Circuit Court of Knox County, No. 10-CF-222; the Hon.
Review James B. Stewart, Judge, presiding.
Judgment Affirmed in part, modified in part, and vacated in part; cause
remanded.
Counsel on Jessica D. Fortier (argued), of State Appellate Defender’s Office, of
Appeal Chicago, for appellant.
John T. Pepmeyer, State’s Attorney, of Galesburg, (Terry A. Mertel and
Justin A. Nicolosi (argued), both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices Lytton and Wright concurred in the judgment and opinion.
OPINION
¶1 After a bench trial, defendant, Edgar Cameron, was convicted of unlawful possession of
firearm ammunition by a felon (720 ILCS 5/24-1.1(a) (West 2010)) and theft (720 ILCS
5/16-1(a)(4)(A) (West 2010)).1 He was sentenced to consecutive terms of imprisonment and
ordered to pay restitution and various fines, fees, and costs. Defendant appeals, arguing that:
(1) the trial court improperly shifted the burden of proof to him at the bench trial in violation
of his due process rights; (2) he was not proven guilty beyond a reasonable doubt of theft;
(3) the trial court erred in the amount of restitution it ordered; (4) the trial court erred in
imposing consecutive sentences upon him; and (5) he is entitled to a certain monetary credit
against his fines for the time he spent in pre-sentence custody and to a recalculation of his
Violent Crime Victims Assistance Fund assessment. We agree with defendant’s third, fourth,
and fifth arguments. Therefore, we affirm defendant’s convictions, modify defendant’s
sentences to concurrent terms of imprisonment, vacate the trial court’s restitution order, and
remand this case for a restitution hearing, if necessary, and for further proceedings consistent
with this opinion.
¶2 FACTS
¶3 In June 2010, defendant was charged with unlawful possession of firearm ammunition
by a felon (count I), theft of Amanda Trejo’s vehicle (count II), and theft of Letha McKee’s
driver’s license (count III). The amended charging instrument alleged that the offenses were
1
The charging instrument and the sentencing order list the statutory citation for the theft
charge as section 16-1(a)(1)(A) of the Criminal Code of 1961 (Code) (720 ILCS 5/16-1(a)(1)(A)
(West 2010)). However, the language used in the charge itself was from section 16-1(a)(4)(A) of the
Code (720 ILCS 5/16-1(a)(4)(A) (West 2010)).
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committed on May 20 (count III) and May 30, 2010 (counts I and II).2 Defendant’s case
proceeded to a bench trial in September 2010. The evidence presented at trial can be
summarized as follows.
¶4 Letha McKee testified for the State that on May 20 at about 7 p.m., she went to the Farm
King store in Galesburg. Upon arrival, McKee parked in the parking lot next to an
unoccupied white Chevrolet with chipped paint and went into the store, leaving her purse in
her unlocked car.3 When McKee returned, her purse was missing and the white car was gone.
The purse contained McKee’s wallet, driver’s license, checkbook, and social security cards,
and slightly more than $100 in cash. McKee did not see anyone go into her car while she was
in the store and did not give anyone permission to do so or to take her purse out of her car.
¶5 Galesburg police officer Aaron Ritter testified that he reported to the Farm King store in
response to the theft. Upon arrival, Ritter spoke to McKee. McKee gave Ritter a description
of the white car that was parked next to hers (the suspect vehicle), and store employees gave
Ritter a description of a potential suspect as a heavier-set African-American male. Ritter did
not find anyone matching that description at the scene and was unable to locate the suspect
vehicle at that time. At some point later, Ritter learned that McKee’s driver’s license had
been recovered from defendant’s vehicle by Officer Ingles. Ritter obtained the driver’s
license and went to the jail to speak with defendant. Defendant denied any involvement in
the theft of the purse from McKee’s vehicle.
¶6 Amanda Trejo testified that she met defendant in early May 2010. On May 29, Trejo and
defendant spent the night at a hotel in Galesburg. Before going to the hotel, defendant and
Trejo dropped off defendant’s car, a white Chevrolet with some paint missing, at the
Turnberry apartments. With Trejo’s permission, defendant drove them to the hotel in Trejo’s
car, a black 1996 Ford Taurus. Upon arrival, defendant returned the keys to Trejo. Trejo did
not tell defendant that he could no longer drive her car. When Trejo went to bed that night,
she put the keys and her cell phone in her bra, but when she woke up the next morning, her
keys, her vehicle, and defendant were all missing. Trejo informed the front-desk personnel,
and they called the police. Trejo testified that she did not give defendant permission to take
her car that morning. Trejo also testified that on May 29, she and defendant were at a bar, and
defendant told her not to touch him around the waist because he did not want his gun to fall
out.
¶7 Galesburg police officer Darrin Worsfold testified that on May 30, he located Trejo’s car
at the Turnberry apartments after he was advised by Officer Ingles that the car might be at
that location. The keys were not in the car, and the car was unoccupied with no one around
it.
¶8 Galesburg police officer Michael Ingles testified that on May 30 he responded to the
2
Unless otherwise indicated, all dates referenced from this point forward are for the year
2010. The year has been omitted in most instances, except where necessary to avoid confusion.
3
The trial testimony varied as to whether the white vehicle in question was a Chevrolet
Impala or a Chevrolet Lumina.
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hotel in question regarding the vehicle-theft complaint. Upon arrival, Ingles spoke to Trejo.
Trejo gave Ingles a description of the missing vehicle, the suspect, and the suspect’s vehicle.
While Ingles was at the hotel, he saw the suspect vehicle go by. Ingles got into his squad car,
caught up to the suspect vehicle, and made a traffic stop. Defendant was the driver of the
suspect vehicle, a white Chevrolet with chipped paint, and was also the registered owner. As
Ingles approached defendant’s vehicle, defendant made an unprompted statement that, “[h]e
did not steal that girl’s car.” Ingles asked defendant if he had the keys to the missing vehicle,
and defendant turned the keys over to Ingles. Defendant stated that he told Trejo at the hotel
that he was leaving with the vehicle and that he would be back.
¶9 During the course of the traffic stop, Ingles learned from dispatch that defendant was on
mandatory supervised release. Ingles asked defendant if he could search the vehicle, and
defendant consented. In the center console of defendant’s vehicle, Ingles found the driver’s
license of Letha McKee. Defendant told Ingles that he did not know where the driver’s
license had come from. In the trunk of the vehicle, Ingles found two duffel bags. In one of
the bags, Ingles found a pill bottle with .22-caliber bullets in it. In that same bag, Ingles also
found two court documents with defendant’s name on them. Defendant told Ingles that the
bags belonged to his cousin. Defendant did not provide the name of his cousin and did not
have an explanation for why his court documents were in the bag. Defendant was arrested
at that time. Ingles notified Officer Ritter that he found McKee’s driver’s license in
defendant’s vehicle and later turned the license over to Ritter.
¶ 10 In addition to the witness testimony, the State also admitted into evidence McKee’s
driver’s license, which was found in the center console of defendant’s car; the bullets, which
were found in a bag in defendant’s trunk; defendant’s court paperwork, which was allegedly
found in the same bag as the bullets; and a certified conviction for one of defendant’s prior
felony convictions.
¶ 11 After the State rested its case-in-chief, the defendant testified in his own behalf.
Defendant stated that he drove a white Chevrolet, which had chipped paint. Defendant had
been to Farm King a few times but denied that he, or anyone he was with, took a purse out
of a car at Farm King. Defendant did not know McKee or how her driver’s license got into
his center console, and stated that he never saw the license or McKee’s purse in his car and
that he was not the only person who drove his car. According to defendant, his sister and his
two friends, “Bone” and “Kenny Mac,” also drove the car. Defendant did not know the real
names of his two friends and did not know where they lived.
¶ 12 Defendant stated that on May 29, he dropped his car off at the Turnberry apartments and
drove Trejo’s car to the hotel. Trejo was with him at the time. When defendant and Trejo got
to the hotel, defendant put the keys in his pocket. Trejo never asked for her keys to be
returned and never told defendant that he could not drive her car anymore. Defendant and
Trejo were both drinking that night. According to defendant, he had permission from Trejo
to drive her car. Defendant stated that he woke Trejo up before he left the hotel and told her
that he was going to use the car to go to his mother’s house to get his phone charger. Trejo
seemed to understand and said, “ok.” A friend of defendant called him that morning and told
him that she had heard his name over the police scanner and that the police were looking for
him in relation to a stolen car. On the way back to the hotel, defendant was pulled over.
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Because defendant already knew that the police were looking for him in relation to a stolen
vehicle, the first thing he stated to the officer was that he did not steal that girl’s car.
¶ 13 Defendant denied that he consented to a search of his vehicle. The bags in his trunk of
the vehicle belonged to his cousin, who was visiting from Chicago, and defendant did not
know that one of the bags had bullets in it. Defendant denied that his court documents were
found in the bag and stated that the officer probably found them in the glove compartment
and lied about where he had found them.
¶ 14 After defendant’s testimony, the defense rested. The State recalled Officer Ingles to
testify in rebuttal. Ingles testified that just prior to the traffic stop, he was standing in uniform
by his squad car in front of the hotel. Ingles saw defendant’s car go past and travel east away
from the hotel when Ingles pursued defendant and made a traffic stop.
¶ 15 At the conclusion of the evidence, the trial court heard the closing arguments of the
attorneys. The State argued that the case came down to a question of credibility and that the
defense’s theory of the case–that this was all a misunderstanding or a coincidence–went well
beyond the evidence that was presented. The defense argued that the State had failed to prove
the charges beyond a reasonable doubt and pointed out where it thought that the evidence
was lacking.
¶ 16 After hearing the arguments, the trial court found defendant guilty of unlawful possession
of firearm ammunition by a felon (count I) and the theft of McKee’s driver’s license (count
III) and not guilty of the theft of Trejo’s vehicle (count II). In so doing, the trial court
commented:
“Okay. The State isn’t required to–to bring everybody into court that may have driven
Mr. Cameron’s car at one time or another. Mr. Bone did not appear. Mr. Kenny Mac did
not appear. I haven’t heard–there’s no corroboration that anybody else drives the car
besides Mr. Cameron.
It’s apparently his car. He is responsible for what’s in the car. Whether or not the
luggage and the–is–belonged to his cousin or not, the police are not required to–the State
is not required to present proof that it–that it belongs to somebody else or to Mr.
Cameron. It was in Mr. Cameron’s car. At the very least, it’s up to Mr. Cameron to
demonstrate that the–that this luggage belongs to somebody other than him.
Who’s this cousin? The–apparently this cousin knows Mr. Cameron well enough that
he comes to Galesburg and visits family members, but he won’t come to Galesburg to
testify on behalf of his nephew [sic] and admit that this was his and that the bullets were
his?
You know, the State has to prove beyond a reasonable doubt. Granted, the testimony
of Mr. Cameron raises a doubt, but it’s not reasonable under the circumstances. This
maybe could have been rebutted had–had Mr. Bone and Mr. K Mac come into Court and
said–testified that, yeah, I was responsible for it, but apparently Mr. Cameron is hanging
around with people that may be unsavory and–and–and don’t feel that they can be
responsible for–for their actions.
Well, and so as a consequence, your good buddy, Mr. Cameron, is gonna take the fall
for that because it was his car. The property was found in his car. He is responsible for
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what is there.
The bullets are his as far as I can tell. There’s no corroboration that it belonged to this
cousin who could have been here–here in court and is not, and the same is true of the
driver’s license. It’s simply too coincidental it was in his console. He may not have
known. I mean, I admit the fact that Mr. Cameron tells a good story. He may not–he
may–everything he said may have been entirely true, but its up to him–him to come
forward with some evidence to corroborate what he said. Under the circumstances, it’s
just not there. Everything else points to him.
Now, with the Amanda Trejo business, I think that whole thing was a little hinky
and–and so I don’t believe he’s guilty of stealing this–this woman’s car, so–but with
regard to what the police found in his car, I think he’s guilty.
So I make a finding of guilty of Counts I and III, but as to Count II, it’s too hinky
to–to believe that–that he stole that vehicle.”
¶ 17 A presentence investigation report (PSI) was ordered and the case was set for sentencing.
The PSI showed that defendant was 25 years old, was unmarried, and had one child, with
whom he had no contact. Defendant had a high school education and had worked
sporadically. Defendant had been convicted of unlawful possession of a controlled substance
in a 2004 case, for which he received probation; aggravated unlawful use of a weapon in a
2005 case, for which he received one year of imprisonment; and armed robbery in a 2006
case, for which he was sentenced to seven years’ imprisonment. Defendant also had
dispositions for various traffic, ordinance-violation, and misdemeanor offenses and had some
delinquency adjudications as a minor for burglary and unlawful use of a weapon. The current
offenses were committed while defendant was on mandatory supervised release for the prior
armed robbery.
¶ 18 A sentencing hearing was held in November 2010. At the start of the hearing, the
prosecutor represented to the trial court that his office contacted Letha McKee, the victim of
the theft, about restitution and was informed that “she [was] due $200 in restitution.” McKee
told the prosecutor’s office that she had a $100 bill in her purse and that she had to have her
driver’s license, three social security cards, a hunting license, her firearm owner’s
identification card, and her credit cards reissued, which amounted to approximately $200.
Defense counsel did not object to that representation.
¶ 19 The State presented no evidence in aggravation, other than the information contained in
the PSI. Defendant presented the testimony of Nicole Empson in mitigation. Empson
testified that she had known defendant for eight or nine months and that they were engaged.
Empson stated that defendant was generally a happy person and that he did what he could
to help her and her children. On cross-examination, however, Empson acknowledged that
at one point in their relationship, she thought defendant was using drugs because his behavior
had changed. Empson also acknowledged that at one point, she had obtained an order of
protection against defendant because he had been sending her mean text messages.
¶ 20 The State represented to the trial court that any sentence defendant received was required
to be consecutive to the sentence defendant was already serving in the Department of
Corrections (DOC) for the prior armed robbery. Defense counsel did not object or disagree
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with that representation. The parties agreed that defendant was ineligible for probation
because of his prior armed robbery conviction. The State recommended that both of
defendant’s convictions in the present case be ordered to run consecutively to each other and
that defendant be given an extended-term sentence on the conviction for unlawful possession
of firearm ammunition by a felon. Defense counsel recommended that the two convictions
in this case be ordered to run concurrently and that defendant not be given an extended-term
sentence.
¶ 21 After hearing the evidence, the recommendations, and defendant’s statement in
allocution, the trial court sentenced defendant to seven years’ imprisonment for the
ammunition conviction and one year of imprisonment for the theft conviction. The terms of
imprisonment were ordered to run consecutively to each other and to defendant’s unexpired
DOC sentence for the prior armed robbery. In making its sentencing decision, the trial court
stated:
“All right. Well, unfortunately, you have a really serious prior history, criminal
history, stretching over ten years back, starting with a burglary as a juvenile, culminating
in a–in the armed robbery which was a serious offense back in ’06.
You have had multiple charges involving weapons, unlawful use of weapons,
aggravated unlawful use of weapons and then, of course, the–the present one, unlawful
possession of firearm ammunition by a felon. That’s the most serious, especially coming
on the heels of the armed robbery.
Of course, you’re looking at a three to fourteen-year prison sentence. If this was your
first offense, it would be an entirely different matter, but it’s the third one involving
weapons and bullets. As a consequence of that, the–the Court has to view that as–as
significant.
Because of that also, I think that the State is right to argue that there was a–that there
was threatened serious harm because you’re a felon and because no good explanation has
been offered concerning these bullets, and they were found to be in your possession as
I found at the bench trial.
As a consequence, Factor No. 1 [in aggravation] is available for the State. No. 3, I’ve
already made mention of the criminal record. No. 7, it is necessary that the–that I have
to take into consideration the–the deterrent effect of the sentence that I impose on others,
and finally, that these offenses were committed when you were on mandatory supervised
release. You were under the requirement to not–not commit any–any further crimes and,
of course, you were charged with these two and then found guilty of them.
On your side, I don’t find any–I don’t find the presence of any serious factors. The
only thing that I can see that is in you side–on your–in your favor is the fact that you
graduated from high school. That kind of sets you apart a little bit from most of the
people that I see, but that isn’t a–a–a serious factor in mitigation.
As a consequence of that, you understand that probation is not available to you. This
involves a Department of Corrections sentence.
*** You’re looking at a three to fourteen-year prison sentence. The sentences have
to be consecutive to the reason you’re back in the Department of Corrections right now.
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***
Okay. With regard to Count I, the unlawful possession of firearm ammunition by a
felon, I’m going to impose a seven year prison sentence in lieu of–instead of the ten year
[recommended by the State] because we’re not talking about weapons so much as we’re
talking about bullets. It’s still a serious charge, and I think seven years is an appropriate
sentence.
I will impose a consecutive sentence in Count II for the–or Count III, rather, for the
theft because those are two separate offenses. They were unrelated to one another, and
I think it’s only appropriate that you–that you serve consecutive sentences, and I will
impose the three-year term which was recommended by the–by the State.
I will also impose restitution of $200. I don’t know what the chances of–of that, but
it seems to me to be appropriate that when you get out of the Department of Corrections,
you reimburse the victim for the loss she suffered.”
¶ 22 In addition to the terms of imprisonment and restitution, defendant was required to pay
various fines, fees, and costs and was given credit for 172 days of presentence incarceration.
Defendant filed a motion for new trial, alleging that he was not proven guilty beyond a
reasonable doubt of the theft charge. Defendant also filed a motion to reconsider sentence,
alleging that his sentence was excessive. After a hearing, both of the motions were denied.
Defendant appealed.
¶ 23 ANALYSIS
¶ 24 On appeal, defendant argues first that the trial court improperly shifted the burden of
proof to him at his bench trial in violation of his due process rights. In support of that
argument, defendant asserts that numerous unambiguous statements made by the trial court
when it found defendant guilty indicate that the trial court believed that defendant was
required to come forward with proof of his innocence and also demonstrate that the trial
court erroneously placed the burden of proof on defendant. Defendant recognizes that this
issue may have been forfeited because trial counsel did not object to the comments at trial
or raise the issue in a posttrial motion but argues that we should reach the merits of this issue,
nevertheless, because the issue involves the conduct of the trial court itself or, alternatively,
as a matter of plain error.
¶ 25 The State argues first that no error occurred and that the trial court’s comments do not
establish that the trial court improperly shifted the burden of proof to defendant but, rather,
show that the trial court was merely explaining its credibility determination and the
deficiencies it found in defendant’s theory of the case. In the alternative, the State argues that
any error that occurred was forfeited and that plain error review does not apply in this case.
¶ 26 The first step in plain-error analysis is to conduct a substantive review of the issue to
determine whether an error occurred. People v. Walker, 232 Ill. 2d 113, 124-25 (2009).
Whether the trial court applied the correct legal standard is a question of law, which is
subject to a de novo standard of review on appeal. See People v. Campos, 349 Ill. App. 3d
172, 176 (2004).
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¶ 27 Due process requires that the State bear the burden of proving beyond a reasonable doubt
all of the elements of the charged offense. People v. Howery, 178 Ill. 2d 1, 32 (1997). That
burden of proof remains on the State throughout the entire trial and never shifts to the
defendant. Howery, 178 Ill. 2d at 32. The defendant is presumed innocent throughout the
course of the trial and does not have to prove his innocence, testify, or present any evidence.
See People v. Devine, 295 Ill. App. 3d 537, 544 (1998); People v. Bradley, 70 Ill. App. 2d
281, 286-87 (1966); Illinois Pattern Jury Instructions, Criminal, Nos. 2.03, 2.04 (4th ed.
2000); Ill. S. Ct. R. 431(b) (eff. July 1, 2012).
¶ 28 The trial court is presumed to know the law regarding the burden of proof and to apply
it properly. Howery, 178 Ill. 2d at 32. That presumption, however, may be rebutted when the
record contains strong affirmative evidence to the contrary. Howery, 178 Ill. 2d at 32. In
ruling upon an allegation such as the one in the present case, the reviewing court must
determine whether the record contains strong affirmative evidence that the trial court
incorrectly allocated the burden of proof to the defendant. Howery, 178 Ill. 2d at 32-33. The
trial court’s efforts to test, support, or sustain the defense’s theories cannot be viewed as
improperly diluting the State’s burden of proof or improperly shifting that burden to the
defendant. See Howery, 178 Ill. 2d at 35. The trial court is free to comment on the
implausibility of the defense’s theories, as long as it is clear from the record that the trial
court applied the proper burden of proof in finding the defendant guilty. Howery, 178 Ill. 2d
at 34-35.
¶ 29 In the present case, after reviewing the record, we find that it does not contain strong
affirmative proof that the trial court erroneously diluted the State’s burden of proof or shifted
that burden of proof to defendant. See Howery, 178 Ill. 2d at 32-35; Bradley, 70 Ill. App. 2d
at 286-87. The trial commented upon the State’s evidence and theories, the defendant’s
evidence and theories, and the burden of proof in arriving at its decision. The trial court’s
comments about defendant’s testimony and about evidence or witnesses that were not
presented merely indicate that the trial court thoroughly considered and tested defendant’s
theories and credibility in deciding this case. As the record is clear that the trial court knew
and properly applied the burden of proof, those comments do not support a claim that the
trial court erroneously shifted the burden to defendant. See Howery, 178 Ill. 2d at 34-35.
Therefore, we reject defendant’s argument on this issue. Having determined that no error
occurred, we need not consider further the parties’ arguments on this issue about forfeiture
and plain error.
¶ 30 As his second point of contention on appeal, defendant argues that he was not proven
guilty beyond a reasonable doubt of the theft of Letha McKee’s driver’s license. Defendant
asserts that the State presented no evidence to prove that he knowingly obtained control over
McKee’s driver’s license, that he knew the driver’s license was stolen, or that he intended
to deprive McKee permanently of her driver’s license. The State argues that strong
circumstantial evidence was presented in this case and that the evidence was sufficient to
prove defendant guilty.
¶ 31 Pursuant to the Collins standard (People v. Collins, 106 Ill. 2d 237, 261 (1985)), a
reviewing court faced with a challenge to the sufficiency of the evidence must view the
evidence in a light most favorable to the prosecution and determine whether any rational trier
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of fact could have found the elements of the crime proven beyond a reasonable doubt. People
v. Jackson, 232 Ill. 2d 246, 280 (2009). The reviewing court will not retry the defendant.
People v. Jimerson, 127 Ill. 2d 12, 43 (1989). Determinations of witness credibility, the
weight to be given testimony, and the reasonable inferences to be drawn from the evidence
are responsibilities of the trier of fact, not the reviewing court. See Jimerson, 127 Ill. 2d at
43. Thus, the Collins standard gives “ ‘full play to the responsibility of the trier of fact fairly
to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.’ ” Jackson, 232 Ill. 2d at 281 (quoting Jackson
v. Virginia, 443 U.S. 307, 319 (1979)). This same standard of review is applied by the
reviewing court regardless of whether the evidence is direct or circumstantial, or whether
defendant received a bench or a jury trial, and circumstantial evidence meeting this standard
is sufficient to sustain a criminal conviction. Jackson, 232 Ill. 2d at 281; People v. Kotlarz,
193 Ill. 2d 272, 298 (2000). In applying the Collins standard, a reviewing court will not
reverse a conviction unless the evidence is so improbable or unsatisfactory that it leaves a
reasonable doubt of the defendant’s guilt. Jackson, 232 Ill. 2d at 281; People v. Flowers, 306
Ill. App. 3d 259, 266 (1999).
¶ 32 To sustain the charge of the theft of McKee’s driver’s license in the present case, the
State had to prove the following four elements beyond a reasonable doubt: (1) that McKee
was the owner of the driver’s license; (2) that defendant knowingly obtained control over the
driver’s license; (3) that defendant knew that the driver’s license had been stolen or obtained
control of it under such circumstances as would reasonably induce him to believe that it was
stolen; and (4) that defendant intended to deprive McKee permanently of the use or benefit
of the driver’s license. See 720 ILCS 5/16-1(a)(4)(A) (West 2010); Illinois Pattern Jury
Instructions, Criminal, No. 13.24 (4th ed. 2000); People v. Price, 221 Ill. 2d 182, 189-90
(2006). Possession of an item, such as stolen property, may be actual or constructive. People
v. Mertens, 77 Ill. App. 3d 791, 795 (1979). A person has constructive possession of an item
when he has immediate and exclusive control over the area where the item is located.
Mertens, 77 Ill. App. 3d at 795. The knowledge and intent necessary for a theft charge need
not be proven by direct evidence and may, instead, be proven indirectly by inference or by
deduction made by the trier of fact based upon the facts and circumstances of the case.
Mertens, 77 Ill. App. 3d at 795.
¶ 33 In the present case, there is no dispute that McKee was the owner of the driver’s license.
The only elements in dispute are the second, third, and fourth elements of the theft
charge–control, knowledge, and intent. The evidence presented at the trial established that
McKee’s license was stolen from her car when she was in the Farm King store; that the
suspect vehicle was parked next to McKee’s vehicle at Farm King when she left her purse
in her vehicle and entered the store; that the suspect vehicle was gone from the store’s
parking lot when McKee returned to her vehicle and discovered that her purse, with her
license in it, had been stolen; that about 10 days after McKee’s driver’s license was stolen,
it was found by the police in the center console of defendant’s vehicle after a traffic stop was
made on the vehicle, which was being driven by defendant at the time and was registered to
defendant; and that McKee’s description of the suspect vehicle as a white Chevrolet with
chipped paint was identical to a description of defendant’s vehicle. Viewed in the light most
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favorable to the State, that evidence was sufficient to prove defendant guilty beyond a
reasonable doubt. Defendant’s possession of the license in his vehicle, either actual or
constructive, was sufficient to establish control and, along with the other facts and
circumstances of this case, was sufficient to establish by inference that defendant had the
requisite knowledge and intent sufficient to support the theft charge. See Mertens, 77 Ill.
App. 3d at 795. Those inferences were further corroborated by defendant’s improbable
version of events–that he had no knowledge of the driver’s license in his center console and
that he loaned his vehicle to persons whose real names and addresses he did not know.
Although defendant was not required to testify, once he elected to do so and provided an
explanation of his possession of the stolen driver’s license, his explanation was subject to
the same credibility determination as that of any other witness. See Mertens, 77 Ill. App. 3d
at 797 (“[a] defendant who elects to explain his possession of stolen property must offer a
reasonable story or be judged by its improbability”). We will not retry this case on appeal or
substitute our judgment for that of the trier of fact on such matters as witness credibility and
the weight to be given evidence. Jimerson, 127 Ill. 2d at 43.
¶ 34 As his third point of contention on appeal, defendant argues that the trial court erred in
ordering restitution of $200. Defendant asserts that the restitution amount was not statutorily
authorized because defendant was only charged with, and convicted of, the theft of McKee’s
driver’s license, not the theft of McKee’s purse or the other items in McKee’s purse, and
there was no proof that McKee suffered actual out-of-pocket losses of $200 for the driver’s
license alone. Defendant asks that this case be remanded for a new restitution hearing to
determine the correct amount of McKee’s actual out-of-pocket losses, if any. The State
argues that the trial court’s ruling was proper and should be affirmed.
¶ 35 In general, a trial court’s determination on restitution, like other sentencing issues, will
not be reversed on appeal absent an abuse of discretion. See People v. Jones, 145 Ill. App.
3d 835, 839 (1986). However, when the issue before the reviewing court is whether a
restitution order is authorized by statute, such as in the present case, that issue is a question
of law, which is subject to a de novo standard of review on appeal. See People v. Felton, 385
Ill. App. 3d 802, 805 (2008).
¶ 36 Under section 5-5-6 of the Unified Code of Corrections (Unified Code), a crime victim
is entitled to recover restitution for the actual out-of-pocket losses that were proximately
caused by the criminal conduct of the defendant. 730 ILCS 5/5-5-6(a), (b) (West 2010);
People v. Ensley, 132 Ill. App. 3d 842, 844 (1985). The trial court may order restitution for
losses incurred by the same victim as the result of the same criminal conduct of the
defendant, even if those losses were not set forth in the charging instrument. Ensley, 132 Ill.
App. 3d at 844. Thus, where a defendant is convicted of theft for the initial taking of items
from the victim’s possession, losses for items that were taken as part of the same theft but
were not specifically listed in the charging instrument may be included in a restitution order
because the theft of multiple items from one victim involves a single course of conduct that
constitutes one offense of theft. See People v. McClard, 359 Ill. App. 3d 914, 917 (2005).
However, when a defendant is convicted of theft by possession of stolen property, absent an
agreement to the contrary or evidence linking defendant to the initial taking of the property,
the defendant may not be required to pay restitution for the losses associated with the initial
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taking but, rather, may only be required to pay restitution for those losses associated with all
of the stolen items that were in defendant’s possession, even if some of those items were not
listed in the charging instrument. See People v. Hernandez, 236 Ill. App. 3d 983, 985-86
(1992) (defendant who had agreed to pay restitution as part of plea agreement to theft by
possession of stolen property charges in exchange for dismissal of residential burglary
charges could not be ordered to pay restitution for the losses sustained in the residential
burglaries in which the property that ended up in defendant’s possession was initially taken);
Ensley, 132 Ill. App. 3d at 844; McClard, 359 Ill. App. 3d at 917.
¶ 37 In the present case, defendant was convicted of theft by possession of stolen
property–McKee’s stolen driver’s license. Defendant was not charged with, or convicted of,
a criminal offense in relation to the initial taking of the purse or the driver’s license from
McKee’s vehicle. As such, defendant could only be ordered to pay restitution for those losses
associated with his possession of the stolen driver’s license. See Hernandez, 236 Ill. App.
3d at 985-86. Defendant could not be ordered to pay restitution for those losses associated
with the initial taking of the purse and its contents from McKee’s vehicle. See Hernandez,
236 Ill. App. 3d at 985-86. Therefore, the restitution order must be vacated and this case
remanded for a new restitution hearing to determine the amount of out-of-pocket losses, if
any, that were caused to McKee by defendant’s possession of the stolen license only and not
the costs of replacing the other items or the missing money. See Hernandez, 236 Ill. App. 3d
at 986.
¶ 38 As his fourth point of contention on appeal, defendant argues that the trial court erred in
imposing consecutive sentences upon him. The parties agree that mandatory consecutive
sentencing does not apply and that this issue involves only a question of permissive
consecutive sentencing. Defendant asserts that consecutive sentences were improper because
the trial court never found that consecutive sentences were necessary to protect the public
from defendant as required by the statute and because there was no basis for such a finding
in the record. Defendant asks that we modify his sentences on appeal to concurrent terms of
imprisonment. The State argues that the imposition of consecutive sentences was proper and
should be affirmed.
¶ 39 A trial court’s sentencing decisions will not be altered on appeal absent an abuse of
discretion. People v. Streit, 142 Ill. 2d 13, 19 (1991); People v. Hartzol, 222 Ill. App. 3d 631,
650 (1991) (trial court’s decision to impose consecutive sentences will not be reversed on
appeal absent an abuse of discretion). Although the reviewing court may reduce a sentence
where an abuse of discretion has occurred (Ill. S. Ct. R. 615(b)(4)), in reviewing the propriety
of a sentence, the reviewing court should proceed with great caution and care and must not
substitute its judgment for that of the trial court merely because the reviewing court would
have weighed the factors differently (Streit, 142 Ill. 2d at 19).
¶ 40 Section 5-8-4 of the Unified Code provides, in pertinent part, that the trial court may
impose consecutive sentences:
“[i]f, having regard to the nature and circumstances of the offense and the history and
character of the defendant, it is the opinion of the court that consecutive sentences are
required to protect the public from further criminal conduct by the defendant.” 730 ILCS
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5/5-8-4(c)(1) (West 2010).
Although the statute states that the basis for such a finding shall be set forth in the record (see
730 ILCS 5/5-8-4(c)(1) (West 2010)), our supreme court has held that the trial court is not
required to recite the specific language of the statute in determining that consecutive
sentences are necessary (see People v. Hicks, 101 Ill. 2d 366, 375 (1984)). Rather, “ ‘[w]hat
is required is that the record show that the sentencing court is of the opinion that a
consecutive term is necessary for the protection of the public.’ ” Hicks, 101 Ill. 2d at 375
(quoting People v. Pittman, 93 Ill. 2d 169, 178 (1982)).
¶ 41 After a review of the record in the present case, we find no indication that the consecutive
sentences were motivated by the trial court’s belief that they were required for the protection
of the public. See Hicks, 101 Ill. 2d at 375; People v. Span, 337 Ill. App. 3d 239, 241 (2003).
Although the trial court considered the nature and circumstances of the current offenses and
the history and character of defendant, it did so as part of its evaluation of the factors in
aggravation and mitigation. It does not appear that the trial court considered that information
in the context of a consecutive-sentencing decision or that the trial court ever determined that
consecutive sentences were required to protect the public from further criminal conduct by
defendant. Therefore, we modify defendant’s sentences and order that the terms of
imprisonment imposed upon defendant for the two current offenses shall be served
concurrently with each other and concurrently with defendant’s unexpired DOC sentence for
his prior armed robbery conviction.
¶ 42 As his final contention on appeal, defendant argues and the State concedes that he is
entitled to a certain monetary credit against his fines for the time he spent in presentence
custody and to a recalculation of his Violent Crime Victims Assistance Fund assessment.
Accordingly, we find that defendant is entitled to a monetary credit of $860 for the time he
spent in custody, which should be applied to satisfy in full his $5 teen court fee, his $5 drug
court fee, and his $5 child advocacy center fee, which have all been held by the courts to be
“fines,” rather than “fees,” for the purpose of the monetary credit. See People v. Paige, 378
Ill. App. 3d 95, 103 (2007) (teen court fee was determined to be a fine); People v. Sulton, 395
Ill. App. 3d 186, 193 (2009) (drug court fee was determined to be a fine); People v. Jones,
397 Ill. App. 3d 651, 664 (2009) (child advocacy center fee was determined to be a fine). In
addition, because fines were imposed, defendant’s Violent Crime Victims Assistance Fund
assessment should only be $4 and not the $20 that was actually imposed. See 725 ILCS
240/10(b), (c)(2) (West 2010). The circuit clerk is ordered to make the listed changes.
¶ 43 For the foregoing reasons, we affirm defendant’s convictions, modify the trial court’s
sentencing order to make the terms of imprisonment imposed for those two convictions run
concurrently to each other and to defendant’s unexpired DOC sentence, vacate the trial
court’s order of restitution, and remand this case for a restitution hearing, if necessary, and
for further proceedings consistent with this opinion.
¶ 44 Affirmed in part, modified in part, and vacated in part; cause remanded.
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