Filed November 20, 2006

No. 1-05-1643
THE PEOPL

E OF THE

STATE OFIL

LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 03 CR 11974 ) WIL LI AM NATAL , a/k/a Sa

muel Nate l, ) Honorab le ) Eddie A. St

ephens, Defend ant-App ellant. ) Judge Presi ding.
MODIFIED ORDER UPON DENIAL OF P ETITION FOR REHEARING
JUSTICE ROBERT E. GORDON d elivere d the opini on of the c ourt: Following a bench trial, defendant William Natal was convicted of re sidential burglary and sentenced to 10 years’ imprisonment as a Class X offender based upon his criminal history. He was also orde red to submit blood

specime ns to the I llinois Stat

e Police f or gen etic ana

lys is pursuant

to section 5-4-3 of the Unified Code of Corrections (Code). 730 I LCS 5/5-4-3 (West 2002). Onappeal, defenda

nt conten ds that the State fa iled to prove him gu

ilty bey ond a rea sonable doubtwhen the only ev

id ence against him was his possession of some of the procee ds from the bu rg la ry. Defendant

also contends that

the compulsory extraction of his blood and per petual storing of his DNA profile pursuant to section 5-4-3 of the Code violates his fourth amendment right to be free from unreasonable sear ches and seizures. We reverse. At trial, Joseph Fuentes testified that at about 9 a.m. on May 17, 2003, he and his girlfriend,No. 1-05-1643

2

ConsueloCanaday, lef

t their second-floor apartment, locking the lock on the doorknob, but not the deadbolt
. When they

returne d home at n

oon, th ey observe d a hammer and a screwdriver on the doormat in front of their apartment door, saw that the door had been damaged, and then found that the deadbolt on the door had been locked. Upon

enterin g the ap artment, Fuente s saw that their home had been ransacked, with the mattress flipped over , drawers and cabinets open in every

room, and their clothes removed

from the closet and dresser and thrown on the floor. I n the living

room, the ir VCR and DVD player h ad been disco nnected from the television and moved to the dining room table, and their patio door was open. Fuentes tes ti fied that the patio has a stairway leading to the ground, and someone could a scend the stairwa y a nd enter the apar tment. There is also a rear door to the building that leads to a hallway that goes to Fuentes’ apartment door. Fuentes further testified that he went outside on the patio and did not see any one in th e a ll ey, butthen saw defendant outside of his pro perty standing on the side

walk on Milwaukee Avenue about 20 feet away

from the building. Defendant was holding and looking into two pillowcases that had been removed from Fuentes’ bed. Fuente s told Canaday that the burglar was downstairs and to call the police. He went downstairs, g rabbed a pi pe that was in the stairwell, exited the building and confronted

defenda nt on the si dewalk. Fuente s asked de fendant why he was going thro ugh his pr op er ty, and defendant

replied “[i]t wasn’t me. The guy just ran away ,” and pointed over Fuentes’ sho ulder. Fu en te s t ol d d ef en da nt no t t o g o a nyw he re an d t ha t t he po li ce we re on th ei r w ay. Defendant

left the pillowcases on the sidewalk near the apar tment building and beg an wa lking backwa rds. He then placed his hand inside his jacket, said that he had a g un and threatened to shootNo. 1-05-1643

3

Fuente s, but Fu entes did

not b elieve him because he then removed his hand from his jac ket. The arrest ing poli ce officer interviewed Fue ntes and testified Fuentes never told him that he was threatened with a gun. Fuentes testified that defendant continued walking backwa rds away f rom the apartment, and Fuentes slowly followed him. Fuentes then sa w defendant remove a black item from his back pocket and drop it behind a dresser that was on display on the sidewalk in front

of a furniture store. Minutes later, pol ice arrived and arrested def endant. When police searched defendant, F uentes saw them
remove fromhis back

pocket a green padlock with a lady bug sticker on it that belonged to Canaday and had been in their apartment. He also saw police re cover t he item defendant discarded behind the dresser, and recognized it as his black g love. Insidethe glov e were quarters and a g old

necklace. Fuentes testified that he had never seen defenda nt before the day

of the burgla

ry and neve r gave him permission to enter his apartment or remove any items from therein. Chica go pol ice

off ice r Ja mes Wod nicki test

ified tha t he resp onded to a

call at Fuentes’ apartment and when he arrived, he saw def endant arguing with Fuentes about 200

feet sou th of the apartment building. After speaking with Fuentes, Off icer Wodnicki arrested defendant, and during
a custodial search, he recovered a green padlock and a watc h from his back

pocket. H e also recovered from the scene a glove containing loose cha nge. The offic er obser

ved other propert y ite ms
on the sidew alk near

defenda nt and saw

pillowca ses on the

ground infront of a dollar

store, which
was nea r the ap artme nt bu ildi ng. Insupport of

his motion for a directed finding, defense counsel argued that the State had notNo. 1-05-1643

4

proven the elem ents of r esid ential burglary and that the court could not presume that defendant commit ted the burglary

merely bec ause he was in possession of items that were allege dly taken during the offense. The trial court found that, based on all of the e vidence that had been presented, defendant’s possession of the property was unexplained. In deny ing defendant’s motion, the court stated that “de fendant ’s posses sion of the se items pr oximate to th e victim’ s houseall militate toward – in this court’s opinion at this stage of the proceeding s – the conclusion that the State has shown a prima facie case.” Defendant

presented testimony

from Chicago police evidence technic ian Roy Fondren, who testified that on the afternoon of May 17, 2003, he r

ecover ed eigh t latent f ingerprint lifts

from item s inside Fuente s’ apartment that were believed to have been handled by the burglar. Officer F ondren testified that he did not make any c omparisons of these prints, but submitted them for a

naly sis. The parties then stipulated that certified f i ngerprint examin ers L eo Cumming s and Willie Harris examined th

ose fing erprints

and found that the

y di d not match the fing erprints of defe ndant. Defendant

testified that on the date in question, he w as walki ng down the sidewalk and noticed a gold c hain, a lock et, mo ney and a gl ove on the ground. He picked up these items and placed them in his pocket, and then began looking inside some bag s (pillowcases) that were on the ground. Defendant testified that the sidewalk w as bu sy with people at the time. Fue ntes then appeared holding a pipe, startled defendant, and said that the items belong ed to him. Defendant testified that he began

walking backwards because Fuentes threatened him with the pipe. He also testified that the w atch the

police r ecover ed from h im actual ly

belong ed to him. Defendant deniedNo. 1-05-1643

5

that he ever entere d Fuente s’ apar

tment, tha t he thre atened F

uentes, or that he

told him that someone who ran away

had taken the property . Defendant also acknowledge d that he was convicted

of theft and possession of a controlled substance in 2001, and attempted residential burglary in 1998. Inclosing arguments, defense c ounsel asserted that defendant had provided a reasona ble explanation for his possession of Fuentes’ property . Counsel further argued that Fuente s’ testimony
was impeached, which

made his credibility questionable. Counsel ma intained that the Sta

te merel y proved that defendant was in possession of some proceeds from the alleged bur glary and that it failed to pro ve tha t he ev er ente red th e apart ment b uild ing. The court sta

ted that it had hea rd all of the e vidence and observed the demeanor of the witnesses who testified. It then detailed the testimony of Fuentes and defendant. The cour t noted that the defense’s theory

was that, if defendant had stolen the property , he would have left the area, butthe court found that there was no explanatio n as to why defe

ndant would pick up property that did not belong to him and not leave the area. The c ourt a lso noted that the State had argued that defendant’s unexplained possession of the prope rty was suff icient to s upport a f inding of guilt. The court found that defendant’s testimony was not credible and stated that the court di d not have to accept his explana

tion, espe cially

inlight of his criminal background. Even though the testimony of both defendant and Fuentes had been impeached, the cour

t was not g oing to di srega rd Fuen tes’ entire testimony. The trial court then stated that there was other evidence which wa s “circumstantial in terms of the resid ential bu rglar y.” It not e d that de fendant allegedly dropped a glove behind a piece ofNo. 1-05-1643

6

furniture on the street, which defendant denied. The court stated that the most powerful evidence
was defenda

nt’s unexpl a ined poss ession of the property , and that it was “a close case,” but found that the case law suppo rted a c onviction and found defend

ant guil ty of residential burglary . The court noted tha t the State p resented case law which held that rec ent unexplained exclusive possession
o f stolen pr operty raises a n infere nce of g uilt, which, acco rding to

those ca ses, was

sufficie nt to support a guilty finding
. The case law that the trial cou rt relie d on was People v

. Curtis , 116 Ill. App. 2d 298 (1969). Inthe Curtis case, the trial court gave a jury instruction which was found proper and which stated: “‘The Court instr

ucts the ju

ry that the exclusive po ssession, shortly after th e c om mi ss io n o f b ur gl ar y, of stolen property, the pr

oceeds of the crime , if unexpla

ined, may of itself raise an inference of guilt of the person having such pos sessio n, sufficient to authorize a convi ction if the jury believe s that such possession has bee n established

beyond a re asonable doubt and in the absence of any

other evidence o f facts or circumstances in evidence w hich leave in the mindof the jury a r

easonable doubt

as to the guilt of

such person.’” Curtis , 116 Ill. App. 2d at 300-01. Inthe case

at bar, f ollowing the cour t’s ruling , defend

ant conti nued to pr oclaim his

innocence and stated tha t his convicti on was not

fair. Af ter rep eatedly

advising him not to spe ak, the c ourt told defendant “you wer e found guilty by

me not because of y

our background, but beca

use of the law andNo. 1-05-1643

7

the facts that I hear

d.” A subsequent hearing on defendant’s posttrial motion did not show that defenda nt was ever inside the apartment building, that he was merely looking into a bag, and that he provi ded a
reasona ble explanation for doing so. The trial court acknowledg ed that there was no direct evidence that defendant was inside Fuentes’ home, but stated that circ umstantial evidence existed, which was to be given the same weight as dire ct evidence. The court further noted that a defendant may

provide
anexplanation for that

possession, but that the trier of fact may use

its common sense experience and either accept or reject that explanation. The trial court then summarized the evidence that was presented, noting that Fue ntes initia lly observed defendant 20 feet aw ay

from his a

partmen t, looking into pillowcases that had been taken from his bed while he was away from his home between 9 a.m. and noon. The co urt also n ote d Fuente s’ testimony that defendant denied ta king the propert y a nd claime d that a

man who had fled had stolen it, and that Fuentes saw defendant discard an item behind a piece of furniture which was later recovered and found to be a g love containing quarters and jewelry . It further noted that defendant testified that the sidewalk was busy with peop le at the t

ime, but tha

t he was the only person w ho picked up items fr

om the gr ound and l ooked insi de the pil lowcase s. The trial court stated that it “heard all of the evidenc e and mad

e certa indeterminations,” one of which was that the DVD play er and VCR would not have been left inside the apartment if the offender had had time to remove those items. The court stated that this evidence raised a n inference tha t the burg la r made a hasty exit, which it considered together with the fact that defenda nt wasNo. 1-05-1643

8

standing nearby

with a pillowcase containing proceeds fr om the burglary
. The court again noted that it found defendant’s testimony incredible and that his explanation did not make any sense, and denied his posttrial motion. Onappeal, defen dant first co ntends that the State failed to prove him guilty beyond a
reasona ble doubt b ecause

it failed to show br

eaking and ente ring wit h the inte nt to commit

a theft therein. Defendant asserts that the trial court presumed that he committed the burglary

because he
was in possession of

some of th e items tha

t were st olen fro m the apa

rtment, but that mere possession of stolen goods , standing al one, is insufficient to establish guilt of burglary . Defendant further argues that there was no evidenc e to prove that he ever entered the r esidence. When a defendant challenges the suf ficiency of

the evide nce, t his court must determine whether a rational trier of fact, after viewing the evidence in the light most favorable to the State, could have found the elements of the offense prove n beyond a re asonable doubt. People v. Maggette , 195 I ll. 2d 336, 3 53 (2001) . This s tandard app lies whether the evidence was direct or circumst antial. A criminal conviction will not be reversed based on insufficient evidence unless the evidence is so improbable or unsatisfactory that there is reasonable doubt as to the defendant’s guilt. Maggette , 195 Ill. 2d at 353. To obtain a conviction for res identia l burglary , the State must prove that defendant knowing ly

entered the dwelling of another without authority and with an

intent to commit a theft or felony therein . 720 ILCS 5/1 9-3(a) (West 2002 ); Magge tte, 195 Ill. 2d at 353. Defendant’s possession of

recently stolen pr

operty, standing

alone, is not sufficient evidence to sustain a burglaryNo. 1-05-1643

9

conviction. People v. Housby , 84 Ill. 2d 415, 423 (1981). In People v. Housby , the Illinois Supreme Court reviewed the constitutionality of the presumption that an individual in possession of recently stolen pr operty is the one who c ommitted the burglary
. The Housbycourt concluded that a jury could presume guilt based on exclusive possession of

re ce nt ly s to le n p ro pe rt y only if three requirements were met: (1) there was a rational connection

between the defendant’s recent possession of stolen property and his participation in the burglary ; (2 ) the def

endant’ s guilt of

the burglary

“more lik

ely than not”

flowed f rom his re cent, unexplained

and exclus ive posse ssion of th e proce eds; and (3) there was corroborating evidence of the defendant’s guilt. Housby , 84 Ill. 2d at 424. The court in Housby stated: “To the extent that past Illinois decision s have held that exclusive and unexpla

ined posse ssi on of rece

ntly stolen pr operty is sufficie nt, s tanding

alone an d without c orrobor

ating e vidence of guil t , for conviction of burglary , those dec isio ns, in light of the United States Supreme Court holding in County Cour t [ v. A llen , 442 U.S. 140, 60 L. Ed. 2 d 777 , 99 S. Ct. 2213 (1979], can no longer be applied, even whe

re the in ferenc e is reg arded a s p ermissiv e. The presumption stand ing alo ne doe s not prove burgl ary bey ond a
reasona ble doubt. The person in e x clusive possession may be the burglar, to be sure, but

he might also be a r ec ei ve r o f s to le n p ro pe rt y, guilty of theft but not burglary , aninnocen t purchaser withoutNo. 1-05-1643

10 knowl edge that the item is stolen, or even an innocent vict im of circumstances.” Housby , 84 Ill. 2d at 423. Without deciding that the three-part Housby test applies in the case at bar, we note that the test is not met in this instance. Although the facts a nd surrou nding c ircumsta

nces in th is case c ould support a finding by

the trier of fact that there was a ra tional connection between defendant’s rec ent possession of stolen property a nd his participation in the burglary based on evidence that

defendant
was found with

some items

stolen in the burglary

20 feet from

the apartment building where Fuentes resided, the evidence does not support a finding that defenda nt’s guilt of the burgla

ry “more lik

ely thannot” flowed from his recent, unexplained and exclusive possession of the proceeds. Nor is there support f or a find ing that there wa s corrob orating

evidenc e of def

endant’ s guilt. In its ruling the trial court stated: “The State has posited that the defendant’s possession of these items is unexplained; and under People v. Curtis , unexplained possession
can be suffi cient fo r proof b eyond a rea sonable d oubt; and, therefore, support a finding of guilt. *** And the Court is a sked to determine whether this is proo f bey

ond a rea sonable

doubt. The

most powerful evidence here obviously is the possession of the prope r ty of the defendant without any

explanation. To this Court, it is unexplained possession. I think it i s a close c

ase. But it

is unexplai ned possession. The case

law supports

a conviction . ” (Empha sis added.)No. 1-05-1643

11

The trial court ’s decision shows that the judge inferred the burg lary mere ly from the defenda nt’s possession of the stolen property a nd ignored the admonition of Housbyt hat unexplaine d possession, standing

alone, is not suffic ient to co nvict. I n its decis ion the tri al court did not disc

uss the three requirements set forth in Housby for a court to presume guilt based on t he exclusive possession of recently

stolen property. Other than defendant’s possession of the property, the re was no corroborating evidenc e of defendant’s gui lt . In fact, quite to the contrary , fingerprint samples that were taken at the scene did notmatch defendant’s. This is evidence that supports the position that defendant was n ot the bur g lar. Although the trial court found incredible defenda nt’s testimony that someone else had merely dropped the items on the stre et, or left th em in a pillowcase, that testimony and the fact that defendant had possession of items taken in the burglary cannot support a guilty ve

rdict of burglary beyond a re asonable doubt without some corroborating evidence. Fuentes testified that

he had not locked the deadbolt of his front door, but when he returned home, it was loc ked. I

n addition , his VCR an

d DVD pla

ye r had bee n disconne cted fr

om his television and moved to the dining room table, near the open patio door. Fuentes also testified that the re were stairs on the patio that led down to the ground. Fr om this evidence, the trial court concluded

that the burglar made a hasty

exit from the apartment, quite possibly as he heard Fuentes unlocking the deadbolt , and woul d have ta ken the V CR

and DVD player if he had had time to grab those items on his way

out. The court explicitly stated that it con sidered

this evide

nce of th e hasty exit togethe r with the fact tha t defend ant was f ound immed

iately thereafter

standing nearby

with aNo. 1-05-1643

12

pi ll ow ca se co nt ai ni ng pr oc ee ds fr om th e b ur gl ar y. Howe ver, when tha

t evidenc e is consi dered with the evidence t hat the f ingerprints did no t match those of

defenda nt, there is no corr

oboratin g evide nce to support a finding that defendant’s possession of the stolen property was sufficie

nt to convi ct defe

ndant bey ond a rea sonable d

oubt. It is not incredible that the property left behind, which was of minimal value, was left by someone e lse who burg larized Fuentes’ apartme nt. T he State contends that our supreme court in People v. Houston , 118 Ill. 2d 194 (1987), stated that the Housby

te st on ly a pp li es in ju ry c ases, an d it notes that the case at bar was a bench trial. This court finds that, regardless of the nature of the trier of fact (whether judg e or jury), it is improper to presum e that a defendant committed burglary merely bec ause he was in possession of stolen property take

n from a burglary . See County Court v. Allen , 442 U.S. 140, 156, 60 L. Ed. 2d 777, 791, 99 S. Ct. 2213, 2224 (1979) (a pr esum ption “must not undermine the factfinder’s responsi bility at trial, based on evidence adduced by the Stat e, to find the ultimate facts beyond a reasonable doubt”). Housby dealt with the formulation of a three-part

test for determining whether an instruction, whichadvised the jury in a bur glary cas e that the defe

ndant’s g uilt could b e infer

red fro m his exclusive and unexplained possession of rece ntly stolen pr operty, violate d the due p

rocessclause of the United Sta

tes Constitu

tion. Howe

ver, the same (or a similar) test can be used by any fac t finder to determine the ultimate facts bey ond a reasonable doubt. Regardless of which test or rationale a trial court uses to determine guilt or innocence, it must consist of more than the exclusive possessionNo. 1-05-1643

13

of the property

in close proximity to the burglary . See Housby , 84 Ill. 2d at 423. The question here is not whether defend a nt has bee n deprive d of due process, but simply whether the evidence was suff

icient to prove def

endant g uilty of burg lary

bey ond a rea sonable d

oubt. See People v. Richardson ,104 Ill. 2d 8, 13 (1984). The record shows that the evidence was insufficient to establish defendant’s guilt bey ond a
reasona ble doubt. The only evidence the trial court co uld ration ally consider in its decision-making process was the exclusive po ssession o f items of minimal value that were taken in the burglary and
were found in clos e proximi ty to the offense. A s previously indicated, such e vidence, standing alone, cannot support a guilty verdict of burglary

beyond a reasonable doubt. See Housby , 84 Ill. 2d at 423. Accordingly , we reverse defendant’s c onviction and sentence for residential burg lary. Defendant

next contends that the extraction of his blood and perpetual storing of his DNA profile pursuant to section

5-4-3 of the Code violates his fourth amendment right to be free from
unreasonablesearches and seizures. Under section 5-4-3, a person who is con

victed of “any offense classified as a felony

under Illinois law” (730 I LCS 5/5-4-3(a-5) (West 2002 )) is req uired to s ubmit blood specimens to the Illinois Department of State Police for g enetic analy sis. Because we revers e def

endant’s conviction, we also reverse the circ uit court’s order requiring defendant to submit blo od specim ens for g eneticanaly sis pursuant to section 5-4-3. People v . Orta , 361 Ill. App. 3d 342, 352 (2005). Reversed. CAHIL L and J. GORDON, JJ., concur.