20 2 1 IL App (1st) 1 90494

- U No. 1 -19-0494 Order f iled April 2 , 20 21 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT

______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff

- Appellee ,

v.
JAMES LEWIS , Defendant -Appellant. ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County

. No. 1 7 CR 15527
Honorable Char les P. Burns , Judge, presiding.

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment. O RDER ¶ 1 Held : We affirm defendant’s conviction for burglary over his contentions that the evidence presented was insufficient to prove his guil t beyond a reasonable doubt and that his sentenc e was excessive

. ¶ 2 Follo wing a jury trial, d efendant James Lewis was found guilty of burglary (720 ILCS 5/19- 1(a) (West 2016)) and sen tenced , based on his background as a Class

- X offender , to nine
years and six months’ imprisonment

. On appeal, he contends that the State’s evidence was insufficient to sustain his conviction because the Sta te did not prove beyond a reasonable doubtNo. 1 -19-0494

- 2 - that he had the requisite intent

. He also asserts that his sentence was excessive because it was disproportionate to the seriousness of the offense

. For the following reasons, we affirm. ¶ 3 Defendant was charged by indictment with a single count of burglary. Specifically, the indictment alleged that on October 3, 2017 defendant entered a garage belonging to Arturo Gomez with the intent to commit a theft ther ein

. ¶ 4 At defendant’s trial, Gomez te stified that he lived in the 2200 block of West Erie in Chicago. He owned a detached “two and a half ” car garage that opened onto an alley. He used the
garage to store equipment, tools , and other proper ty

. On the morning of October 3, 2017, he left the gar age door open when he left for work at around 8 a.m

. Approximately 15 minutes later, he received a call from his wife. He immediately returned and “found my garage open

. ” He looked insi de the garage and noticed that a seven -foot ladder , a folding chair and a small toolbox were missing. Gomez ackn owledged that he forgot to close the garage door when he left that morning.
He denied that he ever met def endant or gave him permiss ion to enter the garage. ¶ 5 Robert Larocco tes tified that he lived on the 22 00 block of West Ohio Street. On the morning of October 3, 2017 , he w e nt into the alley to throw out garbage and noticed a car that was not familiar to him. He saw a man, whom he identified in court as defendant, “stepp [ing] out of a garage with a ladder an d toolbox and a chair.” Larocco testified that d efendant “was coming out of the neighbor’s garage” and moving toward a car that was stopped in the alley. Larocc o asked defendant if he li ved ther e, and defendant told him that he did

. Larocco testified he knew that defendant “wasn’t the guy that lived there.” Lar occ o took out his cell phone and “ sta r ted taking pictures ” of defendant , who p laced the ladder, chair and too l box in the trunk of the car and t h en drove away. Lar occ o then “went through the garage and knocked on [the] back door ” and “Ms.No. 1 -19-0494

- 3 - Garcia” answered

. 1 Larocco told her wh at he had seen and sent her the p hotographs he had taken with his phone. ¶ 6 On October 8, 2017 , Larocco spoke with detectives. After he read a photo lineup advisory form, he identified defendant in a photo array. The advisory form and photo array were admitted as People’s Group Exhibit 3, which was published to the jury. ¶ 7 Larocc o identified People’s Exhibit 1 as a photograph he took of defendant getting into a car, in which the front license plate of the car is visible. He identified People’s Exhib it 2 as a

s econd photograph he took of defendant in the alley. People’s Exhibits 1 and 2 were admitted and published to the jury. ¶ 8 On cross

- examination, Larocc o testified that he saw defenda nt carr ying the ladder, chair and toolbox toward the vehicle but did not see the items being place d in the car

. When Lar oc co “turn [ed] around to snap pictu res , ” h e saw the items were in the car. He further acknowledged that
h e did not see defendant inside the garage. ¶ 9 Chicago police officer Ruben Romero testified that on October 8, 2017, he was ass igned to locate a vehicle inv olved in a burglary. He entere d a license plate number into a database that indicat ed a “hit” for th e license plate number at a certain location. Romero proceed ed to th e location and found the vehicle . A short time later, d efendant entered the vehicle and was arrested

. ¶ 10 Officer Ruben Ramirez testified that he was present when police inte rviewed defendant on October 8, 2017. Accor ding to Ramirez, def endant told police th at he “wanted to tell the truth , ” admitted he had a “drink ing pro blem , ” and gave d etails about the burglary. Defendant was shown

1 The first name of “Ms. Garcia” is not identified.No. 1 -19-0494

- 4 - photographs from the date of the incident a nd “identified himself in the photographs as well as the vehicle belonging to him.” ¶ 11 Defendant elected not to testify, and the defense did not present any evidence. Following closing argument s, the jury found defendant guilty of burglary. Defendant’s motion for a new trial was denied. ¶ 12 Defen dant’s presentence investi gative report (PSI) reflected that he was born in 1968 and , since 1996, had nine prior felony convictions, including five burglary conv ictions and one residential burglary convic tion. His most recent felony conviction was in 2016 for “ aggravated battery /use deadly weapon” for which he was sentenced to five years’ imprisonment. The PSI also reflected two pending cases , one in which defendant was charged with burglary and criminal d amage to property (case 17 CR 1552601) and a second case in which he was charged with burglary (17 CR 1552801). ¶ 13 At defendant’s sentencing hearing, the State noted that hi s criminal history made him subject to mandatory Class X sentenc ing. In aggravation, the State emphasized d efendant’s nine prior felonies. The State also pointed out that both of defendant’s pending cases involved him backing his vehicle into a garage door and then attempting to lift the door. The State emphasized that both of those incidents occurred in early October 2017, within a week of the burglary in this

case . The State requested the maximum sentence based on defendant’s “ lengthy history of criminal activity.” ¶ 14 In mitigation, defense counsel noted that defendant had wor ked in a factory and had completed a number of programs while in custody, including job training. Counsel stated that defendant was working to address “addiction issues ,” and that he had supportive friends and famil y . With respect to the two pending cases, counsel noted th e lack of allegations that defendantNo. 1 -19-0494

- 5 - actually entered the garages. Arguing that defendant had been making “good [use] of his time” in custody , d efense counsel asked that the court impose the minimum sentence of six years’ impr isonment. ¶ 15 In allocution, defendant stated that he was “truly sorry for what I did ,” that he wanted to “take responsibility , ” and that it will “never happen again.” ¶ 16 In imposing sentence, the court noted that defendant had been “respectful” in court and found that he was sincerely remorseful

. The court told defendant that it “t[ook] into consideration th e fact that you are accepting respo nsibility ” and stated its belief that defendant had rehabilitative potential. However, the court also emphasized his criminal history, remark ing that “it seem s like you pick up case after case

. ” The court pointed out that the October 3, 2017 burglary of Gomez’
garage occurred only one week after defendant had been released on parole for his aggravated battery conviction, and remarked that “ [i] t does appear that this is your lifestyle.” T he court sentenced defendant to nine years and six months’ imprisonment. Defendant’s motion to reconsider sentence was denied. ¶ 17 On appeal, def endant first contends that the State failed to prove his guilt beyond a reasonable doubt

. ¶ 18 “When reviewing a challenge to the sufficiency of the evidence, this court considers whether, viewing the evidence in the light most favorable to the State, any rational trier of fact

co uld have found the essential elements of the crime beyond a reasonable doubt.” (Emphasis in original; internal quotation marks omitted.) People v. Wheeler , 226 Ill. 2d 92, 114 (2007). The reviewing court “must allow all reasonable inferences from the reco rd in favor of the prosecution.” People v. Cunningham , 212 Ill. 2d 274, 280 (2004). The trier of fact “is not required to disregard inferences that flow from the evidence, nor is it required to search out all possible explanationsNo. 1 -19-0494

- 6 - consistent with innocence and raise them to a level of reasonable doubt.” (Internal quotation marks omitted.) People v. Peoples , 2015 IL App (1st) 121717, ¶ 63. ¶ 19 “The reviewing court will not retry the defendant or substitute its judgment for that of the trier of fact on questions involving the weight of the evidence, conflicts in the testimony, or the credibility of witnesses. [Citation.]” People v. Corral , 2019 IL App (1st) 171501, ¶ 71. “Only where the evidence is so improbable or unsatisfactory as to create reasonable doubt of t he defendant’s guilt will a conviction be set aside. [Citation.]” Id. ¶ 72. ¶ 20 In this case, to prove defendant guilty of burglary, the State had to p r ove that he , without authority, “knowingly enter [ed] ” Gomez’s garage “ with i nt ent to com mit ther ein a felo ny or t heft .” 720 ILCS 5/19

- 1(a) (West 2016)

. ¶ 21 In this court, defendant does not d ispute that he took items from the garage

. Rather , he
argues that the evidence was insufficient to establish that he entered the garage with the requisite intent to commit a theft therein. Defendant acknowledges that intent may be proved by circumstantial evidence , but he claims that the State improperly relied upon “conjecture and assumption” to prove intent. He argues that, even if he took items, that does not establi sh his intent to commit a theft before he entered the garage. He suggests there are “myriad reasons” why he may have entered the garage and that it is “just as likely that [he] formed an intent” to take the items once he was inside the garage. He maintains that the State failed to pre sent any evidence, direct or circumstantial, that would allow the jury to reasonably infer the requisite intent . On that basis, he asks that we reverse his conviction. ¶ 22 A conviction for burglary may be proved by circumstantial evidence as long as the elements of the crime have been proven beyond a reasonable doubt. People v. Smith , 2014 IL App (1st) 123094, ¶ 13. Circumstantial evidence is proof of facts and circumstan ces from wh ich theNo. 1 -19-0494

- 7 - t rier of fact may infer othe r connected fact s w hich rea sonably and usually follow accor ding to

common experience. Id. The requisite intent for burgla ry may be inferred from the facts in evidence, and “ it is the responsibility of the trier of fact to draw reasonabl e inferences from basic facts to ultimate facts. [Citation.]” Id. In determining whether an inference is reasonable, the trier of fact “ need not look for all possible explanations consistent with innocence. Id. In burglary cases,

“ [a] ssessing a person’s in tent at the time of entry is a task that is well within a trier of fact’s competency, even if intent must often be proven by circumstantial evidence. [Citations.]” People v. Johnson , 2019 IL 123318, ¶ 25 (discussing circumstantial evidence of intent to com mit theft from retail store). ¶ 23 After v iewing the evidence presented in the light most favorable to the State , we find that the jury could conclude that defendant entered the garage with the requisite intent to support his burglary conviction. ¶ 24 In reaching this conclusion, w e are guided by cases discussing the inference permitted to establish the analogous intent required to prove residential burglary

. See 720 ILCS 5/19- 3(a) (West 2018) ( a person commit s residential burg lary when he or she “knowingly and without authority enters * * * within the dwelling place of another, or any part thereof, with the intent to commit therein a felony or theft.”)

. Our court has reco gnized that a fact finder “may infer the offender’s intent to commit a residential burglary from proof that the offender unlawfully entered a building containing personal property that could be the subject of a larceny

. ” People v. Moreira , 378 Ill. App. 3d 120, 129 (2007 ) (quoting Matthew M. , 335 Ill. App. 3d 276, 282

- 83 (2002) ); see also People v. McKinney , 260 Ill. App. 3d 539, 544 (1994) (in discussing garage burglary, recognizing that “ ‘[i] n the absence of inconsistent circumstances, proof of unlawful entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that willNo. 1 -19-0494

- 8 - sustain a conviction of burglary

. ’ ” (quoting People v. Lo den , 27 I ll . App. 3d 761, 762 (1975)). “The inference is grounded in human experience which justifies the assumption that the unlawful entry was not purposeless, and in the absence of other proof, indicates theft as the most likely purpose.” Moreira , 378 Ill. App. 3d at 129. “Other relevant circumstances include the time, place, and manner of entry into the premises, the offender’s activity within the premise s , and any alte rnative explanations offered for the offender’s prese nce.” Id. (citing People v. Maggette , 195 Ill. 2d 336, 354 (2001)). ¶ 25 In this case, the circumstantial evidence permitted the jury to reasonab ly infer that defendant entered Gomez’ garage with the intent to commit a theft. Gomez testified that the garage opened up to an alley, and that he stored various items within the garage , including a seven -foot ladder, chair and toolbox

. On the morning of the incident, Gomez left the garage door open to the alley; from this testimony, the jury could infer that items within the garage could be seen by someone in the alley. Larocco testified that he saw defendant bringing these same items to a car in the alley. T he jury could reasonably infer that , from the all ey, defendant saw items in the open
garage and form ed an intent to commit a theft before he entered it . Moreover, Gomez’ s testimony that he never authorized defendant to enter the garage supported an inference that defe ndant’s “unlawful entry was not purpo seless, and in the absence of other proof, indicate[d] t heft as the most likely p urpose.” Moreira , 378 Ill. App. 3d at 129. ¶ 26 In his reply brief, defendant notes that the State did not speci fically argue to the jury the hypothesis that he was driving in the alley, saw the open garage and formed an opp ortunity to commit a th eft

. He asse r ts that be cause the State did not argue this “ drive- by theory ” to the jury, it has been “ waived ” on appeal

. We dis agree .No. 1 -19-0494

- 9 - ¶ 27 In reviewing the sufficiency of th e eviden ce , we are not constrained to limit our review to the particular evidence mentioned in the State’s arguments

. Rather, we review all of the evidence presented to the jury and ask whether the jury could reasonably conclude th at guilt was proven beyond a reasonable doubt

. Wheeler , 226 Ill. 2d at 117 -18 (“we must ask, after cons idering all of the e vidence in the li ght most fa vorable to the pro secution , w hether the re cor d evidence could reasonably support a finding of guilt beyond a reasonable doubt.”)

. Given the evidence presented, we have answered that question in the affirmative. ¶ 28 Defe ndant nevertheless suggests that, because there was no evidence that he broke into the
garage, the State cannot rely on Moreira or other cases permitting t he “ass umption that un lawful entry is not pur poseless , and in the absence of other proof, indicates theft as the most likely purpose.” 378 Ill. App. 3d at 129. He points out that case law recognizing this inference stems from our supreme court’s decision in People v. Johnson , 28 Ill. 2d 441 (1963), in which owners of

a tavern heard glass breaking and saw defendant enter through a broken door. In the course of affirming the defendant’s burglary conviction, o ur supreme court held : “in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a bu ilding which contains
person al pro perty that c ould be the sub ject of larce ny gives rise to an inference that will sust ain a

con viction of burglary.” (Emphasis added.) Id. at 443. ¶ 29 Def endant argues that our supreme court in Johnson referred to breaking and entering as

su pporting the inference of intent, but “did not opine that unlawful entry, which would include entry with or without for ce, was sufficient t o gi v e ris e to the inference.” In turn, he urges that there must be a forcible breaking and entering to justi fy an inference of an intent to commit a theft. He maintains that mere unlawful entry “does not generate the same inference.” He acknowledges that a number of decisions of our court have stated that “unlawful entry” gives rise to the inference ofNo. 1 -19-0494

- 10 - unlawful intent

. See , e.g ., Moreira , 378 Ill. App. 3d at 129; People v. Bogusze wski , 220 Ill. App. 3d 85, 88 (1991) ; People v. Collins , 53 Ill. App. 3d 114, 119 (1977). However, he argues that such decisions “unwittingly disregarded the limitation of the inference” derived from Johnson and are “missing language ” requiring a for cible breaking and entering to justify an inference of int ent to commit theft

. ¶ 30 Defendant es sentially suggests that because our supreme court in Johnson referred to “breaking and entry” as support ing an inference of intent to commit theft , th is inference m ay not be drawn from an unlawful entry without the use of force

. However, n othing in Johnson prohibits a jury from making that inference . We decline to disregard this court’s precedent that “unlawful entry into a building containing per sonal property tha t could be sub ject of larceny gives rise to an inference of inten t suffi cient to s ustain a bur glary convi ctio n,” in the abs ence of cir cumstances inconsistent with an inte nt to commit a theft. Boguszewski , 220 Ill. App. 3d at 88. 2 ¶ 31 In sum, v iewing the evidence in the light most favorable to State, the jury could reasonably infer that d efendant formed an intent to commit a theft before he entered the open garage . In other words, we cannot say the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. Corral , 2019 IL App (1st) 171501, ¶ 7 2

. ¶ 32 D efendant next contends that his sentence of nine years and six months’ imprisonment was an abuse of discretion because it was disproportionate to the ser iousness o f the offense. ¶ 33 “The Illinois Constitution requires a trial court to impose a sentence that achieves a balance between the seriousness of the offense and the defendant’s rehabilitative potential.” People v.
Knox , 2014 IL App (1st) 120349, ¶ 46. In doing so, the court must consider aggravating and

2 Notably, defendant does not identify any circumstances in the record of this case that are inconsi stent with an i n tent to commit a theft.No. 1 -19-0494

- 11 - mitigating factors including “the nature and circumstances of the crime, the defendant’s conduct in the commission of the crime, and the defendant’s personal history,” including criminal history. Id. ¶ 34 A reviewing co urt gives great deference to the trial court’s judgment regarding sentencing because the trial court has a far better opportunity to consider these factors than the reviewing

court. People v. Alexander , 239 Ill. 2d 205, 212

- 13 (2010). “[T]he reviewing cour t must not substitute its judgment for that of the trial court merely because it would have weighed these factors differently.” People v. Stacey , 193 Ill. 2d 203, 209 (2000). ¶ 35 The trial court’s discretion “is not without limitation,” as Supreme Court Rule 615(b)(4) grants the reviewing court the power to reduce the sentence imposed. Id. ; Ill. S. Ct. R. 615(b)(4). However, “[a] reviewing court may only reduce a sentence under Il linois Sup reme Court Rule 615 when the recor d shows that the trial court abused its discretion . [Citation.]” People v. Busse , 2016 IL App (1st) 142941, ¶ 20. ¶ 36 After reviewing the record, we conclude the trial court did not abuse its discretion when it

sen tenced defendant to nine years and six months’ imprisonment. Burglary of a building is a Class 2 felony , which ordinarily implicates a sentencing range of 3 to 7 years. 720 ILCS 5/19

- 1 (West 2018), 730 ILCS 5/5 -4.5- 35(a) (West 2018). However, because defen dant had two prior Class 2 or greater C lass felony convictions, he was sub je ct to manda tory sent encing as a Class

- X offender

. 730 ILCS 5/5 -4.5-95(b) (West 2018 ). In turn, the applicable sentencing range was 6 to 30 years’ imprisonment

. 730 ILCS 5/5 -4.5- 25 (West 2018)

. ¶ 37 Because defendant’s sentence of nine years and six months is within statutory guidelines, it is “presumed to be proper” and “will not be disturbed absent an affirmative showing that the sentence is at variance with the purpose and spirit of the law or is manifestly disproportionate toNo. 1 -19-0494

- 12 - the nature of the offense.” Knox , 2014 IL App ( 1st ) 120349, ¶ 46. Defendant has not made that showing. ¶ 38 In this court, defendant urges that his sentence was disproportio nate to the seriousness of the offense. He argues that he only took “three relatively insignificantly valued items” from an open garage, did not cause any damage , and did not threaten harm to any person. He also notes the trial court’s comments that he was respectful , remorseful , and had re habilitative potential. Under these cir cumstances , he claims the cour t abused its d iscretion by imp osing “a l most a decade of incarceration. ” He request s that this court reduce his sentence to the minimum of six years

. In support of this argument , defendant cites to other cases wher e a reviewing court reduced sentence s

as disprop ortio nate to the seri ousness of the offense. See Stacey , 193 Ill. 2d 203 (reducing consecutive 25

- year sentences for criminal sexual abuse and aggravated criminal sexual abuse for grabbing the breasts of two teenage rs ); People v. Allen , 2017 IL App (1st) 151540 ( reducing burglary sentence from 10 1⁄2 years to Class X minimum of six years where def e ndant took a hat and two packs of cigarettes from a vehicle ); Peo ple v. Busse , 2016 IL App ( 1st ) 142941 (reducing
12- year sentence to Class X minimum of six years where defendant stole $44 in coins from a vending machine ). ¶ 39 The cited cases do not persuade us to reduce the sentence for this particular defendant . We do not engage in comparative sentencing, as our supreme court has held that it “does not comport with our sentencing scheme’s goal of individualized sentencing and would unduly interfere with the sentencing discretion vested in our trial courts.” People v. Fern , 189 Ill. 2d 48, 55 (1999). Thus, “[t]he fact that a lesser sentence was imposed in another case has no bearing on whether the sentence in the case at hand is excessive on the facts of that case. ” (Emphasis in original.) Id. at 56.No. 1 -19-0494

- 13 - ¶ 40 In any event, we do not find defendant’s sentence was man i festly disp roportionate. Moreover, the trial court’s remarks reflect that, in imposing a sentence three and a half years above the minimum , it relied on defendant’s significant criminal history which spanned over two decades , includ ing seve ral burglary conv ictions as well as a conviction for aggravate d battery

. It was certainly wit hin the t rial court’s discretion to consider these factors and impose a sentence three years and six months above the statutorily required minimum. See People v. Evangelista , 393 Ill. App. 3d 395, 399 (2009) (defendant’s “criminal history alone” may warrant a sentence “substantially above ” the minimum). ¶ 41 We also note that t he trial court’s remarks reflect that it considere d various mitigating factor s before electing to impose a sentence that was at the lower end of the applicable Class X sentencing range

. In sum, we cannot say that th e sentence imposed was greatly at variance with the spirit and purpose of the law, or manifestly disproportionate to the nature of the offense.
Accor dingly, the sentence was not an abuse of discretion. ¶ 42 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County. ¶ 43 Affirmed.