{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD T. JOINTER, Defendant-Appellant",
  "name_abbreviation": "People v. Jointer",
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    "judges": [],
    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD T. JOINTER, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a bench trial, defendant was convicted of burglary (111. Rev. Stat. 1985, ch. 38, par. 19 \u2014 1) of a Conrail Corporation (Conrail) railroad freight car and was sentenced to four years\u2019 imprisonment. On appeal, defendant raises the following points in favor of reversal: evidence produced at trial was insufficient to prove beyond a reasonable doubt that defendant was accountable for the burglary of the railroad car; the trial court improperly denied defendant the right to elicit testimony regarding motive for his arrest; the trial court improperly relied on defendant\u2019s past criminal record in determining guilt; and defendant\u2019s right to a fair trial was denied because the court \u201cacted as an advocate for the State.\u201d\nFor reasons which follow, we affirm. We summarize below evidence pertinent to our disposition.\nPrior to presentation of witnesses, the parties stipulated that, if Donald Corp, a Conrail security officer, was called to testify, he would state that he did not give defendant permission to either enter any Conrail railroad car on October 11, 1986, or possess any of the boxes of merchandise inside any railroad car under the custody or control of Conrail on that date. Corp would further testify that, after being notified by police, he went to the Chicago police station at 22nd and Da-men Streets and identified, for Officer Linda Kennedy and another officer, 13 boxes and their contents as coming from a Conrail railroad car.\nThe record indicates that when the assistant State\u2019s Attorney began to enumerate specific contents, the trial judge interjected that Corp would testify with regard to \u201cthe document listed in the [State\u2019s] answer to discovery.\u201d Defendant\u2019s counsel so stipulated.\nWe note here that the State\u2019s \u201cAnswer to Discovery\u201d refers specifically to documents regarding evidence inventoried by the Chicago police department in conjunction with the charge against defendant. The inventory receipt related to defendant\u2019s arrest recited, as recovered items, \u201c1 case of Isotoner gloves, 2 cases [of] Aris gloves and socks, 2 cases [of] Orrefors crystal, 2 cases [of] Lancome purses, 4 cases [of] Lancome nylon briefs, and 1 case [of] Parisian table clothes.\u201d\nChicago police officer Linda Kennedy, the State\u2019s only witness, testified that, at approximately 1:41 p.m. on October 11, 1986, while she was on routine patrol in a squad car, she was notified by radio of a burglary in progress at Cermak Road and Christiana Street, approximately one block away from her then present location. Kennedy testified that, as she proceeded southbound on Christiana Street toward the railroad cars, she observed several people on the railroad tracks located on an embankment above street level. There were two individuals in an opened railroad car and as many as six individuals nearby. While still in the squad car, she observed an individual she identified as defendant reach into a railroad car and receive, from someone inside, a cardboard box. The record indicates she demonstrated for the court the manner in which defendant reached inside the railroad car to receive the cardboard box. She testified that her view of defendant was unobstructed and that she observed defendant from approximately 30 feet away. Kennedy testified that after receiving the cardboard box, defendant turned and came down the embankment. When he came through a hole in the fence at the bottom of the embankment, she placed him under arrest. Another officer aided Kennedy.\nKennedy further testified that she observed several cardboard boxes strewn about the tracks. Approximately 13 boxes were recovered and were taken to the police station. The box taken from defendant was put into the back of her squad car and was also taken to the police station. Kennedy stated she was present when Corp later identified the boxes.\nThe following exchange took place regarding the cardboard box defendant had in his possession when arrested:\n\u201cQ. [Assistant State\u2019s Attorney]: The box that you had recovered from [defendant], was that box open?\nA. [Kennedy]: Yes, sir.\nQ. [Assistant State\u2019s Attorney]: What if anything was found inside that box?\n[Defendant\u2019s Counsel]: We will stipulate to what was found.\nTHE COURT: The same stipulation that those items\u2014\n[Assistant State\u2019s Attorney]: Were taken from the Conrail boxcar as stipulated to by the Conrail officer as belonging to that particular boxcar.\n[Defendant\u2019s Counsel]: Yes, judge.\u201d\nOn cross-examination, Kennedy admitted that, as she proceeded to the scene, she focused her attention on individuals running from the railroad car. She also stated that she was accelerating in order to quickly arrive at the scene. She admitted that she did not question defendant after placing him under arrest nor did she recall what defendant was wearing at the time of arrest. Kennedy stated, however, that defendant was \u201cvery dirty\u201d and did not appear to be on his way to work. No other individuals were arrested because they escaped.\nOn redirect examination, Kennedy testified that she never lost sight of defendant from the time he left the location of the railroad car to the time he went to the hole in the fence.\nJackie Berry, the manager of a Kentucky Fried Chicken restaurant where defendant was employed, testified for the defense. Berry testified that on October 11, 1986, defendant was scheduled to begin work at 3 p.m. but was telephoned to come in earlier, at 1 p.m. Defendant did not show up for work.\nDefendant testified on his own behalf. Defendant testified that in 1975 and in 1978 or 1979 he was convicted of burglaries, serving prison sentences for the convictions. In connection with the second conviction, defendant also worked on work release and was paroled. He had no problems and was released for parole early. Soon after being released from prison, he found employment. In 1985 he began working at the Kentucky Fried Chicken restaurant.\nDefendant stated that, on the day in question, from approximately 12 to 12:15 p.m., he was sitting on the porch at his girlfriend\u2019s house at 2126 South Christiana Street, three houses north of the railroad tracks. Defendant stated that while he was sitting on the porch, he observed individuals on Christiana Street with boxes. That activity continued for about 20 minutes before the police arrived. He stated he left his girlfriend\u2019s house at 12:20 p.m. and began walking down Christiana Street on his way to work a few blocks away. His girlfriend\u2019s daughter was with him. He was wearing a Kentucky Fried Chicken uniform. He observed approximately 15 \u201ckids running around breaking into freights.\u201d Defendant stated that such a scene was common. He did not stop walking. Defendant testified the police arrived and he was arrested. The time was approximately 12:45 p.m.\nOn cross-examination, defendant admitted that in 1978 he was involved in not one, but two burglaries.\nThe 10-year-old daughter of defendant\u2019s girlfriend also testified. She testified that she was on the porch with defendant on October 11, 1985, and accompanied defendant when he left to walk to work. She saw \u201csome boys running down at the corner with boxes.\u201d She saw the defendant get stopped by the police right by the railroad tracks. She stated that she did not see defendant on the railroad tracks.\nOn cross-examination, she stated that Officer Kennedy did not have to walk any distance down the railroad tracks to get to the railroad car; it was directly up the embankment from the location of the hole in the fence. She stated that defendant had seen the activity around the railroad car while they were sitting on the porch. However, she testified she never saw defendant leave the porch and go over to the railroad car to get a box.\nOpinion\nWe consider, first, whether evidence adduced at trial was sufficient to prove defendant guilty of burglary beyond a reasonable doubt. We address, in turn, each of the arguments raised by defendant in support of that contention.\nDefendant argues that stipulations entered between the parties were ambiguous and did not establish that the cardboard box defendant had when arrested belonged to Conrail or that it was taken from the railroad car burglarized.\nWe are not persuaded by defendant\u2019s argument. First, defendant\u2019s arrest report refers directly to the document number of the inventory receipt filled out at the time of defendant\u2019s arrest. That corresponding receipt lists the specific items of merchandise recovered in connection with defendant\u2019s arrest; the same items the assistant State\u2019s Attorney began to enumerate in explaining the scope of Corp\u2019s stipulated testimony before the trial judge interjected reference to the State\u2019s \u201cAnswer to Discovery.\u201d Second, it is not disputed that defendant\u2019s counsel stipulated that Corp\u2019s testimony would include testimony pertaining to \u201cthe document listed in [the State\u2019s] Answer to Discovery.\u201d The State\u2019s \u201cAnswer to Discovery\u201d specifically refers to items inventoried in the course of defendant\u2019s arrest. Thus, contrary to defendant\u2019s assertions that the stipulations do not establish a connection between the items recovered and those in defendant\u2019s possession, the stipulations, when considered together, clearly indicated that the items recovered in conjunction with defendant\u2019s arrest were in the control or custody of Conrail.\nFurther, in focusing entirely on the stipulations and ignoring the testimony of Kennedy, defendant\u2019s argument fails to consider that the elements of an offense can be proven by inference from the evidence. (People v. Flowers (1977), 52 Ill. App. 3d 301, 367 N.E.2d 453.) Here, sufficient evidence exists in the record otherwise justifying an undeniable inference that the cardboard box defendant had when arrested belonged to Conrail and that defendant received that property during the commission of a burglary. Kennedy testified that she observed defendant receive, from someone inside the railroad car, the cardboard box defendant had in his hands when she arrested him. Kennedy further testified that that particular box, like the others, was taken to the police station where the boxes were identified by Corp as the property of Conrail.\nDefendant next contends that the State failed to prove defendant shared the intent of the burglars or that defendant\u2019s actions were in common with those of the burglars such as to support defendant\u2019s conviction on the basis of accountability. Defendant relies primarily on People v. Zierlion (1959), 16 Ill. 2d 217, 157 N.E.2d 72.\nIn Zierlion, four men entered an office of Martin Oil Service, Incorporated, and pushed a company safe out of a window. When it proved too heavy to move, the four men left to get assistance. Defendant was arrested when he returned with the four men in an automobile to retrieve the safe. The supreme court reversed defendant\u2019s subsequent conviction for burglary because the court determined there was no proof that defendant participated in any way in the original entry. By merely assisting the principals in moving the safe, the court reasoned, defendant became an accessory after the fact, an independent offense, but could not be found guilty of burglary based on accountability. Zierlion, 16 Ill. 2d at 218, 157 N.E.2d at 73.\nZierlion cannot control the disposition of the instant appeal. Unlike the circumstances of Zierlion, the record here contains testimony placing defendant at the scene and actively participating in a burglary in progress. Evidence further exists showing that defendant possessed merchandise from that burglary. The fact that there was no direct evidence to show that defendant participated in the actual break-in of the railroad car or formed the intention to rob the railroad car until after it had been broken into is irrelevant to the issue of whether defendant is legally accountable for the burglary. Under section 19 \u2014 1 of the Criminal Code of 1961, unauthorized entry into a railroad car with intent to commit theft constitutes burglary. (Ill. Rev. Stat. 1985, ch. 38, par. 19 \u2014 1.) The essential elements of that offense, entry with the requisite intent, are satisfied through legal accountability when an individual simply aids or abets another in the commission of the offense. (Ill. Rev. Stat. 1985, ch. 38, pars. 5 \u2014 1, 5\u2014 2.) In determining whether an individual aided or abetted a crime, the trier of fact may consider evidence that the individual was present at the scene and lent his approval. People v. Washington (1978), 63 Ill. App. 3d 1037, 380 N.E.2d 1010.\nIn the instant case, Kennedy\u2019s testimony did not merely place defendant at the scene of a burglary in progress. Her testimony established specifically that defendant reached into the open railroad car and received, from someone inside, a cardboard box. Kennedy testified that defendant carried the box away from the railroad car down the embankment. That testimony alone is sufficient to support defendant\u2019s conviction on the basis of legal accountability.\nDefendant also contends that Kennedy\u2019s testimony was not credible and was not sufficient to form the basis of a guilty verdict.\nIt is well settled that the testimony of a single -witness is sufficient to convict if that testimony is positive and the witness credible, even though the testimony is contradicted by the accused. (People v. Glover (1971), 49 Ill. 2d 78, 273 N.E.2d 367.) Further, issues respecting credibility of witnesses are properly relegated to the finder of fact, in this case the trial judge, not a reviewing court, because, as the supreme court has recently observed:\n\u201c[The trier of fact] can observe [witnesses\u2019] personalities, their abilities to perceive, their levels of cognition, their attitudes, nonverbal communications such as body English, their levels of recall, and their abilities to communicate verbally. The reviewing court must glean these facts from the \u2018cold record.\u2019 \u201d People v. Hendricks (Ill. S. Ct. No. 63803, November 1988), citing Hartman, Judges May Differ: Another Look at Judicial Decision Making, 76 Ill. B.J. 540, 541 (1988).\nWe find no merit in defendant\u2019s contentions that the testimony of Kennedy did not provide a sufficient basis to convict defendant. As stated above, Kennedy\u2019s testimony positively established defendant\u2019s activities with respect to the open railroad car. We are satisfied that the trial judge, having had firsthand opportunity to hear and observe Kennedy testify, determined that testimony credible enough to support a conviction. We find no basis to conclude otherwise.\nDefendant also contends that the trial judge improperly considered defendant\u2019s past criminal record in determining defendant\u2019s guilt. In arguing that point, defendant\u2019s opening brief draws the court\u2019s attention to the following comment:\n\u201cI [the trial judge] see someone with a prior criminal record deciding that he *** is [sic] going to get something free *** entered on the premises and [was] handed the boxes [sic] down from the car and proceeded to walk away with it when he was arrested.\u201d\nOur review of the record, however, reveals that the quoted passage is from the transcript of the hearing held June 19, 1987, in which the trial judge ruled on defendant\u2019s post-trial motions and conducted a presentence investigation. The above comment was made immediately prior to imposition of defendant\u2019s sentence. When defendant was found guilty at the trial\u2019s conclusion on May 15, 1987, no such reliance on defendant\u2019s prior criminal record was made.\nFinally, we decline to consider the defendant\u2019s contentions that he was denied a fair trial because the trial judge acted as an \u201cadvocate for the State\u201d and that he was prejudiced by the court\u2019s refusal to permit cross-examination of Kennedy regarding motive for defendant\u2019s arrest as we conclude defendant waived the opportunity to raise either issue on appeal. Although defendant filed a motion for a new trial following his conviction for burglary, that motion fails to state with specificity the reasons now urged as having denied defendant the right to a fair trial or as having caused prejudicial error. As we have observed, conclusory allegations contained in written post-trial motions are insufficient to preserve specific issues for consideration on review absent application of the limited \u201cplain error\u201d exception. (People v. Thomas (1984), 121 Ill. App. 3d 883, 460 N.E.2d 402.) After carefully reviewing the record, we are not convinced that the evidence was so closely balanced or the errors so prejudicial as to invoke that exception. We therefore affirm the judgment of the circuit court.\nAffirmed.\nMURRAY, P.J., and PINCHAM, J., concur.",
        "type": "majority",
        "author": "JUSTICE LORENZ"
      }
    ],
    "attorneys": [
      "Jonathan Minkus, of Jonathan Minkus & Associates, of Chicago, for appellant.",
      "Richard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Andrea K. Muchin, Douglas J. Bank, and Andrew LeFevour, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GERALD T. JOINTER, Defendant-Appellant.\nFirst District (5th Division)\nNos. 1\u201487\u20142084, 1\u2014 87\u20142283 cons.\nOpinion filed March 3, 1989.\nJonathan Minkus, of Jonathan Minkus & Associates, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Inge Fryklund, Andrea K. Muchin, Douglas J. Bank, and Andrew LeFevour, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0364-01",
  "first_page_order": 386,
  "last_page_order": 393
}