{
  "id": 2786116,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Cortez, Defendant-Appellant",
  "name_abbreviation": "People v. Cortez",
  "decision_date": "1975-02-25",
  "docket_number": "No. 60004",
  "first_page": "829",
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  "last_updated": "2023-07-14T18:35:11.694582+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Cortez, Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. JUSTICE HAYES\ndelivered the opinion of the court:\nThe defendant, Anthony Cortez, was convicted following a bench trial held on October 26, 1973, of the theft, on October 13, 1973, of a man\u2019s leather jacket, the property of Sears Roebuck and Company, in violation of section 16 \u2014 1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 16 \u2014 1(a) (1)), and admitted to 2 years\u2019 probation. The only issue on appeal is whether the State\u2019s evidence proves the defendant was guilty of theft beyond a reasonable doubt.\nWalter Biddle, a security agent for Sears Roebuck and Company at their employees\u2019 store at 5555 South Archer Avenue in Chicago, testified that, at about 3:30 in the afternoon, he observed the defendant enter the store wearing a short jacket he described as \u201cthe wet look.\u201d For about 20 or 25 minutes, he observed the defendant. The defendant was trying on \u201cthese big survival jackets\u201d; he \u201ckept looking at himself in the mirror and the defendant kept walking around.\u201d The defendant \u201ckept walking around\u201d and was passing the checkout cashiers \u201con his way out\u201d when he stopped the defendant. The defendant was wearing a heavy brown jacket with a fleece lining and was still inside the store about 3 feet from the door. It was' \u201ckind of shirt-sleeve weather\u201d and he did not see any other people in the store with heavy jackets on such as the one the defendant was wearing. The price tag was hanging off the sleeve. The exit near where he stopped the defendant was the only exit from the store. He took the defendant to the office and called the city police. A short time later a person named \u201cMickey\u201d came looking for the defendant and was raising \u201ca little hassle\u201d because the sergeant had given the defendant a statement to sign and Mickey said they were violating the defendant\u2019s constitutional rights. Under cross-examination by defendant\u2019s counsel, Biddle said he didn\u2019t remember if Mickey told him he had been shopping with the defendant and, when asked if Mickey had said he had the money to pay for the coat, he answered that Mickey had told him that outside the 8th District station. Asked if defendant had not, when stopped, said he was looking for Mickey, he answered: \u201cNo. He started telling me \u2014 he said, leave me out of here. There is a child involved or something involved and they [sic] said, they will find him if he is here.\u201d Defendant\u2019s counsel then asked, \u201cThen, the defendant didn\u2019t tell you he was looking for Mickey at the time to ask him for the money to pay for the coat?\u201d and Biddle answered: \u201cI wouldn\u2019t know who he was looking for because I didn\u2019t know who he was looking for, as the name is Mickey until I came out of the 8th District Station.\u201d\nThe defendant testified he went shopping with his friend, Mickey Santiago, but they separated, \u2018like fifteen feet after we walked in.\u201d Mickey went to buy some work clothes. He \u201cjust wanted to look around the store to see what they had,\u201d and explained: \u201cI walked to the coats and browsed around. I seen the coat I like there and it was for \u2014 on sale for $18 or $19 and it was a $40 coat and I didn\u2019t have money on me to pay for it and I was walking around the store to look \u2014 looking for my friend and he had tire money on him and I ask him if he would lend it to me.\u201d He was about 20 feet from the door when Biddle stopped him. He was wearing the coat, and there were tags on it identifying Sears Roebuck. Biddle took him into the security office and he was asking what he was being arrested for when he was still in the store and nobody would answer him and so he \"got pretty mad about it\u201d and \u201cstarted kicking things around.\u201d Mickey showed up about 15 or 20 minutes later. He explained: \u201cThey had given me a statement and it says to sign it and I say, what would happen if I sign it; would you let me go for that. And they still wouldn\u2019t talk to me and Mickey come in and says, \u201cWhat are you doing?\u2019 And I said, \u2018This guy wants me to sign a statement\u2019, and he says, \u2018You don\u2019t have to sign nothin\u2019 like that\u2019 and I didn\u2019t intend on doing and they threw him out.\u201d Under cross-examination by the State, when asked if he had any money, he said he did not have enough for the coat. He had known Santiago about 15 years. When questioned further if Santiago was \u201cin the habit of paying\u201d the defendant\u2019s bills, he answered, \u201cIf I am short, I guess he would.\u201d\nMickey Santiago testified that he was with the defendant at the Sears store; he went there looking for work clothes, primarily a Levi jacket. He became separated from the defendant since the defendant \u201cwasn\u2019t interested\u201d in looking for work clothes and went, instead, to look for a different jacket. When asked when he next saw the defendant, he explained: \u201cIn the office there. I went outside. I looked through the store for him and couldn\u2019t find him and I stepped outside and couldn\u2019t find him. As I stepped back into the store, the security agent (who was in uniform) was following me, right behind me and I figured that they must \u2014 something must have happened and I went into the office and seen Tony inside the office there.\u201d He didn\u2019t remember all of the conversation with Biddle but he did remember telling the defendant not to sign anything and that \u201cthey just shoved\u201d him \u201coutside of the office.\u201d\nIn making a finding of guilty, the court stated: \u201cI don\u2019t believe the testimony regarding the \u2014 his friend, Mickey; that his friend, Mickey, was in the store \u2014 anywhere in the store.\u201d\nThe defendant contends he was not proven guilty beyond a reasonable doubt, because he neither left the store without paying nor concealed the merchandise. The State, he contends, failed to prove either that he exerted unauthorized control or that he intended to permanently deprive Sears of the property in question.\nAs to unauthorized control, the State\u2019s evidence showed that the defendant had already passed the cashiers and was only 2 or 3 feet from the exit, apparently on his way out, when stopped by the security \u00e1gent. There is no legal requirement for a theft conviction that the merchandise actually be taken from the store premises since the defendant here had the store merchandise in his possession and had passed the checkout counter; he thus passed up the usual opportunity to pay for the merchandise; this was sufficient to show unauthorized control.\nWhether, under the circumstances, this conduct established criminal intent is a different problem. Absent an admission by a defendant, intent must ordinarily be shown by circumstantial evidence. In cases involving an alleged shoplifter arrested inside a store, the usual circumstance supporting the inference of a criminal intent is concealment or attempted concealment, as defendant points out. In the case at bar, however, there is no evidence of any attempt by the defendant to conceal the coat. The tags were still on it, hanging off the sleeve in plain view. The heavy coat was itself conspicuous; it was unusual dress, given the warm weather, .and Biddle testified that nobody else in the store was wearing a heavy winter jacket or he would surely have noticed. There are circumstances under which wearing an object out in the open, for example, a piece of jewelry, would be a clever method of concealment, but such is not the case here.\nWhere the evidence is circumstantial, proof beyond a reasonable doubt requires the exclusion of every reasonable hypothesis based on the evidence which is consistent with innocence, and the Illinois Supreme Court has stated: \u201cDue deference to the trial judge\u2019s appraisal of. the witnesses\u2019 credibility does not excuse this court from its duty to examine the evidence to determine whether guilt has been established beyond a reasonable doubt.\u201d People v. Butler (1963), 28 Ill.2d 88, 91, 190 N.E.2d 800.\nCriminal intent must almost always be proved by circumstantial evidence. The relevant circumstances in the instant case, drawn from the testimony of the State\u2019s only witness, were that defendant, wearing the jacket, walked around the store for 20 to 25 minutes; he then walked past the checkers without paying for the jacket; he also walked toward the exit door and was within 3 feet of the door when he was stopped inside the store by the witness; and at the time he admittedly did not have enough money to pay for the jacket.\nOn the other hand, State\u2019s witness himself supplied additional circumstances which are inconsistent with the required criminal intent: It was \u201cshirt sleeve\u201d weather and no one else in the store had on a heavy jacket; the store\u2019s price tag was hanging from the sleeve of the jacket in plain view; defendant had been walking around the store wearing the heavy jacket with the visible price tag dangling from the sleeve for 20 to 25 minutes, thereby making himself most conspicuous.\nIn his testimony, defendant not only denied any criminal intent but supplied an explanation which innocently accounted for all the circumstances testified to by the State\u2019s witness. Defendant\u2019s explanation was then substantially corroborated by the other defense witness.\nThe State offered no additional circumstances to contradict defendant\u2019s innocent explanation of all the circumstances which the State had introduced into evidence. Nor did the State offer any alternative explanation which was incriminating.\nSo far as the evidence shows, defendant exhibited none of the characteristics which one would expect a guilty person to exhibit. He did not attempt to escape or to conceal the merchandise, and he immediately attempted to explain the situation to Biddle. While Biddle attempted to hedge his testimony as to whether defendant, when stopped, said he was looking for Mickey Santiago to get the money to pay for the coat, Biddle\u2019s testimony nevertheless was that the defendant had immediately said that he was looking for someone. Although Biddle did not know Mickey as Mickey Santiago until later, he apparently understood that the man who came to the office in the store a few minutes later was the friend of whom the defendant had spoken.\nTo summarize: The defendant\u2019s innocent explanation accounted for all the circumstances in evidence, including the potentially incriminating circumstances; the explanation was uncontradicted by evidence of circumstances for which it failed to account; the explanation was substantially corroborated; far from being inherently improbable, the explanation was highly persuasive; and defendant\u2019s credibility was not otherwise impeached.\nUnder such circumstances, defendant\u2019s explanation constituted a reasonable hypothesis of innocence which cannot be eliminated simply by the trial court\u2019s conclusion that the defendant was incredible.\nIt is no answer to say, as the State does in its brief, that the trial judge determines the credibility of the witnesses and that he \u201crejected the defendant\u2019s claim of innocence,\u201d or that the court said it did not believe Santiago was ever in the store. Evidence given in court under oath may not be simply disregarded where it is neither contradicted nor impeached nor inherently improbable. People v. Jordan (1954), 4 Ill.2d 155, 163, 122 N.E.2d 209.\nSince the evidence did not establish the defendant\u2019s guilt beyond a reasonable doubt, the judgment of the circuit court of Cook County is reversed.\nReversed.\nDOWNING, P. J., and LEIGHTON, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE HAYES"
      }
    ],
    "attorneys": [
      "James J. Doherty, Public Defender, of Chicago (Frederick F. Cohn and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Scott W. Petersen, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Cortez, Defendant-Appellant.\n(No. 60004;\nFirst District (2nd Division)\nFebruary 25, 1975.\nJames J. Doherty, Public Defender, of Chicago (Frederick F. Cohn and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Scott W. Petersen, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0829-01",
  "first_page_order": 855,
  "last_page_order": 860
}