{ "id": 2971167, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GILBERT HARBARUGH, Defendant-Appellant", "name_abbreviation": "People v. Harbarugh", "decision_date": "1976-07-06", "docket_number": "No. 61957", "first_page": "295", "last_page": "302", "citations": [ { "type": "official", "cite": "40 Ill. App. 3d 295" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "79 S. Ct. 239", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "3 L. Ed. 2d 234", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "358 U.S. 913", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3653633, 3653411, 3652815, 3651185, 3653428, 3649336 ], "opinion_index": 0, "case_paths": [ "/us/358/0913-01", "/us/358/0913-05", "/us/358/0913-06", "/us/358/0913-02", "/us/358/0913-03", "/us/358/0913-04" ] }, { "cite": "79 S. Ct. 102", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "3 L. Ed. 2d 101", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "358 U.S. 869", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3660649, 3662668, 3663470, 3652878, 3661906, 3656338, 3651320 ], "opinion_index": 0, "case_paths": [ "/us/358/0869-03", "/us/358/0869-04", "/us/358/0869-06", "/us/358/0869-02", "/us/358/0869-01", "/us/358/0869-05", "/us/358/0869-07" ] }, { "cite": "77 S. Ct. 1290", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "1 L. Ed. 2d 1145", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "353 U.S. 987", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6238017, 6239361, 6239972, 6239615, 6238376, 6237640, 6239017, 6238676, 6236822, 6237183 ], "opinion_index": 0, "case_paths": [ "/us/353/0987-04", "/us/353/0987-08", "/us/353/0987-10", "/us/353/0987-09", "/us/353/0987-05", "/us/353/0987-03", "/us/353/0987-07", "/us/353/0987-06", "/us/353/0987-01", "/us/353/0987-02" ] }, { "cite": "139 N.E.2d 212", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2723821 ], "opinion_index": 0, "case_paths": [ "/ill-2d/10/0095-01" ] }, { "cite": "397 U.S. 942", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12077440, 12077394, 12077208, 12077274, 12077115, 12077341 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/us/397/0942-06", "/us/397/0942-05", "/us/397/0942-02", "/us/397/0942-03", "/us/397/0942-01", "/us/397/0942-04" ] }, { "cite": "245 N.E.2d 769", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1956, "opinion_index": 0 }, { "cite": "42 Ill. 2d 115", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847612 ], "year": 1956, "opinion_index": 0, "case_paths": [ "/ill-2d/42/0115-01" ] }, { "cite": "221 N.E.2d 86", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 2d 29", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2577912 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/75/0029-01" ] }, { "cite": "347 N.E.2d 733", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "63 Ill. 2d 296", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5428466 ], "opinion_index": 0, "case_paths": [ "/ill-2d/63/0296-01" ] }, { "cite": "237 N.E.2d 453", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill. 2d 568", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2858743 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0568-01" ] }, { "cite": "89 S. Ct. 1771", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1968, "opinion_index": 0 }, { "cite": "23 L. Ed. 2d 237", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1968, "opinion_index": 0 }, { "cite": "395 U.S. 920", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771584, 1771860, 1771701, 1772186, 1771739 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/us/395/0920-01", "/us/395/0920-05", "/us/395/0920-02", "/us/395/0920-04", "/us/395/0920-03" ] }, { "cite": "244 N.E.2d 608", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851346 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0445-01" ] }, { "cite": "136 N.E.2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "9 Ill. 2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320071 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/9/0092-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] } ], "analysis": { "cardinality": 736, "char_count": 18184, "ocr_confidence": 0.883, "pagerank": { "raw": 2.1328831006450723e-07, "percentile": 0.7660913821616627 }, "sha256": "f5cea163108ee8621cc351bb92e68e9324a8f24d8467f3436d480bbb37aa28f5", "simhash": "1:a73c09393c92963b", "word_count": 3047 }, "last_updated": "2023-07-14T17:46:14.004939+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GILBERT HARBARUGH, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE O\u2019CONNOR\ndelivered the opinion of the court:\nDefendant, John Gilbert Harbarugh, was charged in a two-count indictment with theft in violation of section 16 \u2014 1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 16 \u2014 1). Specifically, the first count charged him with stealing from Linda Turnan a stereo set exceeding *150 in value. The second count charged defendant with the theft of a 1967 Ford automobile valued at more than *150 which was registered to Linda\u2019s mother, Anita Turnan.\nAfter a bench trial, defendant was acquitted on the first count, but convicted on the second. He was sentenced to the Illinois State Penitentiary for one to three years and taxed *97 costs pursuant to section 13 of division XIV of the Criminal Code of 1874 (Ill. Rev. Stat. 1973, ch. 38, par. 180 \u2014 3). Defendant appeals and raises four issues: (1) whether it was plain error for the court to admit testimony as to the names on the title of the automobile, where the document itself was not introduced into evidence; (2) whether the State failed to prove beyond a reasonable doubt that defendant knowingly exercised unauthorized control over the automobile alleged to have been stolen; (3) whether the trial court improperly restricted defense counsel\u2019s inquiry pertaining to past representations made by the State\u2019s witness, Linda Turnan, regarding the nature of her relationship with defendant; and (4) whether the Illinois cost statute (Ill. Rev. Stat. 1973, ch. 38, par. 180 \u2014 3) is void on its face and unconstitutional in its application.\nWe affirm the judgment of the trial court.\nAt trial, the State\u2019s witness, Linda Turnan, testified that she met defendant, John Gilbert Harbarugh, in October or November, 1972, when she was hitchhiking home to Skokie, Illinois, from the University of Oklahoma. Defendant picked her up in Springfield, Missouri, and drove her the remaining distance. Subsequently, she saw him again at Thanksgiving and later on several separate occasions. During this period she entrusted a 1967 Ford automobile to him so that he could fix its transmission. Although Linda Turnan was the primary user of the car, the title to this automobile was in her mother, Anita Turnan.\nLinda Turnan testified that on December 6, 1972, defendant came to her home at approximately 11 a.m. and told her he wanted to sell the automobile. She showed him the title and told him that he would have to wait until her mother returned. She never gave him permission to take the title. He left, but came back at 6 p.m. Since Linda Turnan was entertaining dinner guests at that time, he left again and returned at 11:30 p.m. At that time defendant announced that he was taking her stereo in order to complete a trade for a 1957 Chevrolet. She warned him that if he did, she would call the police. At that time he threatened to kill her and her parents if she reported him. He then took the stereo and left.\nSome time later Miss Tuman\u2019s mother, Anita Turnan, discovered that the title to the automobile was missing and that both the car and the stereo had been traded to Gilberto Moreno for a 1957 Chevrolet.\nLinda Turnan met with defendant on several occasions following this incident in an effort to secure the return of the automobile and her stereo set. These meetings included a three-day period during which Miss Turnan stayed with defendant\u2019s sister. During these meetings, defendant alternately promised and then refused to secure the return of the stereo set and the automobile. Neither the car nor the stereo equipment was returned by defendant. On December 27, 1972, both Linda Turnan and her mother signed separate complaints against defendant for the theft of the stereo set and the automobile. Defendant was subsequently arrested and the missing property was returned by the Evanston police, who recovered the car and the stereo set from Gilberto Moreno, an employee of a Mobil service station in Chicago.\nOn cross-examination, Miss Turnan testified that during her three-day stay with defendant\u2019s sister she talked on the phone with her parents and the police. She talked briefly about marrying defendant. When defense counsel asked her if she ever told her parents that she was in fact married to defendant, an objection by the State was sustained.\nLinda Tuman\u2019s mother, Anita Turnan, testified that the Ford automobile which defendant traded to Gilberto Moreno was registered in her name. She discovered that the tide to the automobile was missing on December 9 or 10. She did not give defendant the title to the car, did not sign it and did not consent to the sale of the car. When the car was returned by the police, Gilberto Moreno gave to Anita Turnan the title to the automobile which had been issued to him by the Secretary of State. Neither the original nor a copy of Anita Tuman\u2019s title to the car was offered in evidence at trial.\nGilberto Moreno described the agreement which defendant made with him to trade a 1967 Ford automobile and a stereo system for Moreno\u2019s 1957 Chevrolet. He testified that defendant told him the Ford belonged to his (defendant\u2019s) wife. When defendant gave him the title to the automobile, the same name appeared on the face and back of the title, but he could not recall whether the name was Linda Turnan or Anita Turnan. He did remember that he had testified before the grand jury that Anita Tuman\u2019s name was on the title. He further stated that he had not recovered his 1957 Chevrolet, which he valued at approximately *800. On cross-examination, he testified that he never saw a woman identified as defendant\u2019s wife in the company of the defendant, either at the time the agreement was made or at any other time.\nDaniel Mangas, a detective with the Evanston police department, was called by defendant as a witness. He stated that he had conducted an investigation after a stolen property report was filed with the Evanston police department by Mrs. Anita Turnan and Linda Turnan. By questioning defendant he was able to locate Linda Tuman\u2019s automobile and stereo equipment. He further stated that defendant told him he had traded the 1967 Ford and the stereo set to Gilberto Moreno and that defendant admitted signing the title to the 1967 F ord in order to transfer it to Moreno. Objection to a question whether Linda Turnan had ever told him she was married to defendant was sustained.\nLarry Carter, a friend of defendant, testified that Linda Turnan had helped carry the stereo from the basement of her parents\u2019 home to her car on the night that both were traded to Moreno for his 1957 Chevrolet. Both he and Linda Turnan were present during the entire transaction. When asked if he had ever heard Linda Turnan mention that she was going to marry defendant, an objection by the State was sustained.\nLarry\u2019s brother, Donald Carter, testified that he was with Linda Turnan and defendant when the trade with Moreno took place. On the night of the trade, defendant carried the stereo from the house by himself and Linda helped load the equipment into the car. He and defendant then drove the Ford to the Mobil station alone, followed by Linda Turnan in her father\u2019s Cadillac. He could recall two instances when Linda Turnan, defendant and Gilberto Moreno had been together.\nDefendant testified in his own behalf that during the course of his relationship with Linda Turnan they had discussed marriage and had undergone the necessary blood tests. Both Donald Carter and Linda Turnan were present when the automobiles were traded. Defendant could not recall whether Donald or Larry Carter had helped him pick up the stereo at Linda Tumans house. Defendant stated that he did not sign the title for the Tumans automobile. Linda Turnan had fully assented to the agreement which he made with Gilberto Moreno.\nIn rebuttal, the State called detective Mangas, who testified that on the day prior to the trial Larry Carter had told him that he didn\u2019t know where the stereo equipment was located in Linda Tumans house, because he had remained in the car while defendant and Linda Turnan had loaded it. In addition, the witness stated that at the time he arrested defendant on December 27,1972, defendant told him he signed the title to the Tinman\u2019s car prior to giving the title to Moreno.\nAlso called in rebuttal was Rose Peterson, who stated that she had dinner at Linda Tumans house on December 6,1972, and that defendant stopped by briefly and left without Linda. She testified that on a later occasion between December 6 and December 27 she went to defendant\u2019s mother\u2019s house and there saw defendant and Linda Turnan. She distinctly heard Linda tell defendant to return her stereo, although the conversation was generally unintelligible. Defendant\u2019s voice sounded angry and Linda Turnan was upset-The purpose of the visit had been to recover Linda Tumans property.\nDefendant contends that under the best evidence rule it was error to admit the testimony of Gilberto Moreno regarding the signatures appearing on the automobile title without introducing the title itself and that this was plain error of which, under Supreme Court Rule 615(a), this court should take cognizance despite the fact that no objection had been made below.\nThe testimony relied on as plain error is Moreno\u2019s statement that the name on the back of the title which defendant gave him \u201c \u00b0 \u00b0 \u00b0 matched with the front.\u201d Defendant argues that because defendant denied that he signed a name on the title, the introduction of Moreno\u2019s statement, rather than the introduction of the title itself, violated the best evidence rule and seriously prejudiced his credibility and defense that his trading of the car was authorized.\nIn order to be noticed as plain error, the action complained of must have affected substantial rights and the evidence must be closely balanced. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.) Our examination of the record shows that no substantial rights were affected and that defendant\u2019s guilt was clearly shown. Defendant\u2019s witness Officer Mangas, on cross-examination, testified that defendant stated to him that he (defendant) had signed the title, which was in the name of Anita Turnan, in order to hand the title to Moreno. This testimony in and of itself prejudiced defendant\u2019s credibility and strongly corroborated Moreno\u2019s testimony. Its admission did not constitute plain error. Consequently, any claim of error in its admission was waived by failure of defendant to object to it. (People v. Trefonas (1956), 9 Ill. 2d 92, 136 N.E.2d 817; People v. Ross (1968), 41 Ill. 2d 445, 244 N.E.2d 608, cert. denied, 395 U.S. 920, 23 L. Ed. 2d 237, 89 S. Ct. 1771. Further, even if it constituted error, it was harmless when viewed against the overwhelming evidence against defendant. In a bench trial, the court is presumed to have relied only on proper evidence in reaching its conclusion. People v. Pelegri (1968), 39 Ill. 2d 568, 237 N.E.2d 453.\nDefendant next argues that the State failed to prove beyond a reasonable doubt that he knowingly exercised unauthorized control over the automobile alleged to have been stolen. He contends that he reasonably believed his trade of Anita Tuman\u2019s 1967 Ford was authorized by Linda Turnan. To support this position, defendant relies upon his close relationship with Linda Turnan and the testimony of the Carter brothers.\nWhile proof of the close relationship between defendant and Linda Turnan certainly helps to explain the Tumans\u2019 delay in reporting the theft to the Evanston police, we fail to see how it necessarily supports defendant\u2019s position that it renders Linda Tuman\u2019s testimony incredible.\nShe stated that on December 6,1972, she showed defendant the title to the car, but specifically told him he could not sell it until her mother returned home. She never gave him permission to take the title. Several days later, Linda\u2019s mother discovered that the title was missing. It listed Anita Turnan, Linda\u2019s mother, as the owner of the automobile. According to Gilberto Moreno\u2019s testimony, defendant gave him the title at the same time he gave him the automobile. Further, Officer Mangas testified on rebuttal that at the time he arrested defendant on December 27, 1972, defendant told him that he signed the title to Anita Tuman\u2019s automobile before he gave it to Moreno.\nLinda Turnan testified that she never saw Moreno\u2019s Chevrolet before the trade was completed. Furthermore, she stated that she did not meet Gilberto Moreno until the grand jury proceedings.\nDefendant and Donald Carter directly contradicted these statements in their testimony by stating that Linda Turnan was present during the entire transaction. However, Gilberto Moreno testified that he never saw a woman identified as Mr. Harbarugh\u2019s wife at the time the deal was closed or at any other time. When Moreno was asked if he knew whether Linda Turnan was in the car with defendant at the time the original deal was made, he stated, \u201cNo, nobody was in the car, just him [defendant] and the other guy [presumably Larry or Donald Carter].\u201d This testimony contradicts defendant\u2019s statement that Linda Turnan accompanied him to the service station on the night of the trade. Further, it also directly contradicts defendant\u2019s testimony that Linda Turnan and Moreno talked at some length about the trade.\nThe testimony of Larry and Donald Carter is essentially inconsistent and is therefore of little evidentiary value. Larry Carter stated that he and defendant went to Linda Tuman\u2019s house on the night of her dinner party, where they picked up the title and a stereo which all three of them carried out to the car. From Linda\u2019s house he and defendant went directly to the service station to complete the trade with Gilberto Moreno. Donald Carter stated that he and defendant went to Linda\u2019s house to pick up a stereo, then with Linda following in another car the three of them went to the service station. Thus, each witness excluded the other as present at the exchange. Since, presumably, the purpose of the testimony of these witnesses was to establish Linda Tuman\u2019s presence at the trade, we find their inconsistency with respect to each other\u2019s presence significant. Further, we note that Larry Carter never testified that Linda accompanied him and defendant to the trade at the service station.\nDefendant\u2019s own testimony was not entirely consistent with either of these versions. First, he could not recall whether the trade took place the night of Linda Tuman\u2019s dinner party (December 6, 1972) or the next night. Larry Carter testified that the trade definitely took place during Linda\u2019s dinner party in the late afternoon of December 6,1972. According to defendant\u2019s testimony, Linda Turnan followed in her parents\u2019 car to the service station where the trade occurred. Rose Peterson, who was at the dinner party, testified that defendant came by to visit Linda Turnan for one-half hour. She stated that Linda did not leave the party with defendant. This is consistent with Linda\u2019s own testimony concerning the events of that night. She stated that defendant stopped by briefly, then left and returned later, after her party had ended.\nAlthough defendant has argued strenuously that Linda Tuman\u2019s testimony is incredible, we find the contrary to be true. Her testimony was strongly supported by Gilberto Moreno, who corroborated her statement that she was not present during any phase of the transaction. In addition, Anita Turnan, Linda\u2019s mother, unequivocally testified that the title to the car was in her name and that she did not give the title to defendant, sign it or consent to the sale of her car. Officer Mangas, when called by the State as a rebuttal witness, testified, without objection, that defendant acknowledged to him that he had signed the title prior to turning it over to Moreno.\nIn a bench trial, the credibility of witnesses is for the trial judge to determine and this court will not reverse unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of guilt. (People v. Akis (1976), 63 Ill. 2d 296, 347 N.E.2d 733.) The evidence here was sufficient for the trial court to find that defendant knowingly exercised unauthorized control over the 1967 Ford automobile. On the record here, we do not find that the trial court\u2019s determination was erroneous. Defendant was proved guilty beyond a reasonable doubt.\nDefendant next contends that the trial court improperly restricted defense counsel\u2019s inquiry as to the nature of defendant\u2019s relationship with Linda Turnan. This matter, however, is not before this court because it was not raised below by motion for a new trial. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Craig (1966), 75 Ill. App. 2d 29, 221 N.E.2d 86.) Nor does it constitute plain error. Therefore, any error was waived.\nFinally, defendant argues that the taxing of *97 costs against him was improper and should be vacated because the cost statute (Ill. Rev. Stat. 1973, ch. 38, par. 180 \u2014 3) is void on its face and unconstitutional in its application. This contention was not raised below: defendant made no motion to retax costs or to set aside the order taxing costs. Consequentiy, it cannot be raised for the first time on appeal. The question of the constitutionality of a statute is properly preserved for review only when it has been raised in and passed upon by the trial court. People v. Luckey (1969), 42 Ill. 2d 115, 245 N.E.2d 769, cert. denied, 397 U.S. 942; People v. Orr (1956), 10 Ill. 2d 95, 139 N.E.2d 212, cert. denied, 353 U.S. 987, 1 L. Ed. 2d 1145, 77 S. Ct. 1290, 358 U.S. 869, 3 L. Ed. 2d 101, 79 S. Ct. 102, reh. denied, 358 U.S. 913, 3 L. Ed. 2d 234, 79 S. Ct. 239.\nJudgment affirmed.\nBURKE and SIMON, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE O\u2019CONNOR" } ], "attorneys": [ "James R. Streicker and Victoria J. Meyers, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, David A. Novoselsky, and Patrick W. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GILBERT HARBARUGH, Defendant-Appellant.\nFirst District (1st Division)\nNo. 61957\nOpinion filed July 6, 1976.\nJames R. Streicker and Victoria J. Meyers, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, David A. Novoselsky, and Patrick W. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0295-01", "first_page_order": 323, "last_page_order": 330 }