People v. Lewis

JUSTICE COUSINS

delivered the opinion of the court:

Following a bench trial, defendant Anthony Lewis was found guilty of robbery and sentenced to six years in prison. On appeal, he contends that the State failed to prove his guilt beyond a reasonable doubt and that the trial court abused its sentencing discretion when it disregarded his expression of remorse. For the reasons that follow, we affirm.

The complaining witness, Dallas Pickett, testified that he was in a food and liquor store at 5415 South Ashland Avenue in Chicago shortly after midnight on October 26, 1994, when he noticed a man standing directly behind him in the lighted store vestibule. Pickett hurriedly placed his purchase in his shoulder bag, but when the teller laid Pickett’s $17 to $18 in change on the turnstile, the man reached around Pickett and placed his hand on the money. Pickett testified that he "grabbed [the man’s] hand which had the money in it” and tried to hold the man but some of the money fell to the floor. As the man broke away, Pickett grabbed his coat and pushed him. The man stooped down, causing Pickett to fall over him, and then fled. Pickett testified that the man escaped with $6 or $7 dollars. Pickett did not chase him, but returned to the store vestibule where he found a $10 bill on the floor. Pickett told the store teller about the incident but did not call the police.

Pickett testified that he got several good looks at his assailant. He saw the man again within a few hours but did not call the police. Sometime later he flagged down a police car, told the officers what had happened and gave them a description of his assailant’s clothing and physical features. Several weeks later, Pickett saw his assailant looking in the same store and followed him. The man fled when he saw Pickett. Pickett drove around the area with police but was unable to find the man. Chicago police officer John Murray testified that he stopped defendant a short time later and Pickett identified him. Pickett also identified him in court.

Defendant’s grandmother testified that defendant had been sick in bed the entire week when the incident occurred and did not leave the house.

Defendant first contends that the State’s evidence was insufficient to prove (1) that any money was taken, (2) that sufficient force was used to constitute a robbery or (3) that he was properly identified. A criminal conviction will not be set aside on review unless the evidence is so improbable or unsatisfactory that a reasonable doubt of defendant’s guilt remains. People v. Byron, 164 Ill. 2d 279, 299 (1995). Determinations of the credibility of witnesses, weight to be given their testimony, and reasonable inferences to be drawn from the evidence are responsibilities of the trier of fact. People v. Steidl, 142 Ill. 2d 204, 226 (1991). On review, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Nitz, 143 Ill. 2d 82, 95-96 (1991).

In Illinois, a person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force. 720 ILCS 5/18 — 1 (West 1994). An apposite case is People v. Bowel, 111 Ill. 2d 58 (1986). In Bowel, a woman was carrying her purse at her side, holding the purse at the zipper when the purse opened. The defendant walked towards her and took her left hand with his left hand and "touched” her fingertips as he pulled the purse from her hand with his right hand, leaving her fingers "a little red” but not bruised. As the defendant took the woman’s left hand, he pushed it back, immobilizing her arm and causing her body to be "turned slightly.” She then turned and watched him flee. A week later, the defendant was identified in a lineup as the purse snatcher. At trial, he was convicted of robbery. In affirming the robbery conviction in Bowel, the Illinois Supreme Court wrote:

"[T]he degree of force necessary to constitute robbery must be such that the power of the owner to retain his property is overcome, either by actual violence physically applied, or by putting him in such fear as to overpower his will. [Citations.]
We consider that the trial court was correct in holding there was a robbery and not a theft from the person.
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Looking at all the evidence of the incident, there was a taking of the purse by use of force and, thus, a robbery.” Bowel, 111 Ill. 2d at 63-64.

In the case sub judice, Pickett grabbed defendant’s hand first as defendant snatched Pickett’s change from the turnstile. The defendant retained some money and some money was scattered on the floor. Pickett sought to grab the defendant and fell over him. The use of force was sufficient to constitute robbery. People v. Bowel, 111 Ill. 2d at 64.

The dissent in this case places reliance primarily upon People v. Ryan, 239 Ill. 410 (1909), and People v. Patton, 76 Ill. 2d 45 (1979). However, Ryan is distinguishable from the present appeal because Ryan, as the dissent quotes, involved " 'an attempt to remove the stud from the necktie by stealth and adroitness, by means of the newspaper placed under the chin and by detaching the stud in some way. There was no injury to the person of the owner and no violence or struggle either to obtain the stud or to retain it.’ ” (Emphasis added.) 285 Ill. App. 3d at 658-59 quoting, Ryan, 239 Ill. at 412-13, 88 N.E. at 171. In the instant case, there was a struggle to retain the money. In our view, this struggle involved force sufficient to constitute robbery.

Patton is also distinguishable from the present case. In Patton, the court held that the "snatching” of the purse from the victim was not itself sufficient use of force to constitute robbery. The court considered that where an article is taken " 'without any sensible or material violence to the person, as snatching a hat from the head or a cane or umbrella from the hand’ the offense will be held to be theft from the person rather than robbery.” See Bowel, 111 Ill. 2d at 63, quoting Patton, 76 Ill. 2d at 52.

In contradistinction to Patton, the current case involved more than a mere snatching. Here, a struggle ensued and force occurred between the victim and the defendant.

Defendant also contends that Pickett’s identification of him was insufficient. Identification by a single witness is sufficient to sustain a conviction if the witness had an adequate opportunity to view the accused under circumstances permitting a positive identification. People v. Slim, 127 Ill. 2d 302, 307 (1989). Here, Pickett testified that he particularly noticed defendant behind him in the lighted store vestibule because defendant was not standing where he was supposed to and that Pickett became anxious and packed up his purchases quickly. Pickett testified that he also observed defendant when defendant grabbed Pickett’s change as they scuffled. Pickett also saw defendant several times later and was able to give police a description of defendant’s clothing and certain physical characteristics. The evidence here supports Pickett’s positive identification of defendant, and we will not reverse on this basis.

Defendant also maintains that the trial court abused its discretion when it disregarded his expression of remorse at the sentencing hearing. The State contends that this issue is waived because defendant failed to file a motion to reduce his sentence, citing People v. Beals, 162 Ill. 2d 497, 510-11 (1994). Since there are post-Beals cases that do not support waiver (see People v. Askew, 273 Ill. App. 3d 798, 804-05 (1995)), we will consider defendant’s argument.

After counsel presented arguments in aggravation and mitigation, defendant stated:

"I want to say I’m sorry for the troubles I have been going through. And it’s not my fault. They have been finding me so many times and you had gave me breaks and breaks and I have not helped by it. But this time, your Honor, if you can give me a break and let me get my life back together I will. I want to go to school and get me a job out there, that’s what I was trying to do and I was wondering if you could have in your heart to forgive me for this trouble I have been going through. That’s all I got to say.
THE COURT: Well, you have been convicted of an offense, the victim is the one who has to forgive.”

Pursuant to section 5 — 5—3.1 of the Unified Code of Corrections, the trial court is required to consider factors in mitigation upon sentencing. 730 ILCS 5/5 — 5—3.1 (West 1994). One of these factors is defendant’s character and attitude, which indicate whether he will commit another crime. 730 ILCS 5/5 — 5—3.1(a)(9) (West 1994). Although the trial court stated that only the victim could forgive defendant, there is nothing else to demonstrate that the trial court did not consider all the factors in mitigation. Defendant has been unable to overcome the presumption that the trial court considered all the evidence in mitigation. People v. Deaton, 236 Ill. App. 3d 530, 547 (1992).

Accordingly, the judgment of the trial court is affirmed. As part of our judgment, we grant the State’s request and assess defendant $100 as costs for this appeal.

Judgment affirmed.

HOURIHANE, J., concurs.