People v. Burton, 1–13–1600.

38 N.E.3d 182

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Edward L. BURTON, Defendant–Appellant.

No. 1–13–1600.

Appellate Court of Illinois, First District, Third Division.

Aug. 5, 2015.

Rehearing Denied Aug. 18, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Carolyn E. Bourland, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, John E. Nowack, and Margaret G. Lustig, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice HYMAN delivered the judgment of the court, with opinion.

¶ 1 A jury convicted defendant Edward Burton for the burglary of a car parked in a factory lot. The employee who had driven the car to work and his supervisor saw Burton standing near the car's open trunk. They called police who found an iPod belonging to the employee in Burton's pocket. Burton was sentenced to nine years in prison. Burton argues: (1) he was denied a fair trial when the State introduced into evidence a photograph of the factory parking lot that included a “no trespassing” sign, because the State failed to show the photo accurately depicted the parking lot on the date of the crime or show its relevancy to the burglary charge, and the photo prejudiced him by suggesting he committed another uncharged criminal act; (2) the trial court erred in granting defense counsel's request for a jury instruction for the lesser-included offense of criminal trespass without asking Burton if he agreed with the instruction and understood its consequences; (3) the trial court abused its discretion by sentencing him to nine years in prison given the nature of the offense and his non-violent criminal history; and (4) the mittimus should be corrected to reflect 314 days of credit for time served in custody before sentencing.

¶ 2 We agree with Burton regarding the mittimus but disagree with his other arguments. We hold that the trial court did not err in permitting the State to admit into evidence the objected to photograph of the parking lot. As to the court's failure to ask Burton if he agreed with his counsel's request for a lesser-included jury instruction, though error, it was not plain error. Further, the trial court did not abuse its discretion in sentencing Burton to nine years, which was within the statutory range of six to 30 years. Accordingly, we affirm Burton's conviction and sentence and correct the mittimus to reflect 314 days of credit for time served in custody.

¶ 3 BACKGROUND

¶ 4 On June 16, 2012, at about 12:45 a.m., as Raul Ventura left his job at the Bar Processing Corporation plant, he noticed his car had been broken into. Ventura returned to the plant and notified his supervisor, Deandra Akins. Ventura and Akins went to the parking lot and saw Burton standing near the open trunk of Ventura's car. Akins called the police. The police searched Burton and found an iPod in his pocket, which Ventura said belonged to him and had been in the driver's side pocket of the car. Burton was arrested and charged with burglary (720 ILCS 5/19–1(a) (West 2012)).

¶ 5 Before trial, defense counsel objected to a photograph of the plant parking lot that showed a red “no trespassing,” sign on the front of the gate to the parking lot. Defense counsel argued (1) the State had not shown the presence of the “no trespassing” sign on June 16, 2012, (2) the photo was unduly prejudicial because it suggested Burton committed another criminal act, trespassing, for which he was not charged, and (3) the State had other photographs of the lot that did not include the sign. The trial court denied the motion, finding the photograph depicted where the crime took place and its relevancy outweighed any prejudicial effect.

¶ 6 At trial, Ventura testified that on June 16 he was working the second shift at the Bar Processing Corporation plant in Chicago Heights. Ventura drove his girlfriend's car, a 2000 Mazda Protégé, to work and she drove his truck, because he had a longer commute. At 12:45 a.m., when his shift ended, Ventura left the plant, carrying a portable stereo he brought to work. He went to the driver's side door and noticed it was unlocked, even though he had locked it. Ventura opened the front driver's side door and saw strewn around the car papers and CDs, which had been in the glove compartment. He popped the trunk, put his stereo in, closed it, and returned to the plant to inform his supervisor, Deandra Akins, that the car had been broken into. Ventura and Akins went out to the parking lot. Ventura saw a man standing near the car's now open trunk. When Ventura got closer to the car, he noticed the man, whom he identified as Burton, moving his hands inside the trunk. Ventura told Akins to call the police. Ventura asked Burton what he was looking for. Burton began walking toward the parking lot exit, but Ventura and Akins stood in front of him until the police arrived.

¶ 7 Ventura testified that police officers arrived a few minutes later, grabbed Burton, and put him in the squad car. The police told Ventura to go to the car to determine if anything was missing. Ventura noticed that an iPod he had left in the driver's side door pocket was gone. Ventura described the iPod as black and green with a cracked screen. The police officers showed Ventura an iPod, which he identified as his. Ventura said he did not see the police take the iPod from Burton and that it must have been in the backpack Burton was carrying.

¶ 8 Deandra Akins testified that Ventura approached him in the plant and said that somebody was “rambling” through his car. Akins accompanied Ventura to the parking lot and saw the car's trunk up. Akins then saw Burton come around from behind the car trunk. Akins asked Burton what he was doing behind the car. Burton responded that he was looking for something and was trying to find somewhere to sleep. Burton tried to leave the parking lot but Akins and Ventura blocked his way. Akins called the police who arrived in minutes and took Burton into custody. Akins saw the police search Burton but did not see them recover an iPod.

¶ 9 The State showed Akins three photographs of the plant's parking lot. Defense counsel renewed his objection to the photo with the “no trespassing” sign. The trial judge overruled the objection, stating “same ruling as it was before. I think it's relevant.” Akins testified that the photos fairly depict the plant parking lot.

¶ 10 Officer Murchek testified that she responded to Akins' call and when she arrived at the plant saw Burton, Ventura, and Akins standing in the driveway. Murchek performed a protective pat-down search of Burton and recovered a pocket knife and an iPod from his pocket. Murchek placed the knife and the iPod on the trunk of her squad car. Three other police officers arrived and spoke with Ventura and Akins. The officers told Ventura to go to his car to determine if anything was missing. When Ventura returned, he told the officers his iPod was missing. Murchek showed Ventura the iPod she found in Burton's pocket, and Ventura said it belonged to him. Murchek placed Burton into custody.

¶ 11 After both sides rested, defense counsel requested a jury instruction on the lesser included offense of criminal trespass to a vehicle (720 ILCS 5/21–2 (West 2012) ). The trial court allowed the instruction over the State's objection.

¶ 12 The jury found Burton guilty of burglary. The trial court denied Burton's motion for a new trial. Burton was sentenced to nine years in prison as a Class X felon. His motion to reconsider the sentence was denied.

¶ 13 ANALYSIS

¶ 14 Admissibility of Crime Scene Photograph

¶ 15 During Deandra Akins' testimony, the State showed him a photograph showing a “no trespassing” sign on the gate of the plant parking lot. Burton contends he was denied a fair trial because (1) the State failed to prove the sign was on the gate when the burglary occurred, (2) the photo was irrelevant to the State's case because he was not charged with trespassing, and (3) was prejudicial, because it suggested he committed a crime, criminal trespass to real property (720 ILCS 5/21–3 (West 2012) ), for which he was not charged.

¶ 16 The State asserts that Burton forfeited this argument by failing to raise it in his posttrial motion. To preserve an issue for review, a party ordinarily must raise it at trial and in a written posttrial motion. People v. Enoch, 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124 (1988). Failure to do so operates as a forfeiture of the issue on appeal. People v. Ward, 154 Ill.2d 272, 293, 181 Ill.Dec. 884, 609 N.E.2d 252 (1992). Burton concedes he did not raise the issue in his motion for a new trial but asks us to review it as plain error. Under the plain error doctrine, we may review a forfeited error when either (1) “the evidence in a case is so closely balanced that the jury's guilty verdict may have resulted from the error and not the evidence” or (2) “the error is so serious that the defendant was denied a substantial right, and thus a fair trial.” People v. Herron, 215 Ill.2d 167, 178–79, 294 Ill.Dec. 55, 830 N.E.2d 467 (2005). Rather than operating as a general savings clause, plain error is construed as a narrow and limited exception to the typical forfeiture rule applicable to unpreserved claims. Id. at 177, 294 Ill.Dec. 55, 830 N.E.2d 467. The burden of persuasion rests with the defendant under both prongs of plain error analysis. Id. at 187, 294 Ill.Dec. 55, 830 N.E.2d 467. While intended to ensure a defendant receives a fair trial, the doctrine does not guarantee every defendant a perfect trial. People v. Johnson, 238 Ill.2d 478, 484, 345 Ill.Dec. 632, 939 N.E.2d 475 (2010).

¶ 17 First, we must first determine whether any error occurred. People v. Bannister, 232 Ill.2d 52, 65, 327 Ill.Dec. 450, 902 N.E.2d 571 (2008).

¶ 18 Burton challenges the relevancy of the photograph with the “no trespassing” sign to the burglary charge and also contends the photograph was cumulative because the...