People v. Hollgarth

2013 IL App (4th) 110848

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.RAYMOND L. HOLLGARTH, SR., Defendant-Appellant.

NO. 4-11-0848

APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

FILED: March 19, 2013

NOTICE

This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from

Circuit Court of

Macon County

No. 08CF1108

Honorable

Lisa Holder White,

Judge Presiding.

JUSTICE TURNER delivered the judgment of the court.

Justices Knecht and Harris concurred in the judgment.

ORDER

¶ 1 Held: (1) The State's evidence proved defendant guilty of burglary and theft beyond a reasonable doubt, (2) we decline to reach the merits of defendant's claim of ineffective assistance of counsel on the issue of the introduction of certain evidence, (3) we decline to reach the merits of the issue pertaining to the silent witness theory, and (4) we reduce the restitution award and remand for an amended sentencing judgment.

¶ 2 In June 2011, the trial court found defendant, Raymond L. Hollgarth, Sr., guilty of five counts of burglary and one count of theft. In August 2011, the court sentenced him to probation and ordered him to pay restitution.

¶ 3 On appeal, defendant argues (1) the State failed to prove him guilty of burglary and theft, (2) trial counsel was ineffective, (3) witness testimony violated the silent witness theory of admissibility, and (4) the restitution order must be vacated or reduced. We affirm as modified and remand with directions.

¶ 4 I. BACKGROUND

¶ 5 In August 2008, the State charged defendant and Michael Stanley with five counts of burglary (720 ILCS 5/19-1(a) (West 2008)), alleging they, without authority, knowingly entered Menard's in Forsyth with the intent to commit a theft therein on five separate occasions. The State also charged both men with one count of theft of property having a value in excess of $300 (720 ILCS 5/16-1(a)(1)(A) (West 2008)), alleging they knowingly exerted unauthorized control over property of Menards, being building materials having a total value in excess of $300, with the intent to deprive Menards permanently of the use of the property. Defendant pleaded not guilty.

¶ 6 In June 2011, defendant's bench trial commenced. Michael Maguet testified he is the general manager at Menards in Forsyth. He stated the store includes a lumberyard. If a customer wanted to make a purchase of lumber or other materials in the yard, he would get an invoice at the service desk inside, have the invoice validated upon purchase, proceed to the guard shack on the outside of the building, and then have the invoice scanned by the guard to proceed into the yard. Maguet stated a contractor may have a Menards account with a card allowing them immediate access to the yard to load what he wants. Prior to leaving the lumberyard, the customer or contractor stops at the guard shack, and the guard uses a hand scanner to verify the materials match those on the invoice. The guard inputs his designated number into the scanner thereby identifying himself. Maguet stated the guards at the shack are not Menards employees but are supplied by Securitas.

¶ 7 During the summer of 2008, Maguet was informed about possible thefts at the store allegedly committed by Michael Stanley. Maguet conducted an investigation, whichinvolved pulling up Stanley's transactions on the computer and watching video surveillance. Maguet stated the video images have a date and time stamp that are synchronized with the cash registers inside the store and the guard shack near the lumberyard.

¶ 8 Maguet testified to the State's exhibit No. 1, a receipt of a transaction on June 23, 2008. He stated it was a record kept in the ordinary course of Menards' business and was generated through the computer system. The receipt indicated 35-year shingles were purchased. Exhibit No. 2, a summary report of the transaction, showed nine bundles of shingles were sold, identified the guard at the shack as "Ray," noted the date and time the materials were picked up, and recorded the license plate of the vehicle. Maguet stated his review of the security tapes revealed Stanley took out 56 bundles of shingles. Maguet testified to exhibit Nos. 3 and 4, which were screen shots of the transaction occurring inside the store and the vehicle at the guard shack, respectively. He also stated the videos were accurate as to date and time.

¶ 9 Maguet testified to exhibit No. 6, a transaction record from June 25, 2008, showing the return of nine bundles of shingles and the purchase of six bundles of shingles. Exhibit No. 7, a "Merchandise Return Slip," showed Mike Stanley returned the nine bundles. Exhibit No. 9 showed the quantity sold and the guard name as "Ray." The handwritten notation on exhibit No. 9 listed three "rolls of felt" and nine "bundles."

¶ 10 Maguet testified exhibit No. 11 showed the purchase of two tubes of roof cement and six bundles of shingles on June 30, 2008. Exhibit No. 12 showed the guard print out, listing the guard as Ray. The report indicated Stanley had purchased 6 bundles, but Maguet's investigation indicated Stanley had actually taken 36 bundles. Exhibit No. 12 also had a notation next to the "License Plate" stating "SPEEDCHECK." Maguet stated a guard is allowed to skip thenotation of a vehicle's license plate if the yard is busy and there is a need to keep the traffic flowing. Maguet testified a screen shot of the guard shack in exhibit No. 14 showed more than six bundles on the trailer towed behind a vehicle.

¶ 11 Maguet testified exhibit No. 16 showed the purchase of a box of nails, 6 bundles of shingles, and 20 pieces of roof edge for a total of $230.67 on July 2, 2008. Exhibit No. 17 showed the guard print out, listing the guard as Ray. Maguet stated Stanley paid for 6 bundles of shingles but actually picked up 35 bundles. Maguet stated Stanley did not pick up his roof edge. Exhibit No. 19 showed a screen shot of the materials at the guard shack.

¶ 12 Maguet testified exhibit No. 20 showed the purchase of three bundles of shingles totaling $61.24 on July 10, 2008. Exhibit No. 21 showed the guard print out, listing the guard as Ray. Maguet stated a review of the videotape showed Stanley left with nine bundles of shingles. Exhibit No. 23 showed a screen shot of the materials at the guard shack. Maguet stated this instance was a "speed check" as well.

¶ 13 The State played exhibit No. 25, the security videos pertaining to the dates at issue. Maguet stated defendant never notified him that Stanley was stealing items. Defendant also never complained that he was being threatened by anyone. He stated the total amount of merchandise stolen was $2,998.

¶ 14 On cross-examination, Maguet testified the videos did not show what type of merchandise, if any, came into the lumberyard on Stanley's trailer. None of the images showed any of the materials being loaded onto the trailer by any Menards employees. Maguet did not know Stanley but a contractor manager identified the man in the videos as Stanley.

¶ 15 Macon County sheriff's sergeant Lou Ann Hollon testified she was dispatched toMenards on July 17, 2008, to investigate an alleged burglary and theft. Maguet provided her with documents, receipts, and copies of video surveillance. A license plate number written on a guard gate receipt did not come back as registered to Stanley.

¶ 16 Maguet informed Sergeant Hollon that defendant was the guard on duty at the time of the theft. She made contact with defendant, and he agreed to make a statement. Defendant stated Stanley approached him on June 18 while he was in training with Securitas. Stanley told the person training defendant to get away, and the individual complied. Stanley then walked over to defendant and said when he returned the next day, defendant "better not give me any problems or he would hurt him." The next day, defendant was working the guard gate. When he attempted to inspect Stanley's vehicle, Stanley told him he was "not checking anything." Defendant stated Stanley threatened him with harm if he did not hurry and scan his materials and let him through the gate. Defendant admitted to Sergeant Hollon that he had gotten the license plate wrong on Stanley's vehicle. Defendant stated he was afraid of Stanley, who had threatened him harm, and stated "it wasn't worth his life." Hollon testified defendant provided a written statement, labeled as exhibit No. 26, which stated as follows:

"I was working *** at Menards in Forsyth. When I was getting trained, Mike Stanley came through the guard shack myself and the guy that was training me was standing there he told the other guard to take his ass to the other side so he did. Then he told me that if I fucked with him he would bust my head. Then he left. Then a couple days later he come [sic] back. He had a picking list so I let him go through and then he would be in back for awhile hewould come out he would tell me if I ever say anything he would bust my head. One time he came into the yard with a picking list for shingles and when he pulled up he told me to scan thing [sic] and hurry the fuck up he had to fucking leave. One time he came through and when he was leaving he smacked me up side the head. When he was leaving I noticed that there was more on the trailer. When he was leaving. When he would get checkout I would notice that they [sic] was more there then [sic] was supposed to. But he had threaten [sic] me and I did not think my life was worth that. My brother worked for him that's how I know him said that he was a UFC fighter and he never lost he is very dangerous. I told Securatas [sic] that I wanted away from there that I couldn't handle it. I feared for my life when I was there. I never got messed with by anyone else out there."

¶ 17 The State rested its case. Defendant exercised his right not to testify, and defense counsel did not present any evidence. Following closing arguments, the trial court found defendant...