People v. Lewis

No. 1-95-3085


THE PEOPLE OF THE STATE OF ILLINOIS,    )    APPEAL FROM THE
                                        )    CIRCUIT COURT OF
     Plaintiff-Appellee,                )    COOK COUNTY.
                                        )
     v.                                 )    NO. 94 CR 29315
                                        )
ANTHONY LEWIS,                          )    THE HONORABLE
                                        )    SHELVIN SINGER,
     Defendant-Appellant.               )    JUDGE PRESIDING.


     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.  Some time 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 over power his will. 
     Bowel, 111 Ill. 2d  at 63.
     We consider that the trial court was correct in holding
     there was a robbery and not a theft from the person.
                                   * * * 
     Looking at all the evidence of the incident, there was a
     taking of the purse by use of force and, thus, a robbery." 
     People v. 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 writes, 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 retain it."  (Emphasis added.) Slip op. at 9. 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.