                                        2017 IL App (3d) 150062

                               Opinion filed September 6, 2017
                      Modified Upon Denial of Rehearing October 27, 2017
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                  2017

     THE PEOPLE OF THE STATE                         )      Appeal from the Circuit Court
     OF ILLINOIS,                                    )      of the 10th Judicial Circuit,
                                                     )      Peoria County, Illinois.
            Plaintiff-Appellee,                      )
                                                     )      Appeal No. 3-15-0062
            v.                                       )      Circuit No. 13-CF-1080
                                                     )
     BRIAN D. PATTERSON,                             )      Honorable
                                                     )      Kevin Lyons,
            Defendant-Appellant.                     )      Judge, Presiding.
                                                     )

     _____________________________________________________________________________

           JUSTICE O’BRIEN delivered the judgment of the court, with opinion.
           Justices Lytton and Schmidt concurred in the judgment and opinion.
     _____________________________________________________________________________

                                               OPINION


¶1          The defendant, Brian D. Patterson, appealed his conviction for burglary of an Arby’s.

¶2                                               FACTS

¶3          The defendant was charged by indictment with burglary (720 ILCS 5/19-1(a) (West

     2012)). The indictment alleged that the defendant knowingly and without authority entered an

     Arby’s on August 25, 2013, with the intent to commit theft.
¶4          On September 22, 2014, with a second addendum filed on October 9, 2014, the defendant

     filed a motion to preclude the prosecution from introducing evidence of phone calls downloaded

     from the defendant’s cell phone. The State argued that the phone calls were downloaded

     pursuant to a search warrant and by way of a recording application on the defendant’s phone that

     was not placed there by police. The defendant argued that the recording application was not

     placed by the defendant, alleging that it was placed on his phone by the FBI. Defense counsel

     had subpoenaed a witness who would say the FBI had approached her regarding the defendant,

     but the witness did not appear. The trial court set the motion hearing over until the following

     Tuesday, the same day the trial was scheduled to start. On Monday, the defendant filed a motion

     to suppress, arguing that the recording application was placed on his phone by persons in the

     government. On Tuesday, prior to trial, the trial court denied the motion to suppress, based upon

     the proffer of evidence in court and the untimeliness of the motion. The State claimed that it had

     contacted a federal agent, but he was not available on that day to rebut any evidence by the

     defendant. The defense witness again did not appear, but defense counsel said her testimony

     would be about the FBI approaching her and asking her to make a phone call to the defendant so

     the FBI could listen in. Her testimony would not be about the application on the defendant’s

     phone. The defendant did not attempt to subpoena the FBI agent.

¶5          The case proceeded to a jury trial. Ryan Litchfield testified that he arrived for work at

     Arby’s at around 4:50 a.m. on the morning of August 25, 2013. He had a key to get in the

     building, and he thought only two people had keys to the building on that day. He did not look at

     the safe until around 6 a.m., when he let a coworker in, who noticed two holes in the side of the

     safe. Litchfield also noticed metal shavings around the safe but did not see any footprints in the

     shavings. Jessica Appel, the shift manager at Arby’s, testified that she arrived at work that


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     morning around 7:50 a.m. She noticed the holes and opened the safe to find the money from the

     night before was missing. Appel had no personal knowledge of the amount of money in the safe

     because she did not work the night before, but she checked the company’s records and found that

     $400 was missing. Appel called the police. Appel testified that she had a key to the building, and

     she thought that six people had keys, including the manager who had been let go four days

     earlier.

¶6              The police investigated at the Arby’s and took photographs of the scene. The police did

     not find any fingerprints or footprints and did not find any signs of a forced entry. After the

     defendant became a suspect, the police obtained a search warrant and searched the defendant’s

     home and his vehicle. The trunk of the defendant’s vehicle contained a drill, an extension cord,

     charger battery, sledge hammers, a chisel-type tool, grinding wheels, drill bits, flashlights, a lock

     pick set, pliers, and cutting shears. There were also gloves, a black backpack, a black duffle bag,

     black pants, and plastic bags. A cell phone was recovered from the defendant’s person, and files

     were downloaded from the phone and placed on a flash drive. Around 100 recorded calls were

     downloaded from the phone. Four recordings were made in the early morning hours of August

     25, 2013, and those four files were renamed by the police but not altered. The testimony was that

     those four calls were made at 2:09 a.m., 2:25 a.m., 2:38 a.m., and 3:28 a.m. on August 25, 2013.

¶7              The defendant testified that he was a senior software engineer and he wrote books on

     computer programming and database design. He testified that on August 25, 2013, he was

     working and hanging out with a friend. He was familiar with the Arby’s but did not go there that

     morning. He testified that he exchanged messages with his girlfriend, Angelique Brachle, in the

     early morning of August 25 and the four recorded phone calls were between him and Brachle.

     The defendant testified that he was in his garage for the fourth call and he made a snide remark


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       at the end of the call for the FBI, who he believed had been listening to his calls since May 2013.

       That remark is not on the audio of the fourth call. The defendant testified that the fourth call was

       just for the benefit of the FBI, wherein he and Brachle were pretending to commit some sort of

       theft. He did not know who installed the third-party recording application on his phone. He did

       go to the Arby’s a few days after August 25 because he heard it had been broken into.

¶8            Brachle testified that she was probably with the defendant on the morning of August 25,

       and she could not recall if they went to the Arby’s that morning. However, she was currently on

       probation because she had pled guilty to the burglary of the Arby’s. She testified that she went

       with the defendant to the Arby’s one night after dark, but she could not remember the specific

       day. She waited in the car while the defendant went up to the building. He was carrying a

       backpack, and it was after the Arby’s had closed. She saw him go toward the building and later

       come back and get in his own car a few rows down from hers. Brachle testified that the

       defendant was doing research for a book. Brachle thought that the fourth phone call was made

       while they were both at home and the defendant was in the garage, and the conversation about a

       robbery was made up for the FBI.

¶9            The jury returned a verdict of guilty of burglary. The trial court denied the defendant’s

       motion for a new trial. The defendant was sentenced to 21 years in prison, and his motion to

       reconsider sentence was denied. The defendant appealed.

¶ 10                                              ANALYSIS

¶ 11          The defendant argues that the trial court abused its discretion in not granting a

       continuance, that he was denied a fair trial when the trial court ruled that testimony was

       inadmissible hearsay, that he was denied a fair trial in the giving of two additional jury

       instructions, and that his sentence was excessive.


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¶ 12                                             I. Continuance

¶ 13          The defendant argues that the trial court abused its discretion in declining to continue a

       hearing on his motion to suppress or continue the trial, after a key witness was unavailable to

       testify regarding the motion to suppress on the morning of trial. The State argues that the

       defendant never asked for a continuance and that the motion to suppress was properly denied. A

       judge’s decision regarding a motion to continue is reviewed for an abuse of discretion. People v.

       Walker, 232 Ill. 2d 113, 125 (2009).

¶ 14          Whether there has been an abuse of discretion in denying a continuance depends upon the

       facts and circumstances in each case, and there is no bright line test for determining when a

       denial in the interests of judicial economy violates the substantive right of the accused to

       properly defend. Id. at 125-26. A trial court does not have a sua sponte duty to continue a case.

       People v. Minter, 2015 IL App (1st) 120958, ¶ 74.

¶ 15          The defendant argues that the cell phone audio files were really the only evidence against

       him and there were discovery delays and technical difficulties that contributed to the delay in

       filing his motion to suppress. Defense counsel had received the audio by September 22, 2014,

       but was unable to play the tape. On October 9, the State’s motion for a continuance was denied,

       and the defendant filed a motion to bar evidence, including the recorded phone calls. At the

       hearing on October 10, defense counsel stated that he wanted to question the officer who

       downloaded the calls but the officer was on vacation and that defense counsel had subpoenaed a

       witness who had been approached by the FBI to have a conversation with the defendant, but she

       was not present in court. The trial court scheduled a hearing on the motion prior to the start of the

       trial on October 14, 2014. The defense then filed a motion to suppress on October 13. At the

       hearing on October 14, the prosecutor told the judge that the FBI agent alleged to have placed the


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       application on the defendant’s phone was involved in training in Washington, D.C. Defense

       counsel stated that his witness again did not show up and her testimony would be that the FBI

       approached her and wanted to listen in to a conversation between her and the defendant. The trial

       court denied the motion to suppress, finding that there had already been too many delays and the

       defendant’s witness would not be able to provide any testimony regarding the application.

¶ 16          The defendant argues that the State asked for the continuance when it stated that the FBI

       witness would not be available. There is no indication that the State asked for such; in fact, its

       own motion had been denied a week earlier. The trial court actually denied the motion to

       suppress on the basis that the defense witness, even if she was to appear, was not expected to

       offer any information regarding the application on the defendant’s cell phone. The defendant

       failed to offer any evidence regarding the application on his cell phone, which was necessary to

       sustain his burden of proof on a motion to suppress evidence. People v. Cregan, 2014 IL 113600,

       ¶ 23. Of note, the defendant did not make an offer of proof about the testimony that was not

       admitted, and no subpoenas were issued by the defendant to secure the FBI agent. Under the

       facts and circumstances of this case, where the defendant took no steps to present any evidence

       specifically relevant to the application on his cell phone, we find no abuse of discretion in the

       trial court’s decision to not continue the suppression proceedings.

¶ 17                                               II. Hearsay

¶ 18          The defendant argues that the trial court abused its discretion in not allowing testimony

       revealing his state of mind when defense counsel asked why the defendant and his girlfriend

       would make up a robbery for the benefit of the FBI and would go to this extent and call the FBI

       agent names in the recorded cell phone calls. The defendant argues that this testimony would

       have been the defendant’s explanation why the FBI was listening in on his phone calls. The State


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       argues that the defendant did not include this issue in his posttrial motion, so it can only be

       reviewed for plain error, and the defendant failed to make an offer of proof regarding the

       testimony. The State also argues that there was no abuse of discretion, since a trial court’s

       evidentiary rulings are reviewed for an abuse of discretion. People v. Caffey, 205 Ill. 2d 52, 89

       (2001).

¶ 19             The defendant acknowledges the forfeiture and asks for plain error review. A reviewing

       court may consider a forfeited error when the evidence is close, regardless of the seriousness of

       the error, or if the error is serious, regardless of the closeness of the evidence. People v. Herron,

       215 Ill. 2d 167, 186-87 (2005). To obtain relief under this rule, a defendant must first show that a

       clear or obvious error occurred. People v. Hillier, 237 Ill. 2d 539, 545 (2010).

¶ 20             The hearsay rule generally prohibits the introduction of an out-of-court statement to

       prove the truth of the matter asserted. People v. Spicer, 379 Ill. App. 3d 441, 449 (2007). There

       is an exception to the hearsay rule that allows the statement if it is a statement of the declarant’s

       then-existing state of mind, emotion, sensation, or physical condition. Ill. R. Evid. 803(3) (eff.

       Apr. 26, 2012).

¶ 21             The defendant testified that it was his understanding that the FBI was listening to his

       telephone calls. The defendant’s attorney asked the defendant what the FBI agent had said about

       the defendant that would prompt the defendant to call the FBI agent names on the audio

       recordings. The State objected when the defendant answered, “What I heard or what I was told?”

       Defense counsel argued that the testimony was admissible as a state of mind exception to the

       hearsay rule, but the trial court sustained the objection.

¶ 22             It is unclear what the testimony would have been, but on plain error review, the defendant

       had to show that the evidence was closely balanced. See People v. Lewis, 234 Ill. 2d 32, 43


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       (2009) (the defendant carries the burden of persuasion under both prongs of the plain error rule).

       Reviewing courts must undertake a commonsense analysis of all the evidence in context when

       determining if evidence is closely balanced. People v. Belknap, 2014 IL 117094, ¶ 50. The

       defendant argues that the evidence was closely balanced because he offered a different

       explanation for the audio and that was the only evidence against him.

¶ 23          Although there was no eyewitness testimony, the audio recordings captured the

       defendant’s actions on August 25, 2013. The audio recording that captured the burglary in

       progress contains an ongoing conversation between the defendant and Brachle. The conversation

       is broken up by sounds of cutting or sawing, and at one point the defendant states that he hit a

       shelf and needed to drill another hole. Supporting that evidence were the burglary tools found in

       the defendant’s trunk, including a drill, grinding wheels, drill bits, and a lock pick set, and the

       testimony by Litchfield that there were two holes drilled in the Arby’s safe. Applying a

       commonsense analysis, we find that the evidence was not closely balanced and the defendant

       cannot prevail on plain error.

¶ 24                                           III. Jury Instructions

¶ 25          The defendant argues that two jury instructions should not have been given because they

       had no application to the case and tended to undermine Brachle’s testimony. The defendant

       acknowledges that both issues were forfeited and argues for plain error review. The State

       contends there was no error or any error was not prejudicial. The first step of plain error review

       is determining whether there was error. People v. Thompson, 238 Ill. 2d 598, 613 (2010).

¶ 26          The jury in this case was instructed that a witness’s credibility could be challenged by

       evidence that the witness made a prior inconsistent statement, and it was further instructed that it

       could consider the prior inconsistent statement as substantive evidence if the witness made the


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       statement under oath, the statement described an event that the witness had personal knowledge

       of, and the statement was acknowledged under oath by the witness. See Illinois Pattern Jury

       Instructions, Criminal, No. 3.11 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 3.11). During

       the jury instruction conference, the trial court asked when the prior inconsistent statement

       happened at the trial. The State responded that the instruction was based upon Brachle’s

       admission that she told police that she acted as a lookout for the burglary of the Arby’s.

       Specifically, when the prosecutor asked Brachle if she told police that she acted as the lookout

       for the burglary of the Arby’s, she responded “I wasn’t sure exactly what was going on because I

       thought we were doing research. I really didn’t think anything was going on.” The State argues

       that this was an inconsistent statement because Brachle did not deny that she made the statement

       that she was the lookout for the Arby’s burglary to the police. The defendant argues that the State

       failed to provide evidence of a prior inconsistent statement and Brachle’s failure to deny making

       the statement to the police was not enough.

¶ 27          In criminal cases, evidence of a statement made by a witness is not made inadmissible by

       the hearsay rule if it is inconsistent with his testimony at trial and the statement narrates,

       describes, or explains an event or condition of which the witness had personal knowledge and the

       witness acknowledged under oath the making of the statement. 725 ILCS 5/115-10.1 (West

       2012). IPI Criminal 4th No. 3.11 instructs jurors that they can consider prior inconsistent

       statements substantively if the jurors find that the requirements of section 115-10.1 have been

       met. To be inconsistent, a witness’s prior testimony does not have to directly contradict the

       testimony given at trial but may include evasive answers, silence, or changes in position. People

       v. Flores, 128 Ill. 2d 66, 87 (1989). Whether the prior testimony is inconsistent with the trial

       testimony is a question left to the discretion of the trial court. Id. at 87-88. In addition, a trial


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       court’s decision to give a particular jury instruction is reviewed for an abuse of discretion.

       People v. Mohr, 228 Ill. 2d 53, 66 (2008).

¶ 28          We find that the trial court did not abuse its discretion in giving the jury instruction

       because Brachle’s answer regarding whether she was the lookout for the robbery was evasive.

       Brachle did not deny that was the statement that she gave to the police but qualified her answer

       with the fact that she thought they were doing research. Brachle acknowledged telling the police

       that she waited in the car for some time, at night, while the Arby’s was closed, while the

       defendant went to the Arby’s building. Since there was no error in giving the instruction, there

       can be no plain error.

¶ 29          The defendant also argues that the trial court abused its discretion in giving IPI Criminal

       4th No. 3.17, testimony of an accomplice. “The test for determining whether a witness is an

       accomplice for purposes of the accomplice-witness instruction is whether there is probable cause

       to believe that the witness was guilty of the offense at issue as a principal, or as an accessory

       under an accountability theory.” People v. Caffey, 205 Ill. 2d 52, 116 (2001). Thus, if the

       evidence at trial establishes probable cause to believe that a witness participated in the planning

       or commission of the crime, even if the witness denies it, the accomplice-witness instruction

       should be given to a jury. Id. In this case, Brachle testified that she was the lookout, although she

       claimed that she thought she was only acting as such so that the defendant could do research for

       a book. However, she also admitted that she pled guilty to charges in connection with the

       burglary of the Arby’s and that she was on probation for the offense. Thus, we find that the

       evidence established probable cause to believe that Brachle participated in the burglary of the

       Arby’s and the trial court did not abuse its discretion in giving this instruction. Again, since there

       was no error in giving the instruction, there was no plain error.


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¶ 30                                             IV. Sentence

¶ 31          Finally, the defendant argues that his 21-year sentence was excessive and should be

       reduced. Alternatively, the defendant argues that the case should be remanded for resentencing

       because the trial court considered an improper factor in aggravation and failed to consider

       applicable mitigation. The imposition of a sentence is reviewed for an abuse of discretion.

       People v. Patterson, 217 Ill. 2d 407, 448 (2005).

¶ 32          The statutory sentence for burglary, a Class 2 felony, is probation or three to seven years’

       imprisonment. 720 ILCS 5/19-1(b) (West 2012); 730 ILCS 5/5-4.5-35 (West 2012). However,

       due to prior burglary convictions in 1992 and 1994, the defendant was subject to a Class X

       sentence, between 6 and 30 years’ imprisonment. 730 ILCS 5/5-4.5-25(a) (West 2012). The

       defendant’s sentence of 21 years was within the statutory range, but the defendant challenges it

       as excessive.

¶ 33          Generally, trial courts have great discretion in sentencing. People v. Alexander, 239 Ill.

       2d 205, 212 (2010). The defendant was charged with burglary, which requires proof that the

       defendant entered with the intent to commit a theft. The defendant argues that there was nothing

       unusual, remarkable, or aggravating about this burglary, and the planning emphasized by the trial

       court was an inherent element of burglary so that the trial court was wrong to consider it an

       aggravating factor. A review of the record, however, reveals that the trial court appreciated the

       intent and planning necessary to sustain a conviction for burglary but found this case to be

       somewhat unusual and remarkable. The trial court emphasized that there could be a “difference

       between a burglary and a burglary.”

¶ 34          The defendant also argues that the trial court relied upon matters outside the record,

       namely, the judge’s personal experience as a prosecutor, in rejecting defense counsel’s attempt to


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       minimize the defendant’s prior burglary convictions as a factor in mitigation. A sentencing

       determination made by a trial court based upon its own private investigation constitutes a denial

       of due process of law. People v. Dameron, 196 Ill. 2d 156, 171-72 (2001). Viewing the trial

       court’s comments in context, however, reveals that the trial court considered and rejected the

       defendant’s attempts to minimize his prior convictions, and there is nothing in the record to

       establish that the trial court impermissibly considered a fact outside the record in reaching its

       sentencing decision. We find no abuse of discretion and affirm the defendant’s 21-year sentence.

¶ 35                                             CONCLUSION

¶ 36          The judgment of the circuit court of Peoria County is affirmed.

¶ 37          Affirmed.




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