THIRD DIVISION
Date Filed: March 12, 2003

Following a bench trial, the defendant, Jerry Scott, wasconvicted of robbery and residential burglary and sentenced tofive years' imprisonment in the Department of Corrections. Thedefendant appeals, raising the following issues: (1) whether theevidence was sufficient to prove the defendant guilty beyond areasonable doubt of residential burglary; (2) whether thedefendant's robbery conviction is inconsistent with the findingthat the defendant was not guilty of armed robbery; and (3)whether the defendant is entitled to a reduction of his sentence.

The defendant was charged by information with the offensesof home invasion, armed robbery and residential burglary. Hewaived his right to a jury trial. The pertinent testimony at thedefendant's bench trial is summarized below.

Cleotha Carter, the 45-year-old victim, testified that a1993 automobile accident completely damaged his left side. He isblind in his left eye and walks with a cane.

On March 8, 2000, at approximately 11:30 a.m., the defendantknocked on the door of Mr. Carter's apartment. Believing thatthe defendant, whom he had known for a year, was there to playchess with him, Mr. Carter turned to get his chess set. When heturned around, the defendant was holding a gun at his side in hisleft hand and pointed at Mr. Carter. In his right hand, thedefendant had Mr. Carter's LINK card and a money order, which hadbeen on top of Mr. Carter's television set. Mr. Carter explainedthat a LINK card is used in place of food stamps to purchasegroceries. On March 8, 2000, Mr. Carter had a $75 balance on theLINK card. The money order was for $500, but it had not beenfilled out yet.

Mr. Carter told the defendant "don't be playing no damngames." The defendant responded, "I'm not playing no M.F. games,I'm sick." Mr. Carter added that the defendant told him that heneeded "dog food," which Mr. Carter understood to mean heroin. The defendant then demanded Mr. Carter's LINK card code number,which permits a store to accept the card. Mr. Carter started togive the defendant the number, but the defendant remembered thathe knew the number from other trips he had made with Mr. Carterto the grocery store. The defendant cocked the hammer of the gunback and backed out of Mr. Carter's apartment.

After the defendant left the apartment, Mr. Carter called911. Mr. Carter then accompanied the police as they rode aroundthe area searching for the defendant. The defendant wasapprehended a short time later. The police returned the LINKcard to Mr. Carter, but he never got the money order back.

Mr. Carter acknowledged that he had been imprisoned for autotheft, forgery and possession of an illegal weapon. He was lastreleased from prison in 1992. He did spend time in the lockup in1995.

On cross-examination, Mr. Carter denied that he had usedcrack cocaine on March 8, 2000. He denied that he had beenconvicted of theft in 1990. However, when defense counselpresented a certified copy of the conviction, Mr. Carter statedthat, while he could have been convicted in 1990, he did notrecall pleading guilty and being sentenced to two years'imprisonment consecutive to another case in which he pleadedguilty to possession of a stolen motor vehicle. According to Mr.Carter, his 1993 accident caused him to have difficultyremembering things in the past. He acknowledged that in 1995 hetwice pleaded guilty to theft and was sentenced to time served inone case and time served and a fine in the other.

Mr. Carter denied calling anyone else before calling thepolice to report what had happened. He did not recall telling adetective and an assistant State's Attorney that he had calledOfficer Clemons, a police officer in the 6th District, hisbrother, Lamark Carter, who was the warden at the JolietCorrectional Center, and his sister-in-law to tell them what hadhappened.

Mr. Carter denied that he went to the Swan Foods storeearlier in the day on March 8, 2000, to obtain money to buy crackcocaine. He further denied giving a bag of cocaine to thedefendant and leaving the grocery store with a young lady toreturn to his apartment and smoke the cocaine with her. Mr.Carter also denied telling the defendant to meet him later.

Mr. Carter did recall a conversation he had with a policeofficer at his apartment in which he told the officer that thedefendant and he were having a normal conversation until thedefendant picked up the LINK card and told Mr. Carter that he wastaking it because he was sick and needed "dog food," referring toheroin.

Mr. Carter acknowledged that at the defendant's preliminaryhearing, he had testified that the gun was in the defendant'sright hand and the LINK card and money order were in thedefendant's left hand. Mr. Carter described the gun as blackwith brown handle grips. He had never seen the defendant with agun prior to March 8, 2000.

On redirect examination, Mr. Carter acknowledged that at thedefendant's preliminary hearing, he had testified that thedefendant did not take the LINK card and the money order from Mr.Carter's person.⁽¹⁾

Bashar Fakhoury, owner and manager of Swan Foods, testifiedthat he was working at the store on March 8, 2000, and did notrecall seeing either Mr. Carter or the defendant in the store.

The State then rested. The trial court denied thedefendant's motion for a directed finding.

The parties then stipulated that if Officer J. McGee werecalled as a witness, he would testify that from a custodialsearch of the defendant following his arrest, the policeretrieved a LINK card belonging to the victim. However, thesearch revealed no money, gun, money order, receipt or anyillegal drugs. Officer McGee would further testify that in hisconversation with Mr. Carter at his apartment, Mr. Carter neverstated that the defendant told him that he needed "dog food."

The parties further stipulated that if Officer Docherty werecalled as a witness, he would testify that Mr. Carter told himthe following. When the defendant first entered Mr. Carter'sapartment, there was a friendly exchange of name-calling, andthen the defendant asked Mr. Carter to loan him $20. Mr. Cartertold the defendant that he did not have $20 and that, if he did,he would have to charge him interest. At that point, thedefendant pulled out a .45-caliber handgun from the right side ofhis pants and pointed it at Mr. Carter, telling him that he wassick and ordering Mr. Carter to give him Mr. Carter's LINK card. With his left hand, the defendant removed the LINK card and ablank money order from the top of the television set. Mr. Carteralso complied with the defendant's request to give him the codeto the LINK card. The defendant then walked backwards out of theapartment and fled. Mr. Carter then called Officer Clemmons,telling him that Mr. Carter had just been held up. Mr. Carteralso called his brother, the warden at Joliet CorrectionalCenter, but was unable to contact him. He then called hisbrother's house and spoke to his sister-in-law, who told him notto lose his cool and not to become violent but to contact thepolice.

According to Officer Docherty's stipulated testimony, asearch of the defendant revealed the LINK card and a receipt fromSwan Foods, matching Mr. Carter's LINK card and showing a -0-balance. Mr. Carter never told the officer that the defendantstated that he needed "dog food."

The defendant testified that on March 8, 2000, he met Mr.Carter, who asked him if he knew where he could trade food stampsfor cash. At the defendant's suggestion, they walked over toSwan Foods. Mr. Carter gave the defendant $3 and then gave himhis LINK card. The defendant obtained the cash and gave it toMr. Carter. The defendant then took Mr. Carter to purchase crackcocaine from someone the defendant knew. After purchasing thedrugs, Mr. Carter saw a young lady that the defendant knew. Mr.Carter gave the defendant $5 and indicated that the young ladyand he were going back to Mr. Carter's apartment.

A short time later, the defendant went to Mr. Carter'sapartment, where he encountered the same young lady and Mr.Carter. Mr. Carter gave him his LINK card. The defendant didnot have a gun, and he was not given a $500 money order. Thedefendant then returned to Swan Foods to get more money for Mr.Carter for more drugs. However, there were insufficient fundsavailable on the card, so the defendant left the store with thereceipt. The defendant was arrested approximately one block fromSwan Foods. He did not run from the police or resist arrest.

On cross-examination, the defendant acknowledged that theyoung lady was a friend of his but that he did not remember hername. On redirect examination, the defendant testified that hespent the $8 Mr. Carter gave him on lottery tickets but, becausethey were not winning tickets, he threw them away.

After closing arguments, the trial court orally reviewed thetestimony and concluded as follows:

"Mr. Carter was impeached in a number of areas becausehe talked to a couple of different police officers,testified differently in court.

Mr. Scott's story is imaginative. Some amazingcoincidences. And I believe the part where he got stoppedby the police. I believe Mr. Carter's testimony of the - -his recollection was not recalling the future but hasproblems with memory of the past, does not affect his memoryof the present.

Having considered all of the evidence, havingconsidered the credibility of the witnesses, which isbasically Mr. Carter and Mr. Scott, having considered theimpeachment areas of Mr. Scott, as to the charge of homeinvasion, there will be a finding of not guilty.

As to the charge of - - there was testimony that Mr.Scott was arrested a short period later after this incidenttook place. There was no weapon recovered. There will be afinding of guilty of the lesser-included offense of robberyand also a finding of guilty of residential burglary."

The trial court imposed concurrent sentences of five years'imprisonment on the two convictions and a concurrent sentence ofone year's imprisonment for the defendant's probation violation. The defendant filed a timely notice of appeal.

The defendant contends that the evidence was insufficient toprove him guilty of residential burglary beyond a reasonabledoubt because the State failed to prove his entry into Mr.Carter's apartment was unauthorized.

A reviewing court will not set aside a conviction on groundsof insufficient evidence unless the proof is so improbable orunsatisfactory that there exists a reasonable doubt of thedefendant's guilt. People v. Furby, 138 Ill. 2d 434, 455, 563N.E.2d 421, 430 (1990).

"A person commits residential burglary who knowingly andwithout authority enters the dwelling place of another with theintent to commit therein a felony or theft." 720 ILCS 5/19-3(a)(West 2000).

No individual who is granted access to a dwelling can besaid to be an authorized entrant if he intends to commit criminalacts therein, because, if such intentions had been communicatedto the owner at the time of entry, it would have resulted in theindividual's being barred from the premises ab initio. People v.Bush, 157 Ill. 2d 248, 253-54, 623 N.E.2d 1361, 1364 (1993). Thedetermination of whether an entry is unauthorized depends uponwhether the defendant possessed the intent to perform a criminalact therein at the time entry was granted. Bush, 157 Ill. 2d at254, 623 N.E.2d at 1364. If the defendant gains access to thevictim's residence through trickery and deceit and with theintent to commit criminal acts, his entry is unauthorized and theconsent given vitiated because the true purpose for the entryexceeded the limited authorization granted. Bush, 157 Ill. 2d at254, 623 N.E.2d at 1364. Conversely, where the defendant enterswith an innocent intent, his entry is authorized, and criminalactions thereafter engaged in by the defendant do not change thestatus of the entry. Bush, 157 Ill. 2d at 254, 623 N.E.2d at1364.

In this case, there was no direct evidence that thedefendant intended to commit a theft or felony when he enteredMr. Carter's apartment. The defendant argues that OfficerDocherty's stipulated testimony that Mr. Carter told him that thedefendant and he engaged in some friendly name-calling and thatthe defendant asked him for a loan before taking the LINK cardestablishes that the defendant did not intend to rob Mr. Carterwhen the defendant initially entered Mr. Carter's apartment. Wedisagree.

According to Mr. Carter's testimony at trial, believing thatthe defendant and he were going to play chess, Mr. Carterretrieved his chess set only to find the defendant pointing a gunat him and demanding his LINK card.

When a defendant challenges the sufficiency of the evidencesupporting his conviction, the court asks whether, viewing theevidence in the light most favorable to the prosecution, arational fact finder could have found the defendant guilty of theessential elements of the crime beyond a reasonable doubt. People v. Hernandez, 312 Ill. App. 3d 1032, 1036, 729 N.E.2d 65,68 (2000). A criminal conviction cannot stand on appeal if theprosecution's evidence is so weak as to create a reasonable doubtof the defendant's guilt. Hernandez, 312 Ill. App. 3d at 1036,729 N.E.2d at 68.

We are aware, as the court in Hernandez cautioned, that ourdeference to trial judges in matters of credibility should notserve to rubber stamp bench trial findings of guilty in place ofa careful consideration of the evidence. See Hernandez, 312 Ill.App. 3d at 1037, 729 N.E.2d at 68-69. In Hernandez, the courtreversed the defendant's conviction even though the trial courthad found the sole eyewitness's identification of the defendantto be credible. The reviewing court determined that theeyewitness's testimony was not reliable because of the lack ofopportunity for the eyewitness to view the defendant and thewitness's own uncertainty in making the identification.

In the present case, while contradicted by OfficerDocherty's stipulated testimony, if Mr. Carter's trial testimonyis believed, when the defendant entered Mr. Carter's apartment,armed with a weapon, he intended to rob Mr. Carter of Mr.Carter's LINK card. In contrast, in Hernandez, the eyewitness'sown testimony created the doubt in his identification of thedefendant.

The defendant's reliance on People v. Hamilton, 179 Ill. 2d319, 688 N.E.2d 1166 (1997), is misplaced. The issue in thatcase was whether the defendant, who was charged with residentialburglary, was entitled to a jury instruction on the lesserincluded offense of theft. The supreme court concluded, interalia, that because there was evidence from which the jury couldhave concluded that the defendant did not formulate the intent tocommit a theft until after he was admitted to the victim's house,the defendant was entitled to the theft instruction at his newtrial. Hamilton, 179 Ill. 2d at 328, 688 N.E.2d at 1171.

The Hamilton court did not conclude, however, that thedefendant could not be convicted of residential burglary based onthose facts, which is the question in the case before us. Thecourt merely determined that the jury should be given thatchoice.

In this case, the trial court, having considered the evidenceand the credibility of the witnesses, concluded that the evidencehad proved the defendant guilty of the residential burglarycharge beyond a reasonable doubt.

Determinations of the credibility of the witnesses, theweight to be given to their testimony and the reasonableinferences to be drawn from the evidence are the responsibilitiesof the trier of fact. Furby, 138 Ill. App. 3d at 455, 563 N.E.2dat 430. As we will not substitute our judgment for that of thetrial court in matters of credibility, we conclude that thedefendant was proved guilty of residential burglary beyond areasonable doubt.

The defendant contends that the trial court's findings thathe was guilty of robbery but not guilty of armed robbery arelegally inconsistent and, therefore, his conviction for robberymust be reversed. The defendant reasons that the trial court'sfindings are legally inconsistent because the only evidence offorce or threat of force was the gun, the absence of which thetrial court used to find the defendant guilty of robbery ratherthan armed robbery. We disagree.

First, even without the gun, the defendant's words to Mr.Carter, "I'm not playing no M.F. games, I'm sick," along with thetestimony that the defendant needed "dog food" or heroin, wassufficient for Mr. Carter to perceive a threat of force if he didnot accede to the defendant's wishes. Therefore, there wassufficient evidence, without the presence of the gun, to supportthe defendant's conviction of robbery.

In any event, we are of the opinion there is no legalinconsistency in the trial court's findings in this case.

Illinois cases recognize two types of inconsistency: logicalinconsistency and legal inconsistency. People v. Rhoden, 299Ill. App. 3d 951, 957, 702 N.E.2d 209, 213 (1998). Verdicts arelogically inconsistent if they "'acquit and convict a defendantof crimes composed of different elements, but arising out of thesame set of facts.'" Rhoden, 299 Ill. App. 3d at 957, 702 N.E.2dat 213, quoting People v. Klingenberg, 172 Ill. 2d 270, 274, 665N.E.2d 1370, 1373 (1996). Verdicts are legally inconsistent ifthey necessarily involve the conclusion that the same essentialelement or elements of each crime were found both to exist andnot to exist. Rhoden, 299 Ill. App. 3d at 957, 702 N.E.2d at213.

Verdicts acquitting a defendant of the predicate offense andconvicting him of the compound offense are legally inconsistent,and the conviction for the compound offense must be reversed. Klingenberg, 172 Ill. 2d at 275, 665 N.E.2d at 1373 (verdictsacquitting the defendant of theft but convicting him of officialmisconduct, which was based on the theft, were legallyinconsistent). On the other hand, verdicts convicting adefendant of the predicate offense and acquitting him of thecompound offense, if inconsistent, are only logicallyinconsistent and may stand. Klingenberg, 172 Ill. 2d at 275, 665N.E.2d at 1373.

In the present case, the defendant was acquitted of thecompound offense, armed robbery, but convicted of the predicateoffense, robbery.

The trial court referred to the fact that the gun was notrecovered, not that it was not used to take Mr. Carter's LINKcard. The trial court found the defendant guilty of thepredicate offense, not the compound offense, and therefore thefindings are logically, not legally, inconsistent.

We conclude that the trial court's finding of guilty as torobbery and not guilty as to armed robbery in this case arelogically rather than legally inconsistent, and therefore, thedefendant is not entitled to reversal of his robbery conviction.

The defendant contends that his sentence must be reducedbecause the value of the LINK card was less than $300.

However, as the State points out, the defendant's argumentis based on his contention that he should have been convicted oftheft rather than robbery. Unlike a conviction for theft wherethe penalty is impacted by the value of the property taken, thevalue of the property taken does not impact the penalty in thecase of residential burglary or robbery, the convictions which wehave upheld. See 720 ILCS 5/16-1, 18-1, 19-3 (West 2000).

Therefore, we conclude that the defendant is not entitled toa reduction in his sentence.

The defendant's convictions and sentences are affirmed.

Affirmed.

SOUTH, P.J., and HOFFMAN, J. concur.

1. On redirect examination, the prosecutor attempted to"clarify" Mr. Carter's testimony as to whom he contacted afterthe defendant left his apartment. Although much of his testimonywas objected to, it appears that Mr. Carter did call his brotherand did speak to his sister-in-law.