NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
2023 IL App (3d) 200475-U
Order filed November 7, 2023 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 12th Judicial Circuit, ) Will County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-20-0475 v. ) Circuit No. 13-CF-505 ) KAREEM GREEN, ) Honorable ) David M. Carlson, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________
JUSTICE DAVENPORT1 delivered the judgment of the court. Justice Hettel concurred in the judgment. Justice McDade dissented. ____________________________________________________________________________
ORDER
¶1 Held: The State proved defendant guilty beyond a reasonable doubt. The court did not abuse its discretion by refusing to allow defendant to present certain evidence.
¶2 Defendant, Kareem Green, appeals his convictions. Defendant argues that he was not
proven guilty beyond a reasonable doubt because he had an alibi in regard to one victim and the
1 This case was reassigned to Justice Davenport on October 17, 2023, after Justice O’Brien was elected to the Illinois Supreme Court. second victim admitted she was 20 to 35% sure another individual committed the crime. Defendant
further argues that the Will County circuit court abused its discretion by refusing to allow him to
present evidence regarding an alternative suspect, including a sketch by one victim, a mugshot,
and the circumstances surrounding an incident that involved this alternative suspect. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant with burglary (720 ILCS 5/19-1(a) (West 2012)), aggravated
battery (id. § 12-3.05(c)) of A.O., attempted kidnapping (id. §§ 8-4(a), 10-1(a)(2)) of A.O., two
counts of unlawful restraint (id. § 10-3(a))—one count each as to A.O. and Y.M., and battery (id.
§ 12-3(a)(2)) of Y.M. Defendant was found guilty of aggravated battery, attempted kidnapping,
two counts of unlawful restraint, and battery. He appealed and this court vacated defendant’s
convictions, reversed the denial of defendant’s motion to suppress, and remanded for further
proceedings. People v. Green, 2016 IL App (3d) 150720-U, ¶ 29.
¶5 On remand, the matter proceeded to a jury trial. A.O. testified that on January 29, 2013,
she was 17 years old and attended Bolingbrook High School. School ended at 3:05 p.m. and she
left immediately. She did not have to stop at her locker or do anything prior to leaving. She would
typically walk home from school and it took her approximately 25 to 30 minutes. On January 29,
she exited the school, crossed the street, and entered the park. The park goes “[s]traight to the
subdivision, crossing the bridge.” There is a path leading into the subdivision. She noticed a Ford
Explorer at the end of the path. A.O. thought it might be her brother. A.O. slowed down but when
she realized it was not her brother she continued walking. A.O. saw the Ford Explorer pass her
and she continued walking. Then “[t]he truck came back again, but this time he looked over at me
and he slowed down. He was passing by me real slow.” A.O. found it unusual but continued
walking. At that point, she was turning onto Far Hills Drive. The Ford Explorer parked at the end
2 of Far Hills Drive by an alley. A.O. saw a man, whom she later identified in court as defendant,
“wearing a T-shirt, sweats, not that tall of a guy, a little tall” exit the vehicle. Defendant jogged
toward A.O. but continued past her. Defendant then passed A.O. again. After passing A.O. the
second time, defendant turned around and walked toward her. He asked her something and after
she responded, “he started to grab [her] and he kept saying come here, come here.” A.O. stated
that he “was feeling on” her and when she pushed him away he grabbed her by the waist and tried
carrying her to his vehicle. Defendant was able to move A.O. several feet and then she “looked at
him and *** saw in his eyes that he saw something and he got scared, that’s when he let [her] go
and he started running.”
¶6 A.O. saw a truck driving down the street, and the driver, later identified as Kevin Martin,
stopped to check on her. Martin wrote down his name and number for A.O. and then chased
defendant. A.O. did not see where defendant went. After Martin left, A.O. called her mother and
continued walking home. Her boyfriend picked her up after she went through the alley and onto
Schmidt Road. Her boyfriend took her home where A.O.’s father was already in contact with the
police.
¶7 Maps of the area were admitted into evidence, and A.O. explained the path she took home,
including identifying the school, the park, the subdivision, and the alley. She further pointed out
the location of the attack. On one map, she identified where her school and home were, and the
location of the attack.
¶8 A.O. stated that on March 5, 2013, she went to the police department to view a
photographic lineup. She was shown a document, later identified as lineup instructions, which she
stated she read and signed prior to the lineup being administered. A.O. also stated that a detective
read it to her prior to the lineup. A.O. identified the lineup that was shown to her. A.O. noted that
3 she circled defendant on the lineup and did so “[b]ecause that’s the guy that attacked [her].” No
one suggested to her who she should pick out of the lineup.
¶9 On cross-examination, A.O. indicated that her boyfriend was supposed to pick her up from
school that day but sent her a text message that he was running late. She initially stated that her
boyfriend sent the message after she left school but then stated she did not remember if it was
before or after. She stated that she did not wait for her boyfriend and continued walking but then
agreed that she “paused” and waited for him but continued walking when she knew he was going
to be late. A.O. stated that it did not take 15 minutes to walk to Schmidt Road. She was impeached
with testimony from a prior proceeding where she agreed it took “around 15 minutes” to walk to
Schmidt Road. A.O. stated that the person who attacked her had an accent. A.O. went to the police
department on January 30 to participate in making a sketch of the suspect. A.O. provided input for
the sketch and offered suggestions that led to changes in the sketch. She rated the accuracy of the
sketch as an 8 out of 10. The sketch of the suspect had a goatee, not a full beard. A.O. agreed that
she knew there was a suspect in custody when she did the lineup. She further agreed that she knew
she was being shown photographs that included a suspect. As to the person she picked out of the
lineup, A.O. reiterated that she “knew it was him.”
¶ 10 On redirect, A.O. stated that she advised police that “the offender was a black male,
approximately five, eight with a muscular build, 21 to 25 years old” and that he “had a small afro
and trimmed beard and spoke with some kind of accent.” On recross, A.O. agreed that a trimmed
beard is a goatee.
¶ 11 Martin testified that he lived on Princeton Drive, and Bolingbrook High School was
approximately two blocks from his residence. On January 29, 2013, he left his house at
approximately 3 p.m. to pick his daughter up from school. Her school dismissed between 3:10 and
4 3:15 p.m. He took Princeton Drive to the end of the cul-de-sac and then drove onto Far Hills Drive.
On that day, he noticed A.O. walking and a young man, who he later identified in court as
defendant, “on the opposite side of the street like running directly at her.” Martin did not know
A.O. or defendant. Martin described defendant at the time he saw him running as having “a small
beard, afro, fitted shirt, sweat pants” and he was black. Defendant’s beard looked like it had been
freshly cut and was neat. Defendant was looking directly at A.O. and running in her direction but
when he saw Martin, “he veered and continued to like jog past her, and I thought that was weird
because to me he was looking right at her and all of a sudden he was jogging past her.” Martin
continued driving but maintained visual contact of A.O. and defendant. Nothing obstructed his
view. When Martin made his way up the block, defendant “pivoted, made a U-turn, and then turned
right back in her direction, and went right at her.” Martin saw defendant trying to grab A.O. and
pull her toward him. Defendant grabbed A.O. about the waist. Martin made a U-turn and “punched
it up the street.” When defendant saw Martin coming back, he released A.O. and ran towards a
“greenish type of dark color” Explorer. Martin was shown a photograph and he agreed that it
depicted a vehicle similar to the one he saw on January 29. He admitted he previously described
the vehicle as “dark money-green” and that it could have been a Mercury Mountaineer. The vehicle
did not have a stripe “that he kn[e]w of. It was plain, one color.”
¶ 12 Martin talked with A.O. and attempted to follow the Explorer but was unable to keep up
with it. He did not see where it went because he was focused on A.O. Martin provided A.O. his
information and spent a minute or two with A.O. When Martin arrived at his daughter’s school,
she was already out of school and in the principal’s office, which is the procedure when a parent
is late picking up their child.
5 ¶ 13 On March 5, Martin was called to the police department because “they caught a guy and
they wanted to see if it was the guy that *** [he] described.” Prior to viewing the photographic
lineup, a detective read Martin instructions and he reviewed the instructions. When Martin was
shown the lineup, he was unaware that one photograph was the person that the police suspected.
He stated that the police “didn’t like guide me into any direction, and *** you couldn’t do that to
me anyway because *** I’m not in there to falsely pick anybody like that.” Martin circled the
photograph of defendant “[b]ecause that’s the image that I had in my head of the guy.” The
detective did not tell him which photograph to circle.
¶ 14 Y.M. testified that on January 31, 2013, she was 16 years old and attended Bolingbrook
High School. After leaving school that day at 2 p.m., she walked to a friend’s apartment. Y.M.
walked through the park and onto a road to get to the apartment. While on the road, she heard
footsteps behind her. Y.M. turned around and noticed a person, whom she later identified in court
as defendant, in a red jacket walking behind her. Defendant had a hood on. When she arrived at
the apartment, she opened the door and held it for defendant. As Y.M. entered the building, she
was in front of defendant. She climbed the stairs to the second floor, as did defendant. She and
defendant began walking down the hallway, which had ceiling lights. Halfway down the hallway
she heard defendant’s footsteps speed up. Y.M. turned around and saw defendant’s hand go across
her face. “His right hand was on [her] left cheek and his left hand was on [her] buttocks.” Y.M.
struck defendant with her elbow and “[h]e stumbled initially and then he got his balance and ran
out.” Y.M. screamed for help. Y.M. stated the struggle lasted a few seconds and as defendant left
she “was able to get one glance at his face.” Nothing obstructed her view of defendant’s face.
Defendant’s hood came off during the struggle.
6 ¶ 15 Y.M. provided a description to the police that defendant was black, between five feet, three
inches and five feet, five inches tall, with minimal facial hair and an “Afro-type of hairdo” and
wearing a red jacket. She was shown a red North Face jacket, which an officer later testified was
recovered from defendant, and she stated it looked like the jacket defendant was wearing when he
grabbed her. On March 5, 2013, Y.M. went to the police station to view a photographic lineup.
Prior to viewing the lineup, a detective went over the instructions with her and she read the
instruction sheet. The detective told Y.M. that the offender may not be in the photographs. Y.M.
circled defendant’s photograph and identified him as her attacker. The detective did not tell Y.M.
which photograph to choose and no one influenced her decision. Y.M. “remember[ed] saying that
[she] could tell it was him immediately due to his eyes.”
¶ 16 On cross-examination, Y.M. testified that when she first noticed someone behind her while
she was walking she did not pay much attention. Y.M. stated that after she elbowed defendant,
“[o]nce he regained his balance and he looked back at me, that was the one glance I got directly of
his face before he ran out.” Y.M. looked at defendant’s face for “about a second.” She got a look
at defendant’s face but not a “pretty good look.” Y.M. told the officers that defendant wore a red
North Face jacket. She also said that defendant had a hood on but she did not know if the hood
was attached to the jacket. Y.M. described defendant to the officers as having a “chubby face” and
a medium to heavy build with minimal facial hair. She described him as having a mustache but
not a beard.
¶ 17 On February 6, 2013, Y.M. was approached by a classmate who asked if her attacker could
be someone the classmate knew from Facebook. The classmate showed Y.M. a Facebook profile
of Tyrone Hughes. There were similarities between Hughes and defendant. When asked if there
were enough similarities that she brought Hughes to the attention of the police, she stated “Not
7 necessarily. I brought it to their attention because it was a possibility, and I just wanted to make
them aware of any other details that might arise due to the attack.” Y.M. admitted that when she
brought Hughes to the detective’s attention, she stated that Hughes looked like her attacker. On
the same day Y.M. gave the detectives Hughes’s name, she also gave them a sketch which depicted
her attacker with a mustache and not a beard. Y.M. did not recall writing the name Hughes on the
sketch. When Y.M. participated in the photographic lineup she told the officer that the skin tone
was off and he told her that skin tone can look different because of the lighting. Y.M. made her
identification after the officer told her that. She told the officers that she made the identification
based upon the face shape, lips, and eyes of the person in the lineup. Y.M. was asked if she stated
that Hughes and her attacker had a similar face and mouth shape and she replied that she said they
had similarities. She was impeached with prior testimony that Hughes’s face, mouth, and eyes
were similar to her attacker.
¶ 18 On redirect, Y.M. stated that the instructions given prior to the photographic lineup stated
that the photographs could be darker or lighter in tone and that skin tone could change based upon
the lighting. Y.M. never told the police that Hughes was her attacker. She never said that anyone
else was her attacker.
¶ 19 On recross, Y.M. was asked “How similar would you say *** Hughes looked to the person
that attacked you” on a scale of 1 to 100. She responded, “I would say there is like maybe a 20
percent chance. There are similarities.” Y.M. was impeached with prior testimony where she said,
“35 percent.”
¶ 20 The officer who conducted the photographic lineup with Y.M. testified that he “didn’t feel
there was any unsureness” in her identification of defendant. He noted that after Y.M. pointed at
8 defendant’s photograph, she was unsure of the skin tone, and after he explained that skin tone can
appear different in photographs, Y.M. circled defendant’s photograph.
¶ 21 Sergeant Sean Koren, the officer who conducted the photographic lineup with A.O.,
testified that after A.O. selected defendant’s photograph, he asked her what stood out to her and
she stated it was his eyes, eyebrows, and nose. Koren also conducted the photographic lineup with
Martin and stated that when he asked Martin, after Martin selected defendant’s photograph, what
stood out to him, Martin stated it was his eyes, hair, and beard.
¶ 22 Kenneth Simpson testified that in 2013 he was a detective. He was assigned to take
photographs of a vehicle that was possibly involved in an incident. Simpson stated the vehicle was
defendant’s and he described it as a “green, blueish Ford SUV.” A photograph of the vehicle was
admitted into evidence. Simpson testified that the hospital was “not far” from where A.O. was
attacked. He explained it was approximately 1½ to 2 miles away. It would take as little as two
minutes to get there and “[e]ven if you hit every light, [he] c[ould]n’t see it being any more than
five minutes.”
¶ 23 A video recording of a traffic stop of defendant on February 1, 2013, was admitted into
evidence. Defendant’s vehicle is visible on the video. Defendant was out of the vehicle for a few
moments, and his face, including his facial hair, was visible. Additionally, the photographic
lineups shown to A.O., Y.M., and Martin were admitted into evidence, along with the lineup
instructions.
¶ 24 After the State rested, defendant moved for a directed verdict, which the court denied.
Defendant was allowed to elicit testimony from Detective Nicholas Azzo regarding other
individuals he investigated in relation to this matter. Defense counsel asked various questions
regarding those investigations. Those individuals were ruled out as suspects. Azzo did not recall
9 interviewing Hughes. None of these individuals appeared in the photographic lineups. On February
1, 2013, Azzo received a call to view a possible suspect. A vehicle matching the description from
A.O.’s attack was stopped. Defendant was the driver. Azzo had a conversation with defendant, and
defendant asked, “is this about the guy who was kidnapping the girls by the school?”
¶ 25 Gerald Staley testified that in January 2013 he was the human resource director at the
hospital. Defendant worked at the hospital at that time. Everything connected to the hospital
network, including the computer system and the surveillance system, are “time stamped at the
same time.” Surveillance video from the hospital was admitted into evidence and played for the
jury. Staley testified that the video shows the emergency room entrance that is located at “the
corner of Schmidt and Remington.” Staley identified defendant on the surveillance video walking
into the hospital wearing scrubs. The video shows the date as January 29, 2013, and when the man
Staley identified as defendant walks into the hospital the time stamp is approximately 3:17:40 p.m.
Defendant’s timecard, which was admitted into evidence, shows that he clocked into work at 3:20
p.m.
¶ 26 The sketches that A.O. and Y.M. completed with the police sketch artist were admitted into
evidence. Simpson testified that the sketch completed with A.O. showed the attacker with a goatee
and the sketch completed with Y.M. showed the attacker with a mustache and no beard. On
February 6, 2013, Y.M. brought Simpson Hughes’s name. Y.M. also brought Simpson a drawing
that she had made. Simpson was shown the drawing by Y.M. and he identified his signature on the
drawing. The drawing included writing—Y.M.’s name—and Simpson stated he did not write that
and did not know who did. Additional writing—the name Hughes—was contained on the drawing
and Simpson did not write that either.
10 ¶ 27 Defense counsel asked Simpson if he investigated any incidents that Hughes may have had
at Bolingbrook High School, and Simpson stated he did not. At that point, the State objected.
Outside the presence of the jury, defense counsel stated he was trying to establish Hughes as an
alternative suspect. The State noted that there was an investigation into Hughes where he brought
a gun to the high school and Hughes was charged in February 2013 but that it was irrelevant to
defendant’s trial and prejudicial. The court inquired as to the relevance and defense counsel stated
“[t]he relevance is he is a bad guy.” Defense counsel asserted there was no question that this
evidence was relevant, which the court did not agree with. Defense counsel argued that the violent
nature of an alternative suspect is relevant and the State replied that there is no similarity between
Hughes’s offense and the offenses defendant was on trial for. Defense counsel advised the court
that Hughes was expelled from Bolingbrook High School but returned to the school and brought
a gun with him. When he was confronted about not being allowed at the school, he spit on a school
employee. He was charged with aggravated battery and a weapons offense after his home was
searched and a weapon was recovered. The court noted that defense counsel was attempting to
introduce a collateral issue. Defense counsel argued that the offenses were similar in that both
Hughes’s conduct and the offenses against Y.M. and A.O. were brazen. The court refused to allow
the evidence of Hughes’s incident at the high school stating that not only could it prejudice the
State, it could inflame the passions of the jurors against defendant because they may infer he had
a weapon.
¶ 28 Defense counsel then noted that he wanted to introduce Hughes’s mugshot into evidence
arguing it was “a meld of the two descriptions” given by A.O. and Y.M. The State argued it was
not relevant. The court agreed stating that whether the jury believed the sketches completed with
11 A.O. and Y.M. were accurate depictions of Hughes was “collateral at best.” Generally, the court
noted that it was not going to let this turn into a trial as to Hughes.
¶ 29 Defense counsel also stated that he wanted to introduce the sketch that Y.M. prepared. The
sketch was not shown to Y.M. during her testimony. Defense counsel argued that Y.M. stated the
sketch was of Hughes but the State argued that that was not Y.M.’s testimony and she only stated
the sketch was of her attacker. Further, she did not remember writing Hughes on the sketch and
Simpson did not write it. The court agreed but asked if that went to the weight of the evidence.
The State argued that Y.M. did not remember putting Hughes’s name on the sketch and Simpson
did not write Hughes’s name but that defendant now wanted to enter it into evidence and say it
was Hughes because his name is on it. The court replied “I don’t know if you’re going to say that.
It’s just a sketch that she prepared.” Further, that it did not “know what the reasonable inference”
was. Defense counsel argued that they needed to look at the context. The court then stated that if
it allowed the sketch into evidence, defense counsel could not argue in closing argument that Y.M.
said the sketch was Hughes because that was not a reasonable inference from the evidence. Defense
counsel disagreed and the court stated it was not going to allow the sketch. The court stated the
sketch did not meet the foundational requirements.
¶ 30 Simpson testified that if there was no Miranda form for Hughes then he did not interview
Hughes. Simpson did not believe that he interviewed Hughes. Simpson did not include Hughes in
a photographic lineup. Simpson came into contact with numerous individuals during his
investigation and he eliminated individuals as suspects by the vehicle they drove or identifying
descriptors. Hughes’s name came to his attention because Y.M. told him that Hughes looked like
her attacker. Y.M. never told Simpson that Hughes was the attacker. Y.M. was not shown a
photographic lineup that included Hughes.
12 ¶ 31 Detective Jason Mitchem testified that he “was dispatched at approximately 3:30” in regard
to A.O.’s attack. According to his report, the incident occurred at 3:24 p.m. That information was
generated by a dispatcher. The report indicated that dispatch received the call at 3:21 p.m. It further
indicated that there was a 10 to 15 minute delay in reporting. A.O. indicated to Mitchem that the
attacker had a small “afro,” a trimmed beard and an accent. Mitchem stated that he lived in the
area where the incident occurred and that “[i]t takes approximately a minute to a minute and a half
to walk over the bridge, though the park, over the bridge into the neighborhood.” He continued
that “to leave Bolingbrook High School and get across the bridge would only take a minute to a
minute and a half.”
¶ 32 Outside the presence of the jury, there was argument regarding the admissibility of phone
records that defendant wanted to argue. After agreeing the records could be admitted, while the
parties were determining what exhibit number they were at, the court brought up its ruling on the
admissibility of Y.M.’s sketch. It stated that the drawing contained hearsay—Hughes’s name—
and it had considered allowing the sketch in with the caveat that the hearsay would not be used to
argue anything. Defense counsel stated that when he said he disagreed earlier, it was that he
disagreed that it was hearsay, not that he would not follow the court’s order. The court replied that
Hughes’s name was “pure hearsay with no foundational guarantee of authenticity *** because
nobody is able to answer who put that name on there. So that’s why I am not allowing it in.”
Counsel responded, “I was willing to also put everything in except the name, but that’s fine. I just
wanted to make the record clear.”
¶ 33 When the trial resumed, defendant entered phone records into evidence showing that on
January 31, 2013, he received a call at 2:10:25 p.m. with a duration of 24 seconds.
13 ¶ 34 The jury found defendant guilty of both counts of unlawful restraint—one count each as to
A.O. and Y.M., battery of Y.M., and aggravated battery of A.O. Defendant filed a motion for new
trial arguing that the State did not prove him guilty beyond a reasonable doubt and that the court
erred by not allowing defendant to introduce evidence of Hughes’s incident at Bolingbrook High
School, Hughes’s mugshot, and Y.M.’s sketch. The court denied the motion. It sentenced
defendant to four years’ imprisonment for aggravated battery and a concurrent term of two years’
imprisonment for unlawful restraint. The other counts merged. Defendant appeals.
¶ 35 II. ANALYSIS
¶ 36 A. Sufficiency of the Evidence
¶ 37 Defendant argues that the State failed to prove him guilty beyond a reasonable doubt.
Defendant does not argue that the elements of the offenses were not proven but instead, as to both
victims, he argues that the identifications of him as the perpetrator were not sufficient to sustain
the convictions. Additionally, he argues that the timeline of A.O.’s attack made it impossible or
improbable for him to have been the perpetrator.
¶ 38 When defendant challenges the sufficiency of the evidence “it is not the function of this
court to retry the defendant.” People v. Collins, 106 Ill. 2d 237, 261 (1985). Instead, we must
determine whether the evidence, viewed in the light most favorable to the State, would permit any
rational trier of fact to find the elements of the offense proven beyond a reasonable doubt. People
v. Ross, 229 Ill. 2d 255, 272 (2008). “This standard of review does not allow the reviewing court
to substitute its judgment for that of the fact finder on questions involving the weight of the
evidence or the credibility of the witnesses.” People v. Jackson, 232 Ill. 2d 246, 280-81 (2009).
“[I]t is the function of the trier of fact to determine the credibility of the witnesses, the weight to
be given to their testimony and the inferences to be drawn from the evidence.” People v. Akis, 63
14 Ill. 2d 296, 298 (1976). A criminal conviction “will not be set aside unless the proof is so
unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendant’s
guilt.” People v. Slim, 127 Ill. 2d 302, 307 (1989). “When the facts in a case give rise to more than
one inference, a reviewing court shall not substitute its judgment for that of the trier of fact unless
the inference accepted by the trier of fact is inherently impossible or unreasonable.” People v.
Price, 225 Ill. App. 3d 1032, 1035 (1992). We must allow all reasonable inferences from the
evidence in favor of the State. People v. Lloyd, 2013 IL 113510, ¶ 42.
¶ 39 “A single witness’ identification of the accused is sufficient to sustain a conviction if the
witness viewed the accused under circumstances permitting a positive identification.” Slim, 127
Ill. 2d at 307. “This is true even in the presence of contradicting alibi testimony, provided that the
witness had an adequate opportunity to view the accused and that the in-court identification is
positive and credible.” Id. The
“circumstances to be considered in evaluating an identification include: (1) the
opportunity the victim had to view the criminal at the time of the crime; (2) the
witness’ degree of attention; (3) the accuracy of the witness’ prior description of
the criminal; (4) the level of certainty demonstrated by the victim at the
identification confrontation; and (5) the length of time between the crime and the
identification confrontation.” Id. at 307-08.
¶ 40 1. A.O.
¶ 41 With regard to A.O., defendant’s main argument is that it was impossible or highly
improbable for him to have been A.O.’s attacker. He argues that he would not have been able to
attack A.O. at the time the evidence shows she was attacked and make it to the hospital for work
when he did.
15 ¶ 42 Viewing the evidence in the light most favorable to the State, we conclude that it was not
impossible or improbable for defendant to have attacked A.O. Specifically, A.O. testified that she
left school at 3:05 p.m. Mitchem, who was familiar with the area, testified that it would only take
a minute to a minute and a half to walk from the high school to the neighborhood where the attack
occurred. The jurors were shown maps of the area and the route that A.O. took so they could gauge
for themselves how long they believed it would have taken A.O. to reach the location where she
was attacked. Additionally, A.O.’s and Martin’s testimony both indicated the attack was brief. The
911 call came at 3:21 p.m. and there was a record indicating that there was a 10 to 15 minute delay
in the attack being reported. Further, Simpson testified that it could take as little as two minutes to
get from the attack location to the hospital where defendant worked, and at most, five minutes.
Defendant was shown walking into the hospital at approximately 3:17:40 p.m. Based on this
evidence, it is not impossible or improbable for the attack to have occurred at approximately 3:10
p.m. and for defendant to have made it to the hospital, changed from sweatpants to scrubs and
walked into work at 3:17:40 p.m. Therefore, the proof is not so unsatisfactory, improbable or
implausible to justify overturning defendant’s conviction. See id. at 307.
¶ 43 As a secondary argument, defendant argues that A.O.’s and Martin’s identifications were
insufficient. But even a single identification can be sufficient, and in this matter there are two
positive identifications of defendant. Both witnesses had a sufficient opportunity to view defendant
at the time of the crime. A.O. saw defendant multiple times and Martin was specifically paying
attention to defendant because of the perceived odd behavior of running toward A.O. and then past
her. Both witnesses made positive identifications and only a month passed between the attack and
the identifications. Although there are some discrepancies regarding their initial description of
defendant, mainly in relation to his facial hair, our supreme court has stated that “discrepancies
16 and omissions as to facial and other physical characteristics are not fatal, but simply affect the
weight to be given the identification testimony.” Id. at 308. Further, “[t]he presence of
discrepancies or omissions in a witness’ description of the accused do not in and of themselves
generate a reasonable doubt as long as a positive identification has been made.” Id. at 309. Here,
although defendant argues his beard was “bushy,” the jury was able to observe defendant’s facial
hair in the February 1 recording of the stop of defendant and then weigh any discrepancies.
Additionally, both A.O. and Martin made positive photographic lineup identifications and
identified defendant at trial. Therefore, the discrepancies in their description of defendant do not
generate reasonable doubt. Also, in addition to the identifications of defendant, A.O. and Martin
both stated that the attacker was in a Ford Explorer and Martin described it as green. Defendant
was stopped within days of the attack driving a Ford Explorer which an officer described as a
“green, blueish” vehicle. A photograph of defendant’s vehicle, as well as a video recording of the
vehicle, were introduced into evidence. Although defendant latches on to discrepancies between
Martin’s description of the vehicle and what he says his vehicle actually looked like, the jurors
were able to view the photograph and video of defendant’s vehicle and weigh any discrepancies
for themselves. Based on the foregoing, we cannot say that the State failed to prove defendant
guilty beyond a reasonable doubt in regard to A.O.’s attack.
¶ 44 2. Y.M.
¶ 45 Defendant argues that there was reasonable doubt regarding whether he was Y.M.’s
attacker because she herself stated that there was a 20% chance Hughes was the attacker and her
identification of defendant was unreliable.
¶ 46 As to defendant’s first argument, Y.M. did not state that there was a 20% chance that
Hughes was her attacker. Rather, she answered defense counsel’s question of how similar Hughes
17 was to her attacker on a scale of 1 to 100 with a “20 percent chance.” Because the question as
posed and the response do not perfectly align, the meaning of the response was open to
interpretation, which would be a function for the jury. See Price, 225 Ill. App. 3d at 1035. Viewing
this evidence in the light most favorable to the State and allowing for the reasonable inference in
favor of the State, then this evidence is viewed as Y.M. stating that Hughes and her attacker were
20% similar. As such, this testimony by Y.M. does not equate to reasonable doubt.
¶ 47 Turning to Y.M.’s identification of defendant as her attacker and the factors set forth in
Slim for evaluating an identification, we note that Y.M. made it clear that she had an opportunity
to view defendant’s face, albeit for a short period of time. There is no indication that Y.M. was not
paying close attention to defendant when she looked at his face after elbowing him. Defendant
attempts to use Y.M.’s statement that she initially did not pay attention to the person behind her to
say that she was not paying adequate attention to defendant to be able to make a reliable
identification; however, the statement was not in relation to when Y.M. viewed defendant’s face,
but earlier, when she first noticed defendant walking behind her. Defendant points to a discrepancy
with Y.M.’s prior description of defendant—that he only had a mustache, not a beard—to say that
her prior description was not accurate. However, again, these types of discrepancies are not fatal.
See Slim, 127 Ill. 2d at 308-09. Y.M. was confident in her identification of defendant which she
made during a photographic lineup approximately one month after the attack and again in court
during trial. Thus, weighing the Slim factors, we conclude that Y.M.’s identification of defendant
was positive and credible. Additionally, we note that Y.M. described her attacker as wearing a red
North Face jacket and defendant owned a red North Face jacket. Further, the jury was allowed to
hear the evidence regarding A.O.’s attack, which was similar in time, place, and nature. Taking all
18 of this evidence together and viewing it in the light most favorable to the State, we conclude that
it is sufficient to permit a rational trier of fact to find defendant guilty beyond a reasonable doubt.
¶ 48 B. Alternative Suspect Evidence
¶ 49 Defendant argues that the court denied him a fair trial by refusing to allow him to present
evidence of an alternative suspect. Specifically, he argues the court should have allowed evidence
regarding Hughes bringing a gun to Bolingbrook High School and spitting on an employee after
being expelled, Hughes’s mugshot, and a sketch by Y.M.
¶ 50 “Evidentiary rulings are within the sound discretion of the trial court and will not be
disturbed on review unless the trial court has abused its discretion.” People v. Cruz, 162 Ill. 2d
314, 331 (1994). “An accused may attempt to prove that someone else committed the crime with
which he is charged.” People v. Thomas, 145 Ill. App. 3d 1, 12 (1986). “Whether what is offered
as evidence will be admitted or excluded depends upon whether it tends to make the question of
guilt more or less probable, and a trial court may reject offered evidence on the grounds of
irrelevancy if it has little probative value due to its remoteness [or] uncertainty.” Id. at 13. Citing
various cases where alternative suspect evidence was excluded, the Thomas court stated:
“the appellate court decisions have generally found that remote, nonspecific, and
speculative evidence that the crime could have been committed by another is
properly excluded. (People v. Smith, 122 Ill. App. 3d 609 (1984) (evidence that
another suspect matching the description of the perpetrator who is found in the area
of the crime and initially arrested excluded as remote connection with crime);
People v. Foley, 109 Ill. App. 3d 1010 (1982) (evidence that testifying accomplice
has a brother who fits description of perpetrator of crime excluded as not showing
he was involved in the crime); People v. King, 61 Ill. App. 3d 49 (1978) (evidence
19 that another person had been investigated who physically resembled perpetrator and
had a prior arrest for one of the crimes charged was excluded as too conjectural).)”
Id.
Additionally, the Thomas court noted that “[i]f evidence can be introduced concerning a remote or
nonspecific possibility that another may have committed the crime, trials could go on ad infinitum
and juries could become hopelessly confused with speculative evidence.” Id. Generally, evidence
may be excluded if its probative value is outweighed by the danger of “confusion of the issues” or
by considerations of “needless presentation of cumulative evidence.” Ill. R. Evid. 403 (eff. Jan. 1,
2011).
¶ 51 Here, defendant wanted to introduce evidence relating to Hughes and a sketch by Y.M. The
only connection Hughes had to this matter was that Y.M. brought his name to the attention of the
police because he had similarities to her attacker. At no time did Y.M. indicate that Hughes was
her attacker. There was no evidence that Hughes was in the vicinity of the attacks at the time they
occurred. The idea that Hughes was the attacker was speculative and remote. See e.g., Thomas,
145 Ill. App. 3d at 13-14 (finding the court did not abuse its discretion in refusing to admit evidence
of an alternative suspect and noting that there was no direct evidence the purported alternative
suspect committed the crime and that at most the proffered testimony “might cause speculation
that [another individual] could have committed the crimes, but which did not directly implicate
him”).
¶ 52 Even so, the court allowed defendant to elicit testimony regarding Y.M. bringing Hughes’s
name to the attention of the police, and that Hughes looked similar to her attacker. The evidence
the court excluded was even more remote, speculative, irrelevant, or cumulative. Specifically,
Hughes’s incident at the high school was too dissimilar to the crimes at issue in this matter to be
20 of much, if any, probative value and introducing that evidence could easily lead to confusion of
the jury. See, e.g., People v. King, 61 Ill. App. 3d 49, 54 (1978) (“If evidence could be introduced
concerning a third party’s [criminal conduct] without a more specific connection to the particular
crime involved, trials could go on ad infinitum and juries would become hopelessly confused with
the morass of evidence presented to them.”). Although the court ultimately excluded the evidence
based upon prejudice, which does not appear to be a proper basis (see Cruz, 162 Ill. 2d at 350
(noting that in a “case dealing with other-crimes evidence offered by a defendant, such evidence
is admitted where the evidence contains ‘significant probative value’ to the defense without any
reference to the element of prejudice”) (quoting People v. Tate, 87 Ill. 2d 134, 143 (1981))), it did
indicate that the evidence was not relevant and collateral which would be a proper basis to exclude
it. Regardless, this court can affirm for any reason supported by the record. See People v. Tondini,
2019 IL App (3d) 170370, ¶ 25 (providing that this court “may affirm for any reason apparent on
the record, regardless of the lower court’s reasoning”). As to the mugshot of Hughes, it is again
too remote and speculative that Hughes was the offender and his mugshot, in and of itself, does
nothing to make it more or less probable that defendant committed the crimes. Further, it is
somewhat cumulative in the sense that it was being offered to say that Hughes looked like the
sketches provided by A.O. and Y.M., but Y.M. already testified that Hughes looked similar to
defendant. As such, we find no abuse of discretion by the court in refusing this evidence.
¶ 53 Last, the sketch by Y.M. was excluded based on a lack of foundation. “A proper foundation
is laid for the admission of documentary evidence when the document has been identified and
authenticated.” People v. Ziemba, 2018 IL App (2d) 170048, ¶ 51. Authentication “requires the
proponent to present evidence that the document is what the proponent claims it to be.” Id. Here,
there was not a proper foundation to admit the document as a sketch of Hughes, which is what
21 defendant was attempting to do. Y.M. never stated that the sketch was Hughes and did not
remember writing Hughes’s name on the sketch. Although defendant asserts that he was willing
to admit the sketch with Hughes’s name redacted, he did not make this offer at the time the court
ruled on the admissibility and again, wanted to argue the sketch was of Hughes. Regardless, as
with the mugshot, the sketch itself would do nothing to make it more or less probable that
defendant committed the crimes and would be cumulative of Y.M.’s testimony because she
admitted making a sketch and giving it to the police and that the sketch only contained a mustache,
not a beard. Therefore, we find no abuse of discretion by the court in excluding the sketch.
¶ 54 III. CONCLUSION
¶ 55 The judgment of the circuit court of Will County is affirmed.
¶ 56 Affirmed.
¶ 57 JUSTICE McDADE, dissenting:
¶ 58 I respectfully dissent from the majority’s decision as I would find that the evidence was
insufficient to prove defendant guilty beyond a reasonable doubt. This case concerns the
prosecution of a single alleged perpetrator in two unrelated and largely dissimilar incidents. The
identification of the perpetrator was the central issue in this case and the sole factor tying defendant
to either crime. Eyewitness identification is the least reliable evidence, even under perfect
conditions. See People v. Starks, 2014 IL App (1st) 121169, ¶ 71; In re O.F., 2020 IL App (1st)
190662, ¶ 32; John P. Rutledge, They All Look Alike: The Inaccuracy of Cross-Racial
Identifications, 28 Am. J. Crim. L. 207 (2001). Fallibilities in eyewitness identifications such as:
(1) the weak correlation between a witness’s confidence in the identification and its accuracy,
(2) how the presence of a weapon can diminish the reliability of an identification, and (3) how
22 stress at the time of observation can render a witness less able to retain an accurate perception and
memory of the event, are not understood by juries. Starks, 2014 IL App (1st) 121169, ¶ 72.
¶ 59 Here, there were considerable problems with the identifications made by the eyewitnesses
in both incidents. While both victims identified the same individual, their identifications were
suspect. In the incident reported by A.O., assuming defendant was the perpetrator, the relevant
timeline was firmly fixed at each end. A.O. stated that school ended at 3:05 p.m. Defendant was
documented entering the emergency room entrance of the hospital where he worked at 3:17,
properly dressed for work, and clocking in for work at 3:20. This establishes a 12-minute window
of opportunity for the offense to occur.
¶ 60 A.O. stated that she left school without delay and that, as it typically did, it took her about
15 minutes to reach the point on her walk home where the assault took place. That would place
the assault at 3:20, the same time that defendant was, indisputably, clocking into his job and 3
minutes after he was photographed arriving at the hospital. Based on A.O.’s testimony, it was
virtually impossible for defendant to have either (1) attacked A.O. at all at the indicated time or
(2) attacked her, changed his clothes, and made it to work during the fixed span of time. See, e.g.,
People v. Rivera, 2011 IL App (2d) 091060, ¶ 34 (the evidence, which did not completely
exonerate the defendant, made the State’s theory of the case “not likely” and would rely on an
“absurd degree” of rationalization to explain the uncontested facts of the case).
¶ 61 The majority has accepted Detective Mitchem’s estimate that it is possible to walk to the
assault scene in 1 to 1-1/2 minutes. Supra ¶ 31. That is not per se inconsistent with A.O.’s time
estimate. Her 15-minute timeline represents her “usual” timing and must, therefore, include more
than just walking at a clip to determine how quickly the distance can be covered. In addition, A.O.
has admitted lingering in case her boyfriend came to pick her up. At any rate, her estimate of 15
23 minutes is very short, and it places defendant at the hospital when the attack allegedly occurred
and when the 911 call was made. And it necessarily puts the interactions with Kevin Martin even
further beyond the time defendant is firmly alibied. This later timing also gains credibility from
the fact that Martin’s arrival to get his daughter by 3:15 was sufficiently delayed that she had
stopped waiting outside and gone to the principal’s office to report that she had not yet been picked
up.
¶ 62 Y.M.’s identification of her attacker in the incident she reported was even more suspect.
She stated that she viewed her attacker for no more than one second. Nonetheless, she consistently
stated that the perpetrator had a mustache but no beard or goatee. That description was echoed in
the police artist’s drawing and was further reinforced by her own sketch, which she had drawn and
presented to one of the investigators, saying that it looked like her attacker. Like the police
drawing, the sketch depicted a man with a mustache and no beard. Defendant clearly had a beard
and no mustache at the time of the incident. She stated that she was 20 to 35% sure that her attacker
was another person, Hughes. That name was written on the sketch, but Y.M. denied placing it
there. Rather than simply redacting the name, the court refused to allow the jury to see it at all,
even though defense counsel had no objection to the redacted sketch being published to the jurors.
Equally troublesome, when shown photographs of possible perpetrators by the police, Y.M. stated
that the skin color of the assailant was different from any of the suspects portrayed in photographs,
but she was told that skin tone could look different because of the lighting. These discrepancies in
the identification were further exacerbated when the court denied defendant his right to present
evidence of Hughes as an alternative suspect. A defendant has the right to present evidence of a
third-party’s guilt, and the presentation of this evidence may not be arbitrarily restricted. People
v. Ramirez-Martinez, 2021 IL App (1st) 171443-U, ¶ 49
24 ¶ 63 Because of the significant identification issues as set out above, I would find, even applying
the Collins standard, the State failed to prove defendant guilty beyond a reasonable doubt and
reverse his convictions.