People v. Kelley

2024 IL App (1st) 220575-U

• Court: Appellate Court of Illinois
• Decided: March 29, 2024
• Docket: 1-22-0575
• Status: Unpublished

Opinion

2024 IL App (1st) 220575-U No. 1-22-0575 Order filed March 29, 2024 Second Division

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). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 20 CR 12886 ) JEREMAINE KELLEY, ) Honorable ) Michael R. Clancy, Defendant-Appellant. ) Judge, presiding.

JUSTICE McBRIDE delivered the judgment of the court. Presiding Justice Howse and Justice Cobbs concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for armed habitual criminal is affirmed where the evidence was sufficient to prove that he unlawfully possessed a firearm.

¶2 Following a bench trial, defendant Jeremaine Kelley was found guilty of two counts of

armed habitual criminal (AHC), two counts of unlawful use or possession of a weapon by a felon

(UUWF), and two counts of aggravated unlawful use of a weapon (AUUW). The court merged all

counts into one count of AHC (720 ILCS 5/24-1.7(a) (West 2020)) and sentenced defendant to No. 1-22-0575

seven years in prison. On appeal, defendant argues that the evidence was insufficient to prove that

he possessed a firearm. We affirm.

¶3 Defendant was charged by indictment with two counts of AHC and two counts of UUWF

for possessing a firearm while having prior qualifying convictions and two counts of AUUW based

on possessing a firearm without a valid concealed carry license (CCL) or firearm owners

identification (FOID) card.

¶4 At trial, Chicago police officer Zachary Kuta testified that on August 29, 2020, at

approximately 2:12 a.m., he was in uniform and riding in an unmarked vehicle with his partner,

Officer Matt Krzeptowski, who was driving. The officers patrolled the 2100 block of West

Randolph Street, an area known for narcotics, gang loitering, and high violence. Kuta observed a

large group of people drinking and loitering in a park and alley. As the officers approached the

group, Kuta observed defendant, whom Kuta identified in court, with a clear cup containing brown

liquid. Defendant made eye contact with Kuta, grabbed his waistband area, and then separated

from the group, walking northbound towards Randolph Street.

¶5 Kuta exited his vehicle and followed defendant. The area was illuminated with artificial

lighting and no obstructions prevented Kuta from seeing defendant. When Kuta was 15 to 20 feet

from defendant, defendant looked back in Kuta’s direction and then turned his body toward Kuta

and a parked vehicle. Kuta could see defendant’s waistband. With his right hand, defendant

retrieved a “dark-shaped, L-shaped object,” and “ben[t] down towards the [parked] vehicle,

placing it down, making a metallic clanking noise.” Defendant dropped the object underneath the

parked vehicle, behind the front passenger tire. Kuta had previously heard a firearm hitting the

ground and the “metallic clanking noise” was a similar sound. Defendant then walked away. As

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Kuta jogged towards defendant, he passed the vehicle and observed a firearm “right underneath

the vehicle” and “left of the tire.” No other items were in or near that area. Kuta detained defendant.

Krzeptowski approached them and Kuta instructed him to handcuff defendant. Kuta then retrieved

the firearm, which was loaded, from the same area that he saw defendant place it. Kuta had “kept

an eye” on that area and no one approached that area. Defendant did not respond to Kuta’s inquiries

as to whether he had a CCL or FOID card and only stated that the firearm was not his. Kuta later

learned that defendant did not have a CCL or FOID card.

¶6 Kuta confirmed that he was equipped with a functioning body-worn camera at the time of

the incident. The State published the footage from this camera, without objection. This court has

viewed the footage, which is included in the record on appeal.

¶7 In the footage, Kuta exits his vehicle from the passenger side and walks down a short

walkway between two buildings for about 10 seconds, then immediately turns right and jogs

through grass and then down the sidewalk. Parked vehicles are seen to Kuta’s left. About seven

seconds later, defendant is visible and Kuta jogs to him. Defendant is holding a clear plastic cup

and standing on the grass between the sidewalk and the street, just in front of a parked white

vehicle. Kuta asks defendant, “are you drinking,” and defendant replies, “yeah.” Kuta asks for

identification, which defendant provides. An unmarked police vehicle drives behind defendant,

and Kuta gestures at the vehicle. About 46 seconds later, Kuta walks back the way he came, passing

a man walking on the inner side of the sidewalk. Kuta walks to a parked silver vehicle, about two

car lengths away, with his flashlight aimed at the ground near its front passenger-side tire. A dark

object is visible on the ground underneath the parked vehicle. Kuta squats and retrieves a firearm

from the ground underneath the parked vehicle by the front passenger-side tire.

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¶8 Kuta confirmed that defendant cannot be seen on the footage squatting on the ground. Kuta

stated that his body-worn camera was in the middle of his chest. He was walking northbound and

looking eastbound in defendant’s direction. When he saw defendant place the firearm under the

vehicle, Kuta was behind defendant, towards the “center area.”

¶9 On cross-examination, Kuta testified that defendant was walking about 30 feet ahead when

Kuta exited the patrol vehicle. Kuta lost sight of defendant “[j]ust for a second” when defendant

went around a corner and headed eastbound on Randolph Street because there was a garage or

building. Kuta was 15 to 20 feet from defendant when defendant turned onto Randolph Street.

Kuta jogged after defendant when he observed defendant remove the firearm from his waistband.

He detained defendant about two car lengths from where he later recovered the firearm. After Kuta

detained defendant, he noticed that a man was walking towards him. Kuta acknowledged that a

group of people were slowly exiting the park area and then following him. He did not canvass for

witnesses among the people who were following him because “[t]hey were pretty hostile.”

¶ 10 The State entered the following stipulations: (1) defendant had a prior conviction for

manufacture and delivery of a controlled substance (case number 2017 CF 002139); (2) defendant

had a prior conviction for aggravated battery (case number 2011 CF 000361); and (3) defendant

did not have a CCL or FOID card on August 29, 2020.

¶ 11 Defendant’s girlfriend, Cassandra Tice, testified on his behalf and stated she had been with

him the “whole night.” As they were leaving the park, she realized she forgot her cellphone and

walked back towards the park. When the police arrived, she was not near defendant. She next saw

defendant when he was calling for her while he was with the police. Tice did not see defendant

with a firearm that evening.

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¶ 12 On cross-examination, Tice testified that when she walked away from defendant to retrieve

her cellphone, she did not know if he had anything in his hands because she could not see his

hands. She reiterated that defendant did not have a firearm.

¶ 13 The court found defendant guilty on all counts. The court found Kuta’s testimony credible

and clear and also found Tice candid and credible. However, the court did not find that Tice’s

testimony that she did not observe defendant with a firearm impeached Kuta’s testimony, because

she returned to retrieve her cellphone and did not see what happened on Randolph Street. The court

noted that, while it “believe[d] [Kuta was] impeached on the distance,” it did not “think he would

be unable to observe [defendant] place that item *** on the ground.” The court believed that when

Kuta observed defendant place the firearm by the tire, which was not captured by his body-worn

camera footage, Kuta was moving in one direction and looking in another direction. The court had

“no explanation” why Kuta would run after defendant unless he saw and heard what he testified

to. The court found “most important” that once defendant was secured, Kuta “goes immediately

to the location where he saw [defendant] place that weapon and he immediately retrieves that

weapon.”

¶ 14 Defendant filed a motion for new trial, which was denied. Following a sentencing hearing,

the court merged all counts into one count of AHC and sentenced defendant to seven years in

prison. The court denied defendant’s motion to reconsider sentence.

¶ 15 On appeal, defendant argues that the evidence was insufficient to prove beyond a

reasonable doubt that he possessed a firearm because Kuta’s testimony was incredible and

unbelievable, and no physical evidence linked defendant to the firearm. Specifically, defendant

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contends that Kuta’s testimony that defendant possessed a firearm was impeached by his

body­worn camera footage published at trial.

¶ 16 In considering a challenge to the sufficiency of the evidence, this court examines

“ ‘whether, after viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ”

(Emphasis omitted.) People v. McLaurin, 2020 IL 124563, ¶ 22 (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)). The trier of fact’s role is “to determine the credibility of witnesses, to weigh

their testimony, to resolve conflicts in the evidence, and to draw reasonable inferences from the

evidence.” People v. Williams, 193 Ill. 2d 306, 338 (2000). It is not our function to retry the

defendant. People v. Gray, 2017 IL 120958, ¶ 35. We will not substitute our judgment for that of

the trier of fact on questions involving the weight of the evidence or credibility of the witnesses.

Id. A conviction will not be overturned “unless the evidence is so unreasonable, improbable, or

unsatisfactory” that reasonable doubt exists as to the defendant’s guilt. People v. Wright, 2017 IL

119561, ¶ 70.

¶ 17 “The testimony of a single witness is sufficient to convict if the testimony is positive and

credible.” Gray, 2017 IL 120958, ¶ 36. “[I]t is for the fact finder to judge how flaws in part of the

testimony affect the credibility of the whole.” People v. Cunningham, 212 Ill. 2d 274, 283 (2004).

A witness’s testimony may be found insufficient to convict “only where the evidence compels the

conclusion that no reasonable person could accept it beyond a reasonable doubt.” People v. Corral,

2019 IL App (1st) 171501, ¶ 72. A conviction will not be reversed simply because the evidence is

contradictory or because the defendant claims the witness was not credible. People v. Bonaparte,

2014 IL App (1st) 112209, ¶ 41.

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¶ 18 To prove AHC, the State must show that the defendant possessed a firearm after being

convicted of two or more qualifying offenses. 720 ILCS 5/24-1.7(a) (West 2020). Defendant only

challenges the sufficiency of the evidence establishing his possession of a firearm.

¶ 19 Possession of a firearm may be actual or constructive. People v. Givens, 237 Ill. 2d 311,

335 (2010). Actual possession, which is at issue here, can be established by testimony showing

that the defendant exercised dominion or control over the firearm, including attempts to conceal

or discard it. People v. Miller, 2018 IL App (1st) 152967, ¶ 9. Actual possession does not require

“present personal touching” of the item. Givens, 237 Ill. 2d at 335. Possession is a question of fact

for the trier of fact. Miller, 2018 IL App (1st) 152967, ¶ 11. We will not disturb the factual finding

of possession “unless the evidence is so unbelievable that it creates a reasonable doubt as to the

defendant’s guilt.” Id.

¶ 20 Here, the evidence was sufficient to prove beyond a reasonable doubt that defendant

possessed the recovered firearm. Kuta testified that he could see defendant’s waistband and saw

him remove with his right hand an “L-shaped” object and drop it on the ground, underneath a

parked vehicle by the front passenger tire. Kuta heard a “metallic clanking noise,” which he

recognized as the sound of a firearm hitting the ground. As Kuta jogged after defendant, he

observed the firearm underneath the parked vehicle and to the left of the vehicle’s tire. Kuta

approached defendant and detained him until Krzeptowski arrived. Kuta kept an eye on the area

where he had seen defendant discard the firearm and did not see anyone else near or around the

vehicle. After Krzeptowski arrived, Kuta walked directly to the parked vehicle while shining his

light on the front passenger tire and retrieved the firearm on the ground where he observed

defendant discard it. The trial court expressly found Kuta’s testimony credible, a determination we

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do not reassess. People v. Walls, 2022 IL App (1st) 200167, ¶ 29. Kuta’s credible testimony that

defendant discarded the firearm was sufficient to establish that defendant possessed a firearm

beyond a reasonable doubt. See id.

¶ 21 Additionally, Kuta’s body-worn camera footage largely corroborates his version of events.

Namely, it corroborates Kuta’s testimony that he jogged to defendant, passed parked vehicles, and

retrieved the firearm on the ground underneath a parked vehicle by its front passenger tire, which

was the location he testified he observed defendant discard the firearm. Although the body-worn

camera footage does not show defendant discarding the firearm underneath the parked vehicle,

Kuta testified that the image was not captured because his body-worn camera was facing forward

while he was looking to the side where defendant was located when defendant discarded the

firearm. Kuta’s body-worn camera footage is consistent with this explanation, which the trial court

accepted as a reasonable explanation as to why his body-worn camera footage did not capture

defendant discarding the firearm. See People v. Swenson, 2020 IL 124688, ¶ 35 (“[a]ll reasonable

inferences are drawn in favor of a finding of guilt”). When viewing all the evidence in a light most

favorable to the State, as we must, we find that a rational trier of fact could have reasonably

concluded that defendant actually possessed the firearm and then discarded it on the ground

underneath a parked vehicle where it was recovered. People v. Cooper, 194 Ill. 2d 419, 430-31

(2000).

¶ 22 Nonetheless, defendant argues that the evidence of his possession of a firearm was

insufficient because portions of Kuta’s body-worn camera footage impeached his testimony.

Specifically, defendant contends it would have been impossible for Kuta to see defendant

discarding the firearm given the considerable distance to the parked vehicle from Kuta’s vantage

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point and the presence of a two-story building and numerous mature, leafy trees obstructing his

view.

¶ 23 In his opening brief, defendant relies on, but does not specifically ask this court to take

judicial notice of, a Google map showing an arial photograph of the area to challenge Kuta’s

testimony that he observed defendant discard the firearm. Defendant contends that the Google map

shows that Kuta was farther from defendant when he observed him than he testified, and that there

were obstructions to his view. The State, however, responds that defendant cannot introduce new

evidentiary material that was not considered by the fact finder during its deliberations, and that

judicial notice cannot be used to allow the introduction of “extra-record materials” in reviewing a

challenge to the sufficiency of the evidence. In defendant’s reply brief, he asserts that judicial

notice is appropriate because it has “long [been] recognized that a reviewing court may take

judicial notice of maps and distances from reliable internet sites such as Google.”

¶ 24 In general, a court “may take judicial notice of matters which are commonly known, or, if

not commonly known, are readily verifiable from sources of indisputable accuracy.” Peters v.

Riggs, 2015 IL App (4th) 140043, ¶ 49, quoting People v. Fisher, 184 Ill. 2d 441, 455 (1998).

Such matters include geographical facts, and “case law supports the proposition that information

acquired from mainstream Internet sites such as MapQuest and Google Maps is reliable enough to

support a request for judicial notice.” Riggs, 2015 IL App (4th) 140043, ¶ 49, quoting People v.

Clark, 406 Ill. App. 3d 622, 633 (2010). However, as our supreme court explained in People v.

Cline, 2022 IL 126383, ¶¶ 32-33, a sufficiency of evidence analysis “must be limited to evidence

actually admitted at trial, and judicial notice cannot be used to introduce new evidentiary material

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not considered by the fact finder during its deliberations,” because, to conclude otherwise would

“wholly ignore[ ] the role of a reviewing court” in examining a defendant’s guilt.

¶ 25 While defendant attempts to distinguish Cline on the basis that the supreme court there was

considering a request to take judicial notice of scientific material to evaluate fingerprint evidence,

nothing in that opinion suggests that its holding is so limited. Regardless of the nature of the

material for which judicial notice is requested, the same considerations apply. “It is not the function

of a court of review to retry a defendant,” and we would be tasked with doing so if a party were

permitted to introduce new material when challenging the sufficiency of the evidence. Id.; People

v. Brooks, 2023 IL App (1st) 200435, ¶ 45. Accordingly, we decline to take judicial notice of the

Google map submitted for the first time in this appeal.

¶ 26 Moreover, the trial court considered that Kuta was “impeached on the distance” when

assessing his credibility and rejected the suggestion that Kuta would be unable to observe

defendant discard the firearm. It was the trial court’s function “to determine the credibility of

witnesses, to weigh their testimony, to resolve conflicts in the evidence, and to draw reasonable

inferences from the evidence.” Williams, 193 Ill. 2d at 338. We will neither reassess witness

credibility nor reweigh the evidence. People v. Bradford, 2016 IL 118674, ¶ 12.

¶ 27 Defendant also argues that the State did not present any physical evidence, such as

fingerprints, linking him to the recovered firearm. However, “[p]roof of physical evidence

connecting a defendant to a crime has never been required to establish guilt.” People v. Williams,

182 Ill. 2d 171, 192 (1998). Defendant also challenges the sufficiency of the evidence of his

possession of a firearm where it was based on the testimony of “only a single witness.” But the

State was not required to present additional evidence, as Kuta’s credible testimony is sufficient to

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sustain a conviction. See Gray, 2017 IL 120958, ¶ 36. The trial court also considered the testimony

of defendant’s witness and found that Tice’s testimony, while credible, did not impeach Kuta’s

testimony. In this case, Kuta’s testimony was not so unbelievable that no rational trier of fact could

have accepted it. Cunningham, 212 Ill. 2d at 280.

¶ 28 In conclusion, the trial court’s finding that defendant unlawfully possessed the firearm

recovered from underneath a vehicle by the front passenger tire was not so unreasonable,

improbable, or unsatisfactory as to justify a reasonable doubt of defendant’s guilt. Wright, 2017

IL 119561, ¶ 70. Therefore, the evidence was sufficient beyond a reasonable doubt to convict

defendant of AHC.

¶ 29 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 30 Affirmed.

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