People v. Mosley

2019 IL App (1st) 171497-U

• Court: Appellate Court of Illinois
• Decided: December 9, 2019
• Docket: 1-17-1497
• Status: Unpublished

Opinion

2019 IL App (1st) 171497-U No. 1-17-1497 December 9, 2019 First Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party 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-Appellant, ) Cook County. ) v. ) No. 16 CR 9703 ) TONY MOSLEY, ) Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, presiding.

JUSTICE WALKER delivered the judgment of the court. Justices Hyman and Pierce concurred in the judgment.

ORDER

¶1 Held: Defendant’s conviction for armed habitual criminal is affirmed over his challenge to the sufficiency of the evidence.

¶2 Following a jury trial, defendant Tony Mosley was found guilty of armed habitual criminal

and sentenced to 8½ years’ imprisonment. On appeal, defendant contends the State did not prove

beyond a reasonable doubt that he possessed a firearm because it relied on incredible police No. 1-17-1497

testimony, defendant’s inculpatory statement was not memorialized, and no physical evidence

linked him to the firearm. We affirm.

¶3 BACKGROUND

¶4 Defendant was charged by indictment with several offenses arising from an incident on

June 6, 2016, in Chicago. The State proceeded on one count of armed habitual criminal (720 ILCS

5/24-1.7(a)(1) (West 2016)).

¶5 Chicago police officer Anastasios Mavropoulos testified that on June 6, 2016, he and his

partner, Officer Roger Farias, were on patrol in a marked police vehicle. Mavropoulos was wearing

his police vest, star emblem, and duty belt. Around 11 p.m., as they approached the 5600 block of

South Bishop Street, he noticed a large group of people drinking in front of an abandoned building.

As he exited the vehicle, he observed defendant, whom he identified in court, “immediately” turn,

“reach into his waistband,” “drop” a firearm, and run across a vacant lot.

¶6 Mavropoulos chased defendant for “about a block” and arrested him. Farias then arrived

in the squad car and showed Mavropoulos a firearm he had recovered. At the police station, Farias

advised defendant of the Miranda rights, and defendant stated that “he was just there drinking

some vodka; and he had the weapon on him because things were, f***** up around here.”

Mavropoulos then identified a photograph and map of the area where defendant was standing when

the officers approached him.

¶7 On cross-examination, Mavropoulos noted that defendant was the only individual in the

group who ran. When he dropped the firearm, he was turning, and had his back toward

Mavropoulos.

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¶8 Farias testified to substantially the same events as Mavropoulos. Farias stated that

defendant, whom he identified in court, looked toward the officers when they exited their vehicle

and immediately fled on foot. Farias and Mavropoulos followed defendant, with Mavropoulos in

the lead, and as defendant ran, he pulled out a dark object and “tossed” it to the ground. The vacant

lot where the object landed was very well kept and had short grass. As Mavropoulos continued

chasing defendant, Farias shined his flashlight in the lot and saw a black .40 caliber Glock. Farias

put on gloves, retrieved the firearm, unloaded it, and found live rounds. He returned to the squad

car, located Mavropoulos and defendant, and with other officers, transported defendant to the

police station.

¶9 At the police station, Farias inventoried the firearm. Defendant was advised of his Miranda

rights and stated that he had “just got off work, and was drinking some vodka with some friends;

and that he had the gun on him, because you know how f***** up these streets are.” In court,

Farias identified the firearm and the live rounds he recovered, as well as photographs depicting the

vacant lot defendant ran through.

¶ 10 On cross-examination, Farias demonstrated how defendant tossed the firearm. The

Assistant State’s Attorney described Farias’s motion for the record, stating that he took his “right

hand, and made a sweeping motion across, at chest level, with an open palm at the end.” Farias

admitted that in his grand jury testimony, he stated that defendant reached into his waistband and

“threw [the firearm] up in the air.” Further, Farias agreed that the area he and Mavropoulos were

patrolling had high gang activity and crime. On redirect examination, Farias stated that defendant’s

statement at the police station was included in an arrest report.

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¶ 11 The State entered a stipulation between the parties that if called, evidence technician Robert

Franks would testify that he examined the firearm and did not find fingerprints. The parties further

stipulated that defendant had two prior qualifying felony convictions.

¶ 12 During the jury instructions conference, defense counsel submitted that Farias’s in-court

testimony that defendant “dropped” the firearm contradicted his grand jury testimony that

defendant had “thrown” it. The court stated that though the discrepancy was “hardly earth

shattering,” the testimony was “inconsistent to some slight extent.” Therefore, the court agreed to

defense counsel’s request to instruct the jury about the limited use of prior inconsistent statements.

¶ 13 During closing arguments, defense counsel noted that the officers’ testimony did not

“exactly make sense” because only one person in a group of 10 to 15 people ran when the officers

arrived. Moreover, there were inconsistencies in the officers’ testimonies as to when defendant

dropped something on the ground, and in Farias’s testimony about how defendant had either

“dropped [the firearm] to the ground, or tossed it from side to side, or threw it up in the air.”

Furthermore, defense counsel argued that the area where the incident occurred was a “high crime,

high gang area,” and there was no reason why a firearm someone had allegedly handled moments

before its recovery would not have fingerprints on it. Counsel posited that the officers made a

mistake because defendant had not possessed a firearm.

¶ 14 After 55 minutes of deliberation, the jury sent the court a note advising that it was a “hung

Jury,” with 10 guilty votes, 1 wavering, and 1 not guilty vote. By agreement of the parties, the

court instructed the jury to “continue deliberating.” Approximately one hour later, the jury found

defendant guilty of armed habitual criminal. The trial court denied defendant’s motion for a new

trial, and following a sentencing hearing, sentenced defendant to 8½ years’ imprisonment.

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¶ 15 ANALYSIS

¶ 16 On appeal, defendant argues that he was not proven guilty of armed habitual criminal

beyond a reasonable doubt. According to defendant, no rational trier of fact could have accepted

Mavropoulos’s and Farias’s testimony that he possessed a firearm when their testimony was

contrary to human experience, his alleged admission was not memorialized as a statement, and

there were no fingerprints on the firearm.

¶ 17 The State maintains that the evidence established defendant’s guilt beyond a reasonable

doubt where the jury concluded the police officers testified credibly and defendant’s admission

was included in Farias’s arrest report.

¶ 18 When considering a challenge to the sufficiency of the evidence, the reviewing court must

consider whether, viewing the evidence in the light most favorable to the State, “any rational trier

of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Internal

quotation marks omitted.) People v. Belknap, 2014 IL 117094, ¶ 67. “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). Moreover, “[a] conviction will be reversed only where

the evidence is so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt

of the defendant’s guilt.” Belknap, 2014 IL 117094, ¶ 67.

¶ 19 To sustain a conviction for armed habitual criminal, the State must prove the defendant

possessed a firearm after having been convicted two or more times of a forcible felony. 720 ILCS

5/24-1.7(a)(1) (West 2016). Here, defendant contests his conviction based on the witnesses’

credibility.

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¶ 20 The testimony of a single witness, if positive and credible, is sufficient to uphold a

conviction. People v. Siguenza-Brito, 235 Ill. 2d 213, 228 (2009). Contradictory evidence, or

minor or collateral discrepancies in testimony, does not automatically render the totality of a

witness’s testimony incredible. People v. Gray, 2017 IL 120958, ¶ 47; People v. Peoples, 2015 IL

App (1st) 121717, ¶ 67. That is true whether the fact-finder is considering contradictions or

discrepancies within the testimony of a single witness (Gray, 2017 IL 120958, ¶ 47), or comparing

one person’s account to the testimony of another (Peoples, 2015 IL App (1st) 121717, ¶ 67). The

trier of fact is responsible for determining the credibility of the witnesses, weighing the testimony,

resolving conflicts in the evidence, and drawing reasonable inferences therefrom. Jackson, 232 Ill.

2d at 281. Moreover, the trier of fact is not required to “accept or reject all of a witness’ testimony

but may attribute different weight to different portions of it” (People v. Billups, 318 Ill. App. 3d

948, 954 (2001)), and “[i]t is sufficient if all of the evidence taken together satisfies the trier of

fact beyond a reasonable doubt of the defendant’s guilt” (Jackson, 232 Ill. 2d at 281 (internal

quotation marks omitted)).

¶ 21 In this case, Mavropoulos and Farias testified that they saw a group of people drinking by

an abandoned building. As the officers exited their marked vehicle, defendant looked in their

direction. Mavropoulos saw defendant immediately “drop” a firearm and run across a vacant lot.

Farias, who was behind Mavropoulos, testified defendant “tossed” a dark object while running

away, and in explaining defendant’s action, gesticulated as if the object had been tossed from side

to side. Farias acknowledged that in his grand jury testimony, he stated that defendant “threw” the

object “in the air.” Mavropoulos pursued defendant on foot, while Farias investigated the area

where defendant had dropped the object. Farias shined his light on the short-cut grass and

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recovered a loaded firearm. Defendant was placed in custody and taken to the police station, where

he was Mirandized, and according to both officers, stated that he had the firearm because things

were “f ***** up around here.”

¶ 22 Taking Mavropoulos’s and Farias’s testimony as a whole, the jury could have found that

the officers testified credibly. Both officers were subject to cross-examination, and the jury was

aware of the discrepancy in their testimony regarding whether defendant dropped the firearm first

and then ran or vice versa. People v. Gustowski, 102 Ill. App. 3d 750, 753-54 (1981) (discrepancies

in the officers’ testimony pertaining to how the defendant dropped contraband did not render the

trier of fact’s credibility determination unreasonable). The jury was also aware that Farias testified

at trial that defendant “tossed” the object from side to side, while before the grand jury, he stated

defendant “threw” the object “up in the air.”

¶ 23 It is the province of the trier of fact to consider the effect of a witness’s prior inconsistent

statement on the credibility of his in-court testimony. People v. Cosme, 247 Ill. App. 3d 420, 428

(1993). Here, both witnesses testified that defendant discarded an object, i.e., the firearm, and fled.

The jury could reasonably conclude that the manner in which the firearm was discarded and

whether defendant was already running were minor discrepancies and did not render the totality

of the witnesses’ testimony incredible. Gray, 2017 IL 120958, ¶ 47; Peoples, 2015 IL App (1st)

121717, ¶ 67. Furthermore, when the jury took these inconsistencies together with the other

evidence, including the recovered firearm, they were satisfied beyond a reasonable doubt of

defendant’s guilt. Jackson, 232 Ill. 2d at 281. Viewed in the light most favorable to the State, this

evidence was sufficient to show that defendant possessed the firearm.

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¶ 24 Notwithstanding, defendant contends that the officers’ testimony that he removed a

weapon from his waistband and discarded it in their presence belies common sense and is

inherently unbelievable “dropsy” testimony. Further, he argues that his alleged admission about

possessing the weapon for protection is comparable to “dropsy” testimony and is also against

human experience.

¶ 25 In so-called “dropsy” cases, defendants allege that to avoid the exclusion of improperly

obtained evidence, officers claim that the defendants dropped contraband in plain view. People v.

Campbell, 2019 IL App (1st) 161640, ¶ 20. It is well-established that the testimony of a single

witness may be sufficient to convict. Siguenza-Brito, 235 Ill. 2d at 228. Here, a rational trier of

fact could find that the officers’ testimony regarding defendant’s conduct in discarding the firearm

when the officers appeared, and that he stated he had the firearm for protection, was neither

improbable nor contrary to human experience.

¶ 26 Defendant next contends the officers’ testimony about his admission was incredible

because his statement was not memorialized in a signed statement. However, the jury was aware

that defendant’s admission was only presented through the officers’ testimony, and it was the

jury’s function to determine the weight to be given to that testimony. People v. Evans, 209 Ill. 2d

194, 211 (2004). Moreover, defendant cites no relevant authority for his conclusion that a

statement must be memorialized in order to be believable. A point raised in a brief but not cited

with relevant authority fails to satisfy the requirements of Supreme Court Rule 341(h)(7) (Ill. S.

Ct. R. 341(h)(7) (eff. May 25, 2018)), and is, therefore, forfeited. People v. Hunt, 234 Ill. 2d 49,

67 (2009). Here, both officers testified consistently about defendant’s statement that he had the

firearm because the streets were “f***** up.” While defendant also claims that the firearm

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recovered from the lot was not the same weapon referenced in his statement, on review,

“all reasonable inferences from the evidence must be allowed in favor of the State.” People v.

Baskerville, 2012 IL 111056, ¶ 31. Thus, the jury could reasonably find the officers’ testimony

about defendant’s admission to be credible, and this court will not substitute its judgment on that

determination. Belknap, 2014 IL 117094, ¶ 67.

¶ 27 Defendant also contends that the officers’ testimony regarding his admission to possessing

the firearm was incredible because the weapon was recovered in a “high crime” area, might not

have been attributable to him, and the State did not produce forensic evidence linking him to the

weapon.

¶ 28 “[T]he trier of fact is not required to disregard inferences which flow naturally from the

evidence before it, nor need it search out all possible explanations consistent with innocence and

raise them to a level of reasonable doubt.” (Internal citation omitted.) Jackson, 232 Ill. 2d at 281.

As noted, the officers approached the group of people drinking in front of the abandoned building,

and defendant was the only person who fled. Both officers saw defendant drop something, and

Mavropoulos testified specifically that he saw defendant discard a firearm. The grass in the vacant

lot where Farias recovered the firearm was short and very well kept, supporting the inference that

any other objects in the lot would have been apparent to Farias when he searched the area. Further,

though Farias testified that the area had high gang activity and crime, nothing in the record

supported defendant’s contention that the firearm recovered from the lot was not his or not the

same weapon he referenced in his statement. Thus, a rational trier of fact could have found the

officers’ testimony that the recovered weapon belonged to defendant was credible, and the

inferences made by the jury were not unreasonable, improbable, or unsatisfactory. People v.

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Brown, 309 Ill. App. 3d 599, 609 (1999) (evidence that an officer saw the defendant drop an object,

a firearm was recovered from where the object was dropped, and no other objects were in the area,

was sufficient to show that the defendant possessed the firearm).

¶ 29 Furthermore, the absence of forensic evidence linking defendant to the firearm Farias

recovered is not fatal. “Proof 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). To the contrary,

if a witness’s testimony is otherwise credible, “the State [is] not required to present additional

physical evidence” that links a defendant to a firearm. (Internal citation omitted.) Campbell, 2019

IL App (1st) 161640, ¶ 33 (affirming conviction where officers testified defendant tossed a firearm

in plain view, but the State did not present the firearm or any other forensic evidence linking

defendant to the firearm). Here, two officers credibly testified that defendant was the only person

who fled when they arrived, defendant discarded a firearm, and Farias recovered a loaded weapon

in the lot where they saw defendant discard it. Therefore, further physical evidence linking

defendant to the firearm was not necessary for the jury to find defendant guilty beyond a reasonable

doubt.

¶ 30 Finally, defendant claims that the jury’s note to the court stating it was a “hung jury,” sent

after 55 minutes of deliberation, shows that the officers’ testimony about the recovery of the

firearm and defendant’s unrecorded confession was incredible and “clearly troubled the jurors.”

Defendant’s contention is conclusory and unsupported by the record, as he cites no authority

suggesting the length of jury deliberations bears on the sufficiency of the evidence. Defendant

therefore fails to satisfy the requirements of Supreme Court Rule 341(h)(7) (eff. May 25, 2018),

and his contention is forfeited. Hunt, 234 Ill. 2d at 67. Moreover, nothing else in the record suggests

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the jurors were troubled by the trial evidence, and as we have explained, defendant’s sufficiency

of the evidence argument also fails on the merits.

¶ 31 CONCLUSION

¶ 32 For all the foregoing reasons, defendant’s challenge to the sufficiency of the evidence is

without merit and the judgment of the trial court is affirmed.

¶ 33 Affirmed.

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