People v. Short , 2020 IL App (1st) 162168 ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2020.12.31
12:23:31 -06'00'
People v. Short, 2020 IL App (1st) 162168Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption VICTOR SHORT, Defendant-Appellant.
District & No. First District, Sixth Division
No. 1-16-2168
Filed January 24, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 14-CR-4532(03);
Review the Hon. Dennis J. Porter, Judge, presiding.
Judgment Affirmed in part and reversed in part.
Counsel on James E. Chadd, Patricia Mysza, and Manuela Hernandez, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Tasha-Marie Kelly, and Koula A. Fournier, Assistant State’s
Attorneys, of counsel), for the People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Presiding Justice Mikva and Justice Cunningham concurred in the
judgment and opinion.
OPINION
¶1 Following a jury trial, defendant, Victor Short, was convicted of armed robbery with a
firearm and aggravated kidnapping and sentenced to concurrent prison terms of 21 and 8 years.
Defendant contends on appeal that the evidence was insufficient to convict him beyond a
reasonable doubt, that the trial court erred in denying his pretrial motion to suppress
identification, and that the State made improper remarks or arguments. He also contends that
he was deprived of a fair trial when the State was allowed to elicit testimony implying that a
nontestifying codefendant had implicated defendant, which constituted hearsay and violated
defendant’s right to confront witnesses against him. He contends that trial counsel rendered
ineffective assistance. Lastly, he contends that the State failed to prove him guilty of
aggravated kidnapping beyond a reasonable doubt when the asportation of the victim was
incidental to the armed robbery. For the reasons stated below, we reverse defendant’s
aggravated kidnapping conviction and otherwise affirm.
¶2 I. JURISDICTION
¶3 On December 7, 2015, a jury found defendant guilty of armed robbery with a firearm and
aggravated kidnapping. The court sentenced defendant to concurrent prison terms of 21 years
and 8 years on February 24, 2016. This court granted defendant leave to file a late notice of
appeal on August 25, 2016, and defendant filed his notice of appeal the next day. Accordingly,
this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution (Ill.
Const. 1970, art. VI, § 6) and Illinois Supreme Court Rule 603 (eff. Feb. 6, 2013) and Rule
606(c) (eff. July 1, 2017) governing appeals from a final judgment of conviction in a criminal
case.
¶4 Specifically, defendant filed a pro se motion for leave to file a late notice of appeal in
August 2016, explaining why he did not file a notice of appeal earlier. He therefore complied
with Rule 606(c), allowing this court to grant such leave upon a motion “filed in the reviewing
court within six months of the expiration of the time for filing the notice of appeal,” showing
“that the failure to file a notice of appeal on time was not due to appellant’s culpable
negligence.” Ill. S. Ct. R. 606(c) (eff. July 1, 2017).
¶5 II. BACKGROUND
¶6 Defendant and codefendants, Christopher Calvin and Courtney Thomas, were charged in
relevant part with armed robbery with a firearm and aggravated kidnapping, allegedly
committed against O.J. Yarbor on or about February 20, 2014. The aggravated kidnapping
charge alleged that defendants carried Yarbor from one place to another with the intent to
secretly confine him against his will and that they committed aggravated battery against
Yarbor.
¶7 A. Motion to Suppress
¶8 Defendant filed a motion to suppress pretrial identification, arguing that Yarbor described
one of the offenders as having long dreadlocked hair but the array of five photographs shown
to Yarbor included only two men who “even had dreadlocks at all” so that the array was unduly
suggestive. Defendant also argued that the State did not disclose the circumstances surrounding
-2-
the array identification, including who was present when Yarbor was shown the array. At the
motion hearing, defendant’s opening argument was that the array and subsequent lineup were
both unduly suggestive.
¶9 Police detective Joseph Gentile testified that he investigated the robbery of Yarbor, during
which he conducted a lineup. In conducting lineups, he would “offer the subject the
opportunity to pick which position he or she would like to be placed in the lineup.” Fillers in
the lineup are supposed to be of similar appearance to the subject and are selected from arrested
persons at the police station where the lineup is occurring and nearby police stations or “very
seldom” from persons on the street. The description of the offenders here was of two young
adult men, one with short hair and the other with dreadlocks. Gentile “tried” to find fillers with
dreadlocks but only three of the five participants had dreadlocked hair. However, to make the
lineup “even or fair,” the lineup participants all wore white caps.
¶ 10 Two days after the alleged offenses, and before defendant was arrested, Detective Gentile
conducted two photographic arrays, one of which included defendant. The fillers in
defendant’s array were not the same as the fillers in the lineup. Gentile identified the array he
created and showed to Yarbor that included defendant; it depicts two men with long
dreadlocks, two with shorter dreadlock-like hair, and one with short-cropped hair. Gentile
testified that only he and Yarbor were present for the showing of the array.
¶ 11 On cross-examination, Detective Gentile testified that he received a description of the
offenders from Yarbor, and other witnesses corroborated his description. Gentile selected the
fillers for the array using a computer program that searches police records for persons with
similar demographics to the subject. Before showing Yarbor the array, he had Yarbor sign a
waiver disclosing that the suspect may or may not be in the array, advising Yarbor not to
presume that the person conducting the lineup knew who the suspect was, and notifying Yarbor
that he was not required to make an identification. After Yarbor selected defendant’s
photograph without “any difficulty,” defendant was arrested and placed in a lineup on the same
day. Gentile selected the lineup fillers from among persons in police custody at various police
stations. Gentile took into consideration defendant’s dreadlocks, and he placed all participants
in white caps because not all the fillers were dreadlocked. All participants were men of the
same race and skin complexion. Defendant was able to choose where he stood in the lineup.
During the lineup, Gentile was with the participants and another detective was with Yarbor.
Immediately after the lineup, that detective told Gentile that Yarbor selected defendant and
Calvin from the lineup.
¶ 12 On redirect examination, Detective Gentile testified that the braids of two of the lineup
participants, including defendant, were visible despite the white caps.
¶ 13 Following arguments, the court denied the motion to suppress. The court found that
multiple fillers in the array had dreadlocks or similar hairstyles. Noting that the lineup
participants all wore caps and that defendant had the longest dreadlocks in the lineup, the court
found that “I don’t see what else the police could have done.”
¶ 14 B. Motion in Limine
¶ 15 Calvin filed, and defendant joined, a motion in limine seeking in relevant part to bar the
State from eliciting testimony regarding any statements by Thomas, arguing that such evidence
would constitute hearsay and violate their confrontation right. In arguments on the motion, the
State told the court that it did not plan to elicit the substance of Thomas’s statements but would
-3-
elicit that the police interviewed Thomas about the Yarbor robbery and the next step in the
police investigation was to pursue defendant and Calvin. The court denied the motion in limine,
finding that it was not hearsay for the State to elicit that Thomas was interviewed and the police
then sought defendant and Calvin so long as the content of Thomas’s statements was not
elicited.
¶ 16 C. Trial
¶ 17 Defendant and Calvin were tried by the same jury, and Thomas was not tried with them.
¶ 18 In the State’s opening statement, a prosecutor set forth at length the State’s version of
events during and after the alleged offenses. In relevant part, she said that Thomas went to the
police station with his grandmother after the robbery. “They talk to Courtney Thomas about
the armed robbery. Next thing the detective does in his investigation, he gets the names of
these two individuals, [defendant and Calvin,] and he puts them in a photo spread” that was
then shown to Yarbor. Neither defense counsel objected.
¶ 19 1. State’s Case
¶ 20 Yarbor testified that he owned a tax preparation firm and was working there at about 2 p.m.
on February 20, 2014, when a man with dreadlocked hair came in and asked “if this was a tax
office.” When one of Yarbor’s clients said that it was, the man replied that he would be back,
and he left. There were about 10 people in the office at the time. About a half-hour later, most
of them had left the office, though two clients—Vanessa Brown (Vanessa) and Brittany
Cousins—and a toddler were still there. Yarbor was seated at his desk when two men entered
the office brandishing pistols. One man was the dreadlocked man who had briefly entered the
office at about 2 p.m., and the other had short hair. The former had a semiautomatic 9-
millimeter pistol, and the latter had a chrome .38-caliber revolver. Yarbor was familiar with
guns, including owning guns himself, and the firearms held by the two men appeared to be
metal rather than plastic. Yarbor had never seen either man before that day.
¶ 21 The short-haired man ordered Yarbor at gunpoint to tell him where the safe was located.
Yarbor at first refused to stand, but the man forced Yarbor to take him to a back room where
the safe was located. 1 The man then ordered Yarbor to open the safe. When Yarbor did not
open the safe quickly enough for the man’s taste, the man struck Yarbor on the head with his
gun. The blow was extremely painful because the metal gun was heavy, which reinforced
Yarbor’s belief that it was an actual firearm. Yarbor eventually opened the safe and handed the
man the money inside, about $5000. Yarbor also kept debit cards belonging to clients in the
safe, and the short-haired man grabbed those cards from the safe over Yarbor’s protest. The
man demanded to know where “the rest of the money” was and threatened to shoot Yarbor.
¶ 22 The dreadlocked man came to the door of the back room, and the short-haired man asked
the dreadlocked man if he should shoot Yarbor. While Yarbor could not recall exactly what
the dreadlocked man said, the gist was that he should not shoot Yarbor. While in the back
room, the dreadlocked man took a computer tablet that was on a desk. The two men then left
the office. Yarbor followed them to the exit, a few feet behind them so they would not notice.
1
While this room was referred to at times as Yarbor’s office, we shall refer to it as the back room
to distinguish it from the office of Yarbor’s firm as a whole.
-4-
He saw the two men enter a car that just drove up, and he noted the license plate number as the
car drove away. Yarbor then called the police, and he gave them the plate number.
¶ 23 Two days after the robbery, on February 22, police came to Yarbor’s office and showed
him two arrays of photographs. From one array, he identified a photograph as depicting the
short-haired robber. From the other array, Yarbor identified a photograph as depicting the
dreadlocked robber. At trial, he identified defendant as the dreadlocked man and Calvin as the
short-haired man. Later on February 22, Yarbor went to the police station and viewed a lineup,
from which he identified defendant and Calvin as the two robbers.
¶ 24 On cross-examination, Yarbor testified that he wears glasses for reading but does not need
them to see at a distance. He saw both robbers’ faces, had “a fairly good look at” the
dreadlocked robber when he came into the office, and denied identifying defendant only by his
dreadlocks. He described the dreadlocked robber as having shoulder-length hair, neither short
nor “extremely long.” Yarbor did not know exactly how much money was in the safe when the
robbers took it, as he “had taken small amounts out throughout the day” and did not keep
records of his deposits or withdrawals as the money was his rather than his clients’ funds. He
told the responding officers that it was between $4000 and $5000. The clients’ debit cards in
the safe had not been activated. Yarbor testified that three tablets were taken in the robbery,
but he mentioned only two to police. The robbery took about 5 to 10 minutes. No photographs
were taken of Yarbor’s head, and he received no medical treatment. Uniformed officers, not
Detective Gentile, showed him the photographic arrays. He denied telling Cousins to “pick
some people out” and denied being upset with her when she did not.
¶ 25 Cousins testified that she was in Yarbor’s office on the afternoon in question, discussing
her taxes with him. At one point, a man entered and asked if this was the “tax place.” Cousins
replied that it was, and the man left. Several minutes later, shortly after many people left the
office, two men robbed the office. One had short hair and the other had dreadlocks, and both
were holding guns. The short-haired man walked directly to Yarbor, while the dreadlocked
man stayed with Cousins, her child, and another customer. The dreadlocked man “wasn’t really
doing anything” but holding his gun, and as Cousins calmed her crying child, he said that he
was not going to shoot them. Cousins heard the short-haired man ask Yarbor where the money
and cards were and then heard a thump and Yarbor exclaiming that he had been struck on the
head. The dreadlocked man did not do anything as he stood near Cousins until he and the other
man grabbed tablets and left the office. After the men ran out, Yarbor followed them. When
he came back inside, he wrote down a license plate number and called the police. Cousins
viewed a lineup two days after the incident, but she made no identification as she was paying
attention to her child during the incident. Yarbor was not in the room when she viewed the
lineup.
¶ 26 On cross-examination, Cousins testified that the man who entered the office before the
incident did not have dreadlocked hair, and she was unsure whether that man was one of the
two robbers. While she heard a thump and Yarbor’s exclamation that he had been struck, she
did not hear anyone threaten to shoot Yarbor. The room where the man took Yarbor had no
windows, but the door to the rest of the office was open. She believed the robbery took about
10 to 15 minutes. When she told Yarbor that she had not identified anyone in the lineup, he
seemed “a little aggravated” and urged her to “pick somebody.”
¶ 27 Vanessa testified that she was in Yarbor’s office at about 2:30 p.m. on the day in question
when two men entered with guns, one with short hair and the other with dreadlocks. The short-
-5-
haired man told Yarbor to “get up and give us the money,” then led Yarbor into another room
in the office, where he struck Yarbor with his gun as he again demanded money. The
dreadlocked man stayed with Vanessa, Cousins, and her child. At some point, he opened a
white box and took something from it. The two men then left the office, followed by Yarbor.
The police came to the office a short time later, and Vanessa spoke with them. However,
Vanessa never went to the police station any time in 2014 to view a lineup or the like. Pursuant
to a subpoena, Vanessa told the assistant state’s attorney (ASA)—that is, the trial prosecutor—
in September 2015 that she could not make an identification. Vanessa went to the police station
in November 2015 “when I was told to go,” walking there herself. She viewed two
photographic arrays, from which she identified one photograph as depicting the short-haired
man who struck Yarbor and another as the dreadlocked man who stayed with her during the
incident. At trial, Vanessa identified Calvin as the former and defendant as the latter. She did
not know either man before the incident.
¶ 28 On cross-examination, Vanessa clarified that she did not see anyone strike Yarbor nor did
she hear anyone threaten to shoot him. Defendant went briefly into the back room where
Yarbor was being held. As Cousin’s child was crying, defendant said that he was not going to
harm them. Vanessa testified that she “never said she couldn’t” identify anyone. When the
ASA interviewed her in September 2015, she described the incident. Vanessa recalled calling
somebody with the police sometime before November 2015 to report that she could identify
the robbers. While she cooperated because she was subpoenaed, she denied that she did not
cooperate earlier because she could not make an identification. “I remember their face.”
¶ 29 Officer Mark Campbell testified that he responded to a reported robbery at Yarbor’s office.
He spoke with Yarbor, who described the getaway car as a Kia and gave him a license plate
number. He “ran that number” in the police computer, learning that the plate was registered to
a Kia, and he gave the plate number over police radio as connected to a recent robbery. The
court admonished the jury that the testimony regarding the plate number was offered to show
what the police did and why, “not for the accuracy of the information.” On cross-examination,
Campbell testified that his report reflected that Yarbor mentioned the dreadlocked man
threatening to shoot the women and it did not reflect Yarbor mentioning the short-haired man
threatening to shoot him.
¶ 30 Detective Gentile testified that he investigated the Yarbor robbery and received a license
plate number from Officer Campbell. Records showed that plate as registered to a Kia owned
by a woman named Chandler, so Gentile sent officers to her address to speak with her.
Chandler came to the police station on February 22 with codefendant Thomas. After Gentile
interviewed Chandler, including asking her who was driving her Kia on February 20 between
2 and 3 p.m., she left the police station. Gentile then interviewed Thomas, after which Gentile
focused his investigation upon defendant and Calvin. Gentile prepared two photographic
arrays, one consisting of photographs of defendant and persons with “similar demographics”
according to the police computer and the other consisting of photographs of Calvin and similar
persons. Gentile had other officers show the arrays to witnesses. When he later learned that
identifications were made from the arrays, he had officers arrest defendant and Calvin. Vanessa
did not view the arrays or any lineup in 2014 but viewed arrays in November 2015. While
Gentile prepared those arrays, another officer showed them to her. In preparing for trial,
Gentile reviewed his reports and realized that he gave mistaken testimony before the grand
-6-
jury, “inverting” the roles of defendant and Calvin in the incident including testifying that it
was not defendant who briefly entered Yarbor’s office before the robbery.
¶ 31 On cross-examination, Detective Gentile testified that a single lineup, including both
defendant and Calvin, was composed on February 22. However, police procedure encouraged
having lineup participants who resembled the suspect and discouraged having two suspects in
the same lineup. Gentile explained that he could not find enough fillers or random similar
persons in the police station for two lineups, and he found it “very difficult to get somebody
off the street” as a filler. He tried to find fillers on the street but was unsuccessful. The lineup
had to be held that day because a suspect has to be charged within 48 hours of arrest. Defendant
and Calvin stood next to each other in the lineup, and Gentile testified that lineup participants
are allowed to “sit wherever they want, and that’s where they chose to sit.” While the police
adopted a policy that an independent administrator should conduct photographic arrays and
lineups, it did not take effect until after Yarbor viewed his arrays and lineup. The new
procedure was applied when Vanessa viewed her arrays. Gentile acknowledged that he made
several mistakes in his grand jury testimony but maintained that “the facts of the case didn’t
change” in his account then, “the players in the game were inverted” instead.
¶ 32 The parties stipulated that five fingerprints were found on a tablet box in Yarbor’s office,
none of which matched any defendant and two of which matched Yarbor.
¶ 33 2. Mid-Trial Rulings
¶ 34 Before the State rested, defendants sought to bar Chandler from testifying and to strike the
testimony of Officer Campbell and Detective Gentile regarding the license plate number,
arguing that it could not come in as substantive evidence because Yarbor did not testify to the
actual license plate number he saw and gave to Officer Campbell. The State argued that Yarbor
gave police the number in the heat of the moment just after the robbery so it had indicia of
reliability and should not be barred as hearsay. The court granted the defense motions, striking
testimony regarding the plate number itself—but not general discussion of using a plate
number in the police investigation—and barring Chandler as a witness.
¶ 35 Defendants moved for mistrial, arguing that the jury heard the license plate evidence. The
court denied a mistrial, noting that it was proper for Yarbor to testify that he provided police a
plate number and for the police to testify that they took certain actions as a result “as long as
you don’t argue the fact about a license plate number being probative of *** guilt or
innocence.”
¶ 36 The court admonished the jury that it heard testimony “about a particular license plate
number” and “are to disregard that number” and “not to consider the fact of that number in
your deliberations.”
¶ 37 3. Defense Case
¶ 38 Theresa Brown (Theresa) testified that she went to a sick neighbor’s apartment at about 2
p.m. on February 20, 2014, to check on him. Calvin was the sick man’s nephew and lived in
the apartment. He was there sitting on the sofa watching television when she entered. When
she stopped by every 20 minutes to check on the sick neighbor, Calvin was still there. On cross-
examination, she admitted to being a friend of Calvin and testified that she went to his
apartment daily to care for his sick uncle until he died.
-7-
¶ 39 Codefendant Calvin testified that he was home, in the apartment he shared with his aunt
and uncle, between 2 p.m. and 3 p.m. on February 20, 2014. Theresa visited his apartment
during that time. Calvin considered her to be a friend of the family, and she frequently came
to his home to take care of his uncle. Calvin was arrested at home on February 22 for a
misdemeanor cannabis offense. He had seen defendant in the neighborhood but did not know
him. Calvin lived at another address before living with his aunt and uncle, and he denied living
at two addresses simultaneously.
¶ 40 The parties stipulated that Calvin was arrested for misdemeanor possession of cannabis on
February 22, 2014, at the apartment he shared with his aunt and uncle, but his identification
card showed the other address.
¶ 41 Andrew Garth testified that he drove defendant, his friend for over seven years, to
defendant’s session at a recording studio on the afternoon of February 20, 2014, and was with
defendant there from about 2:15 p.m. until about 3:15 p.m. As he was driving defendant while
his license was suspended, Garth was with defendant after they left the studio until about 5
p.m. On cross-examination, Garth testified that he knew Calvin as well as defendant, and that
Calvin and defendant knew each other. Garth testified that video was often taken in the course
of recording a performer at the recording studio, but there was no video showing defendant
recording there on the day in question.
¶ 42 4. Instructions, Et Cetera
¶ 43 Defendants unsuccessfully moved for directed verdicts without argument.
¶ 44 Defendants challenged the jury instruction on circumstantial evidence, arguing that
“certain hearsay evidence *** was brought in improperly” without a proper foundation. The
court overruled, finding “there’s some evidence of circumstantial evidence, not a great deal.”
¶ 45 The jury was instructed on armed robbery with a firearm and on aggravated kidnapping.
For purposes of the latter charge, where the alleged aggravation was that defendants committed
aggravated battery against Yarbor, the instructions defined aggravated battery as insulting or
provoking contact while using a dangerous weapon other than discharging a firearm. The jury
was instructed before and after closing arguments that arguments are not evidence and
arguments not supported by evidence or reasonable inferences from the evidence should be
disregarded.
¶ 46 In its main closing argument, the State set forth its version of events. After describing the
robbery and events preceding the robbery, the State argued that defendant and Calvin left
Yarbor’s office, then Yarbor followed them to “a waiting vehicle which neither of these two
men went into the driver’s seat.” Yarbor
“got their license plate from the vehicle. He came right back inside and called the
police. He gave them the license plate number. The police ran that license plate number,
and it comes back to a registered owner. The registered owner had a young man, went
to speak with the police. *** After speaking with the woman and the young man, the
police went out looking for these two defendants.”
Yarbor then identified defendant and Calvin, and Vanessa later identified them as well.
¶ 47 There were no defense objections during the State’s main argument.
¶ 48 Calvin’s counsel argued that he was arrested at home for a minor offense, he did not know
defendant, he would not have stood next to defendant in the lineup if he had committed a crime
-8-
with him, and Calvin’s alibi from Theresa cast doubt on Yarbor’s identifications. Counsel also
argued that Yarbor’s identifications and other testimony were unreliable because he wore
glasses, did not keep records of large amounts of cash, and told police that two tablets were
taken but testified that three were stolen. Counsel noted that Yarbor mentioned defendant
threatening Cousins and Vanessa but neither testified to being threatened. Counsel argued that
the lineup was not conducted according to proper procedure, including conducting a separate
lineup for each suspect. Counsel noted that Cousins made no identification and that no
fingerprint or other forensic evidence linked Calvin to the robbery. Counsel noted that Vanessa
made no identification until long after the robbery, after telling the ASA that she could not
make an identification, and argued that Vanessa did not go to the police station in November
2015 voluntarily and felt “threatened.” Counsel argued that Yarbor was robbed but not
kidnapped because he was not secretly confined.
¶ 49 Defendant’s counsel agreed with the arguments of Calvin’s counsel and added that the case
was “an avalanche of errors,” including the lineup and Detective Gentile’s grand jury
testimony. Counsel noted that Cousins could not make an identification, no fingerprints tied
defendant to the crime, and Garth testified to where defendant was at the time of the robbery.
¶ 50 In rebuttal, the State argued that defendant and Calvin were on trial rather than Yarbor.
Yarbor was “a hero, because he was able to compose himself enough to write down that license
plate number that lead[ ] right to these two defendants.” (No objection was made to this
argument.) The discrepancies in Yarbor’s accounts and the deviations from police procedure
in the lineup were not impeaching. Moreover, Yarbor’s identifications were corroborated by
Vanessa. The State characterized the argument that Vanessa’s testimony was not reliable as
the ASA “going to go out on a conspiracy.” The State argued that the ASA was not “threatening
her with throwing her in the jail” merely by subpoenaing Vanessa and that she came to the
police station “of her own volition.” (No objection was made to this argument.) The State
argued that Yarbor and Vanessa were “held hostage” by defendant and Calvin and could “not
forget their faces.” The State noted that, while Theresa testified that Calvin was home during
the robbery, she also testified that she went to his home daily to care for his uncle. The State
argued that Garth was biased by his friendship with defendant and noted Garth’s testimony
that Calvin knew defendant, contradicting Calvin’s testimony that he did not know defendant.
¶ 51 Following deliberations, the jury found both defendant and Calvin guilty of armed robbery
with a firearm and aggravated kidnapping.
¶ 52 D. Posttrial
¶ 53 Defendant filed a posttrial motion claiming insufficiency of the evidence, error in allowing
hearsay evidence regarding the plate number, and improper rebuttal closing argument by the
State expressing the prosecutor’s personal opinion of defendant’s credibility and guilt.
¶ 54 At the hearing on defendant and Calvin’s posttrial motions, defendant’s counsel argued
insufficiency of the evidence generally, noted the lack of evidence that Yarbor was kidnapped,
challenged the license plate evidence, and argued the State’s improper rebuttal argument. The
court denied the motions without significant comment.
¶ 55 Following a sentencing hearing, the court sentenced defendant to concurrent prison terms
of 21 years. Defendant’s postsentencing motion was granted insofar as the sentence for
aggravated kidnapping was reduced to eight years because a firearm enhancement applied to
-9-
armed robbery, but not aggravated kidnapping, as charged. Defendant timely filed this appeal. 2
¶ 56 III. ANALYSIS
¶ 57 A. Sufficiency
¶ 58 Defendant first contends that the trial evidence was insufficient to convict him beyond a
reasonable doubt.
¶ 59 On a claim of insufficient evidence, we must determine whether, taking 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. People v. Harris, 2018 IL 121932, ¶ 26. It
is the responsibility of the trier of fact to weigh, resolve conflicts in, and draw reasonable
inferences from the testimony and other evidence, and the trier of fact is better equipped than
this court to do so as it heard the evidence. Id.; In re Jonathon C.B., 2011 IL 107750, ¶ 59.
Thus, we do not retry a defendant. Harris, 2018 IL 121932, ¶ 26. The trier of fact is not required
to disregard inferences that flow normally from the evidence, nor to seek all possible
explanations consistent with innocence and elevate them to reasonable doubt. People v.
Newton, 2018 IL 122958, ¶ 24. Stated another way, the State need not disprove or rule out all
possible factual scenarios at trial. Id. ¶ 27. The trier of fact need not be satisfied beyond a
reasonable doubt as to each link in the chain of circumstances if the evidence as a whole
satisfies the trier of fact beyond a reasonable doubt of the defendant’s guilt. Id.; Jonathon C.B.,
2011 IL 107750, ¶ 60. A conviction will be reversed only if the evidence is so unreasonable,
improbable, or unsatisfactory that a reasonable doubt of the defendant’s guilt remains. Harris,
2018 IL 121932, ¶ 26.
¶ 60 Here, taking the evidence in the light most favorable to the State as we must, we do not
find the evidence of defendant’s guilt to be so unreasonable, improbable, or unsatisfactory as
to have any reasonable doubt of his guilt. Yarbor, Cousins, and Vanessa gave a generally
consistent account of the robbery: a short-haired robber and a dreadlocked robber entered
Yarbor’s office, each armed with a firearm. The short-haired robber forced Yarbor into the
back room while the dreadlocked robber stayed with Cousins and Vanessa. Cousins and
Vanessa heard a strike and exclamation corresponding to Yarbor’s testimony that the short-
haired robber struck him, and Cousins and Vanessa corroborated Yarbor’s testimony that at
least one tablet was stolen, including one taken by defendant personally.
¶ 61 Yarbor and Vanessa each made multiple identifications, before and during trial, of
defendant and Calvin as the robbers. As the robbery took minutes rather than seconds, both
Yarbor and Vanessa had ample opportunity to view the robbers. (Conversely, Cousins
explained her inability to make an identification when she testified that she focused on her
child during the incident.) Yarbor made his pretrial identifications within two days of the
incident. While Vanessa did not make her pretrial identification until over a year after the
robbery, she testified affirmatively that she remembered the robbers’ faces.
¶ 62 Most notably, Yarbor and Vanessa viewed different photographic arrays several months
apart from which each identified defendant; that is, none of the same photographs except for
2
Calvin was sentenced to concurrent prison terms of 24 years, with aggravated kidnapping reduced
to 8 years upon his postsentencing motion. We have already decided Calvin’s appeal. People v. Calvin,
2019 IL App (1st) 161263-U.
- 10 -
defendant’s were in the array shown to Yarbor and the array shown to Vanessa. 3 We also
consider it significant that Vanessa was not the victim of the armed robbery as Yarbor was: it
was Yarbor’s office that was invaded at gunpoint, and it was not Vanessa’s property that was
stolen. Similarly, while Yarbor was threatened and struck by Calvin, defendant assured
Vanessa and Cousins that he would not harm them. Lastly, we do not consider Vanessa’s
identifications impeached by the fact that she cooperated with authorities after the day of the
robbery only after being subpoenaed; that does not by itself render her account or
identifications the result of threats or intimidation. Vanessa’s trial testimony does not strike us
as reluctant, hesitant, or uncooperative. She clearly repudiated her September 2015
representation to the ASA that she could not make identifications, and she testified to
contacting the authorities to report that she could make identifications.
¶ 63 Against this evidence, defendant presented an alibi of a long-time friend who also
contradicted Calvin’s testimony that he did not know defendant. Calvin presented an alibi that
he was home during the robbery while his corroborating alibi witness cared for his uncle, which
she testified to doing daily. Again taking the evidence in the light most favorable to the State,
we are not left with any reasonable doubt of defendant’s guilt.
¶ 64 B. Motion to Suppress
¶ 65 Defendant contends that the trial court erred in denying his motion to suppress pretrial
identifications, as the photographic array and lineup shown to Yarbor were unduly suggestive.
¶ 66 However, defendant’s posttrial motion did not challenge the denial of his motion to
suppress. Generally, a claim is forfeited when not raised both at trial and in the posttrial motion.
People v. Reese, 2017 IL 120011, ¶ 60. We may consider a forfeited claim under the plain-
error doctrine, under which we consider a clear or obvious error if either (1) the trial evidence
was closely balanced or (2) the error was so serious as to deny the defendant a fair trial and
challenge the integrity of the judicial process. Id. A defendant claiming plain error has the
burden of showing plain error, and the first step in plain-error analysis is determining whether
an error occurred at all. Id. We need not determine whether there was error, much less clear
and obvious error, here because we cannot conclude that the evidence here was closely
balanced nor that any error regarding defendant’s motion to suppress was so serious as to deny
him a fair trial and challenge the integrity of the judicial process. Notably, defendant’s motion
challenged Yarbor’s array and lineup identifications of defendant. However, regardless of any
flaws in the array and lineup presented to Yarbor, Vanessa made her pretrial identification of
defendant from a different array as noted above. For the reasons already set forth (supra ¶ 62),
we find that Vanessa’s identifications of defendant before and during trial stand independent
of Yarbor’s identifications. The fact that Vanessa independently made the same identifications
as Yarbor tends to indicate that Yarbor’s identifications were not the result of undue suggestion
or impropriety.
¶ 67 C. Hearsay
¶ 68 Defendant contends that he was deprived of a fair trial when the State was allowed to elicit
testimony implying that codefendant Thomas had implicated defendant, which constituted
3
Yarbor and Vanessa were shown essentially the same photographic array including, and from
which each identified, Calvin.
- 11 -
hearsay and violated defendant’s right to confront witnesses against him. The State responds
that defendant forfeited such a claim and that trial counsel was not ineffective for not
preserving the claim because the testimony at issue was proper.
¶ 69 Hearsay—“a statement, other than one made by the declarant while testifying at the trial
or hearing, offered in evidence to prove the truth of the matter asserted”—is generally
inadmissible, with various exceptions. Ill. R. Evid. 801(c) (eff. Oct. 15, 2015); R. 802 (eff. Jan.
1, 2011). Conversely, an out-of-court statement is not hearsay if it is offered for some purpose
other than to establish the truth of the matter asserted. People v. Hanson, 238 Ill. 2d 74, 102
(2010). The constitutional right to confront witnesses against oneself is not implicated by a
testimonial out-of-court statement offered for a purpose other than establishing the truth of the
matter asserted. People v. Darr, 2018 IL App (3d) 150562, ¶ 67 (citing Crawford v.
Washington, 541 U.S. 36, 59 n.9 (2004)). Thus, a police officer may testify regarding the steps
taken in an investigation of a crime when such testimony is necessary to fully explain the
State’s case, though such testimony shall not include the substance of any conversation with a
person who is not testifying. People v. Matthews, 2017 IL App (4th) 150911, ¶ 18. An
“officer’s testimony recounting steps taken in the course of an investigation may be admissible
without violating a defendant’s confrontation rights, even though the officer’s description of
the progress of the case might suggest that nontestifying witnesses implicated the defendant.”
People v. Johnson, 116 Ill. 2d 13, 24 (1987).
¶ 70 Evidentiary rulings, including whether to grant a motion in limine, are generally within the
trial court’s sound discretion and not reversed absent an abuse of discretion. People v. Way,
2017 IL 120023, ¶ 18; Reese, 2017 IL 120011, ¶ 75. A court abuses its discretion when its
ruling is arbitrary, fanciful, or unreasonable or where no reasonable person would take the
court’s view. People v. Peterson, 2017 IL 120331, ¶ 125. The admission of hearsay evidence
is harmless error if there is no reasonable probability that the trier of fact would have acquitted
the defendant absent the hearsay testimony. Matthews, 2017 IL App (4th) 150911, ¶ 23.
¶ 71 As a threshold matter, we note that defendant raised a hearsay claim regarding Thomas’s
statement in the motion in limine but failed to preserve the claim in his posttrial motion. Our
supreme court has held that an issue in a criminal case is not forfeited if raised in both a hearing
in limine and the posttrial motion. People v. Denson, 2014 IL 116231. As defendant did not do
so, we may consider this claim only under the plain-error doctrine, under which we consider a
clear or obvious error if either (1) the trial evidence was closely balanced or (2) the error was
so egregious as to deny the defendant a fair trial. Reese, 2017 IL 120011, ¶ 69. A defendant
claiming plain error has the burden of showing plain error, and the first step in plain-error
analysis is determining whether an error occurred at all. Id.¶ 72 Here, Officer Campbell and Detective Gentile testified strictly to the course of their
investigation that led to defendant and codefendant Calvin. Yarbor provided Campbell a
license plate number shortly after the robbery. Campbell provided the plate number to Gentile,
who found that the plate was for a Kia registered to Chandler, and asked officers to speak with
Chandler. Chandler later came to the police station with codefendant Thomas. After speaking
with Chandler, Gentile spoke with Thomas. After speaking with Thomas, Gentile investigated
defendant and Calvin. Consistent with the order in limine, the State never elicited the content
of Thomas’s conversation with Gentile, and nobody testified to such content.
¶ 73 Defendant argues that this testimony implies that Thomas implicated defendant and Calvin.
However, this court has held that an officer’s testimony was not hearsay when it was “correctly
- 12 -
limited to the investigatory steps he took leading up to the identification of defendant and
demonstrated defendant’s arrest was not purely coincidental” and the officer did not testify to
the substance of any statement by a nontestifying person. People v. Davison, 2019 IL App (1st)
161094, ¶¶ 32-34. As we said in Davison, “[w]hile the implication of his testimony is that [a
nontestifying person] provided the names of [the] defendant and two others as individuals
connected to [a] murder, this implication does not render the testimony hearsay or
inadmissible.” Id. ¶ 32 (citing Johnson, 116 Ill. 2d at 24). Similarly, while Detective Gentile’s
testimony implies that Thomas implicated defendant and Calvin in the armed robbery of
Yarbor, that implication does not render the testimony hearsay or inadmissible because nobody
testified to the content of any statement by or interview with Thomas. We conclude that the
testimony regarding the license plate number and Thomas’s interview was not inadmissible or
improper. Thus, there was no plain error here, and trial counsel was not ineffective for not
preserving a meritless claim.
¶ 74 D. Improper State Remarks
¶ 75 Defendant also contends that the State made improper remarks or arguments. He argues
that the State vouched for Vanessa’s credibility, including a prosecutor effectively presenting
testimony. The State responds that the arguments were proper.
¶ 76 Prosecutors are afforded wide latitude in closing argument and may properly comment on
the evidence presented or reasonable inferences drawn from that evidence, may respond to
comments by defense counsel that invite response, and may comment on witness credibility.
People v. Kallal, 2019 IL App (4th) 180099, ¶ 35; People v. Olla, 2018 IL App (2d) 160118,
¶¶ 40-41. A prosecutor is not allowed to misstate the evidence, argue facts not in evidence, or
attempt to shift the burden of proof to the defense. Olla, 2018 IL App (2d) 160118, ¶ 41; People
v. Marzonie, 2018 IL App (4th) 160107, ¶ 47. It is improper for a prosecutor to make remarks
with the sole effect of inflaming the jury’s passions or developing its prejudices without casting
any light on the issues. Darr, 2018 IL App (3d) 150562, ¶ 71. Conversely, commentary that
inflames the jury’s passions is not improper if it also serves a proper purpose. Id.¶ 77 The trial court can cure erroneous statements made during arguments by giving proper jury
instructions on the law, reminding the jury that arguments are not evidence and should be
disregarded if unsupported by the evidence, or by sustaining an objection and instructing the
jury to disregard the improper statement. Kallal, 2019 IL App (4th) 180099, ¶ 35.
¶ 78 Our review considers closing arguments in their entirety and considers remarks in context,
and improper remarks do not merit reversal unless they cause substantial prejudice to the
defendant. Id. Substantial prejudice exists when the jury could have reached a contrary verdict
had the improper remarks not been made or the reviewing court cannot say that the prosecutor’s
improper remarks did not contribute to the conviction. Id. The strength of the evidence against
the defendant is often a decisive factor in this determination. Marzonie, 2018 IL App (4th)
160107, ¶ 48.
¶ 79 Here, as a threshold matter, we note that defendant did not object contemporaneously to
the State’s remarks regarding Vanessa, though he raised a claim of improper argument in his
posttrial motion. A claim is forfeited unless a contemporaneous objection was made and a
written posttrial motion raised the issue, and forfeiture may be overcome under a plain-error
analysis. Reese, 2017 IL 120011, ¶¶ 68-69. As noted above, the first step in plain-error analysis
is determining whether an error occurred at all. Id. ¶ 69.
- 13 -
¶ 80 Examining the State’s remarks in context, we do not find them improper. The trial evidence
showed that the ASA in question interviewed Vanessa pursuant to subpoena, at which time
Vanessa said she could not make an identification, but then Vanessa contacted the authorities
to report that she could make an identification, followed by her doing so. The defense argued
in closing that the State threatened or intimidated Vanessa into her identifications, and the
State’s argument at issue was made in response to the defense argument. We do not find that
the ASA testified in her argument, as defendant claims, but merely argued reasonable
inferences from trial evidence. Moreover, we do not find the evidence of defendant’s guilt to
be closely balanced, and thus any error in the closing arguments was not plain error.
¶ 81 E. Ineffective Assistance
¶ 82 Defendant contends that trial counsel rendered ineffective assistance by not impeaching
Detective Gentile at trial with his testimony from the hearing on the motion to suppress and by
not reopening that motion when Gentile contradicted his earlier testimony at trial. Specifically,
Gentile testified in the hearing that he personally showed photographic arrays to Yarbor but
testified at trial that other officers showed Yarbor the arrays.
¶ 83 To prevail on a claim of ineffective assistance of counsel, a defendant must show both that
counsel’s representation fell below an objective standard of reasonableness and that a
reasonable probability exists that, but for counsel’s errors, the result of the proceeding would
have been different. Peterson, 2017 IL 120331, ¶ 79. A reasonable probability is one sufficient
to undermine confidence in the outcome of the proceeding. Id.¶ 84 Here, we cannot conclude that the outcome of the trial was reasonably probable to change
if Detective Gentile was impeached with his erroneous hearing testimony. Yarbor’s trial
testimony independently established that he was shown the photographic arrays in question,
and he indeed made identifications from those arrays. As to impeachment of Gentile, the jury
already heard that he made significant mistakes in his grand jury testimony in which he
“inverted” the defendants’ roles in describing the robbery.
¶ 85 We also cannot conclude that seeking to reopen the motion to suppress identification was
reasonably probable to change the outcome of the case. The same reasoning that causes us to
find no plain error in the denial of the motion to suppress—that the motion concerned Yarbor’s
identifications but Vanessa made independent identifications—causes us to find no prejudice
from not reopening the motion.
¶ 86 F. Aggravated Kidnapping
¶ 87 Lastly, defendant contends that the State failed to prove him guilty of aggravated
kidnapping because the asportation of Yarbor was merely incidental to armed robbery. The
State responds that the evidence was sufficient to convict defendant of aggravated kidnapping.
¶ 88 A person commits aggravated kidnapping when he commits kidnapping and inflicts great
bodily harm, or commits another felony, upon the kidnapping victim. 720 ILCS 5/10-2(a)(3)
(West 2014). A person commits kidnapping when he knowingly “by force or threat of
imminent force carries another from one place to another with intent secretly to confine that
other person against his or her will” (720 ILCS 5/10-1(a)(2) (West 2014)), which is referred to
as asportation. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009). In determining whether
an asportation supports an independent offense of kidnapping or is merely ancillary to another
- 14 -
offense, we consider (1) the duration of the asportation, (2) whether the asportation occurred
during the commission of a separate offense, (3) whether the asportation is inherent in the
separate offense, and (4) whether the asportation created a significant danger to the victim
independent of the separate offense. Id. at 225-26. Our analysis is particular to the facts and
circumstances of the case before us. People v. Sumler, 2015 IL App (1st) 123381, ¶ 56.
Whether a kidnapping or aggravated kidnapping conviction should be reversed on the grounds
that the asportation was incidental to another crime is a question of the sufficiency of the
evidence, not a question of law reviewed de novo. Id. ¶¶ 52-53.
¶ 89 Here, even taking the evidence in the light most favorable to the State as we must, we find
that the asportation of Yarbor to the back room of his office was ancillary to armed robbery
and does not support an independent conviction for aggravated kidnapping. Turning to the first
of the relevant factors, duration of the asportation, we find that Yarbor was detained relatively
briefly, temporally for a few minutes and functionally for as long as it took codefendant Calvin
to force Yarbor to open the safe and yield the property inside. As to whether the asportation
occurred during the commission of a separate offense, the answer is clearly “yes.” Calvin
forced Yarbor into the back room of his office at gunpoint after demanding to know where the
safe was, and Yarbor was left alone once Calvin had what he came for from the safe.
¶ 90 As to whether the asportation here was inherent in the separate offense, while armed
robbery in the abstract does not require taking the victim elsewhere, Calvin took Yarbor into
the back room at gunpoint to obtain the contents of his safe; that is, to rob him. Lastly, as to
whether the asportation created a significant danger to Yarbor independent of the separate
offense, we conclude that it did not. Yarbor indeed faced greater danger than the other people
in his office watched over by defendant, as shown by Calvin striking Yarbor’s head and
contemplating shooting him. However, that greater danger arose from Yarbor being the
proprietor of the tax firm and the owner of the safe in his office, not because Calvin led him
into the back room. In other words, as Calvin and defendant were armed, Yarbor would have
been effectively just as far beyond the help of Cousins or Vanessa if he had been in the front
room of his office as he actually was in the back room with Calvin.
¶ 91 IV. CONCLUSION
¶ 92 Accordingly, we reverse defendant’s aggravated kidnapping conviction. We otherwise
affirm the judgment of the circuit court
¶ 93 Affirmed in part and reversed in part.
- 15 -