Appeal from the Appellate Court for the First District; heard
in that court on appeal from the Circuit Court of Cook County,
the Hon. Cornelius J. Houtsma, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 30, 1984.
Defendant, Jeffery Molstad, was arrested on April 15, 1981, and charged with two counts of aggravated battery, armed violence, and criminal damage to property. The armed-violence count was dismissed prior to trial, but Molstad was found guilty of the remaining charges on September 4, 1981, after a bench trial in the circuit court of Cook County. Other individuals were convicted along with Molstad, but these co-defendants have not appealed. The trial judge denied Molstad's post-trial motion for a new trial to introduce the exculpatory testimony of five co-defendants. Molstad was sentenced to 30 months' felony probation and ordered to pay $500 restitution for the criminal-damage-to-property conviction. The appellate court vacated the conviction and remanded the case for an evidentiary hearing (112 Ill. App.3d 819), and we granted the State's petition for leave to appeal. 87 Ill.2d R. 315(a).
On April 2, 1981, an individual named Thomas Bonner was seated in his automobile in the parking lot of the Little Giant's Liquor Store in Midlothian. Bonner left the car and spotted Michael Patterson in a van, and Bonner punched Patterson in the face and dragged him out onto the pavement. Patterson removed his coat and began to fight. Bonner punched Patterson several times and kicked him in the face. Defendant, Jeffery Molstad, a bystander, broke up the fight between Bonner and Patterson, but Patterson was hospitalized with a broken nose inflicted by Bonner. Patterson vowed revenge as he lay on the pavement.
At approximately 11:50 that evening, Bonner was driving near 145th and Kilpatrick streets with his sister Sandy, and his girlfriend, Wendy Albritton, seated in the front seat of the car. An orange pickup truck and a blue station wagon pulled in front of Bonner, forcing him to stop, and a brown pickup truck blocked him from behind. Between 8 and 10 persons jumped out of the pickup trucks and station wagon. Several individuals began attacking Bonner's car with baseball bats and lead pipes.
Sandy Bonner testified that she began screaming and ran to neighboring houses to seek assistance. Wendy Albritton testified that she got out and watched the attackers destroying Bonner's car. Albritton testified that she saw Molstad striking the back window of the car. Sandy Bonner identified several of the assailants in open court, but she did not testify that Jeffery Molstad was present. Albritton testified that she also observed David Kent, Mike Guerra (actual name, Geary), David Kroll and Mike Schmidt demolishing the car. Geary opened the front door of the car and hit Thomas Bonner in the head with a baseball bat.
Thomas Bonner testified that he escaped from the car after he was hit with the bat. He testified that he ran from his attackers and fell into a ditch, where he was struck repeatedly with lead pipes and baseball bats. Bonner was hospitalized for six days and sustained multiple bruises, lacerations of the skull and a bone fracture. He testified that he was still troubled by headaches at the time of the trial.
Jeffery Molstad denied that he was present during the attack on Bonner. Molstad testified that he returned home between 10 and 10:30 p.m. and that he went to bed shortly thereafter. His testimony was corroborated by that of his parents. The co-defendants identified by Wendy Albritton did not present a defense or testify at trial.
Molstad's lawyer filed a post-trial motion before sentencing to reopen the case or, in the alternative, for a new trial. Molstad's counsel offered the affidavits of convicted co-defendants David Kent, David Kroll, Jose Flores, Mike Schmidt, and one acquitted co-defendant, Edward Kroll. The affidavits stated that Molstad had not been present at the time of the attack on Bonner and the automobile. Molstad argues that this newly discovered evidence should be the basis for a new trial because the evidence contained in the affidavits was not available at the time of trial. The co-defendants would have had to admit they were present during the attack on Bonner in order to give competent testimony as to who was at the scene of the attack. Such testimony would have been an admission against the interests of the co-defendants.
Three issues are presented on appeal: (1) whether Molstad was proved guilty beyond a reasonable doubt by the testimony of Wendy Albritton; (2) whether the testimony of five of Molstad's co-defendants should provide the basis for a new trial; (3) whether the trial court erred in ordering Molstad to pay $500 restitution based on the criminal-damage-to-property charge, without considering out-of-pocket expenses to the victim and the defendant's ability to pay.
We turn now to the first issue raised by Molstad: whether the testimony of Wendy Albritton established Molstad's guilt beyond a reasonable doubt. Albritton was the only witness at trial who testified that Molstad took part in the attack on Bonner and the automobile. The positive identification by one credible witness is normally sufficient to sustain a conviction (People v. Boney (1963), 28 Ill.2d 505, 509). Molstad maintains that Albritton's testimony is not credible, because it is highly unlikely that she calmly stood next to the vehicle and noted exactly who was present while the gang was destroying the auto and beating her boyfriend.
In a bench trial, the court is the trier of fact, and it is the function of the court to determine the credibility of witnesses and the weight that should be given to their testimony. (People v. Manion (1977), 67 Ill.2d 564, 577-78.) A reviewing court should not substitute its judgment for that of the trier of fact unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Stringer (1972), 52 Ill.2d 564, 568.) The State maintains that Albritton's testimony is not palpably improbable. She had met Molstad on about 10 occasions, and was familiar with his face.
While we do not question the good faith of the prosecution witness, we believe the circumstances, considered together, tend to impair the weight to be given to the identification of Molstad. (See People v. Peck (1934), 358 Ill. 642, 648-49.) A better determination of Molstad's guilt could be made if Albritton's testimony could be balanced against the testimony of Molstad's co-defendants. This is particularly true since the co-defendants prepared and delivered their affidavits to Molstad's attorney after their conviction but before they were sentenced, when their own credibility could be a factor in their ultimate penalty. (People v. LeMorte (1919), 289 Ill. 11, 23.) We therefore conclude that Albritton's testimony did establish Molstad's guilt beyond a reasonable doubt, but this testimony should now be balanced against the subsequently acquired testimony ...