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June 30, 1995


Appeal from Circuit Court of Champaign County. No. 92CF2010. Honorable John R. DeLaMar, Judge Presiding.

As Corrected July 31, 1995.

Honorable Robert W. Cook, J., Honorable John T. McCULLOUGH, J., Concurring, Honorable James A. Knecht, P.j., Dissenting

The opinion of the court was delivered by: Cook

JUSTICE COOK delivered the opinion of the court:

Following his May 1993 jury trial, defendant McEvory Biggers was convicted of armed robbery (720 ILCS 5/18-2 (West 1992)). Defendant was sentenced to serve 16 years in the Illinois Department of Corrections. Defendant appeals, contending that the State failed to prove him guilty beyond a reasonable doubt, and the trial court abused its discretion in admitting evidence that he committed a later armed robbery at the same location. We affirm.

At trial, the State presented the testimony of two eyewitnesses to the charged May 29, 1992, robbery and one eyewitness to the July 7, 1992, robbery. Both robberies occurred at the Picadilly Beverage Shop (Picadilly) in Champaign, Illinois. Richard Babey, assistant manager of the Picadilly, testified that around 9:55 p.m. on May 29, 1992, an African-American male entered the store and asked for a pack of Newport cigarettes. Babey was standing behind the cash register with his coworker Steve Fifer. After Babey got the cigarettes and turned around, he saw the man was holding a small handgun in his right hand. The "bluing," or metal coating, was worn off the handgun. The man asked Babey for the money in the cash register and the lottery terminal. Babey placed the money on the counter, and the robber asked Babey to put the money in his hand. The robber spoke softly, wore no gloves, and did not touch anything in the store. After Babey handed over the money, the robber ordered Babey and Fifer to the back of the store. The robber then backed out the front door.

Babey testified that the robber wore sunglasses, a dark ball cap, a maroon windbreaker, and orange sweatpants. Babey described the robber to the police as approximately 6 feet 1 inch tall, 210 pounds, in his thirties, and clean shaven.

On July 22, 1992, Babey met with Detective John Schweighart at the Champaign police department. Babey helped the police prepare a composite sketch of the robbery suspect. Babey also looked at a number of photographs of potential suspects, none of which included defendant, and was unable to make an identification. Babey met again with Detective Schweighart on August 17, 1992. At this meeting, Babey identified defendant from a photo array as the man who committed the robbery. Babey told Detective Schweighart that he would rate his certainty as a "strong eight" on a scale of 1 to 10 that the man in the photograph was the robber, but that he wanted to view an in-person lineup. On August 25, 1992, Babey picked defendant from a five-person lineup as the man who committed the robbery. In court, Babey identified defendant, the only African-American in the room, as the robber.

Steve Fifer was also present during the May 29 robbery. Fifer's testimony was similar to Babey's. Unlike Babey, Fifer was facing the robber when the robber pulled a handgun with worn bluing from his windbreaker pocket. Fifer's description of the robber was identical to Babey's description. Fifer was never shown any suspect photographs by the police, but he attended the August 25, 1992, lineup with Babey. Fifer identified defendant, both at the lineup and in court, as the man who committed the robbery.

Over defendant's objection, the State presented the testimony of David Harding, the manager of the Picadilly, regarding the robbery that took place July 7, 1992. Harding testified that shortly before closing at 10 p.m., an African-American man entered the Picadilly and stopped at the lottery machine. The man asked to play the lottery, and Harding told him that the lottery machine was closed and that the store was about to close. The man then pulled out a small, black handgun from his pants pocket and told Harding to open the drawer to the lottery machine. Harding opened the drawer and showed the robber that it contained no money. The robber then directed Harding to open the cash register. After Harding removed the money, the robber told him to lift the cash tray out of the register. The robber reached into the register and pulled out a $100 bill. He left the Picadilly after ordering Harding to walk to the back of the store.

Harding described the robber as 30 to 35 years old, 6 feet 2 inches tall, 200 pounds, with short black hair and thin facial hair over the upper lip and down the chin. The robber wore a white baseball cap, sunglasses, a plaid shirt, and dark gray or green pants. The robber did not wear gloves, and he did not touch anything in the Picadilly other than to take the $100 bill from the cash register. The robber never raised his voice. Harding testified that he was shown photo arrays on July 8, 1992, and July 22, 1992, by Detective Schweighart, but he was unable to identify the robber. On August 17, 1992, Harding was shown another photo array, which this time included a photograph of defendant. Harding identified the photograph of defendant as the robber. Detective Schweighart asked Harding to rank his certainty on a scale of 1 to 10, and Harding replied, "A very strong eight." On August 25, 1992, Harding picked defendant from an in-person lineup, and he also identified defendant at trial.

Defendant testified that he would have been home with his girlfriend, Charlene Moore, on the night of May 29, 1992, as the two of them drank together every Friday night. Moore corroborated this testimony. Defendant further testified that he was with his roommate Roosevelt Jenkins on the night of July 7, 1992, but the State presented evidence that Jenkins was incarcerated from July 4 through July 14, 1992.

Defendant described himself as being 6 feet 3 1/2 inches tall and 41 years old. He stated that since 1977 he has continuously worn a thin mustache. Defendant stated that he now weighs 210 pounds, but at the time of the robberies he weighed from 180 to 185 pounds.

When a defendant contends on appeal that the State did not prove the offense beyond a reasonable doubt, "'the relevant question is 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 in original.) ( People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277, 87 Ill. Dec. 910, quoting Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) Here, defendant does not deny that an armed robbery took place at the Picadilly on May 29, 1992. A rational trier of fact could conclude that defendant was the robber, based on the identifications made by Fifer and Babey. Fifer and Babey testified that they saw the robber at close range in a well-lit store. Although Babey's and Fifer's descriptions of the height and age of the robber varied slightly from defendant's self-description, the variances are not so great as to create a reasonable doubt. Babey and Fifer described the ...

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