Appeal from the Circuit Court of the Ninth Judicial Circuit, Knox County, Illinois No. 05-CF-249 Honorable James B. Stewart, Judge, Presiding.
The opinion of the court was delivered by: Justice Schmidt
The State charged defendant, Janet L. Turner, with theft. Following a bench trial, the circuit court of Knox County convicted defendant and sentenced her to 2 days' imprisonment with credit for time spent in presentence incarceration and 24 months' probation and assessed a $200 fine, costs, and penalties. Defendant appeals. For the reasons below, we affirm.
The State filed an information charging defendant with theft by knowingly exerting unauthorized control over the property of Charles Vandell, consisting of two bundles of roofing shingles valued at $300, with the intent to permanently deprive Vandell of the use of the property. At defendant's arraignment, defense counsel entered a plea of not guilty on the defendant's behalf and waived defendant's right to a trial by jury. Defendant was present during the arraignment, expressed oral assent to the bench trial date, and executed a written jury trial waiver.
On the day of trial, defense counsel moved for a continuance because he had a potential conflict of interest in calling the co-defendant, Kevin Smith, to testify. Defense counsel had represented Smith at Smith's plea hearing 30 to 60 days prior to trial. Smith pled guilty to charges stemming from the theft of the shingles. The trial court denied defendant's motion to continue, finding that a conflict of interest did not exist and stating that, if necessary, it would admonish Smith of his right to silence regarding other unindicted offenses allegedly committed with a different person. The cause proceeded to trial; defendant did not call Smith to testify.
Dorothy Jones testified on behalf of the State. Dorothy lives next door to Vandell, and on the afternoon in question, she observed a vehicle parked on Vandell's lot near several bundles of roofing shingles. Dorothy saw defendant standing by the car and saw a man, Kevin Smith, picking up bundles of shingles and putting them into the backseat of the car. Dorothy testified that defendant conversed with Smith and pointed to shingles. Dorothy further testified that when defendant saw Dorothy, she got back into the front passenger seat of the car. Dorothy told her husband that someone was taking the neighbor's shingles. Wilbur Jones, Dorothy's husband, got up and yelled "Hey" at Smith three or four times before Smith got into the car, backed up, and sped off, running a stop sign. Wilbur did not see the defendant, but heard the passenger car door slam. Dorothy recorded the vehicle's license plate number and contacted the police.
During the course of their investigation, the police received a report from Lowe's regarding a "suspicious" return of two bundles of shingles to the store. Police recovered the shingles from Lowe's and contacted Vandell. Smith and defendant were together at Lowe's when police arrived in response to the report. Vandell went to his lot and noticed that two bundles of shingles were missing and, at the police station, identified the shingles recovered from Lowe's. Vandell testified that each bundle weighs approximately 80 pounds. The police photographed the shingles and then returned them to Vandell. The police transported Smith and defendant to the police station. Smith spoke to police, but defendant did not.
Following trial, the trial court found defendant guilty of theft. This appeal followed.
Four issues are raised on appeal: the sufficiency of the evidence to convict defendant beyond a reasonable doubt, the defense counsel's conflict of interest in representing the defendant and co-defendant, the knowing waiver of the right to a trial by jury, and defendant's entitlement to a $10 credit for two days spent in presentence incarceration.
A. Sufficiency of the Evidence
In a challenge to the sufficiency of the evidence, the court will view the evidence "'in the light most favorable to the prosecution'" and determine whether "'any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" (Emphasis in original.) People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L.Ed. 2d 560, 573, 99 S.Ct. 2781, 2789 (1979). The evidence must be "so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt" to merit reversal. Collins, 106 Ill. 2d at 261, 478 N.E.2d at 277.
Circumstantial evidence that proves the elements of the crime beyond a reasonable doubt "is sufficient to sustain a conviction." People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d 669, 685 (2002). The trier of fact can make reasonable inferences and is not required to prove "each link in the chain of circumstances" beyond a reasonable doubt or "search out all possible explanations consistent with innocence." People v. Campbell, 146 Ill. 2d 363, 380, 586 N.E.2d 1261, 1268 (1992). The court "will not substitute its judgment" for determinations made by the trier of fact regarding the weight of evidence and credibility of witnesses (People v. Young, 128 Ill. 2d 1, 51, 538 N.E.2d 461, 473 (1989)), but will not accept eyewitness testimony where "no reasonable person could accept it beyond a reasonable doubt." People v. Cunningham, 212 Ill. 2d 274, 280, 818 N.E.2d 304, 308 (2004).
A defendant is accountable for the conduct of a co-defendant when "[e]ither before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense." 720 ILCS 5/5--2(c) (West 2004). Mere presence at the scene of the crime with knowledge of its commission alone does not establish accountability, but active participation is not required to render a defendant accountable for the acts of another. People v. Reid, 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190 (1990).
A defendant need not act affirmatively if there is a "common criminal plan or purpose." People v. Taylor, 164 Ill. 2d 131, 140-41, 646 N.E.2d 567, 571 (1995). A common criminal plan or design can be inferred from the circumstances, and a defendant need not express "[w]ords of agreement" to be held accountable for a co-defendant's criminal acts. Taylor, 164 Ill. 2d at 141, 646 N.E.2d at 571. In Taylor, our supreme court identified some circumstances that may be considered by the trier of fact in determining defendant's legal accountability. These factors include: (1) presence at the scene without disapproval, (2) "flight from the scene," (3) "fail[ure] to report the crime," (4) close affiliation with the co-defendant afterward, (5) sharing the proceeds of the criminal act, and (6) destroying or disposing of evidence. Taylor, 164 Ill. 2d at 141, 646 N.E.2d at 571. There is no indication in Taylor that the list of factors or circumstances was meant to be exhaustive.
Accompanying the co-defendant to the scene with knowledge of the commission of a crime with any affirmative contact between the defendant and the co-defendant indicates a shared criminal purpose. Compare People v. Houston, 258 Ill. App. 3d 364, 368, 629 N.E.2d 774, 778 (1994) (finding a common criminal design that defendant accompanied the co-defendant to the scene of the crime, did not attempt to prevent the crime, and alerted the co-defendant of a fleeing victim), with People v. Perez, 189 Ill. 2d 254, 268, 725 N.E.2d 1258, 1266 (2000) (finding no shared criminal purpose because defendant did not appear at the scene with the co-defendants, joined the co-defendants to pay an unrelated monetary debt, and lacked knowledge regarding the circumstances of the ongoing confrontation).
Defendant relies on People v. Ceasar, 231 Ill. App. 3d 54, 596 N.E.2d 89 (1992), and People v. Trapps, 22 Ill. App. 3d 1029, 318 N.E.2d 108 (1974), to support her argument that the evidence was insufficient to convict. Unlike in Ceasar or Trapps, there is no dispute that defendant accompanied the co-defendant to the scene, and it was reasonable to infer that she not only had knowledge of the criminal purpose, but affirmatively acted to support that purpose by conversing with Smith during the crime and pointing to bundles of shingles. People v. Ceasar, 231 Ill. App. 3d at 56, 596 N.E.2d at 90 (finding that defendant's appearance and flight with the co-defendant after the commission of the crime was insufficient to hold him accountable); People v. Trapps, 22 Ill. App. 3d at 1032-33, 318 N.E.2d at 110-11, (holding that defendant's presence at the scene of the crime without any evidence that she knew of the co-defendant's actions, fled with the co-defendant, or continued to associate with the co-defendant did not support a finding of a common criminal design).
Because it is already established beyond a reasonable doubt that defendant was at the scene without disapproving of the commission of the crime, fled with the co-defendant, and was with him at Lowe's afterward, it is not necessary to establish that she displayed a guilty conscious after she saw the witness, Dorothy Jones. The trier of fact can infer from the facts that when defendant fled with her co-defendant, she displayed a guilty conscious, thus further supporting an inference of a common criminal design. People v. Taylor, 164 Ill. 2d 131, 142, 646 N.E.2d 567, 572 (1995) (stating defendant's flight without a determination of defendant's state of mind was sufficient to support a finding of a common criminal purpose). However, we find nothing unreasonable about the trial court's finding that defendant displayed guilty knowledge by getting back into the car when she saw the witness so that she could not be seen as well as when she was standing outside the car.
The evidence taken in the light most favorable to the prosecution establishes beyond a reasonable doubt that defendant's presence at the scene of the crime without disapproval, flight with the co-defendant, failure to report the crime, and continued association with the co-defendant are sufficient to support an inference of ...