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In re JOVAN A.

Court of Appeals of Illinois, First District, Fourth Division

September 19, 2013

In re JOVAN A., a Minor
v.
Jovan A., a Minor, Respondent-Appellant The People of the State of Illinois, Plaintiff-Appellee,

Appeal from the Circuit Court of Cook County, No. 10 JD 3836 Honorable Lori Wolfson, Judge Presiding.

JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justice Lavin concurred in the judgment and opinion.

OPINION

EPSTEIN JUSTICE

¶ 1 Following a bench trial, Jovan A. was adjudicated delinquent and sentenced to 18 months' probation. Respondent contends on appeal that the trial court improperly relied on hearsay, specifically, the content of a craigslist.org advertisement, to find that he committed theft.[1] For the reasons that follow, we reverse respondent's conviction and remand this cause for further proceedings.

¶ 2 BACKGROUND

¶ 3 Lori Bravi testified that she borrowed a Cervelo P2C triathalon bicycle from Elizabeth Waterstrat. At approximately 3:35 p.m. on July 18, 2010, she parked her car near 1652 West Cortland Avenue in Chicago, Illinois, and left the bicycle attached to a rack on her trunk while she entered a restaurant. Upon her return less than 10 minutes later, the bicycle was missing. She found a streak of green paint on her rear bumper.

¶ 4 That night, Bravi searched craigslist.org for the bicycle. She explained that craigslist.org is "a website where people go to list items for sale." Respondent made several hearsay objections when the State examined Bravi about the website's content. The court overruled these objections, noting, "I will not allow it for the truth of the matter asserted, but I will allow it to explain the steps that were taken in pursuit of an arrest." Bravi then testified that she discovered an advertisement for a Cervelo P2C bicycle resembling Waterstrat's on craigslist.org. The advertisement included a telephone number and four photographs of Cervelo P2 bicycles, though not the P2C model. She then used an Internet service to find the address associated with the telephone number listed in the advertisement. Bravi provided the telephone number, address, and advertisement to Detective Castaneda at Area 5 police headquarters.

¶ 5 Johana Cedicci testified that a sedan carrying respondent passed within 10 feet of her and Piper Gorsuch[2] near the 1600 block of Cortland Avenue at approximately 3:40 p.m. on July 18, 2010. Respondent was turned around in the front passenger seat, holding onto a "triathalon bicycle" that jutted out of the open rear door. It was a sunny afternoon, and nothing obstructed her view of respondent. On July 22, 2010, Cedicci viewed a photo array and a five-person lineup and tentatively identified two of the subjects. Respondent was not represented in either the photo array or the lineup. On July 23, 2010, she viewed a second five-person lineup and positively identified respondent as the front seat passenger.

¶ 6 Piper Gorsuch testified that, at approximately 3:40 p.m. on July 18, 2010, she and Johana Cedicci were walking along the 1600 block of Cortland Avenue when an older, electric teal Japanese sedan disregarded a stop sign. Respondent sat in the front passenger seat with the window rolled down and was holding onto a Cervelo triathalon bicycle that stuck out of the open rear door. It was a bright, clear day, and respondent passed within 10 feet of her. Nothing obstructed Gorsuch's view of respondent. On July 22, 2010, Gorsuch viewed a photo array and lineup, but could not make a definite identification. On July 23, 2010, she viewed a second lineup and identified respondent as the front seat passenger.

¶ 7 Detective Jose Castaneda testified that Bravi, his former neighbor, contacted him regarding a stolen bicycle on July 19, 2010. Bravi told him that she believed the bicycle was being sold on craigslist.org, and Castaneda viewed the advertisement. When the State examined Castaneda regarding the advertisement's content, respondent made a hearsay objection. The State responded that the advertisement was not being offered for the truth of the matter asserted, but rather to show how the detective proceeded with his investigation. The trial court allowed the testimony for that limited purpose. Castaneda further testified that he performed a database search using the telephone number listed in the advertisement and discovered related names, addresses, and car registration information.

¶ 8 On July 23, 2010, Castaneda went to the 1600 block of North Oakley Avenue, where he found a car matching one of the witness's descriptions. He detained respondent and another Hispanic male, who were sitting in the front seat. He further testified that, when he dialed the telephone number listed in the craigslist.org advertisement, respondent's cellular telephone rang. Respondent made another hearsay objection, which the trial court overruled, stating that the testimony would be allowed for a limited purpose.

¶ 9 On July 22, 2010, Castaneda showed Cedicci and Gorsuch a photo array, and they identified Miguel and Renee Salsedo. Later that day, Castaneda conducted a physical lineup with the Salsedos as subjects, but neither Cedicci nor Gorsuch was able to identify them. Respondent was not represented in either the photo array or the lineup. The following day, Castaneda arranged a second lineup, and Cedicci and Gorsuch identified respondent.

¶ 10 The parties stipulated that Elizabeth Waterstrat's bicycle had a value of between $5, 000 and $6, 000, and that neither she nor Bravi consented to respondent taking it.

¶ 11 During its oral pronouncement, the trial court noted that Bravi "did some independent investigation" and, as she "looked through some websites he she [sic] was able to see a picture of a bicycle that closely resembled the bike that was taken from her and she contacted her former neighbor, who was a detective, and the investigation proceeded from there." The court continued:

"[Respondent's] attempt to sell the bicycle further reinforces that he had the intent to permanently deprive the true owner of that bicycle.
When they called the number in the ad for sale, that phone rang in the minor's hand. That is significant evidence. Circumstantial evidence shows the minor knew the bicycle was not his. He did not have the right to be selling it, possessing it ."

The trial court adjudicated respondent delinquent and sentenced him to 18 months' probation. This appeal followed.

¶ 12 ANALYSIS

¶ 13 Respondent contends on appeal that the trial court improperly relied on hearsay evidence, specifically, the content of a craigslist.org advertisement, in finding that he committed theft. The State argues that respondent forfeited this issue and, alternatively, that no hearsay testimony was admitted. We hold that the trial court improperly admitted and relied on the content of the craigslist.org advertisement. Because this error was not harmless beyond a reasonable doubt, we reverse and remand this cause for further proceedings.

¶ 14 A. Forfeiture

¶ 15 We must first determine whether respondent preserved this issue for appellate review. The State maintains that respondent forfeited this argument when he failed to object during the trial court's oral pronouncement. Respondent claims that the trial court's reliance on hearsay evidence constituted plain error.

¶ 16 Generally, to preserve an issue for appeal, a criminal defendant must object at trial and raise the issue in a posttrial motion. People v. Herron, 215 Ill.2d 167, 175 (2005). In juvenile proceedings, the respondent must object at trial, but need not include the issue in a post-adjudication motion. In re M.W., 232 Ill.2d 408, 430 (2009). In this case, respondent timely and repeatedly objected during Bravi's and Detective Castaneda's testimony to the admission of hearsay. These objections were sufficient to preserve this issue for review.

¶ 17 The State acknowledges these objections, but argues that respondent "did not object when the trial court allegedly relied on the purported hearsay for the truth of the matter asserted to establish respondent's identity as the offender." The State cites no authority for the proposition that a respondent must object during a court's oral pronouncement to preserve an evidentiary issue, and no such authority appears to exist. See People v. Ford, 301 Ill.App.3d 56, 59 (1998) (reviewing courts need not address arguments that lack citation to relevant authority); see also Ill. S.Ct. R. 341(h)(7) (eff. July 1, 2008) (argument must be supported by citation to authority). Accordingly, we reject the State's forfeiture argument.

¶ 18 B. Standard of Review

¶ 19 We must next determine the appropriate standard of review. Relying on People v. Chapman, 194 Ill.2d 186, 217 (2000), respondent contends that, because "this issue concerns the judge's compliance with the law, and not determinations of credibility, this Court's review is de novo." Chapman addressed a fourth amendment issue wholly unrelated to the instant evidentiary question. Chapman, 194 Ill.2d at 217. The portion cited by respondent merely sets forth the general proposition that purely legal issues are reviewed de novo. Id. Because it does not concern the admission of, and reliance on, hearsay, we find Chapman unavailing.

¶ 20 The State argues that this issue should be reviewed for abuse of discretion. We agree. Evidentiary rulings are within the sound discretion of the trial court and will not be reversed absent an abuse of discretion. People v. Caffey, 205 Ill.2d 52, 89 (2001). Specifically, Illinois courts apply an abuse-of-discretion standard when reviewing a trial court's decision regarding the admission of hearsay. See, e.g., Caffey, 205 Ill.2d at 89; People v. West, 158 Ill.2d 155, 164-65 (1994). An abuse of discretion will be found only where the trial court's ruling is arbitrary, ...


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