from the Circuit Court of Kane County. No. 14-CF-29 Honorable
James C. Hallock, Judge, Presiding.
SCHOSTOK JUSTICE delivered the judgment of the court, with
opinion. Justices Zenoff and Birkett concurred in the
judgment and opinion.
1 Defendant, Michael T. Cole, was found guilty of one count
of child abduction by a noncustodial parent (720 ILCS
5/10-5(b)(3) (West 2014)). He argues that the State failed to
present sufficient evidence that he took the child without
the mother's consent. We agree, and thus we reverse his
2 I. BACKGROUND
3 Defendant was indicted on the count of child abduction of
which he was ultimately convicted. The indictment charged
that defendant, whose paternity of D.C. was legally
established, but who lacked legally established custodial
rights, intentionally removed D.C. without the consent of
Evonne Bishop, D.C.'s mother.
4 Defendant had a bench trial. During its opening statement,
the State said that the evidence would show that defendant
did not have Bishop's permission to take D.C. anywhere.
Further, "immediately" after defendant left with
D.C., Bishop tried to call defendant on his cell phone,
"but the phone was going straight to voicemail so she
couldn't reach defendant on the phone, [so she] tried
making a few calls to family members." When
"nothing *** pann[ed] out, " she called the police.
5 Bishop was the State's first and principal witness. Her
testimony was not what the State told the court to expect.
Critically, she said that she had given defendant permission
to take D.C. to breakfast the morning of the incident.
Further, she denied making any attempt to contact defendant
after he left with D.C.
6 Bishop testified that she and defendant had been in an
on-and-off dating relationship for about 20 years. D.C. was
born on July 6, 2012; defendant had signed an Illinois
voluntary acknowledgment of paternity and was listed as
D.C.'s father on the certificate of live birth. Bishop
also had three children with her former husband. Defendant
had lived on-and-off with Bishop for four years; when she
"had problems with him, " she would ask him to
leave. Other than the acknowledgment of paternity, all of the
agreements that she and defendant had about D.C. were
7 In January 2014, Bishop had asked defendant to leave the
house and to get counseling, but he was visiting daily. On
January 7, defendant came over in the evening to visit D.C.
Bishop would not permit him to stay the night, but she agreed
that he could come over in the morning to take D.C. to
breakfast. To her surprise, defendant arrived at her front
door at about 3:30 a.m. The State asked, "Had you called
and invited him to come over at that hour of the
morning?" She responded, "He was supposed to come
over that morning, but I didn't anticipate it to be 3:30
in the morning." She opened the door to him; he came in,
walked to D.C.'s bedroom, and took D.C. from his bed.
D.C., then about a year and a half old, shared a bedroom with
his older half-sister. He was asleep in a twin bed, wearing
one-piece pajamas with feet. Defendant picked him up while he
slept and carried him out of the house. The only thing that
defendant said while he was in the house was that "it
didn't have to be this way." Defendant carried D.C.
to his truck, which was parked in front of Bishop's
house. Bishop thought that defendant had not put D.C. in a
car seat. The State asked, "Did the defendant have your
permission to be taking [D.C.] anywhere?" Bishop
responded, "Not at that point in time." Defendant
did not say anything about where he was taking D.C. or when
he would return him. Bishop testified that she had not said
anything to defendant; she explained that things had happened
too fast, but she did not testify to having felt any fear.
8 When defendant left, Bishop did not try to contact
defendant but did call the South Elgin police. A few hours
later, defendant called. Bishop told him to bring D.C. home,
which he did. However, defendant had also called once while
Bishop was speaking with the police, a call that she did not
answer. (Bishop later explained that the phone was in another
room.) The call in which Bishop asked defendant to bring D.C.
home came about 10 minutes after the police had left.
Defendant's two calls were about 20 minutes apart and
came after defendant had been gone with D.C. for "a few
hours." The State asked Bishop how she felt after the
second call: "Did you even know if they were gonna come
back?" Bishop said that she was reassured: "I
trusted that he was gonna bring him home after he
called." The State concluded its direct examination
shortly after Bishop answered.
9 Near the start of cross-examination of Bishop, defense
counsel questioned her about the agreement she had with
defendant that he and D.C. could go to breakfast:
"Q. [Defense counsel:] As [defendant] was visiting,
arrangements were made at that time that he would *** come
and get [D.C.] the next day to take him to breakfast or to
take him out; correct?
A. [Bishop:] Correct.
Q. And there was some other conversation and he left;
Q. And he wanted to stay the night. He wanted to spend the
night there with you and [D.C.] and take [D.C.] in the
A. He did, yes.
Q. So the only surprise in relation to your surprise when he
came there was there was an agreement that he have [D.C.] the
next day; correct?
Q. And it was going to be for breakfast; correct?
Q. It was just that he came there at approximately sometime
after 3:00 in the morning; correct?
10 Defense counsel also confirmed that Bishop had not
objected to defendant's removal of D.C.:
"Q. [Defense counsel:] He removed [D.C.], and you
didn't say ...