People v. Rodriguez

2022 IL App (2d) 210254-U
No. 2-21-0254
Order filed August 26, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(l).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 19-CF-993
)
CESAR NATALI RODRIGUEZ, ) Honorable
) Alice C. Tracy,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

PRESIDING JUSTICE BRIDGES delivered the judgment of the court.
Justices Hudson and Birkett concurred in the judgment.

ORDER

¶1 Held: Defendant’s trial counsel was not ineffective, and the State provided sufficient
evidence that defendant was armed with a dangerous weapon. Therefore, we affirm.

¶2 Following a jury trial, defendant, Cesar Natali Rodriguez, was convicted of armed robbery

(720 ILCS 5/18-2(a)(2) (West 2016)), aggravated kidnapping (720 ILCS 5/10-2(a)(5) (West

2016)), and armed violence (720 ILCS 5/33A-2(a) (West 2016)). He was sentenced to concurrent

terms of 16 years’ imprisonment. On appeal, he argues that his trial counsel was ineffective for

failing to adequately challenge DNA evidence, and that there was insufficient evidence that he was

armed with a “dangerous weapon,” specifically a knife longer than three inches. We affirm.
2022 IL App (2d) 210254-U

¶3 I. BACKGROUND

¶4 On August 28, 2019, defendant was charged in a 10-count indictment for crimes that

occurred on November 1, 2016, at Spring Hill Mall. Counts I and II alleged armed robbery (720

ILCS 5/18-2(a)(2) (West 2016)) for knowingly taking property from Mark Earsley by the use of

force while armed with a dangerous weapon, a knife. In particular, count I alleged that defendant

took Earsley’s wallet and security belt, and count II alleged that he took cellular telephones from

Earsley’s “presence.” Count III alleged aggravated kidnapping (720 ILCS 5/10-2(a)(5) (West

2016)) for secretly confining Earsley against his will by handcuffing him to a drainage pipe in an

area not accessible to the public, while armed with a knife. Count IV alleged armed violence (720

ILCS 5/33A-2(a) (West 2016)) for entering Spring Hill Mall with the intent to commit a theft while

armed with a knife. Count V alleged theft (750 ILCS 5/16-1(a)(1) (West 2016)) for knowingly

obtaining unauthorized control over property belonging to Cricket Wireless, T-Mobile, A1

Accessories, and Nestle Tollhouse with a value of at least $10,000 but under $100,000. Count VI

alleged theft of cell phones from Cricket Wireless having a value of over $500 but less than

$10,000, and the same was alleged as to T-Mobile in count VII. Count VIII alleged aggravated

unlawful restraint (720 ILCS 5/10-3.1(a) (West 2016)) for knowingly detaining Earsley while

using a knife. Count IX alleged theft for knowingly obtaining unauthorized control of currency

less than $500 belonging to A1 Accessories, and count X alleged the same as to Nestle Tollhouse.

¶5 Testimony in defendant’s jury trial began on May 21, 2021. Earsley provided the

following testimony. On November 1, 2016, he was working the night shift as a security guard at

Spring Hill Mall. At about 12:30 a.m., he was walking through an area of the mall called Corridor

B, which led to the back entrances of some stores. One of the stores was an H&M store that was

under construction. When Earsley reached an alcove in the corridor, he was attacked by two men

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who pushed him to the ground. They turned him to his stomach, and his glasses were knocked off

in the process. One man was on top of him, holding him down, and the other person put a knife

near Earsley’s throat and told him not to resist. Earsley saw the knife for “give or take, one or two

seconds.” He thought it was serrated but was not 100% sure because of the stress of the situation

and the fact that his glasses had been knocked off. He could not say how long the knife blade was.

¶6 Earsley could not clearly see the men’s faces because it was dark in that area, but he heard

them speak with Hispanic accents. The men bound Earsley’s hands with zip ties and put glasses

covered with duct tape over his eyes. They removed his boots and took his security equipment and

personal belongings. One of the men left for a time, and the other one stayed with him. The first

man then came back, and both men took him to the H&M store under construction. They cut off

the zip ties and handcuffed him to an iron pipe. At this point, it was about 1 a.m. The men left

again, and Earsley was able to remove the duct tape-covered glasses. Earsley remained there until

he eventually heard one of the maintenance employees pushing his cart to the common area, and

called out to him. As a result of the incident, Earsley had some minor bruises and may have had a

light scratch. The police returned his personal belongings to him.

¶7 Steven Pozehl testified that on November 1, 2016, he was a building engineer for the mall

and arrived at the mall at a little before 3 a.m. to do some tile work for a store under construction.

He was pushing a utility cart in the common area when he heard someone calling his name. He

located Earsley in the H&M store handcuffed to a roof drain, and he called 911.

¶8 The State presented evidence that cash and cell phones were stolen from the Cricket

Wireless store totaling $1,300. Surveillance footage from the store showed someone entering the

inventory room at 1:12 a.m. Surveillance video from a T-Mobile kiosk showed someone at the

kiosk at 1:06 a.m. Cell phones worth a total of $9,786.32 were taken from the kiosk.

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¶9 Crime scene investigator Beth Eichinger testified to the following. In the alcove area in

Corridor B, she recovered boots with a wallet, cell phone, and security wand inside, belonging to

Earsley. A little bit beyond the alcove she found two black zip ties in the corridor. In another part

of the corridor, she found several strips of grey duct tape and another black zip tie. Inside the H&M

store, she found hemostat scissors, and as she walked further in, she found a pair of handcuffs. She

also found a roll and strips of gray duct tape, black zip ties, and a pair of black sunglasses that had

silver duct tape over the lenses and the sides of the sunglasses. Six to ten feet away from the

sunglasses was a trash can that contained a black-handled serrated knife. There were no other

construction tools in the areas where she recovered the items. Eichinger measured the knife’s blade

to be eight inches in length.

¶ 10 Over one year later, the police received a tip from a confidential informant that defendant

and Stephanie Smith were involved in the crime. The police obtained a search warrant for their

phone records and learned that there were four phone calls between the two on November 1, 2016.

Detective Michael Slager went to Smith’s house in Florida with other officers in May 2019 for an

unannounced visit. He read Smith her Miranda rights, and Smith first denied knowledge of the

incident, but after Slager said that he would stop by her workplace the next day, she agreed to talk

to the police. Smith also agreed to give a buccal swab for DNA testing.

¶ 11 At trial, Smith testified to the following. In 2016, she lived about 10 minutes from Spring

Hill Mall. That year, she met defendant through her sister, and they had each other’s phone

numbers. She described her relationship with defendant as “party friends” or “acquaintances” and

not romantic. The night of October 31, 2016, Smith was babysitting for a friend who returned at

about 11:30 or 11:45 pm. Smith was leaving around midnight on November 1, 2016, when

defendant called and asked her to pick him up at his new job doing inventory at Spring Hill Mall.

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Smith drove there and parked in the Kohl’s parking lot. She waited for about 30 minutes and called

defendant three or four times while she was waiting. He said that he was finishing up and would

be right out. Smith saw defendant when he was right by the car, wearing dark jeans, a dark green

jacket, and a beanie skull cap. Defendant was not carrying anything. He was “very amped up,

excited,” but that was “pretty much how he always kind of was.” Smith brought defendant to a

party at the apartment Smith shared with her sister. She did not talk to defendant very much there,

but he said that he had “iPhones and that he was trying to get a hold [sic] of his buddy.” Smith did

not know what defendant was talking about. A day or two later, Smith read an article about the

break in at the mall at a time that seemed to correspond to when she picked up defendant. Smith

called defendant to ask if he was involved, and defendant said, “Oh shit, it was me and my buddy.”

¶ 12 Smith did not see or talk to defendant again. She did not go to the police because she did

not think that she had enough evidence, as defendant had not been carrying anything. Smith was

also afraid of “backlash” and feared putting herself in danger. Smith admitted that she initially told

the police that she was working at a restaurant called “Rookies” when defendant called but later

remembered that she was unemployed at the time. Smith had been training to work at Rookies in

November 2019 and later began working there. Smith also told the officers that she may have had

a few drinks that night and was a little bit “buzzed,” but she testified at trial that she had not been

drinking that night.

¶ 13 Dexter McElhiney, a forensic scientist, was accepted as an expert in forensic biology and

DNA analysis. We summarize his testimony. When analyzing DNA, he would look at 23 locations

and a sex-determining location. He could not always obtain 23 locations from a DNA sample

because it could be degraded, old, or have a very low amount of DNA. He could still perform a

DNA analysis and comparison if he had less than 23 locations. From the sunglasses recovered at

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the crime scene, McElhiney obtained a major male profile and a minor male profile, with the minor

profile identified at nine locations. Earsley was excluded as a contributor from both of the profiles

based on his buccal swab. McElhiney ran both major and minor DNA profiles through the State

database, which revealed an association of the major profile with defendant. McElhiney received

a buccal swab from defendant after his arrest, and it revealed that defendant could “be included as

a contributor” to the major male profile on the sunglasses. Defendant could similarly be included

as a contributor to two of the recovered zip ties, which had major male profiles identified at eight

locations. Using “random-match probability,” which was a procedure generally accepted in the

scientific community, the profile on one of the zip ties could be expected in 1 out of 49,000

individuals for People’s exhibit 97 (partial zip tie from the area where Earsley was located) and

one out of 1.7 million individuals for People’s exhibit 93 (zip tie from Corridor B). The profile

from the sunglasses could be expected in 1 in 41 septillion individuals, which number had 24 zeros

in it.

¶ 14 On cross-examination, McElhiney testified that he could not tell the exact time or date

when DNA information was left on a particular item. DNA could also be left by “secondary

transfer,” where a person touched another person who touched an item, or by “contamination,”

where the item came into contact with something that had DNA on it. The lab received the

sunglasses in November 2016 but McElhiney did not test them until March 2017. The lab did not

receive the zip ties in question until April 2019, and he testified that he tested them the same month.

Earsley could be excluded as a contributor to the DNA found on the sunglasses. McElhiney did

not use the term “match” for DNA profiles because his agency had changed its terminology and

had moved to using statistics instead.

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¶ 15 Sergeant Steve Bruening was accepted as an expert in historical cell phone site analysis

and testified to the following. He had received specialized training in cell phone call-detail record

analysis. According to analysis of records of the phone associated with defendant, on October 31,

2016, it was used in northern Kane County beginning at 10:26 p.m. At 11:26 p.m. the phone began

using the cell phone tower at the northwest corner of Spring Hill Mall, which was the closes AT&T

tower to the mall, and it connected there again at 11:42 p.m. It next connected with that cell tower

at 12:26 a.m. on November 1, 2016, and again at 12:42 a.m., 1:06 a.m., 1:19 a.m., and 1:26 a.m.

At 1:36 a.m., the phone connected to a different cell phone tower, located next to Huntley Road.

When a phone connected with different cell phone tower locations, it was generally indicative of

movement. Cell phones connected to the towers with the strongest signal, which was generally the

cell tower closes to the phone’s location. It was used to determine the approximate location of the

phone rather than pinpointing the location of the caller. Further, what tower the phone connected

to was affected by factors such as the power of the cell tower, the power of the phone, weather,

and obstacles such as building and trees. Also, if the closest tower was busy, the phone would use

the next strongest tower.

¶ 16 There were four phone calls made between defendant’s and Smith’s phone numbers. The

first was from defendant to Smith at 12:38 a.m. on November 1, 2016, and lasted 44 seconds. The

second was at 12:40 a.m. from Smith to defendant and lasted 27 seconds. The third call was from

defendant to Smith at 12:43 a.m. and lasted eight seconds. The last call was from Smith to

defendant at 12:56 a.m., and it lasted for 1 minute and 25 seconds.

¶ 17 Evidence was presented that defendant’s house was 1.9 miles from Spring Hill Mall,

aerially. Bruening testified that there were cell phone towers closer to defendant’s house that the

one near Spring Hill Mall.

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¶ 18 During the trial, the State nolle prossed counts IX and X.

¶ 19 In closing argument, on the subject of the DNA evidence, defense counsel argued that there

were almost 100 exhibits and numerous physical items, many of which were taken from Earsley

and touched by the perpetrators, but there was no evidence of DNA found on them. Defense

counsel argued that the State could claim that the perpetrators were wearing gloves, but that would

not sufficiently explain the DNA found on the sunglasses. He continued:

So this sunglasses was [sic] on Mark Earsley, no dispute. And he took it off, throw

[sic] it on the ground where he was found. And the DNA experts collected DNA from the

sunglasses. Two mixture[s], but not Mark Earsley’s DNA was found. So science says that

DNA is here, then it must be the person touch[ed] this, but we know these sunglasses was

on Mark Earsley and why is he excluded. Where is his DNA? So is [it that] the DNA expert

didn’t do a good job or sometimes DNA doesn’t get transferred and does something else.

And those two zip ties they said they found [defendant’s DNA]. That was tested

[in] 2019 and that was before that in 2018 the DNA there was some data search which

surfaced my client’s name. And those two zip tie[s] was [sic] tested and they are saying

that my client cannot be excluded. And you heard about contamination and transfer DNA,

so consider those [sic] information. This is all after my client was being the focus of the

investigation and also whose all three items were not found on his person.

This is not [a] pristine environment. It was all found on the ground. No latent

fingerprints. You heard the expert. So I expect [that the] State is going to say they were

wearing gloves. That’s why, even though there is [sic] numerous physical items, there is

no latent prints. Either they are all wearing gloves and no latent prints and there should be

no DNA.”

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¶ 20 The jury subsequently found defendant guilty of all remaining counts. The trial court

sentenced defendant to 16 years’ imprisonment on counts I, II, III, and IV, to run concurrently,

and found that the remaining counts merged.

¶ 21 This timely appeal followed.

¶ 22 II. ANALYSIS

¶ 23 A. Ineffective Assistance of Counsel

¶ 24 Defendant first argues that his trial counsel was ineffective because he failed to challenge

McElhiney’s conclusions that defendant was a contributor to the major male DNA profile found

on the sunglasses, and a contributor to the two major male profiles found on the zip-ties based on

an eight-loci match.

¶ 25 For a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged

test set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Hodges, 234 Ill. 2d 1, 17

(2009). The defendant must first establish that, despite the strong presumption that trial counsel

acted competently and that the challenged action was the product of sound trial strategy, counsel's

representation fell below an objective standard of reasonableness under prevailing professional

norms such that he or she was not functioning as the counsel guaranteed by the sixth amendment.

People v. Manning, 227 Ill. 2d 403, 416 (2008). Second, the defendant must establish prejudice.

People v. Valdez, 2016 IL 119860, ¶ 14. In most situations, this is done by showing a reasonable

probability that the proceeding would have resulted differently absent counsel’s errors. Id. A

failure to establish either prong of the Strickland test precludes a finding of ineffectiveness. People

v. Peterson, 2017 IL 120331, ¶ 79.

¶ 26 Defendant argues that McElhiney did not provide the basis for his conclusion regarding

the profile from the sunglasses, and testified that he analyzed only eight loci with respect to the

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profiles from the zip-ties. Defendant cites People v. Safford, 392 Ill. App. 3d 212, 221, 228 (2009),

for the proposition that the proponent of an expert’s testimony must lay an adequate foundation

showing that the information upon which the expert is basing his opinion is reliable, and that an

opinion without any explanation or factual basis is inadmissible. Defendant argues that

McElhiney’s conclusion regarding the DNA profile from the sunglasses lacked a factual basis

because he did not explain his conclusion regarding the profile. Defendant argues that McElhiney’s

conclusions about the profiles from the zip-ties were based on only eight out of 23 loci, and were

therefore incomplete matches. Defendant contends that trial counsel’s failure to challenge these

significant flaws was objectively unreasonable.

¶ 27 Defendant additionally argues that even if McElhiney had analyzed a high number of loci

on the profile from the sunglasses, it does not mean that his conclusions were infallible. Citing

People v. Watson, 2012 IL App (2d) 091328, defendant argues that Illinois courts have found that

anything less than a complete loci match is susceptible to a defense argument that the results are

too uncertain to establish a DNA link. In Watson, the expert testified that he could obtain

information from only 7 of 13 loci, and that he was not able to exclude the defendant as a

contributor. Id. ¶ 9. On appeal, the defendant argued that his counsel was ineffective for failing to

present any evidence reflecting that a finding based on a profile of less than 13 loci was unreliable.

Id. ¶ 20. We agreed, stating that counsel did not argue or present any evidence challenging the

reliability of a partial-profile comparison. Id. ¶ 25. Defendant also cites People v. Wright, 2012 IL

App (1st) 073106, ¶ 82, where the court stated that a study of an Illinois database yielded 903 pairs

at 9 loci, but looking at additional loci showed that they were not matches.

¶ 28 Defendant argues that counsel failed to question McElhiney about the number of loci he

analyzed for the profile from the sunglasses and the significance of an incomplete eight-loci match

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from the two profiles from the zip-ties, and in fact failed to ask any questions challenging his

conclusions. Defendant maintains that because McElhiney generally analyzed DNA profiles at up

to 23 locations, counsel had a strong basis to argue that his conclusions were unreliable or that

partial profile matches might not be uncommon. Defendant argues that given the statistical

testimony about the almost nonexistent possibility that the DNA belonged to someone else,

especially for the sunglasses, counsel’s failure to challenge the DNA results was certainly

unreasonable.

¶ 29 Defendant argues that he was prejudiced by the deficient performance because the DNA

evidence conveyed to the jury that it was statistically impossible that someone else committed the

crimes. Defendant argues that because counsel did not challenge the evidence, defendant could not

prevail at trial as there was no reason for the jury to doubt the evidence that had been portrayed by

the State as incontrovertible science.

¶ 30 Defendant further argues that the State’s other evidence was far from overwhelming, as

there was no eyewitness testimony or surveillance video that identified him as one of the offenders.

Defendant argues that although Smith testified that she picked him up at the mall at the time of the

offense, her credibility was questionable for several reasons. Defendant asserts that Smith kept her

knowledge about the offense secret for several years, initially claiming that she did not know

anything when the police came to her home. Defendant argues that it was not until Detective Slager

threatened to come to her work location that she agreed to speak and implicated him. Defendant

contends that Smith therefore had a motive to deflect police suspicion away from herself or curry

favor with the police. Defendant argues that Smith’s testimony was also inconsistent with her prior

statements to police, showing that it was not reliable. Defendant points out that Smith testified at

trial that she was babysitting before picking him up but initially told the police that she was

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working at a restaurant. He also highlights that she testified that she was sober but previously told

Detective Slager that she had a couple of drinks before picking defendant up.

¶ 31 Defendant maintains that the State’s only other evidence linking him to the offense was

the historical cell site analysis showing that his phone was using the cell tower near Spring Hill

Mall at the time of the incident. Defendant argues that, however, it would not be unusual for his

phone to be using the tower because he lived only 1.9 miles away. Defendant also highlights

testimony that the cell site analysis showed only the approximate location of the phone and that a

cell phone could use a cell tower other than the nearest one for a variety of reasons. Defendant

argues that the analysis therefore indicated nothing more than that he was in the area, perhaps at

his home, at the time of the incident.

¶ 32 We conclude that defense counsel did not provide ineffective assistance. First, his

representation did not fall below an objective standard of reasonableness on the issue of the DNA

testing. Though defendant refers to “incomplete matches” in the DNA, McElhiney testified that

his agency did not use the term “match” anymore but instead used statistics to describe the

probability that someone was a contributor. In People v. Richmond, 2017 IL App (1st) 150642, ¶

13, the court described the “product rule,” which is used “to compute the likelihood that any person

other than the defendant would have the same alleles as those found at the crime scene.” The court

stated that the product rule has been accepted as a statistical method for estimating the frequency

of a DNA match. Id. ¶ 19. The court further criticized Wright, stating that the matches within the

Illinois database fell within the statistical probabilities described and supported the use of the

product rule. It stated that competent counsel could decide that evidence of the nine loci matches

in Illinois’s DNA database would not help his client, and that “introducing evidence of those

matches might require the introduction of complex statistical calculations that could confuse

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jurors.” Id. 24; see People v. Jackson, 2018 IL App (5th) 150274, ¶ 122 (stating same conclusion);

see also People v. Crawford, 2013 IL App (1st) 100310, ¶ 133 (argument about search of Illinois

database that revealed nearly 2,000 profiles that matched at 9 loci has been discredited).

¶ 33 Accordingly, delving too deeply into the statistical significance of the number of loci

analyzed could have confused the jurors and may have even bolstered the State’s case. Defense

counsel instead sought to undermine the DNA evidence in other ways, eliciting testimony that

DNA could be left by secondary transfer or contamination; that the lab tested the sunglasses

months after receiving them; that the zip ties were not received and tested until April 2019; and

that Earsley’s DNA was not found on the sunglasses. Defense counsel tied this information into

his closing argument, questioning why DNA was not found on numerous other items handled by

the perpetrators. He argued that if it was because the perpetrators were wearing gloves, their DNA

should not have been on other items. Defense counsel argued that if they were not wearing gloves,

fingerprint evidence should have been found. He highlighted that although it was undisputed that

Earsley was wearing the sunglasses and touched them when he took them off, Earsley’s DNA was

not found on them, which could lead the jury to question the reliability of all DNA evidence.

Defense counsel noted that defendant was named as a contributor only after he became “the focus

of the investigation,” and he tied that to potential secondary transfer and contamination. Therefore,

unlike Watson, defense counsel challenged the DNA evidence. Cf. Watson, 2012 IL App (2d)

091328, ¶ 32 (“it is clear that counsel’s challenge to [the DNA] evidence was virtually

nonexistent”). It is true that defense counsel could have questioned McElhiney about the number

of loci not matched, possibly casting additional doubt on the DNA evidence, but we cannot say

that his failure to do so equated to incompetent representation given that it would not have changed

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the statistics McElhiney provided and given defense counsel’s other attacks on the DNA evidence.

See Jackson, 2018 IL App (5th) 150274, ¶ 122 (providing similar analysis).

¶ 34 Even if, arguendo, defense counsel’s performance was deficient in failing to question

McElhiney further about the number of loci, defendant has not demonstrated prejudice. That is,

creating additional doubt of the strength of the DNA evidence would not result in a reasonable

probability that the proceeding would have resulted differently, as defendant’s participation in the

crime was corroborated by other evidence, most significantly Smith’s testimony and phone

records. Smith testified that at about midnight on November 1, 2016, defendant called her and

asked her to pick him up from his new job doing inventory at Spring Hill Mall. Phone records

showed a call from defendant to Smith at 12:38 a.m. Smith testified that she drove to the mall. She

waited for about 30 minutes and called defendant three or four times while she was waiting. Call

records show that she called him at 12:40 a.m. and 12:56 a.m., and that he called her at 12:43 a.m.

According to Smith, defendant said that he was finishing up and would be right out. Cell phone

site analysis showed that defendant’s phone began using the cell phone tower at the northwest

corner of Spring Hill Mall at 11:26 p.m. on October 31, 2016, connected there again at 11:42 p.m.,

and continued to connect there on November 1, 2016, at 12:26 a.m., 12:42 a.m., 1:06 a.m., 1:19

a.m., and 1:26 a.m. These connections lend support to defendant’s presence at the mall at the time

of the crimes and to Smith’s testimony.

¶ 35 Smith testified that defendant eventually came out, and they drove to a party at Smith’s

apartment. Smith testified that defendant said that he had “iPhones and that he was trying to get a

hold [sic] of his buddy.” Smith additionally testified that she read an article a day or two afterwards

about the break in at the mall, and she called defendant to ask about it. Defendant said, “Oh shit,

it was me and my buddy.” In this manner, defendant confessed his participation in the incident to

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Smith. Though defendant argues that Smith’s testimony was inconsistent with what she told the

police, the inconsistencies are minor and not regarding the information that tied the crimes to

defendant. Smith also explained her initial statement that she was working at Rookies on the night

in question by testifying that she was training there at the time and subsequently started working

there.

¶ 36 Consider all of the additional evidence beyond the DNA evidence, there is not a reasonable

probability that the proceeding would have resulted differently had defense counsel asked more

questions about the foundation for the DNA evidence. In this manner, this case is readily

distinguishable from Watson, 2012 IL App (2d) 091328, ¶ 32, as the only evidence linking the

defendant to the crime there was DNA evidence.

¶ 37 B. Sufficiency of the Evidence

¶ 38 Defendant next argues that the State failed to prove beyond a reasonable doubt that a

“dangerous weapon,” specifically a knife longer than three inches, was used during the offenses,

such that his conviction of aggravated kidnapping should be reduced to kidnapping and his

conviction of armed violence should be vacated. Defendant maintains that Earsley’s testimony was

the only eyewitness account and was insufficient to establish the required element, as Earsley

testified that he could not determine the length of the knife used by the offenders. Defendant argues

that the State’s only other evidence was the discovery of an eight-inch serrated knife in a garbage

can at the H&M store where Earsley was found. Defendant asserts that there was little evidence

that the recovered knife was the same one observed by Earsley, as Earsley saw it only in the

corridor where he was attacked, and for only one or two seconds. Defendant argued that Earsley

provided only tentative testimony that the knife was serrated, testifying, “It looked to be serrated,

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but I can’t say 100% certain because, again, the stress of the situation and my glasses were knocked

off.”

¶ 39 Defendant argues that, consequently, the State’s only real evidence that the recovered knife

was the same knife observed by Earsley was the fact that it was near the crime scene. Defendant

maintains that this evidence was insufficient to constitute proof beyond a reasonable doubt. Citing

People v. Weaver, 90 Ill. App. 3d 299 (1980), defendant argues that where a State’s case is

circumstantial, proof beyond a reasonable doubt requires the exclusion of every reasonable

hypothesis of innocence consistent with the defendant’s innocence. Defendant argues that although

it is possible that the knife was left at the scene by someone else, especially considering that the

H&M store was under construction and would have had workers with tools coming in and out.

Defendant argues that it also makes little sense that the offenders would discard a weapon so close

to the crime scene.

¶ 40 When examining the sufficiency of the evidence, we must determine 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. Jackson v. Virginia,

443 U.S. 307, 319 (1979); People v. Collins, 106 Ill. 2d 237, 261 (1985). The trier of fact has the

responsibility to assess witnesses’ credibility, weigh their testimony, resolve inconsistencies and

conflicts in the evidence, and draw reasonable inferences from the evidence. People v. Sutherland,

223 Ill. 2d 187, 242 (2006). We will not reverse a criminal conviction based on insufficient

evidence unless the evidence is so unreasonable, improbable, or unsatisfactory that it creates a

reasonable doubt of the defendant's guilt. People v. Murray, 2019 IL 123289, ¶ 19.

¶ 41 As charged, both aggravated kidnapping and armed violence require that the offender

acted while armed with a dangerous weapon. See 720 ILCS 5/10-2(a)(5) (West 2016)); 720 ILCS

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5/33A-2(a) (West 2016). A knife must have a blade of at least three inches to qualify as a dangerous

weapon for these crimes. 720 ILCS 5/33A-1(c)(1), (2) (West 2016).

¶ 42 It is undisputed that the knife was found in the garbage can near where Earsley was

handcuffed to the pipe in the H&M store, and that the knife was serrated and had an eight-inch

blade. The only dispute is whether there was sufficient evidence that it was the knife that Earsley

saw. Although Earsley was not 100% sure that the knife he saw was serrated, he did briefly see

the knife for one or two seconds and thought that it was serrated. Correspondingly, the knife at

issue was found in close proximity to where defendant was handcuffed and where the offenders

had been. It was in a trash can with what appeared to be pieces of drywall, with no other tools or

weapons anywhere nearby. In closing argument, defense counsel cast doubt on whether the knife

was the same, arguing that the police never asked Earsley to identify the recovered knife, no DNA

was found on the knife, and the knife was found in a trash can with miscellaneous items including

construction materials. It was up to the jury to resolve conflicts in the testimony, weigh the

evidence, and draw reasonable inferences from basic facts to ultimate facts, with this standard

applying whether the evidence was direct or circumstantial. People v. Alojani, 2022 IL 127037, ¶

66. Defendant’s citation to Weaver is unpersuasive, as our supreme court has declared that “ ‘[T]he

reasonable hypothesis of innocence standard of review is no longer viable in Illinois.’ ” People v.

Walker, 2020 IL App (4th) 180774, ¶ 79 (quoting People v. Pintos, 133 Ill. 2d 286, 291 (1989)).

Instead, we use the aforementioned reasonable doubt test. Id.; see supra ¶ 40. Viewing the evidence

in the light most favorable to the State, we conclude that a rational jury could have found the

essential elements of the crimes beyond a reasonable doubt, specifically that the knife used was

the one found in the trash can, with a blade longer than three inches.

¶ 43 III. CONCLUSION

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2022 IL App (2d) 210254-U

¶ 44 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.

¶ 45 Affirmed.

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