dissenting:
The majority has found that (a) the evidence was sufficient to convict defendant of theft beyond a reasonable doubt, (b) the trial court did not abuse its discretion in denying defense counsel’s motion to withdraw, (c) defendant knowingly waived her right to a jury trial, and (d) defendant is entitled to a $10 credit on her $200 fine and for two days’ presentence incarceration. Because I disagree with the majority’s first finding and would thus reverse defendant’s conviction outright, I dissent.
The majority concludes that the trier of fact could reasonably infer that defendant had knowledge of the criminal purpose and acted affirmatively to support that purpose by conversing with Smith during the crime and pointing to bundles of shingles. 375 Ill. App. 3d at 1105. “A reasonable inference within the purview of the law must have a chain of factual evidentiary antecedents.” People v. Davis, 278 Ill. App. 3d 532, 540, 663 N.E.2d 39, 44 (1996). See also United States v. Jones, 371 E3d 363, 366 (7th Cir. 2004) (“although a jury may infer facts from other facts derived by inference, ‘each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation.’ ” United States v. Peters, 277 F.3d 963, 967 (7th Cir. 2002), quoting Piaskowski v. Bett, 256 F.3d 687, 693 (7th Cir. 2001)). Accord United States v. Cruz, 285 F.3d 692, 699 (8th Cir. 2002); United States v. Rahseparian, 231 F.3d 1257, 1262 (10th Cir. 2000); United States v. D’Amato, 39 F.3d 1249, 1256 (2d Cir. 1994).
“Although a jury may infer facts from other facts that are established by inference, each link in the chain of inferences must be sufficiently strong to avoid a lapse into speculation.” Bett, 256 F.3d at 693, citing United States v. An Article of Device, 731 F.2d 1253, 1262 (7th Cir. 1984), and Yelk v. Seefeldt, 35 Wis. 2d 271, 281, 151 N.W.2d 4, 9 (1967). In this case, the inferences the majority believes are reasonable are not supported by a chain of factual evidentiary antecedents. The majority, in fact, cites no facts in support of the inferences upon which defendant’s conviction is based. By example, while the evidence may establish that defendant conversed with Smith during the commission of the offense, nothing of record supports an inference that in doing so defendant was supporting Smith’s criminal purpose. It is just as reasonable to infer that defendant was attempting to dissuade Smith. I recognize that the trier of fact is not required to “ ‘search out all possible explanations consistent with innocence’ ” (375 Ill. App. 3d at 1103, quoting People v. Campbell, 146 Ill. App. 3d 363, 380, 586 N.E.2d 1261, 1268 (1992)), and that there is also no evidence to support an inference that defendant was attempting to stop Smith. However, while I acknowledge that my inference lacks specific evidentiary support, the majority does not, and to sustain a criminal conviction, the inference must be supported by fact. This is true because “[i]f an alleged inference does not have a chain of factual evidentiary antecedents, then within the purview of the law it is not a reasonable inference but is instead mere speculation.” Davis, 278 Ill. App. 3d at 540, 663 N.E.2d at 44.
Nor do I believe that defendant’s merely accompanying Smith to the scene establishes, factually, that she assented to a common criminal design; and, therefore, it is not a fact in support of the proffered inference that she “affirmatively acted to support that purpose by conversing with Smith *** and pointing to bundles of shingles.” 375 Ill. App. 3d at 1105. It is nothing more than an unsupported conclusion.
In People v. Marx, 291 Ill. 40, 125 N.E. 719 (1919), the State charged the defendant with rape. The codefendants offered the victim a ride home from a cabaret where she worked to her residence in a hotel. The victim testified that “after they had gone a short distance in the automobile she was attacked, and [the passengers] all had sexual intercourse with her forcibly and against her will, on the back seat of the car.” Marx, 291 Ill. at 42, 125 N.E. at 720. The victim also testified that they rode around the streets of the city for an hour and a half or two hours. The supreme court held that the presence of a defendant at the commission of the crime without disapproving or opposing it, is evidence which, together with all other circumstances, may present a jury issue as to his responsibility. Marx, 291 Ill. at 48, 125 N.E. at 722.
The Marx court began by noting that “[i]t cannot be contended *** that mere presence at the commission of a criminal act renders a person liable as a participator therein. If he is only a spectator, innocent of any unlawful intent and does no act to countenance or approve the acts of those who are actors, he is not criminally responsible because he happens to be a looker-on and does not use active endeavors to prevent the commission of the unlawful acts.” (Emphasis added.) Marx, 291 Ill. at 48, 125 N.E. at 722. The court found that the evidence established clearly that Marx, who was driving the automobile, did not in any way take part actively in the holding of the victim at the time when she charges the acts were being forcibly committed.
The evidence in Marx established more than the defendant’s mere presence when the crime was committed. The facts also established that he drove the car several miles out of the way in Chicago while going from the cabaret to the hotel. The court used that fact to infer that “he was actually encouraging and approving what was being done in the car.” Marx, 291 Ill. at 49, 125 N.E. at 722.
In this case, the majority does not cite any “other circumstances” to support its conclusion that defendant assented to the commission of the crime by accompanying Smith to the scene because none exist of record in this case. Here, the only evidentiary facts cited are that defendant was at the scene, “fled” with Smith, and was with him at Lowe’s afterward. There is no evidence of record of whether Smith even told defendant that he was stealing the shingles. The majority may claim that “it is *** established beyond a reasonable doubt that defendant was at the scene without disapproving of the commission of the crime” (375 Ill. App. 3d at 1105), but whether defendant approved of Smith’s actions is not a fact, but an inference.
In Bett, the court found that the accounts of the crime placed the defendant at the scene when the confrontation began, but said “nothing about what [he] *** agreed with the others to do.” Bett, 256 F.3d at 692. The court regarded the statement that another defendant hit the victim “like everybody else,” and the State’s consequent inference that the “everybody else” included the defendant, to be “ambiguous to say the least.” Bett, 256 F.3d at 692. The court found that the statement did “not constitute proof beyond a reasonable doubt that [the defendant] played a role in the incident, either as a direct participant or as a conspirator.” Bett, 256 F.3d at 693.
As in Bett, the fact that defendant accompanied Smith and was still with him when the stolen shingles were returned to Lowe’s does not by itself prove that she agreed to participate or was participating in a criminal enterprise (or indeed that she even knew there was a criminal enterprise), or support beyond a reasonable doubt the inference that she did so agree. That evidence merely proves that she was with Smith. Any actions defendant took while with Smith must have been done with an unlawful intent if those actions are to form the basis of a criminal conviction. Marx, 291 Ill. at 48, 125 N.E. at 722; People v. Taylor, 186 Ill. 2d 439, 448, 712 N.E.2d 326, 330 (1999) (guilt by accountability requires “specific intent to promote or facilitate an offense”).
Dorothy’s testimony that defendant pointed at shingles on the ground “could not have shed any light on the intended meaning of [defendant’s actions].” Cf. Bett, 256 F.3d at 693. The trial court’s and the majority’s inference is no more than speculation consistent with guilt. However, as the court stated in Davis, “[a] person’s liberty is an endowment that is too valuable to be lost on speculation of wrongdoing. Our system of government demands more: proof!” Davis, 278 Ill. App. 3d at 541, 663 N.E.2d at 45.
The majority also finds that the trier of fact could infer “from the facts” that defendant displayed a guilty conscience by getting back into the car when she saw the witness. 375 Ill. App. 3d at 1105. It fails, however, to cite what facts that inference might be based upon. I believe that a trier of fact could only infer that defendant displayed a consciousness of guilt by getting back into the car when she saw Dorothy if it first presumed that defendant’s presence was in support of a common criminal design. I further believe that anytime a trier of fact infers that a defendant’s conduct evinces a consciousness of guilt, it must do so on the premise that the defendant is guilty of something. Drawing such an inference in the context of a criminal trial represents an error of circular reasoning, whereby the proponent “defends the claim by using the conclusion as one of the premises to support the conclusion.” http://leo.stcloudstate.edU/acadwrite/logic.html#IRRELEVANT%20 CONNECTIONS (visited February 3, 2007). Here, the claim is that defendant was guilty of an offense. The court used that conclusion, that defendant was guilty of something and hence “jumped in the car” when she saw Dorothy, as one of the premises to support that which it was ultimately trying to conclude: that defendant was guilty.
Because such reasoning is logically flawed, I would hold that it is erroneous for the State to argue a defendant’s guilt based on the “consciousness of guilt” fallacy. Although decisions of our supreme court have examined certain evidence and held that such evidence was relevant and admissible to show a consciousness of guilt, we find no binding precedent that forbids our holding that an amorphous, so-called “consciousness of guilt” is itself irrelevant and inadmissible to prove guilt.
To hold otherwise leaves open the door to the use of evidence which presumes guilt to prove guilt; evidence that also impermissibly shifts the burden to the defendant to prove her innocence. In this case, for example, defendant would have to convince the jury that she was not aiding Smith’s theft of the shingles, i.e., that she was not guilty of an offense, to prove that she reentered the vehicle for a reason other than a “consciousness of guilt.” Such presumptions stand in contravention of the presumption of innocence that remains with a criminal defendant until she is proved guilty with competent evidence beyond a reasonable doubt. See People v. Pasch, 152 Ill. 2d 133, 174, 604 N.E.2d 294, 310 (1992) (“the defendant is presumed innocent, *** this presumption remains until the jury is convinced beyond a reasonable doubt that defendant is guilty, *** the State has the burden of proving the defendant’s guilt beyond a reasonable doubt, and *** this burden remains on the State throughout the case”).
When assessing whether, taking the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the offense proved beyond a reasonable doubt, the reviewing court should, first, determine the ultimate conclusions of fact upon which a finding of guilt must be based. These conclusions, of course, must comport with the elements of the offense. Next, if the conviction is not based on direct evidence, the court must identify the inferential steps the trier of fact must have found to reach its ultimate conclusion. Finally, and most importantly, the reviewing court must identify facts of record, and not suppositions, upon which each inference may reasonably be based.
While I recognize that triers of fact are not, and should not be, required to undertake such mechanical analyses, instead being free to draw reasonable inferences from common experience (see, e.g., People v. Lambrecht, 231 Ill. App. 3d 426, 439, 595 N.E.2d 1358, 1367 (1992) (“the jury, utilizing its common experience and knowledge, could draw its own inferences and conclusions”)), I feel that courts of review must do so to give real meaning to “proof beyond a reasonable doubt.” It is often stated that, in reviewing a conviction, the evidence must be viewed in a light most favorable to the prosecution. This standard is not meant to favor the State, but to “give[ ] full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts.” Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). Thus, it merely serves to preserve
“the factfinder’s role as weigher of the evidence *** through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution. The criterion thus impinges upon ‘jury’ discretion only to the extent necessary to guarantee the fundamental protection of due process of law.” (Emphasis omitted.) Jackson, 443 U.S. at 319, 61 L. Ed. 2d at 573, 99 S. Ct. at 2789.
However, not only must we protect the integrity of the role of the fact finder, our primary duty is to assure the integrity of the verdict itself. The only way to do so meaningfully is to fully comprehend the jury’s verdict.
In the case at bar, to prove defendant guilty of theft by accountability, the trier of fact had to conclude that defendant intended to aid Smith in taking the shingles with the intent to permanently deprive the owner of their use. The trial court inferred that defendant accomplished this by pointing out the shingles to Smith and accompanying him in an apparent effort to exchange them for cash. The majority fails to cite any “other circumstances” to support an inference that she agreed to the criminal enterprise as required by Marx. My review of the case reveals no facts that lead to a reasonable inference that defendant knew that Smith was stealing the shingles, that she agreed to help him, or that, by pointing to what was plainly on the ground before him, that she did in fact “aid” in the commission of the offense. See People v. Taylor, 186 Ill. 2d 439, 448, 712 N.E.2d 326, 330 (1999) (“guilt under accountability is not supported where one *** neither intends to facilitate nor aids or attempts to aid the offender in the commission of any element of the offense”).
It may well be that Janet Turner was an active, knowing participant in the crime charged and that she is guilty on a theory of accountability. Certainly the trial court and the majority feel that she was. Our system does not, however, deprive people of their liberty on the basis of feeling, speculation, or conjecture — at least it purports not to do so. Rather, we convict people only when there is factual evidence — which either demonstrates defendant’s involvement or supports reasonable inferences of culpable involvement — sufficient to prove defendant guilty beyond any reasonable doubt.
Because I find the evidence of defendant’s guilt of theft so unsatisfactory as to create a reasonable doubt of her guilt, I would reverse defendant’s conviction. Accordingly, I dissent.