People v. Cooper

2024 IL App (2d) 220158
No. 2-22-0158
Opinion filed March 27, 2024
______________________________________________________________________________

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. 20-CF-2152
)
KEVIN COOPER, ) Honorable
) Donald Tegeler Jr.,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE BIRKETT delivered the judgment of the court, with opinion.
Justice Hutchinson concurred in the judgment and opinion.
Justice Kennedy dissented, with opinion.

OPINION

¶1 Following a jury trial, defendant, Kevin Cooper, was convicted of two counts of aggravated

battery for causing bodily harm to a victim aged 60 or older and (making) physical contact of an

insulting or provoking nature with a victim aged 60 or older. 1 720 ILCS 5/12-3.05(d)(1) (West

1 These counts were later merged together due to the one-act, one-crime rule because they

were based upon a single physical act. See People v. Artis, 232 Ill. 2d 156, 161 (2009) (the one-

act, one-crime rule applies “ ‘where more than one offense is carved from the same physical act’ ”

and the lesser offense is a lesser included offense of the greater offense (quoting People v. King,
2024 IL App (2d) 220158

2020). He was found not guilty of aggravated robbery of a victim aged 60 or older. Id. § 18-1(a),

(c). The circuit court sentenced defendant to 10 years’ imprisonment. He appeals his conviction,

arguing (1) the State failed to prove the aggravating element that defendant knew the victim was

aged 60 or older; (2) the court violated his due process right to a fair trial or, alternatively, he

received ineffective assistance of counsel when the court refused to allow him to lower his

mandated protective mask during closing argument; and (3) portions of the photograph array

lineup procedure were suggestive and unreliable, entitling defendant to a new trial. We affirm.

¶2 I. BACKGROUND

¶3 Defendant was indicted with one count of aggravated robbery (id.), two counts of

aggravated battery (id. §§ 12-3, 12-3.05(d)(1)), one count of unlawful possession of another’s

credit or debit card (id. § 17-32(b)), and one count of unlawful use of a credit or debit card without

the cardholder’s consent (id. § 17-36). The charges stemmed from an October 6, 2020, encounter

involving defendant and the victim, Robert Manella, outside of Manella’s place of residence, the

Jennings Terrace Assisted Living Facility (Jennings Terrace). Pertinent to this appeal, count II of

the indictment alleged that defendant violated section 12-3.05(d)(1) of the Criminal Code of 2012

(Code) (id. § 12-3.05(d)(1)) in that, while “committing a battery” under section 12-3 (id. § 12-3),

he “knowingly or intentionally caused bodily harm to Robert Manella, a person 60 years of age or

older, in that he struck [Manella] in the face.” Further, count III alleged that defendant violated

section 12-3.05(d)(1) in that, while “committing a battery” under section 12-3, he “knowingly or

intentionally made contact of an insulting or provoking nature with Robert Manella, a person 60

years of age or older, in that he struck [Manella] in the face.” In short, counts II and III of the

66 Ill. 2d 551, 566 (1977))).

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indictment each charged defendant with misdemeanor battery against Manella (id. § 12-3) as

elevated to the Class 3 felony offense of aggravated battery for knowingly and intentionally

causing bodily harm or making contact of an insulting or provoking nature with a person 60 years

of age or older (id. § 12-3.05(d)(1)).

¶4 When the case proceeded to a jury trial on December 13, 2021, the circuit court stated to

prospective jurors the following during voir dire:

“I do require that the jurors wear masks. I require that the attorneys wear masks

unless they are addressing a witness. They can obviously remove their mask so you can

hear them better. The witnesses will not have a mask on, and that is so you can see their

face, judge their credibility as you wish, and you can understand them. I have a mask here

on the bench.

***

[W]hat I would ask that you guys do is when you look at what we’ve done to try to make

everybody safe, we are more than happy to accept recommendations on what we can do

differently in the future in this respect.”

¶5 During defendant’s opening statement, counsel told the jury that “there were two separate

and distinct crimes.” She stated:

“There was a robbery of Robert Manella and an aggravated battery, and then later there’s

a different crime of unlawful use of a debit or credit card. [Defendant] had nothing to do

with the robbery and battery. He admits he used a credit card that didn’t belong to him, and

he’s going to ask that you find him guilty of what he’s responsible for; but that night, the

robber gave [defendant] a debit card and [defendant] went and spent six dollars at the gas

station.”

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¶6 On direct examination, Aurora police officer Nicole Holland testified that she responded

to a call from Jennings Terrace on October 6, 2020, at approximately 10:44 p.m. She received a

dispatch that a robbery had occurred at Jennings Terrace and that the suspect was described as “a

male black, about six-foot, wearing a black hat, black shirt; unknown direction of travel.” Officer

Holland arrived at Jennings Terrace and spoke to the staff, who directed her to the nursing station

where Manella was receiving treatment. She described Manella as relatively calm and “in good

condition, other than some blood up by his eyes and his nose and mouth.” Manella described the

perpetrator as “a male black, about six-foot, wearing a black hat, heavier set,” and wearing a black

shirt with a light-colored hooded sweatshirt. Manella did not request an ambulance for treatment

and instead received treatment from the Jennings Terrace nursing staff.

¶7 While Officer Holland investigated the scene of the incident, she took photographs, which

were admitted into evidence without objection, and testified that they fairly and accurately

depicted how Manella appeared when she spoke to him that night. The photographs of the facial

injuries that Manella sustained during the attack also showed that he had gray hair and a receding

hairline, graying eyebrows, white whiskers, bags under his eyes, and apparent age spots on his

forehead. Officer Holland stated that Jennings Terrace did not have surveillance cameras. She

described where Jennings Terrace was located and said that the incident had occurred on the east

side of the building. She canvassed the neighborhood to find surveillance cameras, but she was

unable to locate any surveillance video. Officer Holland questioned additional staff members from

Jennings Terrace, but she was unable to find any other witnesses.

¶8 On cross-examination, Officer Holland testified that Manella did not know who the

perpetrator was. Manella told Officer Holland that the attack had occurred inside the entryway

vestibule of Jennings Terrace. Officer Holland did not attempt to collect DNA evidence or

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fingerprints inside the vestibule “because it’s a highly-trafficked area.” When Manella provided

the description of the offender to Officer Holland, he told her that he believed he could identify

the perpetrator if he saw him.

¶9 Manella testified on direct examination that he was 68 years old. He has resided at Jennings

Terrace for about 10 years, including on October 6, 2020, the date of the incident. Jennings Terrace

is divided into two sections—one side of the building is a nursing home and the other side is

“assisted living” or “sheltered care.” Manella stated that he resides in the sheltered-care side of the

building.

¶ 10 At approximately 10:30 p.m. on October 6, 2020, Manella stood outside of Jennings

Terrace smoking a cigarette by himself. The State presented a number of photographs to Manella

depicting the area that night. Manella stated that the photographs accurately showed the outside of

the sheltered-care main entrance to Jennings Terrace as it appeared on the date of the incident. The

photographs were admitted without objection and published to the jury.

¶ 11 Manella stood approximately 15 feet from the door while he smoked a cigarette, in

accordance with the law prohibiting smoking within 15 feet of a nursing home. He pointed to the

location where he was standing in one of the photographs. State’s exhibits 9 and 10, which were

published to the jury, were photographs of the circular driveway and parking lot leading to the

entrance of the Jennings Terrace sheltered-care main entrance. The photographs depicted a sign

that states, “Jennings Terrace South Entrance” and “Assisted Lifestyle.” Manella testified that this

sign is located just inside the property and was also present on the date of the incident. State’s

exhibit 7 depicted another photograph of a Jennings Terrace sign labelled, “Assisted Lifestyle •

Nursing Care,” although Manella did not testify regarding that sign’s location on the property

relative to where he was standing that night.

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¶ 12 The photographs of the entrance to Jennings Terrace displayed a few warning signs taped

to the doors, including one that stated, “All staff and visitors must report directly to Nurse’s Station

for temporary screening.” Another sign taped to the entrance doors stated, “Sorry, because of the

risk of COVID to our residents and staff, there is no public bathroom available.” In addition, a sign

taped to the doors listed visitation information. The State did not ask Manella questions regarding

these signs; however, the jury viewed the photographs as part of the evidence.

¶ 13 As Manella stood outside smoking a cigarette in the dark, he observed a man “pounding

on the front doors of Jennings Terrace,” at the main entrance to the sheltered-care portion of the

facility. Manella stated that the man was black and between 5 feet, 6 inches, and 5 feet, 10 inches,

tall. Manella described the man as “very slender” with a compact build, similar to “a running back

in football, and he was very lean and well proportioned, muscular-wise.” Manella stated that it was

difficult to discern the age of the person but believed he was “probably somewhere between 22

and 34 *** because of the lighting.” He denied that he had told Officer Holland that the man he

observed was “heavier-set.”

¶ 14 Manella did not recognize the man as someone who either resided or worked at Jennings

Terrace. He believed the man possibly “could have been a new hire.” Manella described the

lighting as “not the greatest,” stating that there was “a bullet light where those signs are on the

building,” located “on the ground at the corner and they shine up at the Jennings Terrace.” He also

described a square light above the front entrance to the building with a 60- to 100-watt light bulb.

¶ 15 According to Manella, the man pounding on the front entrance door did not say anything.

Manella approached him and asked if he was an employee. The man responded by asking “if there

was anybody inside.” Manella again asked him if he was an employee. The man repeated the same

question to Manella. At that point, both Manella and the man were standing under the front

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entrance light, and Manella stated that they stood “equi-distance” [sic], approximately two to three

feet from one another. Manella once more asked the man if he was an employee and the man

“started asking me if I was a resident.” Manella repeated his question, asking whether the man was

an employee. The man again asked Manella, “[a]re you a resident?” Manella then responded, “this

is an old-folks home and there are nurses and CNAs in there, and if I go inside and tell them that

you’re out here and they call the police and the police catch you out here, you could be arrested

for trespassing.”

¶ 16 Once again, the man asked Manella if he was a resident, and Manella repeated the same

answer. At that point, Manella told the man, “if you’re not going to leave, I’m going in,” and he

pulled the front door open. Manella explained that “right at the shift change [for Jennings Terrace

employees] the doors are not locked. That’s why I take my final cigarette at that particular time of

night.”

¶ 17 Manella next testified regarding photographs depicting the front entryway vestibule of

Jennings Terrace, which the State presented as exhibits 16 through 19. These exhibits were

admitted without objection and published to the jury. Manella described the two sets of doors

leading from the front entrance into the vestibule, along with a second set of doors leading into the

building. After confronting the man outside the building, Manella opened the doors just wide

enough to pass through into the vestibule and stated that “it takes me a while [sic] to get turned

around because of my disability.” Manella was unable to close the front entrance doors. He did

not invite the man into the building because “he wasn’t allowed.” Manella testified that he “didn’t

know who [the man] was, visiting hours were over at 8, and he wouldn’t tell me if he was an

employee, so I wasn’t going to let him in.” Manella stated that he told the man three separate times

that Jennings Terrace was “an old-folks home” and that he could be arrested for trespassing.

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¶ 18 Manella described what the man did as Manella attempted to close the doors: “He stuck

his foot in between the doors and he hit me right here in between the eyes; and then because of my

imbalance, I started to go down. He hit me again in the face, more on the left-hand side.” Manella

stated he did not know that the man was going to punch him. The man did not have an accomplice

with him—he was by himself. When Manella fell to the ground and rolled onto his stomach, the

man continued to hit him “[a]ll about the head, and then he started hitting on [his] kidneys.” While

Manella was lying on the ground, he was unable to view the man’s face. Manella stated that the

man took his wallet from his right rear pocket. Asked to describe how the man took his wallet,

Manella testified, “Uh, after he quit punching me, he immediately lifted me *** up by my left

pocket and felt in my left pocket, left rear pocket; and then he lifted me up a little bit by holding

my right pocket and lifting me up, and he pulled my wallet out.”

¶ 19 After the man took Manella’s wallet, Manella started screaming for help. He saw the man

“heading for the inner set of security doors to get inside of the facility.” Manella kicked his legs

out to trip the man, and he stumbled. Manella stated that he could hear the man stumbling inside

the vestibule and “finally he left.” Manella managed to rise and lurch through the entrance and

found the nurses’ station. He told the nurses to call the police.

¶ 20 Manella next described the photographs depicting the injuries he sustained to his head from

the attack. He was bleeding from an area between his eyes, from his nose where his glasses had

broken, and at the right corner of his mouth. When the assistant state’s attorney asked Manella if

he “look[ed] like that before [the attack],” Manella responded, “I looked worse.”

¶ 21 Manella testified that he had five counterfeit $100 bills in his wallet. He stated that the

money in his wallet “look[s] identical to genuine $100 bills, except they didn’t have the color

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change *** ink [or] the Franklin watermark.” Manella had two debit cards in his wallet, including

one from Old Second National Bank, with his name embossed on the card.

¶ 22 A few weeks after the incident, the police returned to interview Manella. Officers asked

him to view a lineup of photographs of potential suspects. When Manella viewed the photo lineup,

he wore “[a] very old pair of readers that [he] could not hardly see very well with,” because the

offender had broken his prescription bifocal glasses during the incident. Manella described the

difference in viewing capability between the two pairs of glasses as “tremendous.”

¶ 23 As Manella viewed the photo lineup of potential suspects, he could not pick out the

offender with 100% certainty because “the pictures only came to the person’s collar bone, and it

did not show [him] the body language or *** any of the other distinguishing features, like how he

stood, or whatever.” Manella stated that he also was unable to distinguish the weight of the

potential offenders.

¶ 24 Next, Manella testified regarding State’s exhibit 24, which was a video recording of the

photo lineup that he viewed with a detective. Manella stated that the recording was an accurate

depiction of what had occurred, and the exhibit was admitted without objection and published to

the jury.

¶ 25 Detective Koenings, an independent administrator, presented the photo lineup to Manella

on October 19, 2020. At the beginning of the recording, Manella can be seen putting on a pair of

glasses. Detective Koenings provided a series of acknowledgements to Manella before having him

view the photographs, including that the offender “may or may not” be included in the lineup and

that it is equally important to exclude innocent persons as it is to identify potential suspects.

Manella signed a document affirming that that he understood the acknowledgments. Manella also

stated that he understood that the police investigation would continue regardless of whether he

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made an identification from the lineup. He emphasized to Detective Koenings that he wanted to

be absolutely sure he identified the right person. He also told Detective Koenings that the glasses

he was wearing were not his regular prescription glasses. When Manella viewed the photograph

of defendant, which was photograph 5, he shook his head and stated, “I don’t believe so, he looks

too old.” He viewed the photograph of defendant again and stated, “[t]oo heavy, too old.” Manella

stated that a photograph of a different potential suspect, which was photograph 2, was more likely

the man who attacked him, but he did not make a positive identification of the offender during the

photo lineup. He told Detective Koenings that he was 60% to 75% sure that the man depicted in

photograph 2 was the offender. He then stated that, among the pictures he viewed, he was 85% to

95% certain that the offender was depicted in photograph 2 and that if he saw that person randomly

in public, he would be 65% to 75% certain that person was the offender.

¶ 26 After the jury viewed the recording, Manella testified that he occasionally placed his hand

on some of the photographs as he attempted to identify the offender. He explained, “the individual

that assaulted me, that night that he assaulted me he had on a very distinctive baseball cap that had

*** their name across the whole top of the cap,” with “silver garland through it, something I had

never seen before.” Manella continued that he did not see the hair of the man who assaulted him

and that he tried to “make sure that [he] was just looking at the features that [he] actually saw that

night,” referring to the offender’s eyes, nose, and mouth. He did not want to simply guess because

he did not want to pick the wrong person. He wanted to be 100% sure the person he identified was

the offender.

¶ 27 On cross-examination, Manella testified that he was wearing his prescription glasses

immediately before he was assaulted. He stated that he was able to see the offender’s entire face,

excluding the hair, which was covered by a blue hat. The offender wore a black T-shirt and “some

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kind of a jacket,” which he called “a hoodie.” Manella stated that the man “was built like a football

running back.” He clarified that “[a] running back is muscular, but they are lean. It’s more like a

person who is in, like, karate. Very good shape, but very lean, but muscular.” Manella also stated

that it was difficult to discern the offender’s age because he was “young and fit.” He guessed the

offender was aged between 22 and 34 years old.

¶ 28 Elton Govada testified that he was working as a cashier at a gas station in Aurora on the

night of October 6, 2020. Govada identified a photograph of the gas station where he worked,

which was admitted without objection. He stated that the photograph accurately depicted the gas

station that night. Govada confirmed that the gas station had a surveillance camera system and that

the cameras activate upon motion detection. At approximately 10:56 p.m., a customer entered the

gas station. Govada recognized the customer as defendant and identified him in court. Govada

stated that he had seen defendant previously at the gas station while he worked there.

¶ 29 The State introduced exhibit 35, which was a DVD recording containing surveillance

footage from the gas station on October 6, 2020. The exhibit was admitted without objection and

published to the jury. Govada described the recording and identified defendant when he appeared

on the video. The recording did not contain audio.

¶ 30 Govada described defendant’s behavior that night as “restless,” “[u]neasy,” and

“[a]nxious.” He also stated that defendant’s conduct was aggressive. Defendant presented a $100

bill to Govada and asked him to confirm whether it was fake. Govada checked the $100 bill and

determined it was fake. He told defendant the money was fake, and defendant loudly disagreed

with him. Defendant left the gas station and returned a few minutes later to purchase some items

with a debit card. Govada also identified receipts from the gas station reflecting the transactions

defendant made at the gas station that night with the debit card. Defendant purchased two packs

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of cigarettes and a beverage, using two debit cards. Copies of the receipts were admitted into

evidence without objection and published to the jury. On cross-examination, Govada testified that,

when defendant entered the gas station, he wore a white T-shirt and was not wearing a hat, jacket,

or hoodie.

¶ 31 Next, the parties stipulated to transactions made using Manella’s debit card account at the

gas station on October 6, 2020. The parties stipulated that the business records from Old Second

National Bank were made in the regular course of business and were accurate depictions of

financial activity from Manella’s account number. Defendant signed the stipulation.

¶ 32 Detective Darryl Moore testified that he served as an officer with the Aurora police

department for 26 years. He was assigned as the lead detective to investigate the incident. On

October 8, 2020, he interviewed Manella, who gave him the pair of eyeglasses that were broken

during the assault. Detective Moore identified State’s exhibit 20, which was the eyeglasses.

Detective Moore previously worked at Jennings Terrace as a custodian. He stated that he did not

take fingerprints or collect any DNA from the scene because “[i]t’s a public area” and “[t]here

would be a lot of potential people touching those areas.” Detective Moore stated that “trying to get

elimination samples with that kind of area would be next to impossible.” As lead detective, he does

not attempt to collect fingerprints or DNA from every crime scene.

¶ 33 The State presented exhibit 32, which was a map depicting Jennings Terrace, the gas

station, and the surrounding area. Exhibit 32 was admitted without objection and published to the

jury. Detective Moore testified that the gas station was located about one-half mile from Jennings

Terrace. He said that he interviewed Govada and reviewed two receipts and video surveillance

from the gas station from October 6, 2020. Detective Moore identified defendant in court after

viewing photographs showing him at the gas station that night. Based on Detective Moore’s review

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of the surveillance videos and other information obtained during the investigation, he generated a

photo lineup. Detective Moore explained the procedure for creating the lineup and the independent

administration of the lineup by an officer not actively involved in the investigation. The State

presented exhibit 34, the photo lineup Manella viewed, which was admitted without objection.

Detective Moore stated that defendant’s picture was assigned as the fifth photograph of six

potential suspects.

¶ 34 On November 6, 2020, Detective Moore interviewed defendant at the Kane County Judicial

Center. Strict COVID-19 regulations required Detective Moore to conduct the interview in an

“attorney room,” where he sat on one side of a glass partition with defendant sitting on the other

side, communicating by a phone attached to the wall on each side. Defendant agreed to talk to

Detective Moore after the detective provided a Miranda warning. See Miranda v. Arizona, 384

U.S. 436 (1966)). The State presented exhibit 33 to the jury, which was a copy of the preprinted

Miranda warning he provided to defendant, and it was admitted without objection. Defendant was

unable to sign the form with the Miranda warning due to COVID-19 regulations. Detective Moore

also explained that the interview was not recorded because he did not have the necessary

equipment to record the conversation through the glass partition. In addition, he did not ask

defendant to provide a written statement, because COVID-19 regulations precluded passing papers

back and forth.

¶ 35 Detective Moore asked defendant about an incident at a gas station on October 6, 2020.

Defendant told Detective Moore that he could not recall if he purchased anything there that night.

Defendant frequently bought items from that gas station because he resided across the street. At

that point during Detective Moore’s testimony, he identified defendant in court and stated that

defendant was wearing a white face mask.

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¶ 36 Detective Moore asked defendant questions regarding whether he was with another male

at the gas station on October 6. Defendant said he remembered being at the gas station with another

male whom Detective Moore had described to him. Detective Moore showed defendant some

photo clips that he had taken from the surveillance video. Defendant acknowledged that he was

depicted in the photograph from the surveillance video. When Detective Moore asked defendant

if he still had the shirt he was wearing in the surveillance video, defendant responded that he no

longer had the shirt because “his girlfriend had a bloody nose and the shirt had blood on it.”

Defendant had thrown the shirt away.

¶ 37 Defendant told Detective Moore that he had bought some cigarettes, a soft drink, and chips

at the gas station that night. Detective Moore asked defendant whether he had used a debit card

that did not belong to him in order to pay for the items. Defendant acknowledged that the card did

not belong to him, but he stated that he had received the card from a person named Gaylon Greene.

Defendant acknowledged using two different cards for the purchases at the gas station that night.

Defendant told Detective Moore that he had received the Old Second National Bank debit card

from Greene and had found another card “on the gas pumps as he was entering the gas station.”

Defendant explained that Greene gave him the debit card because he owed defendant money.

Defendant acknowledged that he had tried to pay for the transaction with a $100 bill, but the cashier

thought the money was fake and denied the transaction.

¶ 38 Defendant told Detective Moore that Greene had given him permission to use the Old

Second National Bank debit card. Detective Moore asked defendant whose name was embossed

on the card. Defendant could not recall, but he told the detective that the name began with the letter

“R,” and he believed it may have been either “Robert or Ronald.” Greene told defendant the pin

number for the card. Defendant told Detective Moore that he used the card twice that night. He

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also told the detective that Greene had given him the card near a park on Titsworth Court, which

is located in between Jennings Terrace and the gas station. Defendant was with his girlfriend, Lisa

Reynolds, at the park, and Greene told him that he had $1500 in his wallet, along with the card.

¶ 39 Detective Moore testified that he told defendant that the owner of the Old Second National

Bank card resided at Jennings Terrace. Defendant told the detective that Greene “must have found

it or taken the card.” At that point, Detective Moore informed defendant that Manella had identified

him in a photo lineup as the person who took his wallet. Defendant responded that he did not rob

anyone. Detective Moore told defendant that he had viewed a surveillance video from Jennings

Terrace, even though that was a lie. Detective Moore explained that this was an investigation tactic

and “sometimes people don’t tell me the truth and sometimes I just want to see what their response

is if I tell them something that may show that I have some evidence that puts them in an area that

they may be, or some maybe don’t.” Detective Moore also told defendant the lie that “some people

from Jennings [said] that the victim can be kind of an asshole sometimes, so maybe the victim said

something to the defendant.” The detective explained he “wanted to see if the defendant would tell

me and be more honest with what he knew about the wallet, the card, if he thought that maybe

there’s a reason the whole thing was going to be mitigated.” Detective Moore stated that, at that

point, defendant decided to tell him what actually happened that night.

¶ 40 Defendant told Detective Moore that he was with Greene and that they were walking

towards Jennings Terrace. They approached the gazebo area where the residents commonly smoke,

and he was approached by Manella at that time. According to defendant, Manella called him the

“n” word and, in response, defendant punched him. Greene picked up Manella’s wallet and later

gave defendant the wallet. Detective Moore then made the statement, also a lie, that only he and

Manella were in the surveillance video. Defendant then changed the story again and told the

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detective that he had approached Manella and Manella had called him the “n” word. He punched

Manella and “then [Greene] must have came [sic] by later and picked up the wallet.” Defendant

again denied that he had robbed anyone.

¶ 41 Defendant then provided a different scenario to Detective Moore, saying that he and

Reynolds had approached the gazebo because she was looking for a cigarette butt. Manella

approached Reynolds. Defendant told the detective that Manella had called Reynolds “a little

bitch.” In response, defendant punched Manella and left. Greene found Manella’s wallet later.

Detective Moore told defendant that his story was difficult to believe. Defendant responded that

“he doesn’t rob old people.” Detective Moore stated that he never mentioned robbery to defendant

up until that point of the interview. He also had not mentioned Manella’s age.

¶ 42 As Detective Moore continued the interview, he told defendant that “sometimes people’s

emotions can make them do things.” Detective Moore testified that defendant became emotional

at that point and “looked like he was about ready to cry.” His voice began to choke up. Defendant

then told Detective Moore that Reynolds was a prostitute and he found her giving oral sex to

Manella. At that point, defendant punched Manella because he was upset. Defendant claimed that

Reynolds took the wallet during the interaction with Manella. Defendant stated that the interaction

occurred at the side of the building, which is why Detective Moore would not have seen what

happened on surveillance video of Jennings Terrace. Defendant continued that, after he punched

him, Manella began running towards the front doors of Jennings Terrace with his pants down.

Defendant chased Manella towards the door, and that was when Manella called defendant the “n”

word. Defendant told the detective he discovered what was happening because Reynolds “was

gone for some time and he started walking and just happened to cross them.” When Detective

Moore asked defendant about interviewing Reynolds, defendant responded that he had bought her

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a train ticket to Arizona and that he would not be able to find her. Defendant gave the detective a

phone number for Reynolds. Detective Moore attempted to contact Reynolds for an interview, but

she never returned the phone call.

¶ 43 Detective Moore testified that he did not interview Greene because he did not believe

Greene had anything to do with the incident after defendant provided many different versions of

what had happened on October 6, 2020. Defendant told the detective that he threw the wallet into

a dumpster.

¶ 44 On cross-examination, Detective Moore stated that he did not test the debit cards for

fingerprints or deoxyribonucleic acid (DNA). He also did not test Manella’s broken eyeglasses for

fingerprints or DNA. Manella’s debit card had been used five separate times on the night of

October 6, 2020, including twice at the gas station in amounts totaling $1.74 and $4.31. The card

was used three more times for $32 at a different gas station. Detective Moore reviewed the

surveillance video from the second gas station and did not see defendant in the video. In addition,

an application called “Cash App” listed two withdrawals of $100 from Manella’s account, which

were transferred to an account of a “Sheila You.”

¶ 45 Detective Moore testified that he was not present when Detective Koenings administered

the photo lineup to Manella, but he watched the video of the lineup later. Detective Moore agreed

that Manella initially ruled out photograph 5, which depicted defendant. Detective Moore had

spoken to Manella after the independently administered lineup and Manella had told him “he could

not rule out Number 5.” The detective clarified that the conversation between himself and Manella

occurred after the lineup viewing “and that was just Mr. Manella still speaking about the lineup

when I met with him again.” Detective Moore testified regarding a report he wrote concerning the

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photo lineup, in which he wrote that Manella was uncertain of any identification, including the

potential suspect in photograph 2.

¶ 46 According to Detective Moore, he was unable to record the interview with defendant at the

Kane County Judicial Center due to COVID-19 regulations. Detective Moore destroyed the notes

from his interview because he prepared a report afterwards and “always destroy[s] the notes after

[he writes] the report.” Detective Moore did not conduct any further investigation of Greene’s

involvement or whether he had a criminal record. Defense counsel asked the detective about all

the lies he told defendant, and Detective Moore responded that he told the lies with the goal of

finding out the truth. Detective Moore stated that lying to a potential suspect is an effective police

tool to induce a confession. In his experience, suspects often will minimize or justify their actions

in committing a crime. Detective Moore agreed that, as the interview with defendant progressed,

the stories became more bizarre. In each of the stories, defendant denied taking Manella’s wallet.

¶ 47 After Detective Moore’s testimony, the State rested, and defendant moved for a directed

verdict. The circuit court denied defendant’s motion. Defendant presented a number of exhibits to

the jury that were admitted without objection, but he did not testify during his case-in-chief.

¶ 48 Before closing argument, the circuit court instructed the jury, among other things, that the

evidence it should consider consists “only of the testimony of the witnesses and the exhibits which

the Court has received. You should consider all the evidence in the light of your own observations

and experience in life.” The court also instructed the jury that “[n]either opening statements nor

closing arguments are evidence, and any statement or argument made by the attorneys which are

not based on the evidence should be disregarded.”

¶ 49 As to the identification testimony, the circuit court instructed the jury:

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“When you weigh the identification testimony of a witness, you should consider all

the facts and circumstances in evidence, including but not limited to the following: The

opportunity the witness had to view the offender at the time of the offense, the witness’

degree of attention at the time of the offense, and the witness’ earlier description of the

offender.

You have before you evidence that a witness made an identification of another

individual, following a photographic lineup conducted by a law enforcement agency,

relating to the offense charged in this case. It is for you to determine whether the witness

made an identification, and if so, what weight should be given to that evidence.

In determining the weight to be given to this evidence, you should consider all the

facts and circumstances under which the identification was made, including but not limited

to the procedures used by the law enforcement agency.”

¶ 50 Further, the circuit court instructed the jury regarding circumstantial evidence, stating that

“[c]ircumstantial evidence is the proof of facts or circumstances which give rise to a reasonable

inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial

evidence should be considered by you, together with all the other evidence in this case, in arriving

at your verdict.”

¶ 51 During closing argument, the State contended that several factors supported defendant’s

knowledge that Manella was older than 60 years of age. 2 The State showed the jury a photograph

2 Of course, the State needed to prove only that defendant knew that Manella was age 60

years or older.

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of Manella after the incident wearing a pair of slippers, arguing that defendant saw Manella

standing in front of a nursing home having a cigarette. The State asked the jury,

“[w]hy would somebody be standing in front of a nursing home in slippers, at night? Maybe

because they live there. *** Elderly people live in the nursing home; people over the age

of 60. So, ladies and gentlemen, common sense tells us that the defendant knew that Mr.

Manella was over the age of 60.”

The State also asked the jury to consider Manella’s physical appearance as evidence that “any

person should know, in looking at Mr. Manella, that he is over 60.” The State also commented to

the jury,

“You can see Mr. Manella. You saw him when he walked into court. You can consider all

of that; your observations of his physical appearance, your observations of how he moved.

He’s not a spry young man, unfortunately. He did not move well. It took him a while to

walk from the back of the courtroom to the witness stand. You saw that.”

Further, the State argued that defendant told Detective Moore that “he’s never robbed old people

before,” as an example of how he knew Manella was a person 60 years of age or older.

¶ 52 In his closing argument, with respect to the element of defendant’s knowledge that Manella

was age 60 or over, defense counsel argued: “The robber, whoever he is, could have not known

that Robert Manella was over 60 years old. Does he look over 60 years old? Yes. Is he living in a

nursing home, which means he probably is over 60 years old? Sure. But there are 50-year-olds

living in nursing homes that look older that have gray hair. So whoever the robber is, they can’t

prove that the robber knew that Robert was over 60.”

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¶ 53 During the middle of closing argument, defense counsel requested that defendant be

permitted to stand up and take off his mask. The circuit court denied the request, stating, “[n]ot in

evidence.”

¶ 54 The jury found defendant guilty of two counts of aggravated battery for causing bodily

harm to a victim aged 60 or older and making physical contact with a victim aged 60 or older.

These two convictions were merged. The jury found defendant not guilty of robbery of a victim

60 years of age or older.

¶ 55 Defendant filed a combined motion for judgment notwithstanding the verdict and for a new

trial. He argued that the State had failed to prove that he knew Manella was aged 60 or older

beyond a reasonable doubt. The circuit court denied defendant’s motion, finding:

“[A]s to the judgment [notwithstanding] the verdict, I listened to the evidence, the jury has

rendered their decision and I know that I issued the circumstantial evidence jury

instruction. I believe that the jury verdict will stand. There is enough circumstantial

evidence in the light most favorable to the State at this point that the jury could easily

believe that the victim was over 60—could easily believe the defendant believed the victim

was over 60 when this act occurred, and therefore, on the issue, I will deny the motion.”

¶ 56 The circuit court sentenced defendant to 10 years’ imprisonment. Defendant was given

credit for time served, including an additional 525 days’ credit and credit for participation in a

substance abuse program. This appeal followed.

¶ 57 II. ANALYSIS

¶ 58 Defendant argues on appeal that (1) his conviction of aggravated battery must be reduced

to misdemeanor battery because the State failed to prove he knew that Manella was at least 60

years of age; (2) he was denied a fair trial when the circuit court refused to allow him to remove

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his mandated protective mask in front of the jury during closing argument to support his

misidentification defense or, alternatively, he received ineffective assistance of trial counsel for

failing to submit his appearance into evidence during his case-in-chief or request the reopening of

his case for that purpose; and (3) he is entitled to a new trial due to the faulty photo lineup

procedure or, alternatively, trial counsel was ineffective for failing to object to testimony regarding

this procedure. We address each issue in turn.

¶ 59 A. Sufficiency of the Evidence for Aggravated Battery

¶ 60 Defendant first contends that the State failed to introduce any evidence at trial that he knew

Manella was 60 years of age or older. For example, the State asserted during closing argument that

defendant “must have known” Manella was 60 years of age or older based on his appearance,

mobility, and residence in an assisted-living facility. In other words, the State argued that

defendant should have known Manella’s age based on certain factors present at the time of the

assault. However, defendant argues the State never alleged that defendant either knew Manella or

knew anything about his actual age on the night of the assault. Instead, the State continually argued

that the incident was a “random attack.” Defendant contends that, under section 12-3.05(d)(1) of

the Code (720 ILCS 5/12-3.05(d)(1) (West 2020)), he was required to have actual knowledge that

Manella was 60 years of age or older. According to defendant, the State failed to prove this element

and therefore, he argues, his aggravated battery conviction should be reduced to misdemeanor

battery.

¶ 61 A challenge to the sufficiency of the evidence requires the reviewing court to 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.’ ”

(Emphasis omitted.) People v. Davison, 233 Ill. 2d 30, 43 (2009) (quoting Jackson v. Virginia, 443

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U.S. 307, 319 (1979)). “That standard applies whether the evidence is direct or circumstantial and

does not allow this court to substitute its judgment for that of the trier of fact on issues that involve

the credibility of the witnesses and the weight of the evidence.” People v. Jones, 2019 IL App (1st)

170478, ¶ 25.

¶ 62 We draw all reasonable inferences in favor of the State (Davison, 233 Ill. 2d at 43) and do

not retry the defendant (People v. Collins, 106 Ill. 2d 237, 261 (1985)). The State must prove each

element of an offense beyond a reasonable doubt. People v. Siguenza-Brito, 235 Ill. 2d 213, 224

(2009). We will not overturn a criminal conviction “unless the evidence is so improbable or

unsatisfactory that it creates a reasonable doubt of the defendant’s guilt.” People v. Givens, 237

Ill. 2d 311, 334 (2010).

¶ 63 “Thus, it is our duty in the case at bar to carefully examine the evidence while giving due

consideration to the fact that the court and jury saw and heard the witnesses.” People v. Smith, 185

Ill. 2d 532, 541 (1999). As our supreme court has observed, “ ‘[o]nce a defendant has been found

guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a

legal conclusion that upon judicial review all of the evidence is to be considered in the light most

favorable to the prosecution.’ ” (Emphasis in original.) Collins, 106 Ill. 2d at 261 (quoting Jackson,

443 U.S. at 319). “If, however, after such consideration we are of the opinion that the evidence is

insufficient to establish the defendant’s guilt beyond a reasonable doubt, we must reverse the

conviction.” Smith, 185 Ill. 2d at 541 (citing People v. Bartall, 98 Ill. 2d 294, 306 (1983)).

¶ 64 Section 12-3.05(d)(1) of the Code provides that “[a] person commits aggravated battery

when, in committing a battery, other than by discharge of a firearm, he or she knows the individual

battered to be *** [a] person 60 years of age or older.” 720 ILCS 5/12-3.05(d)(1) (West 2020).

This court in People v. Jasoni, 2012 IL App (2d) 110217, ¶¶ 16-18, held that the plain language

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of the statute “makes clear that the General Assembly intended a defendant to know that the

individual he or she battered was 60 years of age or older in order to be convicted of aggravated

battery based on this section.” This conclusion is further bolstered by the intent of the legislature

in enacting the aggravating element in section 12-3.05(d)(1) of the Code. Id.

¶ 65 The primary rule of statutory construction is to ascertain and give effect to the intent of the

legislature, “the surest and most reliable indicator of which is the statutory language itself, given

its plain and ordinary meaning.” People v. Perry, 224 Ill. 2d 312, 323 (2007). If the statutory

language is clear and unambiguous, we must apply it as written, without using extrinsic aids to

statutory construction. Id. We may not depart from the plain language of the statute by reading

into it exceptions, limitations, or conditions that conflict with the expressed intent. Id. at 323-24.

Since all provisions of a statutory enactment are viewed as a whole, we do not construe words and

phrases in isolation; instead, they are interpreted in light of other relevant portions of the statute.

Carver v. Sheriff of La Salle County, 203 Ill. 2d 497, 507-08 (2003). We further presume that the

legislature did not intend absurdity, inconvenience, or injustice. Id. at 508. We review de novo the

construction of a statute. Perry, 224 Ill. 2d at 324.

¶ 66 This court in Jasoni explained that the “earlier version of the statute was interpreted to

mean that, as long as the victim was 60 years of age or older and the defendant committed a battery,

the defendant was guilty of aggravated battery.” Jasoni, 2012 IL App (2d) 110217, ¶ 14; see 720

ILCS 5/12-4(b)(10) (West 2004) (before the statute was amended, a person committed aggravated

battery if he “[k]nowingly and without legal justification and by any means cause[d] bodily harm

to an individual of 60 years of age or older”); see also People v. Jordan, 102 Ill. App. 3d 1136,

1139 (1981) (noting that the legislature had specifically rejected an amendment requiring

knowledge of the victim’s age because scienter would be too difficult to prove). In 2006, the

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General Assembly amended the aggravated battery statute to its present form, which specifies that

a person commits the offense when he or she “[k]nows the individual harmed to be an individual

of 60 years of age or older.” 720 ILCS 5/12-4(b)(10) (West 2006). In Jasoni, we compared the

wording of the previous and current versions of the statute and found that, after the amendment,

“the plain language of the statute requires that a defendant know that the person he or she batters

is 60 years of age or older at the time of the battery in order to sustain a charge of aggravated

battery under this section.” Jasoni, 2012 IL App (2d) 110217, ¶ 16.

¶ 67 Knowledge, which is the mental element of the offense, is often proven by circumstantial

evidence. Id. ¶ 20 (citing People v. Faginkrantz, 21 Ill. 2d 75, 80 (1960)). Section 4-5(a) of the

Code states that “[a] person knows, or acts knowingly or with knowledge of *** [t]he nature or

attendant circumstances of his or her conduct, described by the statute defining the offense, when

he or she is consciously aware that his or her conduct is of that nature or that those circumstances

exist.” 720 ILCS 5/4-5(a) (West 2020). “Knowledge of a material fact includes awareness of the

substantial probability that the fact exists.” Id. Our courts have previously explained that,

“ ‘[b]ecause of its very nature, the mental element of an offense, such as knowledge, is ordinarily

established by circumstantial evidence rather than direct proof.’ ” Jasoni, 2012 IL App (2d)

110217, ¶ 20 (quoting People v. Farrokhi, 91 Ill. App. 3d 421, 427 (1980)); see People v. Leib,

2022 IL 126645, ¶ 37 (“Knowledge is often proven by circumstantial evidence rather than direct

proof because it is the mental element of an offense and, as such, is rarely proven by direct

evidence.”). “An admission by a defendant is not required for the trier of fact to conclude that a

defendant had knowledge of something.” Jasoni, 2012 IL App (2d) 110217, ¶ 20; see Leib, 2022

IL 126645, ¶ 37 (same).

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¶ 68 In Jasoni, the defendant argued that the evidence in his case was insufficient to prove he

knew the victim was at least 60 years of age when the battery occurred. He contended that all the

evidence of his guilt was circumstantial and that none of it supported the inference that he knew

the victim was 60 years of age or older. However, the court in Jasoni found that, when construing

the evidence in the light most favorable to the State, ample evidence supported the aggravated

battery conviction. The defendant had known the victim for 20 years at the time of the assault, as

he had been married to the victim’s daughter for 14 years. The defendant’s son was the victim’s

grandson, and the victim frequently visited the defendant’s home to see her grandson. In addition,

the defendant lived in an apartment leased to him by the victim, which further demonstrated his

close relationship to the victim. Finally, the victim was aged 68 at the time of the assault, well over

the statutory minimum, and therefore, the trier of fact had an opportunity to observe her appearance

and assess whether it provided an indication of her age. The Jasoni court concluded that the

circumstantial evidence provided “an adequate basis for a conclusion that defendant knew [the

victim] well, which, in turn, supports an inference that he knew she was at least 60 years of age.”

Jasoni, 2012 IL App (2d) 110217, ¶ 24.

¶ 69 Defendant in this case argues that we should follow People v. Smith, 2015 IL App (4th)

131020, ¶ 47 (Lorenzo Smith), in which this court found that the evidence was insufficient to

support the defendant’s conviction of aggravated battery. The Lorenzo Smith court noted that the

State, in arguing that the evidence was sufficient, inferred that the defendant and the victim shared

a close relationship, because of their long-term friendship and status as roommates at the time the

offense was committed. Id. ¶ 45. The State also inferred that the defendant must have known the

victim’s age because he and the victim had filled out joint rental applications. Id. In addition, the

State presented evidence that the defendant’s role as the victim’s caregiver created the inference

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that he would have had access to information regarding the victim’s age. Id. Finally, the State

inferred that the victim’s willingness to provide the defendant with his debit card PIN number

suggested a trusting relationship wherein the two would have shared their ages with one another.

Id.

¶ 70 The Lorenzo Smith court found that the State had “pyramided intervening inferences in an

attempt to create evidence not otherwise contained in the record.” Id. ¶ 46. The court stated that

nothing in the record suggested that the defendant was aware of the victim’s age. Id. The victim

did not testify that he told the defendant his age or birth date, nor did they celebrate the victim’s

birthday while they were roommates. Id. The court also found that the record was devoid of

evidence showing that the defendant had reviewed the portions of the victim’s rental applications,

medical records, or any other documents in the apartment that might have reflected the victim’s

age or birth date. Id. The court held that the State failed to present evidence from which the jury

could infer that the defendant knew the victim was at least 60 years of age, and the court vacated

the defendant’s conviction of aggravated battery. Id. ¶ 47.

¶ 71 In this case, we decline to follow the Fourth District’s decision in Lorenzo Smith. This court

is not bound by the decisions of other districts of the appellate court. See O’Casek v. Children’s

Home & Aid Society of Illinois, 229 Ill. 2d 421, 440 (2008) (“[T]he opinion of one district, division,

or panel of the appellate court is not binding on other districts, divisions, or panels.”); Schramer v.

Tiger Athletic Ass’n of Aurora, 351 Ill. App. 3d 1016, 1020 (2004) (same).

¶ 72 Here, the State argues that the Lorenzo Smith court usurped the role of the jury because it

reweighed the evidence and disregarded the strong circumstantial evidence that supported the

jury’s verdict. We agree. Our supreme court in Collins stated that it is our duty as the reviewing

court to carefully examine the evidence “in the light most favorable to the prosecution” while

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giving due consideration to the fact that the circuit court and the jury saw and heard the witnesses

and viewed the evidence. (Internal quotation marks omitted.) Collins, 106 Ill. 2d at 261.

¶ 73 In any event, Lorenzo Smith is factually distinguishable from this case. In Lorenzo Smith,

“[t]he sole evidence presented with respect to [the victim’s] age was his own testimony that he

was 63 years of age.” 2015 IL App (4th) 131020, ¶ 44. Thereafter, the State presented

circumstantial evidence to establish that the defendant knew of the victim’s age. Id. The Lorenzo

Smith court found that “[n]othing in the record suggests defendant was aware of [the victim’s]

age,” and the victim “provided no testimony he told defendant his age or birth date, and during the

brief period in which [they] were roommates, [the victim] did not celebrate a birthday.” Id. ¶ 46.

There, the State operated “on the mistaken belief that it needed only to prove [the victim] was over

the age of 60,” but it “presented no evidence from which a jury could infer defendant knew [the

victim] was over the age of 60.” (Emphasis in original.) Id. ¶ 47. Such is not the case here.

¶ 74 In contrast to both Jasoni and Lorenzo Smith, defendant and Manella certainly were not in

a close relationship of any kind and, in fact, were not even acquainted with one another on the

night of the assault. However, when viewing the evidence in the light most favorable to the State,

as we must under Collins, we find that a rational trier of fact could conclude that defendant knew

Manella was 60 years of age or older at the time of the battery. Considering the statutory definition

of “knowledge” under section 4-5(a) of the Code, we find that a reasonable jury could conclude

that Manella’s appearance on the night of the assault, his communication to defendant that

Jennings Terrace was “an old-folks home,” and defendant’s admission to Detective Moore that

“he doesn’t rob old people,” supported his conviction of aggravated battery. Unlike Lorenzo Smith,

the record here is replete with circumstantial evidence bolstering the inference that defendant knew

Manella was at least 60 years of age. Significantly, the jury had an opportunity to observe

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Manella’s physical appearance, movements, and mannerisms. See People v. Sanders, 2021 IL App

(3d) 190728-U, ¶ 26 (the trier of fact can properly make observations and draw inferences about

the testifying victim’s appearance, movements, and mannerisms when considering whether a

defendant knew the victim’s age); see also People v. Daniels, 139 Ill. App. 3d 475, 481 (1985)

(the “in-court appearance of the victim is sufficient to rebut defendant’s affirmative defense

because the trier of fact has the best opportunity to observe the victim and assess the reasonableness

of the defendant’s belief” regarding the victim’s age).

¶ 75 The jury in this case saw multiple photographs of how Jennings Terrace and Manella

appeared on the night of the assault. The numerous, well-lit signs on the property would have made

clear to defendant that he was pounding on the door of a nursing home. One sign specifically

stated, “Assisted Lifestyle • Nursing Care.” Signs taped to the doors of the facility he was

attempting to enter stated, “All staff and visitors must report directly to Nurse’s Station for

temporary screening,” as well as “Sorry, because of the risk of COVID to our residents and staff,

there is no public bathroom available.” Further, a sign taped to the door listed visitation

information. In short, the jury viewed pictures clearly showing that Jennings Terrace was a nursing

home.

¶ 76 Defendant argues that, because he was located on the “sheltered-care” side of the building

when he attacked Manella, this somehow demonstrated he had no knowledge of Manella’s age.

Defendant contends that the State did not present any evidence that all residents of the building

are 60 years of age or older. However, this was not required to establish aggravated battery of a

victim aged 60 or older under section 12-3.05(d)(1) of the Code.

¶ 77 Indeed, Manella testified that defendant asked him multiple times if he was a resident at

the facility. Manella responded each time, telling defendant that “this is an old-folks home and

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there are nurses and CNAs in there, and if I go inside and tell them that you’re out here and they

call the police and the police catch you out here, you could be arrested for trespassing.” Manella

also told defendant that “visiting hours were over at 8.” A rational trier of fact could find that this

evidence supported the conclusion that defendant was standing at the entryway of a nursing home

and knew Manella was at least 60 years of age.

¶ 78 This inference is also supported by Manella’s appearance that night, which the jury viewed

in photographs taken following the assault. The photographs of Manella show that his hairline was

receding, his hair was completely silver, the hair on his eyebrows was greying, and the stubble on

his face was white. Manella testified that he was 68 years old at the time of trial, meaning he was

66 years old when the battery occurred. Furthermore, defendant himself told Detective Moore that

“he doesn’t rob old people,” even though Detective Moore had not mentioned Manella’s age

during his interview with defendant. The lack of direct evidence of defendant’s knowledge of

Manella’s age is no barrier to the trier of fact’s conclusion that defendant possessed this

knowledge. Jasoni, 2012 IL App (2d) 110217, ¶ 24. Moreover, we are mindful that the issue we

review on appeal is not whether defendant actually knew that Manella was 60 years of age or older,

but whether a rational finder of fact could conclude beyond a reasonable doubt that defendant

knew Manella was 60 years of age or older. See Collins, 106 Ill. 2d at 261 (the relevant question

is whether, viewing the evidence in the light most favorable to the prosecution, any rational fact

finder could have found the essential elements of the offense beyond a reasonable doubt). Indeed,

the exchange between defendant and Manella in front of Jennings Terrace and Manella’s

appearance that night provided enough information for defendant to be aware of the substantial

probability that Manella was 60 years of age or older. 720 ILCS 5/4-5(a) (West 2020). Manella

was 66 years of age at the time of the battery, had silver hair beyond his ears in length, had white

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stubble on his face, and specifically told defendant three times that Jennings Terrace was “an old-

folks home.”

¶ 79 Simply put, the resolution of defendant’s guilt or innocence depended on the credibility of

the witnesses and the weight given their testimony. Collins, 106 Ill. 2d at 261. We will not

substitute our judgment for the trier of fact on issues regarding the weight of the evidence or the

credibility of the witnesses. Siguenza-Brito, 235 Ill. 2d at 224-25.

¶ 80 “Knowledge” under the plain language of the statute can be based on circumstantial

evidence or direct evidence. Jasoni, 2012 IL App (2d) 110217, ¶ 20. Indeed, direct evidence of

the victim’s age is not required under the plain language of the statute. To hold otherwise would

not only go against the plain language of the statute but also would lead to absurd results in

contravention of legislative intent, namely, to protect individuals of 60 years of age or older. “The

process of statutory interpretation should not be divorced from *** the ‘real-world activity’

[citation] that the statute is intended to regulate.” People v. Hanna, 207 Ill. 2d 486, 502 (2003).

“Further, in determining the intent of the legislature, a court ‘may properly consider not only the

language of the statute, but also the reason and necessity for the law, the evils sought to be

remedied, and the purpose to be achieved,’ ” including the application of simple common sense.

(Emphasis in original.) Id. (quoting In re Detention of Lieberman, 201 Ill. 2d 300, 308 (2002),

citing People v. Pullen, 192 Ill. 2d 36, 42 (2000)); see United States v. Kirby, 74 U.S. 482, 487

(1868) (discussing application of common sense when the plain language of a law was not

followed because doing so produced an absurd result).

¶ 81 In this case, applying defendant’s interpretation of section 12-3.05(d)(1), an elderly battery

victim would need to display some form of age-related identification to his or her attacker prior to

being assaulted or mention his or her age, even if the outwardly elderly appearing victim happened

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to be standing directly in front of a nursing home at the time of the battery. Defendant himself told

Detective Moore that “he doesn’t rob old people,” which, under the interpretation defendant seeks,

would mean that a true admission for aggravated battery under section 12-3.05(d)(1) instead

required him to state he “doesn’t rob a person 60 years of age or older.” This absurd interpretation

of the statute is impractical and inconsistent with the commonsense purpose of the statute—to

protect elderly citizens in this State. Here, the jury viewed and heard circumstantial evidence

establishing that defendant knew he assaulted an individual at least 60 years of age—including

photographs of the location and of Manella from the date of the assault—and heard pertinent

testimony that resulted in defendant’s conviction of aggravated battery under section 12-

3.05(d)(1). In sum, we hold that there was sufficient evidence for the trier of fact to find that

defendant knew Manella was 60 years of age or older at the time of the battery. After viewing the

evidence in the light most favorable to the State, we find that the trier of fact could have found the

essential elements of section 12-3.05(d)(1) beyond a reasonable doubt.

¶ 82 We must also address the dissent’s central theme—that one cannot judge a book by its

cover—which relies on a misdefinition of “knowledge” along with the long-defunct requirement

that every hypothesis consistent with innocence must be excluded before circumstantial evidence

will be deemed sufficient to support a guilty verdict. Specifically, the dissent distorts the definition

of knowledge by stating that the plain language of the statute requires that “defendant actually

knew his victim was aged 60 or older.” Infra ¶ 136. As our supreme court recently explained,

“knowledge of a material fact includes awareness of the substantial probability that the fact exists.”

Leib, 2022 IL 126645, ¶ 37. If there is circumstantial evidence in the record from which a

reasonable fact finder could find that defendant had an awareness of the substantial probability

that Manella was age 60 or older, we will not disturb the jury’s verdict. See id. (“if there is

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circumstantial evidence in the record from which a reasonable fact-finder could find that [the]

defendant had an awareness of the substantial probability that the St. Louis Avenue parking lot

was part of the grounds of the Queen of Martyrs Parish school, then we will not disturb the circuit

court’s judgment”). “Knowledge is often proven by circumstantial evidence rather than direct

proof because it is the mental element of an offense and, as such, is rarely proven by direct

evidence.” Id. (citing Jasoni, 2012 IL App (2d) 110217, ¶ 20, citing Faginkrantz, 21 Ill. 2d at 80).

We do not require that a defendant make an express admission before the trier of fact can conclude

that defendant had knowledge of something. Id.

¶ 83 Next, during closing argument, defense counsel acknowledged that Manella looked “over

60 years old.” The dissent’s book-cover theme fails because the jury “is not required to disregard

inferences which flow normally from the evidence and to search out all possible explanations

consistent with innocence and raise them to a level of reasonable doubt.” People v. Hall, 194 Ill.

2d 305, 332 (2000). Even if there is evidence presented from which conflicting inferences could

be drawn, it “is best left to the trier of fact for proper resolution.” People v. Campbell, 146 Ill. 2d

363, 380 (1992).

¶ 84 Instead of leaving the matter soundly in the jury’s hands for “proper resolution,” the dissent

engages in a piecemeal challenge to the evidence in order to substitute its judgment for that of the

jury. For example, the dissent argues that “[r]eliance on outward appearances to determine age can

be extremely unreliable,” juxtaposing this remark with photographs of actors Wilford Brimley and

Tom Cruise. Arguably, Brimley looked like he was in his 70s, which probably explains why he

was chosen to play the part of someone in his 70s, yet, as the dissent gleefully points out, Brimley

was only 49 years old at the time. Unlike Hollywood make-believe and artifice, Manella was, and

looked like he was, well over 60 years old when defendant attacked him. As the circuit court

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properly found, the jury could reasonably determine that defendant “believed the victim was over

60.” While a book may not be properly judged by its cover, the dissent ignores both proper

definitions and well-established authority in claiming that its view of the evidence should trump

the jury’s reasonable and careful deliberation.

¶ 85 B. Removal of Defendant’s Mask During Closing Argument

¶ 86 Defendant next argues that he was denied a fair trial when the circuit court prohibited him

from removing his mandated protective mask during closing argument. Defendant’s trial was

conducted when COVID-19 restrictions required masks to be worn in court; however, the circuit

judge did not wear a mask during trial and attorneys were allowed to remove their masks while

questioning witnesses. In addition, witnesses also were allowed to testify without wearing masks

so that the jury could “see their face[s], judge their credibility,” and understand them. Defendant

did not testify at trial and the record does not make clear whether he ever removed his mask before

the jury at trial, including during in-court witness identifications.

¶ 87 Defendant argues that the key issue in this case involves identification and that he was

misidentified as the assailant. Manella never identified defendant in the photo lineup after the

assault occurred or in court. He contends that he did not fit Manella’s description and that, during

closing argument, defense counsel requested that defendant lower his mask to contrast defendant’s

appearance in court with the description provided by Manella following the assault. He argues

that, as a matter of first impression, a defendant’s “readily-visible physical appearance as it is at

trial is not ‘evidence’ as it is commonly understood and, therefore, the [court] violated his due

process right to a fair trial in preventing the jury from looking at his unmasked face during closing

argument.” Alternatively, defendant contends that trial counsel was ineffective for failing to enter

his appearance into evidence in a case that rested almost entirely on identification.

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¶ 88 Defendant also acknowledges in his opening brief that this issue was not properly preserved

for appellate review because trial counsel did not object to the circuit court’s denial of his request

to remove his mask during closing argument and did not raise the argument in a posttrial motion.

Defendant argues that this issue should be reviewed under the plain-error doctrine because both of

its prongs were met: the evidence was closely balanced and the error was so serious that it affected

the fairness of the trial and the integrity of the judicial process.

¶ 89 The State agrees that defendant has forfeited review of this issue. Forfeiture aside, the State

contends Manella never provided a description of his attacker’s face and that the jury had the

opportunity to view defendant’s appearance through the evidence admitted at trial. As a result,

defendant could not have been prejudiced by the court’s decision under either prong of the plain-

error doctrine.

¶ 90 The plain-error doctrine is codified in Illinois Supreme Court Rule 615(a) (eff. Jan. 1,

1967), which states, “[p]lain errors or defects affecting substantial rights may be noticed although

they were not brought to the attention of the trial court.” Our supreme court has recognized that

the plain-error doctrine is a “narrow and limited exception to the general waiver rule.” (Internal

quotation marks omitted.) People v. Herron, 215 Ill. 2d 167, 177 (2005). Plain errors may be

noticed when a “clear or obvious error occurred” and “the evidence is so closely balanced that the

error alone threatened to tip the scales of justice against the defendant, regardless of the seriousness

of the error,” or if the error is “so serious that it affected the fairness of the defendant’s trial and

challenged the integrity of the judicial process, regardless of the closeness of the evidence.” People

v. Piatkowski, 225 Ill. 2d 551, 565 (2007). A defendant raising a plain-error argument bears the

burden of persuasion. People v. Thompson, 238 Ill. 2d 598, 613 (2010). The first step in plain-

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error analysis is to determine whether there was error at all. People v. Walker, 232 Ill. 2d 113, 124

(2009); People v. Patterson, 217 Ill. 2d 407, 444 (2005).

¶ 91 A criminal defendant has a right to effective assistance of counsel. U.S. Const., amends.

VI, XIV; Ill. Const. 1970, art. 1, § 8. A claim alleging ineffective assistance of counsel is governed

by the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Veach, 2017

IL 120649, ¶ 29. Under Strickland, a defendant must prove both (1) deficient performance by

counsel and (2) prejudice to the defendant. People v. Colon, 225 Ill. 2d 125, 135 (2007). To satisfy

the first prong, a defendant must demonstrate counsel’s performance was objectively unreasonable

under prevailing norms. People v. Domagala, 2013 IL 113688, ¶ 36. “To establish deficient

performance, the defendant must overcome the strong presumption that counsel’s action or

inaction was the result of sound trial strategy.” Perry, 224 Ill. 2d at 341-42. To satisfy the second

prong, prejudice is demonstrated if there is a “reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S.

at 694. “A reasonable probability that the result would have been different is a probability

sufficient to undermine confidence in the outcome of the proceeding.” Colon, 225 Ill. 2d at 135.

The failure to satisfy either prong of the Strickland test precludes a finding of ineffective assistance

of counsel. Strickland, 466 U.S. at 697. If it is easier to dispose of an ineffective assistance claim

on the ground of lack of sufficient prejudice, that course should be followed. People v. Albanese,

104 Ill. 2d 504, 527 (1984). Finally, counsel will not be deemed ineffective for failing to raise a

meritless issue. People v. Anderson, 2013 IL App (2d) 111183, ¶ 65.

¶ 92 Thus, under either plain error or the ineffective assistance of counsel claim, we must first

consider whether defendant’s proposed issue has merit. See People v. Cosby, 231 Ill. 2d 262, 273

(2008) (on plain-error review, “[a]bsent reversible error, there can be no plain error”); People v.

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Mahaffey, 194 Ill. 2d 154, 173 (2000) (the prejudice prong of the ineffective assistance of counsel

test cannot be established when no error has occurred), overruled on other grounds by People v.

Wrice, 2012 IL 111860. If the issue trial counsel failed to raise lacks merit, there is no basis for

either plain error or an ineffective assistance of counsel claim. See People v. Miller, 2014 IL App

(2d) 120873, ¶ 19 (citing Cosby, 231 Ill. 2d at 273).

¶ 93 With these principles in mind, we turn to whether the circuit court erred when it denied

defense counsel’s request to remove defendant’s mandated protective mask during closing

argument. Before delving into the substantive matter regarding this issue, we first take judicial

notice that, on September 3, 2021, Governor JB Pritzker issued Executive Order 2021-22, which

stated that, beginning on August 30, 2021, “all individuals in Illinois who are age two or over and

able to medically tolerate a face covering (a mask or cloth face covering) shall be required to cover

their nose and mouth with a face covering when in an indoor public place.” Exec. Order No. 2021-

22, 45 Ill. Reg. 11639 (Sept. 3, 2021), https://coronavirus.illinois.gov/ content/dam/soi/en/web/

illinois/documents/government/executive-order-2021-22.pdf [https://perma.cc/TKY6-YV9X];

see People v. Henderson, 171 Ill. 2d 124, 134 (1996) (noting the well-established rule that “courts

may take judicial notice of matters which are commonly known or, if not commonly known, are

readily verifiable from sources of indisputable accuracy”). Further, on September 2, 2021, our

supreme court ordered that “[m]asks or face coverings should be worn at all times while in the

courthouse unless the person is *** otherwise instructed by court personnel.” See Ill. S. Ct., M.R.

30370 (eff. Sept. 2, 2021); see also 19th Judicial Cir. Ct. Adm. Order 21-21 (July 26, 2021) (“All

criminal jury trials shall be governed by Illinois Supreme Court order M.R. 30370 ***.”). The trial

in this case commenced on December 13, 2021, and concluded on December 15, 2021, while the

governor’s executive order and the supreme court’s order remained in effect. See Exec. Order No.

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2021-32, 45 Ill. Reg. 16433 (Dec. 10, 2021), https://coronavirus.illinois.gov/content/ dam/soi/

en/web/illinois/documents/government/executive-order-2021-32.pdf [https://perma.cc/LH2Z-

YDSK]; see also Ill. S. Ct., M.R. 30370 (eff. Sept. 2, 2021); 19th Judicial Cir. Ct. Adm. Order 21-

21 (July 26, 2021).

¶ 94 Although defendant characterizes the denial of his request to remove his mask during

closing argument as having precluded his due process right to a fair trial, defendant instead is

essentially challenging the sufficiency of the evidence regarding his identification when he asserts

the alleged inconsistencies between Manella’s description and his own physical appearance.

However, we find that defendant’s request to remove his mask during closing argument instead of

prior to the close of evidence is crucial to the disposition of this appeal.

¶ 95 Our federal and state constitutions guarantee criminal defendants a meaningful opportunity

to present a complete defense. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. 1, § 8; Holmes

v. South Carolina, 547 U.S. 319, 324 (2006); People v. McCullough, 2015 IL App (2d) 121364,

¶ 104. The sixth amendment to the United States Constitution and article 1, section 8, of the Illinois

Constitution guarantee a defendant the right to confront the witnesses against him or her. U.S.

Const., amend. VI; Ill. Const. 1970, art. 1, § 8. The crux of this right is the ability of a defendant

to cross-examine adversarial witnesses. See People v. Lofton, 194 Ill. 2d 40, 53 (2000) (citing

Maryland v. Craig, 497 U.S. 836, 844 (1990)). The defendant’s due process rights are also

potentially implicated because depriving the defendant of the opportunity to cross-examine the

witnesses against him or her is a denial of the guarantee of due process as provided by the

fourteenth amendment to the United States Constitution. U.S. Const., amend. XIV; see Pointer v.

Texas, 380 U.S. 400, 405 (1965) (“to deprive an accused of the right to cross-examine the witnesses

against him is a denial of the Fourteenth Amendment’s guarantee of due process of law”); People

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v. Triplett, 108 Ill. 2d 463, 474-75 (1985) (the right to confront witnesses “has been made

obligatory on the States through the fourteenth amendment [citation] and includes the right to

cross-examine a witness as to the witness’ biases, interests, or motives to testify”). An individual’s

right to procedural due process entitles him or her to “the opportunity to be heard at a meaningful

time and in a meaningful manner.” In re D.W., 214 Ill. 2d 289, 316 (2005). However, these

constitutional rights do not entitle a defendant to present his or her desired defense, unrebutted, in

whatever fashion the defendant chooses.

¶ 96 “Closing arguments are not evidence, and any argument that is not based in evidence

should be disregarded.” People v. Sanders, 2020 IL App (3d) 180215, ¶ 13. Our supreme court has

held that “[i]t is improper to argue assumptions or facts not based upon the evidence in the record”

and that defense attorneys are expected “to adhere to the same rules we apply to prosecutors.”

People v. Johnson, 208 Ill. 2d 53, 115 (2003). During closing argument, a party is precluded from

attempting to relitigate an issue before the jury. Id. at 116.

¶ 97 Here, defendant had numerous, meaningful opportunities prior to closing argument to

challenge the State’s evidence identifying him as the assailant, during which he could have

requested to remove his mask. For example, when defense counsel cross-examined Manella

regarding defendant’s appearance on the night of the assault, counsel did not ask defendant to

remove his mask so that jurors could compare Manella’s testimony with defendant’s appearance

in court. Indeed, defense counsel did not ask Manella any questions challenging his inability to

positively identify defendant in the photo lineup or comparing defendant’s appearance in the

courtroom with the photographs from the lineup. Jurors viewed published photographs of

defendant from the lineup and the surveillance videos depicting defendant at the gas station shortly

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after the assault. In short, they viewed defendant as he appeared on the date of the assault when he

was not wearing a mask.

¶ 98 Further, defendant also cross-examined Detective Moore to confront the identification

issue, but counsel did not request the removal of defendant’s mask at that point of the trial either.

Finally, defendant did not request to remove his mask during his case-in-chief in an attempt to

challenge whether he was misidentified, nor would doing so have implicated his fifth amendment

protections. See U.S. Const., amend. V (no person shall be compelled to testify against himself in

a criminal case); Ill. Const. 1970, art. I, § 10 (same).

¶ 99 In this case, defendant’s trial provided him with the necessary due process to contest his

identification by means of removing his mask, but he chose not to request to do so until after the

close of evidence. Indeed, defendant argues in his opening brief that “counsel should have been

able to request the jury to look at [defendant’s] physical appearance as it was during the trial in

order to argue that [he] was not guilty.” (Emphasis added.) Defendant was permitted to cross-

examine the witnesses fully as to the accuracy of their identifications. If identification was indeed

the key issue in this case as defendant asserts, the trial provided many meaningful opportunities to

contest that identification prior to the close of evidence. The jury was not precluded from viewing

defendant’s appearance as defendant contends. It was the jury’s responsibility to weigh the

witnesses’ credibility in light of any contradictory evidence or challenges to their credibility,

including the identification of defendant as the offender. People v. Gray, 2017 IL 120958, ¶¶ 35-

36. Instead, defendant simply failed to request the removal of his mask before the close of evidence

at trial, when, as discussed in detail above, it would have been appropriate for him to challenge the

evidence of his identification.

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¶ 100 Defendant now seeks to argue his “novel” theory that his physical appearance was not

“evidence,” to circumvent the rule that closing argument is not evidence. The circuit court

specifically instructed the jury that “[n]either opening statements nor closing arguments are

evidence, and any statement or argument made by the attorneys which are not based on the

evidence should be disregarded.” The jury had the opportunity to consider the evidence and weigh

the identification testimony, including Manella’s opportunity to view the offender at the time of

the offense, his degree of attention at the time of the offense, and his description of the offender.

In short, defendant improperly attempted to present evidence during closing argument when

evidence was no longer supposed to be presented and could not be considered by the jury. We

reject his argument that his “readily-visible physical appearance” at trial should not be considered

“evidence” during closing, because he was clearly attempting to compare his appearance at trial

with evidence that had already been presented, namely, Manella’s description of the offender.

¶ 101 Further, defendant cites extrajurisdictional cases in support of his argument, all of which

involved trials where juries were afforded the opportunity to compare the appearance of the

offender at the time of the offense to that of the defendant in court prior to the close of evidence. 3

See, e.g., United States v. Owens, 445 F. App’x 209, 216 (11th Cir. 2011) (finding the jury had the

opportunity to view videos and screenshots of the offender during trial and, on a sufficiency of the

evidence argument, the defendant failed to show that “no reasonable juror could have concluded

that he was [the offender]”); State v. Orr, No. M2015-00690-CCA-R3-CD, 2016 WL 1403982

(Tenn. Crim. App. 2016) (holding the jury had sufficient corroborating evidence to identify the

3 This court is not bound by federal or out-of-state decisions other than, in appropriate cases,

those of the United States Supreme Court. People v. Fern, 240 Ill. App. 3d 1031, 1039-40 (1993).

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defendant as the offender when they observed the appearance of the offender in the video and

compared it to the witness’s description and the in-court appearance of the defendant); State v.

Percy, 48,922, p. 6-7 (La. App. 2 Cir. 4/9/14); 137 So. 3d 184, 188 (La. Ct. App. 2014) (concluding

that the State proved the defendant’s identity as the offender beyond a reasonable doubt by

introducing two color photographs of the offender’s face taken from a surveillance video, which

were corroborated by a witness, and the defendant’s presence at trial, which afforded the jury an

opportunity to compare the appearance of the person in the photographs to that of the defendant).

As in these extrajurisdictional cases, defendant was provided with meaningful opportunities to

confront any discrepancies between his appearance on the night of the offense and his appearance

in court. It was within the province of the jury to decide whether the offender portrayed in the

surveillance video and described by Manella was the same individual. We will not disturb the

jury’s decision. Gray, 2017 IL 120958, ¶¶ 35-36 (“A conviction will not be reversed simply

because the evidence is contradictory or because the defendant claims that a witness was not

credible.” (citing Siguenza-Brito, 235 Ill. 2d at 228)).

¶ 102 Likewise, People v. Smith, 256 Ill. App. 3d 610 (1994) (Raymond Smith), another case

upon which defendant relies, is inapplicable, as it involves the issue of whether the State argued

improper hearsay testimony during closing argument, which is not at issue in this case. Defendant

correctly points out that, in Raymond Smith, there were significant discrepancies between the

victims’ descriptions of the offender shortly after the robbery in comparison to the defendant’s

physical appearance at trial. However, the Raymond Smith court noted these discrepancies in dicta

only to point out that the State’s evidence against the defendant was not as overwhelming as the

State had argued. See id. at 616 (“We mention [the discrepancies] only to illustrate that the

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evidence of defendant’s guilt was not as overwhelming as the State suggests.”). Defendant’s

reliance upon Raymond Smith here is unavailing.

¶ 103 In sum, we reject defendant’s argument and find that the circuit court did not err when it

denied defendant’s request to remove his mask during closing argument. Because we find no error

and no due process violation, we need not address defendant’s plain-error argument or ineffective

assistance of counsel claim based on those grounds. See People v. Johnson, 218 Ill. 2d 125, 139

(2005) (when no error occurs, there can be no plain error and counsel cannot be ineffective for

failing to raise the issue).

¶ 104 C. Pretrial Identification Procedures

¶ 105 Finally, defendant argues that the pretrial identification procedures used in this case were

so fundamentally unfair that he was deprived of a fair trial. Defendant acknowledges in his opening

brief that “some of the lineup was in compliance with the statute as it was given by an independent

administrator and was video recorded.” Defendant claims that, after Detective Koenings declared

the photo lineup complete and turned off the video recording, Detective Moore continued the

lineup “behind closed doors” with no audio or video recording. Defendant argues that Detective

Moore’s testimony regarding the unrecorded portions of the lineup directly contradicted the

recorded portions of the lineup to the extent that Manella could no longer exclude defendant as the

assailant. Because the continuation of the lineup was unrecorded, the record does not reflect what

Detective Moore told Manella in order to convince Manella to change his mind about identifying

defendant in the lineup. Further, defendant argues that the State used Detective Moore’s testimony

during closing argument to mitigate the damage caused by both Manella “clearly and definitively

excluding [defendant] in the recorded lineup” and the fact that he did not fit Manella’s description

of the assailant.

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¶ 106 Defendant acknowledges that defense counsel failed to object to Detective Moore’s

testimony and that this issue is not preserved for review. Defendant nevertheless argues that

Detective Moore’s testimony regarding the unrecorded continuation of the lineup was so egregious

that this court should consider this issue under either plain error or as an ineffective assistance of

counsel claim.

¶ 107 The State responds that defendant mischaracterizes the events surrounding the photo lineup

and the evidence derived therefrom. The State contends that the evidence at trial showed defendant

wore a hat and a “hoodie” during the attack and broke Manella’s glasses, making the identification

process at the police station more difficult for Manella. The State argues that this is not a case of

improper identification, because no positive identification occurred. During closing argument, the

State told the jury that Manella made no specific identification and that they had to look to other

evidence to infer that defendant was the perpetrator. Contrary to defendant’s assertion, Manella

did not definitively exclude defendant during the photo lineup and then change his mind abruptly

afterward while speaking with Detective Moore. The State contends that Manella “struggled” with

shifting uncertainties, had difficulty observing the potential suspects in the photo lineup, and did

not identify anyone as the perpetrator. According to the State, Manella’s interactions with

Detective Moore after the photo lineup reflected the same struggles and shifting uncertainties, and

he did not identify anyone as the perpetrator at that point either.

¶ 108 The State further argues that, contrary to defendant’s assertions, Manella’s description of

the perpetrator was absolutely consistent with defendant’s physical appearance, considering his

gender, race, height, and build at the time the offense occurred. The State contends that defendant’s

appearance in the surveillance footage of defendant entering the gas station shortly after the offense

was consistent with Manella’s description of the perpetrator. The State also maintains that the

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surveillance video shows defendant behaving anxiously, “constantly checking the front door for

police as if he had just committed a crime.” The State contends that no error occurred in the

identification procedures and, because the evidence against defendant was overwhelming, he

cannot establish prejudice by the inconclusive result of the photo lineup.

¶ 109 As previously discussed, the first step in plain-error analysis is to determine whether any

error occurred. See Thompson, 238 Ill. 2d at 613. Under either plain error or as an ineffective

assistance of counsel claim, we consider whether this issue has merit. See Cosby, 231 Ill. 2d at

273.

¶ 110 Defendant argues that the pretrial identification procedures were unduly suggestive

because the lead detective continued the lineup procedures after the independent administrator

concluded the lineup and had turned off the audio and video recording. Defendant characterizes

the State’s response in his reply brief, stating, “according to the State, it is permissible to conduct

an inherently coercive lineup procedure so long as it does not lead to a 100% clear-cut

identification.” Defendant emphasizes that Manella specifically excluded him as the perpetrator

during the video-recorded portion of the lineup but that Detective Moore continued the lineup off

camera and Manella changed his mind to the extent he could no longer exclude defendant.

¶ 111 “The defendant bears the burden of proving that a pretrial identification was impermissibly

suggestive.” People v. Ortiz, 2017 IL App (1st) 142559, ¶ 22 (citing People v. Brooks, 187 Ill. 2d

91, 126 (1999)). Illinois courts utilize a two-prong test to determine whether a witness’s

identification was so tainted by suggestive identification procedures that its admission at the

defendant’s trial violated due process. People v. McTush, 81 Ill. 2d 513, 520-21 (1980). Initially,

the court must determine whether the pretrial identification procedures were suggestive, and, if so,

the court must then determine whether the identification testimony was so tainted as to make it

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unreliable. Ortiz, 2017 IL App (1st) 142559, ¶ 22 (citing McTush, 81 Ill. 2d at 520-21). The

defendant must show that “the confrontation was so unnecessarily suggestive and conducive to

irreparable misidentification that [the defendant] was denied due process of law.” People v. Ramos,

339 Ill. App. 3d 891, 897 (2003).

¶ 112 First, we cannot determine whether defendant has established his burden of proving that

the pretrial identification procedures were impermissibly suggestive, because the conversation

between Detective Moore and Manella is dehors the record. Defendant acknowledges that the

photo lineup conducted by Detective Koenings “was in compliance with the statute.” During cross-

examination of Detective Moore, he testified that he prepared the photo lineup viewed by Manella.

Detective Moore stated that he was aware of the statute requiring an independent administrator to

conduct the photo lineup. He understood that an independent administrator is required “because

you don’t want the person doing the lineup to in any way suggest who the suspect may or may not

be.” Detective Moore stated that he spoke to Manella after the photo lineup and that Manella “was

still talking about the lineup and he said he could not rule out Number 5,” the picture of defendant.

Detective Moore testified, “that was just Mr. Manella still speaking about the lineup when I met

with him again.” Detective Moore then wrote in his investigative summary regarding the lineup

that Manella “was not certain about any of them” as possible suspects.

¶ 113 However, the contents of the conversation between Detective Moore and Manella are not

included in the record, other than the detective’s trial testimony. There is no evidence that

Detective Moore suggested or referred to defendant as a suspect during their conversation.

Therefore, the issue of whether Detective Moore’s conduct following the independently

administered photo lineup amounted to an impermissibly suggestive lineup procedure is better

suited for postconviction proceedings, where a more adequate record can be developed. See People

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v. Bew, 228 Ill. 2d 122, 135 (2008) (finding the record on appeal was insufficient to address any

of the defendant’s alternative grounds for suppression and that the defendant instead may raise

those grounds in a postconviction proceeding).

¶ 114 Nevertheless, even if we could determine whether the pretrial identification procedures

were suggestive, defendant’s argument would still fail the second prong of the two-part test,

because Manella never made a positive identification. In this case, there is no basis for finding that

a suggestive pretrial lineup procedure tainted an identification when the witness never made a

positive identification of defendant. The purpose of the prohibition against suggestive pretrial

identification procedures is to guard against positive identifications impelled by an impermissible

and suggestive photograph or photospread. Here, no irreparable misidentification resulted from

Manella’s conversation with Detective Moore following the independently administered photo

lineup. Manella also never made an in-court identification of defendant.

¶ 115 Further, even if, as defendant argues, Detective Moore’s conversation with Manella

following the independently administered photo lineup raised an impermissibly suggestive taint

on the pretrial lineup procedure, the totality of the circumstances establish that the procedure was

not “so impermissibly suggestive as to give rise to a very substantial likelihood of

misidentification.” See Simmons v. United States, 390 U.S. 377, 384 (1968) (finding that “each

case must be considered on its own facts, and that convictions based on eyewitness identification

at trial following a pretrial identification by photograph will be set aside *** only if the

photographic identification procedure was so impermissibly suggestive as to give rise to a very

substantial likelihood of irreparable misidentification”; further, whether or not it was unnecessarily

suggestive depends upon the totality of the circumstances); see also People v. Kubat, 94 Ill. 2d

437, 472 (1983). Indeed, even considering that defendant forfeited this issue on appeal, the

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evidence in the record supports a reasonable inference that Manella had a sufficient opportunity to

observe defendant before he was in police custody. See People v. Frisby, 160 Ill. App. 3d 19, 33

(1987) (citing Neil v. Biggers, 409 U.S. 188 (1972), and People v. Manion, 67 Ill. 2d 564 (1977)).

¶ 116 Generally, taint occurs when the witness is unable to see the assailant during the offense,

followed by a suggestive lineup procedure. That is not what happened in this case.

¶ 117 Here, strong circumstantial evidence corroborated Manella’s less-than-positive

identification of defendant. See People v. Jackson, 2020 IL 124112, ¶¶ 64-75 (circumstantial

evidence is sufficient to support a conviction, even when there are discrepancies and

inconsistencies in the evidence). Manella had a close, unobstructed view of the offender at the time

of the assault and was able to view his assailant prior to getting punched in the face and having his

prescription glasses broken. He also conversed with the offender in close proximity immediately

before the assault, repeatedly asking him whether he was an employee at Jennings Terrace and the

offender responding multiple times, asking “if there was anybody inside.” Indeed, the conversation

between the two individuals progressed long enough that Manella told the offender three separate

times that Jennings Terrace was “an old-folks home” and that he could be arrested for trespassing.

The jury viewed the video recording of the photo lineup and heard Manella struggle to identify the

offender, due to not having his prescription glasses. Illinois courts have long held that minor

discrepancies in the description of the assailant will not defeat a positive identification by an

identifying witness so long as that person had adequate and ample opportunity to make a first-hand

observation. See, e.g., People v. Williams, 118 Ill. 2d 407, 413-14 (1987) (witness’s failure to

mention the defendant’s mustache and facial hair did not render her identification unreliable);

People v. Nims, 156 Ill. App. 3d 115, 121 (1986) (victim’s failure to mention the defendant’s facial

scars did not render her identification unreliable); People v. Bias, 131 Ill. App. 3d 98, 104-05

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(1985) (recognizing that inaccuracies pertaining to the “presence or absence of a beard, mustache,

or tattoo, whether the assailant had missing teeth, and the assailant’s height, weight and

complexion, do not render an identification utterly inadmissible”). Indeed, “ ‘[t]he credibility of

an identification does not rest upon the type of facial description or other physical features which

the complaining witness is able to relate. [Citation.] It depends rather upon whether the witness

had a full and adequate opportunity to observe the defendant.’ ” People v. Robinson, 206 Ill. App.

3d 1046, 1051 (1990) (quoting People v. Witherspoon, 33 Ill. App. 3d 12, 19-20 (1975)). Our

supreme court has recognized that “[i]t has consistently been held that a witness is not expected or

required to distinguish individual and separate features of a suspect in making an identification.”

People v. Slim, 127 Ill. 2d 302, 308-09 (1989).

¶ 118 While these differences in detail are to be considered by the trier of fact, courts have

consistently recognized that even significant inaccuracies are not necessarily dispositive because

witnesses are generally not trained to be careful observers, especially when under assault, as

Manella was here. Indeed, “[c]onsidering that very few persons are trained or keen observers and

considering the stress under which, in criminal cases particularly, impressions of witnesses have

been formed, discrepancies of this character are not uncommon.” Id. at 311 (and cases cited

therein).

¶ 119 Here, although Manella’s credibility may have been affected by his discrepancies, the jury

heard him testify that he conversed with defendant and had a full opportunity to view him at the

illuminated entrance of Jennings Terrace. We find that Manella’s opportunity to view defendant

during the offense and the degree of attention permitted were sufficiently reliable to negate any

alleged suggestiveness on the part of Detective Moore during the photo lineup. It was the

responsibility of the trier of fact to determine the witnesses’ credibility and the weight to be given

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their testimony and to resolve any inconsistencies and conflicts in the evidence. People v.

Sutherland, 223 Ill. 2d 187, 242 (2006); see People v. Herrett, 137 Ill. 2d 195, 204 (1990) (finding

a sufficient opportunity to view the defendant where witness testified that he observed “the

assailant’s face for several seconds when the robber reached down to cover his eyes with duct

tape” and “his face was only two feet from the assailant’s”). We will not substitute our judgment

for that of the trier of fact on these matters. Sutherland, 223 Ill. 2d at 242. We reject defendant’s

argument that the pretrial identification procedures were so fundamentally unfair that he was

deprived of a fair trial.

¶ 120 III. CONCLUSION

¶ 121 Based on the foregoing, we affirm defendant’s conviction of aggravated battery under

section 12-3.05(d)(1) of the Code (720 ILCS 5/12-3.05(d)(1) (West 2020)). The judgment of the

circuit court of Kane County is affirmed.

¶ 122 Affirmed.

¶ 123 JUSTICE KENNEDY, dissenting:

¶ 124 Defendant is clearly the person who battered Manella. His own statements to police

admitted as much. Thus, the issues raised in this appeal surrounding defendant’s identity are

largely beside the point. However, while I agree with the majority on those issues, I do not believe

the circumstantial evidence presented at trial was sufficient to sustain a felony conviction. In

particular, the State failed to prove defendant had knowledge of Manella’s age. The majority

essentially declares that a momentary interaction combined with the use of the term “old” by

defendant and Manella constitute proof beyond a reasonable doubt that defendant knew Manella

was “60 years of age or older” at the time of the offense. I dissent from this holding.

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¶ 125 Since 2006, Illinois law has required the State to prove a defendant’s knowledge of a

victim’s age in cases alleging felony aggravated battery to a person 60 years of age or older. 720

ILCS 5/12-3.05(d)(1) (West 2020); 720 ILCS 5/12-4(b)(1) (West 2006) (renumbered to section

12-3.05 by Pub. Act 96-1551, § 5 (eff. July 1, 2011)). Contrast this requirement with other criminal

statutes that involve the age of a victim as an element of the offense but do not require a defendant

to know the victim’s age, instead enumerating, as one of many “aggravating circumstances [that

may] exist during the commission of the offense,” that “the victim is 60 years of age or older.” See,

e.g., 720 ILCS 5/11-1.30(a)(5) (West 2020) (aggravated criminal sexual assault); id. § 11-

1.60(a)(3) (aggravated criminal sexual abuse). 4 An observer may question the legislature’s wisdom

in adding this scienter requirement only to the aggravated battery statute when it comes to victims

“age 60 or older,” considering that it drastically limited the number of instances in which such a

felony charge can be sustained, but the language of the amended statute is clear and unambiguous:

the State must prove the defendant “[k]nows the individual harmed to be an individual of 60 years

of age or older.” 720 ILCS 5/12-4(b)(10) (West 2006). This quoted language is the entirety of the

2006 amendment, which replaced “[k]nowingly and without legal justification and by any means

causes bodily harm to an individual of 60 years of age or older.” Pub. Act 94-327, § 5 (eff. Jan. 1,

2006) (amending 720 ILCS 5/12-4(b)(10)). According to its proponents, the amendment was

4 This approach is consistent with the strict liability found in other statutes concerning the

age of victims. See, e.g., 720 ILCS 5/11-1.40 (West 2020) (predatory criminal sexual assault of a

child); id. § 11-1.50 (criminal sexual abuse). Other statutes employ a “knows or reasonably should

know” standard (see id. § 11-20.1 (child pornography)) or “knowingly or recklessly” (id. § 12C-

35 (tattooing body of a minor); id. § 12C-40 (piercing body of a minor)).

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intended to expand the application of felony charges to insulting/provoking contact types of battery

to persons aged 60 years and older. 94th Ill. Gen. Assem., House Judiciary II Committee Hearing,

February 18, 2005 (taped debate on 94th Ill. Gen. Assem., House Bill 1106, 2005 Sess.) (in which

a then-state’s attorney testified that the bill “would protect senior citizens as a class from all battery

offenses, not simply batteries which resulted in bodily harm”). But the express language of the bill

also added a new knowledge requirement, replacing the strict liability in the prior version. 5 Id.; see

People v. Jasoni, 2012 IL App (2d) 110217, ¶ 18 (holding that the amended statute “requires a

defendant to know that the victim is 60 years of age or older at the time of the battery”).

¶ 126 While a defendant’s knowledge can certainly be proven by circumstantial evidence, the

State must present sufficient evidence at trial from which a trier of fact may make reasonable

inferences that a defendant had the requisite mens rea to support a felony conviction. 6 In this case,

the evidence was wholly insufficient to prove defendant knew Manella was 60 years of age or

older. The full extent of the evidence presented as to defendant’s knowledge of Manella’s age was

as follows: (1) Manella told his assailant that the building he was trying to enter was “an old-folks

5 Immediately after the motion was unanimously passed by the committee, a member of the

committee noted for the record that “[t]he language [of the amended statute] does call for providing

that you know the individual harmed to be an individual of the age 60 years of age or older.” 94th

Ill. Gen. Assem., House Judiciary II Committee Hearing, February 18, 2005 (taped debate on 94th

Ill. Gen. Assem., House Bill 1106, 2005 Sess.).
6 The majority mischaracterizes this statement as “the long-defunct requirement that every

hypothesis consistent with innocence must be excluded.” Rather, this is merely a sufficiency of

the evidence requirement extant in all criminal cases.

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home,” (2) defendant made an unprompted statement to a detective that “I don’t rob old people,”

(3) a photograph of Manella taken shortly after the battery showed his appearance at the time, and

(4) a photograph of the sign outside the building entrance where the battery occurred was labeled

“Jennings Terrace—South Entrance—Assisted Lifestyle.” Taken in the light most favorable to the

prosecution, these facts are insufficient to directly show or reasonably infer that defendant had

actual knowledge that Manella was 60 years of age or older.

¶ 127 First, the use of the term “old-folks home” is not conclusive evidence, nor even indicative,

of a specific minimum age of the building’s residents. According to Manella’s testimony at trial,

defendant approached the entrance in question at approximately 10:30 p.m., which was a shift

change for employees. In fact, a staff member had just entered that doorway when Manella first

noticed defendant. According to Manella, “the lighting [was] not the greatest.” Seeing defendant

pounding on the doors, Manella approached and asked if he was a new employee. Defendant did

not answer the question but asked Manella instead if there was anybody inside, to which Manella

again asked if he was an employee; this exchange was repeated verbatim. Defendant then asked

Manella, “are you a resident?” to which Manella responded by asking again if defendant was an

employee; this exchange was also repeated. Then, “I finally told him. I said that, you know, this is

an old-folks home and there are nurses and CNAs in there, and if I go inside and tell them that

you’re out here and they call the police and the police catch you out here, you could be arrested

for trespassing.” Defendant again asked if Manella was a resident, and Manella repeated his last

statement. Manella then opened the door to go in, which he did with some difficulty, clarifying,

“because of my disability, my—the weak left leg.” At that point, defendant committed the battery

in question, first by punching Manella in the face. Manella then described multiple blows followed

by defendant removing Manella’s wallet from his back pocket. The entire event, from Manella

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first seeing defendant to the removal of his wallet, 7 took “a few minutes.” Manella never positively

identified defendant. In fact, at a photo lineup, Manella twice excluded defendant as “too old.”

¶ 128 In summary, Manella told defendant it was an “old-folks home” three times and said there

were nurses and CNAs inside, but he offered no other information as to his age or any age

requirement to be a resident. Manella did not know defendant, and, based on the conversation,

defendant clearly did not know Manella nor did he know whether Manella was a resident of the

building. There was no conversation about Manella’s age, Manella never told defendant he was 60

years of age or older, Manella did not tell defendant he was a resident, and the entire incident was

so brief and in such poor lighting conditions that Manella could not positively identify defendant

even though Manella was wearing prescription glasses at the time of the battery.

¶ 129 Thus, the sole piece of evidence from Manella’s testimony that might have any bearing on

what defendant might have known about Manella’s age at the time of the battery was that Manella

informed defendant it was an “old-folks home.” From the term “old-folks home,” the jury was left

to infer (falsely) that only persons aged 60 years and older lived there—and that defendant knew

as much. Furthermore, the jury would also have had to infer that defendant knew Manella was a

resident, despite defendant’s repeated and unanswered questions on that subject. These are exactly

the sort of “pyramided [or] intervening inferences” the court warned against in People v. Smith,

2015 IL App (4th) 131020, ¶ 44 (Lorenzo Smith). The other evidence at trial regarding the age

issue was either not probative or merely a continuation of this same inference stacking.

7 Curiously, while defendant admitted to Detective Moore that he battered Manella and

clearly possessed some contents of Manella’s wallet at the gas station immediately afterward, the

jury returned a verdict of not guilty as to the charge of robbery.

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¶ 130 Regarding the second piece of evidence, the majority places great weight on defendant’s

statement to police that “I don’t rob old people.” But defendant’s statement to Detective Moore

was not in reference or response to any discussion of a number, nor did Detective Moore ask what

age defendant thought Manella was or otherwise inquire further on the topic. Defendant’s use of

the general term “old people” has no more bearing on defendant’s knowledge of Manella’s actual

age than does Manella’s use of the term “old-folks home.”

¶ 131 When a person is described as “old,” to what age does that refer? Webster’s Dictionary

defines the term “old” in numerous ways, including “advanced in years” and “exhibiting the

physical or mental characteristics of age,” among other descriptors. Webster’s Third International

Dictionary 1569 (1986). Missing from the definition of “old” is any specific age or minimum

number of years.

¶ 132 Rather than define a specific age or age threshold, the term “old” merely connotes a

comparison, usually to the age of the person using the term: if a teenager were to describe someone

age 50, they would probably use the term “old,” but a 70-year-old person might describe that same

50-year-old as young. In fact, “[i]n 2016, the Marist Poll asked American adults if they thought a

65-year-old qualified as old. Sixty percent of the youngest respondents—those between 18 and

29—said yes, but that percentage declined the older respondents were; only 16 percent of adults

60 or older made the same judgment.” Joe Pinsker, When Does Someone Become “Old”?, The

Atlantic (January 27, 2020), https://www.theatlantic.com/family/archive/ 2020/01/old-people-

older-elderly-middle-age/605590/ [https://perma.cc/86QY-8LF8]. In fact, AARP (formerly, the

American Association for Retired Persons) is dedicated to the needs of the “50+ population.” See

AARP, https://www.aarp.org/membership/age-requirement/ [https://perma.cc/JXA6-AY3C] (last

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visited Feb. 27, 2024). The use of the term “old people” by defendant does not correlate to a

number, and it simply does not follow that “old” means “60 years of age or older.”

¶ 133 Third, the majority essentially endorses the State’s description of the photograph of

Manella taken shortly after the battery as displaying, in the State’s terms, “the plainly obvious fact

that he was well over 60 based on his physical appearance alone.” But nothing is “plainly obvious”

about the specific age of the victim. To the contrary, while the State points to Manella’s gray hair,

the defense notes that he was not entirely gray, with some brown mixed in. Of course, gray hair is

not the exclusive province of those who have reached age 60. The majority’s description of

Manella’s photograph could easily apply to a person aged in their fifties or even their forties. The

State additionally described Manella as “wearing pajamas,” but the defense points out that he was

dressed in denim pants, a black T-shirt, and leather shoes, and he did not appear prepared to go to

sleep but was outside smoking a cigarette with his wallet in his back pocket. Setting aside for a

moment the fact that being a Jennings Terrace resident does not mean that he was 60 years of age

or older, Manella’s appearance in the photo itself fails to establish his age as 60 or older, much

less defendant’s knowledge thereof.

¶ 134 Reliance on outward appearances to determine age can be extremely unreliable. For

example, in the two photographs immediately below, which one is actually of a man “60 years of

age or older”?

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¶ 135 On the right, Wilford Brimley was only 49 years old when the photograph was taken in

1985 during filming of the movie, Cocoon, in which he portrayed a character in his seventies (who

resided in an “old-folks home”). On the left, Tom Cruise was 61 years old when the photograph

was taken in 2023 while filming Mission: Impossible—Dead Reckoning Part One. Even allowing

for the makeup magic of Hollywood, such visual comparisons make clear that outward appearance

is not a reliable standard upon which to base a felony conviction of a crime that explicitly requires

proof that a defendant knows the specific minimum age of his victim. This is especially true when

the victim was not previously known to the defendant. In this case, it is worth highlighting

Manella’s wildly inaccurate estimate of defendant’s age, describing him as being between 12 and

24 years younger than his actual age at the time.

¶ 136 Estimating a stranger’s age is a fraught exercise even in the best of circumstances. But

these were not the best of circumstances. This was a very brief encounter in dim lighting involving

strangers of different generations and races, which resulted in the victim himself being unable to

identify (or even accurately describe) his attacker. Yet the majority declares that the jury could

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reasonably infer from these circumstances that defendant had enough light, time, and observational

acumen to discern—indeed to actually know beyond a reasonable doubt—that Manella was 60

years of age or older. The statute does not say a defendant “should have known” his victim was

aged 60 or older, nor does it say the victim may “appear” to be that age. Nonetheless, in affirming

the judgment, the majority opinion effectively reads into the statute’s scienter element on age the

clause “or should have known.” Under its plain language, the statute requires more than evidence

that the defendant described the victim as “old” or knew the victim was a resident of an “old-folks

home.” It requires evidence that the defendant actually knew his victim was aged 60 or older,

which requires much more than what was presented in this case. Under these circumstances, no

rational trier of fact could have found this essential element of the crime beyond a reasonable

doubt. See Lorenzo Smith, 2015 IL App (4th) 131020, ¶ 47.

¶ 137 As to the fourth piece of evidence, the majority describes the building in question as a

“nursing home,” as if that had any significance beyond Manella’s use of the term “old-folks home.”

The term “nursing home” was also used repeatedly by the State at trial and on appeal. The term

was never defined, leaving the jury to falsely infer that a facility alternately described as a “nursing

home,” “sheltered care,” “supported living,” or “assisted lifestyle” must house only residents who

are age 60 or older. However, not only were these terms undefined, but their use in this case was

quite misleading. While Jennings Terrace included a “nursing facility,” that is not where the

battery occurred, nor was it where Manella resided. In fact, Manella testified that the entrance

where the attack took place was the entrance to the “sheltered care” portion of the facility, the side

of the building in which he resided. No definition of “sheltered care” was ever provided to the

jury, even after they inquired of the circuit court during their deliberations, “What is sheltered care

living?”

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¶ 138 If the jury had been instructed or received any evidence as to the definitions of these types

of facilities, it could have drawn no other inference than that the terms were meaningless to prove

Manella’s age, much less defendant’s knowledge thereof. For example, section 10 of the Assisted

Living and Shared Housing Act (Act) (210 ILCS 9/10 (West 2020)) defines an “ ‘[a]ssisted living

establishment’ ” as “a home, building, residence, or any other place where sleeping

accommodations are provided for at least 3 unrelated adults, at least 80% of whom are 55 years of

age or older.” See also 77 Ill. Adm. Code 295.200 (2023). Thus, an individual living in an assisted

living facility can be under the age of 60 (as Manella had been when he first lived at Jennings

Terrace). Indeed, section 75 of the Act, which describes residency requirements, does not list a

required minimum age for residency. See 210 ILCS 9/75 (West 2020). Similarly, the definition of

“facility” under the Nursing Home Care Act (210 ILCS 45/1-113 (West 2020)) does not include

an age threshold, and a “resident” is merely defined as “a person receiving personal or medical

care, including but not limited to mental health treatment, psychiatric rehabilitation, physical

rehabilitation, and assistance with activities of daily living, from a facility” (id. § 1-122). The

Illinois Administrative Code defines “sheltered care” as “a location licensed as a sheltered care

facility under the Nursing Home Care Act.” 77 Ill. Adm. Code 295.200 (2023). The Administrative

Code does not list a minimum age for recipients of such care. The Nursing Home Care Act merely

describes the term “sheltered care” as “maintenance and personal care,” without listing any

minimum age limitation. 210 ILCS 45/1-124 (West 2020). Finally, “assisted lifestyle,” the term

on the sign outside the location of the battery in question, is not defined by statute or regulation,

but appears to be a marketing term.

¶ 139 In short, any description of the facility’s name or category of care at trial was not only

insufficient evidence from which a jury could infer that its residents were necessarily aged 60 or

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older (much less that defendant knew that), but it was actively misleading when used without the

actual definitions of these facilities. Moreover, Manella himself testified that he had been residing

there for 10 years (presumably because of his physical disability). The jury may have missed the

significance of this bit of testimony: Manella was 68 when he testified, meaning that Manella

himself had been admitted as a resident prior to age 60. This further undermines any reliance on

the label of the facility as implying a minimum age of 60. The facility in which Manella lived

clearly accepted residents on the basis of their care needs or disabilities, not their age.

¶ 140 Finally, the majority here emphasizes the “purpose” of the statute, accepting the State’s

argument that the Lorenzo Smith court “re-weighed the evidence” and even “subverted the purpose

of the legislature in enacting the statute.” Of course, this argument completely ignores the purpose

of the legislature’s amendment to the statute, which added the scienter requirement concerning

age. The purpose of the prior strict liability version of the statute was clearly “to protect senior

citizens who were defenseless and often the prey of muggers, and [to provide] that the person who

sought to attack another did so at the risk that his victim would be 60 years old.” (Emphasis added.)

People v. Jordan, 102 Ill. App. 3d 1136, 1139 (1981). The Jordan court reviewed the legislative

history of the pre-2006 version of the statute, comparing the lack of a scienter requirement as to

the victim being age 60 or older to other statutes concerning child victims, in which the prosecution

did not need to prove an offender knew a victim’s age. The court noted that the legislature had

reasoned that proving knowledge of a victim’s age being 60 or older “would be so difficult that

the purpose of the act would be nullified, and they recognized that a person’s age is not so readily

ascertainable as is the status of a person who is a police officer or a fireman.” Id.

¶ 141 Yet, 24 years later, the legislature changed the statute to add the very requirement it had

previously believed was too difficult to prove. Pub. Act 94-327, § 5 (eff. Jan. 1, 2006). This court

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held as much in Jasoni: “we presume that the legislature intended to change the law of aggravated

battery” and the plain language of the amended aggravated battery statute “requires a defendant to

know that the victim is 60 years of age or older at the time of the battery in order to sustain a charge

of aggravated battery under this section.” 2012 IL App (2d) 110217, ¶ 18. The amendment is clear

and unambiguous in requiring such knowledge, obviating any resort by this court to legislative

history, intent, or a perceived original “purpose.”

¶ 142 Rules of statutory construction require that we interpret the language of the statute as

written unless there is some ambiguity in the statute. Solich v. George & Anna Portes Cancer

Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 81 (1994). “The goal of statutory interpretation

is to ascertain and give effect to the legislature’s intent.” Doyle v. Executive Ethics Comm’n, 2021

IL App (2d) 200157, ¶ 23. “The best indicator of the legislature’s intent is the language of the

statute, which should be given its plain and ordinary meaning.” Id. This court cannot depart from

the language of the statute by reading into it exceptions, limitations, or conditions that conflict

with the express intent of the legislature. People v. McClure, 218 Ill. 2d 375, 382 (2006) (citing

People v. Martinez, 184 Ill. 2d 547, 550 (1998)). When courts find statutory language to be plain

and unambiguous, “we may not resort to the legislative history or other aids of statutory

construction.” Policemen’s Benevolent Labor Committee v. City of Sparta, 2020 IL 125508, ¶ 22.

¶ 143 Since the 2006 amendment took effect, appellate courts have published only two opinions

interpreting this statute. In Jasoni, 2012 IL App (2d) 110217, ¶¶ 18, 22, this court not only held

that the statute “requires a defendant to know that the victim is 60 years of age or older at the time

of the battery,” but also held that sufficient circumstantial evidence was presented in the case. We

reviewed testimony that the defendant was the victim’s son-in-law and had known the victim for

20 years at the time of the battery, the defendant’s son was the victim’s grandson, and the victim

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frequently visited the defendant’s home. Id. ¶ 22. Because of the “close familial relationship” over

“such a long period of time,” this court held that “the trier of fact could have quite reasonably

rejected the notion that the defendant did not know of [the victim]’s age.” Id. Furthermore,

evidence at trial showed the defendant paid the victim rent, shared an apartment with the victim’s

son, and “interacted with [the victim] regularly.” Id. ¶¶ 22-24. We added, “most people have a

general idea of the ages of their family members” and found that sufficient evidence had been

presented to find that the defendant actually knew that his ex-mother-in-law, the grandmother to

his son, was 60 years of age or older at the time of the battery. Id. ¶ 25.

¶ 144 In this case, nowhere near the amount or quality of the evidence in Jasoni was presented

to the jury on the question of defendant’s knowledge of Manella’s age at the time of the offense.

The facts here stand in stark contrast to those in Jasoni: a momentary encounter between strangers

in poor lighting where Manella inaccurately described defendant (including underestimating his

age range by more than one to two decades) and defendant described Manella using merely the

general and relative descriptor “old.”

¶ 145 The other published case on the amended aggravated battery statute is also instructive.

Three years after our decision in Jasoni, the Fourth District, in Lorenzo Smith, 2015 IL App (4th)

131020, held that evidence of a “long-term friendship and status as roommates at the time the

offense was committed” was not sufficient to prove defendant knew that the victim was aged 60

or older. Id. ¶ 45. The victim had suffered a stroke and had physical disabilities and memory

limitations. Id. ¶ 11, 16. The defendant was described as the victim’s “caregiver” and roommate

at two locations for a period of over a month, the defendant “filled out joint rental applications”

with the victim, and the victim entrusted the defendant with “his debit card PIN.” Id. ¶ 45. Despite

this “trusting relationship,” there was no evidence that the “defendant was aware of [the victim]’s

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age.” Id. ¶ 45-46. There was no testimony that the victim “told defendant his age or birth date, and

during the brief period in which [the victim] and defendant were roommates, [the victim] did not

celebrate a birthday.” Id. ¶ 46. Despite the relationship, the court noted that there was no evidence

the defendant ever saw the victim’s rental application, medical records, or any other document

showing the victim’s age or birth date. Id. The court reversed the jury’s verdict on aggravated

battery and reduced the conviction to the lesser included offense of battery. Id. ¶ 48.

¶ 146 The evidence in this case is far weaker than the evidence in either Jasoni or Lorenzo Smith.

Although it is not this court’s duty to reweigh the evidence, the jury here notably never heard any

evidence, circumstantial or direct, that defendant had actual knowledge of Manella’s age.

Defendant and Manella had never met each other before and had no prior relationship, unlike the

defendants and victims in Lorenzo Smith (caregiver relationship of more than one month) and

Jasoni (familial relationship of more than 20 years). Moreover, the “old” victim in this momentary

encounter in poor lighting was not even able to identify his “too old” assailant, highlighting the

absurdity of inferring that this was enough information to decide beyond a reasonable doubt that

defendant had actual knowledge that Manella was aged 60 or older.

¶ 147 The State needed to prove more than the fact that Manella was aged 60 or older at the time

of the assault. Under the amended version of section 12-3.05(d)(1), the State was required to prove

beyond a reasonable doubt that defendant actually knew Manella was aged 60 or older at that time.

See id. ¶ 47. As in Lorenzo Smith, the State here simply “pyramided intervening inferences in an

attempt to create evidence not otherwise contained in the record.” Id. ¶ 46. Indeed, during closing

argument, the prosecutor stated to the jury, “His name is Kevin Cooper. It’s not Nostradamus,

okay? He’s not a psychic. He cannot just guess the details of what actually happened.” Although

he was addressing defendant’s descriptions of the incident to Detective Moore, this commonsense

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statement also underscores the fact that defendant could not simply guess Manella’s age by

momentary appearances alone.

¶ 148 Defendant conceded in his opening brief that he committed the lesser included offense of

battery, and a review of the record demonstrates that the evidence was clearly sufficient to support

a conviction of battery. Accordingly, pursuant to this court’s powers under Illinois Supreme Court

Rule 615(b)(3) (eff. Jan. 1, 1967), I would vacate defendant’s conviction of and sentence for

aggravated battery, enter a conviction of the misdemeanor offense of battery (720 ILCS 5/12-3(a)

(West 2020)), and remand for sentencing on the battery conviction (id. § 12-3(b)). Lorenzo Smith,

2015 IL App (4th) 131020, ¶ 48; see People v. Williams, 267 Ill. App. 3d 870, 879-80 (1994)

(finding that the evidence was insufficient to prove the only charged offense, but the defendant

could be convicted of an offense not expressly charged by the charging instrument if the offense

was a lesser included offense, and, because the evidence proved the lesser charge, the court was

authorized under Rule 615(b)(3) to reduce the degree of the offense).

¶ 149 While the legislature has a legitimate, even compelling, interest in ensuring the safety of

the elderly citizens of this State, the General Assembly in 2006 clearly added to the requirements

for a felony conviction of aggravated battery to a person 60 years of age or older. In the ensuing

17 years, the legislature has amended section 12-3.05 approximately two dozen times. It has not

changed the scienter requirement of victims being aged 60 and older, despite two published

appellate court opinions confirming the increased difficulty in sustaining such convictions. The

legislature is free to change this standard for future offenses, but this court cannot, “ ‘under the

guise of statutory interpretation, *** “correct” an apparent legislative oversight’ ” by interpreting

a statute “ ‘in a manner inconsistent with its clear and unambiguous language.’ ” McClure, 218 Ill.

2d at 388 (quoting People v. Pullen, 192 Ill. 2d 36, 42 (2000)).

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¶ 150 For the foregoing reasons, I respectfully dissent.

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People v. Cooper, 2024 IL App (2d) 220158

Decision Under Review: Appeal from the Circuit Court of Kane County, No. 20-CF-2152;
the Hon. Donald Tegeler, Judge, presiding.

Attorneys James E. Chadd, Thomas A. Lilien, and Andrew Thomas Moore,
for of State Appellate Defender’s Office, of Elgin, for appellant.
Appellant:

Attorneys Jamie L. Mosser, State’s Attorney, of St. Charles (Patrick Delfino,
for Edward R. Psenicka, and John G. Barrett, of State’s Attorneys
Appellee: Appellate Prosecutor’s Office, of counsel), for the People.

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