                            No. 3--05--0747

Filed September 12, 2007.
                                IN THE

                     APPELLATE COURT OF ILLINOIS

                            THIRD DISTRICT

                              A.D., 2007


THE PEOPLE OF THE STATE OF      )     Appeal from the Circuit Court
ILLINOIS,                       )     of the Ninth Judicial Circuit,
                                )     Knox County, Illinois
     Plaintiff-Appellee,        )
                                )
          v.                    )     No.     05--CF--249
                                )
JANET L. TURNER,                )
                                )     Honorable James B. Stewart,
     Defendant-Appellant.       )     Judge, Presiding.




     JUSTICE SCHMIDT delivered the opinion of the court:

     The State charged defendant, Janet L. Turner, with theft.

Following a bench trial, the circuit court of Knox County

convicted defendant and sentenced her to 2 days' imprisonment

with credit for time spent in presentence incarceration and 24

months' probation and assessed a $200 fine, costs, and penalties.

Defendant appeals.   For the reasons below, we affirm.

                              BACKGROUND

     The State filed an information charging defendant with theft

by knowingly exerting unauthorized control over the property of

Charles Vandell, consisting of two bundles of roofing shingles

valued at $300, with the intent to permanently deprive Vandell of
the use of the property.   At defendant's arraignment, defense

counsel entered a plea of not guilty on the defendant's behalf

and waived defendant's right to a trial by jury.   Defendant was

present during the arraignment, expressed oral assent to the

bench trial date, and executed a written jury trial waiver.

     On the day of trial, defense counsel moved for a continuance

because he had a potential conflict of interest in calling the

codefendant, Kevin Smith, to testify.   Defense counsel had

represented Smith at Smith's plea hearing 30 to 60 days prior to

trial.   Smith pled guilty to charges stemming from the theft of

the shingles.   The trial court denied defendant's motion to

continue, finding that a conflict of interest did not exist and

stating that, if necessary, it would admonish Smith of his right

to silence regarding other unindicted offenses allegedly

committed with a different person.   The cause proceeded to trial;

defendant did not call Smith to testify.

     Dorothy Jones testified on behalf of the State.   Dorothy

lives next door to Vandell, and on the afternoon in question, she

observed a vehicle parked on Vandell's lot near several bundles

of roofing shingles.   Dorothy saw defendant standing by the car

and saw a man, Kevin Smith, picking up bundles of shingles and

putting them into the backseat of the car.   Dorothy testified

that defendant conversed with Smith and pointed to shingles.

Dorothy further testified that when defendant saw Dorothy, she


                                 2
got back into the front passenger seat of the car.    Dorothy told

her husband that someone was taking the neighbor's shingles.

Wilbur Jones, Dorothy's husband, got up and yelled "Hey" at Smith

three or four times before Smith got into the car, backed up, and

sped off, running a stop sign.    Wilbur did not see the defendant,

but heard the passenger car door slam.    Dorothy recorded the

vehicle's license plate number and contacted the police.

     During the course of their investigation, the police

received a report from Lowe's regarding a "suspicious" return of

two bundles of shingles to the store.    Police recovered the

shingles from Lowe's and contacted Vandell.    Smith and defendant

were together at Lowe's when police arrived in response to the

report.    Vandell went to his lot and noticed that two bundles of

shingles were missing and, at the police station, identified the

shingles recovered from Lowe's.   Vandell testified that each

bundle weighs approximately 80 pounds.    The police photographed

the shingles and then returned them to Vandell.    The police

transported Smith and defendant to the police station.    Smith

spoke to police, but defendant did not.

     Following trial, the trial court found defendant guilty of

theft.    This appeal followed.

                              ANALYSIS

     Four issues are raised on appeal: the sufficiency of the

evidence to convict defendant beyond a reasonable doubt, the


                                  3
defense counsel's conflict of interest in representing the

defendant and codefendant, the knowing waiver of the right to a

trial by jury, and defendant's entitlement to a $10 credit for

two days spent in presentence incarceration.

                   A. Sufficiency of the Evidence

     In a challenge to the sufficiency of the evidence, the court

will view the evidence "'in the light most favorable to the

prosecution'" and determine whether "'any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt.'"    (Emphasis in original.)   People v. Collins,

106 Ill. 2d 237, 261, 478 N.E.2d 267, 277 (1985), quoting Jackson

v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct.

2781, 2789 (1979).    The evidence must be "so improbable or

unsatisfactory that it creates a reasonable doubt of the

defendant's guilt" to merit reversal.    Collins, 106 Ill. 2d at

261, 478 N.E.2d at 277.

     Circumstantial evidence that proves the elements of the

crime beyond a reasonable doubt "is sufficient to sustain a

conviction."   People v. Pollock, 202 Ill. 2d 189, 217, 780 N.E.2d

669, 685 (2002).   The trier of fact can make reasonable

inferences and is not required to prove "each link in the chain

of circumstances" beyond a reasonable doubt or "search out all

possible explanations consistent with innocence."    People v.

Campbell, 146 Ill. 2d 363, 380, 586 N.E.2d 1261, 1268 (1992).


                                  4
The court "will not substitute its judgment" for determinations

made by the trier of fact regarding the weight of evidence and

credibility of witnesses (People v. Young, 128 Ill. 2d 1, 51, 538

N.E.2d 461, 473 (1989)), but will not accept eyewitness testimony

where "no reasonable person could accept it beyond a reasonable

doubt."   People v. Cunningham, 212 Ill. 2d 274, 280, 818 N.E.2d

304, 308 (2004).

     A defendant is accountable for the conduct of a codefendant

when "[e]ither before or during the commission of an offense, and

with the intent to promote or facilitate such commission, he

solicits, aids, abets, agrees or attempts to aid, such other

person in the planning or commission of the offense."   720 ILCS

5/5--2(c) (West 2004).   Mere presence at the scene of the crime

with knowledge of its commission alone does not establish

accountability, but active participation is not required to

render a defendant accountable for the acts of another.     People

v. Reid, 136 Ill. 2d 27, 61, 554 N.E.2d 174, 190 (1990).

     A defendant need not act affirmatively if there is a "common

criminal plan or purpose."   People v. Taylor, 164 Ill. 2d 131,

140-41, 646 N.E.2d 567, 571 (1995).   A common criminal plan or

design can be inferred from the circumstances, and a defendant

need not express "[w]ords of agreement" to be held accountable

for a codefendant's criminal acts.    Taylor, 164 Ill. 2d at 141,

646 N.E.2d at 571.   In Taylor, our supreme court identified some


                                 5
circumstances that may be considered by the trier of fact in

determining defendant's legal accountability.   These factors

include: (1) presence at the scene without disapproval, (2)

"flight from the scene," (3) "fail[ure] to report the crime," (4)

close affiliation with the codefendant afterward, (5) sharing the

proceeds of the criminal act, and (6) destroying or disposing of

evidence.   Taylor, 164 Ill. 2d at 141, 646 N.E.2d at 571.    There

is no indication in Taylor that the list of factors or

circumstances was meant to be exhaustive.

     Accompanying the codefendant to the scene with knowledge of

the commission of a crime with any affirmative contact between

the defendant and the codefendant indicates a shared criminal

purpose. Compare People v. Houston, 258 Ill. App. 3d 364, 368,

629 N.E.2d 774, 778 (1994) (finding a common criminal design that

defendant accompanied the codefendant to the scene of the crime,

did not attempt to prevent the crime, and alerted the codefendant

of a fleeing victim), with People v. Perez, 189 Ill. 2d 254, 268,

725 N.E.2d 1258, 1266 (2000) (finding no shared criminal purpose

because defendant did not appear at the scene with the

codefendants, joined the codefendants to pay an unrelated

monetary debt, and lacked knowledge regarding the circumstances

of the ongoing confrontation).

     Defendant relies on People v. Ceasar, 231 Ill. App. 3d 54,

596 N.E.2d 89 (1992), and People v. Trapps, 22 Ill. App. 3d 1029,


                                 6
318 N.E.2d 108 (1974), to support her argument that the evidence

was insufficient to convict.   Unlike in Ceasar or Trapps, there

is no dispute that defendant accompanied the codefendant to the

scene, and it was reasonable to infer that she not only had

knowledge of the criminal purpose, but affirmatively acted to

support that purpose by conversing with Smith during the crime

and pointing to bundles of shingles.   People v. Ceasar, 231 Ill.

App. 3d at 56, 596 N.E.2d at 90 (finding that defendant’s

appearance and flight with the codefendant after the commission

of the crime was insufficient to hold him accountable); People v.

Trapps, 22 Ill. App. 3d at 1032-33, 318 N.E.2d at 110-11,

(holding that defendant's presence at the scene of the crime

without any evidence that she knew of the codefendant's actions,

fled with the codefendant, or continued to associate with the

codefendant did not support a finding of a common criminal

design).

     Because it is already established beyond a reasonable doubt

that defendant was at the scene without disapproving of the

commission of the crime, fled with the codefendant, and was with

him at Lowe's afterward, it is not necessary to establish that

she displayed a guilty conscious after she saw the witness,

Dorothy Jones.   The trier of fact can infer from the facts that

when defendant fled with her codefendant, she displayed a guilty

conscious, thus further supporting an inference of a common


                                 7
criminal design.    People v. Taylor, 164 Ill. 2d 131, 142, 646

N.E.2d 567, 572 (1995) (stating defendant's flight without a

determination of defendant's state of mind was sufficient to

support a finding of a common criminal purpose).    However, we

find nothing unreasonable about the trial court's finding that

defendant displayed guilty knowledge by getting back into the car

when she saw the witness so that she could not be seen as well as

when she was standing outside the car.

     The evidence taken in the light most favorable to the

prosecution establishes beyond a reasonable doubt that

defendant's presence at the scene of the crime without

disapproval, flight with the codefendant, failure to report the

crime, and continued association with the codefendant are

sufficient to support an inference of a shared criminal design,

and, therefore, sufficient to convict defendant of theft.

              B. Conflict of Interest of Defense Counsel

     In defendant's second contention on appeal, she argues for

reversal of her conviction and remand for a new trial because her

counsel labored under an impermissible conflict of interest.

     Per se conflicts of interest arise when defense counsel has

a "contemporaneous association with either the prosecution or the

victim" and requires no showing of prejudice to reverse a

conviction.    People v. Spreitzer, 123 Ill. 2d 1, 14, 525 N.E.2d

30, 34-35 (1988).    A per se conflict of interest presents a


                                  8
question of law and we review de novo.       People v. Miller, 199

Ill. 2d 541, 544, 771 N.E.2d 386, 387 (2002).

     Joint representation of defendants does not create a per se

conflict on interest.   Cuyler v. Sullivan, 446 U.S. 335, 348, 64

L. Ed. 2d 333, 347, 100 S. Ct. 1708, 1718 (1980).      If defense

counsel raises a conflict of interest, the trial court must

either appoint new counsel or perform a factual inquiry to

determine if an actual conflict of interest exists.       Holloway v.

Arkansas, 435 U.S. 475, 483-84, 55 L. Ed. 2d 426, 433-34, 98 S.

Ct. 1173, 1178-79 (1978).    If the trial court fails to appoint

new counsel or investigate the potential conflict, reversal is

automatic without a showing of prejudice by the defendant.

Spreitzer, 123 Ill. 2d at 18, 525 N.E.2d at 36; Holloway v.

Arkansas, 435 U.S. at 488, 55 L. Ed. 2d at 436-37, 98 S. Ct. at

1180-81.

     The First District noted that the courts have not defined

under what standard a court reviews the investigation into a

potential conflict of interest.       People v. Moore, 338 Ill. App.

3d 11, 16, 788 N.E.2d 68, 72-73 (2003).      The court found that the

"decision involves the court's need to oversee the courtroom and

maintain the progress of proceedings," therefore holding that the

court would not disturb the trial court's decision "absent an

abuse of that discretion."    Moore, 338 Ill. App. 3d at 16, 78

N.E.2d at 72.   Because defense counsel raised the conflict of


                                  9
interest prior to trial and the trial court inquired into the

nature of the conflict, we will not reverse the conviction unless

the trial court abused its discretion.

     When the interests between codefendants are hostile or

antagonistic, an impermissible conflict of interest arises out of

joint representation that denies a defendant effective counsel.

People v. Echols, 74 Ill. 2d 319, 327, 385 N.E.2d 644, 648

(1978).   When a codefendant testifies against another defendant,

the defenses are antagonistic, causing an impermissible conflict

of interest.   People v. Taylor, 165 Ill. App. 3d 1016, 1021, 520

N.E.2d 907, 912 (1988); People v. Ware, 39 Ill. 2d 66, 67-68, 233

N.E.2d 421, 421-22 (1968).

     When one defendant admits guilt while the other maintains

innocence or when one defendant is allegedly more culpable than

the other, the defenses are not antagonistic.   People v. Drummer,

81 Ill. App. 3d 626, 630, 402 N.E.2d 307, 310 (1980); People v.

Sanders, 209 Ill. App. 3d 366, 375, 568 N.E.2d 200, 205-06

(1991).   A conflict of interest that is "hypothetical or

speculative" does not create a duty that requires the trial court

to appoint new counsel.   People v. Robinson, 79 Ill. 2d 147, 169,

402 N.E.2d 157, 168 (1979); People v. Berland, 74 Ill. 2d 286,

300-01, 385 N.E.2d 649, 656 (1978).

     The attorney-client relationship is not terminated when a

co-defendant has not been sentenced, despite being found or


                                10
pleading guilty prior to the defendant's trial; where such

co-defendant testifies to inculpate the defendant on trial, the

defenses are antagonistic and defense counsel cannot properly

represent one defendant without inculpating or harming the other.

Taylor, 165 Ill. App. 3d at 1021, 520 N.E.2d at 912 (holding

defense counsel labored under a conflict of interest when a

codefendant claimed innocence while claiming the other defendant

was solely responsible for the criminal offenses); Ware, 39 Ill.

2d 66, 67-68, 233 N.E.2d at 422 (holding that defense counsel is

not free to cross-examine and impeach a codefendant testifying

for the State because defense counsel still had to advocate for

the co-defendant during sentencing).

     The codefendant was not testifying for the State and was

sentenced to conditional discharge 30 to 60 days prior to

defendant's trial.   The attorney-client relationship between

defense counsel and codefendant was severed; defense counsel was

free to represent the defendant in a singular capacity.

Defendant further argues that a conflict of interest remained

because defense counsel knew about evidence of similar offenses

allegedly committed by the codefendant and a different person.

     Defense strategies and tactics are influenced by joint

representation, but courts will not find a conflict of interest

that requires speculation as to whether independent counsel would

have pursued a strategy that would help one defendant while


                                11
subjecting the other to self-incrimination.    Echols, 74 Ill. 2d

at 327-28, 385 N.E.2d at 648 (holding that the possibility that

independent counsel would have pursued a strategy that might

exculpate one defendant at the possible expense of the others is

too speculative to constitute impermissible antagonism); People

v. Sanchez, 161 Ill. App. 3d 586, 594-95, 515 N.E.2d 213, 218-19

(1987) (finding no conflict of interest when defense counsel

advised his client and potential but uncharged codefendant not to

testify with potential exculpatory testimony because it would

likely inculpate the witness in the offenses that were the

subject matter of his other client’s trial).

     The fact that defense counsel did not pursue one strategy to

exonerate his client because a risk existed that his former

client would inculpate himself in other uncharged offenses does

not create antagonistic defenses or a conflict of interest.

Sanchez, 161 Ill. App. 3d at 594-95, 515 N.E.2d at 218.   The

attorney-client relationship regarding the offense on trial was

terminated, the codefendant was not yet charged with the new

offenses, the defense counsel had not been appointed or retained

to represent the codefendant, and the trial court stated it would

admonish the codefendant regarding his right against

self-incrimination.   It is just as likely that defense counsel

did not call Smith as a witness because Smith's testimony would

incriminate defendant.     Any conflict of interest was too


                                12
speculative, and the trial court did not abuse its discretion

when it denied defense counsel's motion to withdraw as counsel

for defendant.

                 C. Defendant's Waiver of Jury Trial

     Because a criminal defendant's right to a trial by jury is

fundamental, the issue of whether the defendant knowingly waived

that right is not forfeited by failure to raise it in the trial

court and is "considered under the plain error rule."      People v.

Bracey, 213 Ill. 2d 265, 270, 821 N.E.2d 253, 256 (2004); 134

Ill. 2d R. 615(a).   Because the issue presents a question of law

and the facts are not in dispute, it is reviewed de novo.

Bracey, 213 Ill. 2d at 270, 821 N.E.2d at 256.

     A defendant validly waives her right to a trial by jury only

if she does so "(1) understandingly; and (2) in open court."

People v. Scott, 186 Ill. 2d 283, 285, 710 N.E.2d 833, 834

(1999); 725 ILCS 5/103--6 (West 2004).   The trial court has a

duty to ascertain whether a defendant understandingly waives her

right to a trial by jury, but such a determination depends on the

"facts and circumstances of each particular case."     People v.

Tooles, 177 Ill. 2d 462, 469, 687 N.E.2d 48, 51 (1997).

     Although jury waivers made by defense counsel when the

defendant was not present are invalid (Scott, 186 Ill. 2d at 285,

710 N.E.2d at 834), jury waivers are valid when made in open

court by defense counsel "in defendant's presence where defendant


                                 13
gave no indication of any objection."   People v. Frey, 103 Ill.

2d 327, 332, 469 N.E.2d 195, 197 (1984).   Failure to obtain a

written waiver does not necessitate reversal (People v. Brials,

315 Ill. App. 3d 162, 176, 732 N.E.2d 1109, 1120 (2000)), but the

existence of a written waiver supports a finding of a knowing

waiver when accompanied by defense counsel's request for a bench

trial made in open court and in the defendant's presence.    People

v. Steiger, 208 Ill. App. 3d 979, 982, 567 N.E.2d 660, 662

(1991).

     A defendant is bound by defense counsel's waiver of a trial

by jury when defendant is present in open court and does not

object when the jury waiver is made or is explicitly discussed.

Compare People v. Johnson, 347 Ill. App. 3d 442, 444-45, 807

N.E.2d 693, 696 (2004) (finding a valid waiver made by defense

counsel in a pretrial hearing because defendant did not object

then in subsequent hearings where the waiver was referenced), and

People v. Asselborn, 278 Ill. App. 3d 960, 962-63, 664 N.E.2d

110, 112 (1996) (holding a waiver was valid when the defendant

was present during a discussion regarding the jury waiver between

the trial court and defense counsel immediately prior to trial),

with People v. Watson, 246 Ill. App. 3d 548, 549, 616 N.E.2d 649,

650 (1993) (finding invalid waiver when made outside defendant

presence even though defendant was present during subsequent

rescheduling conferences when the bench trial was discussed).


                               14
     Defendant was present during her arraignment when defense

counsel requested a bench trial and waived her right to a trial

by jury.   Although the trial court did not explicitly discuss the

waiver with the defendant, she did not express any objection and

stated that she understood her presence was required for the

bench trial.   On the same day as her arraignment, defendant

signed a written jury waiver, which further supports that she

knowingly waived her right to a trial by jury.   People v.

Steiger, 208 Ill. App. 3d at 982, 567 N.E.2d at 662.

     Based on the above analysis, we find that defendant

knowingly waived her right to trial by jury.   The defendant's two

prior criminal convictions, along with six prior traffic

convictions, while not necessary to our decision, add additional

support for a finding of a knowing waiver because the convictions

demonstrate a familiarity with the criminal justice system and,

thus, a familiarity with her right to a trial by jury and with

the ramifications of waiving that right.   Tooles, 177 Ill. 2d at

471, 687 N.E.2d at 52-53 (finding defendant's four prior

convictions supported a presumption of familiarity with jury

waivers, thus supporting a finding of a valid waiver); People v.

Johnson, 347 Ill. App. 3d at 445 (finding defendant's prior

traffic and battery convictions demonstrated familiarity with the

criminal justice system and supported a finding of a knowing

waiver).


                                15
              D. Credit for Presentence Incarceration

     A defendant is entitled to a $5-per-day credit for each day

of presentence incarceration.   725 ILCS 5/110--14 (West 2004);

People v. Raya, 250 Ill. App. 3d 795, 802-03, 621 N.E.2d 222,

227-28 (1993); People v. Woodard, 175 Ill. 2d 435, 457-58, 677

N.E.2d 935 (1997).   The State concedes this issue, and defendant

is entitled to a $10 credit on her $200 fine for her two days of

presentence incarceration.

                             CONCLUSION

     For the reasons stated, we affirm the judgment of the

circuit court of Knox County, with instructions to the clerk to

credit the defendant $10 for two days of presentence

incarceration.

     PRESIDING JUSTICE LYTTON specially concurring:

     Section C of the majority's analysis correctly finds that

the defendant waived a trial by jury because she did not object

to her counsel's waiver of jury and request for a bench trial and

because she signed a written jury waiver.

     After resolving the issue however, the majority continues,

saying that, "while not necessary to our decision," defendant's

prior criminal convictions gave her a familiarity with the

criminal justice system and, thus, she knew the import of a jury

waiver.   I do not believe this discussion belongs in the order

for two reasons:   1) it is, as conceded by the majority, dictum;


                                 16
and 2) it is wrong.

     The majority cites two prior criminal convictions and six

prior traffic convictions as evidence of defendant's familiarity

with jury waivers in the criminal justice system.    However, the

two criminal convictions, one of which was a misdemeanor,

occurred in 1995, between ten and eleven years prior to

defendant's guilty plea in this case.    The interval of more than

a decade between those offenses and this case makes whatever

information defendant did retain stale to the point of morbidity.

It is speculative at best to expect a layperson to retain

substantial knowledge of how the criminal justice system works

under these circumstances.    Furthermore, the six minor, fine-

only, traffic tickets were not exactly fresh:    illegal possession

of alcohol in 1980; no insurance and failure to wear a seatbelt

disposed of on the same day in 1998; no insurance in 1998;

speeding in 2000; and an uninsured motor vehicle in 2003.    The

traffic cases, like the criminal convictions, had aged

substantially before defendant encountered the instant case.

     So there we have it.    Defendant's "familiarity" with the

criminal justice system was a ten-year-old felony, a ten-year-old

misdemeanor, and a smattering of traffic tickets handed out over

a period of 23 years.   Taken together, they give the defendant

little basis for knowing the nature and import of a jury waiver.

Thus, I would omit any reference to defendant's supposed


                                 17
knowledge of the criminal justice system.

     JUSTICE McDADE, dissenting:

     The majority has found that a) the evidence was sufficient

to convict defendant of theft beyond a reasonable doubt, b) the

trial court did not abuse its discretion in denying defense

counsel’s motion to withdraw, c) defendant knowingly waived her

right to a jury trial, and d) defendant is entitled to a $10

credit on her $200 fine and for two days’ presentence

incarceration.   Because I disagree with the majority’s first

finding and would thus reverse defendant’s conviction outright, I

dissent.

     The majority concludes that the trier of fact could

reasonably infer that defendant had knowledge of the criminal

purpose and acted affirmatively to support that purpose by

conversing with Smith during the crime and pointing to bundles of

shingles.   Slip op. at 6.   "A reasonable inference within the

purview of the law must have a chain of factual evidentiary

antecedents."    People v. Davis, 278 Ill. App. 3d 532, 540, 663

N.E.2d 39, 44 (1996).   See also United States v. Jones, 371 F.3d

363, 366 (7th Cir. 2004) ("although a jury may infer facts from

other facts derived by inference, ‘each link in the chain of

inferences must be sufficiently strong to avoid a lapse into

speculation.’”   United States v. Peters, 277 F.3d 963, 967 (7th

Cir. 2002) (quoting Piakowski v. Bett, 256 F.3d 687, 693 (7th


                                 18
Cir. 2001))).   Accord United States v. Cruz, 285 F.3d 692, 699

(8th Cir. 2002); United States v. Rahseparian, 231 F.3d 1257,

1262 (10th Cir. 2000); United States v. D'Amato, 39 F.3d 1249,

1256 (2d Cir. 1994).

     “Although a jury may infer facts from other facts that are

established by inference, each link in the chain of inferences

must be sufficiently strong to avoid a lapse into speculation.

Bett, 256 F.3d 687, 693 (2001), citing United States v. An

Article of Device, 731 F.2d 1253, 1262 (7th Cir. 1984), Yelk v.

Seefeldt, 35 Wis. 2d 271, 151 N.W.2d 4, 9 (Wis. 1967).   In this

case, the inferences the majority believes are reasonable are not

supported by a chain of factual evidentiary antecedents.     The

majority, in fact, cites no facts in support of the inferences

upon which defendant’s conviction is based.   By example, while

the evidence may establish that defendant conversed with Smith

during the commission of the offense, nothing of record supports

an inference that in doing so defendant was supporting Smith’s

criminal purpose.   It is just as reasonable to infer that

defendant was attempting to dissuade Smith.   I recognize that the

trier of fact is not required to “search out all possible

explanations consistent with innocence” (slip op. at 4, citing

People v. Campbell, 146 Ill. App. 3d 363, 380, 586 N.E.2d 1261,

1268 (1992)), and that there is also no evidence to support an

inference that defendant was attempting to stop Smith.   However,


                                19
while I acknowledge that my inference lacks specific evidentiary

support, the majority does not, and to sustain a criminal

conviction, the inference must be supported by fact.    This is

true because “[i]f an alleged inference does not have a chain of

factual evidentiary antecedents, then within the purview of the

law it is not a reasonable inference but is instead mere

speculation."   Davis, 278 Ill. App. 3d at 540, 663 N.E.2d at 44.

     Nor do I believe that defendant’s merely accompanying Smith

to the scene establishes, factually, that she assented to a

common criminal design; and, therefore, it is not a fact in

support of the proffered inference that she “affirmatively acted

to support that purpose by conversing with Smith *** and pointing

to bundles of shingles.”   Slip op. at 6.   It is nothing more than

an unsupported conclusion.

     In People v. Marx, 291 Ill. 40, 125 N.E. 719 (1919), the

State charged the defendant with rape.   The co-defendants offered

the victim a ride home from a cabaret where she worked to her

residence in a hotel.   The victim testified that "after they had

gone a short distance in the automobile she was attacked, and

[the passengers] all had sexual intercourse with her forcibly and

against her will, on the back seat of the car."    Marx, 291 Ill.

at 42, 125 N.E. at 720.    The victim also testified that they rode

around the streets of the city for an hour and a half or two

hours.   The supreme court held that “[t]he presence of a


                                 20
defendant at the commission of the crime, without disapproving or

opposing it, is evidence which, together with all other

circumstances, may present a jury issue as to his

responsibility.”   (Emphasis added.)    Marx, 291 Ill. at 48, 125

N.E. at 722.

     The Marx court began by noting that "[i]t cannot be

contended *** that mere presence at the commission of a criminal

act renders a person liable as a participator therein.     If he is

only a spectator, innocent of any unlawful intent and does no act

to countenance or approve the acts of those who are actors, he is

not criminally responsible because he happens to be a looker-on

and does not use active endeavors to prevent the commission of

the unlawful acts."    (Emphasis added.)    Marx, 291 Ill. at 48, 125

N.E. at 722.   The court found that the evidence established

clearly that Marx, who was driving the automobile, did not in any

way take part actively in the holding of the victim at the time

when she charges the acts were being forcibly committed.

     The evidence in Marx established      more than the defendant’s

mere presence when the crime was committed.     The facts also

established that he drove the car several miles out of the way in

Chicago while going from the cabaret to the hotel.     The court

used that fact to infer that "he was actually encouraging and

approving what was being done in the car."      Marx, 291 Ill. at 48-

49, 125 N.E. at 722.


                                 21
        In this case, the majority does not cite any "other

circumstances" to support its conclusion that defendant assented

to the commission of the crime by accompanying Smith to the scene

because none exist of record in this case.     Here, the only

evidentiary facts cited are that defendant was at the scene,

"fled" with Smith, and was with him at Lowe’s afterward.        There

is no evidence of record of whether Smith even told defendant

that he was stealing the shingles.     The majority may claim that

"it is *** established beyond a reasonable doubt that defendant

was at the scene without disapproving of the commission of the

crime" (slip op. at 7), but whether defendant approved of Smith’s

actions is not a fact, but an inference.

       In Bett, the court found that the accounts of the crime

placed the defendant at the scene when the confrontation began,

but said “nothing about what [he] *** agreed with the others to

do.”    Bett, 256 F.3d at 692.   The court regarded the statement

that another defendant hit the victim “like everybody else,” and

the state’s consequent inference that the “everybody else”

included the defendant, to be “ambiguous to say the least.”

Bett, 256 F.3d at 692.    The court found that the statement did

“not constitute proof beyond a reasonable doubt that [the

defendant] played a role in the incident, either as a direct

participant or as a conspirator.”      Bett, 256 F.3d at 693.

       As in Bett, the fact that defendant accompanied Smith and


                                  22
was still with him when the stolen shingles were returned to

Lowe’s does not by itself prove that she agreed to participate or

was participating in a criminal enterprise (or indeed that she

even knew there was a criminal enterprise), or support beyond a

reasonable doubt the inference that she did so agree.      That

evidence merely proves that she was with Smith.      Any actions

defendant took while with Smith must have been done with an

unlawful intent if those actions are to form the basis of a

criminal conviction.      Marx, 291 Ill. at 48, 125 N.E. at 722;

People v. Taylor, 186 Ill. 2d 439, 448, 712 N.E.2d 326, 330

(1999) (guilt by accountability requires “specific intent to

promote or facilitate an offense”).

     Dorothy’s testimony that defendant pointed at shingles on

the ground “could not have shed any light on the intended meaning

of [defendant’s actions].”      Cf. Bett, 256 F.3d 693.   The trial

court’s, and the majority’s inference is no more than speculation

consistent with guilt.     However, as the court stated in Davis,

“[a] person’s liberty is an endowment that is too valuable to be

lost on speculation of wrongdoing.      Our system of government

demands more:   proof!”     Davis, 278 Ill. App. 3d at 541, 663

N.E.2d at 45.

     The majority also finds that the trier of fact could infer

"from the facts" that defendant displayed a guilty conscience by

getting back into the car when she saw the witness.       Slip op. at


                                   23
7.   It fails, however, to cite what facts that inference might be

based   upon.   I believe that a trier of fact could only infer

that defendant displayed a consciousness of guilt by getting back

into the car when she saw Dorothy if it first presumed that

defendant’s presence was in support of a common criminal design.

I further believe that any time a trier of fact infers that a

defendant’s conduct evinces a consciousness of guilt, it must do

so on the premise that the defendant is guilty of something.

Drawing such an inference in the context of a criminal trial

represents an error of circular reasoning, whereby the proponent

“defends the claim by using the conclusion as one of the premises

to support the conclusion.”

http://leo.stcloudstate.edu/acadwrite/logic.html#IRRELEVANT%20CON

NECTIONS (visited February 3, 2007).    Here, the claim is that

defendant was guilty of an offense.    The court used that

conclusion, that defendant was guilty of something and hence

“jumped in the car“ when she saw Dorothy, as one of the premises

to support that which it was ultimately trying to conclude:    that

defendant was guilty.

     Because such reasoning is logically flawed, I would hold

that it is erroneous for the State to argue a defendant’s guilt

based on the “consciousness of guilt” fallacy.    Although

decisions of our supreme court have examined certain evidence and

held that such evidence was relevant and admissible to show a


                                 24
consciousness of guilt, we find no binding precedent that forbids

our holding that an amorphous, so-called "consciousness of guilt"

is itself irrelevant and inadmissible to prove guilt.

     To hold otherwise leaves open the door to the use of

evidence which presumes guilt to prove guilt; evidence that also

impermissibly shifts the burden to the defendant to prove her

innocence.   In this case, for example, defendant would have to

convince the jury that she was not aiding Smith’s theft of the

shingles, i.e., that she was not guilty of an offense, to prove

that she re-entered the vehicle for a reason other than a

“consciousness of guilt.“   Such presumptions stand in

contravention of the presumption of innocence that remains with a

criminal defendant until she is proved guilty with competent

evidence beyond a reasonable doubt.   See People v. Pasch, 152

Ill. 2d 133, 174, 604 N.E.2d 294, 310 (1992) (“the defendant is

presumed innocent, *** this presumption remains until the jury is

convinced beyond a reasonable doubt that defendant is guilty, ***

the State has the burden of proving the defendant's guilt beyond

a reasonable doubt, and *** this burden remains on the State

throughout the case“).

     When assessing whether, taking the evidence in a light most

favorable to the prosecution, any rational trier of fact could

have found the essential elements of the offense proved beyond a

reasonable doubt, the reviewing court should, first, determine


                                25
the ultimate conclusions of fact upon which a finding of guilt

must be based.   These conclusions, of course, must comport with

the elements of the offense.    Next, if the conviction is not

based on direct evidence, the court must identify the inferential

steps the trier of fact must have found to reach its ultimate

conclusion.    Finally, and most importantly, the reviewing court

must identify facts of record, and not suppositions, upon which

each inference may reasonably be based.

     While I recognize that triers of fact are not, and should

not be, required to undertake such mechanical analyses, instead

being free to draw reasonable inferences from common experience

(see, e.g., People v. Lambrecht, 231 Ill. App. 3d 426, 439, 595

N.E.2d 1358, 1367 (1992) ("the jury, utilizing its common

experience and knowledge, could draw its own inferences and

conclusions")); I feel that courts of review must do so to give

real meaning to “proof beyond a reasonable doubt.”    It is often

stated that,   in reviewing a conviction, the evidence must be

viewed in a light most favorable to the prosecution.    This

standard is not meant to favor the State, but to “give[] full

play to the responsibility of the trier of fact fairly to resolve

conflicts in the testimony, to weigh the evidence, and to draw

reasonable inferences from basic facts to ultimate facts.”

Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573-74,

99 S. Ct. 2781, 2789 (1979).    Thus, it merely serves to preserve


                                 26
          “the factfinder's role as weigher of the

          evidence *** through a legal conclusion that

          upon judicial review all of the evidence is

          to be considered in the light most favorable

          to the prosecution.   The criterion thus

          impinges upon ‘jury’ discretion only to the

          extent necessary to guarantee the fundamental

          protection of due process of law.”    Jackson,

          443 U.S. at 319, 61 L. Ed. 2d at 573-74, 99

          S. Ct. at 2789.

However, not only must we protect the integrity of the role of

the fact finder, our primary duty is to assure the integrity of

the verdict itself.   The only way to do so meaningfully is to

fully comprehend the jury’s verdict.

     In the case at bar, to prove defendant guilty of theft by

accountability, the trier of fact had to conclude that defendant

intended to aid Smith in taking the shingles with the intent to

permanently deprive the owner of their use.    The trial court

inferred that defendant accomplished this by pointing out the

shingles to Smith, and accompanying him in an apparent effort to

exchange them for cash.   The majority fails to cite any "other

circumstances" to support an inference that she agreed to the

criminal enterprise as required by Marx.   My review of the case

reveals no facts that lead to a reasonable inference that


                                27
defendant knew that Smith was stealing the shingles, that she

agreed to help him, or that, by pointing to what was plainly on

the ground before him, that she did in fact “aid“ in the

commission of the offense.    See People v. Taylor, 186 Ill. 2d

439, 448, 712 N.E.2d 326, 330 (1999) (“guilt under accountability

is not supported where one *** neither intends to facilitate nor

aids or attempts to aid the offender in the commission of any

element of the offense”).

     It may well be that Janet Turner was an active knowing

participant in the crime charged and that she is guilty on a

theory of accountability.    Certainly the trial court and the

majority feel that she was.    Our system does not, however,

deprive people of their liberty on the basis of feeling,

speculation, or conjecture--at least it purports not to do so.

Rather, we convict people only when there is factual evidence--

which either demonstrates defendant’s involvement or supports

reasonable inferences of culpable involvement--sufficient to

prove defendant guilty beyond any reasonable doubt.

     Because I find the evidence of defendant’s guilt of theft so

unsatisfactory as to create a reasonable doubt of her guilt I

would reverse defendant’s conviction.    Accordingly, I dissent.




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