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                               Appellate Court                             Date: 2018.10.22
                                                                           16:36:05 -05'00'




                  People v. Trajano, 2018 IL App (2d) 160322



Appellate Court   THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption           TITA G. TRAJANO, Defendant-Appellant.



District & No.    Second District
                  Docket No. 2-16-0322



Filed             August 22, 2018



Decision Under    Appeal from the Circuit Court of Boone County, No. 11-CF-364; the
Review            Hon. C. Robert Tobin III, Judge, presiding.



Judgment          Affirmed.


Counsel on        James E. Chadd, Thomas A. Lilien, and Yasemin Eken, of State
Appeal            Appellate Defender’s Office, of Elgin, for appellant.

                  Tricia L. Smith, State’s Attorney, of Belvidere (Patrick Delfino, David
                  J. Robinson, and Adam Trejo, of State’s Attorneys Appellate
                  Prosecutor’s Office, of counsel), for the People.



Panel             JUSTICE BURKE delivered the judgment of the court, with opinion.
                  Presiding Justice Hudson and Justice Hutchinson concurred in the
                  judgment and opinion.
                                             OPINION

¶1       Following a jury trial in the Boone County circuit court, defendant, Tita G. Trajano, was
     convicted of criminal neglect of an elderly person (720 ILCS 5/12-21(a)(2) (West 2008) (now
     720 ILCS 5/12-4.4a(b)(1)(B))) and sentenced to 18 months of conditional discharge. On
     appeal, she argues that the State failed to prove beyond a reasonable doubt that she
     (1) knowingly failed to perform acts that she knew or reasonably should have known were
     necessary to maintain the health of the victim, Richard Brown, and (2) did not make a
     “good[-]faith effort” to care for Richard. Id. § 12-21(a)(2), (d). We affirm.

¶2                                         I. BACKGROUND
¶3       Evidence presented at trial revealed that, in February 2009, Dan Brown, Richard’s son,
     contracted with BrightStar Healthcare (BrightStar) to provide live-in home health care for his
     mother, Eileen Brown, who lived with Richard in an apartment attached to Katherine and Chris
     Landgraff’s home. Katherine is Dan’s sister. Although the family primarily sought care for
     Eileen, who had severe Alzheimer’s disease, they also sought care for Richard, who, at 85, was
     blind in one eye, deaf in one ear, and had difficulty moving around without a cane or walker.
     Additionally, the family believed that Richard had dementia, although Richard was never
     formally diagnosed with this. Care for Richard included preparing his meals; doing his
     laundry; helping him bathe, dress, and use the bathroom if he wanted help; and generally
     keeping him safe.
¶4       BrightStar contracted with Joyful Hearts Home Health Support, Inc. (Joyful Hearts), to
     provide the necessary services. Joyful Hearts, which was owned at least in part by Esmeralda
     Roxas, placed Kaye Jensen in the Browns’ home. Defendant substituted for Jensen.
¶5       Defendant is a small Filipino woman in her seventies. In the Philippines, she took premed
     classes, which consisted of psychology, physiology, and biochemistry, and later switched her
     major to nutrition. Just prior to graduating, defendant got married, and she never received her
     degree. Defendant and her husband had five children and moved to the United States in 1979.
     In 2008, defendant began working for Joyful Hearts. Defendant testified that she had “a lot” of
     clients, and she described herself as an “experienced caregiver.”
¶6       Between February and May 2009, defendant provided services three times to the Browns,
     who defendant indicated were physically combative and walked around all night shouting. The
     last time defendant provided services for the Browns, she reported to their home on Thursday,
     May 14, 2009, at around 5 p.m. Although the Landgraffs met with defendant at that time, they
     did not discuss with her anything having to do with caring for the Browns.
¶7       Katherine testified that, in the Browns’ apartment, there was a list on a desk in the kitchen
     that contained contact information. Katherine indicated that “[e]verything was on there.”
     Katherine theorized that Jensen showed the list to defendant, because “[t]hat was her job” and
     Jensen was “really thorough.” Jensen testified that there was contact information for the
     family, Joyful Hearts, and BrightStar on a sticker on the Browns’ refrigerator, and she believed
     that she pointed those out to defendant. Defendant testified that she did not know the phone
     numbers of Katherine or BrightStar.
¶8       On May 15, 2009, the Landgraffs left for work early in the morning. While defendant was
     caring for Eileen, she heard Richard call out to her from the bedroom. Defendant went to the


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       bedroom and saw that Richard had fallen out of bed and was on the hardwood floor. Defendant
       tried to help Richard, who was skinny but over six feet tall, stand up. She could not do it. While
       she was attempting to help Richard, Eileen called out to her. Eileen had soiled herself while
       sitting on the couch, so defendant left Richard and tended to Eileen. Defendant testified that
       this took around one hour.
¶9          At around 10:30 or 11 a.m., defendant called Jensen, who she knew was away for the
       weekend. Jensen did not answer the phone, and according to Jensen, defendant did not leave a
       voicemail. Defendant asserted that she did leave a voicemail for Jensen. Although defendant
       testified that she tried to call Jensen numerous times, Jensen stated that defendant called her
       only once. Defendant also tried to contact Roxas, but she, too, was unavailable, and defendant
       did not leave her a voicemail. Defendant acknowledged that Roxas was far away from the
       Browns’ home.
¶ 10        At 1:30 p.m., Jensen saw that defendant had called her earlier. She called defendant, and
       defendant told her that Richard was on the floor. Defendant did not tell Jensen how long
       Richard had been on the floor or if Richard was injured. Defendant told Jensen that she called
       Roxas and that she tried to get Richard up but could not do so, as she was too little. Jensen
       testified that she told defendant to call Chris, who would be home soon and could help her.
       Defendant testified that Jensen told her that she should wait for Chris, and she did not recall
       Jensen telling her to call Chris. Defendant stated that she checked on Richard a number of
       times throughout the day and that he was fine.
¶ 11        When Chris returned home at around 3:30 p.m., he received a phone call from defendant.
       Defendant asked him to come over to the Browns’ apartment, but she did not say why. Chris
       immediately went over to the home, and defendant told him that Richard had fallen. Chris went
       into the bedroom and saw Richard on the floor. Chris elaborated that Richard was on his hands
       and knees, with all of his weight on his legs, and that “it was obvious [Richard] couldn’t get up
       on his own.” Chris helped Richard get into a chair, Richard told Chris that he was tired, and
       Chris helped Richard get into bed. In doing so, Chris cleaned up blood from abrasions he
       noticed on Richard’s ankles. Chris testified that defendant tried to help him move Richard, told
       Chris that she had given Richard cookies and a glass of water, and said that Richard had been
       on the floor for “[j]ust a little while.” Nothing defendant told Chris in her “[l]imited” account
       of what had happened raised Chris’s concerns.
¶ 12        When Katherine returned home from work at about 5:30 or 6 p.m., Chris told her that
       Richard had fallen out of bed. Katherine went to the Browns’ apartment and saw that Richard
       was in bed. Richard did not tell Katherine anything about falling out of bed. When asked how
       he felt, he responded that he was tired. Katherine spoke to defendant, and defendant did not
       describe how Richard fell out of bed or what she did after he fell. Defendant told Katherine that
       Richard remained on the floor for “[a] little while.”
¶ 13        The next morning, May 16, 2009, the Landgraffs went to the Browns’ apartment and spoke
       to Richard. He again said that he was tired. Katherine and Chris changed Richard and noticed
       that his knees and shins were banged up quite a bit. Katherine phoned Dan, as Katherine and
       Chris believed that Richard “just wasn’t right.”
¶ 14        When Dan arrived, he tried to help Richard out of bed. Richard screamed that it hurt, so the
       family decided to call an ambulance. When the paramedics arrived, Richard could not get out
       of bed and onto the gurney, as he was in great pain. David Triplett, one of the paramedics,


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       described Richard’s pain as “obvious.” He noticed that Richard’s legs were bruised and he had
       abrasions on his arms and legs.
¶ 15       In the emergency room, Dr. Aren Jimenez examined Richard. Jimenez noticed that Richard
       had a number of bruises on his forearms and abrasions on his knees. After running various
       tests, Jimenez diagnosed Richard as having rhabdomyolysis, which can result from the release
       of protein into the blood due to the failure to move one’s muscles. Dr. Azra Ali, who also
       examined Richard, observed that Richard had fresh bruises on his legs, which were consistent
       with having fallen out of bed. Ali confirmed that Richard was suffering from rhabdomyolysis.
       Dr. Mitchell Scott King, an expert retained by the State, agreed with the diagnosis and opined
       that Richard was on the ground for at least 2 hours but more likely 4½ hours. King theorized
       that Richard’s health deteriorated because he was on the floor for so long.
¶ 16       Later in the evening of May 16, 2009, defendant told Chris that Richard had been on the
       floor for 1 to 1½ hours. Defendant then said that Richard was on the floor for two hours.
       Defendant later told Katherine that Richard had been on the floor since noon.
¶ 17       Based on this evidence, the jury found defendant guilty, and defendant filed a posttrial
       motion, arguing that she was not proved guilty beyond a reasonable doubt. The court denied
       the motion, finding that there was enough evidence for a reasonable jury to find defendant
       guilty beyond a reasonable doubt. This timely appeal followed.

¶ 18                                           II. ANALYSIS
¶ 19       On appeal, defendant argues that she was not proved guilty beyond a reasonable doubt of
       criminal neglect of an elderly person. To prove defendant guilty of that offense as charged
       here, the State had to establish that (1) defendant knowingly failed to call for assistance when
       she knew or reasonably should have known that this was necessary to maintain Richard’s
       health and (2) such failure caused Richard’s health to suffer. See 720 ILCS 5/12-21(a)(2)
       (West 2008). However, liability may not be imposed on a defendant “who has made a
       good[-]faith effort to provide for the health and personal care of an elderly person *** but
       through no fault of h[er] own has been unable to provide such care.” Id. § 12-21(d).
¶ 20       When reviewing whether the State presented sufficient evidence to sustain a conviction,
       we must decide whether, viewing the evidence in the light most favorable to the State, a
       rational trier of fact could have found the elements of the offense beyond a reasonable doubt.
       People v. Cunningham, 212 Ill. 2d 274, 278 (2004). A reviewing court will not retry a
       defendant (id. at 279), and it will greatly defer to the credibility determinations of the trier of
       fact (People v. Ortiz, 196 Ill. 2d 236, 259 (2001)). A guilty finding may be supported not only
       by the evidence but also by any reasonable inferences that may be drawn from the evidence.
       Cunningham, 212 Ill. 2d at 279-80.
¶ 21       Defendant claims that the State failed to establish beyond a reasonable doubt that (1) she
       knowingly failed to call for assistance when she knew or reasonably should have known that
       doing so was necessary to maintain Richard’s health and (2) she did not make a “good[-]faith
       effort” to care for Richard. 720 ILCS 5/12-21(a)(2), (d) (West 2008). We consider each
       contention in turn.




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¶ 22                                             A. Mental State
¶ 23        We first consider whether defendant knowingly failed to call for assistance when she knew
       or reasonably should have known that doing so was necessary to maintain Richard’s health. Id.
       § 12-21(a)(2). A defendant acts with “knowledge” when she is “consciously aware” that her
       conduct is “practically certain” to cause the result. Id. § 4-5(b). Whether a defendant acted with
       knowledge is a question of fact. See People v. Schmalz, 194 Ill. 2d 75, 81 (2000).
¶ 24        Knowledge is usually proved by circumstantial, rather than direct, evidence. Ortiz, 196 Ill.
       2d at 260. Thus, knowledge may be established by evidence of the defendant’s acts,
       statements, or conduct, as well as the surrounding circumstances, that supports a reasonable
       inference that the defendant was consciously aware that the result was practically certain to be
       caused. See People v. Fleming, 2013 IL App (1st) 120386, ¶ 75; People v. Herr, 87 Ill. App. 3d
       819, 822 (1980).
¶ 25        Knowledge is different from what a defendant “should have known.” People v. Nash, 282
       Ill. App. 3d 982, 986 (1996). “ ‘[S]hould have known’ implicates ‘the standard of care which a
       reasonable person would exercise’ and therefore pertains to the lesser mental states of
       ‘recklessness’ and ‘negligence.’ ” Id. (quoting 720 ILCS 5/4-6, 4-7 (West 1992)). A person
       acts recklessly when she consciously disregards a substantial risk that a result will occur. 720
       ILCS 5/4-6 (West 2008). A person acts negligently when she fails to be aware of a substantial
       risk that a result will occur. Id. § 4-7.
¶ 26        With the above principles in mind, we turn to the facts presented here. Viewed in the light
       most favorable to the State, the evidence revealed that Richard, an 85-year-old man with many
       health issues, fell out of bed and onto a hardwood floor. He remained on the floor for
       approximately 4½ hours. During that time, defendant, who had taken premed courses and who
       described herself as an “experienced caregiver,” made only two phone calls, despite the fact
       that a detailed list of contact numbers was left in the Browns’ home. The two people defendant
       called were Roxas, her employer, and Jensen, the regular caregiver. Neither answered when
       defendant called, defendant left no voicemail for either, and defendant acknowledged that
       neither would have been be able to provide immediate assistance. Several hours after
       defendant called Jensen, Jensen returned defendant’s call. Although Jensen told defendant
       during that call that Chris would be home soon, she also told defendant to call Chris. Defendant
       did not promptly call Chris, 911, or anyone else who could help her with Richard. Although
       defendant fed Richard, gave him water, and checked on him, a rational jury could find that
       defendant knowingly failed to call for immediate assistance when she knew or reasonably
       should have known that calling for immediate assistance was necessary to maintain Richard’s
       health.
¶ 27        Defendant argues that the State failed to meet its burden because it did not “show how
       [defendant] would have known that despite her efforts to care for Richard, his immobility was
       ‘practically certain’ to cause a condition that has no physical manifestations and can only be
       diagnosed through laboratory tests.” Defendant’s argument assumes too much. As the State
       notes, the statute does not require that the caregiver know the type of affliction that could
       manifest itself because of the caregiver’s inaction. Rather, the statute requires only that the
       caregiver act as necessary to maintain the elderly person’s health. Id. § 12-21(a)(2). Given that
       defendant attempted to move Richard, continually checked on him, and made two phone calls
       about what to do, it was reasonable to infer that she knew (or reasonably should have known)
       that leaving Richard on the floor for several hours would not maintain his health.

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¶ 28       Also unavailing is defendant’s claim that she cannot be held liable when no one else was
       concerned enough about Richard to call 911. Only defendant’s conduct is at issue here. In any
       event, defendant gave Jensen, Chris, and Katherine only a “[l]imited” version of what had
       happened and kept changing her account of how long Richard had remained on the floor,
       lengthening that time as the weekend went on. A rational jury could have determined that this
       showed defendant’s consciousness of guilt, which supports our holding that defendant was
       proved guilty beyond a reasonable doubt. See People v. Seiber, 76 Ill. App. 3d 9, 13-14 (1979).

¶ 29                                         B. Good-Faith Effort
¶ 30       Defendant also argues that the State failed to prove beyond a reasonable doubt that she did
       not act in good faith in attempting to care for Richard. The statute provides:
               “Nothing in this Section shall be construed to impose criminal liability on a person who
               has made a good[-]faith effort to provide for the health and personal care of an elderly
               person *** but through no fault of h[er] own has been unable to provide such care.”
               720 ILCS 5/12-21(d) (West 2008).
¶ 31       In construing this provision, we are guided by the well-settled rules of statutory
       construction. The primary objective in construing a statute is to ascertain and give effect to the
       legislature’s intent. People v. Martino, 2012 IL App (2d) 101244, ¶ 25. The surest and most
       reliable indicator of that intent is the statutory language. Id. We must construe the statute as a
       whole, giving the language its plain and ordinary meaning. Id. When the language is clear and
       unambiguous, we must apply the statute without resorting to any extrinsic aids of construction.
       Id. We review the construction of a statute de novo. People v. Manning, 2018 IL 122081, ¶ 16.
¶ 32       Two issues arise when construing this provision. First, the statute does not indicate who
       has the burden of proving the exemption. As defendant notes, “[w]here a criminal statute
       contains an exemption and the legislature has not set forth a provision within the statute
       allocating the burden of persuasion as to the exemption, we presume that the burden is on the
       State, not the defendant.” People v. Cannon, 2015 IL App (3d) 130672, ¶ 21. Here, the State
       concedes that it had the burden of proving a lack of good faith.
¶ 33       Second, the statute does not define “good faith,” so we may use a dictionary. People v.
       Beachem, 229 Ill. 2d 237, 244-45 (2008); see also People v. Kucharski, 2013 IL App (2d)
       120270, ¶ 41. “Good faith” means “honesty” (Merriam-Webster’s Collegiate Dictionary 502
       (10th ed. 2000)) or “a state of mind consisting in *** faithfulness to one’s duty or obligation”
       (Black’s Law Dictionary 808 (10th ed. 2014)). Thus, the statute required the State to prove that
       defendant did not make an honest and faithful effort to provide for Richard’s health. Viewing
       the evidence in the light most favorable to the State, we hold that the State met its burden.
¶ 34       The evidence established that defendant was an “experienced caregiver.” After Richard fell
       onto the floor, she tried to get him up, but she was unable to move him. She then made only two
       phone calls, to people who she knew could not provide immediate assistance. Hours later, she
       received a call from Jensen, who told her to call Chris. Defendant did not make that call until
       Chris returned home, and she told him that Richard had been on the floor for “[j]ust a little
       while.” Although defendant checked on Richard and gave him food and water, the jury could
       find that this was insufficient to constitute a good-faith effort to care for Richard, an elderly
       man with many ailments who was stranded on a hardwood floor for several hours.



                                                   -6-
¶ 35       Defendant argues that the State failed to meet its burden because “she honestly did the best
       she could under the circumstances.” Supporting her position, defendant notes that she, too, was
       elderly, was much smaller than Richard, and also had to care for Eileen. We believe that such
       evidence actually strengthens the conclusion that defendant did not act in good faith. That is,
       given that defendant clearly could not provide Richard with needed care, an honest and faithful
       effort required her to seek immediate help from someone else.
¶ 36       We also find unpersuasive defendant’s contention that the State failed to establish that she
       acted with “malice.” We do not find that an absence of “good faith” requires the presence of
       malice. Rather, as noted above, it is merely the absence of an honest and faithful effort to
       provide needed care.

¶ 37                                       III. CONCLUSION
¶ 38       For the reasons stated, we affirm the judgment of the circuit court of Boone County. As
       part of our judgment, we grant the State’s request that defendant be assessed $50 as costs for
       this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill. 2d 166, 178
       (1978).

¶ 39      Affirmed.




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