                                  2017 IL App (1st) 151247

                                                                            SIXTH DIVISION
                                                             Opinion filed: November 22, 2017

                                 No. 1-15-1247
_____________________________________________________________________________

                                           IN THE 


                            APPELLATE COURT OF ILLINOIS


                                FIRST DISRICT

_____________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
                  Plaintiff-Appellee,           )     Cook County
                                                )
          v. 	                                  )     No. 13 CR 521
                                                )
MICHAEL ESCORT,                                 )     Honorable
                                                )     Kevin M. Sheehan,
                  Defendant-Appellant.          )     Judge Presiding.
______________________________________________________________________________

       PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
       Justices Connors and Delort concurred in the judgment and opinion.

                                       OPINION

¶1     The defendant, Michael Escort, was convicted of murder and sentenced to 60 years’

imprisonment. He now appeals, arguing, inter alia, that he was not proven guilty beyond a

reasonable doubt.   For the reasons which follow, we reverse the defendant’s conviction and

sentence.

¶2     The following facts are taken from the evidence introduced by the State at the

defendant’s trial. On October 3, 1989, Mary Smith (hereinafter also referred to as the victim)

was found dead in the courtyard of an abandoned warehouse located at 5801 South Lowe

Avenue in Chicago. When found, she was naked, and articles of her clothing were found on the
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roof of the building. Mary Smith’s death was treated as a homicide, but the initial investigation

failed to result in any arrest.

¶3      In July of 2011, the Chicago Police Department submitted swabs taken from the victim’s

body and articles of her clothing to Cellmark Forensics in Dallas, Texas, for biology and DNA

testing and the development of DNA profiles suitable for comparison with known DNA profiles

of individuals in a national database. Cellmark Forensics received two vaginal swab sticks, two

rectal swab sticks, and two oral swab sticks. The cotton parts of those swabs had been separated

and were also received by Cellmark Forensics. The swab sticks and actual cotton swabs were

tested for sperm cells. Sperm cells were detected on the vaginal and rectal swab sticks as well as

on both the vaginal and rectal cotton swabs, but not on the oral swab sticks. The testing revealed

many sperm cells on the swabs taken from the victim’s vagina, which, according to the

testimony of a forensic casework supervisor employed by Cellmark Forensics, was indicative of

a recent encounter. Fewer sperm cells were detected on the swabs taken from the victim’s

rectum. DNA analysis was performed on the swab sticks and the cotton swabs. The material

was divided into two samples; sperm and non-sperm. The analysis conducted on the non-sperm

fraction of the material on the vaginal swab sticks revealed a partial predominant DNA profile

for a male identified as “unknown male number 1.” The analysis of the sperm fraction of the

material from the vaginal swab sticks also revealed a partial predominant DNA profile for a male

identified as unknown male number 1. No other profiles suitable for comparison were detected

from the vaginal swab sticks. The analysis of the non-sperm fraction of the material from the

vaginal swabs revealed a partial DNA profile consistent with the victim’s profile. Analysis of

the sperm fraction of the material from the vaginal swab revealed a complete DNA profile for

unknown male number 1. The rectal swab sticks and the rectal swabs were combined into one


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sample for DNA analysis. The analysis of the non-sperm fraction produced a DNA profile

consistent with the victim’s profile, but no DNA profile was obtained from the sperm fraction.

Semen was found in the crotch area of pants that were recovered from the roof of the warehouse.

Analysis of both the sperm fraction and the non-sperm fraction from the semen stain produced

DNA profiles consistent with a male identified as “unknown male number 2,” but inconsistent

with that of unknown male number 1. Analysis was also done on the semen stains on the

victim’s pantyhose. Examination of the non-sperm fraction of the semen on the crotch area of

the victim’s pantyhose revealed that it was from two people, including at least one unknown

male. However, no conclusion could be drawn from that analysis as to whether either unknown

male number 1 or unknown male number 2 was a contributor. Analysis of the sperm fraction

revealed that three individuals were the source. However, again no conclusion could be drawn

from that analysis as to whether either unknown male number 1 or unknown male number 2 was

a contributor. The results of the testing conducted by Cellmark Forensics were reported back to

the Chicago Police Department and also furnished to the Illinois State Police crime laboratory.

¶4     The Illinois State Police conducted a comparison of the unknown male DNA profiles that

were developed by Cellmark Forensics with known profiles in a national database.              The

comparison revealed an association between the DNA profile of unknown male number 1,

developed from the analysis of the victim’s vaginal swabs, and the defendant’s known profile.

¶5      After being informed of the association between the defendant’s known DNA profile and

the DNA profile for the unknown male number 1, Chicago police detectives located the

defendant and, with his agreement, took DNA swabs from his cheeks and lower lip. Those

swabs were sent to the Illinois State Police crime laboratory for analysis and comparison with the

DNA profiles developed from the swabs from the victim’s body. The comparison revealed that


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the DNA profile identified from the sperm fraction of the victim’s vaginal swab matched the

defendant’s DNA profile. The comparison also revealed that the defendant was a contributor to

both the sperm fraction and the non-sperm fraction of the samples from the vaginal swabs and

the vaginal swab sticks. The defendant’s DNA profile was not found in the sample from the

semen stain on the victim’s pants. The comparison of the defendant’s DNA profile with the non-

sperm fraction of the sample from the victim’s pantyhose yielded insufficient information to

either include or exclude the defendant as a contributor. The defendant’s DNA was not found on

the sperm fraction of the sample from the pantyhose, and he could, therefore, be excluded as a

contributor.

¶6     On December 6, 2012, the defendant was arrested, and on January 3, 2013, he was

charged by indictment with four counts of murder arising from the death of Mary Smith. One of

the four counts was based upon felony murder for which the predicate felony was criminal

sexual assault. The defendant elected to be tried by a jury.

¶7     Prior to trial, the State filed a motion seeking leave of court to introduce proof that the

defendant had two prior convictions for aggravated criminal sexual assault. In support of its

motion, the State invoked section 115-7.3 of the Code of Criminal Procedure of 1963 (725 ILCS

5/115-7.3 (West 2012)). The trial court granted the motion, finding that the probative value of

the propensity evidence outweighed its prejudicial impact. However, at trial, the State elected to

introduce evidence of only one of the defendant’s prior convictions; namely, the 1991 aggravated

criminal sexual assault on T.P., the 13 year-old daughter of the defendant’s then girlfriend.

¶8      The defendant’s trial commenced on December 1, 2014.           Harold Smith, the victim’s

brother, testified that the victim was addicted to drugs and had been working as a prostitute. On

the evening of October 2, 1989, he and the victim went to a “drug house” where they used crack


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cocaine. According to Harold, he sent the victim to buy additional drugs. When she did not

return, he went looking for her. Harold testified that he saw the victim from a distance; she

waved and said that she would be back. He stated that this was the last time that he saw the

victim alive.

¶9        The State called the following individuals as witnesses: Officer Carl Brasic, a forensic

investigator; Detective Denise Trouche, a serologist; Robert Berk, a trace evidence analyst

employed by the Illinois State Police; Kelli Byrd, a forensic casework supervisor employed by

Cellmark Forensics; Officer Edward Carroll from the cold case unit of the Chicago Police

Department; and Ryan Paulsen, a forensic scientist employed by the Illinois State Police. These

individuals testified to the gathering of evidence at the location where the victim was found; the

fact that swabs were taken from the victim’s body; the submission of those swabs and articles of

the victim’s clothing for analysis; the results of that analysis; the association found between the

DNA profile developed from material from the vaginal swabs and vaginal swab sticks and the

defendant’s known profile; the collection of comparison swabs from the defendant’s cheeks and

lower lip; and the comparison of the DNA profile developed from the swabs taken from the

defendant with the DNA profiles developed from the victim’s vaginal swabs and vaginal swab

sticks.

¶ 10      The State also called Dr. Steven Cina, a forensic pathologist with the Cook County

Medical Examiner’s Office, as a witness to testify to the findings of the autopsy which was

performed on the victim’s body on December 3, 1989. Dr. Cina testified that the condition of the

victim’s body when initially examined indicated that she had not been dead very long as there

was no evidence of rigor mortis, livor mortis, or stiffening of any of her muscles or joints.

According to Dr. Cina, the victim had only been dead for several hours. He stated that the


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autopsy revealed that the victim sustained multiple injuries to her head and neck. Hemorrhaging

beneath her scalp was noted, indicating blunt force trauma to the head.          Also noted were

extensive fractures to the bony plate above the victim’s left eye socket. Dr. Cina was of the

opinion that the extensive abrasions on the right side of the victim’s head were caused by a rough

heavy object. The injuries to the victim’s neck consisted of abrasions and bruising to the lateral

structures, which were associated with internal injuries.      Dr. Cina testified that the victim

suffered a fracture of the laryngeal cartilage and a fracture of the hyoid bone; injuries typically

associated with strangulation. There were minor injuries to the victim’s chest and on her back

were large abrasions which were compatible with her body having been dragged over a rough

surface. Dr. Cina testified that no injuries were found on the victim’s vagina or anus. He was of

the opinion that the victim died of strangulation and that the blunt force injuries to her head were

a contributing cause.

¶ 11   As its final witness, the State called T.P. She testified to the facts surrounding the

defendant’s sexual assault upon her in 1991. She stated that, in the course of the attack, the

defendant choked her.

¶ 12   Following T.P.’s testimony, the State rested. Thereafter, the defendant moved for a

directed verdict of not guilty, arguing that the State’s evidence proved only that he had sexual

relations with the victim, but not that he had murdered her.          The trial court denied the

defendant’s motion, and the defendant then rested without introducing any evidence.

¶ 13   Following their deliberations, the jury found the defendant guilty of murder. The trial

court denied the defendant’s post-trial motion and subsequently sentenced him to 60 years’

imprisonment.     Following the denial of the defendant’s motion for reconsideration of his

sentence, he filed the instant appeal.


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¶ 14   In urging reversal of his conviction and sentence, the defendant argues, inter alia, that the

State failed to prove him guilty of Mary Smith’s murder beyond a reasonable doubt. According

to the defendant, the State proved only that he was one of several men who had sexual relations

with the victim prior to her death. In response, the State argues that the circumstantial evidence

introduced at trial was sufficient to establish the defendant’s guilt beyond a reasonable doubt.

¶ 15    When, as in this case, a defendant challenges the sufficiency of the evidence supporting

a conviction, we must determine whether, after viewing the evidence in a light most favorable to

the prosecution, any rational trier of fact could have found the essential elements of the crime

charged beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); People v.

Brown, 2013 IL 114196, ¶ 48. “This standard of review applies in all criminal cases whether the

evidence is direct or circumstantial.” People v. Ehlert, 211 Ill. 2d 192, 202 (2004).

¶ 16   In this case, there is no direct evidence linking the defendant to the death of the victim.

Nevertheless, “[c]ircumstantial evidence is sufficient to sustain a criminal conviction, provided

that such evidence satisfies proof beyond a reasonable doubt of the elements of the crime

charged.” People v. Hall, 194 Ill. 2d 305, 330 (2000).

¶ 17   As a reviewing court, we will not reverse a criminal conviction “unless the evidence is so

improbable, unsatisfactory, or inconclusive that it creates a reasonable doubt of [the] defendant’s

guilt.” People v. Collins, 214 Ill. 2d 206, 217 (2005). However, if, after an examination of the

evidence, we conclude that the evidence is so unsatisfactory or inconclusive that it creates a

reasonable doubt of the defendant’s guilt, we must reverse the conviction. People v. Smith, 185

Ill. 2d 532, 541-42 (1999).

¶ 18   Proof of any criminal offense requires proof of two concepts:           “first, that a crime

occurred, *** and second, that it was committed by the person charged.” Ehlert, 211 Ill. 2d at


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202. In this case, the State clearly proved that Mary Smith was murdered. The issue presented is

whether the evidence introduced by the State was sufficient to establish, beyond a reasonable

doubt, that the defendant committed the murder.

¶ 19    The State argues that the evidence in this case supports the inference that the defendant

was the last person to see the victim alive. In support of its conclusion in this regard, the State

notes that: (1) the defendant had sexual relations with the victim as evinced by his DNA profile

on the sperm and non-sperm samples from victim’s vaginal swabs and the swab sticks; (2) the

quantity of the defendant’s sperm cells on the vaginal swab indicates a recent encounter; and

(3) Dr. Cina’s opinion that the victim had only been dead for several hours when her body was

first examined on the morning of October 3, 1989. Based on these facts, the State also contends

that a reasonable trier of fact could infer that the defendant had sexual relations with the victim

shortly before her death. The State next asserts that, since the defendant’s DNA was not found

on the victim’s pantyhose, the trier of fact could also infer that the victim did not have an

opportunity to put her pantyhose back on after having sex with the defendant. From these facts,

the State concludes that a reasonable trier of fact could find, beyond a reasonable doubt, that the

defendant murdered Mary Smith.

¶ 20   We find several flaws with the State’s reasoning. First, the fact that Kelli Byrd, the

forensic casework supervisor employed by Cellmark Forensics, testified that the “many, many

sperm cells” present on the victim’s vaginal swab “would indicate a more recent encounter,”

does not support the conclusion that, because the defendant’s DNA profile was found on these

sperm cells, he had sexual relations with the victim shortly before her death.       In fact, Byrd

testified both that semen can remain in a woman for up to 72 hours after sexual intercourse and

that there is no way of telling when DNA is deposited on a person. Although the fact that sperm


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cells containing the defendant’s DNA profile were found in a great quantity on the victim’s

vaginal swab and the vaginal swab sticks may well support a reasonable inference that the

defendant had sexual relations with the victim after the other individuals whose DNA was

detected on the swabs taken from the victim’s body, that fact does not establish a temporal link

between the defendant’s sexual encounter with the victim and the time of her death. Dr. Cina

opined that the victim had only been dead for several hours before her body was first examined,

but he rendered no opinion as to the time which elapsed between the victim’s last sexual

encounter and her death. As for the analysis of the victim’s pantyhose, Byrd testified that the

Cellmark Forensics analysis could not support a conclusion as to whether unknown male number

1, now known to be the defendant, was a contributor to the sperm or non-sperm fractions of the

samples analyzed. Although Ryan Paulsen testified that, based upon the comparison analysis

performed at the Illinois State Police crime laboratory, the defendant could be excluded as a

contributor to the sperm fraction of the sample taken from the victim’s pantyhose, he also stated

that the defendant could neither be included nor excluded as a contributor to the non-sperm

fraction of the sample.

¶ 21   Distilled to its finest, the State’s evidence could reasonably support only a determination

that the defendant had sexual relations with the victim at some time during the 72-hour period

prior to her death. It would be pure speculation to conclude that the defendant and the victim

had sexual relations shortly before her death or that he was the last person to see the victim alive.

However, guilt may not rest on speculation. People v. Martin, 26 Ill. 2d 547, 551 (1963).

¶ 22   Our examination of the record in this case leads us to conclude that the evidence

introduced by the State was so weak as to create a reasonable doubt on the issue of whether the

defendant committed the murder of Mary Smith. Consequently, we reverse the defendant’s


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conviction and sentence and, therefore, find no need to address any of his other claims of error.

¶ 23   Reversed.




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